COLCLOUGH, CÆSAR, judge; b. 1764 in County Wexford (Republic of Ireland); m. 24 Oct. 1804 Susan Leech, and they had two daughters who lived to adulthood; d. 10 Feb. 1822.
Cæsar Colclough was the eldest son of Adam Colclough of Duffrey Hall and Mary Anne Byrne of County Dublin. His family were influential members of the Irish Protestant gentry, and he strongly upheld the English government in its suppression of the Irish rebellions of 1798; he was left with a lifelong antipathy to any tendency towards “democracy” as well as with the gratitude of the authorities for his loyalty. Supported by powerful friends and patrons, including the Duke of Kent [Edward* Augustus], Lord Camden (lord lieutenant of Ireland in 1798), and Charles O’Hara (an Irish member of parliament), Colclough was appointed chief justice of Prince Edward Island on 1 Jan. 1805 at a salary of £500 per annum, to succeed fellow Irishman Robert Thorpe* who became a judge of the Court of King’s Bench in Upper Canada. A qualified barrister-at-law, Colclough was expected to sort out legal practices on the Island, which were in considerable confusion because of local controversy and a rapid succession of ill trained chief justices in the opening years of the 19th century.
The Duke of Kent himself supported Colclough’s request to remain in Britain through the summer of 1806 to sort out his business affairs, and the new appointee did not arrive in Halifax until 25 Nov. 1806. He was not eager to make his way to the Island, particularly in view of the information he received from Charlottetown describing the Byzantine political and legal situation there. Moreover, Lieutenant Governor Sir John Wentworth* of Nova Scotia advised him that the sole way to remain uninvolved in Island politics – and therefore impartial – was to visit only when his court was in session. Furthermore, as a gregarious and hospitable man who enjoyed “good company,” Colclough found Halifax society quite agreeable. He began seeking an alternate appointment even before he had personally assumed his present one.
Finally offered a decent house to rent in Charlottetown, Colclough arrived on the Island on 3 July 1807. His initial reaction was hardly favourable. The Island, he reported to Charles O’Hara, was populated largely by Scots Highlanders who for “Sloth, Filth & drunkenness” surpassed any other race of men, and the head of government (Lieutenant Governor Joseph Frederick Wallet DesBarres) was an old Swiss soldier of fortune with “a good Heart & no Head,” completely under the influence of a dishonest Irish attorney (James Bardin Palmer) acting as “Prime Minister.” To his surprise, the new chief justice soon found congenial company among the Island’s “better sorts,” chiefly among those officials who had supported the previous lieutenant governor, Edmund Fanning. He gradually became “reconciled to my Lot,” although he and DesBarres – “a foolish dotard upwards of eighty years of age” – took an instant dislike to each other, no doubt facilitated by the ease with which the newcomer was taken into the camp of the opposition.
Despite an open lack of cooperation between DesBarres and Colclough, the chief justice succeeded in remaining out of major political controversy until 1809. It was possible for him to keep to his declaration that he would confine himself to judicial matters because the lieutenant governor seldom took important business to the Council, of which the chief justice was president. In the spring of 1809, however, actions on judicial matters involved him in open battle with DesBarres’s supporters, organized as a society called the Loyal Electors. By this time the political divisions of the Island had taken definite shape: the Loyal Electors were attacking the proprietors in the name of the people, and the older popular party associated with Peter Stewart* and his family – denominated the “cabal” by its enemies and the “old party” by those sympathetic to it – was now on the defensive. DesBarres had for several years been urging the establishment of county courts of sessions, which would be presided over by justices of the peace, and he strongly backed for the posts supporters such as Angus Macaulay and William B. Haszard, although they lacked formal legal training. Colclough decided – on the strength, he insisted, of advice from Nova Scotia – to oppose any such decentralization of the administration of justice, and he further irritated the DesBarres faction by nominating candidates for sheriff who were known enemies of the lieutenant governor and strong supporters of “property rights” on the Island.
