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Flogging of Cormack — attorney general sues newspaper for criminal libel to extract some vengeance
Dec 10, 2010
by Bruce Cherney (part 3 of 3)
With his political career imperiled by the massive public backlash for his ordering that the petty thief John Cormack be flogged for an attempted jail escape, Manitoba Attorney General James Miller struck out in anger at a highly-visible target. On November 24, 1884, Miller sought to extract revenge against the Winnipeg Morning Sun for its reporting on the flogging by suing principle shareholder S.C. (Samuel Clark) Biggs, editor Thomas H. Preston and reporter S.W. Handscomb for criminal libel.
The suit arose from an incident involving the attorney general reported in the November 17 Sun that had occurred two years previously, when Miller was a justice of the Manitoba Court of Queen’s Bench. Ironically, Miller’s suit was to be heard before the same court.
Miller alleged in his suit that the Sun had libeled him by printing comments that he had “aided criminals to escape justice” while he was serving on the bench. In the newspaper article, it was claimed Miller had ordered the release of a prisoner, who turned out to be a cousin from St. Catherines, Ontario, visiting Winnipeg. His cousin went by the last name of Pierce, according to subsequent reports.
Handscomb was researching an investigation by the Board of Police Commissioners ordered by Miller, who charged two members of the city police force with allowing the prisoner Cormack to escape justice, when he was told by “one gentleman” that the attorney general “should never have made such a charge, for the simple reason that by doing so he has caused people to pry into actions of his own in aiding criminals to escape justice.”
The Sun reporter was told to locate R. Farrell, an ex-city police officer, to verify the statement. When Farrell was found, he related to Handscomb that he had arrested an individual (on March 13, 1882) for robbing R.E. Vidal of $300 (other accounts say $400). Vidal reported the theft by Pierce who was then taken to the police station by Farrell. The suspect was searched, the stolen money was found in his possession, “and his guilt was practically admitted.”
The prisoner sent for Miller, who “visited him and ordered (his cousin’s) release,” according to the Handscomb article, which appeared under the headline, A Startling Story. After the prisoner was set free, the stolen money was returned to its rightful owner, and “it was arranged that the prosecutor should let the case fall through.”
Handscomb asked for a comment on the allegation from Winnipeg Police Chief David B. Murray, who was “greatly surprised that the story should have obtained publicity.” The police chief asked for the reporter’s source, but “failing to find who had told the reporter refused to say anything about it.”
Next, Sergeant Thomas English, who was the constable in charge at the police station when the man was released, was approached by the reporter, but he also declined to comment.
The Sun article said the officers didn’t comment because they were fearful they would lose their jobs.
“The actions of both chief and sergeant, however, were sufficient to corroborate all  the story,” wrote Handscomb.
Sun editor Preston felt the testimony of Farrell and the original source were sufficient verification and allowed the Handscomb article to be published.
The police officers were exonerated by the commissioners, although they and other members of the force undoubtedly greatly resented that Miller had carried through with the charges in the first place. This is evident when Police Chief Murray confirmed Handscomb's intuition by submitting an affidavit to the Court of Queen’s Bench for the criminal libel trial that the prisoner was “released on the intervention and at the request of Mr. Miller.”
Murray said he was instructed by Miller to hand the money back to Vidal, which Miller claimed had been only given to his cousin for safekeeping. According  to Murray, Vidal had nothing to do with the charges against Pierce being dropped.
Miller vigorously denied in his affidavit to the court that he had participated in the release of the prisoner. He called the article “false, malicious and without foundation in fact,” and wrote that he was only informed the next morning that the man was no longer in custody. He admitted to visiting the man in the city jail, being overcome by unpleasant odours in the cell, and as a result having the prisoner “brought out into the office. I then saw owing to over-indulgence in liquor he was not able to give any satisfactory explanation of the cause of his arrest.”
Affidavits read into the record revealed Miller’s cousin was drinking at Russell House (hotel) in the company of Vidal and another man named Alexander.
According to Miller’s affidavit, the prisoner asked him “to procure bail.”
Miller told the officer in charge to allow the man to sleep it off in the office, “and I said no charge was then preferred against him (which I was informed by the officer in charge was the fact) that he had better remain until a charge was preferred, and then there were several others in the city who knew him as well as myself (nowhere in the affidavit does Miller admit the man was his cousin!) that I would have some one look after his case.”
On December 31, 1884, the Sun, in a recap of the year’s events, claimed the suit “arose out of the flogging, and which doubtless influence in some extent the mind of the (Norquay Conservative) Government in forcing the resignation of Mr. Miller.”
The Sun alleged that only when the newspaper “fearlessly” denounced “wrong-doing” did Miller decide to initiate the libel case against Biggs, a prominent city lawyer, editor Preston and reporter Handscomb.
