CHAPTER II.

A BILL OF PARTICULARS.

The course of bitter persecution sustained by Mr. Gourlay was really the

first remote germ of the Upper Canadian Rebellion. In making this

statement I would not be understood as asserting that Gourlay was the

first person to set himself up in opposition to authority in the

Province, or even that he was the first victim of Executive tyranny.

There had been more or less of dissatisfaction at the selfish and

one-sided policy of the Administration ever since shortly after the

departure of Lieutenant-Governor Simcoe in 1796. Between that date and

Mr. Gourlay's arrival in the Province several personages of some local

note had paid heavy penalties for daring to have opinions of their own.

Mr. Wyatt, the Surveyor-General, had been dismissed from office because

he had presumed to point out certain official irregularities, and

because he would not betray the trust reposed in him. Joseph Willcocks

had been goaded into treason by a long course of persecution. Judge

Thorpe had been driven from the country quite as effectually as Mr.

Gourlay, for no other reason than that he had persisted in holding up

official corruption to the public gaze. But none of these manifestations

of "the oppressor's wrath, the proud man's contumely," had taken so deep

a hold upon the public mind as did the case of Mr. Gourlay. The injuries

inflicted upon him had been so cruel, the perversion of justice so vile,

that the public conscience received a shock from which it did not

recover during the existing generation. For the first time in Upper

Canada's history signs of an organized Opposition began to appear upon

the floor of the Assembly. Thenceforward the antagonism between the two

parties grew in intensity from year to year. In process of time the

Opposition frequently became the controlling power in the House. At a

later stage of its development it divided into two parts. One of these

constituted the moderate Reform Party of the Province. The other was

made up of the advanced Radical element, whence emanated the Rebellion

which forms the especial subject of the present work. All of which will

hereafter be narrated with greater amplitude of detail.

It has been intimated that traces of dissatisfaction began to be

apparent soon after Governor Simcoe's time. Upon his demission of

authority the direction of affairs devolved upon the Honourable Peter

Russell, as senior member of the Executive Council; and that gentleman

had not been long in authority before murmurs began to be heard about

the partial and defective administration of the important department of

Crown Lands. There were comparatively few men in the country possessed

of sufficient education and business experience to admit of their being

entrusted with the charge of public affairs; and where all the offices

were necessarily in the hands of a small number of persons, it was a

foregone conclusion that irregularities should creep in, and that

cliquishness and favouritism should prevail to a greater or less extent.

When Lieutenant-Governor Hunter arrived, in 1799, he found that certain

objectionable practices had become common, and that the foundation had

been laid of serious public evils. Greed and favouritism had obtained a

strong foothold, and scarcely any branch of the public service was

efficiently managed. The sin of covetousness was not confined to

subordinate officials, but included among its votaries some of the

highest dignitaries of the Province. It would seem that President

Russell himself had an itching palm, and that his individual interests

were carefully watched over during his temporary administration of

affairs. Everybody has heard how he made grants of public lands from

himself to himself,[24] thereby violating one of the most cherished

maxims of English jurisprudence. Lieutenant-Governor Hunter, in a letter

written to a friend in England soon after his arrival at York, refers to

P. R.--by whom Mr. Russell is clearly indicated--as "an avaricious one."

In a subsequent part of the same epistle he adds: "So far as depended

upon him [Mr. Russell] he would grant land to the de'il and all his

family as good Loyalists, if they would only pay the fees." During

Governor Hunter's own term of office, though there is no evidence of

corruption or double-dealing on his own part, abuses continued to exist,

and dishonesty too often stared honesty out of countenance. During the

_regime_ of his successor, Commodore Grant, these abuses grew steadily,

both in number and in bulk; and during Francis Gore's long though

interrupted administration, they reached a height which called aloud for

redress.

And here it is desirable to enquire into the specific nature of the

manifold evils which enriched a few at the expense of the many; which

endowed a venal and corrupt clique with a practical monopoly of

political and social power; which sowed the deadly seed of factious

strife, and stemmed the tide of Upper Canadian prosperity.

Theoretically speaking, the constitution granted to Upper Canada by the

Act of 1791 was not unfairly represented by Lieutenant-Governor Simcoe

as being "the very image and transcript of that of Great Britain."[25]

We had a Legislative Council, the members whereof were appointed by the

Crown for life. This body bore some resemblance to the British House of

Lords. Next, we had a Legislative Assembly, the members whereof were

periodically elected by the people--or rather by such of the people as

possessed a sufficient property qualification to entitle them to

exercise the franchise; and this property qualification was placed so

low as almost to constitute universal suffrage.[26] The Assembly

corresponded to the British House of Commons; and these two

bodies--Council and Assembly--with the Lieutenant-Governor, constituted

the Provincial Parliament. The last-named functionary of course

corresponded to the Sovereign of Great Britain. He was appointed by the

Crown, to whom he was solely responsible. He was in no constitutional

sense responsible to either branch of the Legislature, or to both

branches combined, or to any other cis-Atlantic authority whatsoever.

With such substitutes for King, Lords and Commons, Upper Canada might

therefore be said to possess a pretty close copy of the British

constitution. But when carried into practice the resemblance failed in a

matter of the very highest import. The absence of ministerial

responsibility was an all-comprehending divergence. When a British

ministry fails to command the confidence of the electorate, as

represented by the House of Commons, resignation must follow. In other

words, the Government of the day derives its power from the people, to

whom it is responsible for the manner in which it discharges the trust

reposed in it; and the moment it fails to command public confidence it

must give way to those who possess such confidence. The test of

confidence is the vote in the House of Commons. This has been a

recognized principle of English Parliamentary Government for nearly two

hundred years; in fact, ever since the settlement of the constitution

after the Revolution of 1688. With us in Upper Canada there was none of

this ministerial responsibility. We had a ministry, but not a

responsible ministry. It was manifestly impossible that each member of

the Legislative Council and Assembly should be consulted as to every

minute detail of the administration. Such a system would be cumbrous,

and altogether impracticable. The actual task of carrying on the

Government was therefore, as in England, entrusted to a small body of

men who, from the nature of their functions, were known as the Executive

Council. The members of this body were appointed by the Crown--that is

to say, by the Lieutenant-Governor--at will. It was not necessary that

they should have seats in either branch of the Legislature, to neither

of which were they in any sense responsible. They were not required to

possess any property or other qualification. In a word, the Crown's

representative was at liberty to select them without any restriction,

and no one in the Province would have had any constitutional right to

call him to account if he had seen fit to enrol his own valet as an

Executive Councillor. As matter of fact they were commonly selected from

the judiciary and other salaried officials, and from the members of the

Legislative Council. Their number was indeterminate, but was seldom less

than four or more than six, in addition to the Lieutenant-Governor

himself. Their functions consisted of giving advice to the

Lieutenant-Governor on all matters of governmental policy, whenever he

might deem it expedient to consult them. With respect to mere matters of

detail, such as appointments to office, he was not supposed to be under

the necessity of advising with them, nor, according to an opinion long

and ostentatiously proclaimed, was he in these early days under the

smallest obligation to follow their advice after it had been given.