The membership of the Loyal Electors, which met monthly at Bagnall’s Tavern, grew over the summer of 1809. Its secretary, William Roubel, later wrote that the organization was devoted to the consideration “of proper Measures, for the Introduction of upright independent Men, and persons of unimpeached Characters into the House of Assembly,” in order to counteract the influence “possessed by a Set of persons (either personally or by their unprincipled Agents) engaged in monstrous Speculations in Land.” Unfortunately, the leaders of the Loyal Electors, especially James Bardin Palmer, were not of “unimpeached Characters” themselves, many being land speculators prevented from “monstrous” operations only by their exclusion from power.
Early in 1810 Captain John MacDonald* of Glenaladale passed on to the chief justice excerpts from the correspondence of Roubel (whom MacDonald elsewhere described as Palmer’s “Chief Understrapper”) with proprietor John Hill*. The passages were highly critical of Colclough’s impartiality and expertise. Roubel, who was acting as attorney in many legal cases against men of the “old party,” claimed that the chief justice was entirely too friendly with its members and favoured them in his court. There was a grain of truth in the charges, for Colclough was a convivial man who always gravitated towards “genteel” company, which in the context of the Island in 1810 meant the large landholders and officials. But no chief justice who resided on the Island could fail to be friendly with many of the litigants in his court, and it was probably unnecessary to pack juries to get ones favourable to his friends, since as landholders they usually had the law (if not justice) on their side. Nevertheless, Colclough was conscious of the delicacy of his position, asserting to his friend O’Hara that he was the only person on the Island of “no Party vices or Spleen to indulge,” although admitting a willingness to accept an appointment as chief justice of Newfoundland if he could obtain a salary of £1,000 per annum. “Our governor,” he added, “is so indecisive in doing what is right & Positive in doing what is wrong.”
The smouldering conflict between the Loyal Electors and the “old party” burst into open flame in 1810, when Attorney General Peter Magowan* died. DesBarres supported Palmer as Magowan’s successor. Palmer’s past record of questionable personal financial dealings and evidence that he was stripping timber from land not belonging to him succeeded in persuading the major proprietors in England that – as Lord Selkirk [Douglas*] trenchantly put it – Palmer was “so extremely objectionable in every respect” there ought to be “no possibility of his receiving any countenance from Government.” Charles Stewart* got the appointment, and the Loyal Electors soon became a public political issue. The rumour began circulating in the spring of 1811 that a secret committee had been organized “to control the affairs of the society.” The leading members of the Loyal Electors sent DesBarres lengthy affidavits both denying the imputations of conspiracy and excoriating Stewart, Colclough, and the two assistant judges, Robert Gray and James Curtis*. Learning of these affidavits, Colclough and his colleagues visited the lieutenant governor at his home in October 1811. According to their later accounts, Colclough told DesBarres that “as some of those affidavits contained matter libellous and highly defamatory of the administration of justice in this Island,” he “trusted his Excellency, according to his own frequent declarations to that effect would suffer the Law to take its course.” DesBarres replied, “God forbid he should not,” and sent the visitors to his secretary with permission to examine the documents, apparently unaware of what would transpire.
What the justices did, of course, was to make copies of the documents and take them straight to Attorney General Charles Stewart. Stewart opined that such a “self created permanent political Body organized after the manner of Corporations and associated for the purpose of controlling the Representation of the people in the House of Assembly, as well as the appointment of Public Officers,” which sought to “obtain possession of the whole power of the Government,” was certainly inconsistent with the “Genius and Spirit of our Constitution.” While to modern ears it may sound incredible to thus condemn what was, after all, merely a nascent political party, it must be remembered that the British political tradition had always been hostile to parties, as well as to quasi-political organizations, which were readily associated with rebellion. Stewart’s opinions were fully shared by the British government, which was to offer no sympathy to the Loyal Electors of Prince Edward Island. More to the immediate point, whether the society was unconstitutional or not, the affidavits – particularly those of Angus Macaulay, William Roubel, and William Haszard – were clearly libellous, both in the sense of defaming personal reputations and in the larger sense of undermining the established institutions of government (an offence known at the time as seditious libel). Roubel had included a number of charges of bias and ignorance against the justices of the Supreme Court, and Macaulay had made unsubstantiated allegations against both the administration of justice and his previous employer, Lord Selkirk. Colclough permitted Stewart to file the affidavits in the Supreme Court late in October 1811, and when Roubel refused to apologize for his statements, the judges peremptorily struck his name from the roll of attorneys qualified to practise before the court. Informations for libel were filed against Haszard and Macaulay, but not acted upon immediately.
