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Title: The Story of the Upper Canada Rebellion, Volume 1

Author: John Charles Dent

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Language: English

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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 coöperation 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 Renée 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
_régime_ 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 _régime_ 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 coöperation 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 Præneste, 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. Evrémonde 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 Egalité, 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
_blasé_ 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 _régime_ 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 _régime_ 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 Sheriff, who had a vote in the
constituency, recorded it in his favour. For this he shared the fate of
the Surveyor-General, and was promptly dismissed from office by the
Lieutenant-Governor. But he came of a fighting stock, and was not to be
suppressed by the mere circumstance of being deprived of an official
income. He started a newspaper called _The Upper Canada Guardian, or
Freeman's Journal_. In this sheet, which was edited by Mr. Willcocks
himself, various desirable measures of reform were advocated, and the
dominant faction were from time to time referred to in opprobrious, but
certainly not untruthful or unmerited language. The paper obtained a
considerable circulation, and soon made its editor an object of bitter
hatred on the part of the authorities. The vilest abuse was poured out
upon him, and he was subjected to a course of persecution well-nigh as
grievous as subsequently fell to the lot of Robert Gourlay. Governor
Gore himself, in a letter still extant, written in 1807, refers to him
as "that execrable monster who would deluge the Province with blood."
The execrable monster's influence, however, continued to grow, and upon
Judge Thorpe's retirement from Upper Canada, he was returned to the
Assembly in his stead, for the West Riding of the County of York, the
First Riding of the County of Lincoln, and the County of Haldimand. As
he was a ready and powerful speaker, as well as a vigorous writer, it
was felt that he would soon become intolerable if his career were not
effectively checked. He was accordingly tried before the Assembly on a
frivolous charge of having, in a private conversation held at the house
of a Mr. Glennan, in York, spoken disrespectfully of some of the
members. The proceedings were the veriest travesty of the forms of
justice. The accused was found guilty, and committed to the common jail
of the Home District, there to remain during the sitting of
Parliament.[53] This indignity he was compelled to suffer, being
confined for many weeks in a small close cell, which he was not
permitted to leave for a single moment. He was further wrought upon by
informations for libel, as well as by secret inquisitions into his
private affairs. After his enlargement he continued to publish his
paper, but he was so tortured by the incessant persecutions to which he
was subjected that he could accomplish little or nothing in the way of
reform. From some of his votes in the Assembly it would appear that he
made tacit overtures towards reconciliation with his enemies,[54] but he
had offended too deeply to be forgiven, and their rancour was not to be
appeased. Eventually he was compelled to relinquish the publication of
the _Guardian_ for want of funds to carry it on. Notwithstanding all
that he had endured, his loyalty remained unshaken, and when the War of
1812[55] broke out he responded to the call for volunteers by
shouldering his musket and doing his devoirs like a man at the battle of
Queenston Heights. Even this obtained for him neither complaisance nor
immunity from abuse. He found himself ruined in fortune, opposed and
hated by those in authority, without any prospect before him but
starvation. It is not singular that a man subjected to such conditions
should become disheartened. In a moment of exasperation he deserted the
ranks where he had been held as of so little account. Accompanied by a
small body of Canadian volunteers, he repaired to the camp of the enemy,
where he offered his services, and obtained a colonel's commission. He
served under Major-General Brown at the siege of Fort Erie, where he was
slain while planting a guard.

Such are three of the most notable examples of ministerial tyranny in
comparatively early times. As before mentioned, they attracted less
widespread attention than did Mr. Gourlay's case some years later,
because, though they were signal instances of the abuse of power, they
were not marked by such refinement in cruelty, and because they appealed
to the political sympathies of comparatively few. In the time of Judge
Thorpe, Wyatt and Willcocks, the dominating class not only held a
monopoly of power, but they and their adherents were numerically in the
ascendant. At the time of Gourlay's persecution the population was much
more evenly divided. The oligarchy still had control of all the avenues
to power, but there was a large and steadily-increasing class in the
community who recognized the fact that many changes were necessary
before Upper Canada could become a prosperous and well-governed colony,
and a satisfactory place of abode for the average British immigrant.

In closing this hasty review of the nature and effects of Family Compact
domination in Upper Canada, I would not be understood as pronouncing a
sweeping condemnation upon all the individual members of that body. John
Beverley Robinson, for instance, though he lent himself to many
high-handed acts of oppression, was a man of undoubted ability, and of a
character which inspired respect. His descendants are to-day among the
most respected and influential members of society in our Provincial
capital. Several others were men of high personal character, and of
abilities above the average. They acted in accordance with time and
circumstance, and must be supposed to have done so conscientiously. But
such persons as these composed but a very slender proportion of the
Compact's entire membership. The rank and file were of a totally
different complexion. The characteristics of the more poverty-stricken
among them have already been hinted at; but, independently of these,
there were many who were well-to-do, and who held their heads high in
the air, who were nevertheless very ill qualified to win admiration for
the caste to which they belonged. To state the simple truth, most of
them were very ordinary commonplace personages, respectable, sapless,
idealess--what Dr. Johnson would have characterized as exceedingly
barren rascals. Some were of obscure origin, and would have been hard
put to it if required to trace their ancestry beyond a single
generation. Of these latter, a few, as has already been seen, had
amassed wealth by trade or speculation, and had made their way into the
exclusive circle by a fortunate combination of circumstances.

Among the Compact, then, the number of persons of good birth and
descent, possessed of sufficient qualifications to justify their
aristocratic predilections, and of sufficient capacity to enable them to
direct the colonial policy, was small. And it must by no means be
supposed that all the good blood in the Province was confined to the
Compact. There were many persons among the pioneers of Upper Canada of
gentle nurture and breeding, who nevertheless scorned to pose in the
character of aristocrats in a land where such assumptions were
altogether out of place, and who manfully accommodated themselves to
their primitive surroundings. As has been well remarked by Mr.
MacMullen,[56] "While they learned to wield the axe and swing the cradle
with the energy and skill of the roughest backwoodsman, they retained
their polished manners, their literary tastes, their love for the
beautiful and the elegant; and thus exercised the most beneficial
influence upon their rustic neighbours. In the absence of schools, of
churches, of most of the refining influences of civilized society, this
class of the early settlers of Upper Canada were foremost in usefulness.
Their superior education, their well-bred manners, their more refined
habits, raised them in the estimation of the rural population, who soon
tacitly admitted a superiority which would never have been conceded [had
it been] more directly asserted." Most, though not all, of these
gentlemen were Tories, and, with hardly an exception, preserved their
loyalty through all chances and changes. During the War of 1812-15, and
again during the agitation arising out of the Rebellion, they proved
true to their Tory instincts, and rallied to the side of the Government
with ready fervour. Their social proclivities were equally removed from
the rude boorishness of the ordinary settler as from the pretence and
ceremonial of the clique of self-constituted aristocrats. They generally
preserved a modicum of state in the regulation of their household
affairs, though they kept aloof from the Compact and its practices, and
devoted themselves to various branches of industry--among others, to the
education of youth; to the practice of the learned professions; to the
opening and cultivating of new avenues of commerce; and to reducing the
pathless forests to arable and smiling fields.

One other fact it is essential to bear in mind, in estimating the
effects of the Compact's _régime_. In seizing upon all the official and
other spoils within their reach, and in trampling upon the liberties of
the people, the magnates of Upper Canada were merely treading in the
footsteps of the Tite Barnacles of Great Britain. The period was one of
transition, all over the civilized world. Popular rights were but
imperfectly understood, and the idea that good government is best served
by the extension of justice and equal rights to all classes was only
beginning to dawn upon the minds of public men, even in old and
long-established communities. That Canada was not in advance of the
times is not to be wondered at; but the ordeal through which she was
compelled to pass on the way to full and assured liberty forms an epoch
highly necessary to be understood and frequently remembered by all who
appreciate the blessings which are the birthright of every Canadian of
the present day. A knowledge of the principles and practices of the
Family Compact in the olden days constitutes the most effectual
guarantee that such days can never return, and that neither our children
nor our children's children will ever be compelled to fight over again
the battle which was so long and so patiently waged by their ancestors.

FOOTNOTES:

[45] It may perhaps be thought by some readers that the closing
sentences of this paragraph are pitched in too high a key. Those who
entertain that opinion will receive light on the subject by a careful
perusal of various official reports issued just prior to the passing of
the Quebec Act in 1774, and more especially of _A Cry from Quebec_,
published at Montreal in 1809.

[46] _Report on the Affairs of British North America_, English folio
edition, p. 53.

[47] _Ib._

[48] How far Lord Durham was justified in saying that there was "little
of family connexion" among the members of the Compact will appear from
the following "curious but accurate statement," prepared by Mr. W. L.
Mackenzie for his _Sketches of Canada and the United States_, published
in England in 1833. It will be found on pp. 405-409 of that work. "When
I left Upper Canada last year," writes Mr. Mackenzie, "some of the
offices, sinecures, and pensions of the Government were divided as
follows:--No. 1. D'ARCY BOULTON, senior, a retired pensioner, £500
sterling. 2. HENRY, son to No. 1, Attorney-General and Bank Solicitor,
£2400. 3. D'ARCY, son to No. 1, Auditor-General, Master in Chancery,
Police Justice, etc. Income unknown. 4. WILLIAM, son to No. 1, Church
Missionary, King's College Professor, etc., £650. 5. GEORGE, son to No.
1, Registrar of Northumberland, Member of Assembly for Durham, etc.
Income unknown. 6. JOHN BEVERLEY ROBINSON, brother-in-law to No. 3,
Chief Justice of Upper Canada, Member for life of the Legislative
Council, Speaker of ditto, £2000. 7. PETER, brother to No. 6, Member of
the Executive Council, Member for life of the Legislative Council, Crown
Land Commissioner, Surveyor-General of Woods, Clergy Reserve
Commissioner, etc. £1300. 8. WILLIAM, brother to Nos. 6 and 7,
Postmaster of Newmarket, Member of Assembly for Simcoe, Government
Contractor, Colonel of Militia, Justice of the Peace, etc. Income
unknown. 9. JONAS JONES, brother-in-law to No. 2, Judge of the District
Court in three districts containing eight counties, and filling a number
of other offices. Income about £1000. 10. CHARLES, brother to No. 9,
Member for life of Legislative Council, Justice of the Peace in twenty
seven counties, etc. 11. ALPHEUS, brother to Nos. 9 and 10, Collector of
Customs, Prescott, Postmaster at ditto, Agent for Government Bank at
ditto, etc. Income £900. 12. LEVIUS P. SHERWOOD, brother-in-law to Nos.
9, 10, 11, one of the Justices of the Court of King's Bench. Income
£1000. 13. HENRY, son to No. 12, Clerk of Assize, etc. 14. JOHN ELMSLEY,
son-in-law to No. 12, Member of the Legislative Council for life, Bank
Director, Justice of the Peace, etc. 15. CHARLES HEWARD, nephew to No.
6, Clerk of the District Court, etc. Income £100. 16. JAMES B. MACAULAY,
brother-in-law to Nos. 17 and 19, one of the Justices of the Court of
King's Bench. Income £1000. 17. CHRISTOPHER ALEXANDER HAGERMAN,
brother-in-law to No. 16, Solicitor-General. £800. 18. JOHN MCGILL, a
relation of Nos. 16 and 17, Legislative Councillor for life. Pensioner,
£500. 19 and 20. W. ALLAN AND GEORGE CROOKSHANKS, connexions by marriage
of 16 and 17, Legislative Councillors for life, the latter President of
the Bank. £500. 21. HENRY JONES, cousin to Nos. 9, 10, etc., Postmaster
of Brockville, Justice of the Peace, Member of Assembly for Brockville,
Income unknown. 22. WILLIAM DUMMER POWELL, father of No. 24, Legislative
Councillor for life, Justice of the Peace, Pensioner. Pension, £1000.
23. SAMUEL PETERS JARVIS, son-in-law to No. 22, Clerk of the Crown in
Chancery, Deputy-Secretary of the Province, Bank Director, etc. Income
unknown. 24. GRANT, son to No. 22, Clerk of the Legislative Council,
Police Justice, Judge Home District Court, Official Principal of Probate
Court, Commissioner of Customs, etc. Income £675. 25. WILLIAM M.,
brother to 23, High Sheriff Gore District. Income from £500 to £800. 26.
WILLIAM B., cousin to Nos. 23 and 25, High Sheriff, Home District,
Member of Assembly. Income £900. 27. ADIEL SHERWOOD, cousin to No. 12,
High Sheriff of Johnstown, and Treasurer of that district. Income from
£500 to £800. 28. GEORGE SHERWOOD, son to No. 12, Clerk of Assize. 29.
JOHN STRACHAN, their family tutor and political schoolmaster, archdeacon
and rector of York, Member of the Executive and Legislative Councils,
President of the University, President of the Board of Education, and
twenty other situations. Income, on an average of years, upwards of
£1800. 30. THOMAS MERCER JONES, son-in-law to No. 29, associated with
No. 19, as the Canada Company's Agents and Managers in Canada. This
family connexion rules Upper Canada according to its own good pleasure,
and has no efficient check from this country to guard the people against
its acts of tyranny and oppression. It includes the whole of the judges
of the supreme civil and criminal tribunal (Nos. 6, 12, and 16)--active
Tory politicians. Judge Macaulay was a clerk in the office of No. 2, not
long since. It includes half the Executive Council or provincial
cabinet. It includes the Speaker and other eight Members of the
Legislative Council. It includes the persons who have the control of the
Canada Land Company's monopoly. It includes the President and Solicitor
of the Bank, and about half the Bank Directors; together with
shareholders, holding, to the best of my recollection, about 1800
shares. And it included the crown lawyers until last March, when they
carried their opposition to Viscount Goderich's measures of reform to
such a height as personally to insult the government, and to declare
their belief that he had not the royal authority for his despatches.
They were then removed; but, with this exception, the chain remains
unbroken. This family compact surround the Lieutenant-Governor, and
mould him, like wax, to their will; they fill every office with their
relatives, dependants, and partisans; by them justices of the peace and
officers of the militia are made and unmade; they have increased the
number of the Legislative Council by recommending, through the Governor,
half a dozen of nobodies and a few placemen, pensioners, and individuals
of well-known narrow and bigoted principle; the whole of the revenues of
Upper Canada are in reality at their mercy;--they are Paymasters,
Receivers, Auditors, King, Lords, and Commons!"

[49] See his evidence annexed to the Committee's Report, p. 86.

[50] Gourlay, commenting upon this episode, remarks: "Who pardoned all
the poor sinners that for years had been getting bastards, and who
legitimized these, was not determined when I bade farewell to Upper
Canada."--_Statistical Account_, Vol. 2, p. 348.

[51] Those who wish to gain an insight into some of the most revolting
features of this traffic may consult _Claws and the Clauses_, a pamphlet
published at Buffalo in 1818; also _Gourlay_, vol. 2, pp. 486, 487;
together with Jackson's pamphlet referred to in the text.

[52] This must have been Chief Justice Thomas Scott, after whom Scott
Street, Toronto, was called. He was Chief Justice from August, 1806, to
Michaelmas Term, 1816. He is referred to by Dr. Scadding in _Toronto of
Old_, p. 51, as "a man of fine culture, spoken of affectionately by
those who knew him." A picture of him in his decline is presented on
page 130 of the same work.

[53] For a full account of these infamous proceedings, the reader is
referred to _The Upper Canada Guardian_ of February 6th and March 18th,
1808, quoted by Gourlay in his _Statistical Account_, Vol. 2, pp.
655-662.

[54] See an extract from the minutes of the proceedings in the Assembly,
10th March, 1810, quoted by Gourlay, Vol. 2, pp. 328, 329. See also
Gourlay's remarks thereon, Vol. 2, pp. 334, 335.

[55] There is reason to believe that the discontent begotten of the
abuse of power in Canada was one of the inducements to this attempt on
the part of the United States, the Government of which was led to
believe that Canadians generally would welcome any relief from the yoke
which the Compact had placed upon their necks.

[56] _History of Canada_, p. 243.




CHAPTER IV.

FATHERS OF REFORM.


The history of Upper Canada, from the time of Mr. Gourlay's banishment,
in 1819, down to the actual outbreak of rebellion, is largely made up of
a succession of abuses on the part of the Executive, and of more or less
passive endurance on the part of the great body of the people. As has
been intimated, the Gourlay prosecutions and their attendant
circumstances aroused much popular indignation, and led to the formation
of an organized Opposition. During the session of 1820 the "Gagging
Bill," as it was called, which had been introduced and carried through
the Assembly under the auspices of Mr. Jonas Jones[57] two years before,
was repealed,[58] and the holding of conventions was no longer
prohibited by law. It is a fact worth mentioning that Attorney-General
Robinson was the only member who recorded his vote against the repealing
statute, whereas at the time of the enactment of the original repressive
law in 1818 only one vote had been given against it. Such a change of
opinion among the members of the Assembly within so brief a space of
time is in itself significant of the progress of liberal views among the
people generally.

The vote on this repealing statute was somewhat of a surprise to the
authorities. It was evident that Reform sentiment was growing, and that
many persons who had never been classed as Reformers were weary of the
long reign of tyranny. It was not the policy of the Compact, however, to
yield anything to popular demands, and they held on their course with
dogged pertinacity, as though animated by a fixed resolve that the
public indignation which had been aroused by the Gourlay prosecutions
should not be permitted to subside. Erelong a new opportunity for
applying the thumb-screw presented itself, and it was taken advantage of
to the fullest practicable extent. During the recess following the close
of the first session of the Eighth Provincial Parliament, which was
prorogued on the 14th of April, 1821, a vacancy occurred in the
representation of the constituency of the United Counties of Lennox and
Addington. The local Reformers took advantage of the opportunity thus
afforded of bringing out a candidate who had rendered much service to
Liberal principles in Upper Canada, and who was eminently fitted to
impart strength to the Opposition in the Assembly. His name was Barnabas
Bidwell, and he was known far and wide as one of the keenest intellects
and as one of the best public speakers in the country. His past history
had been unfortunate, and as it was soon to be made the subject of
strict Parliamentary enquiry, a few leading facts in connection with it
may as well be set down here.

He was a native of Massachusetts, where he was born in the old colonial
days before the Revolution. He came of a Whig family which espoused the
colonial cause with ardour, but he was himself too young to take any
part in the great struggle which gave birth to the United States. Having
completed his education at Yale College, he studied law, and at an early
age rose to eminence at the Massachusetts bar. He became
Attorney-General of the State, and, though he had for his rivals some of
the ablest men known to American history, he was regarded by his
countrymen as one whose future was in his own hands. His manners were
courtly and refined, and his scholastic attainments wide and various. He
soon found his way to Congress, where his brilliant eloquence caused him
to be listened to with attention and respect.

Up to this time his career had been an uninterrupted success. But in
achieving his political eminence he had been unfortunate enough to make
for himself a good many bitter enemies. His political course seems to
have been somewhat arbitrary and uncompromising, insomuch that his
opponents regarded him with more rancorous feelings than are commonly
entertained among public men where there are no personal grounds for
enmity. Whether such personal grounds existed in the case of Barnabas
Bidwell cannot now be readily ascertained. It is however certain that he
was regarded by a host of clever and unscrupulous persons with a
bitterness of enmity almost amounting to ferocity. He seems to have made
no attempt to conciliate his foes, but treated them with a sort of
haughty contempt. In the year 1810 the weight of their anger descended
upon him like an avalanche. He was then, and he for some years
previously had been, Treasurer of the County of Berkshire,
Massachusetts. An accusation of a very serious nature was brought
against him. He was charged with having applied the public funds to his
own use, and with having falsified entries in his books in order to
cover up his malversations. It is difficult to get at the exact truth in
the matter. Mr. Bidwell's attention to public affairs had caused him to
neglect his private and professional business, which consequently had
not flourished. He was far from wealthy, and it is not improbable that
he was sometimes financially embarrassed. Whether he succumbed to
temptation, and dipped his hands into the treasury without leave, cannot
now be certainly declared. His own version of the matter was that he was
entirely free from blame, but that his enemies had deliberately woven a
subtle web about him from which he was unable to extricate himself, as
it would have been impossible for him, under the existing state of
things, to obtain justice. At all events, he seems to have felt himself
to be unable to face the situation. Learning that an indictment had been
laid, and that a warrant had been issued for his apprehension, he fled
from his native country, and took refuge in Upper Canada.

Accompanied by his family, consisting of a son and daughter, he settled
at the village of Bath, in the County of Addington, on the Bay of
Quinté. He soon obtained employment as a school teacher, and encountered
no difficulty in gaining a livelihood, though the humble role he was
compelled to play comported ill with his past experience and present
ambition. There is little doubt that he was an admirer of republican
institutions, and that he so remained to the end of his life, though his
admiration was thrown away in this country, and it was impossible for
him to return to his own. He was a useful man in the little community
where he resided, and his education and intelligence caused him to be
looked up to by people of all classes. He did not intrude his political
views further than to proclaim himself an advocate of Liberal ideas, and
upon the breaking out of the War of 1812 he took the oath of allegiance
to His Majesty. His ordinary pursuits were altogether insufficient for
his enthusiastic nature, and after the lapse of several years he removed
to Kingston, and took up his abode there. He found an outlet for his
superabundant energy through the medium of frequent contributions to the
press. Among the best known of his writings are a series of letters on
practical agriculture and political economy, originally contributed to a
Kingston newspaper, and subsequently republished in pamphlet form under
the title of "The Prompter." The series of historical and topographical
sketches forming the first half of the first volume of Gourlay's
"Statistical Account of Upper Canada" are also from Mr. Bidwell's pen,
and they are upon the whole the most valuable portion of the entire
work. He espoused Mr. Gourlay's cause with great fervour, and by his
written and spoken words did much to arouse public sympathy for that
unfortunate man, as well as to awaken abhorrence for the cruelty and
selfishness of his persecutors. From that time forward he began to take
a more conspicuous part in politics than he had been accustomed to take
since his arrival in Canada. From the hustings and elsewhere he
thundered against the Compact domination with an eloquence which
thrilled his audiences. He soon made himself felt as a power in the
land, and as one from whom the ruling faction had good reason to
apprehend more serious antagonism than they had ever had to encounter.

Such was the man chosen by the Reform element in Lennox and Addington,
during the summer of 1821, to represent its interests in the Provincial
Assembly. The ensuing campaign was an exciting one, but at its close
Barnabas Bidwell was the undoubted choice of a large majority of the
electors. This was a heavy blow to the Executive party. The Reformers
would now have a representative in the House who could not be cajoled or
bullied. His eloquence, aggressiveness, intelligence and shrewdness
could not fail to produce a decided impression on the House and on the
country. Would it not be well if he could be got rid of, as Thorpe and
Gourlay had been got rid of before him?

During the progress of the election campaign, some of the main facts
connected with Mr. Bidwell's migration from Massachusetts to Upper
Canada had become known to his opponents. The pretext afforded by these
disclosures was too good to be neglected. An emissary was despatched to
Berkshire County, where there was no difficulty in ascertaining that he
had been Treasurer of the municipality; that he had been indicted for
misapplying public funds; that a warrant had thereupon been issued for
his apprehension; and that he had then fled beyond the jurisdiction.
Certified copies of the indictment and of several other important
documents bearing on the matter were obtained by the agent, and by him
brought over to Upper Canada. On the strength of the information and
documents thus obtained a petition was filed against the election of Mr.
Bidwell, upon the ground that he was an alien and a fugitive from
justice, who had moreover taken an oath of allegiance to the Government
of the United States. The accused notwithstanding appeared in his place
in the Assembly upon the opening of the session, and when the matter of
the petition came up for discussion he defended himself before the House
with an eloquence and pathos which stirred every heart. He declared, in
language and tones which left no doubt of his sincerity, that he was
guiltless of the embezzlement with which he had been charged, and that
the accusation had been solely due to the machinations of a powerful
clique of enemies. He further urged that, whatever might be the facts as
to the charge, he had never been tried or convicted, and that the
Assembly had no right to assume his guilt in the absence of positive
proof. He admitted having taken the oath of allegiance to the Government
of the United States, but urged that such an oath was required of every
man assuming a public office in all civilized countries; that it applied
only to the period of his actual residence, and was no legitimate bar to
his advancement in another country. Since his arrival in Canada he had
taken an oath of allegiance to the King of Great Britain. That his
loyalty was not open to suspicion was sufficiently manifest from the
mere fact of his having been returned to Parliament by a constituency
the inhabitants whereof were largely composed of United Empire Loyalists
and their immediate descendants. Such was the course of his argument,
which from beginning to end was singularly lucid and clear. But all was
unavailing. He was assailed by the Government party in language such as
is rarely to be met with in the annals of Parliamentary debate in this
country. Mr. Attorney-General Robinson went beyond any former effort of
his life in the way of vituperation, and overleapt the bounds of the
commonest decency. He proclaimed himself to be the son of a United
Empire Loyalist who had fought and bled for his country, and as
therefore being no fit company for runaway felons and pickpockets. His
sympathy with himself was so great that the tears chased one another
down his cheeks as he was speaking. All the amiability which commonly
marked his intercourse with his fellowmen seemed to have utterly
departed from him, and he towered above his seat in a perfect whirlwind
of rage and fiery indignation. Mr. Bidwell's calm and temperate reply
was in striking contrast to the levin bolts which had been hurled at
him, and produced a marked effect upon his hearers. But the Compact
commanded a majority in the Assembly,[59] which sustained a motion for
his expulsion. And as it was well known that the electors of Lennox and
Addington would again return him, and that he could not be permanently
excluded by any ordinary means, it was determined to disqualify him by
special legislation. An Act was accordingly passed intituled "An Act to
render ineligible to a seat in the Commons House of Assembly of this
Province certain descriptions of persons therein mentioned."[60] Among
the persons declared ineligible were those who had held any of the
principal public offices in a foreign country, which was of course an
effectual disqualification for Barnabas Bidwell, who, as already
mentioned, had been Attorney-General of Massachusetts. It was a
veritable Act of Exclusion, aimed at a particular person, and it served
its purpose by keeping the obnoxious individual perpetually out of
public life.[61]

In consequence of Mr. Bidwell's expulsion a new election for Lennox and
Addington became necessary. The writ was issued, and, to the chagrin and
disgust of the supporters of the Government, a new champion of popular
rights appeared in the field in the person of Marshall Spring Bidwell,
the only son of the recently-expelled member. The new candidate was a
young man of twenty-three years of age. He was a native of
Massachusetts, and had accompanied his parents to Canada at the time of
their migration in 1810. At an early age he had given proofs of the
possession of splendid abilities. His father, who was exceedingly proud
of the bright boy, had cultivated his faculties to the utmost, and by
the time that Marshall Spring Bidwell had attained his majority he was
regarded by all who knew him as having a brilliant future before him. A
year before his candidature he had been called to the Provincial bar. He
now presented himself before the electors of Lennox and Addington in
opposition to the Tory candidate, a gentleman named Clark. The combined
modesty and assurance displayed by young Bidwell throughout the contest
gained for him many warm friends, while at the same time his earnestness
and flowing eloquence proved that he was a true son of his father. He
conducted the campaign with signal ability, and laid the foundation of a
lasting reputation in the constituency. At the close of the poll the
returning-officer declared Mr. Clark to have been duly elected, but, as
it was notorious that corrupt practices had been resorted to, a protest
was entered by the friends of the Reform candidate, who himself appeared
in person at the bar of the House to conduct the argument. The result of
the enquiry was that the return was set aside and a new election
ordered. Young Bidwell so distinguished himself by his argument before
the House that the official party perceived that he was likely to be no
less formidable as an opponent than his father would have been. When the
new election was held he again presented himself as a candidate, but
found that the returning-officer had received instructions to accept no
votes for him, upon the ground that he was an alien. The Tory candidate,
Mr. Ham, was accordingly returned; but another protest was filed, with a
similar result. The election was once more set aside, and Lennox and
Addington still remained without a Parliamentary representative. It had
by this time become notorious that the whole power of the Executive was
exerted to keep the Bidwells out of public life, and the conviction that
such was the fact gave rise to a counter-movement on the part of the
victims. The friends of Reform bestirred themselves to such purpose that
during the session of 1823-24 an Act was passed[62] repealing the
measure of two years before, and relaxing the conditions under which
persons who had resided in or taken the oath of allegiance to a foreign
state should be eligible for election to the Provincial Parliament. It
was provided that a residence in the Province of seven years next before
election should render such persons eligible for membership in the
Assembly. This clause removed all existing disqualifications from young
Mr. Bidwell; but his father still remained disqualified, for it was
expressly re-enacted that no person who had been a member of the Senate
or House of Representatives of the United States, or who had held office
in any of the executive departments of "the United States of America, or
any one of the said United States," should be capable of being elected
to the Assembly. Under this clause the elder Bidwell was doubly
disqualified, for he had not only been Attorney-General of
Massachusetts, but had also sat in Congress. It was much, however, that
the son was rendered eligible. A general election took place during the
summer of 1824, at which he was returned for the constituency which he
then contested for the third time. He continued to sit in Parliament
for eleven successive years. He is properly regarded as one of the
founders of the Reform party in Upper Canada, and by his eloquence, tact
and discretion, no less than by the high respect in which his character
was held, he did much to advance the progress of Reform principles.

The general election of 1824 resulted in the return of a number of
prominent Reformers who now for the first time came forward to take part
in public affairs. It was evident that a spirit of Reform had been
awakened, and that from this time forward every important public
question was likely to have two sides to it.

The most conspicuous of all the new members was Mr. John Rolph, who had
been returned as one of the representatives for the County of Middlesex.
As he played an important part in the event which forms the subject of
this work, and as he was one of the ablest men who have ever taken part
in public affairs in this country, it is desirable to give some fuller
account of him than is to be found in the various books relating to the
place and times in which he lived.

John Rolph was unquestionably one of the most extraordinary
personalities who have ever figured in the annals of Upper Canada. He
possessed talents which, under favouring circumstances, would have made
him a marked man in either professional or public life in any country.
Chief among his qualifications may be mentioned a comprehensive, subtle
intellect, high scholastic and professional attainments, a style of
eloquence which was at once ornate and logical, a noble and handsome
countenance, a voice of silvery sweetness and great power of modulation,
and an address at once impressive, dignified and ingratiating. His
keenness of perception and his faculty for detecting the weak point in
an argument were almost abnormal, while his power of eloquent and subtle
exposition had no rival among the Canadian public men of those times.
His famous speech--to be hereafter more particularly referred
to--delivered in the Assembly, in 1836, on the subject of the Clergy
Reserves, was one of the most powerful indictments ever heard within the
walls of a Canadian Parliament. His arraignment of Sir Francis Bond Head
before the same body early in the following year was hardly less
impressive. He was of a full habit of body, even in comparative youth,
and though he was rather under than above the middle height, there was
a dignity and even majesty in his presence that gave the world assurance
of a strong man, while it at the same time effectually repelled unseemly
familiarity. A pair of deep clear blue eyes, surmounted by rather heavy
eyebrows, glanced out from beneath his smooth and expansive forehead. He
had light brown hair, a well-moulded chin, a firmly-set nose, and a
somewhat large and flexible mouth, capable of imparting to the
countenance great variety of expression. Such, according to the
universal testimony of those who knew him, and according to portraits
painted from life and preserved in his family, was the John Rolph of
fifty to sixty years ago.

