The Story of the Upper Canadian Rebellion, Volume 1
by John Charles Dent · English · Gutenberg #22131 · 930,530 chars · public domain (US)
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Title: The Story of the Upper Canadian Rebellion, Volume 1
Author: John Charles Dent
Release date: July 24, 2007 [eBook #22131]
Language: English
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*** START OF THE PROJECT GUTENBERG EBOOK THE STORY OF THE UPPER CANADIAN REBELLION, VOLUME 1 ***
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THE STORY OF THE
UPPER CANADIAN REBELLION.
[Illustration: Yours truly, John Rolph]
THE STORY
OF THE
=UPPER CANADIAN
REBELLION=
JOHN CHARLES DENT
AUTHOR OF "THE LAST FORTY YEARS" &C.
VOL. I.
[Illustration]
TORONTO.
PUBLISHED BY C. BLACKETT ROBINSON
1865
_New York_
THE STORY
OF THE
UPPER CANADIAN REBELLION;
LARGELY DERIVED FROM ORIGINAL SOURCES AND DOCUMENTS.
BY JOHN CHARLES DENT,
_Author of "The Last Forty Years," etc._
* * * * *
"Well, God be thanked for these rebels."--_I Henry IV._, Act iii,
sc. 3.
"Truth is not always to be withheld because its expression may wound
the feelings of public men, whose official acts have subjected them
to public censure. If it were, history and biography would cease to
be guiding stars, and, above all, would offer no wholesome restraint
to the cruel, or corrupt, or incompetent exercise of
authority."--_Tupper's Life and Correspondence of Major-General Sir
Isaac Brock._
"We rebelled neither against Her Majesty's person nor her
Government, but against Colonial _mis_-government.... We
remonstrated; we were derided.... We were goaded on to madness, and
were compelled to show that we had the spirit of resistance to repel
injuries, or to be deemed a captive, degraded and recreant people.
We took up arms, not to attack others, but to defend
ourselves."--_Letter to Lord Durham from Dr. Wolfred Nelson and
others, confined at Montreal, June 18th, 1838._
* * * * *
=Toronto:=
C. BLACKETT ROBINSON, 5 JORDAN STREET.
1885.
_Entered according to Act of the Parliament of Canada, in the year 1885,
by_ C. BLACKETT ROBINSON, _in the office of the Minister of
Agriculture._
I DEDICATE THIS BOOK TO MY ESTEEMED FRIEND,
GEORGE STEWART, JUN'R.
OF QUEBEC:
WHOSE RESEARCHES IN A KINDRED DIRECTION WILL ENABLE HIM TO
DO FULL JUSTICE TO WHATEVER IS MERITORIOUS IN IT; WHILE
HIS GENEROUS APPRECIATION OF THE EFFORTS OF HIS
LITERARY BRETHREN WILL RENDER HIM
INDULGENT TO ITS DEFECTS.
JOHN CHARLES DENT.
Toronto, 1885.
[Transcriber's Note: Obvious printer errors, including punctuation, have
been corrected. All other inconsistencies have been left as they were in
the original.]
CONTENTS.
PAGE.
CHAPTER I.
THE BANISHED BRITON 9
CHAPTER II.
A BILL OF PARTICULARS 46
CHAPTER III.
THE FAMILY COMPACT 71
CHAPTER IV.
FATHERS OF REFORM 96
CHAPTER V.
A "FREE AND UNFETTERED" PRESS 122
CHAPTER VI.
THE CASE OF CAPTAIN MATTHEWS 144
CHAPTER VII.
THE NIAGARA FALLS OUTRAGE 151
CHAPTER VIII.
THE "AMOVAL" OF MR. JUSTICE WILLIS 162
CHAPTER IX.
THE CASE OF FRANCIS COLLINS 195
CHAPTER X.
LIGHTS--OLD AND NEW 213
CHAPTER XI.
PARLIAMENTARY PRIVILEGE 231
CHAPTER XII.
DISENFRANCHISEMENT 253
CHAPTER XIII.
MR. HUME'S "BANEFUL DOMINATION" LETTER 264
CHAPTER XIV.
"SEE, THE CONQUERING HERO COMES!" 282
CHAPTER XV.
"A TRIED REFORMER" 296
CHAPTER XVI.
THE TRIUMPHS OF A TRIED REFORMER 324
CHAPTER XVII.
REACTION 342
CHAPTER XVIII.
THE FORGING OF THE PIKES 354
LIST OF ILLUSTRATIONS
John Rolph Frontispiece
David Gibson 284
THE STORY
OF
THE UPPER CANADIAN REBELLION.
CHAPTER I.
THE BANISHED BRITON.
[Sidenote: 1819]
In the afternoon of a warm and sultry day, towards the close of one of
the warmest and most sultry summers which Upper Canada has ever known,
an extraordinary trial took place at the court-house in the old town of
Niagara. The time was more than threescore years ago, when York was a
place of insignificant proportions; when Hamilton could barely be said
to have an existence; and when the sites of most of the other towns of
the Province whose names are now familiar to us still formed part of the
hunting-grounds of the native Indian. The little town on the frontier
was relatively a place of much greater importance than it is at present;
though its fortunes, even at that early period, were decidedly on the
wane, and such glory as it could ever boast of possessing, as the
Provincial capital, had departed from it long before. To speak with
absolute precision, the date was Friday, the 20th of August, 1819: so
long ago that, as far as I have been able to learn, there are only two
persons now living who were present on the occasion. The court-room,
which was the largest in the Province, was packed to the doors, and
though every window was thrown open for purposes of ventilation, the
atmosphere was almost stifling. Even a stranger, had any such been
present, could not have failed to perceive that the trial was one in
which a keen interest was felt by the spectators, many of whom were
restless and irritable, insomuch that they found it impossible to keep
perfectly still, and from time to time shifted uneasily in their places.
Whispers, "not loud, but deep," occasionally reverberated from the back
benches to the quadrangular space in front assigned to gentlemen of the
long robe, and ascended thence to the august presence upon the judgment
seat. Ever and anon the stentorian voice of the crier proclaimed
silence, in a tone which plainly signified that endurance had well-nigh
reached its limits, and that he would really be compelled to proceed to
extremities if his mandate were any longer disobeyed.
The court-room was of the old conventional pattern. At the upper end was
the large elevated desk, or throne, extending nearly half way across the
chamber, with spacious cushioned chairs, and other suitable
accommodation for the presiding judge and his associates. To right and
left were the enclosed jury boxes, with seats raised considerably above
the level of the floor, but not so high as those provided for the
justices. Directly opposite the throne of justice, and about six yards
distant therefrom, was the prisoners' dock, into which five or six
persons might have been thrust, at a pinch. The intervening space
enclosed by this quadrangle--throne, prisoners' dock, and jury
boxes--was mainly appropriated to the use of barristers and attorneys,
and their clients. A large portion of the space so appropriated was
occupied by a table, around which were distributed a few chairs, every
one of which was occupied; and at the end directly below the judicial
throne was a small enclosure provided for the clerk of the court, set
apart by a low railing, and containing a desk of diminutive size.
Between the clerk's desk and the left-hand jury box was the witness
stall, raised to a level with the highest seats provided for the jurors.
A seat for the sheriff was placed a short distance to the right of the
throne of justice, and on a slightly lower level.
All these arrangements occupied perhaps one-third of the entire
court-room. The rest of the space, extending from the rear of the
prisoners' dock to the lower end of the chamber, was occupied by seats
rising tier behind tier, with a passage down the middle. Between each
of the ends of these seats and the walls of the chamber were passages of
about three feet in width, leading to the doors, for purposes of
"ingress, egress and regress." Such was the plan of the conventional
Upper Canadian court-room in the olden time; and such, with a few
inconsiderable modifications, many of them remain down to the present
day.
The sole occupant of the judgment seat, on this sultry afternoon, was a
gentleman of somewhat diminutive size, but withal of handsome and
imposing appearance. Though he had reached advanced middle life, he
presented none of the signs of age, and evidently retained all his
vigour unimpaired. His eyes were bright and keen, and his small but firm
and clearly cut features were lighted up with the consciousness of
mental power. No one, looking upon that countenance, could doubt that
its owner had all his faculties under strict and thorough control, or
that his faculties were considerably above those of average humanity.
The face was not one for a child to fall in love with, for it was a
perfect index to the character, and was firm and strong rather than
amiable or kind. Evidently a man who, should the occasion for doing so
arise, would deal out the utmost rigour of the law, if not with
indifference, at least without a qualm. He was the Honourable William
Dummer Powell, and he occupied the high office of Chief Justice of the
Province. In conjunction with the Reverend Doctor Strachan, Rector of
York, he had for several years practically directed the administration
of affairs in Upper Canada. Francis Gore and Sir Peregrine Maitland
might successively posture as figure-heads under the title of
Lieutenant-Governors, but the real depositaries of power were the Rector
and the Chief Justice. Ominous combination! which falsified the aphorism
of a great writer--now, unhappily, lost to us--about the inevitable
incompatibility of law and gospel. Both of them had seats in the
Executive Council, and, under the then-existing state of things, were
official but irresponsible advisers of the Crown's representative. More
than one would-be innovator of those days had been made to feel the
weight of their hands, without in the least knowing, or even suspecting,
whence the blow proceeded. They were the head and front of the junto of
oligarchs who formed the Vehmgericht known as the Family Compact, and
for all practical purposes their judgment in matters relating to the
dispensing of patronage and the disposal of Crown property was final and
conclusive.
The counsel for the prosecution was a handsome young man of
twenty-eight, who for some years past had been steadily fitting himself
for the important part he was destined to play--that of Mr. Powell's
judicial[1] and political successor in the colony. The time was only ten
years distant when he, in his turn, was to become Chief Justice of Upper
Canada. The time was still less remote when he was to succeed Chief
Justice Powell as Dr. Strachan's most active colleague--as the chief lay
spokesman of his party, and the chief lay adviser of successive
Lieutenant-Governors. His name was John Beverley Robinson, and his
destiny was doubtless sufficiently clear before him on this 20th of
August, 1819. He had strong claims upon his party, for he was the son of
a United Empire Loyalist, and during the late war with the United States
had proved that he was no degenerate scion of the stock whence he had
sprung. He had been present at the surrender of Detroit, and had borne
himself gallantly at the battle of Queenston Heights. Nor had his party
shown any disposition to ignore his claims. On the contrary, they had
pushed him forward with a rapidity which would have turned any head with
a natural tendency to giddiness. He had been appointed Attorney-General
of the Province before he had been called to the bar, and when he was
only twenty-one years of age--a special Act of Parliament being
subsequently passed to confirm the proceeding. In 1815 he had been
appointed Solicitor-General, chiefly in order that he might draw the
salary incidental to that office during a two years' visit to England.
Soon after his return he had again been appointed Attorney-General, and
had early signalized his re-accession to office by his manner of
prosecuting certain criminals from the Red River country, who had been
placed on trial at York. Those proceedings do not fall within the
purview of this work, but it may be said with reference to the young
Attorney-General's connection with them that he had proved himself an
exceedingly narrow partisan and a docile pupil of Dr. Strachan. He now
presented himself to take a leading part in one of the most shameless
and iniquitous prosecutions that ever disgraced a court of justice. His
personal appearance was decidedly prepossessing. His figure, clad in
well-fitting garments of the fashionable cut of the period, was light,
agile and compact, and his face, rather inclining to narrowness, was
surmounted by a high and smoothly-finished brow, beneath which looked
out a pair of steel-grey eyes, the usual expression of which was eager
and firm, but on the whole not unkindly. His mouth was finely formed,
and when he was in a pleasant humour--as indeed he not infrequently
was--his smile was sweet and ingratiating. In intellectual capacity he
was considerably in advance of most of his professional brethren of that
day, and he had cultivated his natural abilities by constant
watchfulness and study. His features, one and all, were well and sharply
defined, and he was probably the handsomest man at the Provincial bar.
Several other members of the legal profession, all of them more or less
widely known in the forensic, judicial or political annals of the
Province, were present. Conspicuous among them was the brilliant but
unscrupulous Christoper Alexander Hagerman, who had already taken high
rank at the bar, and was destined to be one of the most active and
intolerant directors of the oligarchical policy. Archibald McLean, tall
and lithe of limb, had then been more than four years at the bar, and he
had already given evidence of the high abilities which were to gain for
him an honoured seat upon the judicial bench. He had been retained to
defend two prisoners at the Niagara assizes, and his presence in the
court-room was due to this fact. Another figure at the barristers' table
was Samuel Peters Jarvis, his hands yet red with the blood of young John
Ridout, ruthlessly shed by him in a duel two years before, and never to
be effaced from the tablets of his memory. There, too, sat Henry John
Boulton, a young man of much pretension but mediocre intellect, who had
been appointed acting Solicitor-General during the previous year, and
who united in his own person all the bigotry and narrow selfishness of
the faction to which he belonged. He, also, had been concerned in the
shedding of young Ridout's blood, having acted as second to the
surviving principal in that affair. With this exception his past life
had been uneventful, but his future was fated to be marked by
considerable variety of incident, and by actions which even the most
favourable judgment cannot regard with unmixed complacency.
The twelve jurymen sat in their places, in the jury-box to the left of
the judge. The witnesses summoned on behalf of the Crown were the
Honourable William Dickson and the Honourable William Claus, both of
whom were members of the Legislative Council of Upper Canada. The former
gentleman was an enterprising Scotchman who had settled in Niagara while
it was yet known as Newark, where he had first kept a general store, and
afterwards practised law and speculation with great pecuniary success.
Like the Jarvis above mentioned, he was disfigured by a red right hand,
having shot his man in a duel fought in the autumn of 1808 behind the
United States fort on the opposite bank of the river. It is fair to Mr.
Dickson, however, to say that he was the challenged party, and that the
duel was in a measure forced upon him by the barbarous usages of society
in those (happily) far-off days. The other witness, Mr. Claus, was at
the head of the Indian department at Niagara, the abuses in the
administration whereof were notorious. It was well understood throughout
the district that Dickson and Claus between them had contrived to make a
tolerably good thing out of the Indians, and that they had been
concerned in some decidedly shady transactions. If it be true that
Heaven helps those who help themselves, certainly both those gentlemen
were entitled to look for divine assistance. They possessed and
exercised a wide influence throughout the settlements in the Niagara
peninsula, as well as at the Provincial capital, and were commonly
regarded as being on the high road to great wealth. Two years before the
date of the trial forming the subject of the present chapter, Dickson
had purchased the whole of the splendid township of Dumfries, comprising
94,305 acres, at a trifle over a dollar an acre; and he had already
begun to realize upon his investment. Claus and he occupied seats at the
barristers' table, in close proximity to the Attorney-General. The
spectators included pretty nearly every prominent resident of the town
of Niagara and its immediate neighbourhood.
But the most conspicuous figure in that crowded court-room yet remains
to be considered. It has been mentioned that the prisoners' dock was
large enough to hold five or six persons. On this occasion it held but
a single, solitary prisoner. A man large and bony, who, when in his
ordinary state of health, must have weighed not less than fifteen stone.
Just at present he was very far from being in ordinary health, for
during the preceding twelvemonth he had undergone sufficient worry and
suffering to destroy the life of any man of average vitality. After
having successfully defended himself through two criminal trials, he had
been cast into prison, where he had languished for more than seven
months. During his long confinement he had been subjected to a course of
treatment which would have been highly culpable if meted out to a
convicted criminal, and which was marked by a malignant cruelty hardly
to be comprehended when the nature of the offence charged against him is
considered. His own account of the matter is a plain and simple
narration of facts, the truth whereof rests upon the clearest and most
indisputable evidence. "After two months' close confinement," he writes,
"in one of the cells of the jail, my health had begun to suffer, and, on
complaint of this, the liberty of walking through the passages and
sitting at the door was granted. This liberty prevented my getting worse
the four succeeding months, although I never enjoyed a day's health, but
by the power of medicine. At the end of this period I was again locked
up in the cell, cut off from all conversation with my friends, but
through a hole in the door, while the jailor or under-sheriff watched
what was said, and for some time both my attorney and magistrates of my
acquaintance were denied admission to me. The quarter sessions were held
soon after this severe and unconstitutional treatment commenced, and on
these occasions it was the custom and duty of the grand jury to
perambulate the jail, and see that all was right with the prisoners. I
prepared a memorial for their consideration, but on this occasion was
not visited. I complained to a magistrate through the door, who promised
to mention my case to the chairman of the sessions, but the chairman
happened to be brother of one of those who had signed my commitment, and
the court broke up without my obtaining the smallest relief.
Exasperation of mind, now joined to the heat of the weather, which was
excessive, rapidly wasted my health and impaired my faculties. I felt my
memory sensibly affected, and could not connect my ideas through any
length of reasoning, but by writing, which many days I was wholly
unfitted for by the violence of continual headache."
There is a pathos about this plain, unvarnished story that appeals to
every heart. That a man, no matter what his crimes, should have his
nervous system thus cruelly undermined; that his physical and mental
faculties should be slowly but surely filched from him in this
deliberate fashion, is an idea not to be borne with composure by anyone
whose breast is susceptible to human impulses. But Robert Gourlay was no
great criminal. He had engaged in no plot to blow up King, Lords and
Commons. He had been guilty of no treason or felony. He had threatened
no man's life, and taken no man's purse upon the highway. He was by no
means the stuff of which great criminals are made. He was not even a
vicious or immoral man. He was an affectionate husband, a fond and
indulgent father. His story, from beginning to end, even when subjected
to the fiercest light that can be thrown upon it, discloses nothing
cruel or revengeful, nothing vile or outrageously wicked, nothing
grovelling or base, nothing sordid or mean. On the other hand, it
discloses a man of many noble and generous impulses; a man with a great
heart in his bosom which could warmly sympathize with the wrongs of his
fellow-creatures; a man in whom was no selfishness or greed; a man of
decided principles and stainless morals; who was incapable of dishonesty
or cruelty; who had a high sense of human responsibility; who feared his
God and honoured his King. When we compare his virtuous and honourable,
albeit turbulent and much misguided life, with that of any one of his
immediate persecutors, the contrast is mournfully suggestive of Mr.
Lowell's antithesis about
"Truth forever on the scaffold; wrong forever on the throne."
To what, then, was his long and bitter persecution to be attributed? Why
had he been deprived of his liberty; thrust into a dark and unwholesome
dungeon; refused the benefit of the Habeas Corpus Act; denied his
enlargement upon bail or main-prize; branded as a malefactor of the most
dangerous kind; badgered and tortured to the ruin of his health and his
reason? Merely this: he had imbibed, in advance, the spirit of Mr.
Arthur Clennam, and had "wanted to know."[2] He had displayed a
persistent determination to let in the light of day upon the iniquities
and rascalities of public officials. He had denounced the system of
patronage and favouritism in the disposal of the Crown Lands. He had
inveighed against some of the human bloodsuckers of that day, in
language which certainly was not gracious or parliamentary, but which as
certainly was both forcible and true. He had even ventured to speak in
contumelious terms of the reverend Rector of York himself, whom he had
stigmatized as "a lying little fool of a renegade Presbyterian." Nay, he
had advised the sending of commissioners to England to entreat Imperial
attention to colonial grievances. He had been the one man in Upper
Canada possessed of sufficient courage to do and to dare: to lift the
thin and flimsy veil which only half concealed the corruption whereby a
score of greedy vampires were rapidly enriching themselves at the public
cost. He had dared to hold up to general inspection the baneful effects
of an irresponsible Executive, and of a dominating clique whose one hope
lay in preserving the existing order of things undisturbed. It was for
this that the Inquisition had wreaked its vengeance upon him; for this
that the vials of Executive wrath had been poured upon his head; for
this that his body had been subjugated and his nerves lacerated by more
than seven months' close imprisonment; for this that he had been "ruined
in his fortune and overwhelmed in his mind." And all these things took
place in "this Canada of ours," in the year of grace eighteen hundred
and nineteen--barely sixty-six years ago--while the Duke of Richmond was
Governor-General, and his handsome scapegrace of a son-in-law nominally
administered the government of the Upper Province.