Relations between Colclough and DesBarres understandably continued to deteriorate, reaching a low point early in 1812. The chief justice described a final confrontation at the meeting of the Executive Council on 26 March: “The Governor after some very intemperate expressions threw himself back in his Chair and collecting all the foul Breath he could in his Mouth puffed it full in my face. With more temper than I thought I possessed, I coolly got up and said I could not remain to meet such Conduct, and as I was retiring, he in the most contumacious manner continued repeating, ‘Good Morning to you, good Chief Justice, go home & study Law’ – to which I only replied that I considered my knowledge of Law was at least equal to His Excellencys of Politeness.” A few weeks later an election was held, in which the Loyal Electors increased their representation in the House of Assembly from five to seven, although William Roubel was defeated in Charlottetown. The election had been hard fought, and both John Frederick Holland* and Charles Stewart had been forced to retreat from the hustings by the popular hostility to them. Their defeat meant that the victorious “old party” was leaderless in the house, and while it attempted to regroup it sought to frustrate the opposition by boycotting the first session. Despite the absence of six members, the house carried on, dominated by Palmer and the Loyal Electors.
In answer to a request for information, DesBarres wrote to speaker Ralph Brecken that the Loyal Electors’ affidavits had been given to the Supreme Court without his authorization. Acknowledging that the judges had called upon him and had been given permission to examine the documents, DesBarres insisted he “had not the most distant idea of the possibility of these Affidavits being applied to the purpose of carrying on any criminal prosecution against the persons who made them,” for they were intended to support him against charges made in the Council. The lieutenant governor’s statement was undoubtedly accurate, but his lack of understanding did not mean that the affidavits had been obtained through misrepresentation or that the judges’ conduct had been “arbitrary, disrespectful and illegal,” as the assembly’s subsequent resolution (introduced by Angus Macaulay and passed by the rump house) insisted. Taking advantage of the resolution, DesBarres suspended Colclough on 30 Sept. 1812.
Meanwhile, the proprietors had met in London on 4 May 1812 to consider “the unfortunate and dangerous state” of the Island, and had appointed a committee consisting of Robert Montgomery, John Hill, and Lord Selkirk to present the situation to the British government. Their chief aim was to replace DesBarres, whom they represented as a man “sunk into absolute dotage and . . . completely under the guidance of an Adventurer of infamous character [James Bardin Palmer], under whose influence all the powers of Government are perverted to the worst of purposes, . . . [and who] has in many instances acted the part of an absolute swindler.” Although these charges had considerable veracity, the characterization of the Loyal Electors as a society of Americans disguised as loyalists who hoped for “an invasion of the Republican Americans” was hardly true or fair. Nevertheless, Colonial Secretary Lord Bathurst was impressed, and in August 1812 recalled DesBarres and stripped Palmer of his many offices.
By the beginning of 1813, when Attorney General Charles Stewart unexpectedly died, all the major participants in the crisis of 1811–12 except Colclough were gone from the Island. DesBarres, Palmer, and Roubel had left, the last threatening to bring charges of misconduct against Colclough. The acting administrator, William Townshend*, reinstated the chief justice in October 1812, but Colclough found much hostility remaining in Charlottetown. In April 1813 a notice was posted near his house accusing Colclough (who had recently freed two self-confessed murderers on legal technicalities) of being “The Friend and Protector of the Vilest of all Miscreants, even of Murderers, the shedders of Human Blood.” This accusation upset his wife far more than had the Loyal Elector controversy and earlier complaints that Colclough had publicly beaten his manservant or had often been seen walking inebriated in the streets of Charlottetown. The family thus looked forward to an impending transfer to Newfoundland, the result of a British decision to exchange two unpopular chief justices [see Thomas Tremlett]. The Colcloughs finally arrived at St John’s in September 1813.