There was unquestionably a _per contra_. Though he was a man of many
friends, and was the repository of many familiar confidences, there was
probably no human being--not even the wife of his bosom--who ever
possessed John Rolph's entire confidence. There was about him no such
thing as self-abandonment. This was not because he was devoid of natural
passions or affections, or even of warm friendship, for he was a kind,
if not a tender husband and father, and there were many persons whom he
held in very high esteem, and for whom he cheerfully made great
sacrifices. But the quality of caution seems to have been
preternaturally developed within his breast. No man was ever less open
to the imputation of wearing his heart upon his sleeve. He had a
temperament of great equableness, and doubtless felt much more deeply
than was suspected, even by those who were constantly about him. To the
outer world he was ever self-possessed, calm and dignified, of pleasant
and amiable manners, and not deficient in good-fellowship, but seldom or
never abandoning himself to frolicsomeness or fun. His smile had a
winsome sweetness about it, but it was a very rare occurrence indeed for
him to indulge in anything approaching to hearty laughter. His
self-control was marvellous. He was never surprised or startled, never
dismayed by unexpected intelligence, never taken off his guard. Yet he
possessed great dramatic talent, and in his addresses to juries and
public audiences could successfully simulate the most contradictory
feelings and emotions. One who judged him simply from such exhibitions
as these might well have set him down for an emotional and impetuous
man, apt to be led away by the fleeting passions and weaknesses of the
moment. Yet no one coming to such a conclusion would have had any
conception of his real character and idiosyncrasies. He certainly never
acted without motive, but his motives were sometimes dark and
unfathomable to everyone but himself. Not one among his contemporaries
was able to take his moral and intellectual measure with anything
approaching to completeness; and throughout the entire length and
breadth of Canadian biography there is no man of equal eminence
respecting whose real individuality so little is known.

Mr. Rolph's peculiarities were probably inherent, for the facts of his
early life, so far as known, afford no clue to the reading of the
riddle. He was the second son in a family consisting of eighteen
children, and was born at Grovesend, in the market town of Thornbury,
Gloucestershire, England, on the 4th of March, 1793. His father, Thomas
Rolph, was a physician of some local repute, who seems to have been
impelled to emigrate in consequence of the impossibility of making any
suitable provision in England for so numerous a progeny. The ascertained
facts with reference to John Rolph's early life in England are
singularly meagre. He accompanied his parents to Canada some time prior
to the War of 1812, for he served as a volunteer during the early part
of that conflict, and was for some months a paymaster of militia. During
the progress of the war he was taken prisoner by the enemy, and was
detained in custody for a short time at Batavia, in the State of New
York. An exchange of prisoners having been effected, he was set at
liberty. After his liberation he returned to England, where he entered
one of the colleges of the University of Cambridge; and, though he seems
to have left there without taking a degree, he was recognized as a young
man of very remarkable and precocious intellectual powers, likely to
become conspicuous in after-life. He absorbed knowledge with marvellous
facility, and never forgot anything he had learned. After leaving
college he repaired to London, where he was entered as a student-at-law,
and was in due time called to the bar of the Inner Temple. Like Bacon,
he seems to have taken all knowledge to be his province, for, not
satisfied with having acquired what, in so young a man, was accounted a
wide knowledge of jurisprudence, he studied for some time under Sir
Astley Cooper, and was enrolled as a member of the Royal College of
Surgeons. He soon afterwards returned to Canada, and took up his abode
on a lot of land in the Township of Charlotteville, about midway between
the villages of Turkey Point and Vittoria, in what is now the County of
Norfolk, but which then and for long afterwards formed part of the
Talbot District. In Michaelmas Term of 1821 he was called to the bar of
Upper Canada, and for some years thereafter he appears to have practised
the two professions of law and medicine concurrently. His great
acquirements and pleasant manners made him a favourite with all classes
of the people, and caused him to be regarded as a genuine acquisition to
the district in which he resided. He became the professional adviser and
familiar friend of Colonel Thomas Talbot, founder of the Talbot
Settlement, and was one of the originators of the Talbot Anniversary,
established in 1817, and kept up for more than twenty years thereafter,
in honour of the day of the Colonel's arrival at Port Talbot--the 21st
of May, 1803. The Colonel was not, in the strict sense of the term, a
politician, but he was a member of the Legislative Council, and
naturally supported the official party; whereas Rolph, though a man of
equable mind, and by no means constitutionally inclined towards
Radicalism, had much better opportunities for mixing with the people
than had Colonel Talbot, and his keen eye revealed to him many official
abuses which did not commend themselves to his sense of justice. It is
probable that differences of opinion on public questions led to their
ultimate estrangement. At all events, Rolph espoused the side of the
people, and declared himself a foe to the Family Compact policy, and
from that time forward the intimacy between him and Colonel Talbot seems
to have grown less and less. The Gourlay prosecutions aroused Rolph's
hot indignation, which he did not hesitate to express with much freedom
whithersoever he went. Being a brilliant and eloquent talker, strong in
opinion and logical in argument, he made many converts to his views, the
number of whom was not lessened by the course of treatment adopted
towards the Bidwells. It seems to have been about this time that he took
up his abode at Dundas, where he subsequently resided for many years.
When the general elections of 1824 took place the Reformers of Middlesex
brought out John Rolph and Captain John Matthews, both of whom were
returned at the head of the poll.

Rolph made his presence felt in the Assembly from the time of taking his
seat there. He was then thirty-one years of age, and of a compact,
well-built figure, inclining to portliness. His face was at once
handsome and intellectual, and his presence carried with it a suggestion
of undoubted power. He spoke comparatively seldom during his early
Parliamentary sessions, but when he did speak it was always with effect.
His diction was singularly luminous and expressive, and would have
attracted attention in any public assembly in the world. There was a
clear metallic ring in his voice which did full justice to the language
employed, and there were few empty benches in the House when it was
known that Rolph was to speak.

His colleague from Middlesex, though a staunch Reformer, was a man of
very different cast. Captain Matthews was a retired officer of the royal
artillery, who had seen twenty-seven years' service. At a very early
period of his residence in Upper Canada he had become disgusted with
Family Compact rule, and had spoken his mind on the subject with much
freedom. Being a resident of the County of Middlesex, and being held in
much esteem there among the adherents of Liberal principles, he was
induced to offer himself along with Dr. Rolph at the general election of
1824 as one of the candidates for the county. His candidature was
successful, and he became very popular in the House, though the texture
of his mind was somewhat light and airy, and he was not well fitted,
either by nature or by training, to deal with such grave constitutional
questions as were continually forcing themselves upon public attention.

Another prominent Reformer who now took his seat in Parliament for the
first time was Peter Perry, who had been returned as young Marshall
Bidwell's colleague in the representation of Lennox and Addington.
Although thirty-four years have elapsed since his death, Mr. Perry is
still well remembered by the older generation of our politicians. During
the twelve years succeeding his entry into public life he was one of the
most conspicuous Reformers in the Province. Though not possessed of a
liberal education, and though his demeanour and address were marred by a
sort of impetuous coarseness, he was master of a rude, vigorous
eloquence which under certain conditions was far more effective than the
most polished oratory would have been. He was certainly the ablest stump
orator of his time in this country, and there was no man in the Reform
ranks who could so effectively conduct a difficult election campaign.
No man was more dreaded by his opponents, more especially by those who
had to encounter him while a contest was pending. It may here be added
that he continued to take an active part in politics down to a short
time before his death in 1851, and that he rendered great services to
the cause of Reform, but in the years following the Union of the
Provinces he was overshadowed by Robert Baldwin, whose social position,
spotless reputation and disinterestedness of purpose combined to place
him on a pedestal beyond the reach of ordinary politicians. Peter Perry,
however, while yielding a loyal support to Mr. Baldwin, continued to the
end of his life to fight his political battles in his own way. The
sincerity of his convictions was beyond any sort of question, and his
shrewdness, experience and hard common sense caused his opinions to be
regarded with respect, even by such men as Rolph, Baldwin and the
Bidwells.

Mr. Perry was a native Upper Canadian, having been born at Ernestown in
1793, during the early part of Governor Simcoe's administration of
affairs. He was the son of a U. E. Loyalist, and was brought up on a
farm, at a time when public schools were few and far between in the
rural districts. He grew to manhood without having acquired much in the
way of education, but the quickness of his parts and the soundness of
his judgment did much to atone for his want of regular school training.
He began to take an active interest in public affairs at an early age,
and before he was thirty he had acquired wide notoriety as a
strongly-pronounced Reformer. Living in the same part of the country as
the Bidwells, he took a warm interest in their candidature. As his
political ideas coincided with theirs, and as his rough eloquence had
already made him well known throughout the constituency, he espoused
their side in the successive election contests, and at the general
election of 1824 was himself returned to the Assembly as the colleague
of the brilliant young lawyer.

In addition to John Rolph, Marshall Spring Bidwell, Captain John
Matthews and Peter Perry, a number of other advocates of Reform
principles were returned at the general election of 1824. For the first
time in Upper Canadian annals, it was manifest not only that the
Reformers had a majority in point of numbers in the Assembly, but that
they had a decided preponderance of ability. No adherent of the official
party--not even the Attorney-General, John Beverley Robinson--was a
match for Rolph or Bidwell, to say nothing of Perry, whose oratory was
of an altogether different complexion, though scarcely less effective.
Upon the meeting of the Houses the numerical strength of the respective
parties was fairly tested by the vote on the Speakership. The Reformers
nominated as their candidate John Willson, one of the members for
Wentworth. Mr. Willson was an unpretending farmer, of strong political
convictions, but of good sense and calm judgment, who had allied himself
with the Reformers, and who might safely be depended upon to discharge
the duties incidental to the Speakership with judicial impartiality. The
vote stood twenty-one to nineteen, the majority of two being in Mr.
Willson's favour. The Reformers felt that they had achieved a triumph,
and were accordingly jubilant; but they soon found that the mere control
of the Assembly signified very little in the absence of Executive
responsibility. The Legislative Council interposed its dead weight, and
vetoed one bill after another sent up by the Assembly.

The Reform preponderance in the Assembly, however, and the bringing
together of the leading supporters of Liberal principles, led to the
establishment of an organized body of Reformers, which from that time
forward made its existence felt throughout the constituencies, and
presented an obstacle to the continued rule of the Compact. Conspicuous
among the Fathers of Reform, in addition to John Rolph, Peter Perry,
Captain Matthews and the two Bidwells, were Doctor William Warren
Baldwin, his son Robert, and William Lyon Mackenzie. None of the three
last-named gentlemen was at this time in Parliament, but they were
nevertheless all able to render very valuable services to Reform
principles--the first two by reason of their wealth and high social
position, and the third from the fact that he was the publisher of a
newspaper, and that he was a man of strong opinions and superabundant
energy in giving expression to them.

The elder Baldwin was a gentleman of high character and social position,
resident at York. He had emigrated from Ireland to Canada towards the
close of the last century, and, like Mr. Rolph, had for some time
practised law and medicine concurrently. He achieved considerable
success, both pecuniarily and otherwise, and, notwithstanding his
political principles, which were of a decidedly advanced character, he
was respected by the entire community of the little Provincial capital.
The family to which he belonged were well known in Ireland for their
adherence to advanced political doctrines, and he himself remained true
to family traditions. At a time when it required no slight courage to
espouse the Liberal side in York, Dr. Baldwin was always to be found in
the ranks of Reform. He was wealthy, as, in addition to the property
which he had personally accumulated, he had succeeded, by bequest, to
the bulk of the large possessions of the Honourable Peter Russell--whose
method of doing good unto himself has already been glanced at--and of
that gentleman's maiden sister Elizabeth. Miss Russell resided in Dr.
Baldwin's family during the last few years of her life, and survived
until 1822. The Russells and the Baldwins were remotely connected by
ties of relationship, and as neither the Administrator nor his sister
ever married, there was nothing strange in the disposition made by them
of their property.

High as Dr. Baldwin stood in the Reform ranks, however, he was destined
to be eclipsed by his more distinguished son. It is safe to say that no
public man in Canada has ever gained so enviable a reputation as
attaches to the name of Robert Baldwin. As was intimated two or three
pages back, he stood upon a lofty pedestal, and was a very man _per se_.
And this high position he attained, not by means of brilliant oratory,
keenness of perception, or subtle comprehensiveness of judgment. No one
has ever pretended to claim for him any special intellectual greatness
of any kind. He was a plain man, of abilities not much above the
average, who possessed strong convictions, and whose high principles,
sterling honesty and disinterestedness of purpose were unimpeachable.
Had he been a member of the British House of Commons during Sir Robert
Walpole's régime, the proverbial dictum of that high priest of
corruption would never have been uttered, for certainly no man would
ever have dreamed of offering a bribe to Robert Baldwin. He has been in
his grave for more than a quarter of a century; thirty-four years have
elapsed since his withdrawal from public life; yet he is still referred
to by adherents of both political parties in Canada as a statesman of
unblemished integrity, whose character was without spot, and in whose
bosom was no guile. He more than once occupied the foremost position in
the public eye. During much of his career a fierce light beat upon him,
yet failed to disclose anything whereof the most august character in
history would have had any cause for feeling ashamed. As I have said
elsewhere: "We can still point to him with the admiration due to a man
who, during a time of the grossest political corruption, took a foremost
part in our public affairs, and who yet preserved his integrity
untarnished. We can point to him as the man who, if not the actual
author of Responsible Government in Canada, yet spent the best years of
his life in contending for it, and who contributed more than any other
person to make that project an accomplished fact. We can point to him as
one who, though a politician by predilection and by profession, never
stooped to disreputable practices, either to win votes or to maintain
himself in office. Robert Baldwin was a man who was not only incapable
of falsehood or meanness to gain his ends, but who was to the last
degree intolerant of such practices on the part of his warmest
supporters. If intellectual greatness cannot be claimed for him, moral
greatness was most indisputably his. Every action of his life was marked
by sincerity and good faith, alike toward friend and foe. He was not
only true to others, but was from first to last true to himself....
Robert Baldwin was neither a bigot nor a fanatic, but he was in the best
and truest sense of the word a Christian. He was strict in his
observance of religious duties, and brought up his children to seek
those things which make for righteousness, rather than the things of
this world. His piety was an ever-present influence in his life, and was
practically manifested in his daily walk and conversation. As we
contemplate the fifty-four years which made up the measure of his
earthly span, we cannot fail to be impressed by its uniform consistency,
its thorough conscientiousness, its devotion to high and noble objects.
It is a grand thing to acquire a famous name, but it is a much grander
thing to live a pure and noble life; and in estimating the character of
Robert Baldwin it should be remembered that he was not merely a
statesman and a lawyer, but was, over and above all else, a man and a
Christian."[63]

The foregoing account, be it understood, applies to a later period. At
the date of the general election in 1824 Robert Baldwin was still a
young man, whose reputation, professional and political, was yet to be
made. He had not even been called to the bar, and was still a student in
his father's office. Notwithstanding his youth, however--he was only in
his twenty-first year--he had given some thought to the political
questions of the time, and had even begun to look forward to the
possibility of an ultimate political career. His father, from whom he
had learned many political lessons, had recently become very wealthy
through the death of Miss Russell, as already mentioned. Much of his
wealth consisted of landed property. Robert was the first-born child of
his parents, and, as the law of primogeniture was then in force in Upper
Canada,[64] it was to be anticipated that he would succeed to large
possessions, and would be independent of any income arising from his own
exertions. He bore an honoured name, and it was tolerably certain that,
under such a combination of circumstances, he would sooner or later find
his way to Parliament. He had already imbibed what were in those days
considered as advanced Liberal views, and was in full accord with his
father, who had to a large extent moulded his opinions. He was present
at the meetings of the Reform members held during the first session
following the elections of 1824, for the purpose of organization. It was
then that a distinct Reform Party, with common objects and a specific
policy, may be said to have been formed in this Province. There had been
Upper Canadian Reformers from the very foundation of the Province, but
no Reform Party can strictly be said to have had an existence prior to
the latter part of the year 1824.

No man was more conspicuous in contributing to the founding of the
Reform Party than was William Lyon Mackenzie, whose personality yet
remains to be considered. Owing in some measure to the force of
circumstances, but chiefly to his own energy, impulsiveness and love of
notoriety, Mr. Mackenzie's name and achievements have become more widely
known than have those of many abler and wiser men. He was the only
child of humble parents, and was born at Springfield, a suburb of
Dundee, in Forfarshire, Scotland, on the 12th of March, 1795. When he
was four weeks old his father died, leaving him and his mother wholly
unprovided for, insomuch that they were dependent upon the bounty of
relatives. To adopt his own language, poverty and adversity were his
nurses, and want and misery were his familiar friends. "It is among the
earliest of my recollections," wrote he in 1824, "that I lay in bed one
morning during the grievous famine in Britain in 1800-1, while my poor
mother took from our large kist the handsome plaid of the tartan of our
clan, which in her early life her own hands had spun, and went and sold
it for a trifle, to obtain for us a little coarse barley meal, whereof
to make our scanty breakfast; and of another time during the same famine
when she left me at home crying from hunger, and for (I think) eight
shillings sold a handsome and hitherto carefully preserved priest-gray
coat of my father's, to get us a little food." His mother, from whom he
inherited his most salient peculiarities, was a woman of strongly-marked
character. She was endowed by nature with a high temper, and with a
tendency to act from impulse rather than from reason. To these qualities
were added great energy and strength of will. She brought up her son in
the straitest of theological creeds, which left a certain permanent
mental impress upon him, though during the last quarter of a century of
his life he wandered far afield from the religious teachings of his
childhood. He seems to have been born with a genuine love for knowledge,
for, notwithstanding the inauspicious surroundings of his youth, he
contrived to acquire a better education than was commonly obtainable by
lads in his rank of life in Scotland in those times. The education thus
acquired was almost to the end of his days supplemented by reading and
study. As soon as he was old enough to enter upon employment he became
an assistant in a draper's shop, after which he filled various temporary
situations which led to nothing. When only nineteen he opened a small
store on his own account at Alyth, a village about twenty miles from
Dundee. This he conducted for about three years, by which time it had
become apparent that the business could not be successfully carried on,
so he abandoned it and removed to England. There he spent more than two
years, during some part of which he acted as clerk to a coal company.
In the spring of 1820 he sailed for Canada, where he was destined to
gain great notoriety, and to become an important factor in the moulding
of public opinion.

In a new country like Canada a young man of Mackenzie's energy was soon
able to make his presence felt. After being employed for a short time on
the survey of the Lachine Canal, he opened a store at York, whence he
removed to Dundas, and entered on a more extensive mercantile business
in partnership with Mr. John Lesslie, the style of the firm being
"Mackenzie & Lesslie." His mercantile venture in Dundas was fairly
successful. During his residence there he married Miss Isabel Baxter, a
native of Dundee, after a brief courtship of three weeks. In the spring
of 1823 the firm of Mackenzie & Lesslie was dissolved, and for a few
months thereafter the senior partner carried on business by himself. In
the autumn of the same year he removed to Queenston, where he embarked
in business by opening a general store. The store had not been many
months in operation before its proprietor abandoned commercial pursuits
and embraced the life of a journalist. This change seems to have been
the result of some deliberation, and it must be admitted that Mr.
Mackenzie possessed considerable aptitude for the new field of labour
which he had chosen. His writing, though very unequal, and sometimes
exceedingly verbose and amateurish in point of style, was almost always
direct and easy to understand. His observation was keen, and he had
taken a warm interest in politics ever since his arrival in the country.
Though many of his views were what would now be considered Toryish and
out of date, they were then classed by the Compact and their adherents
as ultra-Radical and revolutionary. He had formed the acquaintance of
Rolph, Perry, the Bidwells, and other prominent Reformers, by all of
whom the sincerity of his political professions were regarded as being
beyond question. The first number of his newspaper, which was christened
_The Colonial Advocate_, made its appearance on the 18th of May, 1824.
It consisted of thirty-two pages, and, although its owner had neither
received nor sought a single subscriber, he issued an edition of twelve
hundred copies. Whether he embarked in newspaper life at this particular
time with a view to influencing votes during the impending general
election cannot now be known with certainty. Probably enough this may
have been one of his motives, which were doubtless of a mixed nature.
That he was sincere in his advocacy of Reform must in all fairness be
conceded, though his itch for notoriety must always be considered in
reviewing and estimating his actions. This tendency of his mind would
readily lead him to select journalism as his vocation in life, more
especially as he found that his opinions were regarded as having some
value. As compared with his life in Britain, his career in Canada had
been an undoubted success. He had acquired some property, and was in
fair pecuniary circumstances. From the inner side of his counter he had
been in the habit of holding forth to his customers on the political and
other questions of the day, and had found that his arguments were
accepted by a majority of the unlettered yeomen of Wentworth as being
unanswerable. He was looked up to as a man of weight and influence in
the community, and the consciousness of this was naturally gratifying to
the whilom shop-boy of Dumfries. He felt incited to address larger
audiences than any which had hitherto listened to him. The time seemed
propitious for the establishment of a Reform newspaper. There was a
general awakening in the direction of Reform, extending over the greater
part of the Province. There could be no sort of doubt that public
opinion was in a state of transition: that many people had begun to look
forward to a time when Responsible Government would be conceded, and
when the domination of the Compact would be no more. When that
much-wished-for epoch should arrive, those who had been the means of
bringing it about, or of hastening its advent, would stand high among
the Reformers of Upper Canada. Who would be likely to stand higher than
a clever and aspiring man who was at once editor and proprietor of the
leading organ of Liberal opinion in the Province? Such a personage might
command anything within the power of his party to grant. That he would
soon be able to write his way into Parliament was a foregone conclusion;
and a seat in Parliament appeared a very proud distinction in the eyes
of one whose past surroundings had been so far removed from such a
sphere.

That these, or something like these, were among the chief motives
whereby Mr. Mackenzie was actuated in establishing _The Colonial
Advocate_ seems tolerably certain. Nor is there anything unusual or
censurable in such an ambition. The labourer is worthy of his hire, and
no labourer is better entitled to a full recompense than is the man who,
through long and weary years, struggles to win success for a depressed
and righteous cause. That he was not devoid of a spirit of sincere
patriotism is evident, alike from his words and his deeds. He had
amassed a few hundreds of pounds, and was in no dread of poverty, being
sanguine and self-confident to an uncommon degree. He ardently longed to
see this fair colony rescued from the thraldom under which it groaned.
In a letter[65] written many years afterwards, when he was an outlaw and
an exile, he gives his own version of the motives which impelled him to
embark upon what he calls "the stormy sea of politics." "I had long," he
writes, "seen the country in the hands of a few shrewd, crafty, covetous
men, under whose management one of the most lovely and desirable
sections of America remained a comparative desert. The most obvious
public improvements were stayed; dissension was created among classes;
citizens were banished and imprisoned in defiance of all law; the people
had been long forbidden, under severe pains and penalties, from meeting
anywhere to petition for justice; large estates were wrested from their
owners in utter contempt of even the forms of the courts; the Church of
England, the adherents of which were few, monopolized as much of the
lands of the colony as all the religious houses and dignitaries of the
Roman Catholic Church had had the control of in Scotland at the era of
the Reformation; other sects were treated with contempt and scarcely
tolerated; a sordid band of land-jobbers grasped the soil as their
patrimony, and with a few leading officials, who divided the public
revenue among themselves, formed the Family Compact, and were the avowed
enemies of common schools, of civil and religious liberty, of all
legislative or other checks to their own will. Other men had opposed,
and been converted by them. At nine-and-twenty I might have united with
them, but chose rather to join the oppressed, nor have I ever regretted
that choice, or wavered from the object of my early pursuit."

A man entertaining such views as these, more especially a man of energy
and intelligence, with a newspaper at his back, could not fail to be
acceptable to the little knot of politicians who formed the nucleus of
the Reform Party of Upper Canada. Mr. Mackenzie was cordially welcomed
into the ranks, and was soon recognized as a most useful and valuable
acquisition thereto. He could make no pretence to the various learning,
fine presence, subtle intellect or polished eloquence of Rolph, nor even
to the high but less marked qualities of the Bidwells, but the time was
at hand when he was to prove that he possessed the power to move
audiences, by his voice as well as by his pen. In person he would have
been pronounced by a casual passer-by to be rather insignificant, being
exceedingly short in stature, and not well proportioned as to his
figure, which was slight, wiry, and--owing to a restless habit and a
highly-strung nervous system--seldom in repose. Still, no one who
contemplated his features with attention would ever have dreamed of
pronouncing him commonplace. His intellectual vigour and determination
were attested by his large head, massive brow, keen, light-blue eyes and
firmly-set mouth. His physical energy was placed equally beyond doubt by
the nervous activity above mentioned. Until he was long past the prime
of his manhood he was never still for many consecutive moments during
his waking hours. When labouring under any unusual excitement his frame
seemed to be set on steel springs. As his temper was easily aroused, it
was no uncommon thing to see him in one of these phases of excitement.
But though he was thus quickly moved to anger, it could not with justice
be said that his temper was bad, for, so far from being implacable, he
was readily appeased, and always quick to forget and forgive.
Altogether, he had an active but ill-balanced organization. His
sympathies were too quick and strong for his judgment, and he frequently
acted from impulse and hot blood. From his cradle to his grave he was
never fit to walk alone and without guidance through any great
emergency.

No two human beings could well be more unlike than were William Lyon
Mackenzie and John Rolph. They were compelled to work together in a
common cause for many years, but the two entities were thoroughly
antagonistic, and there was never much personal liking between them. The
structure of their bodies was not more dissimilar than was that of their
minds. The one, slight, wiry, and ever in motion, seemed as though it
might be blown hither and thither by any strong current. The other,
solid almost to portliness, was suggestive of fixity--of
self-dependence, and unsusceptibility to outside influences. The one was
suggestive of being in a great measure the creature of circumstances;
the other of being a law unto himself--one who would be more likely to
influence circumstances than to be influenced by them. Mackenzie's
nature, though it could not strictly be called a shallow one, at any
rate lay near the surface, and its characters were not hard to decipher,
even upon a brief acquaintance. There were depths in Rolph's nature
which were never fathomed by those nearest and dearest to him--possibly
not even by himself. Mackenzie seems to have long regarded Rolph with a
sort of distant awe--as a Sphinx, close, oracular, inscrutable. Rolph
evidently estimated Mackenzie correctly, as one whose politics were
founded upon deeply-rooted convictions, and not upon mere opinions,
although he would probably have found it difficult to subject those
opinions to a rigid analysis; as one whose energy and journalistic
resources might be turned to good account in the cause of Reform, but
whose discretion was not always to be relied on. This estimate, indeed,
was sufficiently obvious to any one who maintained frequent or familiar
relations with Mackenzie, and was concurred in by most, if not all, of
his friends. His earnestness and good faith, however, were manifest to
all who knew him, and these were sufficient to cover much more culpable
weaknesses than any which he had hitherto displayed.

Having now become acquainted with some of the FATHERS of Reform, it is
desirable to cast a momentary glance at the material which went to the
composition of the Reform Party generally. That material was of the most
heterogeneous character imaginable. It included a few U. E. Loyalists of
advanced opinions, and their descendants; but the bone and sinew were
made up of more recent immigrants from Great Britain and the United
States. The organization of the party, such as it was, was of too recent
a date at this time to admit of any absolute unanimity of opinion on all
questions of public policy having been arrived at among so numerous a
body. On one cardinal point, however, all were agreed: it was in the
highest degree desirable that the Canadian constitution should be more
closely assimilated to that of the mother-country, and that the
Executive Council should be made responsible to the popular branch of
the Legislature. True, there was a small element--almost entirely made
up of immigrants from across the border--who held republican theories,
but no class of the community clamoured more loudly for Responsible
Government than did the advocates of republicanism, very few of whom
regarded their opinions as coming within the domain of practical
politics in Upper Canada. On the question of the Clergy Reserves there
was less uniformity of sentiment. Many sincere Reformers disapproved of
the voluntary principle, and believed in a State provision for the
Clergy,[66] though very few of them went so far in that direction as to
defend the exclusive pretensions of the Church of England. On this and
other important public questions, however, the diversity of opinion
henceforth became less and leas from year to year. In point of numbers
the adherents of Reform principles constituted a majority of the
inhabitants of the Province.

The _Advocate_ was only six months old when its proprietor removed to
York. If any good service was to be done to Reform by his means it was
clear that the Provincial capital must be the seat of his operations.
The removal took place in November, 1824, and in the following January
the new Parliament met for the first time. Much of the interval was
spent by the Reformers in preparations for organization. In all these
proceedings Mr. Mackenzie took an active and prominent part. He also
assumed, to a greater extent than he had previously done, the _role_ of
a public censor, and, in the columns of his paper, opened a hot fire
upon the official party and their myrmidons. His writing was "personal
journalism," with a vengeance, for he usually expressed himself in the
first person singular, and directed his animadversions against any one
who, for the time being, happened to have attracted his notice. He wrote
very erratically, and from the impulse of the moment; in one number
lauding some particular personage in extravagant terms, and in
subsequent numbers assailing the self-same individual in language which
certainly reflected no credit upon the writer. Sometimes he even
extended his attacks to the friends and relatives of those who had
become obnoxious to him. In all this he merely followed the example of
his opponents, from whom better things might have been expected, but he
certainly lessened his influence, even among his friends and
fellow-labourers, by his onslaughts upon particular individuals. There
can be no manner of doubt, however, that he achieved his object of
holding some of his opponents up to public ridicule, and that in at
least one or two instances he was the means of affecting votes in the
Assembly thereby. To what extent, if at all, his efforts in this
direction contributed to the election of Mr. Willson, the Reform
candidate for the Speakership in the Assembly, already referred to, is
not easy to say. That his deliverances may have produced an effect upon
one or two waverers, and thereby have brought about the desired
result--the vote, it will be remembered, was a close one, standing
twenty-one to nineteen[67]--is possible enough. It is at all events
certain that the combined action of the Reform Party in and out of
Parliament produced early and specific consequences. On a number of
questions the Government found themselves confronted by a hostile
majority considerably greater than they had encountered on the
Speakership. But these seeming triumphs were of no immediate advantage
to the Opposition. Let the majority against the Government be ever so
great in the Assembly, the official policy remained the same. The Upper
House rejected Bill after Bill which had been passed by the Lower, and
the Executive clung to their places in undisturbed serenity.

FOOTNOTES:

[57] _Ante_, p. 44.

[58] The repealing statute is 1 Geo. IV. chapter 4. The statute repealed
is 59 Geo. III., sess. 1, chapter 2.

[59] It was however a bare majority, the vote standing 17 to 16.

[60] See Stat. 2 Geo. IV. chapter 4, passed 17th January, 1822.

[61] Six years later Francis Collins, editor of _The Canadian Freeman_,
lay in York jail for having charged Attorney-General Robinson with
"native malignancy." During his incarceration he addressed several open
letters to his prosecutor, in one of which may be found the following
comments upon the episode referred to in the text:--

"In the next place, a most respectable portion of the colony returned
the venerable Mr. Bidwell, Sen., to Parliament, and upon this occasion I
think you displayed more 'native malignancy' than I ever witnessed, in a
political way, in the colony. A hired pimp was despatched to Boston to
hunt up slanders, originating in political feuds there. Mr. Bidwell was
put on his trial before a corrupt House, and when thus you saw your
innocent victim within your reach, then it was you lifted up the
flood-gates of your loyal wrath, and let your vengeance fall upon his
devoted head. Then it was that the overflowings of your 'native
malignancy' hurled the tears of loyalty down your pallid cheeks. Then it
was that your natural flippancy gave rapid birth to the most gross,
unqualified and unjustifiable abuse I ever heard heaped, not only upon a
member of Parliament, but even upon the commonest member of society. 'Am
I,' said you, 'the son of a U. E. Loyalist, who fought and bled for his
country, to sit within these walls with disloyal runaway felons,
pickpockets and murderers from the United States?'--(the loyal tears
flowing.) Yes, Sir, you coaxed, you threatened, you argued, you wept,
until you prevailed upon a corrupt and cringing House, as I have before
remarked, to turn Mr. Bidwell out of his seat, unconstitutionally,
illegally and unjustly; and the next day you were obliged to get one of
your tools to bring in a Bill to cover this illegal proceeding, and
prevent his re-election, thus forever depriving the country of the
valuable services of a man better qualified for a legislator, in point
of learning, talent and experience than yourself, or any other man,
perhaps, in Upper Canada. Now, Sir, if you viewed it as a disgrace to
sit in the same House with the father, although in every respect your
superior, how will it suit you to bend your outrageously loyal neck to
his son in the Speaker's chair, who, it is my opinion, is the most fit
person in the new House to fill it, and who, I doubt not, will be
elected?"