With a view to a clearer understanding of the circumstances which led to
this most villainous of Canadian State prosecutions, it will be well to
glance at some details of the prisoner's past life.[3]
Robert Gourlay was the son of a gentleman of considerable fortune--a
retired Writer to the Signet--and was born in the parish of Ceres,
Fifeshire, Scotland, in 1778. He received an education suitable to his
social position, and while at the University of St. Andrews was the
fellow-student and personal friend of young Thomas Chalmers, who
afterwards became one of the most eloquent pulpit orators of modern
times.[4] Robert was the eldest son of his parents, and, being heir to
the paternal estates, he grew up to manhood with the expectation of one
day succeeding to wealth and station in society. He was put to no
profession, and after leaving college, devoted himself to no settled
pursuit. He was on visiting terms with the resident gentry of his native
shire, and took some interest in local military matters. In 1806 he
offered to take charge of an expedition for the invasion of Paris, being
probably impelled thereto by the mad attempt of Lord Camelford several
years before. He was full of energy and robust health, bountiful and
generous to the poor of the parish, a practical philanthropist,
possessed of great intelligence and a genuine love for his kind; but
withal somewhat flighty and erratic, of impetuous temper, deficient in
tact and discretion, and given to revery and theorizing. He was, in
short, a bundle of contradictions, some of his idiosyncrasies being
doubtless inherited from his father, who was a generous and high-minded
but unpractical man. The sire would seem to have been conscious of his
son's weaknesses. "Robert," he was wont to say, "will hurt himself, but
do good to others." The son studied deeply the economical side of the
pauper question, and his researches in this direction brought him into
intimate relations with that eminent writer Mr. Arthur Young,[5] at
whose suggestion he was appointed to conduct an inquiry into the
condition of the poor in England. By virtue of this appointment he
travelled, chiefly on foot, through the most important agricultural
districts of the island, after which he was pronounced by competent
authorities to be the best-informed man in the kingdom respecting the
poor of Great Britain. As I have said elsewhere: "He was consulted by
members of Parliament, political economists, parish overseers, and even
by members of the Cabinet, as to the best means for reforming the poor
laws, and was always ready to spend himself and his substance for the
public good."[6]
Having married and settled down on one of his father's estates, he took
upon himself various offices of public usefulness and philanthropy. His
enterprise and public spirit caused him to be much looked up to by the
yeomanry of Fifeshire, and he soon came to be recognized as the special
champion of the smaller tenantry at agricultural meetings. At one of
these meetings he conceived himself to have been discourteously treated
by his neighbour, the Earl of Kellie. The discourtesy does not seem to
have been of a serious nature, but Mr. Gourlay became irritated to a
degree altogether disproportionate to the offence. He wrote and
published a pamphlet, in which Lord Kellie was handled with much
severity. It was circulated by the author throughout Fifeshire, and
widely read; and from this time forward he was much given to taking the
public into his confidence respecting his personal grievances. His
attack on Lord Kellie, however, weakened his popularity, and in 1809,
partly owing to this cause, and partly to his being in temporary
ill-health, he accepted a proposal from the Duke of Somerset to become
the tenant of a farm belonging to his Grace, and situated in the parish
of Wily, in Wiltshire. For a time all went well with him in his new
abode. His farm was a model for the emulation of all the landholders in
the parish, and his products gained prize after prize at successive
agricultural exhibitions. But Mr. Gourlay was nothing if not critical,
and certain of his surroundings afforded legitimate grounds for
fault-finding. There were many and serious defects in the system of
administering the poor-laws of Great Britain in those days, and the
administration in the parish of Wily was attended by some specially
objectionable features. These erelong became painfully apparent to the
keen eyes of Mr. Gourlay, who began to agitate for a reform. He went
into the matter with characteristic earnestness, and, by dint of
constant speechifying and weekly letters addressed to the local
newspapers, he soon began to produce an impression. His appetite for
agitation grew by what it fed upon, insomuch that he became a confirmed
grievance-monger and hunter-up of abuses. The magnates of the county
began to look coldly upon him, and even, in some instances, to array
themselves in open opposition to him. This only tended still further to
arouse the native pugnacity of his disposition, and his attacks upon
local abuses and those who upheld them became more and more violent.
Now, in all this there can be no doubt that Mr. Gourlay was from first
to last chiefly actuated by genuine philanthropy. He certainly had no
selfish or pecuniary purpose to serve; and indeed it is hard to conceive
of a man less influenced by mercenary motives. His life was passed in a
perpetual war against veritable and undoubted evils; but unfortunately
his hotheadedness and want of tact prevented him from doing justice to
himself and his views. He lacked the calm intellect and patient temper
necessary to the successful fighting of life's stern battle, and had the
unhappy faculty of generally putting himself in the wrong, even when
there could be no doubt that he had originally been in the right. Some
of his letters to the newspapers were remarkable for nothing but their
indiscretion, violence and bad taste, and he came to be looked upon by
the landlords of Wiltshire as a visionary and dangerous man. His own
landlord, the Duke of Somerset, was of this way of thinking, and after
some remonstrances at second-hand which proved unavailing, his Grace
resolved that this "pestilent Scotchman" must be got rid of. A bill in
Chancery was filed against him on some pretext or other, with the view
of putting an end to his tenancy. Years of irritating and ruinous
litigation followed, the ultimate result of which was a decision in Mr.
Gourlay's favour. But it was the old story of _Jarndyce_ v. _Jarndyce_.
The protracted litigation had eaten up the substance of the successful
litigant, and upon the promulgation of the decree the Wiltshire Radical
was a ruined man. This would have been a matter of secondary importance
to the heir of a wealthy Fifeshire laird, but unhappily his father had
also come to the end of his resources. Injudicious speculation and the
mismanagement of an agent, combined with the necessity of placing a
large quantity of real estate in the market at an inauspicious time,
were the causes which led to the bankruptcy of the elder Gourlay, who
was stripped of his great possessions and left with a bare subsistence.
The son's prospects of inheriting a fortune were thus at an end, and at
thirty-seven years of age he found himself almost wholly without means,
and with a family of five children and a wife in delicate health
dependent upon him for support. The howl of the wolf began to be audible
to him; distant, as yet, but still gradually drawing nearer. To his
mind, a change of the base of his operations was clearly indicated.
Five years before this time he had acquired a block of land in the
Township of Dereham, in the County of Oxford, Upper Canada, where his
wife also owned some property. He now began to cast his eyes anxiously
towards the setting sun, with a view to the rehabilitation of his broken
fortunes. After weighing the matter carefully, he resolved to cross the
Atlantic and pay a visit to Canada, in order to ascertain whether it
would be prudent to remove his family thither. He seems to have been
very deliberate about making up his mind, as he did not set sail from
Liverpool until the month of April, 1817, and did not reach Canada until
early in June. The country delighted him, more especially the Upper
Province; but one with so keen an eye for abuses had not far to look
throughout our fair land in those days for subjects of criticism. Having
made himself acquainted with some of the most glaring iniquities of the
ruling faction, and with the various causes which tended to retard the
progress of the colony, he began to liberate his mind by written and
spoken utterances such as had not theretofore been heard in the
Province. The effect of these appeals to popular sentiment was soon
apparent. People who had long smarted silently under injustice did not
hesitate to make known their discontent. The disturber of the public
tranquillity continued to speak and write, and he made his presence felt
more and more from month to month. Having resolved to engage in business
as a land agent, and to set on foot a huge scheme of immigration to
Canada from Great Britain, he went diligently to work to gather specific
and definite information, and to attack one abuse after another. He
travelled about the country hither and thither, addressed public
meetings, and wrote letters to all the papers that would publish his
animadversions. He was in deadly earnest, and put all the energy of his
impassioned nature into his appeals. In commenting upon the
delinquencies of public officials he did not mince matters, though I
search in vain throughout his voluminous writings for any evidence that
he was ever guilty of a misstatement, or even an exaggeration. He
regaled his readers and hearers with indubitable facts--facts which, for
the most part, were easily susceptible of proof, and which were
eminently calculated to arouse public indignation against the harpies
who reaped where they had sowed not, and who gathered where they had not
strawed.
These proceedings, as may readily be believed, rendered him
inexpressibly obnoxious to the Executive, and to the horde of myrmidons
who held office at their sufferance. But the cup of his transgressions
was not yet full. His next proceeding filled it to overflowing. He
addressed a series of thirty-one printed questions to prominent persons
in different parts of the Province, asking for topographical and other
information. The thirty-first question was so framed that, if truthfully
replied to, it was certain to elicit facts which would form the
groundwork of damnifying strictures on the principal abuses of the time.
"What, in your opinion," asked Mr. Gourlay, "retards the improvement of
your township in particular, or the Province in general?" Throughout the
Home District the influence of the Compact was sufficient to prevent any
replies from being returned to these queries. Elsewhere that influence
was partial only, and many answers were received from other districts.
The all but invariable reply to the thirty-first question attributed the
slow development of the country to the Crown and Clergy Reserves. Mr.
Gourlay did not attempt to conceal his intention of publishing the
results of his investigations, and of circulating them all over Great
Britain and Ireland. Having succeeded in arousing a good deal of popular
enthusiasm, he proceeded to strike what he intended to be another
damaging blow. Owing to his exertions, a convention was held at York,
whereat he advocated a petition to the Imperial Parliament, praying for
an investigation into the public affairs of Upper Canada. He also
suggested the sending of deputies to England in support of the petition,
and it is not improbable that such a course would eventually have been
followed, but the petitioners were as yet not fully organized, and
before any of their plans could be brought to maturity their champion's
career of agitation received a sudden and, for the time, an effectual
check.
The oligarchs had taken alarm. If this man were permitted to go on as he
had begun, there would soon be an end of the existing order of things,
which they had so tremendous an interest in preserving. At any cost, and
by whatever means, he must be suppressed. There must be a general and
determined advance against him all along the line.
The prime organizer of this most unrighteous crusade is believed to have
been the Reverend Dr. John Strachan, Rector of York, member of the
Executive Council, supreme director of the lay and ecclesiastical policy
of the Church of England in Upper Canada, champion of the Clergy
Reserves, and what not. It may seem a thankless task to write in strong
depreciation of a man who, in his day and generation, was looked up to
with reverence by a large and influential portion of the community, and
whose memory is still warmly cherished by not a few. But truth is truth,
and the simple fact of the matter is that Dr. Strachan did more to
stifle freedom and retard progress in Upper Canada than any other man
whose name figures in our history. His baneful influence made itself
felt, directly or indirectly, in every one of the public offices.
Wherever liberty of thought and expression, whether as affecting things
spiritual or temporal, ventured to lift its head, there, bludgeon in
hand, stood the great Protestant Pope, ready and eager to strike. It may
perhaps be conceded that he acted according to his earnest convictions.
So, doubtless, did Philip of Spain and Tomas de Torquemada. It is not
going too far to say that Dr. Strachan was utterly incapable of seeing
more than one side of any question involving the interests of himself
and his church. When his cause was a just one, who so fond as he of
appealing to the majesty of the law. When he wished to pervert the law
to his own purposes, who so apt at enjoining a disregard therefor.[7]
There is abundant reason for believing that he was the original
instigator of the Gourlay prosecutions. They were at all events carried
on by his satellites, and fostered by his fullest concurrence and
approval. Their object was to drive Mr. Gourlay out of the country, and
to this end it would appear that the Compact were prepared to go
whatever lengths the necessities of the case might require. A criminal
prosecution for libel was set on foot against the doomed victim of
Executive malevolence, who was arrested and thrown into jail at
Kingston, where he lay for some days. The trial took place on the 15th
of August, 1818, when Mr. Attorney-General Robinson put forth the utmost
power of his eloquence to secure a conviction. In vain. The prisoner
conducted his own defence, and so clearly exposed the flimsiness of the
indictment that the prosecution utterly failed. A second arrest on a
similar charge resulted in another acquittal at Brockville. It was by
this time manifest that no jury could be found subservient enough to
become blind instruments of oppression. The alleged libel consisted of
two paragraphs in a petition to the Prince Regent, drafted by Mr.
Gourlay, approved of, printed and published by sixteen residents of
Niagara District, six of whom were magistrates. These paragraphs
contained a vivid but faithful picture of the abuses existing in the
Crown Lands Department, and it would probably have been difficult to
find a jury anywhere in Upper Canada, some members whereof had not had
personal experience of those abuses. Having failed in two attempts to
convict him of libel, Mr. Gourlay's foes hit on another and more
effectual method of accomplishing his destruction.
By a Provincial statute known as the Alien Act, passed in 1804,
authority was given to certain officials to issue a warrant for the
arrest of any person not having been an inhabitant of the Province for
the preceding six months, who had not taken the oath of allegiance, and
who had given reason for suspicion that he was "about to endeavour to
alienate the minds of His Majesty's subjects of this Province from his
person or government, or in anywise with a seditious intent to disturb
the tranquillity thereof." In case the person so arrested failed to
prove his innocence, he might be notified to depart this Province within
a specified time, and if he failed so to depart he was liable to be
imprisoned until he could be formally tried at the general jail
delivery. If found guilty, upon trial, he was to be adjudged by the
court to quit the Province, and if he still proved contumacious he was
to be deemed guilty of felony, and to suffer death as a felon, without
benefit of clergy. This statute, be it observed, was not passed at
Westminster during the supremacy of the Plantagenets or the Tudors, but
at York, Upper Canada, during the forty-fourth year of the reign of
George the Third. More than one eminent authority has pronounced it an
unconstitutional measure. There was, however, some show of justification
for it at the time of its enactment, for the Province was then overrun
by disloyal immigrants from Ireland and by republican immigrants from
across the borders, many of whom tried to stir up discontent among the
people, and were notoriously in favour of annexation to the United
States.[8] It was against such persons that the Act had been levelled,
and there had never been any question of attempting to apply it to
anyone else. Now, however, it was pressed into requisition in order to
compass the ruin of as loyal a subject as could have been found
throughout the wide expanse of the British Empire; who had resided in
Upper Canada for a continuous period of nearly eighteen months; who was
no more an alien than the King upon the throne; and whose only real
offence was that he would not stand calmly by while rapacious and
dishonest placemen carried on their nefarious practices without protest.
Among the various dignitaries authorized to put the law in motion, by
the issue of a warrant under the Act, were the members of the
Legislative and Executive Councils. William Dickson and William Claus,
as has been seen, were members of the former body; and as such they had
power over the liberty of anyone whose loyalty they thought fit to call
in question. Dickson was a connection by marriage of Mr. Gourlay, and
for some months after that gentleman's arrival in this Province had gone
heart and hand with him in his schemes of reform. For Mr. Dickson then
had a grievance of his own, arising out of the partial interdict of
immigration from the United States which had been adopted after the War
of 1812-15. He was the owner of an immense quantity of uncultivated
land in the Province, including the township of Dumfries already
mentioned, which he was desirous of selling to incoming settlers. The
shutting out of United States immigrants tended to retard the progress
of settlement and the sale of his property. His anger against the
Administration had been hot and bitter, and he had even gone so far as
to state publicly that he would rather live under the American than
under the British Government. But he had managed to induce the Assembly
to pass certain resolutions, recognizing the right of subjects of the
United States to settle in Upper Canada. The restrictions being relaxed,
his only cause of hostility to the Administration vanished, and he
ceased to clamour against it. His sympathy with Mr. Gourlay's projects
vanished into thin air. Those projects contemplated enquiry and reform.
Dickson, having accomplished his own ends, desired no further reform;
and as for enquiry, he had excellent reasons for burking it, as it would
probably lead to the disclosure of certain reprehensible transactions on
the part of himself and Claus, the Indian agent. He therefore presented
a sudden change of front, and, so far from continuing to act with Mr.
Gourlay, he became that unfortunate man's bitterest foe.
How far Dickson's enmity was stimulated by cooeperation with the leaders
of the Compact party at York will probably never be known. That there
was something more than a merely tacit understanding that Mr. Gourlay
was to be got rid of is beyond question. But before any arrest could be
effected under the Act of 1804 it was necessary that perjured testimony
should be forthcoming. It was easily provided. On the 18th of December,
1818, a secret consultation took place between Dickson and one Isaac
Swayze, at the former's private abode. Swayze was a resident of the
Niagara District, and the representative of the Fourth Riding of Lincoln
in the Legislative Assembly, but was nevertheless a man of indifferent
character, and so illiterate as to be barely able to write his name.
During the Revolutionary War he had been a spy and "horse-provider" to
the loyalist troops. More recently he had been chiefly known as one of
the most bigoted and unprincipled of the Compact's minor satellites; a
hanger-on who was ever ready to undertake any disreputable work which
the Executive might have for him to do. He was a smooth-tongued
hypocrite, who made extravagant professions of zeal for religion when he
was in the society of religious people, but afterwards laughed at their
credulity for believing him. "When electioneering," said he, "I pray
with the Methodists." At other times he gained votes by threatening to
bring down upon the electors the vengeance of the Executive, who, he
averred, were specially desirous of having his services in the Assembly.
Corruption can always find apt tools to do its bidding.
"Where'er down Tiber garbage floats, the greedy pike ye see;
And wheresoe'er such lord is found, such client still will be."
Isaac Swayze was a veritable modern counterpart of the client Marcus,
and when he gained votes by holding his patrons _in terrorem_ over the
heads of the electors, he was merely echoing his ancient prototype:--
"I wait on Appius Claudius, I waited on his sire;
Let him who works the client wrong beware the patron's ire."
His employers knew their man, and that he would not stick at a trifle to
keep their favour. On the day after his secret interview with Dickson he
proved his subordination to authority by committing wilful and
deliberate perjury. He swore that Mr. Gourlay was an evil-minded and
seditious person, who was endeavouring to raise a rebellion against the
government of Upper Canada; that he, deponent, verily believed that said
Gourlay had not been an inhabitant of the Province for six months, and
had not taken the oath of allegiance.[9]
On the strength of this sworn statement, Mr. Gourlay was arrested under
the Alien Act of 1804, and carried before Dickson and Claus, both of
whom were specially and personally interested in putting him to silence.
The examination and hearing before them, which took place on the 21st of
December, was a transparent mockery of justice. Dickson, Claus and
Swayze, in common with nearly every one in Upper Canada, well knew that
their victim had been resident in the Province for nearly three times
the period specified in the Act. Dickson had been in constant and
familiar intercourse with him for sixteen months. Claus had known him
nearly as long. Swayze had conversed with him at York more than a year
before, and had been acquainted with his proceedings from month to
month--almost from week to week--during the entire interval. The charge
of being an evil-minded and seditious person was too absurd to be
seriously entertained for a moment by any one who knew Mr. Gourlay as
intimately as Dickson had done for more than eight years.[10] As for his
not having taken the oath of allegiance, it had never been required of
him, and he was both able and willing to take it with a clear and honest
conscience. But as matter of fact no one suspected his loyalty, and the
charge against him was the veriest pretext that malice could invent.
When he appeared before his judges, however, Messieurs Dickson and Claus
professed to be dissatisfied with his defence, and alleged that his
"words, actions, conduct and behaviour" had been such as to promote
disaffection. They accordingly adjudged that he should leave the
Province within ten days. A written order, signed by them, enjoining his
departure, was delivered to him. "To have obeyed this order," writes Mr.
Gourlay,[11] "would have proved ruinous to the business for which, at
great expense, and with much trouble, I had qualified myself. It would
have been a tacit acknowledgment of guilt, whereof I was unconscious. It
would have been a surrender of the noblest British right; it would have
been holding light my natural allegiance; it would have been a
declaration that the Bill of Rights was a Bill of Wrongs. I resolved to
endure any hardship rather than to submit voluntarily."