This, however, was merely the prescriptive view, and it derived no

sanction from the Constitutional Act itself, which incidentally refers

to the Executive Council as being appointed "within such Province, for

the affairs thereof." On the other hand, the Executive Councillors

themselves were not legally or constitutionally responsible to the Upper

Canadian people, either individually or collectively, for any line of

policy they might inculcate, or for any advice they might give. There

were no means whereby they could be called to account by the people,

even should they corruptly and openly abuse the trust reposed in them.

It is not difficult to foresee the result of so anomalous a state of

things, though in this Province, owing to sparsity of population and

other local causes, the result did not immediately become apparent.

Simcoe was a strong-minded, as well as a conscientious man. He had a

policy of his own for the government of the country, both at large and

in detail, and during his _regime_ he carried out that policy as to him

seemed best. He from time to time went through the form of consulting

with his Executive Council, but, so far from receiving any impulse from

them, he invariably carried all before him at the Council Board, and was

the be-all and end-all of the Administration. He was, in short, a

beneficent despot, of high and disinterested views, who accomplished

much good for Upper Canada, and would doubtless have accomplished more

but for his too early removal. The moment his all-pervading influence

was gone, however, the mischief, as has already been seen, began to

work. President Russell granted public lands to Peter Russell, and

rapidly laid up a store of wealth. Where the head of the public service

was thus disposed to help himself, we may be sure that subordinate

officials were not slow to follow his example. Subsequent

Lieutenant-Governors were for the most part military men, with little

knowledge of the country's needs, and with a disposition to make their

voluntary exile as easy and agreeable--and withal as profitable--as

might be.[27] They naturally turned for counsel and assistance to their

Executive Councillors, who thus became the dispensers of patronage and

the supreme power in the State. The Crown's representative was a mere

tool in their hands. Their domination was complete. "A body of holders

of office thus constituted," says Lord Durham,[28] "without reference to

the people or their representatives, must in fact, from the very nature

of colonial government, acquire the entire direction of the affairs of

the Province. A Governor, arriving in a colony in which he almost

invariably has had no previous acquaintance with the state of parties or

the character of individuals, is compelled to throw himself almost

entirely upon those whom he finds placed in the position of his official

advisers. His first acts must necessarily be performed, and his first

appointments made, at their suggestion. And as these first acts and

appointments give a character to his policy, he is generally brought

thereby into immediate collision with the other parties in the country,

and thrown into more complete dependence upon the official party and its

friends."

It has been the fashion with most writers on our early history to

represent the Executive Council as an arbitrary creation of the early

Lieutenant-Governors: as an arrangement sanctioned by the Imperial

authorities, but not authorized by the Provincial constitution. Such

writers cannot have read the debates which took place in the House of

Commons while the Constitutional Act of 1791 was under discussion there.

Nay, they cannot have read the Act itself with much care. Nothing is

more certain than that the framers of that statute contemplated the

creation of an Executive Council. By reference to the seventh,

thirty-fourth and thirty-eighth clauses it will be seen that the

Executive Council is definitely mentioned by name, and that the

appointment of such a body is assumed, and treated as a matter of

course. But that the Council should occupy the same relative position as

in Great Britain, and that it should be amenable to public opinion as

expressed by the vote of the House of Assembly, does not appear to have

been clearly understood. Indeed, with the exception of a few master

minds, such as Pitt, Fox, and Burke, but little interest seems to have

been taken by British legislators in this important colonial experiment.

Parliamentary Government, though it had been long established in

England, had not then been reduced to a science. Even such clear-sighted

statesmen as Pitt and Fox were blind to facts which at the present day

force themselves upon the attention of every student of constitutional

history. What wonder, then, that there should have been defects in the

measure of 1791? What wonder that even eminent statesmen should have

attempted to square the circle in politics by introducing such an

incongruity as representative institutions without Executive

responsibility? Power was given to the popular branch of the Legislature

to pass measures for the public good. But, no matter how overwhelming

might be the majorities whereby such measures were passed, there was no

obligation on the other branches of the Legislature to accept or act

upon them. In the words of one of our own writers: "the Legislative

Councils, nominated by the Crown, held the Legislative Assemblies by the

throat, kept them prostrate, and paralyzed them."[29] As for the members

of the Executive Council, they were to all intents and purposes

independent of public opinion, and could override a unanimous vote of

the Assembly without incurring any responsibility whatever. By reference

to the correspondence between successive colonial Governors and the Home

Office, it appears to have been tacitly recognized by the magnates on

both sides of the Atlantic that it was unnecessary for a colonial

Executive to defer to a Parliamentary majority. The right of appointment

to office was considered to be the exclusive prerogative of the

representative of the Sovereign, and it was regarded as a badge of

colonial dependence that the people should have no voice in such

matters.

It seems to have been assumed that certain Imperial interests were

involved in this great question, and that to give way to the popular

demand would be to render the colonies free from Imperial control. What

those particular interests were which required to be protected by so

jealous and anomalous a doctrine does not appear to be anywhere

specified with precision. But nothing is more certain than that

confusion and chaos must be the inevitable outcome of any attempt to

reduce to practice such opposite principles as are involved in

Representative Government and Executive irresponsibility. Such an

attempt in England would very soon produce revolution. Such an attempt

in France did actually produce revolution in 1830, when Charles the

Tenth was deposed for his persistent endeavours to maintain an unpopular

ministry in power. No country in the world would long continue to

tolerate a Parliamentary system which was free and representative in

theory, but tyrannous and despotic in practice. Upper Canada was indeed

long-suffering, but a time arrived when it became evident that there was

a limit to her powers of endurance.