The letter from which the foregoing extract is taken bears date December
25th, and appears in the _Freeman_ of that date. The prediction in the
concluding sentence was verified. Mr. M. S. Bidwell was elected Speaker
at the opening of the session in January, 1829.

[62] See 4 Geo. IV., sess. 2, chapter 3, passed 19th January, 1824.

[63] _Canadian Portrait Gallery_, Vol. I., pp. 17, 46.

[64] It is to the exertions of Robert Baldwin himself that we owe the
abolition of the doctrine of primogeniture as applied to real estate in
Upper Canada. He it was who, while Attorney-General for the Western
Province, introduced and carried through the measure of 1851.

[65] Quoted by Mr. Lindsey, in his _Life and Times of William Lyon
Mackenzie_, Vol. I., pp. 40, 41.

[66] Among those who approved of such a provision no one was more
outspoken than was Mr. Mackenzie himself. In the very first number of
the _Advocate_ he clearly laid down his platform on this question. "In
no part of the constitution of the Canadas," he writes, "is the wisdom
of the British Legislature more apparent than in its setting apart a
portion of the country, while yet it remained it wilderness, for the
support of religion." He expressed himself in favour of a law whereby
the ministers of every body of professing Christians, being British
subjects, should receive equal benefits from the Reserves. On this, as
on many other subjects, however, the editor of the _Advocate_
subsequently saw fit to alter his opinions. The instability of his
opinions, indeed, was one of his most dangerous characteristics, and
this alone marked him out as unfit to be trusted with the guidance of
others.

[67] _Ante_, p. 110.




CHAPTER V.

A "FREE AND UNFETTERED" PRESS.


Mr. Mackenzie's newspaper devoted much space to the advocacy of
Responsible Government, which for many years constituted the main plank
in the Liberal platform. He pointed out the injustice and absurdity of
the existing state of things, where the people were beguiled with a
mockery of representation in Parliament without having any voice in the
nomination of the persons composing the Government of the day. There was
no attempt on the part of the official body to distort the real facts of
the case. They straightforwardly avowed their independence of public
opinion, and sneered at arguments founded on the doctrine of ministerial
responsibility. They proclaimed their immunity from all outdoor
influence whatever, and smiled pleasantly when taunted across the floor
of the Assembly with repeated violations of the constitution. Rolph,
Bidwell, and other Reform members in the House were sufficiently masters
of themselves to argue this and other questions on purely public
grounds, and without gross violations of the laws of Parliamentary
discipline. This, however, Mr. Mackenzie's impetuous temperament
prevented him from doing, and as he was not in the House he felt at
liberty to give full rein to his impetuosity. He made every important
question a personal matter between himself and each individual supporter
of the Government who contradicted him. Through the columns of his paper
he poured out much bitter invective. What he said was for the most part
undeniably true, but he had such an offensive way of expressing himself
that the amenities of journalism were constantly violated. By this means
he brought down upon his head the rancorous hatred of those whom he made
the objects of attack.

The feelings entertained towards him by the members of the Government,
and by the Tory party generally, were largely personal and independent
of politics. The conflict between them may be said to have begun before
the removal from Queenston to York, and indeed almost before the ink was
dry upon the first number of the _Advocate_. In that number Sir
Peregrine Maitland, the Lieutenant-Governor, was accused of indolence,
and of being the cause why Upper Canada was less progressive than her
enterprising republican neighbour. He was referred to as one who, after
spending his earlier days in the din of war and the turmoil of camps,
had gained enough renown in Europe to enable him to enjoy himself, like
the country he governed, in inactivity; whose migrations were, by water,
from York to Queenston and from Queenston to York, like the Vicar of
Wakefield, from the brown bed to the blue, and from the blue bed to the
brown. Such comparisons as these could not be expected to find much
favour with Sir Peregrine, more especially as they notoriously contained
more than a _soupçon_ of truth. The faction naturally sympathized with
the Lieutenant-Governor, and only waited a suitable opportunity to give
adequate expression to their abhorrence of Mackenzie and his doctrines.
As for Sir Peregrine, he was ready enough to coöperate with his
supporters in any proceeding for the suppression of this free-spoken and
most objectionable little Radical, who dared to wag his plebeian tongue
against the son-in-law of a Duke. An occasion for the first overt act of
hostility was afforded by certain rites connected with the erection of
the monument on Queenston Heights to the memory of Major-General Sir
Isaac Brock. The construction of the monument having been determined
upon, and considerable sums of money having been granted by Parliament
for the purpose, commissioners were appointed to superintend the work,
which was duly proceeded with. The second funeral of the dead hero, and
the removal of his remains from Fort George, had been fixed for the 18th
of October (1824), being the twelfth anniversary of the battle; but in
the interim some of the local magnates of the Niagara District resolved
that the foundation-stone should be laid with masonic honours. The 1st
of June was appointed for this ceremonial, and on that date a
considerable number of persons assembled on the Heights to witness it.
Mr. Mackenzie, who, it will be remembered, then resided at Queenston,
seems to have taken an active part in the proceedings, and this with the
full consent and approval of the committee of management. A glass
vessel, hermetically sealed, and enclosing a number of coins and a copy
of _The Upper Canada Gazette_, together with the recently-issued first
number of _The Colonial Advocate_, was produced for the purpose of being
placed within the hollow of the foundation-stone. The vessel and its
contents, enveloped in an otter's skin, were placed by Mr. Mackenzie in
the cavity, the spectators looking on in quiet approval. The stone was
then touched with the trowel, the deposit was covered up, and the rite
was complete. An account of the proceedings found its way into the
newspapers, and Sir Peregrine Maitland learned, to his intense disgust,
of the part which Mackenzie had been permitted to take in the ceremony.
He sent for Colonel Thomas Clark, one of the commissioners appointed by
Parliament to superintend the construction of the column, and, in a
voice of undisguised passion, gave orders to that gentleman that the
glass vessel should forthwith be disinterred, and the copy of the
_Advocate_ removed therefrom. The mandate was of course obeyed. As the
column had by this time reached a considerable height, the excavation
was no slight task. Mr. Mackenzie himself, who personally attended at
what he called the "premature resurrection," claimed and obtained
possession of the number of the paper which had caused so much
unnecessary labour and ill-temper.

From this time forward there was almost incessant warfare between Mr.
Mackenzie and the official party: warfare sometimes suppressed,
sometimes altogether concealed for a brief season, but always ready to
break out upon the slightest pretext--sometimes, indeed, without any
apparent pretext at all.

Soon after the _Advocate's_ removal to York, and not long before the
opening of the Legislature, the Honourable D'Arcy Boulton, one of the
puisne judges, laid himself open to attack by conduct of the most
reprehensible kind. In a case tried before him, in which his son, the
Solicitor-General, appeared on behalf of the Crown, the Judge displayed
such gross partiality that one cannot read the report of the
proceedings, even as chronicled by one of the organs of the Government,
without mingled feelings of wonder and disgust. At the present day such
conduct on the part of an occupant of the judicial bench would bring
down upon his head the animadversions of the press of the whole country.
Sixty years ago it passed without editorial remark from any of the
journals of the time, with the single exception of the _Advocate_, which
certainly used some very plain words in characterizing the Judge's
behaviour. It appealed to the Legislature to address the Governor on the
subject, with a request to dismiss from office the whole of the Boulton
race, root and branch. "If a Government emanating from England," wrote
Mr. Mackenzie, "can cherish such a corrupt, such a Star Chamber crew,
then the days of the infamous Scroggs and Jeffries are returned upon us;
and we may lament for ourselves, for our wives and for our children,
that the British Constitution is, in Canada, a phantom to delude to
destruction, instead of being the day-star of our dearest liberties."

Such language as this, which was a mild specimen of the writer's
trenchant style, was not, upon the whole, too strong for the occasion.
In other instances he was roused to greater fury on less provocation,
and used phrases unbefitting the columns of any paper which aspires to
be a public instructor. But he was not alone in his scurrility. Some of
the persons attacked in the _Advocate_ retorted upon the editor through
the official press in language far less defensible than his own. He was
denounced as an upstart and a demagogue, whose low origin placed him far
beneath the notice of gentlemen. This language, be it understood, was
used by at least one wealthy and influential personage whose own origin
was such that Mr. Mackenzie's might have been pronounced aristocratic by
comparison. To all such vapourings Mr. Mackenzie responded in the
_Advocate_ in kind. He had a large vocabulary of Billingsgate at his
command, and as his temper became thoroughly aroused he proved that he
could fully hold his own in this sort of wordy warfare. He followed the
example of his antagonists, invaded the sanctities of private life, and
descended to outrageous personalities. The persons thus placed in the
journalistic pillory were merely paid back in their own coin, but they
had never been accustomed to yield to others the privileges they claimed
for themselves, and could not understand how "this fellow" dared presume
to retort the foulness hurled at him. His paper meanwhile enjoyed a
fair circulation, and his enemies periodically saw themselves held up
before the people of the Province in a light well calculated to bring
down public execration upon them. They winced, and hated their aggressor
with a hatred which knew no bounds.

Before the close of the first session of the Ninth Parliament, in 1825,
the struggle between the two political parties had assumed a distinct
form. The Opposition contended for a responsible Executive; the
Government repudiated the contention with sarcastic contempt. There were
various other grounds of dispute, but this great question overshadowed
and practically included all. It cannot truly be said that there was
much perceptible progress in reform during the session; indeed material
progress was impossible so long as the Government controlled the
Legislative Council, and while the Executive Councillors held on to
office in spite of the hostile votes of the Assembly. The way towards
reform was however paved by the debates. Never before had the Government
of Upper Canada been subjected to the incessant criticism of a watchful
and vigorous phalanx of censors within the walls of Parliament. They
were not wise enough to read the signs of the times, and would yield
nothing to the demands of their opponents. They still believed in the
efficacy of repression, and the next few years were marked by a series
of high-handed persecutions which did more to speed the progress of
reform than all the eloquence of Rolph and Bidwell could have effected
in half a century.

As for Mackenzie, he would doubtless have been dealt with as Gourlay had
been, could such a course have been adopted towards him with safety.
Isaac Swayzes in abundance might no doubt have been found to swear that
the obnoxious personage had not been a resident of the Province for the
preceding six months. Doubtless, also, phrases had been used in the
_Advocate_ which, isolated from the context, might have been tortured
into something like sedition. But the party in power were not so dull as
to be unable to perceive that _that_ experiment must not be repeated.
The Liberal schoolmaster had been actively at work within the last few
years, and any attempt to re-enact that glaring iniquity would, to say
the least, be attended with serious risk to the actors. The most
feasible method of disposing of the noisy little firebrand presented
itself in the shape of successive indictments for libel, to which his
aggressive and unguarded mode of writing would be certain to expose him.
It is of course impossible to obtain direct evidence of an express
conspiracy on the part of the Government to destroy him by such means. A
conspiracy of that nature would not be likely to take the shape of a
written contract which might be produced against the contracting parties
in the future. Nor would the parties to such a conspiracy be likely to
leave any written traces of it behind them. Still, anyone who has the
opportunity and inclination to go minutely into the question will be
irresistibly driven to the conclusion that there was some sort of
understanding among the chiefs of the official party that the
publication of the _Advocate_ was to be stopped, and that its editor was
to be either driven out of the country or reduced to silence.

In the meantime Mr. Mackenzie himself had serious difficulties to
contend with. The _Advocate_, notwithstanding its considerable
circulation, did not yield any appreciable income. Subscribers were
backward in their payments, and the cost of making collections reduced
the profit to little or nothing. The postage to country subscribers had
to be paid in advance by the publisher, which was in itself a
considerable drain upon his resources. The issue of the paper was
moreover necessarily attended by a good deal of expense. It did not
appear regularly, and the intervals between successive numbers were
sometimes of considerable duration. This irregularity was a serious
drawback to its prosperity, and a source of much dissatisfaction to its
patrons. Such a combination of discouragements could have but one
result. By the beginning of June, 1826, Mr. Mackenzie had been reduced
to serious pecuniary embarrassment, and had temporarily withdrawn
himself from the jurisdiction, pending an arrangement with his
creditors. It is in the highest degree improbable that another number of
the paper would ever have been issued. It was moribund, if not already
dead. But when matters had arrived at this pass, the violence of
Mackenzie's enemies led them to commit an act of lawless ruffianism
which gave the _Advocate_ a new lease of life. The act moreover aroused
much popular indignation against the perpetrators, and a proportionate
degree of sympathy for their victim, to whom it gave additional
importance, while it at the same time materially improved his financial
condition.

During the spring of the year 1826 the _Advocate's_ criticisms upon
certain members of the oligarchical faction were marked by exceptional
acerbity. The persons attacked, however, sought in vain throughout the
closely-packed columns for any material upon which a criminal
prosecution might be founded; for Mr. Mackenzie, whether by prudence or
good fortune, contrived for some weeks to say very acrid things without
rendering himself liable to an indictment. Among the persons who were
compelled to pass through the fire of his criticism was the Honourable
James Buchanan Macaulay, a gentleman who in after years attained the
honour of knighthood, and became Chief Justice of the Court of Common
Pleas for Upper Canada. At the period under consideration he was a
member of the Executive Council, and occupied a high position at the
local bar. The language employed by the _Advocate_ with respect to him
was comparatively mild, and did not even mention him by name. Moreover,
the editor's remarks appear to have been entirely in accordance with
facts. At any rate they were altogether insufficient to account for the
state of ferocity into which Mr. Macaulay allowed himself to be lashed.
He prepared and published a pamphlet, in which he gave vent to such
scurrility as it seems incredible that any man of education, or even of
decent social training, could ever have descended to write. Truly, no
man is ever so effectually written down as when he himself holds the
pen. Those readers who wish to be better acquainted with the depths to
which an angry man can lower himself, and who have not access to Mr.
Macaulay's pamphlet, can obtain some inkling of the truth by reference
to Mr. Lindsey's "Life and Times of William Lyon Mackenzie."[68] As Mr.
Lindsey very justly remarks:--"The cause of the quarrel was utterly
contemptible, and Mr. Macaulay showed to great disadvantage in it." It
seems probable enough that one main object of the publication of the
pamphlet was to goad Mr. Mackenzie into a retort which would render him
amenable to the law of libel. In one sense this plan--if such there
were--succeeded. The _Advocate_ came out with a long reply which
contained an abundance of scandalous matter, a great part of which, as
the writer must have been well aware, had no shadow of foundation in
truth. The matter related not only to persons occupying public
situations, but to individuals altogether unconnected with public life,
including respectable married women and persons who had long been dead.
But most of the statements and insinuations, even those which were
unsupported by a tittle of evidence--nay, even those which were
notoriously groundless--related to and were interwoven with
circumstances which, as the persons involved well knew, would not bear
discussion. It would never do to permit such matters to become the
subject of judicial investigation. Anything in the shape of an enquiry
would inevitably lead to disclosures seriously affecting the honour of
more than one member of the Compact. An indictment, therefore, was out
of the question.

It has often been asserted that the oligarchy are to be held accountable
for the display of ruffianly violence which followed Mackenzie's retort
to Macaulay's pamphlet. In one sense this is true, for it was in
consequence of their long abuse of the supremacy which they enjoyed that
feelings of hatred and enmity were begotten between one stratum of
society and another; and it was this hatred which gave rise to violent
measures. But if it is meant to be implied that the oligarchy, as a
body, conceived the design, or that it was carried out under their
auspices, the implication is too absurd to stand in need of serious
rebuttal. To carry the argument no farther, the body was too numerous to
admit of any general secret coöperation between them for such a purpose.
As simple matter of fact, all knowledge of the contemplated violence was
confined to the breasts of those who took part in it. No one familiar
with the circumstances, however, can doubt that it met with the fullest
approval of the ruling faction after it had been effected, and that, so
far as such a thing was possible, the wrong-doers were protected by them
from the consequences of the outrage. To this charge they must perforce
plead guilty; but there are degrees in guilt, and the endorsation, or
even the approval of an act after it has been committed, is a different
thing from the original conception and carrying out of it. The
respective weight of culpability, in the case under consideration, is a
matter which the reader may very well be left to estimate according to
his own judgment.

And now for the outrage itself.

[Sidenote: 1826.]

The office of the _Advocate_ was situated on the north-west corner of
Frederick and Front[69] streets, in a building which had been the
birthplace of Robert Baldwin, and in which the Cawthras subsequently
carried on a large and very successful mercantile business.[70] Readers
acquainted with the neighbourhood will not need to be informed that this
site is in close proximity to the bay. Mr. Mackenzie, with his aged
mother--who had long before followed him to Canada--and the rest of his
family, resided in the building, which was therefore his home, as well
as his place of business. At about half-past six o'clock in the
afternoon of Thursday, the 8th of June, 1826, in broad daylight, and
while the proprietor was absent in the United States,[71] a raid was
made upon the printing establishment, which, in the course of a few
minutes, was reduced to a state of confusion and chaos. The door was
broken open, the press partly demolished, the imposing-stone overturned,
and a quantity of type battered and thrown into the adjacent bay. The
contents of some of the cases were "pied" and scattered around the
floor. Frames, chases, galleys, composing-sticks and office furniture
were thrown together in one confused heap. In a word, the entire office
was turned topsy-turvy. Mr. Mackenzie's mother, who was then in her
seventy-eighth year, stood and watched the proceedings in a state of
great fear and agitation from a corner of the office.[72]

The most remarkable feature about the whole of this extraordinary
transaction was that there appeared to be no attempt at concealment. It
was carried out as though it had been the most legitimate and ordinary
business enterprise, to which no one could reasonably offer any sort of
objection. The raiders did not think it necessary to wait for darkness,
nor did they resort to any disguises. If they did not court publicity,
they at least took no care to avoid it. They chose a time of day when
the journeymen and apprentices connected with the establishment were
almost certain to be absent, and when there would be no one to oppose
their entrance; though, according to the printed admission of the prime
mover and instigator of the affair, they were prepared, if necessary, to
oppose force to force in order to effect their purpose. As there was
nobody in the office, any such display of force was happily uncalled
for. Having made their way inside, the work of destruction was proceeded
with coolly and calmly, as though there was no necessity for
extraordinary haste. When they had fully worked their will, they
departed as quietly as they had arrived.

The actual perpetrators of this unique act of ruffianism were nine in
number. They were none of them ruffians by profession, and were not
commonly rated as blackguards. They could not even plead the poor excuse
that they were under the influence of strong drink. Most of them were
young men, and nearly all of them were closely identified, either by
interest or by close relationship, with prominent members of the
oligarchy. They were, in short, with few exceptions, the flower of the
aristocracy of the little capital. Chief among them was Samuel Peters
Jarvis, barrister, the slayer of poor young John Ridout, mentioned on a
former page.[73] He, at least, could not plead in extenuation of his
share in the transaction that he had been carried away by the
uncontrollable effervescence of youth, for he was at this time not far
short of thirty-four years of age[74]. His acquittal on a more serious
charge nearly nine years before might well have led him to believe that
he could with impunity set the law at defiance. His identification with
the ruling faction is easily traced, for he was a son of Mr. William
Jarvis, who was for many years Secretary of the Province; and he was
moreover son-in-law to ex-Chief Justice Powell.[75] He himself held a
situation under Government at this time--being Clerk of the Crown in
Chancery--and stood high in the favour of Sir Peregrine Maitland,
towards whom he sometimes acted in the capacity of private secretary. He
was the chief offender, for it was by him that the outrage was planned,
and he was the directing spirit throughout, as well as the most noisy
and impudent apologist for it afterwards. Another active participant in
the raid was Captain John Lyons, a confidential clerk in the
Lieutenant-Governor's office. A third was Henry Sherwood, student at law
in the office of Attorney-General Robinson, and Clerk of Assize. He was
a son of the Honourable Levius Petere Sherwood, one of the puisne
judges, and was also connected with other leading members of the ruling
faction. It is due to him to say that he eventually outgrew the follies
of his youth, and became an able lawyer, a prominent politician, and a
useful member of society. He alone, of all the participators in this
shameful business, attained to anything like honourable distinction. A
fourth member of the gang of kid-gloved housebreakers was Charles
Heward, a son of Colonel Stephen Heward, who, in addition to being an
active spirit among the Compact, was a magistrate, Clerk of the Peace in
and for the Home District, and Auditor-General of Land Patents. The
others were Charles Richardson, a student in the office of
Attorney-General Robinson; James King, a student in Solicitor-General
Boulton's office; Peter McDougall, a well-known shopkeeper in York in
those times; and two sons of the Honourable James Baby,
Inspector-General, and member of the Executive Council. These were all
the active participants in the outrage. While it was in progress a
number of other persons appeared upon the scene, but did not take any
part therein otherwise than as spectators.

It is of course not to be supposed that this incursion was attributable,
either directly or indirectly, to the Government as a body, or that it
had formed a subject of deliberation at the Council Board. The charge
that it was attributable to the entire oligarchy has already been
disposed of.[76] But it is at least fairly to be inferred that, after
the thing had been done, the Government considered themselves as being
under obligations to the misguided persons concerned in it. Several of
the latter received appointments to positions of public trust and
emolument, such as are usually conferred by Governments upon deserving
supporters. Jarvis was successively appointed to various posts, the most
important of which was that of Indian Commissioner, in which capacity he
became a defaulter to the Government, and was involved in serious
pecuniary and other difficulties. The avenging ghost of John Ridout
pursued him, and his subsequent career was not one to be contemplated
with admiration. Richardson, again, was appointed Clerk of the Peace for
the Niagara District. Sir Peregrine Maitland could not pretend to
overlook the dereliction of his confidential clerk, Captain Lyons, who
was accordingly dismissed from that position. But this was not the end
of the story. Many readers are doubtless familiar with Halifax's remark
when Lawrence Hyde, Earl of Rochester, was removed from the post of
First Lord of the Treasury and installed in that of Lord President. "I
have seen people kicked downstairs," remarked the great Trimmer, "but my
Lord Rochester is the first person that I ever saw kicked
up-stairs."[77] In like manner the Lieutenant-Governor's clerk was soon
afterwards kicked up-stairs, by being appointed Registrar of the Niagara
District.

It really seemed as though this wanton and most reprehensible invasion
of private rights was regarded by those in authority as a high and
meritorious action. It was certainly so regarded by "the best society"
of York at the time. The young men, who ought to have been made to
suffer social ostracism, were petted and caressed as heroes who had done
some grand service to the State; and, as will presently be seen, they
were not even permitted to suffer any considerable pecuniary loss by
reason of their breach of the law. Finding that their conduct led to
their being made the subjects of a sort of hero-worship, it is not
surprising that they soon came to pique themselves upon what they had
done, and, so far from feeling any consciousness of shame or regret, to
openly court publicity for their proceedings. Jarvis was especially
culpable in this respect, and was not ashamed to write letters to the
papers on the subject, in one of which he avowed himself as the author
and originator of the outrage. He admitted having led on his band of
semi-official desperadoes, determined to "persevere, if resistance had
been made." As to the morality or immorality of the act, he professed
himself "easy on that head." Such language as this, coming, as it did,
from one who had shed the blood of a fellow-creature upon very slight
provocation; who had been tried for murder, and acquitted because the
crime was sanctioned by the usages of society; and who, moreover, in the
estimation of many people, richly deserved the hangman's noose--such
language, under the circumstances, was not merely injudicious and
unfeeling, but positively revolting. The only conceivable excuse that
can be made for it arises from the fact that Jarvis was at the time
irritated by a succession of attacks in the newspapers, in which his
conduct, bad as it had been, was held up in even a more odious light
than it deserved. The excuse may be taken for what it is worth. It is at
least certain that had the transgressor been imbued with feelings of
ordinary delicacy he would not have permitted himself to be goaded into
using such expressions as are to be found in his "Statement of Facts,"
published at York nearly two years after the type riot.[78] His
callousness stirred the hot blood of Francis Collins, of _The Canadian
Freeman_, to speak his mind editorially on the subject:--"We view it,"
he wrote, "as the greatest misfortune that could happen to any man in
this life to imbrue his hands in the blood of a fellow-man. But as this
barbarous practice has, by long usage, become familiar to the mind of
civilized society, we think it is a misfortune that might occur to an
otherwise virtuous and well-disposed man, and therefore ought not
(unless under aggravated circumstances) to be a reproach either to
himself or to his children; provided that, during the remainder of his
life he will show that caution which becomes his delicate situation, and
prove by his subsequent benevolence that he regrets his misfortune. But
if, after once having stained his hands with human blood, he will act
the desperado, and become a leader in such outrages as may end in a
repetition of his former act--then, we say, he is worthy of reproach,
and ought to be viewed as the common enemy of mankind."[79]

News of the aggression soon found its way to Mr. Mackenzie at
Lewiston.[80] He at once returned to York, and lost no time in
instituting proceedings against eight of the aggressors who had
constituted themselves a vigilance committee at his expense. He brought
a civil action for damages, and erelong these incipient "Regulators of
Upper Canada" began to realize that they had acted with some
precipitation and foolhardiness. It seemed probable that they would be
mulcted in heavy damages; and even these would be no bar to a criminal
prosecution. The aforementioned James Buchanan Macaulay was appointed to
conduct their defence. The plaintiff's attorney was James Edward Small,
a rising young lawyer who afterwards made some figure in political life,
and who belonged to a well-known family in York. Overtures in the
direction of a compromise were made on behalf of the raiders, who
offered first two hundred pounds and afterwards three hundred by way of
full compensation. The smaller amount would have been an abundant
recompense for the actual loss,[81] but Mackenzie felt that public
sympathy was with him, and he was desirous that the facts should go to a
jury. The offer of the defendants was rejected, and the case came on for
trial before Chief Justice Campbell and a special jury in the following
October. Associated with the Chief Justice were the Honourable William
Allan and Mr. Alexander McDonnell, as Justices of the Peace. The
plaintiff's counsel were Marshall Spring Bidwell, J. E. Small, and
Alexander Stewart, of Niagara. The defendants were represented by J. B.
Macaulay and Christopher Alexander Hagerman. These names afford
sufficient evidence that full justice was done to the case on both
sides. Hagerman was a counsel of remarkable ability, and he fought very
hard. His argument was a masterpiece of clever, specious reasoning, well
calculated to produce an effect upon uneducated or half-educated
jurymen. He took an enlightened stand, admitting the advantage to a
community of a free and unfettered press. He then proceeded to argue
away all the consequences of the admission, alleging that the career of
the _Advocate_ had been one of license, and not of mere freedom. But the
evidence of the outrage was clear and unassailable, and the defence did
not venture to call any witnesses. It was proved on behalf of the
plaintiff that three members of the ruling faction, two of whom were
magistrates, had been in close proximity to the scene of the raid at the
time when it took place; and there appears to be very little doubt that
all three must have been eye-witnesses of the outrage. One of these was
the Honourable William Allan, who, at the very moment when this evidence
was given, sat on the bench to the right of the Chief Justice as an
associate judge on the trial. Colonel Heward, whose son Charles was one
of the delinquents, was the other magistrate compromised by the
evidence. The third person alleged to have witnessed the transaction was
Mr. Macaulay, leading counsel for the defence. The utter incongruity and
unseemliness of the whole affair from first to last seems
incomprehensible at the present day. All sense of the fitness of things
seems to have been wanting.

The trespass had been flagrant and bold, and the only question which the
jury had to consider was the amount of damages. There were conflicting
elements among the jurors, who were long in coming to a decision. After
much deliberation they returned a verdict of £625, which sum, together
with costs of suit, was soon afterwards paid over to the plaintiff's
attorney.[82] But the rioters themselves were not suffered to sustain
this loss. Prominent adherents of the official party did not hesitate to
say that by the attack upon Mr. Mackenzie's press and type, and by the
consequent stoppage of publication of his paper,[83] the perpetrators of
the outrage had rendered an essential service to society, by abating an
intolerable nuisance. Under such circumstances it was only just that
society should bear harmless those who had thrown themselves into the
breach and vindicated her rights. It was resolved that a subscription
should be set on foot with this laudable object.

Among the few high Tories resident at York in those days upon whose
characters it is possible for one of modern ideas to look with sympathy,
and even with a considerable degree of admiration, was Colonel James
Fitz Gibbon. The Colonel was a gallant veteran who had fought the
battles of his country on two continents, at Copenhagen and the Helder,
at Fort Erie and the Beaver Dams. His military career was not yet quite
at an end, for he was destined to play an important part in the
putting-down of the Upper Canadian Rebellion; a circumstance which
furnishes a sufficient justification for a somewhat more extended
reference to him in this place than his mere connection with the press
riot would have rendered necessary. He was an Irishman of humble origin,
who had enlisted as a private soldier at the age of seventeen, and who,
by sheer force of energy, bravery and aptitude for his profession, had
fought his way to military rank and honour. After seeing much service on
the continent, and passing through as many adventures as a knight-errant
of old, he was transferred to British North America. His gallant
services in this country are imperfectly recorded in various accounts of
the War of 1812, and in Tupper's "Life of Brock." Every Canadian is, or
ought to be, familiar with the circumstances attending the capture by
him of a force of 450 infantry, fifty cavalry, and two guns, he himself
being at the time in command of only forty-eight men. After the close of
the war he was placed on half pay, and took up his abode at York. He
attached himself to the Provincial militia, whence he derived his rank
of Colonel. He likewise obtained a post in the Adjutant-General's
office, and subsequently became Deputy Adjutant-General, which position
he held at the period at which the narrative has arrived. He was also in
the Commission of the Peace, and frequently sat in Quarter Sessions.
His share in suppressing the revolt in 1837 will be narrated in its
proper place. For the rest it may be added that he was always
impecunious, for, apart from the fact that he was no financier, and
never knew how to take care of money when he had any, the expenses of
his outfit when promoted to the rank of Adjutant, in 1806, formed the
nucleus of a debt which hampered him from youth to old age. His
indigence often subjected him to straits which must have been hard to
bear; but he was of a sanguine, joyous disposition, and poverty, though
it might temporarily overcloud his happiness, had no power to break his
indomitable spirit. During his long residence in Canada he was a
persistent seeker after office, because he was almost always in
pecuniary straits; but he fully earned all the emoluments he ever
received from the Government, and if his income had been five times as
large as it ever was he would probably have been neither more
comfortable nor less impecunious. It seemed as though no experience
could lead him to take thought for the morrow. His chief characteristics
were such as are not uncommon among his fellow-countrymen. He was
generous and open-hearted to a fault, ever ready to bestow his last
shilling upon anybody who needed it, or who even made a plausible
pretence of needing it. He was rash, impetuous and indiscreet, but the
ranks of the British army held no braver or more loyal heart than his.
In his simple and gentle soul there was no room for envy or guile. He
seems, indeed, to have been in many respects a sort of Irish reflection
of Colonel Newcome; and the parallel even extended to the outward
circumstances attending the close of their respective lives. Colonel
Newcome, when all his worldly possessions had gone from him, retired to
Grey Friars--the Charterhouse--a retreat for "poor and decayed
brethren," when the world seemed to afford no other asylum. There he
passed the remainder of his days, and there he said "Adsum" when his
name was called for the last time in this world. In like manner Colonel
Fitz Gibbon, when all other resources failed him, was able, through the
kindness of Lord Seaton, to obtain a place in an asylum of somewhat
similar character. At Royal Windsor there is an institution which
provides a retreat from the cares and storms of life for a limited
number of depleted old military officers. The members are styled
Military Knights of Windsor, and the abodes provided for them are
situated "within the precincts." Hither, in 1850, when he had entered
upon his seventieth year, the battered old hero of many fights retired
to pass in quiet the evening of an active life. He survived for more
than ten years, during which period he succeeded in obtaining for
himself and his brother knights certain important privileges of which
they had theretofore been deprived.