He paid a heavy penalty for his disobedience. On the 4th of January,
1819--the third day after the expiration of the period allowed him for
departure--Dickson and Claus issued an order of commitment, under which
he was arrested and lodged in Niagara jail, there to remain until the
next sitting of the Court of Oyer and Terminer. His pugnacity was by
this time fully aroused, and he determined to fight his ground inch by
inch. After some delay, he caused himself to be taken before Chief
Justice Powell, at York, under a writ of _habeas corpus_, for the
purpose of being either discharged from custody or admitted to bail. The
argument was heard on the 8th of February, when several persons of
wealth and good social position presented themselves, and offered to
become responsible to any amount for his appearance whenever called upon
to stand his trial. The attorney who argued the cause on behalf of the
prisoner presented three affidavits, made respectively by the Honourable
Robert Hamilton, Peter Hamilton, and the prisoner himself, who, in order
to render his position doubly unassailable, had meanwhile taken the oath
of allegiance. In the first affidavit it was deposed that Mr. Gourlay
had been domiciliated at Queenston for more than nine months, and that
the deponent verily believed him to be a natural-born subject of Great
Britain. By the second it appeared that deponent had known Mr. Gourlay
in Britain, where he was respected, esteemed, and taken to be a British
subject; "and that he is so"--thus ran the affidavit--"this deponent
verily believes is notoriously true in this district." The prisoner's
own affidavit set forth that he was a British subject; that he had taken
the oath of allegiance, and that he had been an inhabitant of Upper
Canada for more than a year prior to the date of the warrant first
issued against him. There could hardly have been a clearer case. But the
prisoner's enlargement at this time would have been a triumph for him,
and would have made him a popular idol, which would not have comported
with the policy of the Unholy Inquisition at the capital. He was
remanded to jail, the Chief Justice indorsing judgment on the writ to
the effect that the warrant of commitment appeared to be regular, and
that the Act under which it was issued made no provision for bail or
main-prize.
When Mr. Gourlay was first placed in durance at Niagara he was possessed
of robust health, a vigorous frame, a seemingly unconquerable will, and
a perfervid enthusiasm for the cause of truth and justice. But his
sufferings during the ensuing six months were of a nature well
calculated to sap the health of the most robust, to rack the frame of an
athlete, to tame the wildest enthusiasm, and to subjugate the strongest
will. When we read of what the gentle and erudite John Fisher or the
eloquent and upright Sir John Eliot underwent in the Tower for
conscience sake, the heart's blood within us is stirred with righteous
indignation. But we are calmed by the reflection that these things took
place centuries ago, and in a far-distant country. In the case of Robert
Gourlay we can lay no such flattering unction to our souls. His slow
crucifixion was accomplished in our own land, and at a time well
remembered by many persons now living among us. Some idea of what he
passed through may be derived from his own words already quoted. Further
light on the subject may be obtained from noting his demeanour when
placed on trial, as the reader will presently have an opportunity of
doing.
For some months after his incarceration his fine state of health and
exuberant animal spirits kept him from utterly breaking down. His whole
nature was up in arms at the wrongs he had sustained, and his pugnacity
asserted itself as far as his circumstances would admit of. He obtained
the opinions of eminent English lawyers as to the legal aspect of his
case. The unanimous opinion of counsel was that his imprisonment was
wholly unjustifiable. Sir Arthur Piggott was clear that Chief Justice
Powell should have discharged the prisoner when brought before him under
the writ of _habeas corpus_, and that Dickson and Claus were liable to
actions for false imprisonment. This opinion was acted upon, and
proceedings were instituted against the two last-named personages. But
the contest was too unequal. Each of the defendants obtained an order
for security for costs, which security the plaintiff, being in
confinement, and subject to various disabilities, was unable to furnish.
The actions accordingly lapsed, and Dickson and Claus thus escaped all
civil liability for their most reprehensible deeds.
The thread of the narrative may now be resumed pretty nearly where it
was dropped a few pages back. It was, as has been said, the 20th of
August--nearly a year subsequent to the Kingston trial[12]--when the
prisoner was finally placed in the dock to undergo the semblance,
without the reality, of a judicial investigation into his conduct. He
was himself firmly persuaded that the jury empanelled in his case was a
packed one. We have no means of knowing all the circumstances whereby he
was led to this conclusion, but the idea is not in itself inherently
improbable. In those days, and for long after, no man tried in Upper
Canada for anything savouring of radicalism in politics could hope to
receive fair play. In Gourlay's case there were one or two suspicious
features which, to say the least, require explanation. The custom
ordinarily adopted by the sheriff, in selecting jurymen, was to draw
them in rotation from the various townships in the district. "In my
case," says Mr. Gourlay, "it was said that he had varied his course; and
not this only, but, instead of drawing from a square space of country,
he chose a line of nearly twenty miles, along which it was well known
that there were the greatest number of people prejudiced and influenced
against me."[13] Mr. Gourlay further declares that it was observed by
people in court that in the glass containing the folded transcripts from
the jury-list some of the folded papers were distinctly set apart, so as
to admit of their being drawn, apparently with fairness, in the ordinary
manner. These papers so set apart from the rest, as Mr. Gourlay informs
his readers, were "caught hold of" as the twelve which should decide his
fate. The names of the jurors, which, so far as I am aware, have not
hitherto appeared in print, are worthy of preservation. They were
William Pew, John Grier, William Servos, James B. Jones, Ralfe M. Long,
David Bastedo, John C. Ball, John Milton, James Lundy, William Powers,
Peter M. Ball and John Holmes.
The personal appearance of the prisoner had undergone a woful change
during his confinement. Had his own wife seen him at that moment it is
doubtful whether she would have recognized her lord. Could it be
possible that that frail, tottering, wasted form, and that blanched,
sunken-eyed, imbecile-looking countenance were all that were left of the
once formidable Robert Gourlay? The sight was one which might have moved
his bitterest enemy to tears. His clothing, a world too wide for so
shrunken a tenant, hung sloppy and slovenly about him, and it was
remarked by a spectator that he had aged fully ten years during the six
months that had elapsed since his journey to York in the previous
February. His limbs seemed too weak to support him where he stood, and
as he leaned with his hands upon the rail in front of him his fingers
twitched nervously, while his whole frame visibly trembled. The saddest
change of all had been wrought in his once fine eyes. They were of light
grey, and their ordinary expression had been more sharp and piercing
than is commonly found in eyes of that colour. They had been clear and
keen, and expressive of an active, vigorous brain behind them. At
present they were wandering, weak and watery, altogether lacking in
lustre or expression. They told their sad tale with piteous brevity. The
brain was active and vigorous no longer, or, if still active, was so to
no definite purpose. The spark of reason was for the time quenched
within him. His oratory and his writings were no longer to be dreaded.
The man whose large presence had once carried about with it unmistakable
evidences of physical and mental power had been reduced to a physical
and mental wreck. No man in that closely-packed court-room was now more
harmless than he. The Compact had indeed set an indelible mark upon
him--a mark which he was to carry to his grave, for during the
forty-four years of life that remained to him he was never again the
Robert Gourlay of old, and was subject to periodical seasons of mental
aberration.
And yet, as he stood there trembling and distraught, with that sea of
faces turned upon him, he was not altogether without some glimmering of
reason. He was at least passively conscious, like one in a troubled
dream, of what was going on around him. He realized, in a misty, dazed
sort of fashion that he was on his trial; but, cudgel his memory how he
would, he could not recall the nature of his alleged offence. The fact
is that, though no stimulant had passed his lips, he was in a state that
can only be characterized as one of intoxication. We know, on undoubted
authority, that very emotional persons are sometimes intoxicated by a
plate of soup, and that invalids have become tipsy upon eating their
first beefsteak after convalescence. Mr. Gourlay was endowed with an
enthusiastic, exuberant nature, which required to be kept in subjection
by abundant exercise. Up to the time of his imprisonment he had led an
active out-of-door life, whereby the demon of nervousness within him had
been kept at bay. But long-continued confinement in a close cell,
deprivation of fresh air and suitable exercise, had hindered his
exuberance from finding vent. His mind had been thrown back upon
itself. He had not been permitted to confer with his friends, except
under such restrictions as made converse intolerable. He had been kept
in such a state of nervous tension that he had had no appetite, and had
eaten scarcely any food. His sleep had been broken by mental discomfort,
and he had sometimes lain the whole night through without a minute's
unconsciousness. What wonder that his flesh had sunk away from his
bones, and that his frame had lost its elasticity! For some hours every
day he had lain prostrate on the bed in his cell, in a state of
feebleness pitiful to behold, unable to speak or move, and hardly able
to breathe. "One morning," he writes, "while gasping for breath, I
besought the gaoler to let me have more air, by throwing up the window.
'You are no gentleman,' said he; 'you gave that letter[14] out of the
window, and I will come presently to nail it down.' Happily a friend
soon after called upon me, and through his interference the window was
put up. The brutal gaoler had never before been uncivil to me ... but
there is a spirit throughout animal nature, brute and human, to oppress
in proportion as opportunity is safe, and the object defenceless. The
wounded stag, and the close prisoner of a Provincial Government,
experience similar treatment."[15]
The summer heat, as before mentioned, had been excessive. No rain had
fallen for weeks until just before the opening of the assizes, when
there had been three days of damp, cool weather. During these three days
the prisoner's strength had rallied wonderfully, and he had been able to
prepare a written defence, as well as a written protest against the
legality of his trial, in case of a hostile verdict. But the exertion
had been too much for him in his enfeebled condition, and, as though to
add to his miseries, the heat had become more intolerable than before.
He had not known how utterly his nerves were shattered until his case
had been called for trial, and he had been placed in the prisoners'
dock. Hot and stifling as was the air of the court-room, it was balm
itself when compared with the vitiated element which he had long been
forced to breathe. The stimulus was too great, and he was no longer
master of himself. To quote his own words, he became rampant with the
fresh air, and was reduced to imbecility at the very moment when he
specially needed strength, patience and recollection. Such was his
condition when Mr. Attorney-General rose from his seat and proceeded to
lay bare the prisoner's unspeakable enormities. It had been determined
that no attempt should be made to convict him of sedition, and that the
only charge to be pressed against him should be his refusal to leave the
Province. The indictment, however, was read and commented upon,
doubtless for the purpose of influencing the minds of the audience. It
charged, with wearisome iteration and reiteration, that he, the said
Robert Gourlay, being a seditious and ill-disposed person, and
contriving and maliciously intending the peace and tranquillity of our
lord the King within the Province of Upper Canada to disquiet and
disturb, and to excite discontent and sedition among his Majesty's liege
subjects of this Province--and so forth, and so forth, to the end of the
tedious and tautological chapter. The patriotic and disinterested
conduct of Dickson and Claus, in performing the imperative but
unpleasant duty of committing their personal friend to jail, lest he
should undermine the loyalty of the people, was commented upon with
periphrastic eloquence. When the official inquiry was put to the
prisoner: "How say you, Robert Gourlay, are you guilty or not guilty?"
he instinctively replied "Not guilty." Then came the next query: "Are
you ready for your trial?" Ready for his trial, indeed! when his
helpless condition was apparent to everybody who could catch a glimpse
of his tottering frame and his vacant, expressionless face. The
unmeaning sound which issued from his lips was taken for an affirmative,
and the farce of an impartial investigation proceeded with.
During the whole of these proceedings the prisoner stood like one amazed
and confounded; as one who gropes blindly in the dark for what he cannot
find. From the various hints scattered here and there throughout his
numerous writings, we are able to form some idea of what he underwent
during that trying ordeal. His imagination had been rendered more lively
by weakness and prostration of body, and he was so stimulated by the
change of air from his cell to the court-room that his sensations were
chiefly those of a vague and unreasoning delight--delight at the
prospect of freedom; delight at the prospect of once more enjoying the
luxury of heaven's sunlight unimpeded by the bars of a prison cell; of
running rampant through the land, and feeling upon his sunken cheeks the
deliciously invigorating air of the open fields. His high spirit had
been effectually tamed by that rigid, excruciating torture of close
confinement during the dog days, with no other companion than despair.
By this time personal liberty and fresh air seemed to him the only
things greatly to be desired. He was cognizant of a sensation of
thankfulness that his trial had come on at last, even though it should
result in his banishment. He rejoiced that he should even thus be set at
liberty from his horrible situation.[16] He longed to feel the tide of
human life ebbing and flowing around him, and to feel that he himself
was not a mere drone in the hive. During the progress of the trial,
though he was oblivious of most that was going on in the court-room,
memory and fancy were keenly alert, and he rapidly lived over again many
episodes of his past life. The dead and gone years rose up before him
like the scenes of a rapidly-shifting panorama, even as the past is said
to arise before the mental vision of those lying on beds of pain, just
before the great mystery of the grave is unfolded to their view.
Subjects and scenes long forgotten or seldom remembered presented
themselves. There was the little Fifeshire school, with its umbrageous
playground, where he had been a merry laughing lad, and where Dominie
Angus had given him his first taste of ferule and Fotherup. There was
the patched portrait of Cardinal Beaton, in St. Mary's College, at which
he and his friend John Dean had been wont to gaze with rapt admiration
in the old days left so far behind. There was that odd adventure among
the Mendip Hills, during his professional peregrination through
Somersetshire more than a dozen years before, and upon which he could
not remember that he had bestowed a single thought since his arrival in
Canada. There, too, was the drunken type-setter from Bristol, who had
taught him the technical marks to be used in making corrections for the
press, and whom he had neither seen nor thought of since the publication
of his pamphlet in which be had portrayed the sufferings of Bet Bennam
and Mary Bacon. Who shall say what other scenes, sad or mirthful,
presented themselves among his "thick-coming fancies"? Possibly he
recalled the high hopes of his boyhood, when he thirsted to better the
condition of the poor, and was almost persuaded that he had been sent
into the world expressly to guard their interests against the exactions
of grasping landlords. Visions, too, may have arisen before him of his
beautiful Wiltshire farm, where the modest daisies peeped above the
grass, and the joyous lark sang from the meadow; where he had once been
so happy in the companionship of his fond wife and little ones, who at
this moment waited in longing expectation for tidings from the absent
husband and father. Perchance also he called to mind, at that crisis,
his little dead daughter, who had blossomed and faded among the green
glades of Wily, and over whose grave the parson of the parish had
refused to read the services of the Church.[17] The poor babe had died
unchristened, and under such circumstances the rubric forbade the
solemnization of funeral rites.
From all such musings he was recalled by the voice of Chief Justice
Powell, demanding if he had aught to say ere the sentence of the court
should be pronounced upon him. The sentence of the court! For the best
part of two hours he had been wool-gathering, and the words beat upon
his brain without arousing any just appreciation of their significance.
He now once more awoke to the fact that he was on his trial, but he
could not grasp the potentialities of his situation, nor could he for
the life of him recall the precise nature of the offence with which he
had been charged. He did, however, realize that the jury had returned a
verdict to the effect that he had been guilty of refusing to leave the
Province, pursuant to the order served upon him. By a desperate effort
he managed to rally his senses sufficiently to remember that he had been
accused of being a seditious person, though whether the accusation had
been made yesterday, or the day before, or half a century ago, he was
wholly unaware. Turning towards the jury-box, he enquired of the nearest
occupant whether he had been found guilty of sedition. Suddenly it
flashed across him that he had prepared a defence, together with a
written protest against the anticipated verdict. But by no mental
exertion of which he was capable could he remember what he had done
with the defence, nor could he call to mind the word "protest," although
at that moment he had the written one in his pocket. After a moment's
struggle to remember what he wished to say, he found himself hopelessly
befogged, and abandoned the attempt. Then, to the amazement of all who
heard him, he burst out into a loud, strident peal of unmeaning,
maniacal laughter--laughter which had no spice of merriment in it, and
which was a mere spontaneous effort of nature to relieve the strain upon
the shattered nerves. Bench, bar, jury and spectators stared aghast. Such
laughter sounded not only incongruous, but sinister, ominous. It was
suggestive of the expiring wail of a lost soul. It was more eloquent
than any mere words could have been, and spoke with most miraculous
organ. Over more than one heart there crept a sort of premonition that a
dread reckoning must sometime arrive for that day's work: that Eternal
Justice would sooner or later exact a fit penalty for the cruel
perversion of right which was then and there being consummated. It would
be interesting to know what, at that particular moment, were the
innermost sensations of William Dickson and William Claus, both of whom
sat within a few feet of their victim, and both of whom had repeatedly
received offices of kindness at his hands.
Strange to say, the miserable man's memory was merely suspended, and he
afterwards recalled with much clearness the thoughts and reflections
which passed through his mind during that delirium of more than two
hours. He even remembered the senseless bray of laughter which, to the
sympathetic mind, is not the least impressive feature of that iniquitous
trial. His overwrought nerves being temporarily relieved by the
cachinnation, he regained for a few minutes some measure of composure
and sanity. With the return of reason came a returning sense of
injustice and oppression. He made a brief but ineffectual attempt to
argue the matter with the Chief Justice, who informed him that the facts
had been dealt with by the jury, and that he could be permitted to speak
only on questions of law. The sentence of the Court was then pronounced.
It was to the effect that the prisoner must quit the Province within
twenty-four hours. He was reminded of the risk he would run in the event
of his presuming to disobey, or to return to Upper Canada after his
departure therefrom. He would be liable, according to the words of the
Act of 1804, to suffer death as a felon, without benefit of clergy. The
Chief Justice finally proceeded to read him a severe lecture upon his
past course since his arrival in Canada, and furthermore to give him
some excellent advice. He informed him that in this country the law is
supreme; that no man can be permitted to run counter to it with
impunity; that those who administer the law should be no respecters of
persons; that justice is even-handed, and metes out impartially to the
poor man and the rich. He advised him to turn his great abilities to
practical account, whereby he would no doubt win happiness and
distinction. "Perhaps," says George Eliot, "some of the most terrible
irony of the human lot is to hear a deep truth uttered by lips that have
no right to it." Poor Gourlay was conscious of some feeling of this sort
when he heard such truths proclaimed from such lips. To his
morbidly-sensitive nature, such irony seemed an aggravation of all he
had endured. To think that, after such experiences as had fallen to his
share, a Family Compact judge should gravely inform him that in Upper
Canada the administrators of the law should be no respecters of persons!
that justice is even-handed! To think that such an one should presume to
advise him to become practical, with a view to wealth and happiness! It
was like the adulterous woman who, on eloping with her paramour, wrote
to her husband enjoining him to be virtuous if he would be happy. The
incongruity struck the prisoner so forcibly that for a moment he was on
the verge of another explosion of sardonic laughter. Before leaving the
dock he made one last attempt to draw attention to the treatment he had
sustained while in prison. By way of heightening the effect of his
narration, he informed the Court that his letters had been suppressed by
the sheriff:[18] that while his enemies had been allowed to fill the
newspapers with lying diatribes against him, and to prejudice the public
mind in view of his impending trial, his own letters to the Niagara
_Spectator_ had been rigidly withheld from the light of day, and this
by official interference. Chief Justice Powell put the cap-sheaf upon
the pinnacle of absurdity by informing him that if he chose he might
prosecute the sheriff. Prosecute the sheriff! when he had just been
sentenced by the Chief Justice himself to leave the Province within
twenty-four hours, and when he was liable to the last penalty of the law
in case of his return to prosecute!