As the years rolled by, and the country steadily advanced in wealth and

population, abuses grew apace.[30] The Executive became rapacious and

tyrannical. Commanding, as they did, the entire administrative and

official influence of the Province, they ordered all things according to

their own pleasure. They could count upon the support of every member of

the Legislative Council. Indeed, through their pliant tool, the

Lieutenant-Governor for the time being, they controlled the membership

of the latter body, and took care that no man was appointed a

Legislative Councillor unless he was either one of themselves or wholly

subject to their influence. The Assembly soon found that it was

deliberately and systematically deprived of the privileges which of

right belonged to it, and that it was little better than a nullity. It

might meet and go through the form of passing such measures as it saw

fit, but if the measures so passed were not acceptable to the

Legislative and Executive Councils they were contumeliously vetoed when

they reached the Upper House. This brought the two deliberative branches

of the Legislature into direct and perpetual conflict. The Assembly,

however, in early years, was always largely made up of such men as Isaac

Swayze--subservient creatures of the Administration, who opposed their

influence to that of the tribunes of the people, and prevented any

collision between the two Houses from assuming a very serious

constitutional aspect. It was not till the third decade of the century

that the conflict assumed such a character as to threaten the

foundations of the constitution itself; and it was not till the fourth

decade that any actual attempt was made to subvert those foundations.

The Province was about fifteen years old before the inhabitants of Upper

Canada generally began to realize what an intolerable burden they had to

bear in this irresponsible Executive. Before that time some of the

better educated and more intelligent among them recognized its existence

as an evil with which they or their descendants would at some future

time be called upon to deal. But such persons were comparatively few in

number, and as the burden did not lie with special heaviness upon their

own backs, they did not feel called upon to involve themselves in what

might prove a ruinous quarrel with persons who would not tamely submit

to interference. As for the inhabitants generally, they were too busily

occupied in clearing their lands, in hewing out homes for themselves and

their families in the vast wilderness, and in reducing the soil to a

state fit for cultivation, to give themselves much concern about public

affairs. There was no newspaper press to stimulate them to enquiry. The

only sheet published in the Province which by any license of language

could be called a regular newspaper was _The Upper Canada Gazette_,

which was the official mouthpiece of the Administration. _The Canada

Constellation_, which was a quaint long folio, published at the old

capital, Niagara, had but a brief existence, and expired during the

very early years of the century. The _Upper Canada Guardian_, to be

hereafter referred to, did not come into being till 1807. Editorial

articles, except of the briefest and crudest sort, were a still later

development. The bucolic mind had no intellectual stimulant whatever

except such as was to be obtained from contact with other bucolic minds

through the medium of conversation. It was no wonder, then, that for the

first fifteen years after the creation of Upper Canada, the Provincial

Government should have been permitted to do very much as it chose,

without being subjected to any formidable criticism on the part of the

community.

The Legislative Council, as has been said, was composed of members

nominated by the Sovereign's representative. By the sixth section of the

Constitutional Act provision had been made for the creation of a

hereditary nobility, with the hereditary right of being summoned to the

Legislative Council. Happily this authority was not exercised;

otherwise, as Gourlay has remarked, "we should have seen, perhaps, the

Duke of Ontario leading in a cart of hay, my Lord Erie pitching, and Sir

Peter Superior making the rick; or perhaps his Grace might now have been

figuring as a pettifogging lawyer, his Lordship as a pedlar, and Sir

Knight, as a poor parson, starving on five thousand acres of Clergy

Reserves."[31] We were spared the spectacle of such absurdities, and

life members of the Legislative Council were the nearest approach to a

nobility vouchsafed to us. Some of the first appointees were men of

intelligence and probity, but few of those subsequently created could

with any show of truthfulness be so characterized. They were for the

most part dependants of the Government, with no fitness, educational or

otherwise, for the discharge of grave legislative functions, and with no

motive but to do the bidding of those who had clothed them with the

dignity of office. All things considered, this condition of things was

to be looked for; but the inevitable result followed. The few upright

members either died off in the course of time, and were succeeded by

sycophantic placemen, or, finding themselves outnumbered, ceased to

attend the sittings of the branch of the Legislature to which they

belonged. In one way and another, those who really wished to preserve

the public interests were weeded out, and nothing was left but a rump

devoted to the Executive will. Instead of answering the purpose for

which it was originally intended, the Legislative Council became a mere

instrument in the hands of the oligarchy for stemming back the tide of

public opinion. Instead of forming a seasonable and wholesome check upon

extravagance and inconsiderate legislation in the Lower House, it

contributed to the impoverishment of the Provincial revenue by assisting

to keep the control of public affairs in the hands of selfish and

unprincipled men. Instead of preserving the "happy balance of our

glorious Constitution"--a phrase constantly placed in the mouths of

Lieutenant-Governors, and embodied in their addresses to our Canadian

simulacrum of the House of Lords--it tended to keep the balance all on

one side, and that side was the one most prejudicial to the public good.

It became a mere stop-gap interposed by the Government between itself

and the Assembly. The Assembly passed measure after measure with careful

deliberation, only to find that their time had been thrown away, for

upon reaching the Upper House these measures were ignominously thrust

aside. One who had himself been a member of the Assembly, and who had

had personal experience of the evils whereof he wrote, has left the

following description of the manner in which Bills from the Lower

Chamber were treated in the Upper: "Sitting for a short time each day,

the Bills of the Assembly are despatched under the table with unexampled

celerity. Deputations, conveying up popular measures, no sooner have

their backs turned than the process of strangulation commences. Bills

that have undergone discussion for days in the other House, and that

have been amended and perfected with the greatest care, no sooner arrive

in their august presence than their fate is sealed."[32] He adds: "Of

those who attend to their duties, two-thirds are dependent on the

Government for either salaries or pensions. It is not harsh to say that

they become the willing tools of the hand that feeds them, instead of

looking to the interests of those from whom they indirectly derive their

support. Such gratitude may be very amiable, but it is no qualification

for an independent legislator."[33] These lines were written as late as

the year 1837, and their author informs us that within the preceding

eight years the Council had rejected no fewer than three hundred and

twenty-five Bills passed by the Assembly, being an average of more than

forty for each session[34]--a statement which is fully confirmed by

reference to the official journals of the respective Houses.