To his dismay, Colclough, who had expressed great dissatisfaction with his salary on Prince Edward Island, found that he had really been well off there. As Governor Sir Richard Goodwin Keats put it in writing to London of Colclough’s arrival, “House Rent, Fuel, Servants Wages, and all articles of Provisions (fish excepted) are more expensive at Saint Johns than any place I know.” The chief justice found his legal business “heavy and multifarious,” involving lay pleaders without legal training and much criminal work from the rowdy Irish community in the town. He complained bitterly that he was for the first time in his life forced to live “in seclusion from Society” for want of money, and he was also required to defend himself against the charges levelled in England by William Roubel, who had put together a 16-item bill of indictment. Fortunately for Colclough, Colonial Secretary Lord Bathurst rejected out of hand most of the charges and required explanations of only seven, most particularly Colclough’s role in the affidavits business. Colclough’s actions over the affidavits were perhaps the easiest item to defend, and he did so resoundingly.
Even after Colclough had successfully cleared himself in the eyes of the Colonial Office, his enemies circulated printed copies of the Roubel charges in Newfoundland without reference to their fate in London. This “most unjust and malicious Persecution” was added to the chief justice’s financial worries and his heavy official responsibilities. These last were not inconsiderable, for in the absence of the governor (a naval officer usually only at St John’s a few months in the year) the chief justice was the ranking British civil official, a position which Colclough perhaps took far too seriously. Never a friend of the people, he found the Irish rowdies of the town more than he could stomach, and began to see conspiracies and plots in the constant riots of St John’s. After several relatively unsuccessful attempts to employ his position as chief magistrate to restore law and order, Colclough ultimately challenged the Irish poor by using the discovery of rabies on board a visiting ship as a pretext for ordering destroyed all dogs found at large in the town except those muzzled and hitched to sleds. Naturally this action led to a “threatening and seditious letter.”
Colclough defended his stern measures by writing to the absent governor that from experience he knew “the Mildness & temporizing of Government in Ireland for years previous to 1798 fostered and matured that Rebellion.” Governor Keats was himself disposed to blame the unruly behaviour of the populace on high wages and good spirits, but then, he did not live in St John’s. Colclough’s letters became increasingly hysterical, alternating fears of Irish Catholic plots with complaints about his salary, the continued persecution of him by Prince Edward Island enemies, and his deteriorating health. William Carson, who attended the patient, certified that Colclough’s nerves were completely shattered and he needed a break from his arduous responsibilities. He was finally granted leave of absence to return to Britain in the autumn of 1815. In London, Colclough kept up a barrage of visits and letters to the Colonial Office, first to get his salary increased, then to get his leave extended, then to retire from service at half pay, and finally to retire at a higher pension than the colonial secretary thought justified. He spent his last years in France and Ireland.
Cæsar Colclough’s social pretensions and hostility to the Irish lower orders were legendary in his own country, producing a number of barbed anecdotes originally recounted in the Wexford region. Newfoundland historians have been equally disparaging, judge Daniel Woodley Prowse* labelling him an “absurd Don Pomposo” and “a very inefficient judge.” The former charge was accurate enough, but the latter is decidedly unfair. During his two-year tenure in Newfoundland Colclough had dealt with 995 writs, 80 causes by memorial, and 97 probates. Few of these cases were straightforward, for the lay pleading then standard in the absence of trained lawyers forced the judge to treat each action individually and ponder carefully at great length; such procedures were unlikely to produce precedents or “lawyer’s law.” Moreover, if Colclough over-reacted to the turmoil of St John’s, he was the only major representative of British civil authority who witnessed it personally and had to deal with it. That fact, of course, says as much about official British attitudes to Newfoundland as about Cæsar Colclough.
National Library of Ireland (Dublin), Dept. of mss, ms 20287 (5) (O’Hara papers), Colclough to Charles O’Hara, 14 Aug., 9 Sept. 1807; 11 Nov. 1809; 5 Feb. 1810; 11 Jan., 18 Oct. 1812; 8 April 1813; 22 Feb. 1814. PAPEI, Acc. 2849/ 129–30. PRO, CO 194/54–58; CO 226/21–22, 226/24–26, 226/28–29. [J. B.] Burke, Burke’s Irish family records (5th ed., London, 1976). Jonah Barrington, Personal sketches of his own times (3rd ed., 2v., London, 1869). Prowse, Hist. of Nfld. (1895). J. M. Bumsted, “The Loyal Electors of Prince Edward Island,” Island Magazine, no.8 (1980): 8–14.