The trial was ended, and--blissful thought!--for the ensuing twenty-four
hours he was free to come and go whithersoever he would. He was taken in
charge by his friends the Hamiltons, and spent the night in their house
at Queenston. Next day--Saturday, the 21st of August--he obeyed the
mandate of the law, and shook from his feet the parched dust of Upper
Canadian soil. His mental condition was far from satisfactory, but he
would brook no interference with his actions, even from his best
friends. The feeling uppermost in his bosom was a delicious sense of
being at large, with no one to shut the cell door upon him, or otherwise
to control his actions. He felt like one recalled to life. The unhappy
man was well aware that his brain was weak, but he also knew that he was
not what is ordinarily understood as insane. Like Baldassarre, he
carried within him that piteous stamp of sanity, the clear consciousness
of shattered faculties. His feebleness was as patent to himself as to
others. He knew that he was the mere wreck of what he had once been, and
he knew further that his mental and bodily ruin was due to the triumph
of tyranny and injustice. Still, he was, for the moment, happy. There
was sunshine in his heart, and gladness in his eye. Having crossed the
Niagara river, he knew that he was beyond the material grasp of those
whose baneful shadow was nevertheless destined to darken the rest of his
life. "I thanked God," he writes, several years afterwards, "as I set my
first foot on the American shore, that I trod on a land of freedom. The
flow of animal spirits carried me along for more than two miles in
triumphant disgust. It carried me beyond my strength, till, staggering
by the side of the road, I sunk down, almost lifeless, among the bushes,
and awoke from my dream to a state of sensibility and horror past all
power of description. If at my trial, and so long after it, I was
callous to feeling; if I was blind to objects around me, and regardless
of consequences, the scenes I had passed through were now too visible:
my senses were too keen; my feelings too acute. Before, all was frozen
and rigid; now, extreme relaxation resigned me to the torture of a
distracted mind, feeble, doubting, and irresolute. In fact, my nervous
system had undergone a most violent change; and, to this hour, the
effects are permanent: to this hour, with every effort and every
appliance, my natural tone of health and vigour cannot be regained."[19]
One of the bitterest reflections which forced itself upon him was that
he, a man of unimpeachable loyalty, had been banished--"flung out like a
spoilt jelly,"[20] under a statute which had been passed to guard
against the machinations of aliens and traitors. "Banishment" was to him
a word replete with repulsive and disgraceful associations. He liked it
no better than did the sweet rose of the Capulets.
"Banished: that one word--_banished_.
* * * * *
There is no end, no limit, measure, bound,
In that word's death."
* * * * *
On the 27th of August, precisely a week after the trial above described,
a high and mighty English nobleman who was for the time domiciled in
Canada underwent a more terrible experience than ever fell to the lot of
Robert Gourlay. He was travelling at the time through a part of the
county of Carleton, and while wandering through the woods, attended by
several companions, he found himself exceedingly unwell. His spirits
were depressed, and he was dominated by what seemed an unaccountable
dread of water. His valet had noticed that for a day or two previously
he had shrunk from performing his customary ablutions, and had cleaned
his hands and face by the application of a damp towel. On approaching
within a few yards of a forest stream he was seized by violent spasms.
By a desperate resolution he forced himself to take his seat in a canoe
which had been provided, but the little craft had not proceeded many
yards ere he was seized by a fresh paroxysm, and in a frenzied tone
ordered the boatman to land him on the nearest bank. The order was
promptly obeyed, and he had no sooner escaped from the boat than he ran
frantically into the depths of the wood. He was pursued and overtaken by
his companions, who found him foaming at the mouth and raving mad. They
secured him until the paroxysm had spent itself, when they conveyed him
to a neighbouring shanty. The sufferer, at his own request, was soon
after removed to an adjoining barn, where he said he should be more
comfortable than in the shanty, as it was _further from the water_.
Throughout the rest of the day and ensuing night he was subject to
repeated returns of the paroxysms, during which he suffered untold
agonies. It was evident to himself and those about him that he was
afflicted by the most terrible of all maladies to which humanity is
subject--hydrophobia. He had been bitten by a tame fox a few weeks
before, and the deadly rabies had ever since been rankling in his
system. He realized that he must die, and the instincts of his race--he
was a remote by-blow of royalty--taught him to make an ending in a
manner becoming a gentleman. Towards evening he consented to be taken
back to the shanty, where a bed had been prepared for him. Except while
the paroxysms were upon him, he was perfectly calm and collected, and
gave his last sad directions to a friend who stood by his side. About
eight o'clock on the morning of the 28th the death-agony came upon him,
and his excruciating tortures were at an end.
Thus passed away Charles Gordon Lennox, Fourth Duke of Richmond, Earl of
March and Baron Settrington in the peerage of England; Duke of Lennox,
Earl of Darnley and Baron Methuen in the peerage of Scotland; Duc
d'Aubigny in France, Governor-General of Canada, lord of Halnaker,
Goodwood and West Hampnett. There was, as has been above hinted, a bar
sinister in his escutcheon, for he was descended from King Charles the
Second and the fair and frail Frenchwoman Louise Renee de Querouaille,
who was commonly known among Englishmen of her day as Madam Carwell.
This lady, who was probably the least bad of the unlicensed prostitutes
of Charles's seraglio at Whitehall, was for her many virtues created
Duchess of Portsmouth. Her descendants, like those of Nell Gwynn and the
rest of that frail sisterhood, are reckoned among the great ones of the
earth. The Duke whose melancholy fate has just been chronicled was the
father of Lady Sarah, spouse of Sir Peregrine Maitland,
Lieutenant-Governor of Upper Canada.
* * * * *
Was there any connection between these two tragical events: the trial of
Robert Gourlay and the death of the Duke of Richmond? Mr. Gourlay
evidently leaned to the belief that there was.[21] The Duke and his
son-in-law had passed through Niagara during the hot weather of July,
while the victim of Family Compact villainy was gradually having his
health and reason tortured out of him in the jail at that place. He was
of opinion that the two distinguished visitors should have exercised
their prerogative by setting him at liberty. This, of course, was an
altogether unreasonable belief. His Grace was not at all likely to
interfere in the matter, and as for Sir Peregrine, he was completely in
the hands of Mr. Gourlay's enemies. The belief, however, is worth
recording, as exhibiting the extent to which Mr. Gourlay's persecution
continued to prey upon his mind, even after the lapse of years, and when
he was in as good health as he ever regained.
It was deemed advisable that Mr. Gourlay's case should be a perpetual
warning to any and every person who might thereafter dare to tread in
his venturesome footsteps. Accordingly, as has been seen, he had to
drink the cup of mortification to the very dregs. And, by way of
deterring public writers from aiding and abetting any such pestilent
innovators for the future, it was determined that a notable example
should be made of the editor of the Niagara _Spectator_, who had dared
to side with the oppressed against the oppressor, and had published some
of Mr. Gourlay's attacks upon the abuses of the time. His name was
Bartemus Ferguson, and he had on several occasions manifested his
sympathy with projects of reform. The discipline inflicted upon him was
swift and severe. He was seized while in bed, in the middle of the
night, a hundred and fifty miles from home, conveyed to jail at Niagara,
and thence to York, where he was detained in prison for some days out of
the reach of friends to bail him. He was tried for sedition at the
Niagara assizes a day or two before Mr. Gourlay. In order that public
journalists of the present day may note in what comparatively pleasant
places their lines have fallen, I transcribe the sentence of the court,
which was as follows:--"Therefore it is considered by the said court
here that the said Bartemus Ferguson do pay a fine to our said lord the
King of fifty pounds of lawful money of Upper Canada: That he, the said
Bartemus Ferguson, be imprisoned in the common jail of the District of
Niagara for the space of eighteen calendar months, to be computed from
the eighth day of November, in the sixtieth year of the reign of our
said lord the King: that in the course of the first month of the said
eighteen months he do stand in the public pillory one hour, between the
hours of ten o'clock in the forenoon and two o'clock in the afternoon:
and that at the expiration of the said imprisonment he do give security
for his good behaviour for the term of seven years: he the said Bartemus
Ferguson in the sum of five hundred pounds, and two sureties in the sum
of two hundred and fifty pounds each; and further, that he, the said
Bartemus Ferguson, do remain imprisoned in the said jail until the
aforesaid fine be paid and security given."
The composition for which the editor was thus held to so stern an
account was a letter written by Mr. Gourlay, and signed by his name,
published in the _Spectator_ during the editor's absence from home, and
without his knowledge. It animadverted pretty sharply on the
Administration of the day. In the jingling and jangling phraseology of
the indictment, it was calculated to "detract, scandalize, and vilify
His Grace Charles Duke of Richmond, Lennox and Aubigny, Captain-General
and Governor in and over the Provinces of Lower and Upper Canada, Nova
Scotia and New Brunswick and their dependencies; and to scandalize and
vilify Sir Peregrine Maitland, Knight Commander of the Most Honourable
Military Order of the Bath, His Majesty's Lieutenant-Governor of this
Province of Upper Canada." Certain public officials, not specifically
alluded to by name, were referred to as fools and sycophants. But the
letter did not contain a syllable which was not literally true, and was
mildness itself when compared with letters and articles which are
constantly published with impunity in newspapers of all shades of
political opinion in these present times. It appears that, upon the
humble and unequivocal submission of the culprit, some of the most
severe penalties imposed by the court were remitted, and that he was
erelong allowed to resume his business;[22] but all enthusiasm for the
public good had meanwhile been crushed out of him, and he became one
more added to the list of subservient tools which the Executive always
managed to have at their control. Such were the glories of a free press
in enlightened Upper Canada sixty-six years ago. Such were the "good old
times" which our grandfathers are never weary of belauding to the echo.
How bright are the hues of retrospection! But for us of the present
generation, let us be thankful to the Giver of all Good that such brave
old times are long past, and that they can never return. Let them go;
but surely it is too much to expect us to pronounce a benison upon their
dead and departed dry bones.
Even before the commencement of proceedings against Mr. Gourlay under
the Alien Act, his conduct had furnished a pretext to those in authority
for striking a heavy blow against freedom of speech and action. The
holding of conventions, whereat meddlesome persons of the Gourlay stamp
might air their grievances and agitate for investigations into public
abuses, was a thing not to be tolerated in Upper Canada. Upon the
assembling of the Legislature at York, in October, 1818, the
Lieutenant-Governor, in his opening Speech, hinted at a law to prevent
the holding of such meetings; and in the course of the ensuing session a
Bill to effect that object was introduced into the Assembly by Mr. Jonas
Jones, member for Grenville. The Bill was supported by twelve out of the
thirteen members present, and was speedily passed into law; but, as will
hereafter be seen, it was not destined to a long life.
* * * * *
After a brief delay in the State of New York, Mr. Gourlay repaired to
Boston, and thence took ship for Liverpool. On a subsequent page we
shall catch one more brief glimpse of him, but with that exception the
present work has no further concern with his chequered existence. He
will be referred to from time to time, but only incidentally, and for
purposes of illustration. Those who may feel sufficient interest in him
to follow his fortunes and misfortunes to the bitter end, will find some
account of them in the authority quoted below.[23]
FOOTNOTES:
[1] Not, however, his _immediate_ judicial successor. Mr.--afterwards
Sir William--Campbell became Chief Justice in 1825, and Mr. Robinson's
succession did not take place until four years later.
[2] "Upon my soul, you mustn't come into the place saying you want to
know, you know! You have no right to come this sort of move!"--_Little
Dorrit._
[3] For a much more comprehensive account of Mr. Gourlay's life than the
one here given, the reader is referred to a sketch by the author of this
work in _The Canadian Portrait Gallery_, Vol. III., pp. 240-256.
[4] More than half a century later the venerable Doctor thus wrote to
his old school-fellow: "... I received your interesting letter ... with
no slight emotion of kindness and respect, having ever regarded you as
one of the ablest of my fellow-students at St. Andrews; and who, if
human life had not been the lottery it is, would have earned by his
talents, and merited by his friendly disposition, a place of high and
honourable distinction in society."
[5] The following observations, written concerning Mr. Young by Mr.
Gourlay many years afterwards, contain, so far as they go, a singularly
accurate portraiture of the Banished Briton himself:--"He was an
enthusiast, and of course honest: he was well educated, and a gentleman.
In all his voluminous writings a mean sentiment is not to be found. His
habit of making free with people's names, and taking liberties with
their writings, arose from an uncontrollable ardour in the cause of
improvement.... His inclination to accumulate crude and undigested
information, sufficiently evinced in some of his tours, had their full
scope: he then lost himself, and bewildered others, in the confusion of
detail. I question if he ever had the power of correct abstract
reasoning. His imagination was too busy for it: his eye was too
ravenous, devouring all within its reach."--_General Introduction to
Statistical Account of Upper Canada_; p. xcvii.
[6] _Canadian Portrait Gallery_, Vol. III., p. 241.
[7] _Ex. gr._:--"The law! the law!" impatiently exclaimed the Reverend
Doctor, in his most strident vernacular, when the question of Barnabas
Bidwell's expulsion from the Assembly was under discussion in his
hearing--"Never mind the law; toorn him oot, toorn him oot."
[8] "The local situation of Upper Canada exposes it to the inroad of
aliens of all nations, who, having no tie of allegiance or affection to
Britain, may thence be suspected of evil designs; and for that reason
terrors may be held out to keep them at a distance; but for British
subjects to be suspected and made liable to penalties on mere suspicion,
is contrary at once to nature and the spirit of our constitution. It is
more especially absurd when we consider that the law was expressly made
for _their_ protection."--_General Introduction to Statistical Account
of Upper Canada,_ p. lxviii.
[9] Seven or eight years after this time Swayze narrowly escaped
prosecution for the murder of Captain William Morgan, who is presumed to
have been slain for his threatened disclosure of the Masonic Ritual.
Swayze openly boasted that he had been concerned in the abduction of
Morgan, and in the execution of Masonic vengeance upon him. He professed
to be able to indicate the precise spot where the body was buried--which
spot, he declared, was not far from the bottom of his garden. Upon
investigation these vainglorious boastings proved to be utterly without
any foundation in fact.
[10] Dickson had originally made Gourlay's acquaintance in 1810, when he
visited and spent a week with him at his farm in Wiltshire. See
Gourlay's _Statistical Account of Upper Canada,_ Vol. 2, p. 494.
[11] _General Introduction to Statistical Account of Upper Canada_, p.
ix.
[12] In these times there was but one jail delivery per annum in Upper
Canada.
[13] _Statistical Account_, Vol. II., p. 342. In a note to p. xv. of the
_General Introduction_, Mr. Gourlay says further: "The jury in this case
was notoriously packed. To guard against the effects of this as much as
possible, I had, in the expectation of trial for libel, obtained lists
of inimical jurymen, and had people willing to appear in court to swear
that many of them had prejudged me openly, in the rancour of party
dispute. These lists were handed to me through the door, before and
during the assizes; but all caution and care forsook me in the time of
need."
[14] Referring to a letter written to attract sympathy to the case of
the editor of the Niagara _Spectator_, who had been imprisoned and
shamefully abused for publishing several of Mr. Gourlay's criticisms.
Some account of the persecution to which this gentleman was subjected
will be found on a future page.
[15] _Statistical Account_, Vol. 2, pp. 393, 394.
[16] _General Introduction_, p. xv.
[17] _General Introduction_, pp. ccviii., ccix., and note.
[18] The sheriff was Thomas Merritt, father of the gentleman who
afterwards became the Hon. William Hamilton Merritt, to whose
enterprise, more than to that of any other man, we owe the Welland
Canal. It is right to add that most of the subordinate duties of the
office of sheriff were discharged by an underling, and that Thomas
Merritt may have been personally free from blame in respect of Mr.
Gourlay. Assuming him to have been blamable, his son, the Hon. W. H.
Merritt, in after days, did his utmost to atone for it by espousing Mr.
Gourlay's cause in the Canadian Assembly, as will be seen by reference
to the Parliamentary debates of 1856, 1857 and 1858.
[19] _Statistical Account_, Vol. II., pp. 400, 401.
[20] Ib., p. 401.
[21] Mr. Gourlay was in error as to the date of the Duke's death. He
represents him as "writhing in agony at the self same hour," and as
dying on the same day when he, Mr. Gourlay, crossed over into the United
States.--_Statistical Account_, vol. 2, p. 401. He was astray by exactly
a week. By reference to the precept of the court, I find that Mr.
Gourlay's trial took place on the day specified in the text--Friday, the
20th of August. He left the Province on the following day--Saturday, the
21st. The Duke's death took place on Saturday, the 28th.
It may perhaps be as well for me to refer here to a story which seems to
have obtained some currency, to the effect that the Duke of Richmond's
death was due, not to hydrophobia, but to delirium tremens. There is not
the shadow of truth in the story. The evidence as to the Duke's having
been bitten at Sorel by a tame fox; as to his showing the healed wound
on his thumb several weeks afterwards; as to his dread of water during
the day before his death, and as to all the circumstances attending that
tragical event, is as clear as evidence can very well be. Moreover, his
habits were by no means such as to lead to _mania a potu_. He was a _bon
vivant_, but, so far as I have been able to ascertain, he did not drink
to excess, and was always master of such brains as he possessed. His end
was one which his family might honestly mourn, and there was little in
his life, nothing in his death, of which they had any cause to feel
ashamed.
[22] "Major-General" D. McLeod, in his "History of the Canadian
Insurrection," p. 75, incorrectly states that Ferguson "died in jail
from extremely cruel usage."
[23] _Canadian Portrait Gallery_, Vol. III., pp. 240-256.
CHAPTER II.
A BILL OF PARTICULARS.
The course of bitter persecution sustained by Mr. Gourlay was really the
first remote germ of the Upper Canadian Rebellion. In making this
statement I would not be understood as asserting that Gourlay was the
first person to set himself up in opposition to authority in the
Province, or even that he was the first victim of Executive tyranny.
There had been more or less of dissatisfaction at the selfish and
one-sided policy of the Administration ever since shortly after the
departure of Lieutenant-Governor Simcoe in 1796. Between that date and
Mr. Gourlay's arrival in the Province several personages of some local
note had paid heavy penalties for daring to have opinions of their own.
Mr. Wyatt, the Surveyor-General, had been dismissed from office because
he had presumed to point out certain official irregularities, and
because he would not betray the trust reposed in him. Joseph Willcocks
had been goaded into treason by a long course of persecution. Judge
Thorpe had been driven from the country quite as effectually as Mr.
Gourlay, for no other reason than that he had persisted in holding up
official corruption to the public gaze. But none of these manifestations
of "the oppressor's wrath, the proud man's contumely," had taken so deep
a hold upon the public mind as did the case of Mr. Gourlay. The injuries
inflicted upon him had been so cruel, the perversion of justice so vile,
that the public conscience received a shock from which it did not
recover during the existing generation. For the first time in Upper
Canada's history signs of an organized Opposition began to appear upon
the floor of the Assembly. Thenceforward the antagonism between the two
parties grew in intensity from year to year. In process of time the
Opposition frequently became the controlling power in the House. At a
later stage of its development it divided into two parts. One of these
constituted the moderate Reform Party of the Province. The other was
made up of the advanced Radical element, whence emanated the Rebellion
which forms the especial subject of the present work. All of which will
hereafter be narrated with greater amplitude of detail.
It has been intimated that traces of dissatisfaction began to be
apparent soon after Governor Simcoe's time. Upon his demission of
authority the direction of affairs devolved upon the Honourable Peter
Russell, as senior member of the Executive Council; and that gentleman
had not been long in authority before murmurs began to be heard about
the partial and defective administration of the important department of
Crown Lands. There were comparatively few men in the country possessed
of sufficient education and business experience to admit of their being
entrusted with the charge of public affairs; and where all the offices
were necessarily in the hands of a small number of persons, it was a
foregone conclusion that irregularities should creep in, and that
cliquishness and favouritism should prevail to a greater or less extent.