Such a method of procedure, leading to inevitable conflicts between the

two Houses, caused the public business to be impeded and the public

interests to be very inefficiently conserved. The whole administrative

system of the Province was disorganized. The contest was very unequal,

for the Government could frequently command a majority of votes in the

Assembly. The minority in that House smarted under a sense of tyranny

and injustice, and felt that they were of no weight in the body politic.

That sense of dignity which is imparted by a consciousness of

contributing to the formation of public policy and opinion was wanting.

Not only were the benefits arising from a proper organization of labour

altogether lost, but the antagonism between the two factors in political

life was so great that they to a large extent neutralized each other.

The Upper House had no weight with the people; the Lower House had no

weight with the Crown.

One of the greatest drawbacks to the country's prosperity was the method

of granting public lands. It had been the policy of Governor Simcoe to

encourage immigration from the United States, as well as from Great

Britain and continental Europe. He had offered great inducements, in the

shape of free grants of wild lands, to persons settling in Upper Canada,

and his offer had produced the expected results in the shape of a full

tide of immigrants. He had, however, exercised a rigid personal

supervision over these grants, and had done his utmost to prevent the

abuse of his bountiful regulations. His successors were less scrupulous,

and being, as has been seen, under the control of greedy and selfish

persons, they permitted the public lands to be used as means of

enriching and corrupting the favourites of the Administration. The

land-granting department was honeycombed by jobbery and corruption.

Grants of five thousand acres were made to each member of the Executive

Council, and of twelve hundred acres to each of their children. Similar

grants were made to certain favoured members of the Legislative Council

and their children.[35] Numerous other personages who could command

sufficient influence at Court obtained grants of twelve hundred acres

each. The extent of an ordinary grant was two hundred acres. From the

creation of the Province down to 1804 these donations were unattended by

any cost whatever to the grantees beyond trifling fees to the officials

for their trouble in passing the entries through the office books. The

privilege of obtaining landed estates for nothing was abused to such an

extent, however, that the Home Office interfered, and in the year last

named a scale of fees proportionate to the extent of the grant was

introduced; but U. E. Loyalists, officers, soldiers, Executive

Councillors and their children were exempt even from this trifling

burden. In 1818 the performance of certain settlement duties was imposed

upon all persons receiving grants, without any exemptions, and in after

years several other scales of fees were introduced from time to time.

The public lands were committed to the care of an official called the

Surveyor-General, and it was not until 1827 that a Commissioner of Crown

Lands was appointed. During the first thirty-five years of the

Province's history grants of land were entirely subject to the

discretion of the Governor-in-Council, not merely as to the quantity and

situation of the land itself, but also as to whether the applicant

should receive any grant at all.[36] Under such a system it was

inevitable that the grossest partiality should prevail, and it was but

seldom that any one succeeded in obtaining a grant until those in

authority had satisfied themselves that he was to be relied upon to

uphold any policy which they might see fit to dictate. Official

dignitaries granted lands to their servants and other dependants, and,

as soon as certain requisite forms had been complied with, these lands

were transferred to themselves or their children. In other cases persons

were actually hired by the month to draw land and perform the settlement

duties, after which the land was conveyed to their employers. Having the

run of the official books, these cormorants contrived in one way and

another to acquire for themselves and their creatures all the best lands

in the Province, either wholly for nothing or at a price which was

merely nominal. "The keys of office," says a writer already quoted from,

"were held by themselves or friends, and no admittance to their secrets

was allowed except to the initiated, whose favourable out-of-door

statements could be relied on. Never since the Norman invasion of

England was there such a wholesale partition of plunder."[37] Many

persons owned or controlled, directly or indirectly, entire

townships.[38] Others owned thousands of acres which they had never

seen. As the taxes imposed on unsettled lands were trifling, these

immense tracts were no appreciable expense to their owners, who could

hold them from year to year, until the progress of settlement rendered

them of immense value. Such progress was inevitable, for though these

huge reservations tended to keep back the country, settlers obtained

grants of adjoining lands, and their labours could not fail to increase

the value of all contiguous territory. The Home District, including the

most valuable portion of Upper Canada, was especially afflicted by these

wholesale reservations, but every part of the Province was more or leas

crippled by them.

The ruling faction and their favourites, not satisfied with the enormous

direct and indirect grants of lands which they managed in one way and

another to obtain, availed themselves of every opportunity to buy up

land which had been granted to persons who had expended their little all

on their properties, and had thereby become impoverished. Among these

latter were many half-pay officers and others of good birth but limited

means, who had sought homes for themselves in the Canadian wilderness.

Not a few had been compelled to sell their commissions in order to

obtain the wherewithal to settle themselves and their families on the

lands granted to them. Finding themselves cut off from society, and

ill-suited to face the privations of pioneer life, they became

discouraged, and sold their lands for whatever meagre price they could

get. The land-jobbers were ever on the alert to buy up these tracts at a

few shillings an acre, not with any intention of settling upon or

improving them, but solely for the purpose of holding them for an

increased value. The grants to the children of U. E. Loyalists were the

constant subjects of bargain and sale, and wrought great evil to the

Province without producing any corresponding benefit to the recipients.