Though he was not, in the proper sense of the word, a politician, both
his interests and his superabundant loyalty impelled him to the side of
those in power. No one in the Province had less respect for radicals of
the Mackenzie stamp. It was sufficient for him to reflect that the
official party reflected the might and majesty of the Crown of Great
Britain. His whole nature, fostered by his military training, revolted
at the idea of opposition to those in authority. He was moreover
dependent upon the Government for his place in the Adjutant-General's
office, and would naturally espouse the side of his patrons. The Compact
had no more faithful adherent, and by no one were "low radicals" held in
more profound abhorrence. He was roused to a high pitch of fervour by
the trial of the press rioters, who, in his opinion, had acted in the
most patriotic and praiseworthy spirit. When the verdict had been
rendered, and when it had become manifest that the defendants must pay
the penalty of their acts, the Colonel regarded them as martyrs. He
promptly volunteered to canvass the town for subscriptions to a fund for
discharging the liability, and thus saving "the boys," as he called
them, from loss. He was as good as his word, and the requisite sum was
soon forthcoming. Who the contributors to this fund were has never been
fully revealed, and the secret is likely to be well kept, for the list
was burned by Colonel Fitz Gibbon immediately after it had served its
purpose, and there is probably no man now living who can throw any light
upon the subject. Mr. Lindsey observes[84] that "it is believed the
officials of the day were not backward in assisting to indemnify the
defendants in the type-riot trial, for the adverse verdict of an
impartial jury"--a belief which, under the circumstances, is certainly
not an extravagant one. It was commonly rumoured that several heads of
departments had contributed twenty pounds each to the fund, and Francis
Collins gave currency to the rumour through the columns of his paper.
The controversy to which this gave rise was the indirect means of
furnishing almost the only evidence now obtainable as to the signatures
to the subscription list. Collins asserted that Sir Peregrine Maitland's
own name was understood to be at the head of the list, opposite to a
large contribution. Colonel Fitz Gibbon was so indiscreet as to write a
reply, in which he distinctly declared that the latter's assertion was
wholly untrue, _so far as the Lieutenant-Governor was concerned_. From
this letter, which was duly given to the public in the _Freeman_, it was
not unfairly to be inferred that the assertion, so far as it related to
the heads of departments, could not be truthfully denied. That some, at
least, of the members of the official body contributed to the fund was
matter of notoriety in York at the time, and, so far as I am aware, has
never been denied. The Honourable James Baby, indeed, who was then or
shortly afterwards the senior member of the Executive Council, and who,
as before mentioned, was the father of two of the young men concerned in
the raid, contributed his share with great reluctance. He was at this
time advanced in life--he was in his sixty-fifth year--and he had ceased
to carry much weight in the Great Council of the Province, having been
to a large extent superseded by younger and more energetic men. His
opinions were no longer deferred to as they had once been, and on one or
two occasions he had, as he conceived, been treated with inadequate
respect by some of his junior colleagues. He felt his position keenly,
and there is reason for believing that he would have resigned his office
of Inspector-General and his seat at the Council Board, had it not been
that there were many demands upon his purse, and that he was largely
dependent upon his official salary for the support of his family. On a
subsequent page a notable instance will be given of the degradation to
which his poverty compelled him to submit at the hands of the
Lieutenant-Governor. Under the circumstances, however, he could not
refuse to contribute to Colonel Fitz Gibbon's list; and it is recorded
that when one of his sons called upon him for the amount which he had
subscribed, he handed over the sum with justifiable petulance, saying:
"There, go and make one great fool of yourself again."[85] Such of the
rioters as were possessed of means contributed to the fund according to
their respective ability, but the others were not allowed to bear more
than a very small share of the loss.

The only other documentary evidence to be had on the subject of the
subscribers to the fund is to be found in the "Statement of Facts" of
Samuel Peters Jarvis himself. "I have on my part to assure the public,"
he writes, "that so far from being indemnified by the contributions
which from various motives were made for our relief, the burthen fell
heavily upon such of us as had the means of paying anything; and I
affirm that the share of the verdict which I myself had to defray, from
no very abundant means, was such that if Mr. Mackenzie had made as much
clear profit by his press during the whole time he has employed it in
the work of detraction, he would not have found it necessary to leave
the concern, and abandon it to his creditors." To which statement it may
be added that a gentleman now living in Toronto distinctly remembers
hearing Mr. Jarvis say that his own contribution to the fund was
precisely £109; that that of Peter McDougall was about the same; and
that none of the rest of the rioters paid anything, except through their
parents or relatives.

The civil liability having been discharged, the public looked forward to
a criminal prosecution, for it seemed outrageous that the perpetrators
of such an offence against society should escape without any greater
penalty than had thus far been exacted from them. Mr. Mackenzie himself
seems to have been desirous of proceeding to extremities, although the
amount which he had recovered was far more than compensation for any
loss he had sustained, whether direct or incidental. But the brains of
his professional advisers were cooler than his own, and saved him from
the consequences of his want of judgment. Mr. Bidwell dissuaded him from
taking any steps which might seem to be dictated by a feeling of
revenge. It was represented to him that he was a decided gainer by the
raid, not only in pocket but in popularity. The public sympathy had been
with him from first to last. A policy of war to the knife on his part
would certainly cool, and in some cases altogether alienate that
sympathy. The jury's liberal verdict bad placed him "in funds," and he
was thus in a position to resume the publication of the _Advocate_
under favourable circumstances. The transaction had distinctly
increased his prestige in the rural constituencies, and he might
reasonably hope to be a successful candidate for Parliament when a
suitable vacancy should occur. Such being the position of affairs, he
was strongly advised to let well alone. Contrary to his habit, he proved
amenable to advice, and refrained from a criminal prosecution.

The issue fully justified the advice of Mr. Mackenzie's counsellors.
Several of the newspapers in the Province commended his forbearance, and
contrasted his conduct with that of his enemies. But, it was asked, what
was the Attorney-General about? How was it that he, who never failed to
stretch his authority to the utmost when a Reformer rendered himself
amenable to the law--how was it that he permitted such an outrage as
this to pass without notice? Surely it was his duty to officially
proceed against the wrong-doers. But the Attorney-General was deaf to
all such remonstrances, and did not concern himself with the matter
further than to maintain the most cordial relations with the persons
implicated. How far his conduct in this respect was consistent will
hereafter appear. Colonel Fitz Gibbon was rewarded for his zeal in a bad
cause by receiving the appointment of Clerk to the Legislative Assembly,
and the additional income thus afforded him left him neither better off
nor worse than before.

The participators in perhaps the grossest outrage ever committed in the
Provincial capital thus escaped, for the time, all due penalty for their
misconduct. It may almost be said, indeed, that they escaped altogether,
for though, as will hereafter be seen, seven of them were eventually
brought to trial and convicted at the instance of another person, they
received no adequate punishment, and were thus able to boast that
gentlemen in their station of life in York were above the law.

Rash deeds often produce unlooked-for consequences. So it was in the
case under review. The attempt to suppress the _Advocate_ was the means
of re-establishing it on a fairly satisfactory financial basis, and of
extending its life for about seven years. The indignity to which the
printing-office had been subjected, and the trial resulting therefrom,
had furnished the best advertisements that could possibly have been
desired. With a portion of the sum recovered from the hands of the
spoilers Mr. Mackenzie was able to satisfy the most pressing of his
creditors. With the balance he provided himself with new printing
material, and the _Advocate_ soon made its appearance under more
favourable auspices than ever. It continued to be marked by the same
characteristics as during the first epoch of its existence. It was not
conducted with more discretion, and there were as many gross
personalities in its columns. It however contributed much to the spread
of Reform doctrines, and during much of its life it rendered undoubted
service to the party to which it yielded its support. Had the editor's
judgment been commensurate with his energies, his journal would
undoubtedly have been a great power for good. Even as it was, it
probably acted to some extent as a check upon Executive aggression, and
thus served a beneficial purpose in spite of its many weaknesses and
shortcomings.

As for Mr. Mackenzie, his persecutions were by no means at an end. They
had, in fact, only begun. Of the many other shameful indignities to
which he was subjected--indignities which finally drove him into
rebellion, and involved him in overwhelming disaster--the narrative will
hereafter take full account. It is at present desirable to advert to a
number of other pregnant examples of abuse of power in which Mr.
Mackenzie had no special concern.

FOOTNOTES:

[68] Vol. I., p. 89, et seq.

[69] This portion of Front Street was then and for many years afterward
known as Palace Street. It had been so named, in the early years of
York's history, from the circumstance that it led down to the Parliament
Buildings in the east end of the town, and because it was believed that
the official residence or "palace" of the Lieutenant-Governor would be
built there.

[70] This historic landmark was burned down during the winter of 1854-5.

[71] He had, as previously mentioned in the text, withdrawn from the
Province with a view to a settlement with his creditors. He was at
Lewiston, in the State of New York. In the beginning of the second part
of his pamphlet, published at York in 1826, giving an account of the
affair, he represents himself as having been at Queenston when he
received news of the raid.

[72] The statement to be found in various books--among others in Wells's
_Canadiana_, p. 164, and Roger's _Rise of Canada from Barbarism to
Civilization_, Vol. I., p. 405--that Mr. Mackenzie's mother was grossly
maltreated by the rioters is wholly without foundation. The affair was
disgraceful enough, in all conscience, and needs no fictitious
embellishments.

[73] _Ante_, p. 13.

[74] According to a contemporary pamphlet giving an account of the duel,
which took place in 1817, he was then twenty-five years of age. He would
therefore be at least in his thirty-fourth year at the time of the press
riot in 1826. By reference to the Barristers' Roll I find that he was
called to the bar in Trinity Term, 55 Geo. III., 1815, at which time he
must have been at least twenty-one years old, so that the statement in
the text cannot be far from the fact. It is from him that Jarvis Street,
Toronto, derives its name.

[75] The Hon. W. D. Powell ceased to be Chief Justice during the
previous year (1825), when he was succeeded by Mr. (afterwards Sir
William) Campbell.

[76] _Ante_, p. 129.

[77] Macaulay's _History of England_, Vol. I., Chapter 2.

[78] _Statement of Facts relating to the Trespass on the Printing Press
in the Possession of Mr. William Lyon Mackenzie, in June, 1826.
Addressed to the Public generally, and particularly to the Subscribers
and Supporters of the Colonial Advocate._ York, 1828.

[79] See the _Freeman_ for Thursday, Feb. 21st, 1828.

[80] See note to p. 130 _ante_.

[81] Mr. Mackenzie, when taken before the Grand Jury to give evidence in
support of a criminal prosecution of the type rioters, admitted that his
actual, as distinguished from his incidental loss by the riot, did not
exceed £12 10_s._ sterling.

[82] It was the policy of the official party to suppress, as far as was
practicable, all reference in the public newspapers to the misdoings of
themselves and their adherents. This was but natural. No one likes to
see his transgressions preserved to future ages in all the pitiless
coldness of type, which may rise up against his descendants long after
he himself is forgotten. The following is a complete transcript of the
contemporary report of the trial of these rioters, as published in _The
U. E. Loyalist_, a sheet issued as a sort of supplement or rider to the
official _Gazette_. It appears in the _Loyalist_ for October 21st, 1826:

"_Court of King's Bench._--In the suit of MacKenzie _vs_ Jarvis,
McDougall, and others, for Trespass, the Jury, after a consultation of
twenty-four hours, returned into Court--Verdict for the Plaintiff £625."

This is absolutely the only information obtainable from the contemporary
number of the official organ on a subject which was _par excellence_ the
topic of the time. It may be added that the organ contained no reference
whatever to the type riot until many weeks after its occurrence.

[83] Apparently they were not then aware that the publication had
actually ceased before the riot took place.

[84] _Life of Mackenzie_, Vol. I., p. 99.

[85] See Dr. Scadding's _Toronto of Old_, p. 38. Mr. Baby's idiom was
due to his French origin and training.




CHAPTER VI.

THE CASE OF CAPTAIN MATTHEWS.


Captain Matthews, who, it will be remembered, had been returned to the
Assembly for the County of Middlesex, gave great umbrage to the official
party by allying himself with the Opposition. His birth and social
standing, it was said, unfitted him for such companionship. The Captain
himself was apparently conscious of no incongruity, and bent all his
energies to the advancement of the Reform cause. Upon his first arrival
in the country he could not be said to have had any political
convictions at all. He had been bred a Tory, and his military career had
been such as might naturally have led him to seek his allies in the
ranks of those in authority. But his own experience of the abuses in the
Land Office had impelled him to consider the political situation of
affairs in Upper Canada generally, and the upshot of his deliberations
had been his alliance with the new movement in the direction of Reform.
Being a man of much local influence, his example had won to his side a
number of the Middlesex farmers, more especially in the Township of
Lobo, in which he resided. During his first session in Parliament he
attracted considerable attention to himself, for he spoke frequently and
well, and generally with a humorous eloquence which made him a favourite
with those who were not bitter partisans on the other side.

It was to be expected that Captain Matthew's defection from the
political faith of his ancestors would render him specially odious to
the High Tories of Upper Canada. It was shameful, they thought, that an
officer deriving an income from His Majesty's Government should
entertain, much less give utterance to, such vile democratic opinions as
were constantly heard from his lips. The Captain was indiscreet, and
became more and more outspoken the oftener he was charged with
radicalism; but on no occasion did he utter anything savouring of
disloyalty, for the very sufficient reason that there was no disloyalty
in his heart. It was apparent to the Compact that his influence was most
pernicious to them; yet no feasible plan for getting rid of him
presented itself. Would it not be possible, by a little extra exertion,
to deprive him of his pension? Could this laudable object be
accomplished, the obnoxious Captain, who was of an impetuous
temperament, would probably be goaded into saying or doing something
really culpable--something which would place weapons in the hands of his
enemies whereby he might be effectually silenced. The plan was at any
rate worth trying. A system of espionage was accordingly adopted towards
him.[86] During the sitting of the Legislature, myrmidons of the
Executive dogged his footsteps wherever he went, in order to obtain some
grounds for a hostile accusation against him.

The spies did not have long to wait, for any shallow pretext was
sufficient to serve as a peg upon which to hang an imputation of
disloyalty, and the doomed man himself was unsuspicious of any design
against him. The pretext actually resorted to was so utterly
contemptible that one feels almost ashamed to record the attendant
circumstances.

A company of theatrical performers from the United States visited York
during the session which assembled in the autumn of 1825. The actors met
with little encouragement, and became, in stage parlance, "stranded."
Being reduced to extremity, they resolved upon giving a special
performance for the delectation of the members of the Legislature, whose
patronage was solicited for the occasion. Sixteen or eighteen of the
members--among whom was Captain Matthews--complied with the
solicitation, and the performance took place at the little York theatre
on the night of December 31st. During the intervals between the acts the
orchestra played the national airs, "God Save the King," "Rule
Britannia," and "The British Grenadiers." Several persons in the
audience--Captain Matthews among the number[87]--apparently out of
compliment to the actors, all of whom were from across the lines, called
out for "Yankee Doodle" and "Hail Columbia." The demand was complied
with, at least in part. The orchestra were unable to play "Hail
Columbia," but the audience were regaled with the lively strains of
"Yankee Doodle." Captain Matthews joined in the applause which followed,
and removed his hat, calling upon others to do the same. The weight of
evidence would seem to favour the idea that he was not the first to
raise his hat, or to request the removal of the hats of his
fellow-members. At all events the request was generally complied with.
And this was the gist of the story. Captain Matthews's share in the
events of the evening was the having joined in the demand for the two
objectionable airs, in the applause which ensued upon the rendering of
one of them, and in the request for the uncovering of heads. These dire
offences sealed the doom of a gallant officer who had served his king
for more than a quarter of a century, and whose acquiescence in the call
for the national airs of the republic was probably due, at least in
part, to the effervescence of feeling begotten of a good dinner.

It is difficult to trace, step by step, the progress of the measures
adopted against him. Distorted and exaggerated accounts appeared in _The
Kingston Chronicle_ and _The Quebec Mercury_. But it is hardly likely
that any _ex officio_ notice would have been taken of the affair if the
newspaper reports had not been backed by a specific charge. Captain
Matthews appears to have been secretly accused to the military
authorities. He soon afterwards received a letter from the military
secretary to the Earl of Dalhousie, Commander of the Forces in Lower
Canada, stating that that dignitary's attention had been attracted by a
report in the public prints of a representation that Captain Matthews
had, in a riotous and outrageous manner, in the theatre at York, called
for the national airs and tunes of the United States, "urging the
audience there assembled to take off their hats, as is usual in the
British Dominions in honour of 'God Save the King.'" The letter went on
to say that "finding the statement corroborated, upon inquiry," the
Commander of the Forces called upon Captain Matthews to explain conduct
which was pronounced to be "utterly disloyal and disgraceful." Even this
was not all. By a subsequent letter, received from the Board of
Ordnance, the Captain was directed to repair forthwith to Quebec, and
there remain until he could, by the first vessel in the spring, proceed
to England, there to give an account of his conduct. This order was
stated to have been made in consequence of a communication from the
authorities in Canada to Lord Bathurst, the Colonial Secretary, and by
him transmitted to the Master-General and Board of Ordnance.

Mr. Mackenzie asserts that the object of the authorities was to get the
Captain out of the Province, and thus deprive the Opposition of his
vote, "in order to give the local Government a preponderance in the
Legislature against the people's rights."[88] This, however, can hardly
be accepted as a full or true explanation, as the Captain's absence at
the time would not have given such a preponderance to the Government on
any test vote. The weakening of the Opposition may or may not have been
one of the objects sought to be achieved by the Captain's accusers. If
so, it signally failed. Captain Matthews, be it understood, was not in
receipt of half-pay, but of a pension. He had served twenty-seven years,
and, on his corps being totally disbanded, he had settled in Upper
Canada with the approbation of the Government. Having since been elected
a member of the Provincial Assembly, his first duty was to that body,
and it was necessary that he should obtain its leave before proceeding
to obey the order of the Master-General. Accordingly, on Thursday, the
28th of December, 1826, he rose in his place and made a motion involving
an application for leave of absence. He explained the circumstances,
and, in the course of the debate which ensued, expressly stated that he
asked for leave, not with any desire of its being granted, but merely in
order that the House might do its duty. The Opposition stood faithfully
by him in this emergency. The House felt that the honour of one of its
members was concerned. It refused the application for leave, and, on
motion of Mr. Rolph, set on foot an inquiry into the circumstances on
its own behalf.

The inquiry was searching and minute, and the witnesses were not
examined in presence of each other. Much of the evidence was beyond
measure ludicrous and absurd. The scene at the theatre was described by
one witness after another in endless variety. The merits of "Yankee
Doodle" and "Hail Columbia," philologically and aesthetically, were made
the subjects of the gravest investigation. It appeared that with the
exception of Mr. John Beikie, Clerk of the Executive Council, and a very
few of the townspeople, the audience was entirely made up of members of
the Legislature. There were no ladies present, and, as it was New Year's
Eve, the audience generally felt a considerable freedom from restraint.
Many of the members had partaken freely of the cup that
cheers--assuredly not the cup indicated by Cowper--and were in the
blissful condition of Tam O'Shanter upon a certain memorable occasion to
which no more specific reference is necessary. In plain English, some of
them were so drunk as to be unable to recall anything that occurred. All
were full of mirth and jollity, and the scene enacted was of the most
uproarious description. Three grave legislators "danced while 'Yankee
Doodle' was played." Several others had reached the quarrelsome stage of
inebriety, and, in the language of one of the witnesses, "showed fight."
Mr. Philip Vankoughnet, one of the members for Stormont, was constrained
to admit that he had stripped off his coat, and threatened to knock
somebody down. Captain Matthews, among others, called for "Hail
Columbia" and "Yankee Doodle," but the general opinion among the more
sober of the party appeared to be that he had done so "in derision." It
was a bibulous age, and sobriety was the exception rather than the
rule. The whole affair was little better than a bar-room orgy, and
could properly be regarded in no other light.

When the Assembly's report made its appearance, early in 1827, Captain
Matthews was fully exonerated, so far as that body was concerned, from
everything savouring of disloyalty. "The circumstances of the
transaction"--thus ran the report--"as they are related without the
contradiction of a single witness, irresistibly bespeak the absence of
that disloyalty with which it has been basely attempted to sully the
character of a most honourable man." The report moreover read a sharp
lesson to the promoters of the accusation against him. It declared that
"If every effervescence of feeling upon every jovial or innocent
occasion is, in these Provinces, to be magnified into crime by the
testimony of secret informers--if there can longer exist a political
inquisition which shall scan the motives of every faithful servant of
the public--if the authorities in Canada shall humble the independence
of the Legislature by scandalizing its members and causing them to be
ordered to Quebec, and thence to England, to sustain a fate which, under
such corroboration as Lord Dalhousie received, might cover them with
ignominy, or bring them, however innocent, to the block--or if the
members of our community shall be awed into political subserviency by
fear of oppression, or lured by the corrupt hope of participating guilty
favours, then, indeed, will the prospect before us four, and this fine
Province become a distant appendage of a mighty empire, ruled by a few
aspiring men with the scourge of power."[89]

The Committee professed their inability to learn by whom the pernicious
representations had been made to the newspapers, or to the authorities
in Canada, or from what source Lord Dalhousie had obtained his
"corroboration." They expressed their conviction that there was no
ground for the charge preferred against Captain Matthews, the malignity
and falsity of which they believed to have derived their origin and
support from political hostility towards him.

The United States press was loud in its expressions of contempt. "Behold
how great a matter a little fire kindleth;" said _The New York
Enquirer_--"truly, there is something very undignified in such
vexatious stretches of authority"--referring, of course, to the attempt
to drag Captain Matthews across the Atlantic on a charge depending on
such ridiculous evidence. Attention was drawn to the fact that the
national airs of Great Britain, "God Save the Queen," and "Rule
Britannia," are often heard at theatres and elsewhere in the republic
without any such momentous consequences, and without being received
either with laughter, dancing or contempt. "The evidence," continued the
_Enquirer_, "does not speak very strongly in favour of the amenity and
decorum of the M. P.'s of Upper Canada. If calling for one of our
national airs, in a time of profound peace, within a few miles of the
frontiers, is regarded as an unpardonable crime by the British
Government, who shall wonder or complain that the British people are
full of prejudice against us." The Liberal press of the Maritime
Provinces harped to the same tune. "Really," remarked _The Halifax
Recorder_, "we think people must have their wits about them now-a-days,
if such things as these are to be construed into disaffection."

But though Captain Matthews had been cleared by the Legislature, he had
still to run the gauntlet of the military inquisition. They could not
compel his attendance during the existence of the Parliament then in
being, but they possessed an effectual means of reducing him to ultimate
submission. This power they exercised. His pension was stopped--a very
serious matter to a man with a large family and many responsibilities.
He continued to fight the battles of Reform with dogged courage and
pertinacity as long as his means admitted of his doing so, but he was
soon reduced to a condition of great pecuniary distress, and was
compelled to succumb. Broken-hearted and worn out, he resigned his seat
in the Assembly, and returned to England, where, after grievous delays,
he succeeded in getting his pension restored. He never returned to
Canada, and survived the restoration of his pension but a short time.
Thus, through the malignity of a selfish and secret cabal, was Upper
Canada deprived of the services of a zealous and useful citizen and
legislator, whose residence among us, had it been continued, could not
have failed to advance the cause of freedom and justice.

FOOTNOTES:

[86] That spies were employed by Sir Peregrine Maitland and his Council,
and that certain Government officials were encouraged to act in that
capacity, are facts which will be denied by no one who familiarizes
himself with the local legislative, official and newspaper literature of
the time. An apparently well-informed contributor to _Blackwood's
Magazine_ for September, 1829, in an article headed "Colonial
Discontent," comments on this retrograde system in the following
terms:--"A system of espionage assumes that there is something which
ought to be watched and to be prevented; and as the existence of such a
system probably did exist in Upper Canada during the administration of
Sir Peregrine Maitland, it may be said that so far his Government was
led to act on false principles.... We do not suppose that there was
anything like an organized system, but only that tales to the personal
disadvantage of the Anti-Ministerial party were too readily listened to.
No doubt the members of that party were as credulous in listening to
tales to the prejudice of the adherents of Government, but then they had
it not in their power, like them, to inflict punishment. It is
unnecessary to explain in what manner a system of espionage begets
heart-burnings. It is to the public what tattle and malicious gossip are
to private society, with this essential difference, however, that the
tale of the slanderer is in time forgotten or refuted, whereas the
report of the spy is received in secret, placed in the confidential
archives of office, and referred to as a testimonial of character, in
which such set of testimonials can be applied with effect when the
occasion arises."

[87] Mr. Mackenzie, in his _Sketches of Canada and the United States_,
p. 419, denies that Captain Matthews called for these airs, as stated in
the text. But anyone who carefully examines into the Provincial events
of those times will not be long in arriving at the conclusion that Mr.
Mackenzie's unsupported testimony, more especially as to matters in any
way coming within the scope of politics, is of very little value. The
evidence as to the Captain's having called for "Yankee Doodle" is
conclusive. That his doing so constituted a serious offence is another
matter, as to which there will, at the present day, be very little
difference of opinion.

[88] _Sketches of Canada_, etc., p. 419.

[89] See Journal of Assembly for 1826-7, Appendix P. See also Journal
for 1828, p. 122.




CHAPTER VII.

THE NIAGARA FALLS OUTRAGE.


The case of William Forsyth--commonly known in the chronicles of the
time as the Niagara Falls outrage--differed materially from that of
Captain Matthews, not only in kind, but in degree. In the latter case
there was no gross violation of the decencies of life, or of the outward
forms of law. The mischief was effected by means of spies and secret
information, and the damage inflicted was incidental rather than direct.
The Forsyth case, on the contrary, was more in the manner of the type
riot. It was a violent and utterly unjustifiable exercise of brute
force. But in one important respect it was worse than the type riot.
_That_ display of ruffianism had been accomplished without the open
approbation of the authorities. The Niagara Falls outrage was committed
not only with the full assent, but by the express command, of the
Lieutenant-Governor himself. Not even the poor excuse that it was done
in a moment of anger or irritation could be made for it. It was done
deliberately, in cold blood, and was as deliberately repeated. It was a
simple case of Might _versus_ Right.

A few words of explanation are necessary by way of prologue.

In the year 1786, before the setting apart of Upper Canada as a separate
Province, and just after the commencement of the settlement of the
Niagara Peninsula by Butler's Rangers, the territory contiguous to the
west bank of the Niagara River was surveyed and laid out into lots by
Augustus Jones, a surveyor whose name is familiar to all students of the
early history of this Province. In pursuance of instructions received
from the Government, Mr. Jones, in laying out these lots, made a
reservation of a chain in width--sixty-six feet--along the top of the
bank.

The reservation was made partly with a view to the military defence of
the Province, and partly for the purpose of preserving a convenient
communication.[90] It was expressly specified in the Crown Patents to
the owners of adjoining lands, and embodied in all subsequent deeds upon
successive transfers. It may therefore be conceded that the Crown's
title to the reserved land was indisputable.

In the year 1827, and for some time previously, the principal inn on the
Canadian side of the river at Niagara Falls was owned and kept by one
William Forsyth. The man and his establishment were well known to
travellers, and "Forsyth's" had a high reputation as one of the most
comfortable houses of public entertainment in the country. During the
heat of summer, many residents of York paid more or less frequent visits
to the Falls, not more to enjoy the change of air and the majestic
scenery, than to partake of "mine host" Forsyth's hospitality. The inn
was in close proximity to the great cataract, and was known as the
Niagara Falls Pavilion. It was built on ground that bordered upon and
ran up to the Government's reservation, which alone intervened between
it and the top of the bank.

[Sidenote: 1827.]

Mr. Forsyth drove a flourishing business, but, like some of his
successors at the same spot, his greed grew with his increasing gains,
and he was not content to grow rich by degrees. He determined to augment
his income by the erection of a high post and rail fence, placed so as
to shut out visitors from approaching near to the Falls, and rendering
it necessary for them to pass through his house before the desired view
could be obtained. It should be mentioned that Mr. Forsyth, in addition
to the Pavilion and its immediate grounds, owned the adjoining lands for
a considerable distance, including all the points from which the great
spectacle was to be seen to advantage. By the erection of the fence,
therefore, visitors would be debarred and shut off from all that was
best worth seeing in the neighbourhood, until they had passed through
his inn; and it was of course anticipated that most of those so passing
through would spend more or less money on the premises. There was,
however, one rather serious objection to the contemplated change. It
would involve the enclosure of the Government reservation, a proceeding
which was not likely to be permanently tolerated. Forsyth was probably
ill advised by his attorney in the matter, for he seems to have been
really of opinion that the Government's title to the land was at least
open to question, and he had been permitted to occupy a portion of it
without remonstrance for about six years. Sometime during the early
spring of the above-mentioned year--in time to catch the expected influx
of summer visitors--he carried out his design, and constructed the
enclosure. His house was thus converted into a thoroughfare, which
necessarily gave rise to a greatly increased number of visitors, and to
much additional expenditure within its walls. But the public serenity
soon began to show signs of disturbance. There was a rival innkeeper
named Browne, who was not long in discovering that his own losses were
in proportion to Forsyth's gains. He bestirred himself in the matter,
and soon succeeded in arousing a good deal of indignation in the minds
of visitors. No one was allowed to either enter or pass by his door
without being importuned to sign a petition to the Government, praying
for a removal of the objectionable fence. Other persons residing in the
neighbourhood took umbrage at the innovation, and also made appeals to
the Government on the subject. In this way several numerously-signed
petitions were obtained and forwarded to headquarters.

Such proceedings as these were in themselves reasonable and proper
enough. Forsyth had acted in a selfish and unwarrantable manner, and it
would have been nothing more than he had a right to expect if the
Government had instituted immediate action against him. It would have
been an injustice to the public if he had been permitted to enjoy his
monopoly undisturbed. But neither the trespasser himself nor any of
those who protested against his conduct was prepared for such
high-handed measures as were actually resorted to; measures which
effectually proved the unfitness of Sir Peregrine Maitland for his high
office; which led to his being cordially hated throughout the length
and breadth of Upper Canada; and which doubtless had something to do
with his removal to another sphere of action.