When Lieutenant-Governor Hunter arrived, in 1799, he found that certain
objectionable practices had become common, and that the foundation had
been laid of serious public evils. Greed and favouritism had obtained a
strong foothold, and scarcely any branch of the public service was
efficiently managed. The sin of covetousness was not confined to
subordinate officials, but included among its votaries some of the
highest dignitaries of the Province. It would seem that President
Russell himself had an itching palm, and that his individual interests
were carefully watched over during his temporary administration of
affairs. Everybody has heard how he made grants of public lands from
himself to himself,[24] thereby violating one of the most cherished
maxims of English jurisprudence. Lieutenant-Governor Hunter, in a letter
written to a friend in England soon after his arrival at York, refers to
P. R.--by whom Mr. Russell is clearly indicated--as "an avaricious one."
In a subsequent part of the same epistle he adds: "So far as depended
upon him [Mr. Russell] he would grant land to the de'il and all his
family as good Loyalists, if they would only pay the fees." During
Governor Hunter's own term of office, though there is no evidence of
corruption or double-dealing on his own part, abuses continued to exist,
and dishonesty too often stared honesty out of countenance. During the
_regime_ of his successor, Commodore Grant, these abuses grew steadily,
both in number and in bulk; and during Francis Gore's long though
interrupted administration, they reached a height which called aloud for
redress.
And here it is desirable to enquire into the specific nature of the
manifold evils which enriched a few at the expense of the many; which
endowed a venal and corrupt clique with a practical monopoly of
political and social power; which sowed the deadly seed of factious
strife, and stemmed the tide of Upper Canadian prosperity.
Theoretically speaking, the constitution granted to Upper Canada by the
Act of 1791 was not unfairly represented by Lieutenant-Governor Simcoe
as being "the very image and transcript of that of Great Britain."[25]
We had a Legislative Council, the members whereof were appointed by the
Crown for life. This body bore some resemblance to the British House of
Lords. Next, we had a Legislative Assembly, the members whereof were
periodically elected by the people--or rather by such of the people as
possessed a sufficient property qualification to entitle them to
exercise the franchise; and this property qualification was placed so
low as almost to constitute universal suffrage.[26] The Assembly
corresponded to the British House of Commons; and these two
bodies--Council and Assembly--with the Lieutenant-Governor, constituted
the Provincial Parliament. The last-named functionary of course
corresponded to the Sovereign of Great Britain. He was appointed by the
Crown, to whom he was solely responsible. He was in no constitutional
sense responsible to either branch of the Legislature, or to both
branches combined, or to any other cis-Atlantic authority whatsoever.
With such substitutes for King, Lords and Commons, Upper Canada might
therefore be said to possess a pretty close copy of the British
constitution. But when carried into practice the resemblance failed in a
matter of the very highest import. The absence of ministerial
responsibility was an all-comprehending divergence. When a British
ministry fails to command the confidence of the electorate, as
represented by the House of Commons, resignation must follow. In other
words, the Government of the day derives its power from the people, to
whom it is responsible for the manner in which it discharges the trust
reposed in it; and the moment it fails to command public confidence it
must give way to those who possess such confidence. The test of
confidence is the vote in the House of Commons. This has been a
recognized principle of English Parliamentary Government for nearly two
hundred years; in fact, ever since the settlement of the constitution
after the Revolution of 1688. With us in Upper Canada there was none of
this ministerial responsibility. We had a ministry, but not a
responsible ministry. It was manifestly impossible that each member of
the Legislative Council and Assembly should be consulted as to every
minute detail of the administration. Such a system would be cumbrous,
and altogether impracticable. The actual task of carrying on the
Government was therefore, as in England, entrusted to a small body of
men who, from the nature of their functions, were known as the Executive
Council. The members of this body were appointed by the Crown--that is
to say, by the Lieutenant-Governor--at will. It was not necessary that
they should have seats in either branch of the Legislature, to neither
of which were they in any sense responsible. They were not required to
possess any property or other qualification. In a word, the Crown's
representative was at liberty to select them without any restriction,
and no one in the Province would have had any constitutional right to
call him to account if he had seen fit to enrol his own valet as an
Executive Councillor. As matter of fact they were commonly selected from
the judiciary and other salaried officials, and from the members of the
Legislative Council. Their number was indeterminate, but was seldom less
than four or more than six, in addition to the Lieutenant-Governor
himself. Their functions consisted of giving advice to the
Lieutenant-Governor on all matters of governmental policy, whenever he
might deem it expedient to consult them. With respect to mere matters of
detail, such as appointments to office, he was not supposed to be under
the necessity of advising with them, nor, according to an opinion long
and ostentatiously proclaimed, was he in these early days under the
smallest obligation to follow their advice after it had been given.
This, however, was merely the prescriptive view, and it derived no
sanction from the Constitutional Act itself, which incidentally refers
to the Executive Council as being appointed "within such Province, for
the affairs thereof." On the other hand, the Executive Councillors
themselves were not legally or constitutionally responsible to the Upper
Canadian people, either individually or collectively, for any line of
policy they might inculcate, or for any advice they might give. There
were no means whereby they could be called to account by the people,
even should they corruptly and openly abuse the trust reposed in them.
It is not difficult to foresee the result of so anomalous a state of
things, though in this Province, owing to sparsity of population and
other local causes, the result did not immediately become apparent.
Simcoe was a strong-minded, as well as a conscientious man. He had a
policy of his own for the government of the country, both at large and
in detail, and during his _regime_ he carried out that policy as to him
seemed best. He from time to time went through the form of consulting
with his Executive Council, but, so far from receiving any impulse from
them, he invariably carried all before him at the Council Board, and was
the be-all and end-all of the Administration. He was, in short, a
beneficent despot, of high and disinterested views, who accomplished
much good for Upper Canada, and would doubtless have accomplished more
but for his too early removal. The moment his all-pervading influence
was gone, however, the mischief, as has already been seen, began to
work. President Russell granted public lands to Peter Russell, and
rapidly laid up a store of wealth. Where the head of the public service
was thus disposed to help himself, we may be sure that subordinate
officials were not slow to follow his example. Subsequent
Lieutenant-Governors were for the most part military men, with little
knowledge of the country's needs, and with a disposition to make their
voluntary exile as easy and agreeable--and withal as profitable--as
might be.[27] They naturally turned for counsel and assistance to their
Executive Councillors, who thus became the dispensers of patronage and
the supreme power in the State. The Crown's representative was a mere
tool in their hands. Their domination was complete. "A body of holders
of office thus constituted," says Lord Durham,[28] "without reference to
the people or their representatives, must in fact, from the very nature
of colonial government, acquire the entire direction of the affairs of
the Province. A Governor, arriving in a colony in which he almost
invariably has had no previous acquaintance with the state of parties or
the character of individuals, is compelled to throw himself almost
entirely upon those whom he finds placed in the position of his official
advisers. His first acts must necessarily be performed, and his first
appointments made, at their suggestion. And as these first acts and
appointments give a character to his policy, he is generally brought
thereby into immediate collision with the other parties in the country,
and thrown into more complete dependence upon the official party and its
friends."
It has been the fashion with most writers on our early history to
represent the Executive Council as an arbitrary creation of the early
Lieutenant-Governors: as an arrangement sanctioned by the Imperial
authorities, but not authorized by the Provincial constitution. Such
writers cannot have read the debates which took place in the House of
Commons while the Constitutional Act of 1791 was under discussion there.
Nay, they cannot have read the Act itself with much care. Nothing is
more certain than that the framers of that statute contemplated the
creation of an Executive Council. By reference to the seventh,
thirty-fourth and thirty-eighth clauses it will be seen that the
Executive Council is definitely mentioned by name, and that the
appointment of such a body is assumed, and treated as a matter of
course. But that the Council should occupy the same relative position as
in Great Britain, and that it should be amenable to public opinion as
expressed by the vote of the House of Assembly, does not appear to have
been clearly understood. Indeed, with the exception of a few master
minds, such as Pitt, Fox, and Burke, but little interest seems to have
been taken by British legislators in this important colonial experiment.
Parliamentary Government, though it had been long established in
England, had not then been reduced to a science. Even such clear-sighted
statesmen as Pitt and Fox were blind to facts which at the present day
force themselves upon the attention of every student of constitutional
history. What wonder, then, that there should have been defects in the
measure of 1791? What wonder that even eminent statesmen should have
attempted to square the circle in politics by introducing such an
incongruity as representative institutions without Executive
responsibility? Power was given to the popular branch of the Legislature
to pass measures for the public good. But, no matter how overwhelming
might be the majorities whereby such measures were passed, there was no
obligation on the other branches of the Legislature to accept or act
upon them. In the words of one of our own writers: "the Legislative
Councils, nominated by the Crown, held the Legislative Assemblies by the
throat, kept them prostrate, and paralyzed them."[29] As for the members
of the Executive Council, they were to all intents and purposes
independent of public opinion, and could override a unanimous vote of
the Assembly without incurring any responsibility whatever. By reference
to the correspondence between successive colonial Governors and the Home
Office, it appears to have been tacitly recognized by the magnates on
both sides of the Atlantic that it was unnecessary for a colonial
Executive to defer to a Parliamentary majority. The right of appointment
to office was considered to be the exclusive prerogative of the
representative of the Sovereign, and it was regarded as a badge of
colonial dependence that the people should have no voice in such
matters.
It seems to have been assumed that certain Imperial interests were
involved in this great question, and that to give way to the popular
demand would be to render the colonies free from Imperial control. What
those particular interests were which required to be protected by so
jealous and anomalous a doctrine does not appear to be anywhere
specified with precision. But nothing is more certain than that
confusion and chaos must be the inevitable outcome of any attempt to
reduce to practice such opposite principles as are involved in
Representative Government and Executive irresponsibility. Such an
attempt in England would very soon produce revolution. Such an attempt
in France did actually produce revolution in 1830, when Charles the
Tenth was deposed for his persistent endeavours to maintain an unpopular
ministry in power. No country in the world would long continue to
tolerate a Parliamentary system which was free and representative in
theory, but tyrannous and despotic in practice. Upper Canada was indeed
long-suffering, but a time arrived when it became evident that there was
a limit to her powers of endurance.
As the years rolled by, and the country steadily advanced in wealth and
population, abuses grew apace.[30] The Executive became rapacious and
tyrannical. Commanding, as they did, the entire administrative and
official influence of the Province, they ordered all things according to
their own pleasure. They could count upon the support of every member of
the Legislative Council. Indeed, through their pliant tool, the
Lieutenant-Governor for the time being, they controlled the membership
of the latter body, and took care that no man was appointed a
Legislative Councillor unless he was either one of themselves or wholly
subject to their influence. The Assembly soon found that it was
deliberately and systematically deprived of the privileges which of
right belonged to it, and that it was little better than a nullity. It
might meet and go through the form of passing such measures as it saw
fit, but if the measures so passed were not acceptable to the
Legislative and Executive Councils they were contumeliously vetoed when
they reached the Upper House. This brought the two deliberative branches
of the Legislature into direct and perpetual conflict. The Assembly,
however, in early years, was always largely made up of such men as Isaac
Swayze--subservient creatures of the Administration, who opposed their
influence to that of the tribunes of the people, and prevented any
collision between the two Houses from assuming a very serious
constitutional aspect. It was not till the third decade of the century
that the conflict assumed such a character as to threaten the
foundations of the constitution itself; and it was not till the fourth
decade that any actual attempt was made to subvert those foundations.
The Province was about fifteen years old before the inhabitants of Upper
Canada generally began to realize what an intolerable burden they had to
bear in this irresponsible Executive. Before that time some of the
better educated and more intelligent among them recognized its existence
as an evil with which they or their descendants would at some future
time be called upon to deal. But such persons were comparatively few in
number, and as the burden did not lie with special heaviness upon their
own backs, they did not feel called upon to involve themselves in what
might prove a ruinous quarrel with persons who would not tamely submit
to interference. As for the inhabitants generally, they were too busily
occupied in clearing their lands, in hewing out homes for themselves and
their families in the vast wilderness, and in reducing the soil to a
state fit for cultivation, to give themselves much concern about public
affairs. There was no newspaper press to stimulate them to enquiry. The
only sheet published in the Province which by any license of language
could be called a regular newspaper was _The Upper Canada Gazette_,
which was the official mouthpiece of the Administration. _The Canada
Constellation_, which was a quaint long folio, published at the old
capital, Niagara, had but a brief existence, and expired during the
very early years of the century. The _Upper Canada Guardian_, to be
hereafter referred to, did not come into being till 1807. Editorial
articles, except of the briefest and crudest sort, were a still later
development. The bucolic mind had no intellectual stimulant whatever
except such as was to be obtained from contact with other bucolic minds
through the medium of conversation. It was no wonder, then, that for the
first fifteen years after the creation of Upper Canada, the Provincial
Government should have been permitted to do very much as it chose,
without being subjected to any formidable criticism on the part of the
community.
The Legislative Council, as has been said, was composed of members
nominated by the Sovereign's representative. By the sixth section of the
Constitutional Act provision had been made for the creation of a
hereditary nobility, with the hereditary right of being summoned to the
Legislative Council. Happily this authority was not exercised;
otherwise, as Gourlay has remarked, "we should have seen, perhaps, the
Duke of Ontario leading in a cart of hay, my Lord Erie pitching, and Sir
Peter Superior making the rick; or perhaps his Grace might now have been
figuring as a pettifogging lawyer, his Lordship as a pedlar, and Sir
Knight, as a poor parson, starving on five thousand acres of Clergy
Reserves."[31] We were spared the spectacle of such absurdities, and
life members of the Legislative Council were the nearest approach to a
nobility vouchsafed to us. Some of the first appointees were men of
intelligence and probity, but few of those subsequently created could
with any show of truthfulness be so characterized. They were for the
most part dependants of the Government, with no fitness, educational or
otherwise, for the discharge of grave legislative functions, and with no
motive but to do the bidding of those who had clothed them with the
dignity of office. All things considered, this condition of things was
to be looked for; but the inevitable result followed. The few upright
members either died off in the course of time, and were succeeded by
sycophantic placemen, or, finding themselves outnumbered, ceased to
attend the sittings of the branch of the Legislature to which they
belonged. In one way and another, those who really wished to preserve
the public interests were weeded out, and nothing was left but a rump
devoted to the Executive will. Instead of answering the purpose for
which it was originally intended, the Legislative Council became a mere
instrument in the hands of the oligarchy for stemming back the tide of
public opinion. Instead of forming a seasonable and wholesome check upon
extravagance and inconsiderate legislation in the Lower House, it
contributed to the impoverishment of the Provincial revenue by assisting
to keep the control of public affairs in the hands of selfish and
unprincipled men. Instead of preserving the "happy balance of our
glorious Constitution"--a phrase constantly placed in the mouths of
Lieutenant-Governors, and embodied in their addresses to our Canadian
simulacrum of the House of Lords--it tended to keep the balance all on
one side, and that side was the one most prejudicial to the public good.
It became a mere stop-gap interposed by the Government between itself
and the Assembly. The Assembly passed measure after measure with careful
deliberation, only to find that their time had been thrown away, for
upon reaching the Upper House these measures were ignominously thrust
aside. One who had himself been a member of the Assembly, and who had
had personal experience of the evils whereof he wrote, has left the
following description of the manner in which Bills from the Lower
Chamber were treated in the Upper: "Sitting for a short time each day,
the Bills of the Assembly are despatched under the table with unexampled
celerity. Deputations, conveying up popular measures, no sooner have
their backs turned than the process of strangulation commences. Bills
that have undergone discussion for days in the other House, and that
have been amended and perfected with the greatest care, no sooner arrive
in their august presence than their fate is sealed."[32] He adds: "Of
those who attend to their duties, two-thirds are dependent on the
Government for either salaries or pensions. It is not harsh to say that
they become the willing tools of the hand that feeds them, instead of
looking to the interests of those from whom they indirectly derive their
support. Such gratitude may be very amiable, but it is no qualification
for an independent legislator."[33] These lines were written as late as
the year 1837, and their author informs us that within the preceding
eight years the Council had rejected no fewer than three hundred and
twenty-five Bills passed by the Assembly, being an average of more than
forty for each session[34]--a statement which is fully confirmed by
reference to the official journals of the respective Houses.
Such a method of procedure, leading to inevitable conflicts between the
two Houses, caused the public business to be impeded and the public
interests to be very inefficiently conserved. The whole administrative
system of the Province was disorganized. The contest was very unequal,
for the Government could frequently command a majority of votes in the
Assembly. The minority in that House smarted under a sense of tyranny
and injustice, and felt that they were of no weight in the body politic.
That sense of dignity which is imparted by a consciousness of
contributing to the formation of public policy and opinion was wanting.
Not only were the benefits arising from a proper organization of labour
altogether lost, but the antagonism between the two factors in political
life was so great that they to a large extent neutralized each other.
The Upper House had no weight with the people; the Lower House had no
weight with the Crown.
One of the greatest drawbacks to the country's prosperity was the method
of granting public lands. It had been the policy of Governor Simcoe to
encourage immigration from the United States, as well as from Great
Britain and continental Europe. He had offered great inducements, in the
shape of free grants of wild lands, to persons settling in Upper Canada,
and his offer had produced the expected results in the shape of a full
tide of immigrants. He had, however, exercised a rigid personal
supervision over these grants, and had done his utmost to prevent the
abuse of his bountiful regulations. His successors were less scrupulous,
and being, as has been seen, under the control of greedy and selfish
persons, they permitted the public lands to be used as means of
enriching and corrupting the favourites of the Administration. The
land-granting department was honeycombed by jobbery and corruption.
Grants of five thousand acres were made to each member of the Executive
Council, and of twelve hundred acres to each of their children. Similar
grants were made to certain favoured members of the Legislative Council
and their children.[35] Numerous other personages who could command
sufficient influence at Court obtained grants of twelve hundred acres
each. The extent of an ordinary grant was two hundred acres. From the
creation of the Province down to 1804 these donations were unattended by
any cost whatever to the grantees beyond trifling fees to the officials
for their trouble in passing the entries through the office books. The
privilege of obtaining landed estates for nothing was abused to such an
extent, however, that the Home Office interfered, and in the year last
named a scale of fees proportionate to the extent of the grant was
introduced; but U. E. Loyalists, officers, soldiers, Executive
Councillors and their children were exempt even from this trifling
burden. In 1818 the performance of certain settlement duties was imposed
upon all persons receiving grants, without any exemptions, and in after
years several other scales of fees were introduced from time to time.
The public lands were committed to the care of an official called the
Surveyor-General, and it was not until 1827 that a Commissioner of Crown
Lands was appointed. During the first thirty-five years of the
Province's history grants of land were entirely subject to the
discretion of the Governor-in-Council, not merely as to the quantity and
situation of the land itself, but also as to whether the applicant
should receive any grant at all.[36] Under such a system it was
inevitable that the grossest partiality should prevail, and it was but
seldom that any one succeeded in obtaining a grant until those in
authority had satisfied themselves that he was to be relied upon to
uphold any policy which they might see fit to dictate. Official
dignitaries granted lands to their servants and other dependants, and,
as soon as certain requisite forms had been complied with, these lands
were transferred to themselves or their children. In other cases persons
were actually hired by the month to draw land and perform the settlement
duties, after which the land was conveyed to their employers. Having the
run of the official books, these cormorants contrived in one way and
another to acquire for themselves and their creatures all the best lands
in the Province, either wholly for nothing or at a price which was
merely nominal. "The keys of office," says a writer already quoted from,
"were held by themselves or friends, and no admittance to their secrets
was allowed except to the initiated, whose favourable out-of-door
statements could be relied on. Never since the Norman invasion of
England was there such a wholesale partition of plunder."[37] Many
persons owned or controlled, directly or indirectly, entire
townships.[38] Others owned thousands of acres which they had never
seen. As the taxes imposed on unsettled lands were trifling, these
immense tracts were no appreciable expense to their owners, who could
hold them from year to year, until the progress of settlement rendered
them of immense value. Such progress was inevitable, for though these
huge reservations tended to keep back the country, settlers obtained
grants of adjoining lands, and their labours could not fail to increase
the value of all contiguous territory. The Home District, including the
most valuable portion of Upper Canada, was especially afflicted by these
wholesale reservations, but every part of the Province was more or leas
crippled by them.