Very few of the lots so granted were ever occupied by the grantees, most

of whom were young persons of both sexes who resided with their parents,

and had no inclination to set up for themselves in the wilderness. These

grants were frequently sold at ridiculously low prices. From two to five

pounds was an ordinary price for a lot of two hundred acres. Mr. John

Radenhurst, who was Chief Clerk in the office of the Surveyor-General

for many years, is entitled to speak on this subject with authority. In

his evidence taken before Lord Durham's Commissioner, in 1838, he states

that the general price paid by speculators for the two-hundred-acre lots

granted to sons and daughters of U. E. Loyalists was "from a gallon of

rum up to perhaps six pounds." In answer to another question, he states

that while millions of acres were granted in this way, the settlement of

the Province was not advanced, nor the advantage of the grantee secured

in the manner that may be supposed to have been contemplated by

Government. He mentions the Honourable Robert Hamilton, a member of the

Legislative Council, and the two Chief Justices, Elmsley and Powell, as

among the largest purchasers of these lands. Mr. Hamilton's acquisitions

amounted to about a hundred thousand acres.[39] Elmsley and Powell, in

addition to the five thousand acres which each of them had obtained for

nothing as members of the Executive Council, managed to acquire

quantities of land which, had they been brought together in one spot,

would have made a township of average size. Thus was monopoly

perpetuated and increased from year to year, and thus were large tracts

of the Provincial territory maintained in a state of primitive

wilderness.

Intimations of the gigantic abuses existing in the land-granting system

of Upper Canada were more than once sent across the Atlantic to the

Colonial Secretary, who instructed the Lieutenant-Governor to impose

certain regulations with a view to preventing the continuous repetition

of injustice. The Colonial Office, however, was more than three thousand

miles away, and means were easily found for evading any restrictions

imposed at such a distance. Some idea of the extent which the evil had

attained in the year 1818 may be derived from the two passages in that

very petition to the Prince Regent for which Mr. Gourlay was indicted at

Kingston and Brockville, as related in the preceding chapter. "The lands

of the Crown in Upper Canada," proceeds the petition, "are of immense

extent, not only stretching far and wide into the wilderness, but

scattered over the Province, and intermixed with private property

already cultivated. The disposal of this land is left to ministers at

home, who are palpably ignorant of existing circumstances, and to a

council of men resident in the Province, who, it is believed, have long

converted the trust reposed in them to purposes of selfishness. The

scandalous abuses in this department came some years ago to such a pitch

of monstrous magnitude that the Home ministers wisely imposed

restrictions upon the Land Council of Upper Canada. These, however, have

by no means removed the evil; and a system of patronage and favouritism,

in the disposal of the Crown Lands, still exists; altogether destructive

of moral rectitude and virtuous feeling in the management of public

affairs. Corruption, indeed, has reached such a height in this Province

that it is thought no other part of the British Empire witnesses the

like, and it is vain to look for improvement until a radical change is

effected. It matters not what characters fill situations of public trust

at present--all sink beneath the dignity of men--become vitiated and

weak, as soon as they are placed within the vortex of destruction.

Confusion on confusion has grown out of this unhappy system; and the

very lands of the Crown, the giving away of which has created such

mischief and iniquity, have ultimately come to little value from abuse.

The poor subjects of His Majesty, driven from home by distress, to whom

portions of land are granted, can now find in the grant no benefit; and

Loyalists of the United Empire--the descendants of those who sacrificed

their all in America in behalf of British rule--men whose names were

ordered on record for their virtuous adherence to your Royal Father--the

descendants of these men find now no favour in their destined rewards;

nay, these rewards, when granted, have in many cases been rendered worse

than nothing, for the legal rights in the enjoyment of them have been

held at nought; their land has been rendered unsaleable, and, in some

cases, only a source of distraction and care. Under this system of

internal management, and weakened from other evil influences, Upper

Canada now pines in comparative decay; discontent and poverty are

experienced in a land supremely blessed with the gifts of nature; dread

of arbitrary power wars, here, against the free exercise of reason and

manly sentiment; laws have been set aside; legislators have come into

derision; and contempt from the mother-country seems fast gathering

strength to disunite the people of Canada from their friends at home."

Notwithstanding these long, involved, awkwardly-constructed sentences,

there is no more accurate picture to be found anywhere of the effect of

the pernicious administration of affairs in the Public Lands Office at

York in 1818. Twenty years later Lord Durham found it not much

improved.[40]

Another hydra-headed monster which ate into the very vitals of the

commonwealth was the provision for the clergy, known as the Clergy

Reserves. This was perhaps the greatest of all the curses imposed upon

Upper Canada by the Constitutional Act, for its ill effects were both

direct and incidental. It not only tended to stop the march of progress,

but it created a degree of sectarian animosity and hatred little

calculated to inspire respect for Christianity in the breasts of the

secular portion of the community, and it disturbed the public

tranquillity for nearly two generations.

By the thirty-sixth section of the Act of 1791, power was given to

reserve out of all future grants of land in Upper and Lower Canada, as

well as in respect of all past grants, an allotment for the support of

"a Protestant Clergy." It was provided that this allotment should be

"equal in value to the seventh part of the lands so granted." By the

thirty-seventh section, the rents, profits and emoluments arising from

the lands so appropriated were to be applicable solely to the

maintenance and support of a Protestant Clergy. By subsequent sections

provision was made for the erection and endowment by the

Lieutenant-Governor, under instructions from the Crown, of parsonages or

rectories, one or more in every township or parish, according to the

establishment of the Church of England, and for the presentation of

incumbents, subject to the bishop's right of institution. By section

forty-two it was enacted that no Provincial statute varying or repealing

these provisions should receive the royal assent until thirty days after

it had been laid before both Houses of Parliament in Great Britain.

These famous enactments were destined to produce more discord and

heartburning than all the other clauses of the Constitutional Act

combined. They were destined to make the Church of England more

cordially detested in this Province by persons without the pale of her

communion than she has ever been in any other part of the world. They

were destined to set one Legislative faction against another in such

fierce array that the public business frequently had to be suspended.

They were destined to divide the Provincial population into two hostile

camps, each filled with envy, malice and all uncharitableness towards

the other. They were destined to be the key-note of general elections,

and to shape the policy of successive Administrations. They were

destined to be the chief factor in bringing about a Rebellion which for

a time seriously disturbed the industries of the Province; which filled

the Provincial jails with suffering prisoners; which consigned a number

of persons to a premature and ignominous death; which brought sorrow

and ruin to many a once happy fireside; which bequeathed a legacy of

hatred to the children of those who took part in it; and which seriously

disturbed the international amity between Great Britain and the United

States.

