The following is Mr. Devilin's argument before Mr. Justice Guy, on application for a write of habeas corpus, to admit the accused to bail: -
"May it please your Honor, The present application arises out of an accusation charging the petitioner with having on the 22nd of September instant, administered to one Philomene Dumas and caused her to take poisonous and other noxious things with intent to produce miscarriage.
This prosecution is brought under the 4th and 5th Vic., cap.27, sec.13.
Here Mr. Driscoll objected to Mr. Devlin proceeding further, as a similar petition had already been refused by Mr. Justice Aylwin.
Mr. Devlin replied that the present proceeding was not a new one and cited several decisions in the district of Quebec and Montreal showing that the refusal of one petition was not a bar to the presentation of another for a similar object.
His Honor having intimated his willingness to hear the argument, Mr. Devlin proceeded to say, that in dealing with this accusation even at its present stage, he might be permitted to remark, that during his Honor's long professional experience, he had never before known of professional medical me in Lower Canada, and particularly men of presumed respectable standing and sworn officers of justice associating themselves with the debased patrons and inmates of a low brothel for so ignoble a purpose as has been attempted in this case, that of entrapping a man into the commission of a crime, which if proved would expose the victim to imprisonment in the provincial Penitentiary during the natural period of his life. For my part, said the counsel, I have no hesitation in saying that the effort was an infamous one, and that the criminal conspirators who tried to make it succeed, deserve, to speak in the mildest terms of their conduct, the scorn of every honorable man in the community.
Even now, your Honor, after every means have been exhausted to brand my client with the felon's mark and to show an apparent cause for his arrest, I unhesitatingly affirm that the depositions produced on the part of the prosecution do not disclose any circumstances calculated to show even in the remotest degree, that the petitioner had pursued such a practice as ought to make him fairly liable to the foul suspicion cast upon him by this odious prosecution. Why then, I ask, was this base and unnatural attempt made? And why is it, if the prisoner is a quack and by law, disqualified to practice the medical profession, that he was not brought into Court in the manner prescribed in the statute, and there held to answer a charge of practicing without license? Would this not, you Honor, have been the proper course? Instead, however, of adopting this proceeding, what do we find, a doctor pretending to respectability closeted with a notorious prostitute, and in a place too which he believed to be the sanctuary of Justice planning the destruction of a fellow man who has never done them an injury in his life, by trying to induce him under false representations to commit a crime second only in importance the highest known to the law. Need I say that I feel satisfied that an act so atrocious as this will not receive judicial sanction from your Honor. If indeed, there were reasonable grounds to suppose that my client made use of his knowledge to commit such an awful crime as that with which he is now unjustly accused, it would be the duty of every good citizen to appreciate every effort made for the discovery of his guilt. But your Honor, no such worthy motive stimulated the prosecutors in this case, for unfortunately, the object neither was, nor is the punishment of a crime, but an unblushing attempt to induce its commission, a practice for the first time, I believe, introduced in our city, but nevertheless so dangerous in its consequences that we cannot too strongly reprobate it. Upon this branch of the case I will not say more, as I hope at some future day to have the opportunity of meeting the accusers of my client face to face and of fully exposing the wickedness of their nefarious design.