The ruling faction and their favourites, not satisfied with the enormous
direct and indirect grants of lands which they managed in one way and
another to obtain, availed themselves of every opportunity to buy up
land which had been granted to persons who had expended their little all
on their properties, and had thereby become impoverished. Among these
latter were many half-pay officers and others of good birth but limited
means, who had sought homes for themselves in the Canadian wilderness.
Not a few had been compelled to sell their commissions in order to
obtain the wherewithal to settle themselves and their families on the
lands granted to them. Finding themselves cut off from society, and
ill-suited to face the privations of pioneer life, they became
discouraged, and sold their lands for whatever meagre price they could
get. The land-jobbers were ever on the alert to buy up these tracts at a
few shillings an acre, not with any intention of settling upon or
improving them, but solely for the purpose of holding them for an
increased value. The grants to the children of U. E. Loyalists were the
constant subjects of bargain and sale, and wrought great evil to the
Province without producing any corresponding benefit to the recipients.
Very few of the lots so granted were ever occupied by the grantees, most
of whom were young persons of both sexes who resided with their parents,
and had no inclination to set up for themselves in the wilderness. These
grants were frequently sold at ridiculously low prices. From two to five
pounds was an ordinary price for a lot of two hundred acres. Mr. John
Radenhurst, who was Chief Clerk in the office of the Surveyor-General
for many years, is entitled to speak on this subject with authority. In
his evidence taken before Lord Durham's Commissioner, in 1838, he states
that the general price paid by speculators for the two-hundred-acre lots
granted to sons and daughters of U. E. Loyalists was "from a gallon of
rum up to perhaps six pounds." In answer to another question, he states
that while millions of acres were granted in this way, the settlement of
the Province was not advanced, nor the advantage of the grantee secured
in the manner that may be supposed to have been contemplated by
Government. He mentions the Honourable Robert Hamilton, a member of the
Legislative Council, and the two Chief Justices, Elmsley and Powell, as
among the largest purchasers of these lands. Mr. Hamilton's acquisitions
amounted to about a hundred thousand acres.[39] Elmsley and Powell, in
addition to the five thousand acres which each of them had obtained for
nothing as members of the Executive Council, managed to acquire
quantities of land which, had they been brought together in one spot,
would have made a township of average size. Thus was monopoly
perpetuated and increased from year to year, and thus were large tracts
of the Provincial territory maintained in a state of primitive
wilderness.
Intimations of the gigantic abuses existing in the land-granting system
of Upper Canada were more than once sent across the Atlantic to the
Colonial Secretary, who instructed the Lieutenant-Governor to impose
certain regulations with a view to preventing the continuous repetition
of injustice. The Colonial Office, however, was more than three thousand
miles away, and means were easily found for evading any restrictions
imposed at such a distance. Some idea of the extent which the evil had
attained in the year 1818 may be derived from the two passages in that
very petition to the Prince Regent for which Mr. Gourlay was indicted at
Kingston and Brockville, as related in the preceding chapter. "The lands
of the Crown in Upper Canada," proceeds the petition, "are of immense
extent, not only stretching far and wide into the wilderness, but
scattered over the Province, and intermixed with private property
already cultivated. The disposal of this land is left to ministers at
home, who are palpably ignorant of existing circumstances, and to a
council of men resident in the Province, who, it is believed, have long
converted the trust reposed in them to purposes of selfishness. The
scandalous abuses in this department came some years ago to such a pitch
of monstrous magnitude that the Home ministers wisely imposed
restrictions upon the Land Council of Upper Canada. These, however, have
by no means removed the evil; and a system of patronage and favouritism,
in the disposal of the Crown Lands, still exists; altogether destructive
of moral rectitude and virtuous feeling in the management of public
affairs. Corruption, indeed, has reached such a height in this Province
that it is thought no other part of the British Empire witnesses the
like, and it is vain to look for improvement until a radical change is
effected. It matters not what characters fill situations of public trust
at present--all sink beneath the dignity of men--become vitiated and
weak, as soon as they are placed within the vortex of destruction.
Confusion on confusion has grown out of this unhappy system; and the
very lands of the Crown, the giving away of which has created such
mischief and iniquity, have ultimately come to little value from abuse.
The poor subjects of His Majesty, driven from home by distress, to whom
portions of land are granted, can now find in the grant no benefit; and
Loyalists of the United Empire--the descendants of those who sacrificed
their all in America in behalf of British rule--men whose names were
ordered on record for their virtuous adherence to your Royal Father--the
descendants of these men find now no favour in their destined rewards;
nay, these rewards, when granted, have in many cases been rendered worse
than nothing, for the legal rights in the enjoyment of them have been
held at nought; their land has been rendered unsaleable, and, in some
cases, only a source of distraction and care. Under this system of
internal management, and weakened from other evil influences, Upper
Canada now pines in comparative decay; discontent and poverty are
experienced in a land supremely blessed with the gifts of nature; dread
of arbitrary power wars, here, against the free exercise of reason and
manly sentiment; laws have been set aside; legislators have come into
derision; and contempt from the mother-country seems fast gathering
strength to disunite the people of Canada from their friends at home."
Notwithstanding these long, involved, awkwardly-constructed sentences,
there is no more accurate picture to be found anywhere of the effect of
the pernicious administration of affairs in the Public Lands Office at
York in 1818. Twenty years later Lord Durham found it not much
improved.[40]
Another hydra-headed monster which ate into the very vitals of the
commonwealth was the provision for the clergy, known as the Clergy
Reserves. This was perhaps the greatest of all the curses imposed upon
Upper Canada by the Constitutional Act, for its ill effects were both
direct and incidental. It not only tended to stop the march of progress,
but it created a degree of sectarian animosity and hatred little
calculated to inspire respect for Christianity in the breasts of the
secular portion of the community, and it disturbed the public
tranquillity for nearly two generations.
By the thirty-sixth section of the Act of 1791, power was given to
reserve out of all future grants of land in Upper and Lower Canada, as
well as in respect of all past grants, an allotment for the support of
"a Protestant Clergy." It was provided that this allotment should be
"equal in value to the seventh part of the lands so granted." By the
thirty-seventh section, the rents, profits and emoluments arising from
the lands so appropriated were to be applicable solely to the
maintenance and support of a Protestant Clergy. By subsequent sections
provision was made for the erection and endowment by the
Lieutenant-Governor, under instructions from the Crown, of parsonages or
rectories, one or more in every township or parish, according to the
establishment of the Church of England, and for the presentation of
incumbents, subject to the bishop's right of institution. By section
forty-two it was enacted that no Provincial statute varying or repealing
these provisions should receive the royal assent until thirty days after
it had been laid before both Houses of Parliament in Great Britain.
These famous enactments were destined to produce more discord and
heartburning than all the other clauses of the Constitutional Act
combined. They were destined to make the Church of England more
cordially detested in this Province by persons without the pale of her
communion than she has ever been in any other part of the world. They
were destined to set one Legislative faction against another in such
fierce array that the public business frequently had to be suspended.
They were destined to divide the Provincial population into two hostile
camps, each filled with envy, malice and all uncharitableness towards
the other. They were destined to be the key-note of general elections,
and to shape the policy of successive Administrations. They were
destined to be the chief factor in bringing about a Rebellion which for
a time seriously disturbed the industries of the Province; which filled
the Provincial jails with suffering prisoners; which consigned a number
of persons to a premature and ignominous death; which brought sorrow
and ruin to many a once happy fireside; which bequeathed a legacy of
hatred to the children of those who took part in it; and which seriously
disturbed the international amity between Great Britain and the United
States.
It may be doubted whether all the ill effects of these appropriations
were foreseen by their promoters in the early years of our history. It
was at all events some time before those effects began to be apparent to
the people generally. In making the appropriations, care was taken that
the reserved lands should be intermixed with grants to actual settlers,
whereby they were spread over a large area; the manifest intention being
to increase their value by their proximity to cultivated farms, and at
the same time to create a tenantry in the settled townships, with a view
to the creation of parishes and the endowment of rectories. In several
portions of the Province, however, it was impossible to follow this
plan. Much of the Niagara peninsula had been granted to Butler's Rangers
before the passing of the Constitutional Act. In like manner, certain
townships along the north bank of the St. Lawrence, as well as several
portions of the Western District, had been granted to other United
Empire Loyalists. In none of these cases had any reservations been made,
and the lands had already become vested in the grantees. The
appropriators accordingly set apart large tracts of aggregated
reservations in contiguous townships which were yet unsettled. The
prejudicial results soon began to appear. Huge tracts of reserves
interposed themselves between one settler and another, enhancing the
difficulties of communication and transportation, and hindering or
altogether preventing that cooeperation of labour which is essential to
the prosperity of pioneer settlements. The inhabitants, instead of being
drawn together, were isolated from one another, and combination for
municipal or other public purposes was rendered all but impracticable.
They were kept remote from a market for the sale of their produce, cut
off from the privileges of public worship and public education for their
children; deprived, in a word, of the blessings of civilization.
Settlement was seriously obstructed, and the industrious immigrant was
to a great extent paralyzed by his surroundings.
The evils arising out of these Clergy Reserves were intensified by the
unfair and illegal manner in which the appropriations were made. It has
been seen that by the Act of 1791 the land reserved for the clergy was
to be equal to one-seventh of all grants made by the Crown. One-seventh
of all grants would obviously be one-eighth of the whole. Yet, instead
of acting on this self-evident proposition, it was the practice of those
to whom the duty of reservation was entrusted to set apart for the
clergy one-seventh of _all_ the land, which was equal to a sixth of the
land granted. The surplus thus unjustly appropriated on behalf of the
clergy had in 1838 footed up to a total of three hundred thousand acres.
The excess was confined to about two-thirds of the surveyed townships,
from which circumstance, as well as from the obvious construction of the
statute, it is to be inferred that the excessive reservations were made
deliberately, and not from mere oversight or inadvertence.[41]
As the Province increased in population, and as land advanced in value,
the grievance became more and more manifest. The growl of discontent
began to be heard, and the people began to combine against the
intolerable evil. This, at first, was chiefly due to the purely secular
reasons above indicated. By degrees, however, the sectarian element was
developed, and the growl of discontent became a roar of opposition. A
dominant church was not acceptable to the Dissenters[42] who composed
the bulk of the population; yet it was contended by those in
authority--all of whom were Episcopalians--that the Clergy Reserves were
the exclusive domain of the Church of England. It must be conceded that
there was some ground for this contention, and that the question was not
quite free from doubt. The Act authorizing the setting apart of the
Reserves had appropriated them for the maintenance and support of "a
Protestant Clergy." The word "clergy" was not commonly applied in those
days to dissenting ministers of religion. It had never been used in any
English statute to designate any ministers except those of the Church of
Rome and the Church of England. The Church of Rome being excluded by the
term "Protestant," it was contended that the provision had been for the
exclusive benefit of the Church of England, more especially as the
creation and endowment of parsonages and rectories--which are
institutions peculiar to the Church of England--had been expressly
provided for by the same Act. Such was the plea put forward on behalf of
the Church of England. Dissenters took a different view. They argued
that the term "Protestant Clergy" had been used in the Act in mere
contradistinction to the clergy of the Church of Rome. They further
urged that the limited construction sought to be put upon the term by
the Anglicans was plainly negatived by the thirty-ninth section of the
Act, wherein the words "incumbent or minister of the Church of England"
were expressly employed. Such terms, it was said, would not have been
used by the framers of the Act if they had regarded them as synonymous
with "Protestant Clergy," as used in other clauses. "The manifest
intention of the Act," said the Dissenters, "was to provide for a
_Protestant_--as distinguished from a _Roman Catholic_--clergy. The
provision for the establishment of parsonages and rectories is a mere
matter of detail, which cannot be allowed to override the larger
intention so plainly evidenced by other sections." The Presbyterian
body took higher ground than their non-Anglican brethren. The Church of
Scotland had been expressly recognized as a Protestant Church by the Act
of Union of England and Scotland in 1707. It was therefore contended
that the ministers of that church were entitled to be considered as
"Protestant Clergy;" and this contention was sustained by the English
law officers of the Crown in 1819. The opinion expressed by those
learned officials was acted upon, and the Presbyterians of Upper Canada
put forward claims to a share of the Reserves. Their claims were
allowed; whereupon other Protestant denominations followed their
example, and demanded, as "Protestant Clergy," to participate in the
provision made for them. The private and public quarrels which ensued
between leaders of the different sects kept the country in a state of
chronic disturbance; while the greed displayed by professed ministers of
religion furnished a striking practical commentary upon the doctrines
taught by the Founder of all Christian faiths. Opinions were obtained
from eminent lawyers as to the respective rights of the various sects,
and as to the true meaning of the Constitutional Act. The most opposite
conclusions were arrived at by different lawyers, and it became manifest
that no apportionment satisfactory to all the claimants could be made by
any tribunal. The Church of England meanwhile contrived to secure the
great bulk of the spoils. According to a return to the House of Assembly
of lands set apart as glebes in Upper Canada during the forty-six years
from 1787 to 1833, it appears that 22,345 acres were so set apart for
the Clergy of the Church of England, 1160 acres for Ministers of the
Kirk of Scotland, 400 for Roman Catholics, and "none for any other
denomination of Christians."[43]
But there was a broader and stronger argument than any of these purely
technical contentions: an argument founded on experience and practical
utility. No matter what had been the intent of the original framers of
the Constitutional Act, the fact had become patent to all Dissenters,
and even to many liberal-minded lay members of the Anglican Church, that
the Clergy Reserves were a curse to the Province--a mill-stone about her
neck, which dragged her down in spite of all exertions to raise her to
the surface. Not long after this fact had become generally recognized,
an agitation arose in favour of the total abolition of State aid to
religious bodies. The plan advocated by Reformers was the sale of the
Reserves, and the application of the proceeds to public education and
municipal improvements. The agitation was kept up until long after the
period covered by this work, and the object sought to be attained by it
was not fully accomplished until the year 1854. Meanwhile, however, it
was the most important question before the country, and it occupied the
attention of the Legislature during a large part of almost every
session. Here was where the conflict between the two Houses was felt
with most pernicious effect. The advocates of abolition and
secularization clearly had the country with them, and the Assembly
passed Bill after Bill to effect those objects. Their efforts were
utterly nullified by the Upper House, which would not listen to any such
proposals, and which threw out as many Bills relating to this important
subject as the Assembly thought proper to send up for its consideration.
Such were the merits of the long and fiercely-contested question of the
Clergy Reserves.
Another serious obstacle to Upper Canadian prosperity was the continual
interference of the Colonial Office in our domestic concerns. Bills
passed by the Provincial Legislature for the regulation of our own
internal affairs were disallowed with vexatious frequency, and
sometimes, apparently, from mere caprice. Sometimes the irresponsible
Executive, unwilling that their obedient servants in the Upper House
should incur popular odium by opposing the will of the Assembly,
permitted Bills to pass both Houses, and then, through their tool the
Lieutenant-Governor, had these identical measures disallowed. Advice,
the compliance with which could not fail to be prejudicial to the
interests of the colony, was also sent across the Atlantic through the
Lieutenant-Governor, to whom it came back by return post in the shape of
Imperial instructions to be acted upon. The Colonial Minister, whoever
he might for the time happen to be, knew little and cared little about
the British North American colonies, and did not generally concern
himself with despatches to colonial Governors any further than to sign
his name to them. He was thus the unconscious means of furthering
Executive tyranny, and to some extent of alienating the loyalty of the
colonists.
Among other drawbacks, sufficiently serious in themselves and in their
ulterior consequences, but of minor importance when compared with the
all-permeating grievances already referred to, may be mentioned the
quartering of military men upon the colony in the capacity of
Lieutenant-Governors; the unequal representation of the people in the
Assembly; the exorbitant salaries of certain public officials; the union
of judicial and legislative functions in the same persons; the
appointment of judges, sheriffs, magistrates, and other officials during
the pleasure of the Executive, and not during good behaviour.
The evils attendant upon placing the local administration of the
colonies in the hands of military officers, who were inexperienced in
constitutional government, and unfitted by training for such duties as
were demanded of them, have already been glanced at.[44] Such persons
naturally enough found themselves altogether out of their proper element
upon their arrival in the colony, and looked to the Executive
Councillors for advice and instruction. That they should follow the
instruction received, and that they should surrender themselves to the
judgment of those enemies of the public weal, followed almost as a
matter of course. In this way the strength of the oligarchy was
consolidated and enlarged, and its members rendered more and more
independent of public opinion. All that can be urged on behalf of the
Home Ministry, by way of excuse for committing the direction of our
affairs to such persons, is that the position of Lieutenant-Governor of
Upper Canada was not a sufficient inducement to make it sought after by
really capable men. The office, in at least one instance to be hereafter
recorded, went a-begging.
Unequal representation was a fruitful source of discontent, though Upper
Canada was no worse off in that respect than the mother-country prior to
the passing of the Reform Bill of 1832. For years before the Rebellion,
the little district towns of Niagara, Brockville and Cornwall each
enjoyed the privilege of sending a representative to the Assembly. All
three of them were notoriously rotten boroughs--as rotten as Gatton,
Grampound or Old Sarum--and always returned Tory members prepared to do
the bidding of the Executive. By such means was the Assembly corrupted,
and the elective franchise turned into an instrument of oppression. Some
of the salaries of public officials were altogether out of proportion
to the state of the revenue, and to the nature and extent of the duties
performed. Certain highly-paid offices were the merest sinecures, and
had been created for no other purpose than to provide for serviceable
tools of the Administration. The practice of permitting judges to sit
and vote in the Legislature needs no comment. Whatever justification
there might have been for such a union of functions in the first infancy
of the Province, when educated men were few in the land, there was
certainly none in the days when Chief Justice Robinson was Speaker of
the Legislative Council. The effect of making the tenure of office of
judges and other dignitaries dependent on the will of the Executive was
such as has attended upon such a system in all countries where it has
been in vogue. The officials were selected almost entirely from one
political party, and had always an eye upon the nod of their
taskmasters, who had the power to make or unmake them. Whenever it was
desirable, in the supposed interests of the Executive, that the
authority of the courts should be strained to the perversion of
judgment, the dispensing of even-handed justice was altogether a
secondary consideration. Mr. Gourlay's case, to say nothing of that of
Bartemus Ferguson, affords a sufficient illustration of the extent to
which the traditions of the Star Chamber were revived in Upper Canadian
practice, when it was thought desirable to crush a champion of popular
liberty and equal rights.
Such were a few of the burdens which the people of Upper Canada were
compelled to bear in the by-gone epoch when tyranny reigned supreme
throughout the Province: when
"the law's delay,
The insolence of office, and the spurns
That patient merit of the unworthy takes,"
were the all too frequent portion of such of the inhabitants as dared to
call in question the righteousness of existing ordinances. There was a
further intolerable grievance which was closely bound up with, and
which, so to speak, grew out of or sustained all the rest: which
comprehended within itself all the evils affecting the body politic, and
which left traces of its existence that have survived down to the
present time. This was the Family Compact--a phrase which is in
everybody's mouth, but the significance whereof, I venture to think, is
in general but imperfectly understood. The subject deserves a chapter to
itself.
FOOTNOTES:
[24] Being somewhat doubtful as to the truth of this oft-repeated story,
I have taken the trouble to consult the records in the Crown Lands
Office, where I find that Mr. Russell on several occasions made grants
of land to himself. Among other such grants I may mention lot number
twenty-two, in the third concession of the township of York, which was
made on the 16th of July, 1797. See Liber A., folio 382, Provincial
Registry Office. He also granted various tracts of land to his sister,
Miss Elizabeth Russell, the first of which bears date the 15th of
December, 1796. See Liber B., folio 334. So that the President appears
to have begun to "do good unto himself" and his family before he had
been three months in office as Administrator of the Government. Further
investigation would doubtless prove that he kept up the practice until
the arrival of Governor Hunter.