One day about the middle of May, when the enclosure had been erected
about six weeks, and when the season's regular flow of tourists had
fairly set in, the landlord of the Pavilion received a call from Captain
George Phillpotts, of the Royal Engineers, who then held command in the
District. The latter demanded why Forsyth had presumed to fence-in the
Government reserve. Forsyth replied, denying that the reserve belonged
to the Government, and asserting his own title thereto, whereupon he was
informed that unless the enclosure was removed without delay, he,
Captain Phillpotts, would himself undertake its removal. Forsyth
professed to feel strong in his rights, and threatened to prosecute the
Captain or any one else who might interfere with his property. Here the
interview ended. Several days afterwards--on the 18th--the landlord was
summoned to his door by a message that a gentleman there wished to see
him. The gentleman proved to be Captain Phillpotts, who was accompanied
by a sergeant and four other soldiers in fatigue jackets, without arms.
Major Richard Leonard, Sheriff of the Niagara District, and Augustus
Jones, who had made the original survey of the property forty-one years
before, were also in attendance. The Sheriff, who had merely accompanied
the party at the Captain's request, took no part in the subsequent
proceedings, but contented himself with quietly looking on. Mr. Jones
had been brought for a specific purpose, and, at the request of Captain
Phillpotts, he then and there made a hasty re-survey of the reserve, the
limits of which he indicated by pickets. Upon the completion of this
task, the Captain demanded that Forsyth should immediately remove the
enclosing fence, and upon his refusal to do so, the soldiers, under
orders from their Captain, deliberately cut and threw down the fence,
exposing the gardens, meadows and about sixty acres of growing crops to
waste. A blacksmith's shop which had been erected on the reserve was
demolished, and the building material thrown over the bank. The Captain
avowed that he was acting under express orders from the
Lieutenant-Governor, which proved to be the fact.

Having accomplished his purpose, Captain Phillpotts and his soldiers
departed, accompanied by the Sheriff and the surveyor. They were no
sooner out of the way than Forsyth and his servants set themselves to
work to repair damages, and before nightfall the enclosure was rebuilt;
the premises, with the exception of the blacksmith's shop, being
restored to the condition in which they had been before the assault upon
them. But intelligence of the restoration was speedily conveyed to Sir
Peregrine Maitland, who again despatched the same emissary, and the
drama of demolition was re-enacted. The landlord of the Pavilion then
gave up the contest, so far as any attempt at reconstruction was
concerned, and proceeded to obtain redress by due course of law.

Now, it may perhaps be admitted that Forsyth was rightly served, or at
any rate that he deserved little or no sympathy. His enclosure of the
Crown reserve had been without any strict colour of right, and had been
due to pure greed and selfishness. But his blacksmith's shop had been
constructed on the land as far back as 1821, when he had purchased the
adjoining lot from William Dickson, and no one had ever questioned his
right to maintain it there. He seems to have thought that he had as good
a claim to the property as anybody. He had been informed, contrary to
the fact, that the Government reserve extended only to the lower bank,
and did not cover the land at the top. He might easily have discovered
that his information was misleading, but he had not chosen to take so
much trouble, and deserved to suffer the legal consequences of his
neglect. He could undoubtedly have been dispossessed by means of an
action of ejectment, with the costs of which he would justly have been
saddled. But he had a right to expect that, after being allowed to
remain so many years in undisturbed possession, he should only be
dispossessed by civil process. It was not a case where an arbitrary
removal was justifiable, such as may lawfully take place when it becomes
necessary to abate a nuisance. But it was above all things intolerable
that the military should have been employed for such a purpose. Sir
Peregrine Maitland, in sending Captain Phillpotts on the expedition, had
acted, not in his capacity of Lieutenant-Governor, but in that of
Major-General Commanding the Forces in Upper Canada. This it was that
wrought up the public pulse to such a pitch of excitement. This it was
that created a dangerous antagonism between the people and the soldiery,
and led to frequent quarrels and bickerings between them. The Committee
subsequently appointed by the Assembly to investigate the subject echoed
the popular sentiment when they reported that "a person long in
possession of land, like the petitioner, ought to have been ejected by
the law of the land, which is ample, when impartially administered, for
securing the rights of property, but the interference of the military,
by such acts of violence, for maintaining supposed or contested rights,
is justly regarded with jealousy in all free countries, and ought to be
seriously regarded in a colony where the most unprecedented outrages
have been perpetrated without prosecution, and even followed by the
patronage of the local Government upon the wrong-doers."[91] The
presence of the civil power on the occasion, in the person of the
Sheriff, had been even an aggravation of the offence, for the Sheriff
had thus been made to lend his countenance to the proceeding. As for the
Lieutenant-Governor's action in the matter, he himself was solely to
blame, for his intentions were not made known to the Executive Council,
or, so far as appears, to any member of that body. It was simply and
solely a barefaced and most impudent abuse of authority, the
responsibility for which rests upon no shoulders but his own.

Forsyth had no success in his appeals to the law. He brought two actions
of trespass, one of which was against Sheriff Leonard and Captain
Phillpotts jointly, for removing the fence and blacksmith's shop; and
the other of which was against Captain Phillpotts alone for removing the
fence the second time. Sir Peregrine instructed Attorney-General
Robinson to defend both these suits, and to vindicate the Crown's title
to the reserved land.[92] To effect the latter object in the most formal
and decisive manner, the Attorney-General filed an information for
intrusion against Forsyth, upon which a verdict was rendered in favour
of the Crown. The plaintiff altogether failed in his action against
Phillpotts and the Sheriff, and the decision in that case rendered it
useless for him to proceed with the action against Phillpotts alone.[93]

[Sidenote: 1828.]

While those suits were in progress, Forsyth, finding that public
opinion, if not in his favour, was at least hostile to the
Lieutenant-Governor, sent in a petition to the Assembly, setting forth
the circumstances, and praying for redress. This was during the session
of 1828. The Assembly entertained the petition, and appointed a
Committee of Inquiry. The Committee proceeded to inquire accordingly.
While their investigations were in progress they resolved to examine two
of the Government officials, who, as there was reason to believe, could
throw light upon Sir Peregrine's reasons for such arbitrary conduct as
that of which he had been guilty. The officials whose evidence it was
thought desirable to obtain were Colonels Coffin and Givins, both of
whom were heads of departments. The former occupied the position of
Adjutant-General of Militia for Upper Canada; the latter was
Superintendent of Indian Affairs. Both of these gentlemen were summoned
to attend before the Committee at a specified time. In this there was
nothing strange or unusual. It was a matter of frequent occurrence for
officials of the Government, high and low, to be summoned before
Parliamentary committees while the Legislature was in session; and there
was no question as to the right of such committees to require such
attendance. In this instance, however, the persons summoned were not
permitted to obey the behests of the Committee, and in the attendant
circumstances there were pretty plain indications of crookedness and
collusion between the Crown officers and Sir Peregrine Maitland. Each of
the two officers concerned, immediately upon receiving his summons,
caused the fact to be communicated to the Lieutenant-Governor, and each
wrote a shuffling letter to the Chairman of the Committee. Later in the
day the Lieutenant-Governor positively declined to permit the attendance
of the persons summoned, assigning as a reason that he had not been made
acquainted with the facts as to which it was desired to interrogate
them. Now, when one considers all the facts and circumstances of the
case, one is driven to the conclusion that Colonels Coffin and Givins
were in possession of certain information which the Executive, or at any
rate the Lieutenant-Governor, had a strong interest in keeping secret.
Why else were they forbidden to attend? The reason assigned was
certainly not a sufficient one. In the first place it was not founded
upon fact. That the Committee had been appointed for the specific
purpose of investigating the circumstances connected with the Niagara
Falls outrage was matter of common notoriety. When the two Government
officers were summoned to give evidence before that Committee there
could be no doubt that the intention was to examine them touching their
knowledge of the matter in hand.[94] Some years before this time, when
the Compact were all-powerful in the Assembly, as well as in the Upper
House, a custom had been introduced of notifying the Lieutenant-Governor
whenever it was proposed to examine any of the Government officials as
witnesses before a Parliamentary committee. It had been customary to
specify, in the address of notification, the subject on which it was
intended to take evidence. This, however, had been a mere matter of
courtesy and conventionality, upon which nobody had any right to insist;
and the practice had not been uniform or consistent, various instances
having occurred where Crown officers had been summoned and examined as
witnesses without any such notification having been given. Upon such a
flimsy pretext, however, did Sir Peregrine Maitland base his refusal to
permit the two witnesses to attend for examination in the Forsyth case.

The Chairman of the Committee duly reported to the Assembly the
non-attendance of the witnesses, and that body determined that its
authority should not thus be defied and set at naught with impunity. The
chief offender, the Lieutenant-Governor--or the Commander of the Forces,
if he was to be considered as acting in that capacity--was of course
beyond reach, but proceedings were forthwith instituted against the
recalcitrant witnesses. Warrants were issued against them by the
Speaker, in order that they might be brought up before the House, in
custody of the Sergeant-at-Arms, to answer for their contempt. Acting
under legal advice, they declined to submit to such authority unless
compelled to do so by force; and they boldly threatened that in case of
force being resorted to they would prosecute the Speaker. It is to be
presumed that the warrants would in any case have been acted upon, but
this impudent threat left the Assembly no alternative. If Government
officers, paid out of the public purse, were to be allowed to defy that
branch of the Legislature which alone represented the popular voice--if
they were to be permitted to treat its mandates with contempt, and to
threaten its representative with ulterior consequences in the event of
those mandates being enforced--then, indeed, liberty and equal rights
were at a low ebb in Upper Canada. The warrants were promptly executed,
the house in which the two officials had ensconced themselves being
forcibly entered for the purpose. Being brought to the bar of the House,
and charged with their contempt, they sought to vindicate themselves by
pleading the action of the Lieutenant-Governor in refusing to sanction
their attendance. The House then adopted a resolution under which they
were handed over to the custody of the Sheriff, and committed to the
common jail of the Home District. They formally notified the
Lieutenant-Governor, through his private secretary, of the calamity
which had come upon them through obedience to his behests, and requested
that the advice and assistance of the Crown officers--that is to say, of
the Attorney-General and Solicitor-General--might be vouchsafed to them.
They however remained in confinement only three days, for the
Lieutenant-Governor, in accordance with an intimation previously given,
prorogued the Legislature on the 25th of March--they had been committed
on the 22nd--and the power of the Assembly to commit did not extend
beyond the time when it was actually in session.

Colonels Coffin and Givins carried out their threat, and sued the
Speaker for damages for false imprisonment. The right of the Assembly to
commit for contempt was however a matter too well established, and was
confirmed by the Court of King's Bench in another cause then pending. So
that the Adjutant-General of Militia and the Superintendent of Indian
Affairs, in addition to their respective bills of costs, had their three
days' imprisonment as a reward for their fealty to Sir Peregrine
Maitland, and for their disloyalty to the Canadian people.

Sir Peregrine appears to have felt a little dubious as to how his
proceedings would be regarded at the Home Office. It was quite certain
that the Colonial Secretary would hear of the affair, but that
dignitary's approval was open to question. It would at all events be
well that the official mind should receive its first impression on the
subject from Sir Peregrine himself, who accordingly lost no time in
sending over his own version of the transaction. His despatch, which
bears internal evidence of having been written or revised by
Attorney-General Robinson, is dated the 29th of March--the fourth day
after the prorogation. Under the pretext of asking for advice as to how
he should act in the future in case of any of the officials being
summoned before Parliamentary committees without any notification having
been made to himself, he recounts the story of the Niagara Falls
outrage. His narrative, it is almost needless to say, is from first to
last garbled and one-sided. Forsyth is referred to therein as "a person
notoriously of indifferent character;" and the Assembly and its
committees are maligned in language highly improper to be employed in a
confidential communication from the Lieutenant-Governor of a colony to
his superiors at home.[95] The Colonial Secretary, however, was shrewd
enough to penetrate the veil of misrepresentation in which the despatch
was enveloped, and to arrive at a pretty just appreciation of the merits
of the case. He officially expressed his opinion that there had been
adequate grounds for inquiry by the Assembly. "I cannot but consider,"
he wrote, "that Sir Peregrine Maitland would have exercised a sounder
discretion had he permitted the officers to appear before the Assembly;
and I regret that he did not accomplish the object he had in view in
preventing Forsyth's encroachments by means of the civil power, which is
said to have been at hand, rather than by calling in military aid." This
despatch, however, was written, not to Sir Peregrine Maitland himself,
but to his successor, Sir John Colborne. The Forsyth case, coming, as
it did, in the wake of other ill-advised proceedings on the part of Sir
Peregrine, determined the Home Government to withdraw him from Upper
Canada, where it was quite evident that his usefulness--if he had ever
had any--was gone. He was transferred to Nova Scotia, whither it is not
necessary that this narrative should follow him.

With respect to Forsyth, it may he added that, being unable to obtain
any recompense for the Phillpotts invasion, and being harassed by
protracted litigation, he sold his property at Niagara Falls at a price
considerably below its value, and removed from the spot. It cannot be
said that he deserved much sympathy, for he had brought his losses on
himself by his own selfishness. He took advantage of the situation to
pose in the character of a martyr to Executive tyranny, and he succeeded
in deceiving many of his contemporaries into the belief that he was a
much injured man. The historical interest, however, centres not in him,
but in the consequences arising out of the employment of soldiers to do
the Sheriff's work in a time of profound peace, and without any
initiatory civil process having been issued. The popular excitement
consequent on the outrage encouraged Forsyth to petition the Assembly.
The petition led to the appointment of the Committee of Inquiry, which
in its turn led to the summoning of witnesses and the conflict between
the Assembly and the Lieutenant-Governor. The conflict led to the
latter's removal, and, from that point of view, is not to be regarded in
the light of an unmixed evil.

FOOTNOTES:

[90] See the letter from Chief Justice Robinson to Lieutenant-Colonel
Rowan, Secretary, etc., etc., dated at York, 31st December, 1832, and
appended to the Report of the Committee of the House of Assembly on the
Petition of William Forsyth, dated April 1st, 1835. In one part of this
letter the Chief Justice says that the laying out of the lots took place
"some time between the years 1785 and 1790, and while General Haldimand
administered the Government of Canada." General Haldimand did not
administer the Government of Canada during any part of the time thus
specified--a fact of which Chief Justice Robinson ought to have been
aware. In a subsequent part of the same letter he properly gives the
date as 1786.

[91] See the report, p. iv., appended to the _Seventh Report of the
Grievance Committee_.

[92] The defence of these two suits would seem to have been the means of
considerably augmenting the Attorney-General's already ample income.
From certain accounts sent down to the Assembly it appears that a sum of
_£127 6s. 6-3/4d._ sterling were paid to him during the year 1834 for
"expenses incurred by him in defending two suits with costs in reference
to the military reserve near the Falls of Niagara."

[93] There was a very general belief throughout the Niagara District at
the time that Major Leonard, who was an obedient servant to the
Executive, had manipulated the lists from which the jurors in those
cases were selected. The truth or falsity of the belief cannot now be
pronounced upon, the circumstances upon which it was founded being
buried in oblivion.

[94] "He [Sir Peregrine Maitland] must have inferred that the Committee
proposed to examine these officers respecting the employment of a
military force for the ejecting of Forsyth from the land."--See Despatch
from the Colonial Secretary, Sir George Murray, to Major-General Sir
John Colborne, dated 20th October, 1828, appended to the Report on
Forsyth's petition.

[95] See the despatch, appended to the Report on the Forsyth Case, at
end of Grievance Committee's Report. The Colonial Secretary's despatch
quoted in the text will be found appended to the same Report.




CHAPTER VIII.

THE "AMOVAL" OF MR. JUSTICE WILLIS.


The Forsyth embroilment extended over a long period, and from time to
time during several years it continued, at longer or shorter intervals,
to thrust itself upon public attention. Meanwhile it was not the only
instance of abuse of power on the part of the Executive to which the
people of Upper Canada were constrained to submit. Several other notable
contemporaneous examples shared with it in the unenviable work of
widening the breach between the Government and the people, and in
destroying popular confidence in the impartial administration of
justice. It is a rather singular fact that of all the many high-handed
measures resorted to during the existence of the Ninth Parliament, the
one which aroused the greatest indignation was perhaps the least
blameworthy of them all. It has been the fashion with writers who have
dealt with this period of our history to represent the amoval of Justice
Willis as being upon the whole the most glaring iniquity of the time.
This view is not borne out by the facts. In the Willis affair Sir
Peregrine Maitland had recourse to the espionage system, and certainly
went to the utmost verge of his authority, but he cannot be said to have
run violently in the teeth of precedent and good sense, as was done, for
instance, in the Forsyth case. Nor can it be said that he acted with
despotic rashness or precipitation. His decade of misrule in Upper
Canada was characterized by many cruel, tyrannical and shameful deeds:
deeds which stare out from the pages of the past with lurid
distinctness. He has enough to answer for at the bar of history; and it
is quite unnecessary to load the formidable indictment against him with
surplusage or dubious matter. A careful and dispassionate examination of
all the circumstances in the Willis case must convince the inquirer that
the faults were not all on one side, and that the Judge himself is
bound to at least share with Sir Peregrine the responsibility for the
bitterness arising out of the "amoval."

John Walpole Willis, whose name was destined to win considerable
celebrity in the judicial annals of this Province; was a lawyer of good
standing at the English Chancery bar. He came of a respectable county
family, but had no hereditary expectations, and from his earliest youth
had applied himself to study with a zeal begotten of the conviction that
he would be compelled to depend upon his own exertions for a livelihood.
He devoted himself with assiduity to studying the literature pertaining
to the equity branch of the law. By the time he reached manhood he had
acquired considerable erudition, and it was predicted of him that he
would make a mark in his profession. He did his utmost to justify the
prediction, for he had no sooner been called to the bar than he came
before the world as an author. His first publication was a work bearing
upon the law of Evidence. In 1820 he issued a work on Equity Pleading;
and in 1827 appeared his treatise "On the Duties and responsibilities of
Trustees." These works obtained a fair share of recognition, and
doubtless tended to promote his professional success. He enjoyed the
reputation of being an industrious and painstaking lawyer, and a
brilliant and accomplished member of society.

In 1823, when he had reached the age of thirty-one years, he was applied
to for professional advice by the Earl of Strathmore. This event was
destined to have important consequences. The advice led to important
professional employment extending over several months, during which the
clever lawyer was a frequent guest in the Earl's household, and on terms
of intimate social intercourse with the family. In an unhappy hour for
his future peace of mind he formed an attachment to Lady Mary Isabella
Bowes Lyon Willis, one of his lordship's daughters. His attachment was
reciprocated by the young lady, who was possessed of great personal
attractions, and who might doubtless have looked forward to a more
ambitious match; but her noble father had little to offer in the shape
of dowry, and did not oppose her wishes. The marriage took place at
Marylebone Church, in August, 1824. The bridegroom was then thirty-two
years of age, and the bride had just completed her twenty-second year.
This disparity was not sufficient to excite any remark, for Lady Mary
was mature for her age, and the bridegroom had scarcely taken leave of
his youth. For about three years after the marriage the pair resided
with Mr. Willis's mother, at Hendon, a pleasant suburb lying to the
north-west of London; he meanwhile continuing the practice of his
profession in town. All these circumstances materially contributed to
the shaping of the young barrister's future career.

[Sidenote: 1827.]

Mr. Willis enjoyed the social advantages which his union with a
nobleman's daughter was certain to confer. These advantages were fully
appreciated, but they involved certain inevitable consequences, the
principal of which was a material increase in the domestic expenditure.
As neither Lady Mary nor her husband was possessed of much property, and
as the latter's income was almost entirely derived from his profession,
he resolved to try for some public appointment whereby his pecuniary
condition might be improved. Early in 1827 the project of establishing a
Court of Equity in Upper Canada was for a short time under some sort of
consideration at the Colonial Office. Through the influence of his
father-in-law, Mr. Willis was mentioned as a most suitable man to
undertake that important duty. His heart responded to the idea. He felt
that he was well fitted for such a responsibility, and that a congenial
sphere of usefulness would thus be presented to him. His vanity also
seems to have been flattered by the prospect of being raised to the
bench--even the colonial bench--at so early an age. Visions of social
and intellectual supremacy among the magnates of Upper Canada doubtless
presented themselves in alluring shapes before his mind. He had no
difficulty in obtaining a promise that in the event of the contemplated
appointment being made it should be offered to him. The project,
however, was still in embryo, and--as the event proved--was not fully
carried out until about ten years later. It was meanwhile desirable that
a puisne judge of the Court of King's Bench for Upper Canada should be
appointed without delay, and that position was offered to Mr. Willis. It
was at the same time represented to him that his acceptance would in no
wise interfere with the scheme of the establishment of a Court of
Chancery, and that he would be none the less fitted, to carry out such a
scheme from his having resided for some time in the Province, and from
his having become to some extent familiar with local laws and
institutions. After mature reflection he accepted the offer, and set
out for Canada towards the end of the summer, accompanied by his wife,
mother, sister and infant son.

His marriage had not proved in all respects a felicitous one. Lady Mary
was imbued with patrician ideas, and bore herself towards her husband's
family with considerable hauteur. She was very particular in exacting
certain observances in which she considered herself entitled. There were
doubtless faults on both sides. Mrs. and Miss Willis took umbrage at the
patronizing airs of Lady Mary, who, in her turn, complained that she was
made a cipher in her own house. There were also petty jealousies on the
part of Lady Mary, which led to disputes between herself and her
husband. Altogether the domestic establishment at Hendon was not a
harmonious one, but the means of the family were insufficient to admit
of the keeping up of two separate households. The true remedy for such a
state of things lay in the exercise of a spirit of mutual
forbearance--an exercise to which Lady Mary, at least, seems to have
been little accustomed. Under such ominous auspices was the Willis
household transferred from Hendon to Upper Canada.

The Willises reached the Upper Province on the 17th of September, and on
the following day the new judge proceeded to Stamford Cottage, the
summer residence of the Lieutenant-Governor, in the Niagara District.
Having presented the royal warrant for his appointment, together with
certain other documents, he was cordially received by Sir Peregrine. He
dined and spent the evening at the Cottage. In the course of
conversation he referred to the project of establishing a Court of
Equity--which by this time was no secret--and was surprised to find that
the theme was distasteful to his host, who, in a tone not to be
misunderstood, remarked: "Sir, you have not got your Court of Equity
yet." "The words," wrote Mr. Willis,[96] "made some impression at the
time, and subsequent events tended to throw further light upon their
meaning."

Upon his arrival at York, on the 20th, Mr. Willis was welcomed with
apparent cordiality by the judiciary, the bar, and society generally.
The leaders of local fashion vied with each other in their attentions
to the ladies of the family, more especially to Lady Mary, who was
almost overwhelmed with civilities. The new judge was sworn in on the
11th of October. He entered with avidity upon the duties of his office,
and also made himself conspicuous in society, where he was from the
first regarded in the light of a decided acquisition. He entered with
keen zest into plans for party-giving and entertaining, and evidently
derived heartfelt pleasure from receiving and dispensing courteous
hospitalities. He attended several public meetings which had been called
for charitable and other purposes, at all of which he spoke with what
was considered a somewhat perfervid eloquence. In a word, he not only
took the rank to which he was entitled by virtue of his office, but
jumped at once into the position of a leader of society and social
movements. His name was on everybody's lips. Persons to the manner born,
who had been accustomed to fill the foremost places in the public eye,
found themselves, for the time, almost superseded and ignored. Judge
Willis duly appreciated the homage which was rendered to him, and
exhibited himself to society in his brightest and most amiable colours.
To a few great personages, however, it seemed as if the new-comer
carried himself with wonderful _sang-froid_, and contemplated himself
and his position with too much complacency. To them it appeared as if he
regarded all the eager admiration which was lavished upon him as being
nothing more than his transcendent qualifications entitled him to look
for at the hands of the little world of York. He seemed, they thought,
to accept it all as his just due. And the belief was not unreasonable on
their part, for the Judge seems to have been in a measure carried off
his feet by the attentions paid to him on every hand. His position was
one calling for the exercise of calm judgment and discretion. It was not
surprising that leading members of the bench and bar, who had long
served the Government with zeal and acceptance, should entertain some
jealousy at the appointment of an outsider to a place of high honour and
emolument. Attorney-General Robinson, for instance, had filled his
responsible office for many years, and the Crown had certainly no reason
to complain that he had favoured liberty at the expense of prerogative.
Hagerman and Boulton, too, had for years lent themselves to the purposes
of the Executive. It was not singular that these persons should feel as
though their own claims to preferment had been passed over in favour of
Judge Willis, a stranger to Canada, her institutions and her polity. Nor
was it wonderful that their deportment towards the stranger should, in
spite of themselves, be influenced by the feeling. Judge Willie was not
long in discovering that some sentiment of this sort was in the air, but
he does not appear to have made sufficient allowance for it, and
manifested a disposition to carry things with a high hand. He
entertained a poor opinion of the Attorney-General's professional
attainments, and did not sufficiently conceal this opinion. He was at
first disposed to think highly of Judge Sherwood's abilities, but erelong
came to the conclusion that he had greatly overestimated them,[97] and
plainly showed, by his conduct, that he attached little weight to his
brother judge's decisions. This course was the very opposite to what
would have been adopted by a discreet and really able man. Such a man
would have made due allowance for jealousies which, under the
circumstances, were almost inevitable. Such a man would have adopted a
policy of friendly conciliation. Such a man would have refrained from
making himself specially conspicuous, at least until he had been some
time settled in his new career, and had become accustomed to the novel
atmosphere. Judge Willis's conduct was the very reverse of all this. In
his intercourse with his brother judges--one of whom, it must be
remembered, was Chief Justice--he adopted a tone of superiority, and
even, to some extent, of dictation. He was of course not to be blamed
for dissenting from their opinions--which he very frequently
did--provided that he was honest in his dissent; but he acted very
cavalierly on such occasions, and in pronouncing his own judgments
seldom thought it necessary to make any reference to the decisions of
his brethren on the bench. It was impossible for the latter to ignore
the fact that he despised, or affected to despise their legal
attainments; and their recognition of this necessarily gave rise to
irritation and anger on their part. They felt his conduct to be all the
more disrespectful to them in consequence of his admitted want of
familiarity with Common Law, his own reading and practice having been
almost exclusively confined to the Equity branch of the profession.

In the very first judgment ever rendered by him, he gave utterance to
sentiments which, to put the matter mildly, were very much out of place.
The case was one brought by George Rolph, of Dundas, against T. G.
Simons and others, for a gross outrage which had been perpetrated on the
plaintiff, who was a brother of the Attorney-General's great political
rival. The outrage had arisen out of private complications, and no
political question arose in the course of the trial. In concluding his
judgment Mr. Willis took occasion to remark that he had formed his
opinion of the case on its intrinsic merits, unbiased by any political
considerations. He added that he was totally devoid of party feelings,
and that it would ever be his most earnest desire to render to every one
impartial justice. It goes without saying that these are very proper
sentiments on the part of an occupant of the judicial bench. Such
principles were especially required in Upper Canada, where there had
long been much judicial partiality and frequent miscarriages of justice
by reason of political differences. But a judge should at least assume
that his integrity is taken for granted, and should deem it beneath his
dignity to attempt any vindication of his rectitude while an occupant of
the bench. Moreover, there were no circumstances to call forth such
expressions as were used by Judge Willis. No hint of any partiality had
ever been heard against him. There had been no opportunity for any
display of partiality by him, for he then took his seat on the bench for
the first time. Saith the proverb: "He who makes unnecessary excuses
accuses himself." In this case the Judge certainly indulged in wholly
unnecessary self-vindication. And there were reasons why any such
vindication by him was especially indelicate. The Radical newspapers had
heralded his arrival as the dawn of a new era, when judicial corruption
would cease in the land. It is pretty evident that he had been flattered
by the eulogy, and that he now went out of his way to administer a
covert reproof to his colleagues on the bench. His remarks were
undoubtedly taken in that sense, and tacitly resented by them. It may
have been that they were all the more ready to take the remarks as
applying to themselves from their consciousness of past shortcomings;
but it was not from a brother on the bench--one, too, who had been only
a few weeks in the country--that they should have been subjected to
reproof.

To the feelings of his colleagues, however, Mr. Willis paid little
consideration. His heart was specially set upon the establishment of a
court of equitable jurisdiction, and to this end he bent much of his
energy. He forced the matter upon the attention of the Attorney-General,
who, he found, differed from him in respect of certain important
details. He also prepared and submitted a scheme to the
Lieutenant-Governor. He found great difficulty in inducing any member of
the Government to discuss the matter with him. He was informed that an
Act of the Provincial Legislature was considered necessary to the
creation of such a court as the one contemplated by him. In this opinion
he did not coincide, but by way of expediting matters he bestirred
himself with a view to bringing about the necessary legislation. After a
Bill, originally prepared by his own hand, had been introduced into the
Assembly, he attended to hear the debates, and fraternized with Rolph,
Bidwell, and other members of the Opposition--a circumstance which was
afterwards very strongly urged against him at the Colonial Office. The
Bill did not run smoothly, and was denuded of certain clauses which he
deemed to be essential to the successful carrying out of the scheme. He
vainly endeavoured to bring the Attorney-General round to his view of
the matter. Mr. Robinson had too long been supreme in all legal affairs
to submit to any dictation, more especially from one towards whom he
bore no good will. Judge Willis found himself opposed and thwarted at
every turn; and he erelong discovered that the Government were averse to
the scheme, although the aversion was not directly avowed. He then
recalled the Lieutenant-Governor's remark on the subject made to him
some months before at Stamford Cottage. Certain dubious expressions
which had from time to time fallen from the lips of the
Attorney-General, the Solicitor-General, the Judges, and other prominent
officials also recurred to his mind. As for Attorney-General Robinson,
"I at length discovered," wrote Judge Willis, "that any proposition that
did not originate with himself was not generally attended with his
approbation."[98]

A despatch from the Colonial Secretary to the Lieutenant-Governor was
promulgated about this time, from which it appeared that the project of
establishing a Court of equitable jurisdiction was in abeyance, or had,
for the time, been abandoned. Judge Willis was greatly disappointed at
this abandonment, which, in conversation, he openly ascribed to the
influence of Sir James Scarlett, the English Attorney-General, with whom
he had once had some unpleasantness while on circuit. But it also became
known about the same time that Chief Justice Campbell was about to
retire from the bench, and that his office would accordingly soon be
vacant. Judge Willis lost no time in making application for the post.
Neither did Attorney-General Robinson, whose application was backed by
the entire influence of the Upper Canadian Executive. Here was a fresh
ground of rivalry, whereby the unpleasant relations between these two
officials were intensified. It soon became impossible for the new Judge
and the Attorney General to come into contact without feelings and
expressions indicative of personal hostility. The hollow friendship
which had at first seemed to subsist between them was cast to the winds,
and all social intercourse between them was at an end. Any proposition
emanating from Judge Willis was systematically opposed by the
Attorney-General. The Judge in his turn availed himself of several
opportunities of showing how little weight he attached to the
Attorney-General's opinions. Worse still, he brought upon himself the
lasting indignation of the Lieutenant-Governor. It would perhaps be more
correct to say that his wife brought this calamity upon him, for the
origin of the trouble was a hot dispute between Lady Mary Willis and
Lady Sarah Maitland on a question of rank and precedence. In this
quarrel it is quite clear that Lady Mary was in the wrong, but the whole
affair was utterly contemptible on both sides. The ladies dragged their
respective liege-lords into the dispute, and each of the latter espoused
the side of his helpmeet. Sir Peregrine necessarily got the better of
his adversary, whom he never forgave. It is impossible to say how far
this unseemly women's wrangle contributed to the humiliation which Judge
Willis was subsequently compelled to endure, but it is pretty clear that
from that time forward Sir Peregrine was bent upon getting his adversary
removed from his position. Unhappily the Judge, by his want of
discretion, made this resolution comparatively easy of accomplishment.
He constituted himself a sort of general censor of judicial and official
shortcomings, and from his seat on the bench gave utterance to petulant
and unbecoming strictures on various transactions with which he had no
need to concern himself.