Apparently, Miller, a Conservative, had a bone to pick with Biggs, a Liberal who had previously been elected as an MLA for St. Pauls, whom he regarded as a political and professional rival. It didn’t help that Biggs was also the nephew of Edward Burke Wood, a former chief justice of the Manitoba Court of Queen’s Bench, who was appointed to the bench by Liberal Prime Minister Alexander Mackenzie. Wood died in 1882 under a cloud of suspicion instigated by his opponents.
In court, Bigg’s attorney Hector M. Howell wondered why Miller had singled out his client among the many stockholders in the newspaper, asking if it was due to “jealousy or dislike?” Howell claimed Miller only attacked Biggs “in order to keep him under the stigma of a crime.”
Whatever Miller’s motivation: “It did Miller’s reputation no good to have the three justices hearing the case dismiss his claim (on December 2, 1884) on the basis that the facts contained in the article were likely true” (The Court of Queen’s Bench of Manitoba, 1870-1950, by Dale Brown).
It wasn’t long after the flogging and subsequent court case that mounting public pressure forced Premier John Norquay’s hand. The premier recognized Miller was a political liability and asked for his resignation from the cabinet, which was promptly provided.
Miller only briefly served as Manitoba’s attorney general from September 6, 1883, to December 4, 1884. As a consolation for his resignation, Miller was made the province’s first register general of land titles.
The lawyer from St. Catherines, Ontario, was appointed by Prime Minister Macdonald as judge for Manitoba Court of Queen’s Bench in 1880. After being in Manitoba for just three years, he resigned as judge to become  the province’s attorney general.
Technically, he was not a Manitoba representative since he gained his seat in the legislature by winning an 1883 byelection for the riding of Varennes  (then centred around Rat Portage; today’s Kenora) — Manitoba’s first and only provincial election in what would become Northwestern Ontario. At the time, Manitoba and Ontario both claimed the region. The matter of jurisdiction was eventually decided by the Privy Council in London, England, which ruled in favour of Ontario. As the province’s counsel, Miller was heavily-criticized for his handling of the case that went against Manitoba. Since his constituency was wiped out by the Privy Council ruling, Miller resigned from the legislature on December 11, 1884.
An editorial in the December 19, 1884, Portage la Prairie Weekly Tribune-Review said his political career was “brief, but not very glorious,” claiming Miller had “a blunt, and almost despotic disposition, and this ‘would not go down’ with the people of Manitoba.”
The newspaper said the blame for the whipping of Cormack was charged to Miller, “but whether he was entitled to all the blame, we are not in a position to say. He got all the blame, however from the general public ... and this seems to be the final act in the drama of his public service.”
Just two years after the controversial whipping, Miller died on November 1, 1886, the result of slipping while going up the staircase in the MacKenzie Hotel, toppling over the first floor banister and falling to the floor below.    
As for Cormack, Ottawa was moved by the pleas from his mother, resulting in the federal government ordering his release after he had served four months of his original six-month sentence.
“About half-past five yesterday Governor (Patrick) Lawler, of the provincial jail,” reported the Sun on March 3, 1885, “received an order to set Cormack at liberty. Cormack, who, with other prisoners, had just had supper, and was turning in for the night ... and once more allowed to don his own garments and cast away, forever, it is to be hoped, the hated uniform of the jail. He was met outside the prison by his brother and accompanied by him downtown ... He expressed his determination to go out west to work, and will leave in a day or so.”
A Manitoba Free Press reporter was on hand when Cormack was being processed for release on March 2. While in the police station, the reporter saw Cormack surrounded by “a number of stalwarts,” congratulating the man. The reporter described Cormack as looking “harmless” and “thin as compared to his robust condition when arrested last fall, and it was quite evident that his four months incarceration had greatly
affected him physically (Free Press, March 3, 1885).”
Cormack told the reporter he had begged Morrisey for mercy as the flogging progressed, “but Morrisey never let up until the twelve lashes were administered.”
Cormack blamed liquor for causing all his troubles. He then pledged to the reporter that he would “henceforth” abandon his misguided ways and lead a “virtuous life.”
Upon his release, Cormack, the former cause célèbre who had stirred up the community to decry the brutality of flogging, left the city and then slipped into anonymity. 
Of course, flogging did not end in the province, but law enforcement authorities had learned a lesson. Whenever future floggings using a cat-o’-nine-tails or paddling with the strap occurred, it was away from prying eyes within the walls of Stony Mountain federal penitentiary or the provincial jail. The paddler, as well as the hangman in the provincial jail, wore a mask when applying the strap. 
Strokes of  the cat-o’-nine tails or paddle (strap) were allowed under the Criminal Code of Canada. Until  the 1970s in Canada, the strap, a smooth length of leather 3/16ths of an inch thick, three inches wide and 15 inches long (although then still legal as a punishment for inmates, the cat-o’-nine tails had lost favour) was still legally used as a punishment for breaches of prison discipline. In provincial jails, Manitoba by 1967 was the only province still using the strap, but it was a practice that shortly thereafter fell into disuse and eventually ceased altogether.