[25] See his speech at the close of the first session of the First
Parliament of Upper Canada, on the 15th of October, 1792.
[26] The property qualification for a voter was, in counties, the
possession of lands or tenements of the yearly value of forty shillings
sterling or upwards, over and above all rents and charges; and in towns
or townships, the possession of a dwelling house and lot of the yearly
value of five pounds sterling or upwards, or the having been a resident
for twelve months, and the having paid a year's rent at the rate of ten
pounds sterling or upwards. See the twentieth section of the
Constitutional Act.
[27] The latter part of this clause has no application to Brock, who was
made of manlier stuff. Brock, however, was not Lieutenant-Governor, but
merely Provisional Administrator of the Province.
[28] _Report on the Affairs of British North America_, English folio
edition, p. 29.
[29] _The Constitutional History of Canada_, by Samuel James Watson,
Vol. I., p. 128.
[30] The abuses specified in the present chapter were not confined to
Upper Canada. They existed, with certain local variations, throughout
all the British North American colonies, and produced similar results in
each; viz., ever-recurring conflicts between the Executive and the
popular branch of the Legislature, followed by more or less alienation
of loyalty to the mother country on the part of the more radical element
in the community. In the Maritime Provinces the alienation was not
sufficiently widespread to manifest itself in actual rebellion, though
the conflict between the oligarchy and the popular tribunes sometimes
produced a very disturbed state of feeling. In Lower Canada, where the
element of race-hatred was added to all other sources of disturbance,
the conflict attained an intensity far beyond what was reached in any of
the other colonies, and left traces behind it which are not even yet
wholly obliterated.
[31] _Statistical Account_, Vol. II., p. 296.
[32] _Canadiana_, by W. B. Wells, p. 103.
[33] Ib.
[34] Ib., p. 104.
[35] These grants of five thousand acres to members of the Executive
Council were in direct violation of the instructions framed by the Home
Government for the regulation of land-granting in Upper Canada. They
continued to be made down to 1807, when they were stopped by a
peremptory order to that effect from the Colonial Secretary. There is
one instance on record of a reserve being applied for and made on behalf
of the child of a member of the Legislative Council, though the child
was not three days old. See the evidence of John Radenhurst, Chief Clerk
in the office of the Surveyor-General, in Appendix B. to Lord Durham's
_Report on the Affairs of British North America_.
[36] Most of these facts with reference to the granting of public lands
may be obtained from the archives of the Crown Lands Office in Toronto,
and from the newspapers and official reports of the period. They may
also be found, together with a vast accumulation of other important
facts bearing on the same subject, in Charles Buller's Report on Public
Lands and Emigration, forming Appendix B. to Lord Durham's _Report on
the Affairs of British North America_.
[37] _Canadiana_, p. 130.
[38] In 1796 or thereabouts the Executive offered to grant entire
townships to persons who would undertake to settle them with a certain
number of colonists within a specified time. The number of colonists
required was made proportionate to the extent of territory to be
settled. This offer was taken advantage of by ten different individuals.
The grants were not actually made, but the respective townships were
allocated in the official books to the various persons concerned. Upon
the faith of the pledge of the Executive, several of the ten assignees
proceeded to carry out the conditions imposed. Among them was Mr.
William Berczy, who, having obtained an assignment of the township of
Markham, went to great expense in bringing over a number of German
families, whom he settled according to the conditions of the
contemplated grant. After he had spent a sum of money variously stated
at from twenty to thirty thousand pounds sterling, the Executive coolly
announced that they had determined to abandon the township system, and
that they did not even intend to carry out the grants to those who had
complied with the conditions. The compensation offered for this
unparalleled breach of faith was a grant of twelve hundred acres to each
assignee. Nine of the individuals concerned assented to those terms, but
Mr. Berczy refused to accept any such inadequate recompense, and he
remained for the rest of his life a ruined man. He shook the dust of
Upper Canada from his feet, and took up his abode in Montreal, whence he
subsequently repaired to New York, where he died in the year 1813.
[39] See Appendix B. to Lord Durham's _Report_, folio edition, p. 99.
Mr. Charles Rankin, Deputy-Surveyor in the Western District, in his
evidence before the Commission (_ib._ pp. 120, 121), says:--"The system
of making large grants to individuals who had no intention of settling
them has tended to retard the prosperity of the colony by separating the
actual settlers, and rendering it so much more difficult, and in some
cases impossible, for them to make the necessary roads. It has also made
the markets more distant and more precarious. To such an extent have
these difficulties been experienced as to occasion the abandonment of
settlements which had been formed. I may mention, as an instance of
this, the township of Rama, where after a trial of three years, the
settlers were compelled to abandon their improvements. It should be
noticed that the settlers in this instance were not of a class fitted to
encounter the privations of the wilderness, being half-pay officers. In
the township of St. Vincent almost all the most valuable settlers have
left their farms from the same cause, the townships of Nottawasaga and
Collingwood, the whole of the land in which had been granted, and which
are almost entirely unsettled (Collingwood, I believe, has only one
settler), intervening between them and the settled township, and
rendering communication impossible. There have been numerous instances
in which, though the settlement has not been altogether abandoned, the
most valuable settlers, after unavailing struggles of several years with
the difficulties which I have described, have left their farms." This
witness further states his belief that nine-tenths of the lands in the
Western District were still--in 1838--in a state of wilderness.
[40] See his _Report, passim_; also see the portion of Appendix B.
relating to Upper Canada.
[41] See the Special Report of Mr. R. Davies Hanson, Assistant
Commissioner of Crown Lands and Emigration, forming the commencement of
Appendix A. to Lord Durham's _Report on the Affairs of British North
America_.
[42] I use this word for want of a better, though it is not strictly
accurate as applied to Upper Canada, where there were no clearly
prescribed standards of religious faith from which non-supporters of
Episcopacy could be said to dissent. The word "Nonconformist" is
objectionable for a similar reason.
[43] See _Seventh Grievance Committee's Report_, p. 164.
[44] _Ante_, p. 51.
CHAPTER III.
THE FAMILY COMPACT.
What was the nature and origin of this powerful organization--this
informally-constituted league, the name whereof has been familiar to the
ears of Upper Canadians during the whole, or nearly the whole, of the
present century; which is referred to in nearly all books dealing with
the political and social life of this Province before the Union of 1841;
which for forty years regulated the public policy of the colony, and
ruled with an iron hand over the liberties of the inhabitants?
Immediately after the ratification of the Treaty of Paris, in 1763,
whereby Canada was ceded by France to Great Britain, it became necessary
for the British Government to appoint a considerable number of officials
to fill the public offices in the country so ceded. It did not suit the
policy of the conquerors to leave much power in the hands of the
conquered. The introduction of the English language and laws was
moreover a practical disqualification for most of the native inhabitants
of the colony, and the new officials were nearly all sent over from
England. Some of the principal personages among them were men of probity
and brains. Others, though possessed of a full share of brains, had but
a younger brother's portion of the other commodity. The underlings,
generally speaking, had but a slender allowance of either. They were for
the most part appointed on the recommendation of various supporters of
the Government of the day, who were thus able to provide for a number of
their needy relatives and dependants--a matter of vastly greater
importance in their eyes than the proper administration of the affairs
of a distant and newly-acquired colony. The Conquest thus proved a boon
to many servile hangers-on of public men in Great Britain, and scores of
the waifs and strays of British aristocracy began to turn their eyes
towards Canada as a possible resource in the last emergency. It was said
to be a cold and comfortless land, but it was surely preferable to the
Fleet Prison or the Marshalsea, with the alternative of starvation or
enlistment in the army. Many of these pimps and panders to the whims or
the passions of those in high station found their way to Quebec and
Montreal, and were provided for at the public expense by being installed
in places of greater or less emolument.[45]
When Upper Canada was set apart as a separate Province, in 1791, the
field of operations was considerably extended. Indeed, the Upper
Province soon came to be regarded with special favour by intending
aspirants to office, as it was in all respects an English colony;
whereas Lower Canada, in spite of all attempts to Anglicize it, remained
much more French than English. Lower Canada, indeed, remained in some
respects more French than any other part of the world, not even
excepting France itself, for in that country the Great Revolution had
swept away many effete institutions which were still retained in all
their decrepitude among the Frenchmen of the New World. Now, the French
Canadians, though most of the avenues to power and office were closed to
them, composed a vast majority of the population. They did not take
kindly to the British colonists, and declined to fraternize with them.
The latter could bear this isolation, as they were comforted by the
spoils of office, but their lives were rendered much less agreeable than
they would have been in a colony where no such disturbing elements were
known. Upper Canada was precisely such a colony. No part of Britain was
more British in sentiment. In no part of the world would an expatriated
Englishman find himself more entirely in harmony with his environment,
from a purely patriotic point of view. What wonder, then, that Upper
Canada was regarded by place-hunting emigrants from England with
wistful eyes? What wonder that an appointment to a public office in
Upper Canada should have been regarded by such persons as a thing
greatly to be coveted? Such aspirants were regarded with but little
favour by Governor Simcoe. His great object was to launch the Province
successfully on its career, and to lay the foundations of good
government. He brought with him his own staff, selected by himself with
a single eye to their fitness for the positions which they were
respectively intended to fill. During his day there was little or no
favouritism in public appointments, and but little, if anything, to find
fault with in the conduct of the administration. His demission of office
was almost immediately followed by a relaxation of discipline, and by a
looseness in the management of the public business. As the years passed
by, the Province became the resort of numerous office-seekers from
beyond sea--half-pay officers and scions of good English, Scotch and
Irish families, who sought to better their fortunes by expatriation. As
they were, generally speaking, men of some education, and of manners
more polished than were ordinarily found among the colonists, they
naturally assimilated, and were drawn towards each other. They likewise
coalesced, to some extent, with a few United Empire Loyalist families of
exclusive pretensions, in whose veins the blood was supposed to possess
an exceptionally cerulean tint. Several persons who had rapidly gained
wealth by trade and speculation, and who had thereby acquired influence
in the community, were also admitted. In an inconceivably short space of
time this union of several influential cliques was followed by important
results. They acquired a strength and influence which, in the then
primitive state of the colony, carried all before them. They wormed
themselves into all the more important offices, directed the Councils of
the Sovereign's representative, and, in a word, became the power behind
the Throne. In the early years of their domination they organized their
forces with much tact and judgment, and did not develop their plans
until they had been carefully matured. They may be said to have
practically absorbed the Executive and Legislative Councils, as those
bodies were entirely made up of persons either selected from among them
or entirely subservient to their influence. No man, whatever his
abilities, could hope to succeed in any profession or calling in Upper
Canada if he dared to declare himself in opposition to them. A few made
the attempt, and failed most signally.
Such was the Family Compact. "For a long time," says Lord Durham,[46]
writing in 1838, "this body of men, receiving at times accessions to its
members, possessed almost all the highest public offices, by means of
which, and of its influence in the Executive Council, it wielded all the
powers of Government; it maintained influence in the Legislature by
means of its predominance in the Legislative Council; and it disposed of
the large number of petty posts which are in the patronage of the
Government all over the Province. Successive Governors, as they came in
their turn, are said to have either submitted quietly to its influence,
or, after a short and unavailing struggle, to have yielded to this
well-organized party the conduct of affairs. The bench, the magistracy,
the high offices of the Episcopal Church, and a great part of the legal
profession, are filled by the adherents of this party: by grant or
purchase they have acquired nearly the whole of the waste lands of the
Province; they are all-powerful in the chartered banks, and, till
lately, shared among themselves almost exclusively all offices of trust
and profit."
The influences which produced the Family Compact were not confined to
Upper Canada. In the Lower Province, as well as in Nova Scotia and New
Brunswick, similar causes led to similar results, and the term "Family
Compact" has at one time or another been a familiar one in all the
British North American colonies. But in none of them did the
organization attain to such a plenitude of power as in this Province,
and in none of them did it wield the sceptre of authority with so
thorough an indifference to the principles of right and wrong. Its name
is a rather indefinite, but not inapt characterization. Lord Durham
refers to the term "Family Compact," as being not much more appropriate
than party designations usually are; "inasmuch as," he writes, "there
is, in truth, very little of family connexion among the persons thus
united.[47]" "Much" is a saving clause, but if his Lordship had thought
it worth his while to enquire minutely into the relations subsisting
between the members of this body, he would have found that there had
been a good many intermarriages between them, and that the pecuniary
interests which bound them together had been welded by the most powerful
of social bonds.[48] The designation "Family Compact," however, did not
owe its origin to any combination of North American colonists, but was
borrowed from the diplomatic history of Europe. By the treaty signed at
Paris on the 15th of August, 1761, by representatives on behalf of
France and Spain, the contracting parties agreed to guarantee each
other's territories, to provide mutual succours by sea and land, and to
consider the enemy of either as the enemy of both. This treaty, being
contracted between the two branches of the House of Bourbon, is known to
history as the Family Compact Treaty, and the name was adopted in the
Canadas, as well as in the Maritime Provinces, to designate the
combination which enjoyed a monopoly of power and place in the
community, and among the members whereof there seemed to be a perfect,
if unexpressed, understanding, that they were to make common cause
against any and all persons who might attempt to diminish or destroy
their influence.
The members of the Family Compact, with very few exceptions, were
members of the Church of England, which, owing to the before-mentioned
provisions in the Constitutional Act, they regarded as the State Church
of Upper Canada, established by law, and entitled to the special
veneration of the inhabitants. They accounted all persons as members of
the Church of England who were not actual members of some other
religious body, and in enumerating the people for statistical purposes
they sometimes even went so far as to include the infant children of
Dissenters as Episcopalians. They sought to defend the alleged
establishment of a State Church in Canada by arguments which it is
astonishing to think that men of education and intelligence should ever
have stooped to employ. "There should be in every Christian country an
established religion," said Dr. Strachan, in his evidence before the
Select Committee on Grievances, in 1835, "otherwise it is not a
Christian but an infidel country."[49] According to their theory, one of
the principal ends of the Government of Upper Canada was the propagation
of religious truth as set forth in the doctrines of the Church of
England. True, the arguments on the subject were not so well understood
then as now. Mr. Gladstone's little volume on "The State in its
Relations with the Church," and Macaulay's answer thereto in the
_Edinburgh Review_, had not then been published. But some of the most
conclusive arguments adduced by Macaulay were as old as the world
itself; and even Mr. Gladstone, in all his youthful exuberance, did not
venture to take so preposterous a stand as was assumed by the upholders
of a State Church in this Province. Their bigotry and intolerance were
utterly out of keeping with the times in which they lived, and were
better suited to the days of Archbishop Laud or Sir Robert Filmer. Of
that heaven-born charity which suffereth long, and is kind; which
vaunteth not itself, and is not puffed up; which seeketh not her own,
and is not easily provoked; which thinketh no evil; which rejoiceth not
in iniquity, but rejoiceth in the truth; which beareth all things,
believeth all things, endureth all things--of the spirit which impels to
such a state of mind as this, we find few traces in the lives and
writings of the upholders of State-Churchism in Upper Canada in those
days. We find, on the contrary, much unkindness, much vaunting of
themselves, much selfish conceit, much seeking, not only of their own,
but of that which of right belonged to their neighbours. The champions
of ecclesiastical monopoly were easily provoked to anger, and to
thinking and speaking all manner of evil of those who differed from them
as to the distribution of the Clergy Reserves. Roman Catholicism they
contemplated with a certain amount of toleration, as the Roman Catholic
hierarchy yielded the Government an unwavering support in return for the
freedom and privileges which they enjoyed. But their toleration was not
broad enough to cover any other form of religious belief. Dissent, in
all its multiform phases, they looked upon with mingled abhorrence and
contempt--as a thing to be shunned and tabooed by all right-minded
persons. Dissenting ministers of religion were regarded as "low
fellows," whom it was no sin to persecute, and, if possible, drive out
of the country. Comparatively few of the latter were permitted to
solemnize matrimony during the first forty years of the Province's
history. By the statute 38 George III., chapter 4, passed in 1798, the
privilege of doing so was accorded to ministers of "The Church of
Scotland, or Lutherans or Calvinists;" but it was hedged about with
cumbrous restrictions which must have been felt as humiliating and
unnecessary. No person was to be regarded as a minister under the Act
until he had appeared before the Justices of the Peace in Quarter
Sessions, and had produced satisfactory credentials of his ordination.
He was also compelled to take the oath of allegiance. Even after
complying with all formalities, his functions were restricted to cases
where one or both of the parties to be joined together belonged to his
own religious society. Ministers of other denominations, including those
of the Methodist body, which was the most numerous religious community
in the Province, were not allowed the privilege of solemnizing marriage
rites till the year 1831. The ignominous disqualification was removed
by the statute 11 George IV., chapter 36, which was passed in 1830, but
which did not receive the royal assent until the following year. A
similar measure had repeatedly been passed by the Assembly in former
sessions, but had as often been rejected by the Upper House. Before the
law was finally and equitably settled as above mentioned, several
ministers of religion had been tried and banished from the Province for
having ventured to solemnize matrimony without legal authority. It is
said that in one case where a minister was tried on a charge of this
kind, the accused protested against his sentence, alleging that the
Chief Justice, who presided at the trial, had himself sanctioned the
performance of the ceremony. The Chief Justice, being called upon to
descend from the judgment seat and give evidence as to this fact,
declined to do so; but he afterwards procured a pardon for the
prisoner.[50]
The Compact always contained within its ranks a few persons of more than
average ability. Some of them doubtless believed that the course pursued
by their organization was for the advantage of the colony, though,
reasoning by the light of present knowledge, it is difficult to
comprehend how men of even moderate perspicacity and judgment could have
brought themselves to such a conclusion. It was, however, inevitable
that persons of such narrow and contracted views--persons to whom self
and pelf were the mainsprings of life--should degenerate, mentally as
well as morally. The persons composing the second generation were, with
very few exceptions, striking illustrations of the doctrine of the
descent of man. Their sires had been men of energy and force of
character. They themselves were--to borrow a phrase from the acting
drama--the mere walking gentlemen of the colony. The sires had
originated a bold and determined policy, and had from first to last
pursued it with consistent vigour. The sons had neither brains to
conceive nor discretion to carry out the conceptions of others. The
sires had been persons whom it had been possible for the commonalty to
respect. The sons were persons whom it was impossible not to despise.
Surely a more superlatively commonplace and contemptible race of human
beings has seldom been seen on the earth than four-fifths of the second
generation of this bastard aristocracy of Upper Canada. It bore no
resemblance to any other aristocracy whereof history has preserved any
record. The old Roman commonalty, while they groaned beneath the iron
heel of tyranny, were one and all conscious of a secret pride in their
imperial oppressors. For the Roman aristocracy was an aristocracy of
nature. The Roman patricians made foreign rulers to crouch and tremble
at the name of Rome. Their triumphs were the triumphs of the nation.