[Sidenote: 1828.]

At the York Assizes held in April, 1828, Judge Willis came into such
serious public collision with the Attorney-General that the affair was
bruited abroad, and made considerable noise throughout the Province. On
Thursday, the 10th of the month, Francis Collins, editor of the
_Freeman_, was brought up on certain indictments for libel preferred
against him by Attorney-General Robinson, under circumstances which will
be detailed in a subsequent chapter. The bench was occupied by Mr.
Justice Sherwood. The Clerk was just about to proceed to arraign the
accused, when a postponement was asked for on the latter's behalf. The
application was granted, and there the matter ended for the day. Next
morning--Friday, the 11th--the bench was occupied by Justice Willis, who
then for the first time in his life presided at an Assize. He had no
sooner taken his seat than Collins rose at the bar. "May it please your
Lordship," said he, "I have a motion or two to make in Court, if I, not
being a lawyer, am in order in so doing."

"Certainly," replied the Judge; "step forward, that the Court may hear
you."

Collins then stepped forward, and addressed the Court in a speech which
had evidently been prepared for the occasion.[99] "My Lord," said he, "I
am the humble conductor of a public press in this town. I come forward
to accuse His Majesty's Attorney-General of vindictiveness and foul
partiality in the discharge of his duty as prosecuting officer for the
Crown. He has sent his nephews and apprentices as spies into my office
in order to hunt up imaginary offences. He has preferred bills of
indictment against me on supposition of libel, and I have been dragged
from my business by a common constable, and obliged to give bail in this
Court, while he, the Attorney-General, has allowed the most infamous
crimes to pass in review before him, without taking any notice whatever
of them." And so on, with much more to the same purport.

The speaker was interrupted by the Attorney-General, who had been
conferring with a member of the bar in an adjoining room, but who had
been specially summoned into Court by his clerk, Henry Sherwood, who had
informed him that Collins was making a long harangue to the Judge.
Observing that the Judge showed no disposition to put a stop to the
proceedings, Mr. Robinson requested to be informed what was the
defendant's object in addressing the Court, and whether he had made any
motion. "If Mr. Collins is allowed to proceed," replied Judge Willis, "I
dare say his object will appear." Collins accordingly proceeded:--

"My Lord, while I have been dragged into this Court, on the mere
suspicion of libel, by His Majesty's Attorney-General, I hold in my hand
the printed confession of His Majesty's Solicitor-General, Henry John
Boulton Esquire, of a crime that the law of England calls murder,
committed ten or eleven years ago.[100] Yet no indictment has been
brought against him, and this confession is attested by James Fitz
Gibbon Esquire, a magistrate of this District, and by the Sheriff of
this Court. I hold also in my hand the printed history of an outrage of
the grossest character, where a number of young official gentlemen in
this town assembled together and committed a noonday burglary, by
breaking into the private house of William Lyon Mackenzie, and
destroying his property. This atrocious outrage, please your Lordship,
was proved on the floor of this Court, in the presence of His Majesty's
Attorney-General. The perpetrators were identified and sworn to, yet no
indictment has ever been brought against them, while the
Attorney-General is busying himself in sending spies and informers into
my printing office to bring me up for imaginary offences."

The Attorney-General could hardly be expected to sit quietly under such
accusations as these, made in open Court, and listened to by the bench
without any expression of disapprobation. He rose in some heat, and
remarked that he hoped the Court would not allow the public business to
be thus interrupted. "The defendant," said he, "is not upon his trial,
nor has he ever been arraigned. He seems merely to be indulging himself
in an attack upon me as Attorney-General--an attack which could not have
any bearing upon his own case, even if it were now before a jury; but
which at present is nothing but a most improper interruption of the
business of the Court, by an harangue intended to prejudice the public
mind before he shall be put upon his trial. As to the matters of which
he has spoken, I am not to be called to account by him, or by any other
defendant, for the discharge of my official duties with respect to other
parties not now before the Court. I am at all times ready to account for
my proceedings as Attorney-General to the Government for whom I act, and
to whom I am responsible; but I trust that the Court will not suffer a
person whom I merely know as defendant upon bills for libels of the most
disgraceful kind, and whose arraignment upon these charges has been
postponed, as an indulgence, at his own request--I trust that such a
person will not be allowed to address the Court in this irregular
manner, for the mere object of calumniating me, whose duty it is to
conduct the prosecutions against him."

A brief silence followed these words, after which Collins resumed, and
was allowed to proceed without further interruption.

"The object of my present motion, then, my Lord, is to compel the
Attorney-General to do that duty which he has so long neglected when his
own friends were concerned; and as I think his present proceedings
against me are both partial and unjust, I shall press the criminal
prosecution of his friends, Henry John Boulton Esquire, for murder, and
Samuel P. Jarvis and others for riot. In the latter case, please your
Lordship, the rioters were sued in a civil action, and damages to a
considerable amount recovered from them; yet I feel it my duty to press
the criminal prosecution, because James Fitz Gibbon Esquire, a
magistrate of this District, begged the amount of the fine from door to
door in this town, and the rioters have so far gone wholly unpunished.
All I ask, please your Lordship, is justice and impartiality, and from
your Lordship's character I doubt not I shall receive them at your
hands."

After a moment's consideration, during which silence reigned supreme in
the Court-room, Judge Willis remarked:--"If the Attorney-General has
acted as you say, he has very much neglected his duty. Go you before the
Grand Jury, and if you meet with any obstruction or difficulty I will
see that the Attorney-General affords you every facility."

This was, beyond doubt, very unbecoming language to be used by a Judge
under such circumstances. It must be understood that Judge Willis had
not properly before him any facts upon which to base his opinion as to
the Attorney-General's having neglected his duty. That that official had
much to answer for; that his practice had been one-sided and
inconsistent; that much of his life had been spent in endeavouring to
smother public opinion and to maintain the supremacy of a selfish and
corrupt caste--this must be conceded at the bar of history. But no such
allegations were before Judge Willis in an official form, and he had no
right to assume anything against the Attorney-General in the absence of
the most irrefragable evidence. Instead of evidence, he had merely heard
the _ex parte_ statements of an alleged libeller. This was the legal
aspect of the matter, and it is impossible to avoid the conclusion that
the Judge permitted himself to be influenced, by his personal dislike to
Attorney-General Robinson.

The Attorney-General sat for a moment as if thunderstruck. He had so
long been accustomed to having his own way in Courts of Justice, and to
seeing his opinions deferred to by the bench, that he could scarcely
credit what was passing before his eyes. That a Judge should dare to
censure him in this irregular way, before the bar and the public, was
almost beyond belief. A contemporary account says that he turned to "a
rich cream colour."[101] He was at all events labouring under suppressed
rage as he deliberately arose to address the Court. He denied that he
had neglected his duty in not preferring indictments against persons in
cases where no formal complaint had been laid, and he utterly repudiated
the idea that his office imposed upon him the _role_ of a thief-catcher.
"It is not my business," said he, "to play the part of a detective, or
to hunt about the country for evidence in support of voluntary
prosecutions. I have now discharged the duties of a Crown officer for
nearly thirteen years, and this is the first time that a failure in my
duty has been imputed to me. I have always conceived it to be my duty to
take official cognizance of offences against the State. As to other
cases, I have been accustomed to proceed only upon informations and
complaints placed in my hands by justices of the peace, and upon
presentments of Grand Juries. In cases of injuries to individuals and
their properties, such as assaults and riots, where a double remedy is
afforded by action and indictment, I have not been accustomed to set the
law in operation on my own motion."

"That," interrupted Judge Willis, "merely proves that your practice has
been uniformly wrong, and I take leave to remark that you have neglected
your duty. Why are you placed here, as prosecuting officer? To prevent
the violation of the public peace, or, when it has been violated, to
punish the offenders, whoever they may be, or whatever may be your
private feelings with respect to them. The moment a violation of the
public peace was proved before you, as in the case mentioned by Mr.
Collins, it was your duty to proceed against the offenders. Do you not
consider that the Solicitor-General and yourself have the exclusive
right to conduct all criminal prosecutions; or do you admit them to be
open to the bar in general, as in England?"

The Attorney-General's feelings were by this time worked up to a
tremendous pitch of excitement. To think that a Judge--a junior Judge,
who had been only a few months in the country--should presume to lecture
him in this manner, and to instruct him in his duties as though he were
a petty juryman! "My Lord," he burst forth, in a tone of hot anger, "I
know my duty as well as any Judge on the bench. I have always acted in
the way I have indicated, in which respect I have followed the practice
of all my predecessors in this Province; and I shall continue to act in
the same manner as long as I am prosecuting officer for the Crown."

"Then, Sir," retorted Judge Willis, "if you know your duty you have
wilfully neglected it; and as you say you will continue to act as you
have done hitherto, I shall feel it to be my duty--holding, as I do,
His Majesty's commission on this bench--to make a representation of
your conduct to His Majesty's Government."

This far from edifying scene was without precedent in the annals of
Upper Canadian courts of justice, and was for some days the talk of the
town, more especially among the members of the legal profession. The bar
generally sided with the Attorney-General, and were loud in their
aspersions upon Judge Willis. Some of the leading members, however,
among whom were Rolph, Bidwell and the two Baldwins, took a different
view, so far, at least, as the legal aspect of the dispute was
concerned. As for public opinion generally, it was largely in favour of
Judge Willis. On Monday, the 14th, before the public pulse had had time
to cool, there was a scarcely less notable interchange of asperities
between the same personages. The Attorney-General, in a criminal case in
which he was officially concerned, took occasion to reiterate, in
effect, the views to which he had given expression on the previous
Thursday as to the duties of a Crown prosecutor. When he had finished
his remarks Judge Willis expressed himself to the same effect as before.
"The practice in this country," said the Judge, "as stated by the
Attorney-General, does not agree with my notions as to the duty of that
officer, and I have laid a statement of the question before His
Majesty's Government here for the purpose of having it transmitted to
England, where it will be decided how far the Attorney-General is right
in expressing his sentiments as he has done." Mr. Robinson hereupon
remarked that he was Attorney-General to His Majesty, and not to Judge
Willis, and that he would act as he believed to be right, even though he
should differ in opinion from his Lordship.

JUSTICE WILLIS.--Mr. Attorney-General, I am one of His Majesty's Judges
in this Province. As such, it is my place to state to the Crown officers
what their duties are, and it is for them to perform those duties
according to direction. If the interests of the Crown had not been
concerned I would not have permitted any discussion on the question. But
I am sure His Majesty's Government will protect me from insult in the
exercise of my judicial functions, and in stating to any public officer
what I conceive to be his duties.

ATTORNEY-GENERAL ROBINSON.--And will also protect His Majesty's officers
in the execution of their duty.

JUSTICE WILLIS.--Mr. Attorney-General, I beg that you will not reply to
the bench in that manner.

The unseemliness of thus discussing, in open Court, how far the
Attorney-General had proved to be an effective public servant, must be
apparent to everybody. And it must be admitted that the discussion was
provoked by Justice Willis, who had made something very like an attack
upon the Attorney-General--an attack based upon the unsworn statements
of an indicted libeller. He had moreover permitted Collins to go a most
unwarrantable length in his onslaught upon the Crown prosecutor, more
especially as no affidavits had been produced in support of the motion.
A layman who comes before the Courts _inops consilii_ is allowed more
latitude in the conduct of his case than is generally conceded to a
counsel whose professional business it is to plead at the bar; but the
latitude permitted in the case under consideration was beyond all
legitimate bounds. The Judge's dislike to the Attorney-General seems to
have predisposed him to believe that all Collins's allegations were
true. In reality they were exaggerated presentations of notorious facts.
That they were largely founded upon facts Judge Willis probably knew
from common hearsay. But while sitting on the bench he had nothing to do
with common hearsay. _A fortiori_, he was not justified, upon the mere
assumption of a hypothetical case,[102] in admonishing the
Attorney-General in the presence of his accuser, and in humiliating him
in the presence of the bar of which he was the rightful head. An English
judge would be considered as departing widely beyond the sphere of his
duty if he were thus openly to arraign the conduct of the
Attorney-General, especially in a matter clearly lying, as in the case
under consideration, within that officer's discretion. English judges,
on the contrary, are much more likely to interpose on behalf of the
officers of the Crown, and to prevent their acts and motives from being
called in question in open Court by persons against whom proceedings
have been instituted by them. Judge Willis seems to have been wrong in
his law, wrong in his etiquette, wrong in his temper, and wrong in his
construction of judicial amenities.

Henceforth the Judge's "amoval" was only a matter of time, for the
entire influence of the Executive, direct and indirect, was arrayed
against him. From the Lieutenant-Governor down to the most insignificant
clerk in the departments there arose a howl of indignation against the
man who had dared to set up his wife in opposition to Lady Sarah
Maitland; who had dissented from the judgments of Chief Justice Campbell
and Mr. Sherwood, and sneered at their legal acumen; who consorted with
the leading members of the Opposition; who had even gone the
inconceivable length of berating Attorney-General Robinson for
neglecting his duty. Such a man was not to be tolerated. He must surely
be a Radical, who had got himself sent over to this colony in order that
he might stir up dissatisfaction among the people. To go over all the
interminable squabbles which took place between Judge Willis, on the one
hand, and the various judicial and official dignitaries on the other,
would be alike wearisome and profitless. Judge Willis availed himself of
every opportunity which presented itself for officially and publicly
animadverting upon the conduct of those who were opposed to him. He
added to his enormities by announcing, through the newspapers, that he
was preparing for publication a work on Upper Canadian jurisprudence,
and it appeared that the title-page was to bear the deprecatory motto
_Meliora sperans_.[103] _Meliora sperans_, indeed! What manner of
personage was this outsider, who arrogated to himself the responsibility
of ameliorating the rigours of Upper Canadian laws?[104] It was not long
before an opposition announcement appeared, being an exact counterpart
of the other, except that the motto was _Deteriora timens_. The
authorship of the latter, whether rightly or wrongly, was very generally
attributed to Attorney-General Robinson. Judge Willis's announcement
gave great offence to the official guardians of the law, from the
highest to the lowest. The motto, which in reality had been adopted by
him prior to his coming to Canada, was believed to have been specially
assumed for the occasion, and was regarded as a covert sneer at existing
institutions in the Province. As a consequence, it was taken as
additional evidence of disrespect. Owing to the Judge's "amoval" the
projected treatise was never issued, though several chapters of it had
actually been written. A small portion of it was incorporated in a work
published by the author in England twenty-two years afterwards.[105]

In an elaborately-worded despatch to the Colonial Secretary, dated the
6th of June, 1828, Sir Peregrine Maitland called the attention of that
official to Judge Willis's announcement and the accompanying motto,
which he declared to be, in his opinion, neither discreet nor delicate,
as emanating from a Judge upon the bench, who had been but a few months
in the Province. The laws of Upper Canada, in Sir Peregrine's
estimation, were highly satisfactory, and needed nothing so much as to
be let alone. "I have been ten years in this government," he wrote, "and
as I have never received any representation against the laws, or the
manner in which they have been administered, I must conclude that the
people are content with both." Content with laws which prescribed
capital punishment for the killing of a cow! Content with laws which had
been conceived in an iron age, and under a state of society which was
now happily passing away! Content with the laws! When a majority of the
population, through their representatives in the Assembly, had for years
been using their utmost endeavours to procure the repeal of the Sedition
Act of 1804! When a Select Committee of the British House of Commons had
directed the attention of Government to this mediævally-conceived
statute, and had expressly recommended its repeal! Content with the
manner in which the laws had been administered, when the trial of Robert
Gourlay was yet fresh in the public memory! When a score of almost
equally vile but less conspicuous perversions of justice were matters of
yesterday! When no obscure litigant could sue a member of the Family
Compact with any assurance of obtaining his rights! When the Reform
newspapers had for years been filled to overflowing with complaints
about the imperfect administration of justice! When a very
strongly-worded complaint of neglect in the administration of justice
had only a few weeks before been made in open court to Judge Willis when
he first took his seat in a Court of Assize! When a large proportion of
the population had ceased to have any confidence in the integrity of the
judiciary! When this want of confidence was shared by several leaders of
the Provincial bar, who certainly had exceptional opportunities for
forming a correct opinion on the subject! The time was not far distant
when one of the most eminent and successful lawyers in the country was
to abandon his profession, owing to this very want of confidence. Truly,
a wonderful manifestation of content with the laws and the manner in
which they were administered. Sir Peregrine thought and acted as other
opponents of reform have acted from time immemorial. He refused to
believe in the existence of discontent which he did not share. He
refused to believe that he himself was not an object of adoration to the
great body of the people, because the official lickspittles by whom he
was surrounded vied with each other in flattering his imbecile vanity.
Had he been left to his own devices he would have been like the doomed
king who refused to believe that his people were hungry until thirty
thousand starving _sans-culottes_ were thundering at his palace gates.

It soon became generally known throughout the country that strained
relations existed between Judge Willis and the whole race of officialdom
at the capital. The new Judge was known to have given expression to a
desire for a reform of the law; and it was commonly assumed that it was
to his liberal ideas that he was indebted for the hostility with which
he was regarded by the ruling faction. The Reform Party warmly espoused
his cause, and their organs devoted much space to extolling his wisdom,
moderation and other high qualities. Addresses to him were circulated
throughout some of the rural constituencies, and there was a manifest
disposition to cater for his favour and patronage. Had he been endowed
with discretion and good judgment he might, without any dereliction from
his judicial duty or integrity, have rendered incalculable service to
the cause of freedom and good government. Doubtless the rendering of
such service would sooner or later have involved him in complications
with the official party, but if he had kept his head it is doubtful if
they could have prevailed against him. Unfortunately he proved to be too
weak for his position, and allowed himself to be completely
out-manoeuvred. He ruined himself, without accomplishing anything for
the cause which he wished to serve. The time was rapidly drawing near
when, by means of a judicial decision, he was to shut the door forever
upon any prospect of his advancement in this country, and when he was to
be made the subject of official communications resulting in his
permanent removal therefrom.

As has already been mentioned, there had been frequent differences of
opinion between Mr. Willis and his colleagues, almost from the beginning
of the former's assumption of judicial functions. The acting justices of
the Court of King's Bench were at that time three in number, and
consisted of the Hon. William Campbell, Chief Justice, the Hon. Levius
Peters Sherwood, senior puisne judge, and Mr. Justice Willis himself.
During the first Term which ensued after Mr. Willis's arrival in this
country--which was Michaelmas Term, 1827--he had occupied the bench
along with the other two judges. In Hilary Term of 1828 the Court had
been presided over by the same three judges, except that Chief Justice
Campbell had occasionally been absent from his seat in consequence of
infirm health. Immediately after the close of the last-named Term the
Chief Justice, having obtained from the Lieutenant-Governor six months'
leave of absence, departed for England, whence he did not return until
after a long holiday. The Court of King's Bench was thus left with only
the two puisne judges, who accordingly presided by themselves during the
following Easter Term. They had by this time come to dislike each other
most cordially, insomuch that it taxed their powers to the utmost to
treat each other with becoming respect. Sometimes the effort was beyond
their power, and they snapped and snarled at one another upon the bench
like two querulous old women. They now differed in opinion upon almost
every case which came before them, and it is impossible to doubt that
their differences were in large measure due to their personal hostility.
This was a serious matter, for, as no third judge was at hand to give
the preponderance of authority to either side, there was a practical
dead-lock in much of the business of the Court. Suitors were put to
serious delay, inconvenience, and consequent expense. Counsel were
profoundly disgusted, and of course took sides for and against. Judge
Willis was so sensible of the deplorable consequences of such a state of
things that, as soon as Term was over, he entered into a minute and
searching investigation of the constitution and power of the Court of
King's Bench as established in Upper Canada.[106] He was desirous of
finding some way out of the difficulty, or at all events of knowing
precisely upon what ground he stood. But a still more serious evil soon
began to loom up before his mind, for the result of his investigations
was a conviction that the Court could not legally sit in Term, unless
the full court--_i.e._, the Chief Justice and the two puisne
Justices--were present.

This conviction was a momentous one, for, if sustained, it would nullify
much that had been done in the Court ever since its establishment in
1794. The frequent practice had been for two Judges, and sometimes even
for only one, to sit during Term; and, as has been seen, Judge Willis
himself had so far acquiesced in this practice as to sit during a part
of the preceding Hilary Term, and during the whole of Easter Term, with
Justice Sherwood as his only colleague. He had however assumed the
prevailing practice to be justified by the constitution of the Court,
and had not examined the matter on his own account until impelled to do
so by the reasons already indicated. He now discovered, as he believed,
that the practice was altogether unwarranted, and that all that had been
done under it was liable to be upset. The first section of the
Provincial Statute under which the Court had been created[107] enacted
that "His Majesty's Chief Justice, together with two puisne justices,"
should preside therein. All the subsequent sections except those
relating to appeals had been repealed by a later Provincial Act,[108]
and although power was given to the senior puisne Judge, in the absence
of the Chief Justice, to _teste_ the process, and to _any_ of the Judges
to sit at _Nisi Prius_, there was no authority to sit _in Banco_,
unless the Court were full. Having arrived at a conclusion on the
subject, Judge Willis at once communicated the fact to the Colonial
Secretary, the communication being made by letter, forwarded through the
Lieutenant-Governor, and left purposely unsealed in order that that
dignitary might possess himself of the contents, to which his attention
was specially called by a separate note. Sir Peregrine could not refuse
to transmit the Judge's missive, but he took good care to malign him in
an accompanying despatch. "It is with pain" he wrote, "I am compelled to
observe that, having presided as a Judge for the first two terms after
his arrival, without finding more occasion than all the respectable
Judges who have preceded him to make the administration of justice
subservient to popular excitement, Mr. Willis has been either unable or
unwilling within the last few months to avoid making his proceedings,
either in the Civil or Criminal Court, the prominent subject of
political discussion, and the pretence of attacks _from the vilest
quarters_, and of the grossest kind, upon those who were associated with
him in the administration of justice, and of whom I shall speak only
justly when I say that the measure of respect and esteem in which their
public conduct has ever hitherto been held, and is now held, by their
Government, and by every person except by Mr. Willis, and by a party
with whom I have lamented to find him associate himself, and _who are
not very respectable in any sense_, is not to be attained but by a long
period of correct and honourable service." The italics are not Sir
Peregrine's, but they are deserving of all the emphasis which
distinguishing type can give them, as exemplifying the way in which the
representative of Majesty in those days was not ashamed to secretly
vilify persons who opposed his policy: persons who, whether contemplated
from a moral or an intellectual point of view, were elevated so far
above him that it is impossible to institute any comparison between
them. Will it be believed that the gentlemen who were "not very
respectable in any sense" were John Rolph, Marshall Spring Bidwell, Dr.
William Warren Baldwin, and Robert Baldwin? Was it not an honour to be
disreputable in such company? Some of these, at least, were men whom no
pressure of outward circumstances could have induced to stab their
bitterest foe in the dark, as this eminently respectable vice-regal
assassin was in the frequent habit of doing in his despatches, and as
he did when he wrote the mendacious words above quoted. Judge Willis
doubtless associated with these men because he found them more to his
taste than anyone else with whom he became acquainted in York. And his
doing so was made much more of than the facts warranted. His
acquaintance with the persons named was not of such a nature as to be
called intimate. In his "Narrative," already quoted from, he has
recorded that to the best of his recollection he never conversed with
Dr. Baldwin, Mr. Rolph, Mr. Bidwell, "or any other person politically
opposed to Mr. Robinson" a dozen times in the course of his life; and in
a separate defence of his conduct written at Bath in December, 1828, he
says: "From what I know of Dr. Baldwin and his family, I must always
sincerely regret that I have not known more."[109]

Having arrived at such a decision as to the constitution of the Court,
and having apprised the Colonial Secretary thereof, he took the earliest
feasible opportunity of making it known to the Provincial bar. At ten
o'clock in the forenoon of the opening day of Trinity Term--which was
Monday, the 16th of June--he repaired to the Court House at York. While
robing himself in the Judge's chamber he was joined by his colleague,
Justice Sherwood, and a few moments afterward they both proceeded to the
Court room, attended by the Sheriff in the usual manner. The Court
having been formally opened, Judge Willis arose and addressed the
audience, standing all the while, after the manner of a counsel at the
bar. In the course of his remarks, which occupied nearly an hour in
delivery, he expressed himself in very positive terms as to the
constitution of the Court. He declared it to be his decided opinion that
the Court could not be legally held without the presence of the Chief
Justice and two puisne Judges; that everything which had theretofore
been done in the Court by two Judges only was null and void; that the
Lieutenant-Governor had no authority to grant leave of absence to a
Judge without the express approbation of the Executive Council; that he
(Judge Willis) had made enquiry at the office of the Executive Council,
and had found that leave had always been granted by the
Lieutenant-Governor alone, in pursuance of which leave Chief Justice
Campbell was now absent from the Province. The manner in which the leave
of absence to the Chief Justice, as well as to many other persons
holding situations under the Provincial Government, had been granted by
the Lieutenant-Governor, was pronounced to be, in Judge Willis's
opinion, not only irregular but illegal, whereby the incumbents had
forfeited their several offices. During the preceding Term an order of
the Court had been passed by Judge Sherwood and himself. That order he
now rescinded, so far as his authority was concerned, and he expressed
his regret that he had entered upon the discharge of his judicial
functions without having previously acquainted himself with the state of
the law. He added that he had felt it to be his imperative duty to
declare his opinion as to the incapacity of the Court to legally proceed
with the business before it; and that, holding that opinion, he had
resolved to decline to sit any longer upon the bench, though he would
remain at hand to attend to any functions which he could legally
discharge.

This extraordinary address, it may be presumed, was not altogether a
surprise to Justice Sherwood, as Justice Willis had previously notified
the Lieutenant-Governor of his intention to give currency to his views
at the commencement of Term, and Sir Peregrine would be certain to
discuss the matter with the Attorney-General, through which medium the
facts would be tolerably sure to find their way to Justice Sherwood. The
latter seemed to take the matter very coolly. He informed the bar that
he would not take upon himself to pronounce an opinion on the subject of
the constitution of the Court, as there was nothing before him which
rendered it necessary for him to do so. He added that he would adhere to
the practice which had uniformly prevailed, and that he would not
hesitate to proceed with the ordinary business of the Court, adjourning
it from day to day as occasion required. Judge Willis, still standing,
then said: "You cannot adjourn a Court that does not exist. The Court is
not legally constituted. Its functions cannot be exercised, and any
proceedings you may take will be void." "I am aware," replied Mr.
Sherwood, "that such is your opinion; but I have a right to mine and I
shall pursue the course I have indicated. If that course,
notwithstanding the practice which has hitherto prevailed, should prove
to be wrong, I shall extremely regret it; but I feel it to be a matter
of too much importance to the business of the country to take upon
myself to vary from it, without the interference of a higher authority."
Judge Willis then briefly repeated his protest, and retired from the
bench. His colleague, after transacting some unimportant routine
business, adjourned the Court until the following day. Throughout the
rest of the Term he was the sole occupant of the Bench.

Judge Willis's conduct on this occasion does not admit of much diversity
of opinion. For one thing, as was subsequently decided by the Privy
Council, he was wrong in his view of the law. This is of itself an
important consideration. But even if his view had been a sound one,
admitting of no doubt, he incurred a very serious responsibility in
giving currency to it at such a time, and in such a manner. His conduct
was certain to produce great excitement and disturbance in the public
mind. It was certain to create an increased distrust of long-settled
institutions, which it was highly essential for the well-being of
society that the public should regard with confidence and respect.
Besides, the rendering of the past and present proceedings of the Court
liable to doubt and uncertainty could not fail to seriously affect the
business interests of the country. If the practice of the Court had been
wrong, and if many of its proceedings were invalid, the wisest course
would have been to quietly take steps to bring about remedial
legislation, whereby all defects might have been cured, without the
serious risk of reviving old animosities and long-settled disputes. But
such a course as Judge Willis saw fit to adopt was wholly uncalled for,
no plea to the jurisdiction having been pleaded in any case before the
Court. It was certain to produce ill, without any possibility of good.
He moreover placed in the hands of the Executive a rod for his own
back--an implement of which they speedily availed themselves to inflict
grievous punishment.

On the following day, which was Thursday, the 17th, Judge Willis
formally notified the Lieutenant-Governor of the public delivery of his
opinion, adding that he was nevertheless most desirous of discharging
such duties as he could legally perform consistently with his view of
the law. Judge Sherwood meanwhile continued to sit on the bench alone,
and to transact such business as came before him. Some influential
members of the bar found themselves in a quandary. After Judge Willis's
decision, they entertained grave doubts as to the legality of the Court,
and hesitated as to the advisability of taking any further proceedings
in cases committed to them, until the vexed question should be settled.
Judge Sherwood, though he had dissented from his colleague's view, and
though he plainly testified by his persisting in sitting and holding
Court that he still continued to dissent, had not given any formal
judgment, nor had he even verbally stated any grounds for his opinion.
With a view to obtaining light for their guidance in this perplexing
emergency, Dr. Baldwin, his son Robert, and Mr. Simon Washburn, another
prominent member of the bar, addressed a written application to the
Court, in the person of Justice Sherwood, requesting to be favoured with
his opinion on the matter. The application was made on Thursday, the
17th, and replied to by Mr. Sherwood in writing next day. The
phraseology of the reply made it quite clear that the Judge felt by no
means strong in his position. "You are desirous," he wrote, "that I
should express an opinion from the bench on the present state of this
Court, but it appears to me any opinion of that sort would be
extra-judicial. No one but His Majesty's Representative has any right to
ask for the opinion of a Judge where no cause or regular motion,
according to the practice of the Court, is pending before him." There
was more to the same no-purport. It was clear that the applicants were
not to receive much assistance from Justice Sherwood in resolving their
doubts. The Judge's response was no sooner communicated from the bench
than the two Baldwins and Mr Rolph then and there threw off their gowns
and left the Court, declaring that they concurred in opinion with Judge
Willis, and that they could not continue to transact business in a Court
which they believed to illegally constituted.

The emergency brought about by Judge Willis's decision, and by his
consequent withdrawal from the bench, was one for which the Executive
deemed it essential to provide without unnecessary delay. It was
manifestly impossible that matters should remain _in statu quo_. The
time for holding the annual circuits was approaching. Mr. Sherwood was
the only Judge remaining on the bench, and a Court composed of a single
Judge is not a satisfactory tribunal for all purposes of justice. The
Council took the opinions of the law officers of the Crown as to the
soundness of the Judge's views with respect to the constitutionality of
the Court of King's Bench. Those opinions were in direct opposition to
the conclusion at which Judge Willis had arrived. The Attorney-General's
was a remarkably exhaustive and lucid exposition of the law bearing upon
the question. It was also free from ambiguity, and left little room for
doubt. These opinions were strengthened by that of Justice Sherwood,
who, at the request of the Executive, also prepared an elaborate paper
on the subject, in which he expressed precisely similar views to those
enunciated by the Attorney-General. The question was then submitted to
the Crown officers whether the Lieutenant-Governor could legally remove
Judge Willis from office and appoint a successor. The answer prepared by
the Attorney-General, and signed both by him and Solicitor-General
Boulton, came with remarkable promptitude. "Upon the points submitted to
us," it ran, "we are of opinion, 1st: That the power to remove an
officer depends on the tenure of his office. In this, as in other
colonies, the appointment of a judge is during pleasure; and we conceive
that in law any person holding an office on such a tenure is removable
at pleasure: that is, at the pleasure of the Lieutenant-Governor, acting
in the name and on behalf of the King. The reasons for such removal are
to be rendered to His Majesty by the Lieutenant-Governor, who is
responsible for their sufficiency.... 2nd: We are of opinion that a
removal of a Judge of the Court of King's Bench necessarily vacates the
office, and that another person may be appointed to fill the vacancy,
subject to be confirmed or disallowed by His Majesty."