It may be doubted whether all the ill effects of these appropriations

were foreseen by their promoters in the early years of our history. It

was at all events some time before those effects began to be apparent to

the people generally. In making the appropriations, care was taken that

the reserved lands should be intermixed with grants to actual settlers,

whereby they were spread over a large area; the manifest intention being

to increase their value by their proximity to cultivated farms, and at

the same time to create a tenantry in the settled townships, with a view

to the creation of parishes and the endowment of rectories. In several

portions of the Province, however, it was impossible to follow this

plan. Much of the Niagara peninsula had been granted to Butler's Rangers

before the passing of the Constitutional Act. In like manner, certain

townships along the north bank of the St. Lawrence, as well as several

portions of the Western District, had been granted to other United

Empire Loyalists. In none of these cases had any reservations been made,

and the lands had already become vested in the grantees. The

appropriators accordingly set apart large tracts of aggregated

reservations in contiguous townships which were yet unsettled. The

prejudicial results soon began to appear. Huge tracts of reserves

interposed themselves between one settler and another, enhancing the

difficulties of communication and transportation, and hindering or

altogether preventing that cooeperation of labour which is essential to

the prosperity of pioneer settlements. The inhabitants, instead of being

drawn together, were isolated from one another, and combination for

municipal or other public purposes was rendered all but impracticable.

They were kept remote from a market for the sale of their produce, cut

off from the privileges of public worship and public education for their

children; deprived, in a word, of the blessings of civilization.

Settlement was seriously obstructed, and the industrious immigrant was

to a great extent paralyzed by his surroundings.

The evils arising out of these Clergy Reserves were intensified by the

unfair and illegal manner in which the appropriations were made. It has

been seen that by the Act of 1791 the land reserved for the clergy was

to be equal to one-seventh of all grants made by the Crown. One-seventh

of all grants would obviously be one-eighth of the whole. Yet, instead

of acting on this self-evident proposition, it was the practice of those

to whom the duty of reservation was entrusted to set apart for the

clergy one-seventh of _all_ the land, which was equal to a sixth of the

land granted. The surplus thus unjustly appropriated on behalf of the

clergy had in 1838 footed up to a total of three hundred thousand acres.

The excess was confined to about two-thirds of the surveyed townships,

from which circumstance, as well as from the obvious construction of the

statute, it is to be inferred that the excessive reservations were made

deliberately, and not from mere oversight or inadvertence.[41]

As the Province increased in population, and as land advanced in value,

the grievance became more and more manifest. The growl of discontent

began to be heard, and the people began to combine against the

intolerable evil. This, at first, was chiefly due to the purely secular

reasons above indicated. By degrees, however, the sectarian element was

developed, and the growl of discontent became a roar of opposition. A

dominant church was not acceptable to the Dissenters[42] who composed

the bulk of the population; yet it was contended by those in

authority--all of whom were Episcopalians--that the Clergy Reserves were

the exclusive domain of the Church of England. It must be conceded that

there was some ground for this contention, and that the question was not

quite free from doubt. The Act authorizing the setting apart of the

Reserves had appropriated them for the maintenance and support of "a

Protestant Clergy." The word "clergy" was not commonly applied in those

days to dissenting ministers of religion. It had never been used in any

English statute to designate any ministers except those of the Church of

Rome and the Church of England. The Church of Rome being excluded by the

term "Protestant," it was contended that the provision had been for the

exclusive benefit of the Church of England, more especially as the

creation and endowment of parsonages and rectories--which are

institutions peculiar to the Church of England--had been expressly

provided for by the same Act. Such was the plea put forward on behalf of

the Church of England. Dissenters took a different view. They argued

that the term "Protestant Clergy" had been used in the Act in mere

contradistinction to the clergy of the Church of Rome. They further

urged that the limited construction sought to be put upon the term by

the Anglicans was plainly negatived by the thirty-ninth section of the

Act, wherein the words "incumbent or minister of the Church of England"

were expressly employed. Such terms, it was said, would not have been

used by the framers of the Act if they had regarded them as synonymous

with "Protestant Clergy," as used in other clauses. "The manifest

intention of the Act," said the Dissenters, "was to provide for a

_Protestant_--as distinguished from a _Roman Catholic_--clergy. The

provision for the establishment of parsonages and rectories is a mere

matter of detail, which cannot be allowed to override the larger

intention so plainly evidenced by other sections." The Presbyterian

body took higher ground than their non-Anglican brethren. The Church of

Scotland had been expressly recognized as a Protestant Church by the Act

of Union of England and Scotland in 1707. It was therefore contended

that the ministers of that church were entitled to be considered as

"Protestant Clergy;" and this contention was sustained by the English

law officers of the Crown in 1819. The opinion expressed by those

learned officials was acted upon, and the Presbyterians of Upper Canada

put forward claims to a share of the Reserves. Their claims were

allowed; whereupon other Protestant denominations followed their

example, and demanded, as "Protestant Clergy," to participate in the

provision made for them. The private and public quarrels which ensued

between leaders of the different sects kept the country in a state of

chronic disturbance; while the greed displayed by professed ministers of

religion furnished a striking practical commentary upon the doctrines

taught by the Founder of all Christian faiths. Opinions were obtained

from eminent lawyers as to the respective rights of the various sects,

and as to the true meaning of the Constitutional Act. The most opposite

conclusions were arrived at by different lawyers, and it became manifest

that no apportionment satisfactory to all the claimants could be made by

any tribunal. The Church of England meanwhile contrived to secure the

great bulk of the spoils. According to a return to the House of Assembly

of lands set apart as glebes in Upper Canada during the forty-six years

from 1787 to 1833, it appears that 22,345 acres were so set apart for

the Clergy of the Church of England, 1160 acres for Ministers of the

Kirk of Scotland, 400 for Roman Catholics, and "none for any other

denomination of Christians."[43]

But there was a broader and stronger argument than any of these purely

technical contentions: an argument founded on experience and practical

utility. No matter what had been the intent of the original framers of

the Constitutional Act, the fact had become patent to all Dissenters,

and even to many liberal-minded lay members of the Anglican Church, that

the Clergy Reserves were a curse to the Province--a mill-stone about her

neck, which dragged her down in spite of all exertions to raise her to

the surface. Not long after this fact had become generally recognized,

an agitation arose in favour of the total abolition of State aid to

religious bodies. The plan advocated by Reformers was the sale of the

Reserves, and the application of the proceeds to public education and

municipal improvements. The agitation was kept up until long after the

period covered by this work, and the object sought to be attained by it

was not fully accomplished until the year 1854. Meanwhile, however, it

was the most important question before the country, and it occupied the

attention of the Legislature during a large part of almost every

session. Here was where the conflict between the two Houses was felt

with most pernicious effect. The advocates of abolition and

secularization clearly had the country with them, and the Assembly

passed Bill after Bill to effect those objects. Their efforts were

utterly nullified by the Upper House, which would not listen to any such

proposals, and which threw out as many Bills relating to this important

subject as the Assembly thought proper to send up for its consideration.