Caius of Corioli, Furius Camillus, Titus Capitolinus, were names the
mere utterance of which stirred the Roman blood like the blast of a
trumpet. For many a long year after one haughty dictator had slept his
last sleep beneath the walls of Praeneste, and after another had taken
his final plunge beneath the yellow Tiber or from the Tarpeian rock,
their exploits furnished themes for tale and song around the Roman
camp-fires. These puissant representatives of the dominant class had
shown little sympathy for the plebeians, upon whom they had looked down
from a lofty height, and towards whom they had ever borne themselves
with haughtiness and disdain. But their pride was a something to be
tolerated by Romans of every degree, for they had achieved much glory
for the Roman name. In the words of one who has interpreted the
sentiment of those times with rare felicity, Rome could bear the pride
of him of whom herself was proud. The old French noblesse, again, were
not devoid of redeeming qualities. Their galling yoke would not have
been borne from reign to reign, and through century after century, even
by such seeming reconcilables as constituted the bulk of the French
populace during the ante-Revolutionary period, if they had all been like
the wicked St. Evremonde of Mr. Dickens's tragic story. As a class, they
had a subtle French grace about them which rendered their most grievous
exactions less hard to bear than were the exactions of their eastern
neighbours. They were an unmistakable _haute noblesse_, ever polished
and dignified. Some of them, like Philippe Egalite, had the cunning,
when the time of trial arrived, to bend to the popular storm, and even
to affect a zeal for citizenship. Comparatively few of them were at once
_blase_ and brainless. It may be doubted if a single one of them
combined--as did many of the rank and file of the second generation of
the Family Compact of Upper Canada--the pretensions of an aristocrat
with the sentiments of a boor and the intellectual development of a
child. Yet further. The feeling of veneration with which the English
commonalty have for centuries regarded the House of Lords is easy enough
to understand. That feeling seems to be rapidly passing away, if,
indeed, it has not already departed. But it would not have endured from
the time of the Plantagenets to the time of Queen Victoria if it had not
had some substantial foundation to rest upon. The House of Lords has
always contained a number of men of high integrity and ability. Take it
for all and all, it is probably the most just-minded and intellectual
aristocratic assembly the world has ever seen. This may not be very high
praise, but it may at least be taken for what it is worth. Its
individual members are seldom brought sufficiently near to the lower
order of the commonalty to enable the latter to detect their weaknesses.
Their wealth, prestige and social position give them a vast influence,
while at the same time their legislative powers are held in check by the
direct representatives of the people. Most of these conditions were
directly reversed in Upper Canada, where the members of the dominant
faction were brought into the closest relations with the people
generally, insomuch that their many deficiencies could not be concealed.
Such wealth as they had they were too often known to have obtained at
the expense of the rest of the community. The Lower House formed no
efficacious check upon them, for they either managed to return a
sufficient number of their tools to control the vote in that body, or
else they rendered the Assembly's operations of no avail by means of
their influence in the Legislative Council. They had none of the
graceful suavity of the Lower Canadian seigneurs. Nor could they boast
of the superiority derived from a liberal education. Many of them--even
including some of those who held high public offices--were so illiterate
that they were unable to write a simple business letter without
committing errors of orthography of which any one but Artemus Ward or
Jeames de la Pluche might well feel ashamed.
Nearly all the leading spirits of this strangely-assorted oligarchy were
either wealthy or on the direct road to wealth. Being comfortably
provided for at the public cost, in the form of fat offices or wild
lands, or both, they assumed a swelling port, and aped, as best they
knew how, the manners and customs of the upper classes in Great Britain.
They built their dwellings in imitation of old-fashioned English
manor-houses, with a variety of wings and gables, and with broad
entrance halls which in an emergency might have served the purpose of
presence-chambers. They dined long and late, and with much old-world
pomp and ceremonial. They drove out in coaches emblazoned with heraldic
bearings, and attended by broad-calved flunkeys in family livery.
Certain social observances of the early Georgian era, long since effete
and worn out in England, flourished in the social life of Little York
down to a period within the memory of many persons who are still living.
The aristocratic clique which preserved these customs was in the highest
degree rigid and exclusive. No outsider was admitted into the charmed
circle unless he came duly ticketed and accredited. The attempt to
transplant the usages of an old and advanced state of society into the
primitive streets and lanes of such places as York, Kingston, and
Woodstock was for a time more successful than might be supposed. Such of
the families as had been to the manner born carried off these
observances with considerable grace. They had brought their traditions
with them across the Atlantic, and though such traditions were not well
suited to the genius of a young and sparsely-settled colony, they were
at least maintained with some regard to the sources whence they had been
derived. With the pretenders who formed a portion of the clique, and who
had been admitted into it for special political reasons, the attempt to
copy the habits of their social superiors was, generally speaking, less
satisfactory. There was, in truth, an inner social circle which these
latter were never invited to join. They, however, enjoyed all the
political and pecuniary advantages arising from their connection, and
were not easily distinguishable by outsiders from the very head and
front of the organization.
So far as to the wealthy members of the ruling faction. But there were a
good many of them who not only were not wealthy, but who were in
positively indigent circumstances. These, for the most part, were
members of old country families who had sent them to Canada with the
sole object of getting rid of them. Others were half-pay officers who
had spent their whole fortunes in settling on land, after which they had
found themselves unable to make a livelihood, and had then sold their
property for as much--or as little--as they could manage to get. These
latter, after having disposed of their lands, generally repaired to the
towns, and most of them sooner or later found their way to the
Provincial capital. There they became obedient slaves of those in
authority, and picked up a precarious livelihood by making themselves
useful in various ways. The Executive could always find a certain amount
of work for such persons, though, if the truth must be told, the supply
was often greater than the demand. The code of social ethics in vogue
among this class was such as might have been expected from persons who
had been reared to regard themselves as the objects of a special
dispensation of fortune. They looked upon manual labour as degrading.
Any person, no matter what his abilities, who earned a livelihood by the
sweat of his brow, or even by honest trade, was considered as no fit
company for the brood of parasites who hung on to the heels of the
Compact, and who nevertheless did not hesitate to perform tasks from
which the average costermonger would have shrunk in disgust. Their
employers occasionally admitted them to their tables, and even to some
degree of social intimacy. More frequently they presented them with
their cast-off clothing, with new gowns for their wives at Christmas,
or--when things were at a remarkably low ebb--with a hundredweight of
flour or half a barrel of mess pork. Yet the recipients of these favours
piqued themselves upon their good birth and high connexions, and would
have felt themselves insulted if anyone had ventured to hint that they
should visit, upon terms of equality, with the grocer or the butcher in
the next street.
The reader now has before him a sufficient array of facts to enable him
to form a pretty accurate conception of the state of social life in
Upper Canada during ante-Rebellion times. It was a matter of course that
such a monopoly of power as was possessed and exercised by the ruling
faction should excite envy and opposition on the part of those who did
not revel in its smiles or share in its plunder. Loud murmurings began
to make themselves heard against the delay and partiality in the
land-granting department, and against the corrupt manner in which the
public affairs of the Province generally were carried on. Before the
close of Governor Hunter's _regime_ these murmurings had become loud
enough to occasion no little disquiet to some of the officials who had
most reason to dread enquiry and investigation. The abuses were greater
in some branches of the service than in others, but peculation prevailed
to a greater or less extent almost everywhere. The Indian department was
notorious for the corruption of its officials. A sum of sixty thousand
pounds sterling was annually granted by the Imperial Government for
distribution among the various tribes, and for the payment of agents and
interpreters. The distribution among the Indians chiefly took the form
of commodities which had a particular fascination for the mind of the
noble savage--such commodities, for instance, as muskets, powder,
bullets, knives, tomahawks, hatchets, blankets, spangles, pocket
mirrors, and--last, but by no means least--fire-water. The opportunities
which this grant afforded for peculation and plunder were too tempting
to be resisted. The agents and their subordinates, from highest to
lowest, owed their positions to their servility and usefulness to those
in authority. So long as they proved serviceable and obedient to their
masters, there was not much likelihood of their being called to serious
account for any iniquities they might commit towards Mohawk or Seneca,
Oneida or Mississauga. By way of consequence, the Indians were robbed and
the Government was robbed; and the robbers, feeling secure of protection
from their superiors, plied their nefarious traffic with impunity.[51]
There were equally culpable but less notorious abuses of power in other
branches of the service. Probably not one in ten of these ever came to
light, but from time to time there were awkward revelations which could
not be suppressed. All these things combined to beget a widespread lack
of confidence in the official clique. The want of confidence, not
without good reason, extended even to the administrators of the law. The
judges, as already mentioned, held office at the will of the Executive,
and, at least in some instances, were shamelessly servile and corrupt.
This led to their dicta being disregarded by sturdy juries who cared
less for the letter of the law than for its spirit. Mr. John Mills
Jackson, in his "View of the Political Situation of the Province of
Upper Canada," published in 1809, speaks of an instance where the people
became tumultuous, and broke the public stocks in the presence of the
Chief Justice.[52] The public distrust of the administrators of the law
does not seem to have been confined to the judges of the Superior
Courts. It extended to the rural magistrates, some of whom turned their
offices to commodity in a manner which would have excited the admiration
of Falstaff himself. "The shop-keepers," writes Mr. Jackson, "are
Justices of Peace. They have the means of extortion, and the power of
enforcing payments. They are first the criminals, then the judges; and
the court of appeal seems to be so constructed as to prevent an honest
verdict from passing into effect. The practice of the court is unjust,
oppressive, and influenced. Favourite attorneys were made deputy clerks
of the peace, so that process might be entered and writs obtained most
partially. The crown lawyer is allowed nearly seven pounds sterling for
every criminal prosecution! an inducement to listen to trifling
complaints, and prefer frivolous indictments, when, if power was
gratified and independence harassed, it was a sufficient excuse for an
inflated contingent account." The author of this scathing philippic
against petty oppression proceeds to recount a case wherein an action
was brought against a magistrate who had exerted his authority in an
illegal and oppressive manner. A verdict was obtained against him for a
hundred pounds. An application was made to the Court of King's Bench to
set the verdict aside, which was rejected; whereupon the clerk of the
court in which the judgment had been obtained was ordered by the Crown
lawyer not to issue execution. The clerk knew better than to disobey an
order from such a source, and the plaintiff accordingly took nothing by
his verdict. The unrighteous magistrate escaped the penalty of his
misdeeds, and furnished a sort of standing precedent for magisterial
iniquity. Other equally flagrant perversions of justice are recorded by
the same authority. An illegal and unjustifiable extent issued, at the
suit of the Crown, against one of the civil officers. It lasted for
years; yet the officer dared not resist oppression by applying for
justice. "When [the extent] was as imperiously taken off as it was
arbitrarily laid on," writes Mr. Jackson, "the sheriff dared not apply
for fees expended in holding possession under the writ, or the printer
sue for the money voted him by the House of Assembly for printing their
journals. The surveyors could not obtain the money they had actually
expended in the public service, nor the people find redress for extorted
fees. Therefore, when there was neither substance nor shadow of law or
justice, but the will of power was the rule of decision, the public mind
was agitated in the extreme, and universal gloom pervaded the Province."
The discontent produced by official tyranny was however almost impotent
as against the wrong-doers, who were so strongly entrenched in their
places that it seemed as though nothing could shake them. Many of them,
conscious of their misconduct, doubtless felt secret misgivings whenever
any specially significant outburst of popular dissatisfaction occurred.
But for many years they were able to present a united and brazen front,
and to crush anyone who dared to so much as wag a finger against them.
It was intimated on a former page that Robert Gourlay was not the first
victim of Executive tyranny. The first conspicuous victim of whom any
record has been preserved was Mr. Robert Thorpe, an English barrister of
much learning and acumen, who in 1805 was appointed a puisne judge of
the Court of King's Bench for Upper Canada. Previous to his arrival in
this country Mr. Thorpe had never been remarkable for any specially
liberal opinions, but he was a man of enlightened mind, and actuated by
an honest desire to do his duty. He was not long in perceiving that the
administration of justice in this Province was little better than a
hollow mockery. He resolved to do what one man could to restore public
confidence in the judicial bench, and his court erelong became a popular
forum for honest litigants, for it was evident to all that he held the
scales of justice with an even hand, and was not to be either cajoled or
bullied into perverting the law. Before he had been a twelvemonth in the
country he was known far and wide as an upright judge, and as a sort of
champion of popular rights. Grand juries took him into their confidence,
and tabulated their grievances before him. These were laid by him
before the authorities at York, upon his return from circuit; a
proceeding which was quite sufficient to bring down upon his head
the opposition of the faction which flourished by reason of those very
grievances. The whole of the Family Compact influence arrayed itself
against him in deadly enmity. Francis Gore arrived in the capacity of
Lieutenant-Governor in the summer of 1806. He was informed by his
Councillors that Judge Thorpe was a dangerous and revolutionary
personage. It was certain that the past year had been signalized by a
decided propensity on the part of the people to assert themselves
against the intolerable exactions of their oppressors, and that a spirit
of opposition was on the increase throughout the land. Governor Gore and
his Councillors reversed the inductive process, and attributed the
popular discontent to the influence of the new judge. This seeming
conviction on their parts was strengthened by certain remarks of Judge
Thorpe himself, made in reply to an address from the Grand Jury of the
London District. "The art of governing," said he, "is a difficult
science. Knowledge is not instinctive, and the days of inspiration have
passed away. Therefore, when there was neither talent, education,
information, nor even manners in the Administration, little could be
expected, and nothing was produced." The reference here is manifestly to
the _regime_ of Governor Hunter and Commodore Grant; and the intimation
is that better things are to be hoped for under the recently-arrived
Governor. "But," continued the judge, "there is an ultimate point of
depression, as well as of exaltation, from whence all human affairs
naturally advance or recede. Therefore, proportionate to your
depression, we may expect your progress in prosperity will advance with
accelerated velocity." He also in the course of his address, inveighed
against the Alien Act of 1804. When he reached York, at the close of the
circuit, he laid before the new Lieutenant-Governor the various
recapitulations of grievances which had been entrusted to him. They were
received by Mr. Gore and his Councillors with a very ill grace. The
complaints from the London District were stated with great vigour and
lucidity, and as they had got into print they could not be suppressed or
wholly ignored. An attempt was made to show that the chapter of
grievances had been presented by the jurors, not because there was
really anything of importance to complain of, but because Judge Thorpe
himself had instigated them to such a course. As this charge was openly
made, Mr. Thorpe in his capacity of a Justice of the King's Bench,
caused a proceeding of the nature of _scandalum magnatum_ to be
instituted. His brother judges, however, some of whom were members of
the Executive Council, and all of whom were subject to strong influences
from that quarter, ruled that the proceeding could not be maintained,
and it accordingly fell through. An attempt was also made, first to
intimidate, and afterwards to corrupt the Grand Jury. A letter was sent
to them from the office of the Lieutenant-Governor, requesting them to
state the grounds of their complaints more specifically. The recipients
responded by preparing and forwarding a stronger case than before. A
recantation was then drawn up by a skilful hand, and presented to each
individual member of the Jury, a reward being at the same time offered
as an inducement to sign it. The jurymen, however, were not prepared to
barter away their liberties in this manner, and the attempt wholly
failed. While the Executive were deliberating as to how they could most
effectually strike Judge Thorpe, a vacancy occurred in the
representation of one of the constituencies in the Home District. In
those times, as has already been seen, a judgeship was no
disqualification for political life, and a deputation waited on Mr.
Thorpe with a numerously signed address, requesting him to become their
representative. He replied that he would not become a partisan, but that
if he were returned to Parliament he would not hesitate to do his duty.
No sooner did it become known that "the Radical Judge," as he was
called, was a candidate for the Assembly than the leading spirits of the
Compact aroused themselves to defeat him. This was natural enough. That
they should employ against him every means which their ingenuity could
devise--among others, bribery, vilification and deliberate slander--that
also was natural, when the time and persons are considered. "Every
engine within the reach of authority," writes Mr. Jackson, "was used for
the purpose of defeating the wishes of the people on this occasion. All
interests were required to yield in favour of the candidate most likely
to succeed as against Mr. Thorpe. Any person in employment, in
expectation of, or entitled to land, was gratified, promised, or
threatened; magistrates were made and unmade, as best suited the
purposes of electioneering; grants were given; fees excused, or promised
to be paid by those high in authority. Even domestics were bribed with
places, land, and money, to vilify and accuse, by direct falsehoods, the
most upright, serviceable and esteemed persons in the Province." For
once public opinion proved too strong for Family Compact influence.
Judge Thorpe was returned, and great things were hoped for from his
career in Parliament. But the triumph of freedom was short-lived. The
Compact was too strong to be opposed by the multitude with impunity.
Lieutenant-Governor Gore was subservient to its wishes, and besides he
had by this time come to hate the popular judge on his own account, and
his mind was fully made up to solicit from the Colonial Secretary Judge
Thorpe's recall. One of his private letters, written from Kingston,
during a journey from York to Montreal, several months after the Judge's
election to the Assembly, announces this resolution in unmistakable
terms. "The object of Mr. T.'s [Thorpe's] emissions," he writes,
"appears to be to persuade the people to turn every gentleman out of the
House of Assembly. However, keep your temper with the rascals, I beseech
you. I shall represent everything at St. James'." He was as good as his
word, and in October, 1807, the announcement was made in the _Gazette_
that the Lieutenant-Governor had been instructed to suspend Mr. Thorpe
from his judgeship, which we may be quite sure was done without
unnecessary loss of time.
Thus did might continue to triumph over right. There was not the
slightest imputation of any sort against the Judge's character. His
professional attainments were high; his personal character without a
stain. His continued presence in Canada would have been a blessing to
all but the race of tyrants who trampled on popular liberty. Yet he was
removed because he respected himself and his office too highly to
pervert judgment, and because he bade fair to abridge the rule of
corruption. Upon his return to England the Colonial Office urged nothing
whatever against him, and merely suggested, by way of justification for
his recall, that his stay in Upper Canada would have led to perpetual
disturbance of the public tranquillity. He instituted proceedings in one
of the English courts against Mr. Gore, who was convicted of libel, but
who escaped much more easily than he deserved with a fine of trifling
amount. By way of recompense for his recall from Upper Canada, Judge
Thorpe was appointed Chief Justice of Sierra Leone. There he remained
for two years, by which time his constitution had become so much broken
by the climate that he was compelled to return home. At the request of a
number of the inhabitants he carried with him to England a petition
complaining of certain abuses of power there. For this he was discarded
by the Ministry of the day. His appointment as Chief Justice was
cancelled, and another judge was sent out to West Africa in his stead.
The rest of his life was passed in obscurity and neglect, and when he
died his family were left without any provision for their future. Such
was the untoward fate of an honourable and high-minded man, whose only
fault was that he was too pure for the times in which he lived, and for
the people among whom his lot was cast.
Another early victim, whose life record seems to contradict the adage
that honesty is the best policy, was Surveyor-General Wyatt. There is no
need to go minutely into the particulars of his case. He was universally
recognized as a competent and honest official, insomuch that it was
currently said of him that he was too good for the masters whom he
served. But he ventured to interfere on behalf of one of the
subordinates in his office, who had been refused a stipend to which Mr.
Wyatt considered him entitled. Then, he presumed to oppose the Council
in respect of an irregular purchase of a large tract of land from the
Mississauga Indians. Finally, he went so far as to profess a high degree
of respect for the manly and independent conduct of Judge Thorpe. The
secret conclave speedily pronounced his doom. No one ventured to allege
any fault against him, yet he was deprived of his situation by the
Lieutenant-Governor, and a pliable tool was installed in his office.
Joseph Willcocks had a more bitter experience still. He was an Irishman,
of liberal education, and of much energy of character, whose influence
in official circles was wide enough to obtain for him the post of
Sheriff of the Home District. For several years no occasion for any
difference of opinion arose between him and his superiors. He was known
as a competent officer, who discharged his duties with great
consideration for the impecunious and unfortunate. But his frequent
official peregrinations through the Home District enabled him to see
with his own eyes the disastrous effects of the Clergy Reserves, of the
land-granting system, and of Family Compact domination generally; and on
several occasions he had sufficient courage to express his opinions
thereupon. Attempts were made to silence him, first by remonstrances,
and afterwards by threats, but all to no purpose. When Judge Thorpe
began to figure as a sort of popular tribune, Willcocks declared himself
as being also on the side of the people. When the Judge became a
candidate for Parliament, the
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