The Executive acted with great circumspection. Fortified as they were by
these strongly-worded opinions, and assured as they felt of the legality
of their contemplated proceedings, they did not permit themselves to be
betrayed into indiscretion. On the 25th of the month they addressed a
letter to Judge Willis, referring to his communication to the
Lieutenant-Governor on the 17th, in which he had professed willingness
to discharge such duties as he could legally perform. He was asked what
explanation he had to offer, and what duties he was prepared to
undertake. On the 26th he replied that he did not feel at liberty to
pronounce an extra-judicial opinion, and that he could only define the
precise nature of his duties when the matter should come judicially
before him. The Executive thereupon pronounced his doom, and a writ was
issued whereby he was removed from office until His Majesty's pleasure
should be known. The Lieutenant-Governor, through his Secretary,
notified him that the Council had felt it incumbent upon them to advise
this step.[110] The "amoval" was now an accomplished fact. A vacancy was
thus created on the bench, which was filled on the 2nd of July by the
appointment of Christopher Alexander Hagerman to a puisne judgeship.

The news of Judge Willis's "amoval" spread rapidly through the Province,
and produced widespread excitement. The circumstance that his course had
met with the approval of Rolph and the Baldwins led to the belief among
non-professional people that he was sound on the legal question, and
that he had been driven from the bench because he would not stoop to
corruption. The case of Judge Thorpe was exhumed from the dust of twenty
years, and the amoval of Judge Willis was believed to be a mere
re-enactment of that forgotten iniquity. As for Judge Willis himself, he
determined to proceed at once to England to present his side or his
case, in the form of an appeal from the order of amotion, at the
Colonial Office. Before his departure he received addresses of
condolence from various parts of the Province. Numerously-signed
petitions in his favour were transmitted to the king, and to the several
other branches of the Imperial and Provincial Legislatures. A long
requisition from a number of influential persons in the County of
Lincoln entreated him to represent their constituency in the Assembly.
People who were usually sensible appear to have lost their heads for a
time during this exciting period. A large meeting of the Judge's
sympathizers was held in Toronto, at which Dr. Baldwin and Mr. John
Galt,[111] with their wives, were appointed a Committee to watch over
the interests and insure the protection of Lady Mary and her family
during the absence of her lord; and Robert Baldwin was added to the
Committee as her Ladyship's solicitor.

Judge Willis took his departure from York on the 11th of July. As he
expected that he would very soon be able to procure from the Colonial
Office a reversal of his "amoval," and that he would be reinstated in
his judgeship, to the great discomfiture of the Lieutenant-Governor and
his satellites, he did not think it necessary that his family should
accompany him to England. The suitable disposal of the members of his
household was an embarrassing problem for him. In good sooth, he was in
a situation somewhat analogous to the man in the familiar old story, who
came to the bank of a wide stream, having in his possession a fox, a
goose, and a bag of corn. The application is easy. Mrs. Willis and Lady
Mary could by no means be left to keep house together unless the head of
the establishment was near at hand to keep the peace between them. The
relations between Lady Mary and Miss Willis, though far from amicable,
were somewhat less strained. Mr. Willis accordingly took with him his
mother only, leaving his wife, child and sister behind him; though it is
to be presumed that the above-mentioned Committee had a sinecure, so far
as any special attendance upon or protection over Lady Mary was
concerned.

A series of acrimonious despatches from the Lieutenant-Governor preceded
Mr. Willis across the Atlantic. For weeks--probably for months--before
the delivery of his unfortunate decision, the espionage system had been
put in full operation against him, and measures had been taken to watch
his personal habits and pastimes. There had been a firm determination to
effect his ruin,[112] and the strong suspicion that such was the case
had done much to array a majority of the inhabitants on his side. "It is
my duty to state to you in the most decided terms," wrote Sir Peregrine
Maitland to the Colonial Secretary, on the 6th of July, "that his [Mr.
Willis's] restitution to office, while it would be received by the most
portion of the population as a triumph over the Government which Mr.
Willis has ungratefully and wantonly insulted, would be most pernicious
to the peace of this colony, and an act of the most aggravating
injustice to those faithful servants of the Crown against whom he has,
for unworthy purposes, dishonourably laboured to excite the prejudice
and hatred of the ignorant and malicious." It is worth while to note
that this extract contains a clear admission by the Lieutenant-Governor
that his Government was regarded with disfavour by "the most portion of
the population:" an admission directly at variance with many statements
made by him in former despatches, as well as in speeches to the
Provincial Parliament.

Upon reaching England Mr. Willis put himself into immediate
communication with the Colonial Office. He took up his quarters at the
house of his brother, the Reverend W. D. Willis, at Bath. There he
prepared an elaborate statement of his case, which was duly forwarded to
the Colonial Secretary. After some delay he succeeded in obtaining
copies of the several despatches of Sir Peregrine Maitland in which the
charges against him were formulated with wearisome reiteration. These
indictments against him, which, though signed by Sir Peregrine, were
doubtless in reality prepared by Mr. Willis's arch-enemy,
Attorney-General Robinson, were certainly of the most formidable
character. They went over the whole course of the Judge's procedure,
from the time of his arrival in the Province down to his departure
therefrom. To the serious grounds of complaint which had unquestionably
been given were added numerous delinquencies of the most petty and
trifling nature. It was stigmatized as "a great indecency" that Judge
Willis had been seen in a dress "but little according with his
situation."[113] In view of the interests involved, and of the grave
nature of the questions to be decided, it seems ludicrous that the
appellant should have been called upon to reply to an accusation of this
nature.[114] A perusal of these despatches, however, rendered necessary
a supplementary statement and narrative, wherein every count in the
indictment was either traversed, or, in legal parlance, confessed and
avoided. But Mr. Willis soon found that he was not to gain so easy a
triumph over his enemies as he had previously allowed himself to suppose
would be the case. The question to be decided was a purely technical
one, and after the matter had been for some time under consideration at
the Colonial Office it was referred for decision to the Privy Council,
where it was not disposed of for nearly a year. The conclusion finally
arrived at was that Mr. Willis had been wrong in his view of the
question in dispute, and that the Executive Council, in amoving him from
office, had not acted in excess of their authority. Under such
circumstances his return to Upper Canada was of course out of the
question; but as his conduct was attributed to error of judgment rather
than to any serious dereliction from duty, he received an appointment to
a judgeship in the South American colony of Demerara.

From all the circumstances, then, it is clear that Judge Willis, though
he was in some sense a victim of Executive intolerance in Upper Canada,
was himself largely to blame for his downfall, to which he contributed
by his want of caution and calm good sense. But many of the
circumstances detailed in the present chapter were unknown to the bulk
of the Canadian people, by whom he was regarded as a martyr to his
upright and liberal principles. His amoval produced a wider excitement
than any event since Gourlay's time. It tended greatly to embitter
public opinion, and was unquestionably a strong factor in producing the
discontent which ultimately found expression in open rebellion. For this
reason it has been thought desirable to go somewhat minutely into
details which are in themselves fraught with instruction, and as to
which the people of Canada, even at the present day, are very
inadequately informed.

[Sidenote: 1829.]

Mr. Willis felt his defeat very keenly, more especially as he had
confidently looked forward to a successful termination of his appeal. At
his instigation the subject was brought before the attention of the
House of Commons by Lord Milton, on Tuesday, the 11th day of May,
1830.[115] Sir George's Murray's explanation, which involved a narrative
of the circumstances in detail, proved satisfactory to the House, and
the matter was allowed to drop. But the amoved Judge was fated to have
greater reasons still for deploring that he had ever taken up his abode
in Canada, as his residence there led to the rupture of his family ties
and the total wreck of his domestic happiness. It will be remembered
that Lady Mary and her child, together with Miss Willis, had remained at
York. Upon learning the decision of the Privy Council in his case, Mr.
Willis wrote to his wife and sister, requesting them to dispose of his
house there, and to return home as speedily as possible. During the long
interval which had elapsed since the ex-Judge's departure for England,
the two ladies had been left to amuse themselves as best they could in
the little capital. They occasionally went into society, and received a
certain amount of attention from that portion of it which had been
favourable to Judge Willis, as well as from some of the military
officers stationed there. Among others whose acquaintance they formed
was a certain Lieutenant Bernard, an officer of the 68th Light Infantry,
whose regiment was then in Canada. He occasionally rode out with Miss
Willis, who was an accomplished equestrienne, but he did not appear to
be on specially intimate terms with Lady Mary. On the 16th of May, 1829,
Lady Mary set out for England by way of Montreal, Miss Willis remaining
behind for a week to make a final disposition of the house. On reaching
Kingston, Lady Mary was met by Lieutenant Bernard, who accompanied her
to Montreal, whence the pair several months afterwards fled together to
England, Lady Mary leaving her child behind her in the care of one of
her maids. Mr. Willis brought an action against Bernard, who had by that
time succeeded to a Captaincy. The case was tried in the Court of Common
Pleas at Westminster on Thursday, the 9th of February, 1832, when the
plaintiff recovered £1000 by way of damages. A report of the proceedings
will be found in _The Times_ of the following day.[116]

[Sidenote: 1832.]

It may be of interest to Canadian readers to learn that Mr. Willis was
some years afterwards appointed to a seat on the bench of the Supreme
Court of New South Wales. On the 8th of February, 1841, he was under a
local statute appointed resident Judge for the District of Port Philip.
While officiating in that capacity he came into conflict with Sir
George Gipps, Governor of the Colony, and the Executive Council, by whom
he was once more "amoved" from office. The order of amotion, which was
made on the 17th of June, 1843, was however reversed by the Imperial
Privy Council for irregularity. The Lords of the Judicial Committee,
before whom the case was heard in June and July, 1846, reported that in
their opinion the Governor-in-Council had power in law to amove Mr.
Willis, and that the facts were sufficient to justify his amoval, but
that an opportunity ought to have been afforded him of being previously
heard. The requisite notice not having been given, the omission was held
to vacate the order of amotion, and judgment was rendered
accordingly.[117]

FOOTNOTES:

[96] See his "Narrative of Occurrences in Upper Canada," written from
Bath to the Secretary of State for the Colonial Department, dated 5th
December, 1828, and included in pp. 273-288 of the blue book on the
subject issued by the Imperial Government in 1829.

[97] There is a covert irony in the portion of Judge Willis's
_Narrative_ which refers to this subject. "I wished to think," he
writes, "and from the attention he seemed to pay to business I actually
worked myself up into the belief, which I frequently expressed, that Mr.
Justice Sherwood was a _hard-headed_ sensible man; but I became
convinced that, though right in the former conjecture, yet so far as
legal knowledge or abilities were concerned, I was mistaken in the
latter part of my conclusion." The italics are Judge Willis's own.

[98] See Judge Willis's _Narrative_, ubi supra.

[99] So far as mere diction is concerned I have here chiefly followed
Collins's own report of this episode, as published in the _Freeman_, but
I have also before me the Attorney-General's account, as well as the
more elaborate one of Judge Willis himself, and the three do not
materially differ in this respect.

[100] _Ante_, p. 13.

[101] The _Freeman_, April 17th, 1828.

[102] The case, as put by the Judge, was purely hypothetical. "_If_ the
Attorney-General has acted so and so, he has neglected his duty." See
_ante_, p. 174.

[103] The announcement ran as follows:--"Preparing for publication.--A
View of the Present System of Jurisprudence in Upper Canada; by an
English Barrister, now one of His Majesty's Judges in this
Province.--_Meliora sperans._"

[104] It was time for some one to undertake the duty of ameliorating the
criminal law of Upper Canada, which was that of England as it stood on
the 17th of September, 1792, except in so far as it had been altered by
subsequent legislation. At the Assizes for the Home District, held at
York in the autumn of 1827, within a few weeks after Judge Willis's
arrival in the Province, a boy was capitally convicted and sentenced to
death for killing a cow.

[105] _On the Government of the British Colonies._ London, 1850.

[106] The investigation, according to Judge Willis's own testimony, was
entered into partly in consequence of a suggestion which he received on
the subject. See the text of his written opinion, embodied in pp. 66-74
of the Imperial blue book issued in 1829, entitled "Papers relating to
the Removal of the Honourable John Walpole Willis from the Office of One
of His Majesty's Judges of the Court of King's Bench of Upper Canada."
It seems probable that the suggestion emanated from Dr. Baldwin.

[107] 34 Geo. III., c. 2. This statute was framed by the Hon. William
Osgoode, first Chief Justice of Upper Canada, a gentleman of great
learning, who had been sent out from England for the express purpose of
organizing the Courts of the Province.

[108] 2 Geo. IV., c. 1.

[109] See pp. 249-267 of the Imperial Government's blue book on the
subject, _ubi supra_.

[110] The notification was dated the 26th of June, whereas the formal
document issued by the Council was not signed until the 27th. Mr. Willis
attached a good deal of weight to this irregularity, which however was
of less importance than might at first sight be supposed. The Council
had fully made up their minds on the 26th, and the notification was
despatched accordingly, though the order of amotion was not actually
ready for signature until the day following.

[111] The well-known author, who was then in Canada as representative of
the Canada Land Company.

[112] "Cabot," in _Blackwood's Magazine_ for September, 1829.

[113] See despatch marked "Separate," from Major-General Sir Peregrine
Maitland to Mr. Secretary Huskisson, dated 6th July, 1828.

[114] His reply will be matter of surprise to the staid and
decorously-attired judges of the present day. "On all ordinary
occasions," he wrote, "I usually wore a _black velvet coat and
waistcoat_. The first time I saw the Chief Justice he had on a black
kalimanco or camlet jacket, which I have seen him wear even on the
bench. I have met the Lieutenant-Governor frequently walking through the
streets with an olive-coloured square-cut velveteen jacket and
waistcoat; and a few days before I left York I beheld Mr. Justice
Sherwood in a grass-green cloth jacket with white metal buttons. I
merely mention these 'extravagancies' to show that my dress was neither
improper nor extraordinary."--See the _Narrative_, ubi supra.

[115] See Hansard's _Parliamentary Debates_, N. S., Vol. xxiv., 551-555.

[116] Some further particulars may be found in 8 Bingham, 376; also in 5
C. & P., 342.

[117] See the case of John Walpole Willis, Appellant, _versus_ Sir
George Gipps, Knt., Respondent, 5 Moore's Reports of Privy Council
Cases, 379. From an _obiter dictum_ of one of the judges in the case it
would appear that the order of amotion from the bench of this Province
was finally set aside on technical grounds, owing to the appellant's not
having been heard in Canada. After diligent search, I have been unable
to find any report of this decision, either in the official reports of
the Privy Council or in any of the newspapers or periodicals of the
time.




CHAPTER IX.

THE CASE OF FRANCIS COLLINS.


In the foregoing pages mention has several times been made of Francis
Collins, editor, proprietor and publisher of _The Canadian Freeman_, a
Radical weekly newspaper issued at York. Mr. Collins was an enthusiastic
young Irish Roman Catholic, who had immigrated to Canada a short time
before the excitement arising out of the Gourlay persecution reached its
height, and when he himself was barely twenty years of age. He was a
printer by trade, and for some time after his arrival worked as a
compositor in the office of _The Upper Canada Gazette_, published at
York by the King's Printer, Dr. Robert Charles Horne. Finding that he
possessed much intelligence and a fair education, his employer deputed
him to report the debates in the Assembly during the sessions of
Parliament. In 1821 he reported certain proceedings which the Government
were annoyed at seeing in print, more especially as the version given
was not strictly accurate. For this offence Dr. Horne was summoned to
the bar of the House, where he sought to evade responsibility by
pleading that the debates had not been reported by himself, but by
Francis Collins. The Doctor further offered a humble apology, and was
glad to escape with a sharp reprimand, accompanied by a caution from the
Speaker that he would thereafter be held responsible for the reports in
the _Gazette_.[118]

Within a short time after receiving this admonition Dr. Horne ceased to
be King's Printer, whereby the post became vacant. As Collins was
familiar with the nature of the work, and was naturally desirous of
bettering his condition, he applied for the appointment. The office was
at the disposal of the Lieutenant-Governor, and was held entirely at his
pleasure. Collins was curtly checked for his presumption by a leading
official, who informed him that the office would be conferred upon "no
one but a gentleman." It would be interesting to know whence the
official who was guilty of this wanton insult had derived his ideas of
courtesy and good breeding. If his statement were to be credited, any
application on his part for the post of King's Printer would most
assuredly have been made in vain. The appointment was given to Mr.
Charles Fothergill, who belonged to a good Yorkshire family, and was
therefore fully entitled to rank as a gentleman.[119]

Collins was excusably indignant at the gross insult which had been
hurled at him. He considered himself as at least the social equal of any
member of the Government, for he claimed descent from the old Irish
kings, and on one or two occasions when more than ordinarily exhilarated
he had even been known to refer to his ancestor, Brian Boru. Yet, for
all this mendacious and vainglorious boasting, Collins was a man of
unquestionable ability, and when fully aroused could write a paragraph
well calculated to make the ears of his enemies to tingle. His
nationality was clearly indicated by his personal appearance, his
features being rough-hewn and unmistakably Celtic; while his red hair
and beard, usually not very well cared for, gave him an aspect of
uncouth wildness. Up to this time he had not taken any very conspicuous
part in politics since his arrival in Canada; but henceforward the
Executive had no more bitter or sleepless foe. He continued to report
the proceedings in Parliament, and kept his eyes ever open for an
opportunity to strike the Government with effect. In 1825 he succeeded
in establishing the _Freeman_, which was thenceforth to some extent a
rival of Mackenzie's _Advocate_. It was from the first conducted with
great energy, and the editorials, which were often set up without being
committed to paper, displayed exceptional vigour, but they were
frequently disfigured by a coarseness and bad taste equal to anything of
Mackenzie's production. For some time the better class of Liberals
fought shy of the enterprise, but the editor steadily forced his way
into general recognition.

The _Freeman_ was permitted to continue its course unchecked for nearly
three years. During that time it followed up the shortcomings of the
Executive with ceaseless vigilance. To Sir Peregrine Maitland and
Attorney-General Robinson it was a veritable thorn in the flesh. There
was abundant occasion for criticism, and it was seldom, if ever, that
Collins resorted to pure invention for the purpose of attacking the
innumerable abuses of the time. There was always a sufficient substratum
of truth in his accusations to render it inexpedient to prosecute him
for libel. The punishment of what was false would have involved the
public exposure of what was true. The official party realized the force
of the laureate's dictum, not then propounded, that

   "A lie that is all a lie may be met with and fought outright,
   But a lie that is part of a truth is a harder matter to fight."

[Sidenote: 1828.]

They of course did not present the matter in this aspect to the world at
large. On the contrary, their organs claimed for them a spirit of
generous and Christian forbearance. But this could not go on for ever.
Collins continued to pour in his chain-shot from week to week with
never-failing pertinacity, and with seeming impunity from the law. The
Executive in the first place tried to check his career by crippling him
financially. The Assembly had for some years previously been accustomed
to vote him an annual sum by way of remuneration for reporting their
proceedings. The paying over of this sum, however, was a matter entirely
within the control of the Lieutenant-Governor. As it was known that
Collins was poor, and that his resources were sometimes taxed to the
uttermost to enable him to bring out his paper, it was hoped that, by
withholding payment for his services as reporter to the Assembly, he
might be compelled to suspend publication. He was accordingly informed,
when he applied for his money in the early spring of 1828, that the
funds were not forthcoming. The sum in question was £118 10s., and was a
matter of serious importance to him; but he well understood the object
of the Executive, and spurred himself up to fresh effort. His paper
appeared with the most provoking regularity, and its tone was, if
possible, intensified by the withholding of the sum due to its editor.
He told the story to the public, his account being garnished with
profuse comments in his bitterest vein. The Executive found that they
had miscalculated his resources, and that his press was conducted with
renewed vigour. It was finally resolved that a dead-set should be made
upon him, and that he should be overwhelmed by a shower of
contemporaneous indictments. On Thursday, the 10th of April, 1828, as
mentioned in the preceding chapter,[120] two bills of indictment for
libel were found against him. One of these was for having, in his paper,
charged the Lieutenant-Governor with partiality, injustice and fraud, in
not paying over the money voted by the Assembly. The other was on the
information of the Solicitor-General, Henry John Boulton, for
animadversions on his conduct in connection with the duel, in 1817,
between Samuel Peters Jarvis and John Ridout.[121] Upon the strength of
these indictments Collins was forthwith arrested, and compelled to
appear and give the required bail. On the following morning two other
bills were found, upon which he also gave bail. It was at this time that
he made his extraordinary attack upon the Attorney-General, before
Justice Willis, as already narrated at length.[122] It will be
remembered that he was instructed by the Judge to go before the Grand
Jury and prefer his complaints. These instructions he followed without a
moment's unnecessary delay. He appeared before the Grand Jury, and
charged H. J. Boulton and J. E. Small with being accessary to murder in
the killing of young Ridout. He next laid a charge of rioting against S.
P. Jarvis and six other persons who had figured as defendants in the
action brought by Mackenzie. The Grand Jury speedily returned a true
bill against Boulton and Small. Both those gentlemen were then in Court
with their gowns on. They were immediately put under arrest, and they so
remained until late in the afternoon, when Judge Willis, upon the
application of Mr. Macaulay, admitted them to bail. As Jarvis had been
tried for the offence and acquitted, shortly after the duel in 1817, the
Grand Jury now returned "No bill" as to him. On the following Monday a
true bill was returned by the Grand Jury against the seven persons
charged with riot. They were promptly arrested and held to bail.

Collins, having no faith in Attorney-General Robinson's integrity, was
very unwilling that the prosecution of these cases should be conducted
by him. Boulton was not only the Attorney-General's colleague as a law
officer of the Crown, but was his warm personal friend, as well as a
connexion by marriage. Boulton, in fact, was a profound admirer and
faint _umbra_ of the Attorney-General, in whose professional sunshine he
basked, and at whose feet he may in an intellectual sense be said to
have grovelled. Even the most Spartan of Crown prosecutors could hardly
be expected to do his utmost to secure a conviction under such
circumstances; and Attorney-General Robinson had nothing of the Spartan
in his composition where the interests of his friends were concerned.
Collins accordingly applied to Robert Baldwin to conduct the prosecution
for murder. But the prosecution of criminal cases was not then open to
the bar as a matter of course, and without the consent of the Crown. Mr.
Baldwin applied to the Court for the necessary permission, which was
granted with the Attorney-General's consent. The trial was proceeded
with before Justice Willis at the opening of the Court on the morning of
Monday, the 14th. The defendants, upon being arraigned, pleaded "Not
guilty." The proceedings extended over two days, during which the same
evidence was given that had been adduced at the trial in 1817. All the
horrible details of the duel were revived for the edification of a
crowded Court-room. Many of the spectators, as well as the Judge
himself, were affected to tears. The custom of society was once more
successfully pleaded in extenuation of a cruel and dastardly murder. As
the chief offender had himself escaped scot-free, however, it would have
seemed anomalous to punish the accessaries. The charge from the bench
was eloquent and judicial, and the jury were absent from the box only
ten minutes, when they returned into Court with a verdict of acquittal.

The trial of the type-rioters next required consideration. Collins's
counsel moved for leave to the prosecutor to conduct this case also by
private counsel, but to this the Attorney-General firmly refused to
consent. It was urged that one of the accused was his nephew, and that
two others had been clerks in his office at the time of the outrage. No
matter; he was determined to withstand any further interference with
Crown prosecutions on the part of the bar. There was no telling, he
remarked, where such interference would end. There had already been too
much of it. He was about to proceed with the prosecution, when Mr. Rolph
arose on behalf of Collins, and expressed a wish that, as the painful
investigation of the murder case had been finished, the prosecutions for
libel might be discontinued. Judge Willis warmly seconded the proposal,
and further suggested that the prosecution of the type-rioters might
also be dropped. The type-rioters, however, were ready and waiting for
their trial, and, through their counsel, objected to any abandonment so
far as they were concerned. It was urged on their part that they had
never wished to avoid prosecution, but had rather courted it; that they
would accept of no compromise of a proceeding which had been maliciously
and vexatiously instituted, not by the person injured, but by one who,
being brought into Court for libel, had been received as a sort of
public prosecutor, and allowed to harass them by raking into old
transactions which had long since been investigated and atoned for. They
insisted upon the matter being there and then finally disposed of, so
that it might no longer be in the power of any malicious person wholly
unconnected with the case to prosecute them at his pleasure.

The trial was then proceeded with. The persons charged were of course
found guilty. Judge Willis was very lenient, and sentenced them to a
nominal fine of five shillings each, expressly stating as a reason for
this slight punishment that more than ample recompense had already been
obtained in the civil action.[123]

With respect to the indictments against Collins, the Judge's appeal to
the Attorney-General was not altogether without efficacy,
notwithstanding the ill blood between them. The fact is that the latter
was glad enough of any excuse for abandoning the two prosecutions
instituted by Boulton and Jarvis, feeling well assured that there was no
likelihood of securing a conviction in either case. He could subserve
his own and his friends' interests, and at the same time assume the
appearance of deferring to the suggestion from the bench. The consent of
the prosecutors having been obtained, he therefore announced in open
Court that he would proceed no further upon those indictments. He added,
however, that there were further indictments against Collins which had
emanated from the Grand Jury, and that he could not with proper
deference to them at once relinquish proceedings therein. "But I have no
objections to state," said the Attorney-General, "that I will forbear
any further action during the present Assizes, and that in proceeding or
not hereafter, I shall be governed in a great measure by the sense which
the defendant shall show of his duty and obligations as the conductor of
a public newspaper." Bail was accordingly furnished by Collins on one of
the presentments. The other was tacitly allowed to lapse; and there, for
the time, the matter ended.

The editor of the _Freeman_ certainly gave the Attorney-General no
excuse for leaving him unmolested. In each successive issue of his paper
he lashed the whole race of officials, to some of whom he applied the
most opprobrious epithets. The Government organs pursued a similar
course on their side, and characterized Collins and his friends in
language too gross for quotation. The Attorney-General probably repented
that he had not proceeded on at least one of the indictments during the
late Assizes, and resolved that another opportunity should not pass
unimproved. The autumn Assizes opened during the second week in October,
when he attempted to press one of the old charges against Collins. The
defendant appealed to Judge Sherwood, who occupied the bench,
representing that his counsel was not in Court, and that he had never
been arraigned. The Attorney-General replied that the absence of the
defendant's counsel was not the fault of the Crown, and that he had been
arraigned at the spring Assizes. The latter statement was denied by the
defendant, and upon referring to the Clerk of Assize it appeared that
there had been no arraignment. Next day the Attorney-General again
attempted to force on the trial, but as it was clear that the defendant
had not been arraigned the latter now claimed the right to traverse. As
this right was indisputable it was conceded by the Court, the result
being that the defendant was entitled to have the trial held over until
the next sittings, which would not take place until the following
spring. The Attorney-General, however, was entitled to demand that the
defendant should find security, and promptly urged his demand. Collins
knew that were he to find the required security it would embarrass him
in the conduct of his paper, and stated that he would prefer to be tried
at once rather than adopt such an alternative. He was accordingly tried,
and, though the prosecution was pressed against him with all the vigour
at the Attorney-General's command, he was acquitted by the jury.

But the Attorney-General was not the man to allow his prey to escape him
while any chance remained of securing a conviction. A fresh indictment
was laid against him for a personal libel upon the Attorney-General
himself. Collins, in reporting the trial which had just resulted in his
acquittal, had accused the Attorney-General of "open palpable
falsehood," and "native malignancy," and had referred to Judge Hagerman
as "our old customer." This report had been published at full length in
the _Freeman_, and it was the ground of the prosecution now instituted.
The defendant laboured under the same compulsion with regard to security
as before, and elected to stand his trial at once, which was precisely
what the Attorney-General desired. The indictment, which may still be
seen among the records at Osgoode Hall, was a truly formidable
instrument, and set out the offence with great prolixity. The trial took
place on Saturday, the 25th, before Mr. Justice Sherwood, who, in
charging the jury, inveighed against the defendant with nearly as great
vehemence as did the Crown prosecutor, stigmatizing him as "a wholesale
retailer of calumny." He pronounced the _Freeman's_ report to be "a
gross and scandalous libel."[124] It was plainly evident that Mr.
Sherwood's mind was not equable, and that he was influenced by
considerations not properly before him. The fact that his son Henry, and
his brother-in-law, H. J. Boulton, had respectively been prosecuted for
riot and murder at Collins's instigation was too clearly held in
remembrance, insomuch that every point was strained to the utmost
against the defendant. Judge Sherwood, however, was absent from the
bench when the jury returned into Court with their verdict, his place
being taken by Judge Hagerman, who had many times been subjected to the
arrows of Collins's satire, and who was referred to with bantering
contumely in the very report which formed the subject of the present
prosecution. The jury, after deliberating about five hours, brought in a
verdict of "Guilty of a libel on the Attorney-General." The Clerk
recorded a general verdict of "Guilty," which was read to the jury. The
defendant's counsel objected to the recording of the verdict in this
form, inasmuch as the jury had found his client guilty of libel on the
Attorney-General only. A brief argument on the subject ensued, whereupon
the Judge charged the jury to the effect that such a verdict as they had
found could not be received. He informed them that if they found the
defendant guilty of any part of the alleged libel, they ought to return
a general verdict of "Guilty;" but that they might, if they thought
proper, suggest to the Court on what particular part of the publication
their verdict was founded, in which case the Court would confine the
punishment to that part only. The jury thereupon retired a second time,
but soon returned with a general verdict of "Guilty." On being asked by
the Judge whether they adhered to their former opinion as to the
libellous part of the publication, they answered in the affirmative.

The sentence of the Court was not pronounced until sufficient time had
elapsed to admit of a conference on the subject between Justices
Sherwood and Hagerman. That such a conference really took place is clear
enough from a letter of Judge Sherwood himself, to be presently referred
to. The sentence, when it came, created much surprise, not only in the
bosom of the individual who was directly concerned, but among the public
at large. It condemned the defendant to pay a fine of fifty pounds, to
be imprisoned for twelve calendar months, to find securities for his
good behaviour for three years after his liberation, himself in four
hundred pounds and two sureties in one hundred pounds each, and to
stand committed until all these conditions should be complied with.