Such were the merits of the long and fiercely-contested question of the

Clergy Reserves.

Another serious obstacle to Upper Canadian prosperity was the continual

interference of the Colonial Office in our domestic concerns. Bills

passed by the Provincial Legislature for the regulation of our own

internal affairs were disallowed with vexatious frequency, and

sometimes, apparently, from mere caprice. Sometimes the irresponsible

Executive, unwilling that their obedient servants in the Upper House

should incur popular odium by opposing the will of the Assembly,

permitted Bills to pass both Houses, and then, through their tool the

Lieutenant-Governor, had these identical measures disallowed. Advice,

the compliance with which could not fail to be prejudicial to the

interests of the colony, was also sent across the Atlantic through the

Lieutenant-Governor, to whom it came back by return post in the shape of

Imperial instructions to be acted upon. The Colonial Minister, whoever

he might for the time happen to be, knew little and cared little about

the British North American colonies, and did not generally concern

himself with despatches to colonial Governors any further than to sign

his name to them. He was thus the unconscious means of furthering

Executive tyranny, and to some extent of alienating the loyalty of the

colonists.

Among other drawbacks, sufficiently serious in themselves and in their

ulterior consequences, but of minor importance when compared with the

all-permeating grievances already referred to, may be mentioned the

quartering of military men upon the colony in the capacity of

Lieutenant-Governors; the unequal representation of the people in the

Assembly; the exorbitant salaries of certain public officials; the union

of judicial and legislative functions in the same persons; the

appointment of judges, sheriffs, magistrates, and other officials during

the pleasure of the Executive, and not during good behaviour.

The evils attendant upon placing the local administration of the

colonies in the hands of military officers, who were inexperienced in

constitutional government, and unfitted by training for such duties as

were demanded of them, have already been glanced at.[44] Such persons

naturally enough found themselves altogether out of their proper element

upon their arrival in the colony, and looked to the Executive

Councillors for advice and instruction. That they should follow the

instruction received, and that they should surrender themselves to the

judgment of those enemies of the public weal, followed almost as a

matter of course. In this way the strength of the oligarchy was

consolidated and enlarged, and its members rendered more and more

independent of public opinion. All that can be urged on behalf of the

Home Ministry, by way of excuse for committing the direction of our

affairs to such persons, is that the position of Lieutenant-Governor of

Upper Canada was not a sufficient inducement to make it sought after by

really capable men. The office, in at least one instance to be hereafter

recorded, went a-begging.

Unequal representation was a fruitful source of discontent, though Upper

Canada was no worse off in that respect than the mother-country prior to

the passing of the Reform Bill of 1832. For years before the Rebellion,

the little district towns of Niagara, Brockville and Cornwall each

enjoyed the privilege of sending a representative to the Assembly. All

three of them were notoriously rotten boroughs--as rotten as Gatton,

Grampound or Old Sarum--and always returned Tory members prepared to do

the bidding of the Executive. By such means was the Assembly corrupted,

and the elective franchise turned into an instrument of oppression. Some

of the salaries of public officials were altogether out of proportion

to the state of the revenue, and to the nature and extent of the duties

performed. Certain highly-paid offices were the merest sinecures, and

had been created for no other purpose than to provide for serviceable

tools of the Administration. The practice of permitting judges to sit

and vote in the Legislature needs no comment. Whatever justification

there might have been for such a union of functions in the first infancy

of the Province, when educated men were few in the land, there was

certainly none in the days when Chief Justice Robinson was Speaker of

the Legislative Council. The effect of making the tenure of office of

judges and other dignitaries dependent on the will of the Executive was

such as has attended upon such a system in all countries where it has

been in vogue. The officials were selected almost entirely from one

political party, and had always an eye upon the nod of their

taskmasters, who had the power to make or unmake them. Whenever it was

desirable, in the supposed interests of the Executive, that the

authority of the courts should be strained to the perversion of

judgment, the dispensing of even-handed justice was altogether a

secondary consideration. Mr. Gourlay's case, to say nothing of that of

Bartemus Ferguson, affords a sufficient illustration of the extent to

which the traditions of the Star Chamber were revived in Upper Canadian

practice, when it was thought desirable to crush a champion of popular

liberty and equal rights.

Such were a few of the burdens which the people of Upper Canada were

compelled to bear in the by-gone epoch when tyranny reigned supreme

throughout the Province: when

"the law's delay,

The insolence of office, and the spurns

That patient merit of the unworthy takes,"

were the all too frequent portion of such of the inhabitants as dared to

call in question the righteousness of existing ordinances. There was a

further intolerable grievance which was closely bound up with, and

which, so to speak, grew out of or sustained all the rest: which

comprehended within itself all the evils affecting the body politic, and

which left traces of its existence that have survived down to the

present time. This was the Family Compact--a phrase which is in

everybody's mouth, but the significance whereof, I venture to think, is

in general but imperfectly understood. The subject deserves a chapter to

itself.

FOOTNOTES:

[24] Being somewhat doubtful as to the truth of this oft-repeated story,

I have taken the trouble to consult the records in the Crown Lands

Office, where I find that Mr. Russell on several occasions made grants

of land to himself. Among other such grants I may mention lot number

twenty-two, in the third concession of the township of York, which was

made on the 16th of July, 1797. See Liber A., folio 382, Provincial

Registry Office. He also granted various tracts of land to his sister,

Miss Elizabeth Russell, the first of which bears date the 15th of

December, 1796. See Liber B., folio 334. So that the President appears

to have begun to "do good unto himself" and his family before he had

been three months in office as Administrator of the Government. Further

investigation would doubtless prove that he kept up the practice until

the arrival of Governor Hunter.