And now, with your Honor's permission, I will advert to the evidence and continue my remarks to the only question to which is given rise of at this moment. Is the offence bailable? That it is, I think, there can be no doubt. And I am the more induced to say so because I feel perfectly confident that the evidence upon which it is based is utterly insufficient to support even the handing of an indictment by a grand jury. In fact the only criminality apparent upon the face of the proceedings attaches to the individuals who conceived the magnanimous idea of imitating n a small way the celebrated case of the notorious Mrs. Cunningham. The poisonous and noxious things said to have been given to the suffering Philomene Dumas, could not, by any possibility, have produced abortion, even though that virtuous lady was in an interesting situation. Your Honor will, however, observe that the only evidence we have of their poisonous qualities is derived from a Mr. Birks, who it is hoped for the honor of the profession, does not pretend to be a chemist, but who nevertheless, relying on the extremely doubtful evidence of his senses, undertook to speak with certainty of the ingredients contained in the medications in question; While Dr. Sutherland, a witness called by the prosecution and a gentleman of high medical attainments, as positively swore that he would not rely on the best chemist in the world for a certain analysis of their ingredients.. Here your Honor, is an important, and to the prosecution, fatal difference. Which of these gentlemen shall we believe? The druggist who merely applies the bottle to his nose and the pill to his lips and then declares under the obligation of an oath that he has determined the difficulty, or the doctor who really knows his profession and tells us that chemical science has not yet been able to solve the mysteries of the vegetable kingdom? But, this is not all, we also have the evidence of Mr. Kenneth Campbell, who produces Dr. Tumblety's prescription from which the pills were made, and he upon his oath, declares that contained neither oil of savine or cantharides, two of the poisonous ingredients credited to them by Mr. Birks. The same witness examined the bottle which Mr. Birks asserted contained black hellebore, and after applying his, Mr. Birks' test, unhesitatingly gave it as his opinion that it was a grave mistake to suppose it did. With evidence such as this, am I not justified in asking that my client be restored to liberty, particularly as he is prepared to give any security required as a guarantee for his future appearance? But I have not done it yet; there still remains another important piece of evidence to be noticed. I allude to the deposition of Mr. Guy, a highly respectable young man, when the policeman of doubtful character with his companion the prostitute, received the medicine from the hands of my client, and he in the most positive manner contradicts the testimony of this matchless pair. Again I ask, is it consistent with reason to suppose that your petitioner would have directed their attention to the Almighty Being, and urge upon them the propriety of marriage as the best cure for the difficulty under which they pretended to labour, and at the same moment that he was solemnly warning them against the crime they appeared willing to commit, assist them in the perpetration, and that my client did so caution them is a fact which they were compelled upon my cross examination to admit? Under such circumstances, is it right or proper that my client should be deprived of one of his most sacred rights - liberty? To all of this, however, my learned friend may answer that the present is not the time, nor this the place to comment upon these facts. But if the learned counsel takes this ground and contends that when a person accused of crime applies for admission to bail, we cannot discuss the facts upon which it is dependant, then I would ask by what other test can we arrive at that knowledge which is indispensably necessary to do justice to the applicant. I am well aware, your Honor, that at this moment it would be premature on the part of any judge to express a positive opinion as to the results deducible from the facts now submitted to you. But at the same time I am perfectly convinced that upon nothing else than an opinion based upon the circumstances disclosed in the depositions can a correct judgment be rendered, nay more, I contend that even at this initiatory stage of the proceedings, all the appearances which indicate guilt or innocence, should on a petition of this kind be carefully considered and that if upon examination the judge is satisfied there is enough apparent to cast a suspicion upon the prosecution and raise a reasonable doubt, admission to bail ought never to be refused. Otherwise where would be our security against that class of unprincipled wretches who having no regard for the sanctity of an oath, would for the sake of a few shillings thrust into their hands, be ready to do the dirty work of any hidden miscreant, who might think he could make a name and withdraw himself from obscurity at the expense of the life, honor and property of a competitor. Here, your Honor, I am content to stop, although much more could be said. But anxious as I am to do justice to my client by exposing the iniquity of his characterless prosecutors, I feel that I ought not longer to occupy your Honor's attention, particularly as I know by experience that you will do my client impartial justice, and that if you think it is his right to be admitted to bail that that right will not be denied him at your hands. One thing I would, however, request: that if you think my views are correct you will fix the amount of bail - although we are prepared to give any security required, - at such sum as will mark your Honor's detestation of as base and shameful conspiracy as ever disgraced the name of Justice. Mr. Driscoll opposed the application.