Certainly it was no wonder that the little world of upper Canada opened
its eyes at such a Star Chamber sentence as this, pronounced in the year
of Grace 1828. It seemed as if the whirligig of time had brought back
the days of Bartemus Ferguson and _The Niagara Spectator_.[125] It was
an open question with many persons, even among those who were upon the
whole favourable to the measures of the Government, whether the
prosecution should have been sustained at all or not. A charge of
"native malignancy" was not likely to seriously affect the character or
standing of Attorney-General Robinson, who was ready enough to apply
much stronger epithets to his enemies. But, however that might be, there
could be no sort of doubt that the punishment awarded was wholly
disproportionate to the offence, more especially when the defendant's
circumstances were considered. If persisted in, the sentence really
involved the latter's perpetual imprisonment, for no two men of
substance were likely to be found who would feel safe in guaranteeing
the good behaviour of such a turbulent spirit as Francis Collins for so
long a period as three years. Throughout the whole of this infamous
persecution the Attorney-General showed to very little advantage. As
previously mentioned, he had showered four indictments upon the
defendant within the brief space of two days. Three of these he had
withdrawn, and upon the fourth the defendant had been acquitted. He had
then gone out of his way to lay a personal information upon a very
insignificant pretext. Poor Collins was his enemy, and must not be
allowed to characterize his conduct as "native malignancy," whereas the
editors of newspapers under the patronage and pay of the Government were
permitted to pursue a deliberate system of malicious vilification with
impunity. The latter were allowed to publicly malign not only individual
members of the Opposition, but to circulate the grossest libels upon the
House of Assembly itself. With these offences the Attorney-General did
not think fit to meddle. They were committed by his personal and
political friends, and, unless common rumour seriously belied him, were
not seldom committed at his own instigation. At any rate he maintained
the most amicable relations with the libellers, and allowed no
opportunity of serving their material interests to pass unimproved. Such
inconsistency forced itself upon public attention. People who up to that
time had supported the official party began to ask where this
one-sidedness was to end. The Attorney-General had no right, it was
said, to reward his friends for doing precisely the same things as those
for which he punished and imprisoned his enemies. It was remembered
against him how, when disputing with Judge Willis as to the nature of
his official duties, he had with scorn repudiated the suggestion that he
should proceed in the absence of instructions, even against notorious
evil-doers. It was remembered that he had declined to take any official
cognizance of so serious an offence against the public peace as the
type-riot, which had been committed by his own friends and protégés. Yet
he had here gone out of his way to prosecute to his ruin a poor wretch
who, certainly not without great provocation, had merely accused him of
falsehood and native malignancy. A man who accommodated his conduct to
his inclinations in this way might perhaps be much beloved by his
friends, but he certainly had no claim to be considered either good or
great. The faction, from Dr. Strachan downwards, had for years been
holding up John Beverley Robinson to the admiration of Upper Canadians.
By many he had been accepted at their valuation. The Selkirk and Gourlay
episodes, together with a score of others less noteworthy, had been
slurred over. As the worst of these had occurred some years before, they
had been partly forgotten by the existing generation. But the
remorseless vindictiveness and cruelty displayed throughout the Collins
prosecution were patent to everybody. They did much to lower the
Attorney-General in popular estimation, and to destroy public confidence
in the integrity of the Judges. They gave rise to an uneasy feeling of
discontent, and doubtless had their share in bringing about the troubles
of 1837-38.

Collins went to jail, where, in spite of great exertions on his behalf,
he was compelled to remain for many months. The fine was paid, like the
damages in the type-riot case, by public subscription. Appeals from
various quarters to the Lieutenant-Governor on the prisoner's behalf
were made in vain. The incumbent of that office was no longer Sir
Peregrine Maitland, whose torpid and nerveless administration had
come to an end some weeks before,[126] when, as previously mentioned,
he had taken his departure for Nova Scotia. His successor as
Lieutenant-Governor of Upper Canada was Major-General Sir John Colborne,
a distinguished officer of the 52nd Regiment, who had done gallant
service in the Peninsula, and had fought at Waterloo. He is described by
Napier, the historian of the Peninsular War, as having developed "an
extraordinary genius for war." After the return of peace he had had some
experience in diplomacy, having for some time been placed in charge of
the Government in the island of Guernsey. His appointment to the more
onerous and responsible post of Lieutenant-Governor of Upper Canada was
heralded as the precursor of better times. It was announced that he had
come over charged with instructions to reverse the fatuous policy of his
predecessor, and to conduct the administration in accordance with the
well understood wishes of the people. It seems tolerably certain that
some such general directions as these had actually been given, but great
latitude was necessarily left to Sir John himself; and, as after events
proved, he was ill fitted for the discharge of such duties as had been
entrusted to him. He was destined to furnish, in his own person, a
sufficient argument against the absurd system pursued by the Home
Government of saddling the colonies with military rulers. That Sir John
was an excellent soldier goes without saying. It is certain, too, that
he was in the main actuated by upright and honourable motives. But he
had been "a man of war from his youth," and his early training and long
military career had made him stern and unbending. He had no sympathy
with the aspirations of a people who were just beginning to grasp the
principles of constitutional liberty, and who saw many things in the
body politic which called aloud for reform.

It did not take long for the people of Upper Canada to gauge the
character of the new Governor, for he had not been a fortnight in the
Province before he had practically allied himself with the Compact.
Hardly had he assumed the functions of his office ere a petition,
signed by a number of influential inhabitants of York and its
neighbourhood, was presented to him by a Committee on behalf of Collins.
The facts were set out in detail, and his Excellency was asked to
exercise the royal clemency by releasing the prisoner from his
melancholy situation. Sir John's reply was non-committal, but not wholly
discouraging. It conceded the advantages resulting from a free and
well-conducted press, but expressed reverence for trial by jury, and
referred to the danger of interfering with the verdicts of juries or the
opinions of Judges unless their illegality could be clearly
demonstrated. It added, however, that if his Excellency; after inquiring
into the case, should come to the conclusion that his interposition was
called for, a communication to that effect would be made to the person
chiefly concerned.

In the face of this reply, it behooved the prisoner and his friends to
wait a reasonable time before taking any further steps. Within the next
few days a number of facts came to light which certainly went to show
that there were at least good grounds for a new trial. It appeared that
John Hayden, one of the jurymen, had been ignorant of the true meaning
of the word "malignancy," and had sent out to the Court for Johnson's
Dictionary, in order to arrive at a true definition. This indulgence was
refused by the Court, and Hayden was constrained to accept the
definition of another juror, whereby he was led to believe that the word
in question has a much more serious significance than really attaches to
it. By this means he had been induced to give his voice for the
conviction of the defendant. Two other jurymen,[127] who were servile
tools of the Attorney-General, had been actuated by undue prejudice,
insomuch that they had expressed a strong pre-determination to convict
the defendant. Then, the conduct of Mr. Hagerman, in sitting as a Judge
in a case wherein he was personally concerned--it will be remembered
that he had been derisively referred to in the report which formed the
subject of the indictment--was an infringement of decency, to say
nothing of its being a perversion of the letter and spirit of the law.
He had also conferred with the Judge by whom the sentence was
pronounced as to the measure of punishment to be awarded. But he had
not only sat in judgment in his own cause: he had refused to record the
finding of the jury, whom he had misled and coerced into bringing in a
verdict contrary to what they really intended. Judge Sherwood's conduct
had been little better. He had delivered a charge to the jury which
practically left them no alternative but to convict, unless they
altogether disregarded his counsels. John Carey, editor of the York
_Observer_, who was present on the occasion, testified that the Judge's
charge appeared to him to outrage law and common sense.[128] Then, the
sentence itself was so grossly out of proportion to the offence as to
shock all ideas of justice, and to form a standing menace against the
liberty of the press in Upper Canada. Yet Judge Sherwood, in pronouncing
it, had expressly stated that it should be light, in consequence of its
being awarded for a first conviction. It would be curious to know what
punishment he would have awarded if the defendant had been previously
convicted on a similar charge.

All these circumstances went far to prove that the defendant had met
with considerably more or less than justice. And there were other facts
which had an ugly look. The defendant, as already mentioned, was a Roman
Catholic; yet, out of a large and respectable population professing the
same religious faith, not one was to be found on the panel, although at
the Quarter Sessions, held a few days later, the number of Roman
Catholics summoned to serve on juries was exceptionally large. The
Sheriff who empanelled the jury was a political enemy of the accused. So
was each individual member of the Grand Jury who found the true bill
against him. So were a large majority of the petty jury by whom he was
tried. So was the Attorney-General who prosecuted him. So were the two
Judges who presided at the trial. Taken in connection with the specific
facts mentioned in the preceding paragraph, these matters gave rise to
many unpleasant conjectures, and it was no wonder that the public voice
exclaimed against the verdict as an unrighteous one. It was no wonder
that public meetings were held in some of the rural districts to protest
against what was almost universally pronounced to be a tyrannical abuse
of the process of the Courts. It was no wonder that hisses and groans
were sometimes heard from quiet nooks and corners when the
Attorney-General passed along the streets of York. And it was no wonder
that, coming, as it did, on the heels of other trials that differed with
it only in degree, the case of Francis Collins caused many theretofore
loyal subjects to ask themselves whether their loyalty demanded that
they should forever continue to bend their necks to the yoke of the
oppressor. What was Collins's case to-day might possibly be theirs or
their sons' on the morrow.

On the 26th of November Collins sent in to the Lieutenant-Governor a
pathetically-worded petition, in which the desolate condition of his
young and helpless family was alluded to in brief but moving terms. It
set out that, in consequence of his imprisonment, the business whereby
he had supported his family was all but ruined, as its success depended
solely on his personal exertions. Finally, he prayed to be restored to
his liberty. Accompanying the petition were affidavits setting forth the
admitted ignorance of one of the jurymen, and the pre-determination of
the other two to convict. But the prisoner knocked at the gates of Sir
John Colborne's heart in vain. The Lieutenant-Governor was by this time
as completely hand and glove with the official party as his predecessor
had ever been. Dr. Strachan and John Beverley Robinson managed him with
great skill, and, by dint of much seeming deference, had him under
complete control. Without being in the least aware of it, he was clay in
the hands of the potter, who moulded him at will. As well might poor
Collins have appealed for mercy to a half-famished tiger of the jungle
as to these two Provincial representatives of law and gospel. His
memorial, dated "York Gaol, November 26th, 1829," was not replied to
until more than three weeks had elapsed, and when the answer came its
contents indicated perfect callousness to the prisoner's unhappy
condition. He was curtly informed that the Lieutenant-Governor could not
think it right to comply with the petition, but that on the expiration
of the specified term of imprisonment, any application which he might
desire to make would be taken into consideration.

From this time forward the prisoner seems to have resigned himself to
his fate, although his friends did not relax their exertions on his
behalf. It seemed useless to apply for a new trial, as the application
would have to be made to either Sherwood or Hagerman, from neither of
whom could he hope to obtain justice. The _Freeman_ continued to make
its appearance, although its publication was necessarily carried on
under great disadvantages. The editor's spirit was by no means broken,
and he sent forth from his place of confinement a succession of
editorials as bitterly vigorous as any previous efforts of his pen. He
also wrote a series of open letters addressed to the Attorney-General,
in which that official's career, from his infancy onwards, was reviewed
with caustic bitterness.[129] These letters were published in successive
numbers of the _Freeman_, and must be presumed to have been a source of
great annoyance to the gentleman to whom they were directed. Though many
of the statements therein were perverse and wilful distortions of facts,
there was a large element of truth, and it would not have been easy to
expose the falsehood without admitting much that could not be denied.
The Attorney-General contemplated another prosecution, but thought
better of it--not, it is to be presumed, from any want of
vindictiveness, but because he felt that there was a limit to the public
endurance, and that that limit had pretty nearly been reached.

[Sidenote: 1829.]

In January, 1829, the Collins case was taken into consideration by the
Assembly. A Committee was appointed, and a rigid inquiry instituted into
some of the most interesting features. Attorney-General Robinson was
examined at considerable length. Judges Sherwood and Hagerman were
summoned before the Committee, but both of them declined to answer any
questions. A good many important facts were elicited, upon the strength
of which an Address to his Excellency was passed, recapitulating the
circumstances, and praying for a remission of the sentence. The reply
was of the same inexorable character as that previously made to
Collins's own petition. "It is my anxious wish," was the response of the
Lieutenant-Governor, "to render service to the Province, by concurring
with the Legislature in everything that can promote its peace,
prosperity and happiness; and I regret exceedingly that the House of
Assembly should have made an application to me which the obligation I am
under to support the laws, and my duty to society, forbid me, I think,
to comply with." For the information of the House, his Excellency
forwarded a copy of a letter addressed by Justice Sherwood to the
Governor's Secretary, embodying certain reasons for the judgment of the
Court in the case. The Judge, it will be remembered, refused to assign
any such reasons when questioned on the subject by the Committee of the
House of Assembly. As to his right to so refuse there can hardly be much
difference of opinion, but he would have been more consistent if he had
also refused when applied to by the Lieutenant-Governor. After admitting
the right to publish fair and candid opinions on the Government and
constitution, the Judge declared that if a publisher "steps aside from
the high road of decency and peaceable deportment, and adopts a course
of public calumny and open abuse against the officers of Government
generally, or particularly against the principal law officer of the
Crown, in the legal discharge of his duty in the King's Courts, as the
defendant did," then it was the Judge's conviction that the publisher so
offending should be "punished to that extent which, in human
probability, would prevent a recurrence of the offence." And yet this
same Judge, in pronouncing sentence, had expressly declared that the
sentence should be a light one, as it was the defendant's first offence.
The conclusion of the letter showed plainly enough that a conference had
taken place between Justices Sherwood and Hagerman before the imposition
of the penalty. It proved, indeed, that the sentence was to be
considered as the joint sentence of the two Judges. "Taking all the
circumstances of the case into consideration," it ran, "Mr. Justice
Hagerman and myself deemed the sentence which we passed on the defendant
both proper and necessary for the public good, and what the case itself
required."

Two or three further appeals were made to the Lieutenant-Governor on the
prisoner's behalf, all of which proved ineffectual. The matter was
really in the hands of the Attorney-General himself, who was inexorable,
and would be satisfied with nothing short of the fullest expiation. The
Assembly meanwhile did not relax its efforts to obtain a commutation of
the sentence. On the 12th of March an address to the King was passed by
that body, whereby His Majesty was entreated "to extend to Francis
Collins the royal clemency, by remitting the residue of his punishment."
Not much was hoped for from this proceeding, as it was felt that the
whole influence of the Executive would be put forward against it. The
prisoner himself made up his mind to accept the inevitable, and to serve
out at least the full term of the sentence imposed. He continued to
supply editorial articles for his paper, couched in a strain which
seemed to indicate his superiority to circumstances. But his buoyant
spirit was measurably tamed by his long imprisonment, and it was
remarked that he was never again quite the same man as before. Contrary
to his anticipations, the address of the Assembly finally proved
effective, and he was permitted to walk forth from the jail a free man.
His paper came forth from week to week, but its tone was evidently
modified and subdued. Something of the old spirit occasionally flashed
forth, but fitfully and transitorily only, like the flicker of a lamp
before its extinction. It was clear that the editor had not forgotten
the indignity and mental suffering he had undergone, and throughout the
remaining years of his life he always dwelt more or less in the shadow
of the cold and solitary cell. The records of the jurisprudence of
civilized countries contain few modern instances of the exaction of so
severe a penalty for so insignificant an offence.

The narrative has no further concern with Francis Collins, except to
record that he continued to edit and publish the _Freeman_ down to 1834,
when he fell a victim to the cholera invasion by which the Provincial
capital was ravaged during that year. He died on the 2nd of September,
and the _Freeman_ thenceforth ceased to exist.

FOOTNOTES:

[118] The Attorney-General, John Beverley Robinson, was ever valiant on
the stronger side. He tried to induce the Assembly to compel Dr. Horne
to insert in the next issue of the _Gazette_ a paragraph in the
following words: "From the incompetence or negligence of our reporter,
the debates of the House of Assembly inserted in the last number of this
paper were so imperfect and so untruly reported that no dependence can
be placed in their accuracy." The Assembly, however, were satisfied with
the humiliation to which the Doctor had been subjected, and would not
compel him to further self-abasement.

[119] Mr. Fothergill held the office barely three years, when he was
dismissed for voting with the Opposition in the Assembly against the
Government. It was an anomaly to permit the King's Printer to hold a
seat in the Legislative Assembly, and the Government could hardly be
expected to tolerate opposition from such a quarter. Mr. Fothergill was
the first incumbent of the office to develop liberal opinions. He was
sufficiently deep in the secrets of the Administration to make him a
dangerous opponent if he had felt disposed to wage war to the knife. Of
this fact the Administration seem to have taken a sort of oblique
cognizance. He had overdrawn his account by £360, and in settling with
him this sum was not taken into consideration. In other words, the
Government made him a present of £360. His successor in the office of
King's Printer was Mr. Robert Stanton.

[120] _Ante_, p. 171.

[121] _Ante_, p. 13.

[122] _Ante_, pp. 171-174.

[123] _Ante_, p. 136.

[124] The charge, as reported by Collins, will be found in the Appendix
to the _Journals of Assembly_ for 1829, pp. 27, 28.

[125] _Ante_, p. 42 et seq.

[126] Sir Peregrine was gazetted to be "Lieutenant-Governor of Nova
Scotia and its dependencies" on the 14th of August, 1828. On the same
date Sir John Colborne was gazetted as Lieutenant-Governor of Upper
Canada, but he did not reach the seat of his Government until late in
the autumn, and Sir Peregrine did not actually demit office until the
arrival of his successor.

[127] William Davenish and Andrew A. Thompson. The former stated that in
the event of his being called as a juror he would "put it on to"
Collins. See the _Freeman_ for Thursday December 25th, 1828.

[128] See Appendix to _Journals of Assembly_ for 1829.

[129] _Ante_, pp. 101, 102, note.




CHAPTER X.

LIGHTS--OLD AND NEW.


In the preceding five chapters an attempt has been made to reduce to
narrative form a great mass of heterogeneous material bearing upon the
"Story" which it is the purpose of these volumes to relate. A
considerable proportion of this material is to all practical intents
inaccessible to the general reading public, being scattered here and
there through old and long-forgotten newspapers, blue-books, pamphlets
and unedited manuscripts. Yet some acquaintance with it is absolutely
necessary to a clear comprehension of the deplorable state of things
which existed in this Province during the régime of Sir Peregrine
Maitland and his successor. No one who is ignorant of it is capable of
expressing an intelligent opinion as to the merits or demerits of the
Rebellion and those who took part therein. The principal facts and
circumstances attendant upon some of the most flagrant exhibitions of
Family Compact oppression which mark the fourth decade of Upper Canadian
history have therefore been set forth in consecutive order, and with
considerable minuteness. The picture thus afforded of Provincial-society
and Government, though pregnant with instruction, is by no means an
attractive one, and any person contemplating it for the first time may
well be excused for questioning its perfect accuracy. The drawing, at
times, seems to be too wavy in outline, and some of the details have the
appearance of being painted in colours too glaring to be natural. But a
strict examination of the properties will correct all such impressions.
Varying themes require varying methods of treatment. There are certain
features of landscape which must not be drawn with absolute sharpness of
outline, and there are subjects to which neutral tints altogether fail
to do justice. Of such a character are more than one of the scenes here
reproduced. Independently of the mere method of treatment, the
historical evidence is so clear and explicit that it can be questioned
by no one who takes the trouble to examine it. As to mere matters of
fact, there will be little or no difference of opinion among those who
consult and compare the various authorities cited in the notes.[130]

The cases hitherto recorded are merely a few out of many, but they
suffice to tell the story of Executive cruelty and selfishness during
the period referred to more effectively than it could possibly be told
without their aid. To set forth with equal fulness of detail the
circumstances attendant upon the persecution of Jonah Brown, Robert
Randal, Hugh Christopher Thompson, and a round score of minor victims,
would be to extend this work to an interminable length. The materials
for a work written on such a plan are abundant, as they include all the
facts arising out of the stupendous iniquity sought to be perpetrated
under the guise of the Alien Bill. The particulars connected with the
attempt to force this infamous measure upon the people of Upper Canada
cannot be inquired into in these pages. Sufficient to say that it was a
most dishonest and unstatesmanlike attempt on the part of the Executive
to get rid of political opponents by repudiating the well-understood
obligations of their predecessors in office: an attempt to dispossess
persons who, relying upon the faith of the Government of the day, had
settled in the country and taken up lands, to which they had received
titles, and upon which they and their parents had in many cases resided
ever since Governor Simcoe's time. The attempt failed through the
vigilance of the Opposition and the interference of the Imperial
Government, but it proved the length to which the official party were
prepared to go in order to maintain the existing order of things. It was
of a piece with the rest of the Executive policy, which seemed to wax
more and more exacting and one-sided with lapse of time. It was
abundantly clear to many persons unconnected with the Reform party that
there was no justice in the land for a Reformer, and that the oligarchy
by whom the country was dominated cared nothing for its best interests.
Constitutional liberty was systematically trampled under foot. The
oft-quoted boast of the Founder of the Province about the Upper Canadian
constitution being "the very image and transcript of that of Great
Britain"[131] seemed the hollowest mockery when viewed in the light of
events which had become a matter of frequent occurrence.

It was not only to the thumbs of political opponents that the Executive
screw was applied. When occasion arose it was applied with surprising
energy and vigour to the thumbs of those who had long been obedient
slaves of the Administration. Nothing more clearly shows the shameless
exercise of power on the part of the faction: nothing more clearly
proves the complete subordination of their tools, and the depths of
degradation to which public men could be made to stoop: than an episode
which occurred during the Parliamentary session of 1828. The persons
chiefly involved were the Hon. James Baby, who was himself
Inspector-General of Public Accounts and senior member of the Executive
Council, and ex-Chief Justice Powell. It has already been explained that
the first-named personage had for some time past ceased to carry any
great weight at the Council Board, where he had been to a considerable
extent superseded by his juniors.[132] His seniority was merely in point
of time, and his influence on the policy of the Government was as
insignificant as it possibly could be, consistently with the position
which he held. He keenly felt his having been, so to speak, thrust into
the background, and in several instances showed a disposition to assert
himself by acting independently. A similar feeling, but milder in
degree, animated the breast of the ex-Chief Justice, whose place as
principal lay adviser of the Lieutenant-Governor had long since been
taken by Attorney-General Robinson. During the session of 1823-4 he had
seen fit to protest against a School Bill passed by the Assembly, under
which Dr. Strachan was intended to and did actually derive a sinecure
salary of three hundred pounds a year. His protest, at his own urgent
request, was entered on the journal, where it seemed likely to remain a
perpetual memento of his independence and of the servility of his
colleagues. But this was by no means desired by the Lieutenant-Governor
and the Attorney-General. Pressure was brought to bear upon the
recalcitrant member, under the influence of which he was forced to
succumb. He consented that the protest should be erased from the
journal, and it was erased accordingly.[133] But a still more sickening
humiliation was in store for him, as well as for the venerable Mr. Baby.

During the session of 1828 several petitions were received by the
Assembly praying for relief against a law passed in 1825, whereby
certain taxes had been imposed on wild lands.[134] Among other
grievances complained of was the manner in which the law had been
passed. It was distinctly alleged in one of the petitions that the
measure had been pushed through both Houses with too great rapidity, and
that most culpable means had been employed in order to procure the
assent of certain members to whom it was objectionable. The Assembly
entertained the petitions, and appointed a Committee to inquire into the
matter. A number of witnesses were examined, and some astounding facts
elicited. The allegations as to undue influence were proved by the
clearest evidence, and by witnesses who had generally been accustomed to
act with the Government. One of these was our somewhile acquaintance,
the Hon. William Dickson, who, as has previously been seen, was the
owner of an immense tract of land,[135] and was consequently seriously
affected by the law enacted in 1825. His evidence, as printed in the
Appendix to the Journals of the Assembly,[136] stands as a perpetual
indictment against Sir Peregrine Maitland and the venal clique by whom
he was surrounded. It appears that from the time when the Bill relating
to the taxation of wild lands was first introduced into the Upper House
it was an unpopular measure, and that it was opposed by a majority of
the members. Most of the latter were large landholders by virtue of
their membership, and some of them had acquired additional blocks by
purchase. The obnoxious Bill was opposed at every stage, and there
seemed to be no possibility of its becoming law. Its defeat being
regarded as inevitable, its opponents to some extent relaxed their
efforts, and congratulated each other upon their apparent success. On
the third reading, however, Mr. Dickson found, to his supreme
astonishment and disgust, that some of the members upon whom he had
relied for votes presented an entire change of front, and appeared in
the _role_ of supporters of the measure. It was noticeable that all the
converts, or perverts, held offices under the Government. The Hon. John
Henry Dunn, Provincial Receiver-General, took a different course. He had
been among the most determined opponents of the Bill, and had declared
that it would never pass.[137] He had too much self-respect, after
taking such a stand, to give the lie to all his protestations by voting
for the measure, so he quietly staid at home on a pretence of
sickness.[138] Referring to those who took a more determined stand, by
voting contrary to their pledges, Mr. Dickson says: "This change, I am
satisfied, arose from intimidation by the Local Government, who seemed
determined to carry the measure at any sacrifice. It was most painfully
manifest from their countenances and demeanour that the change was not
from conviction, but from coercion. The business of the Legislative
Council was suspended for two hours for a meeting of the Executive
Council. And I do believe that at that Council the members of the
Legislative Council holding offices were constrained at the peril of
their situations to vote for the measures they had a week before
decidedly opposed. Upon those members returning that day to their
legislative duties there was a change of voting, and one of those who
staid away on pretence of sickness was, to my knowledge, able to
attend." The reference here is presumably to Mr. Dunn. Mr. Dickson's
evidence then goes on to say that about ten minutes before the vote was
taken, a message was delivered to the Hon. James Baby that Major Hillier
wished to speak to him. Major Hillier was the Lieutenant-Governor's most
confidential secretary, and was employed in numberless little
transactions requiring the exercise of coolness and tact. In response to
the message Mr. Baby left his place in the House, and did not return for
some time. Upon his return from the interview to his accustomed seat he
was evidently much confused and agitated. Being spoken to by Mr. Dickson
he found it impossible to conceal his agitation, but told his
interlocutor, to that gentleman's great astonishment, that he must vote
for the Bill. When the time came he accordingly voted with the
Government, and the Bill was carried by a small majority, Messieurs
Dickson and Clark entering a determined protest against it. "After the
passing of the Bill," continues Mr. Dickson, "the Hon. Mr. Baby, after
leaving the House, put his hand upon his heart, and, with reference to
his change of conduct on the measure, said something about his children,
expressive of his regret at the necessity which drove him to the
abandonment of the course he had pursued."

Mr. Powell, who was then Speaker of the Legislative Council, was
evidently subjected to similar influences. Like Mr. Baby, he had been
strenuous in his opposition to the Bill, and had even gone so far as to
speak harshly of some of those who promoted it. But he was speedily made
to know his place, and the tenure by which he held it. During a portion
of the two hours when the business of the Legislative Council was
suspended he was in secret conference with Major Hillier and one or more
members of the Executive Council.[139] When he took his seat upon the
resumption of the business of the day, it was noticeable that he, as
well as Baby, was labouring under undue embarrassment and agitation. It
was beyond any reasonable doubt that they had been shamelessly coerced,
and had been compelled to choose between voting as they were commanded
or being dismissed from their respective offices. Upon being questioned
by Mr. Dickson, Powell admitted that he had changed his opinion, and
added, in seeming sincerity, that he had received new light on the
matter within the last ten minutes. Such an exchange of an old lamp for
a new one must surely have been the work of some malignant and monstrous
genie at the Council Board.

It should be mentioned that Dickson's evidence, so far as "extraordinary
and undue influence by the Local Government" is concerned, is fully
confirmed by the evidence of the Hon. Thomas Clark, who was also a
member of the Upper House, and was present at the proceedings above
described.

There could not well be any more conclusive proof of the
unconstitutional and corrupt manner in which the Government was carried
on during Sir Peregrine Maitland's time than is afforded by the
circumstances just narrated. They read like a chapter out of the
political history of England during the last century. The methods
employed by Walpole exhibit nothing baser or more repulsive than these.
His aphorism about "every one of them" having his price might well have
been echoed by Sir Peregrine, so far as the Legislative Council was
concerned, with the addition that the price in Upper Canada was
sometimes ridiculously low. The persons who were guilty of these gross
violations of the constitution, to say nothing of the commonest
principles of honesty, were incessantly prating of their devoted loyalty
to the Crown. Yet it is plain enough that their fealty was always
subservient to what they deemed to be their personal interests. This was
as clearly apparent in 1837 as it had been in 1828. When, a few years
later,[140] a crisis arose in which they were compelled to choose
between those interests and their devotion to the Crown, it was once
more abundantly manifest that theirs was the veriest lip-loyalty. The
burning of the Parliament Buildings at Montreal was as direct an act of
treason as was the affair at Montgomery's Farm.

[Sidenote: 1829.]

In 1828 there was a general election, in the course of which the
Executive party made tremendous exertions to regain a predominating
influence in the Assembly. They perceived plainly enough that a hostile
majority in the Lower House must in the end prove fatal to them. They
might temporarily set it at naught, through their control over the
Legislative Council and the absence of ministerial responsibility, but
they could not hope to keep up such a farce for all time. This knowledge
impelled them to adopt every means which their ingenuity could devise to
secure the return of candidates who might be relied upon to support
their policy. Their success was by no means proportionate to their
efforts. When the returns were all in it appeared that the Opposition
had rather gained than lost by the contest. Two staunch members of the
Compact were defeated in what had theretofore been regarded as safe Tory
boroughs, and Attorney-General Robinson's majority in the Town of York
was greatly diminished. All the most prominent Reformers were returned,
and at the opening of the session on the 8th of January, 1829, Rolph,
Bidwell, Perry, Matthews and Dr. Baldwin took their seats on the
Opposition benches. To their number was now added William Lyon
Mackenzie, who had been returned for the County of York. His election
was a surprise to the Government party, and was pronounced by them to be
an everlasting disgrace to the intelligent and populous constituency
which had returned him. He repaid such compliments as these with others
of a like character, and gave back as much as he received, if not with
usury, at least with fair interest.

Mr. Bidwell was elected to the Speaker's chair by the new Assembly, and
on every test question the Government were left in a hopeless minority.
The vote on the Address in Reply will afford some clue to the political
complexion of the House. It referred to the Lieutenant-Governor's
advisers as having deeply wounded the feelings and injured the best
interests of the country; yet it was carried with only one dissentient
vote--that of J. H. Samson, one of the members for Hastings. Reform was
evidently in the ascendant throughout the Province; but, as during the
preceding Parliament, the exertions of the majority in the Assembly
could do little for Reform under the existing state of the constitution.
The Lieutenant-Governor responded with curt ambiguity to the Assembly's
Address, and cemented his alliance with the Compact by refusing to grant
the prayer of the petition for the release of Collins. The Government
submitted to one defeat after another with dogged sullenness, but with
undiminished contempt for the idea that successive defeats imposed upon
them any obligation to resign.

The session of 1829 was a noisy and quarrelsome one. Hardly had
Mackenzie taken his seat before he began that system of inquiry and
agitation which he thenceforward pursued throughout the whole of his
career as a member of Parliament. He instituted an investigation into
the management of the Provincial Post Office, conducted an inquiry as to
the privileges of members of the Assembly, and as to the behaviour of
certain returning officers, and generally busied himself with important
matters of detail. He displayed precisely the same characteristics as a
legislator that he had displayed as the conductor of a newspaper--great
energy and vigilance, accompanied by a critical and fault-finding
spirit, and an almost entire absence of tact and discretion. He gave
wanton and unnecessary offence to those who differed from him in
opinion, not only on important political questions, but even on
comparatively insignificant matters of every-day occurrence. His
coadjutors found that, independently of the sincerity or insincerity of
his intentions, his judgment was not to be trusted. He could be misled
by any _ignis fatuus_ that displayed a bright light, and was le