The following is a re-print of a past column by former Advertiser columnist Stephen Thorning, who passed away on Feb. 23, 2015.
Some text has been updated to reflect changes since the original publication and any images used may not be the same as those that accompanied the original publication.
On Sept. 30, 1878, Michael Kelly and his wife Ann, who farmed in Pilkington, set off for Guelph with a load of hay to sell.
Their farm, on the southern half of Lot 6, Concession 1, about three miles south of Elora, fronted the main road between Elora and Guelph. Mike sold the hay, and the couple transacted some other business before returning home. They got home about 7pm. Their 8-year-old son, Jim, had been home from school for hours, and was playing outside the house.
All was not harmony with the couple. Michael was prone to binge drinking, and he was then in the midst of another spree. He had spent the previous day, a Sunday, drinking and carrying on. During the day he became increasingly violent. That night, fearing for her safety, Ann had slept in the hay loft of a small barn on the property, pulling the ladder up after her.
The trip home was a tense one. Mike had included several beverage rooms on his list of Guelph errands, and was already intoxicated when they left the Royal City. As Ann had feared, a few minutes after they arrived home, Mike ordered her to retrieve a jug of rotgut whisky he kept in the cellar. She pleaded with him to at least have some supper first, but he refused. Ann headed for the cellar – and then kept going, dragging her son along and heading for the safety of a neighbouring farm – not an adjacent one, but one that was a couple of miles away. There, her understanding friends gladly fed the woman and her son, and made preparations for them to stay the night.
In the meantime, Michael called for his wife, but received no answer. At the time, he was more interested in his jug than in her. He went and got it himself. Later that night, he missed his wife, and about 10pm started calling for her.
She wasn’t in the house or outside, as far as he could tell. Thinking that she must have taken refuge again in the hay loft, he lit a candle and went out to the barn. In his clumsy attempt to climb the ladder, he set fire to the hay.
Coming more or less to his senses, he threw an old sheepskin on the flames, then doused it with some water that was in a nearby bucket. His attempts only slowed down the fire. Soon the flames were leaping several feet high, and in short order destroyed the barn and a haystack outside.
A half dozen neighbours saw the flames, and they rushed to the Kelly place as fast as they could, but they were too late to do anything about the barn. They found Michael in a state of hysteria: he told them his wife and son had been in the loft, and had perished.
The next morning, neighbours and curiosity seekers mingled on the scene, while several men carefully raked through the smouldering embers and ashes. They found no trace of either woman or boy.
Later that day, Ann and Jim appeared after news of the fire circulated through the neighbourhood. Everyone agreed that the whole affair should be a sobering lesson for Michael Kelly.
That was the version of the story that people pieced together on Oct. 1. Two days later, Ann Kelly went to Elora with an alternate account. She claimed that her husband had deliberately tried to burn her and their son. She swore out a complaint against her husband. The county constable arrested him on Oct. 4, and took him to the Guelph jail.
On Oct. 5, two Elora Justices of the Peace, Andrew Gordon and J.M. Shaw, heard her evidence at a court session convened at Elora’s Dalby House. Ann Kelly had no legal representation at the hearing.
In giving her evidence, Ann claimed that she had been in the house until about 10pm, and was in a state of panic, because her husband had threatened her life. When he ordered her to get another jug of whisky, she hid in the back kitchen at the end of the house. When she did not return, Ann claimed, he called for her, then sent their son to look for her. A few minutes later, she saw her husband walking toward the stable. There, he yelled for her to “come down from the loft, or I will burn you alive!”
Ann claimed that she saw her husband, through the open barn door, light some hay and spread it around the floor. In 20 minutes, she said, the building was an inferno of flames. Afterwards, she said, she left the farm.
After explaining the meaning of the oath and perjury, Gordon and Shaw heard evidence from 8-year-old James Kelly. He told the justices that he was in the barn about 10pm and his father sent him to the house to get some matches. He pretended not to find them. His father then came in the house and took some from a drawer. Back in the barn, Jim claimed, his father set fire to a bunch of hay, then went up in the loft looking for his mother. When he couldn’t find her there, he came back down and tried to put out the fire, but failed to do so.
Jim claimed that his father was in the house when the neighbours arrived, attracted by the blazing barn. Rather than being hysterical over the probable loss of his wife and son, Jim claimed that he acted defiantly, saying that if his mother was in the loft “he would burn her and the baby out of it.”
Gordon and Shaw heard no other evidence. They ordered Michael Kelly held in custody on a charge of attempted murder. The case would be heard at the next assizes, scheduled for Oct. 28.
The two justices told Ann Kelly to look after the farm until the conclusion of the trial.
The first step at the fall assizes was the consideration of the cases and the evidence by a grand jury. The one at the fall assizes of 1878 consisted of 24 men, drawn from across Wellington County. It included such well known men as James Argo of Fergus, James Rea of Eramosa, and James Ross of Pilkington. R.J. McKitrick of Orangeville served as foreman. They had a half-dozen other cases to consider along with Queen vs. Kelly.
The grand jury reviewed the evidence from the Elora hearing. Interestingly, the prosecutor produced neither more witnesses nor corroboration. With a case so weak, the grand jury returned on Nov. 1 with a decision of “no bill.” That meant there would be no prosecution, the charges would be dropped, and Michael Kelly would be released at once.
The ruling of the grand jury is the end of the case in the public record, but it certainly was not the end of the troubles between Ann and Michael Kelly. It is inconceivable that they could have resumed their marriage after the messy criminal charges and the wide exposure the case received during October 1878.
Neighbours, relatives, or possibly the church, may have intervened, providing a new home for Ann Kelly and her son. Whatever happened, the details are now lost to history. People of that period preferred to deal with dysfunctional or failed marriages as quietly as possible.
And what of the charges? Did Mike Kelly actually try to burn his wife to death, or was her story a concoction by a desperate woman who was driven to try anything to be rid of a brutal and drunken husband? Henry Peterson, the crown attorney, normally took a dim view of domestic violence, and he went out of his way to prosecute such cases. In the Kelly case, though, he seems to have had difficulty accepting Ann’s story, and he may well have found solid evidence to contradict her.
All in all, the Kelly case is one of the more curious criminal cases in Wellington’s old court records. The real story was the subject of much speculation 125 years ago, and it remains so today.
*This column was originally published in the Advertiser on Oct. 31, 2003.