Several weeks ago, I was taken ill with very severe pains in my body, arm and shoulder which after continuing some time, turned into large ulcers, - increasing in size and discharging very much. I tried the medical assistance of some of the most eminent physicians but without receiving any benefit, finally given up by them and advised to come to the Hospital in this city, which I did and remained some time, but instead of finding any relief, I continued to grow worse. I was in a most distressing condition, suffering indescribable agony by day and night. My arm was in a fearful state - from my shoulder to my elbow was one entire sore. The cords were contracted to such a degree that my hand was drawn up to my breast and I could not possibly remove it. I was in this state when I called on the Indian Herb Doctor, F. Tumblety - he said that he would cure me, which at the time I considered impossible. After being under his treatment twenty-four hour, my arm was so much improved that I was able to put on my coat, which I could not do three weeks before. I have been under his care two weeks and such a change as has been effected on me, I cannot believe was ever wrought on any mortal before. Indeed I am astonished when I compare my present state with the miserable condition I was in when I first applied to him. The ulcers on my body are healed, my arm is as sound as ever. I feel like a new man, my strength is every day increasing, and I shall ever be thankful to Dr.T. for saving me from a miserable and unhappy existence. My wish is that he live to a good old age, alleviating the sufferings of poor creatures such as I once was.
JOHN RIORDAN, JR. OTTOWA, CW
Statement made before me, 23rd December 1857
JOHN BEVERLY ROBINSON, MAYOR
We, the undersigned, are witnesses to the above facts, as we saw Mr. Riordan when he came to the doctor's office, and have seen the care provided.
T.W. DIXON, Beach Street
PHILIP LEARY, King Street
S. GRAHAM, Confectioner, King St. East
The extraordinary history of that philanthropic and charitable physician, the Indian Herb Doctor, F. Tumblety of 111 King Street East, Toronto, C.W., should be engraved on adamant.
Last summer, I was so unfortunate as to fall and injure my leg, which pained me a little at the time but soon passed away. About five weeks later, the pain accompanied with a swelling returned - slightly at first, but continued growing worse till I was confined to my bed. The best physicians of Toronto were called in, and their prescriptions used, but no relief could be obtained; at last I was given up by them - one of them said I was in the last stage of a galloping consumption and could not recover. The pains I suffered were so intense that for weeks together I could neither sleep nor obtain any rest. I became so weakened that I often fainted and would have two or three fits before consciousness would return.
This was my apparently hopeless condition when I applied to the Indian Herb Doctor, F. Tumblety. Under his skillful treatment I was free from pain in two days, and continued gradually to improve. Thanks to his unremitting and assiduous care, I am now restored to perfect health.
CHARLOTTE I. REYNOLDS, King Street East
Sworn before me on this 9th day of February,
John Hutchinson, Mayor of Toronto.
We the undersigned are witnesses to the facts and the cure of Miss Reynolds.
H. P. DWIGHT, Supt. Mon. Telegraph
W. BROWN, Younge Street
T. GREEN} GREEN BROTHERS
J. W. T. GREEN} GREEN BROTHERS, King Street
H. SMITH, King Street
MRS. COL. SAVAGE,
THE MISSES SAVAGE
W. SAVAGE, late Col. Artil.
Dr. Tumblety, the Indian Herb Doctor - Not long since we alluded to the wonderful cures effected by this gentleman in and around Hamilton and London, of which the Spectator, Bientier Christian Advocate, Free Press, and Atlas speak in the most laudatory terms. In another column of today's issue, under the heading of "Special Notices" will be found authenticated certificates from individuals respecting the benefit they have derived from Dr. Tumblety's medicines. We have in our possession a large number of similar certificates, but have omitted to insert them, being persuaded that those which we have given today sufficiently demonstrate that gentleman's skill and success in the treatment of disease. We are glad to know that he bids fair to be equally successful in Brantford. Crowd of people are resorting to him for advice, and many are experiencing much relief from taking his medicines. Nearly every disease to which the human system is subject seems to give way under Dr. Tumblety's treatment, and to which the following lines appear applicable.
The deaf shall hear, the trembling limb be strong,
And groans of anguish mellow into song.
The infant moaning on its mother's breast,
Shall fondly play, or, smiling sink to rest.
Dr. T. is now in Montreal.