[25] See his speech at the close of the first session of the First

Parliament of Upper Canada, on the 15th of October, 1792.

[26] The property qualification for a voter was, in counties, the

possession of lands or tenements of the yearly value of forty shillings

sterling or upwards, over and above all rents and charges; and in towns

or townships, the possession of a dwelling house and lot of the yearly

value of five pounds sterling or upwards, or the having been a resident

for twelve months, and the having paid a year's rent at the rate of ten

pounds sterling or upwards. See the twentieth section of the

Constitutional Act.

[27] The latter part of this clause has no application to Brock, who was

made of manlier stuff. Brock, however, was not Lieutenant-Governor, but

merely Provisional Administrator of the Province.

[28] _Report on the Affairs of British North America_, English folio

edition, p. 29.

[29] _The Constitutional History of Canada_, by Samuel James Watson,

Vol. I., p. 128.

[30] The abuses specified in the present chapter were not confined to

Upper Canada. They existed, with certain local variations, throughout

all the British North American colonies, and produced similar results in

each; viz., ever-recurring conflicts between the Executive and the

popular branch of the Legislature, followed by more or less alienation

of loyalty to the mother country on the part of the more radical element

in the community. In the Maritime Provinces the alienation was not

sufficiently widespread to manifest itself in actual rebellion, though

the conflict between the oligarchy and the popular tribunes sometimes

produced a very disturbed state of feeling. In Lower Canada, where the

element of race-hatred was added to all other sources of disturbance,

the conflict attained an intensity far beyond what was reached in any of

the other colonies, and left traces behind it which are not even yet

wholly obliterated.

[31] _Statistical Account_, Vol. II., p. 296.

[32] _Canadiana_, by W. B. Wells, p. 103.

[33] Ib.

[34] Ib., p. 104.

[35] These grants of five thousand acres to members of the Executive

Council were in direct violation of the instructions framed by the Home

Government for the regulation of land-granting in Upper Canada. They

continued to be made down to 1807, when they were stopped by a

peremptory order to that effect from the Colonial Secretary. There is

one instance on record of a reserve being applied for and made on behalf

of the child of a member of the Legislative Council, though the child

was not three days old. See the evidence of John Radenhurst, Chief Clerk

in the office of the Surveyor-General, in Appendix B. to Lord Durham's

_Report on the Affairs of British North America_.

[36] Most of these facts with reference to the granting of public lands

may be obtained from the archives of the Crown Lands Office in Toronto,

and from the newspapers and official reports of the period. They may

also be found, together with a vast accumulation of other important

facts bearing on the same subject, in Charles Buller's Report on Public

Lands and Emigration, forming Appendix B. to Lord Durham's _Report on

the Affairs of British North America_.

[37] _Canadiana_, p. 130.

[38] In 1796 or thereabouts the Executive offered to grant entire

townships to persons who would undertake to settle them with a certain

number of colonists within a specified time. The number of colonists

required was made proportionate to the extent of territory to be

settled. This offer was taken advantage of by ten different individuals.

The grants were not actually made, but the respective townships were

allocated in the official books to the various persons concerned. Upon

the faith of the pledge of the Executive, several of the ten assignees

proceeded to carry out the conditions imposed. Among them was Mr.

William Berczy, who, having obtained an assignment of the township of

Markham, went to great expense in bringing over a number of German

families, whom he settled according to the conditions of the

contemplated grant. After he had spent a sum of money variously stated

at from twenty to thirty thousand pounds sterling, the Executive coolly

announced that they had determined to abandon the township system, and

that they did not even intend to carry out the grants to those who had

complied with the conditions. The compensation offered for this

unparalleled breach of faith was a grant of twelve hundred acres to each

assignee. Nine of the individuals concerned assented to those terms, but

Mr. Berczy refused to accept any such inadequate recompense, and he

remained for the rest of his life a ruined man. He shook the dust of

Upper Canada from his feet, and took up his abode in Montreal, whence he

subsequently repaired to New York, where he died in the year 1813.

[39] See Appendix B. to Lord Durham's _Report_, folio edition, p. 99.

Mr. Charles Rankin, Deputy-Surveyor in the Western District, in his

evidence before the Commission (_ib._ pp. 120, 121), says:--"The system

of making large grants to individuals who had no intention of settling

them has tended to retard the prosperity of the colony by separating the

actual settlers, and rendering it so much more difficult, and in some

cases impossible, for them to make the necessary roads. It has also made

the markets more distant and more precarious. To such an extent have

these difficulties been experienced as to occasion the abandonment of

settlements which had been formed. I may mention, as an instance of

this, the township of Rama, where after a trial of three years, the

settlers were compelled to abandon their improvements. It should be

noticed that the settlers in this instance were not of a class fitted to

encounter the privations of the wilderness, being half-pay officers. In

the township of St. Vincent almost all the most valuable settlers have

left their farms from the same cause, the townships of Nottawasaga and

Collingwood, the whole of the land in which had been granted, and which

are almost entirely unsettled (Collingwood, I believe, has only one

settler), intervening between them and the settled township, and

rendering communication impossible. There have been numerous instances

in which, though the settlement has not been altogether abandoned, the

most valuable settlers, after unavailing struggles of several years with

the difficulties which I have described, have left their farms." This

witness further states his belief that nine-tenths of the lands in the

Western District were still--in 1838--in a state of wilderness.

[40] See his _Report, passim_; also see the portion of Appendix B.

relating to Upper Canada.

[41] See the Special Report of Mr. R. Davies Hanson, Assistant

Commissioner of Crown Lands and Emigration, forming the commencement of

Appendix A. to Lord Durham's _Report on the Affairs of British North

America_.

[42] I use this word for want of a better, though it is not strictly

accurate as applied to Upper Canada, where there were no clearly

prescribed standards of religious faith from which non-supporters of

Episcopacy could be said to dissent. The word "Nonconformist" is

objectionable for a similar reason.

[43] See _Seventh Grievance Committee's Report_, p. 164.

[44] _Ante_, p. 51.

The Story of the Upper Canadian Rebellion, Volume 1 · 第 2 / 18 章