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.