THE NIAGARA FALLS OUTRAGE.
The case of William Forsyth--commonly known in the chronicles of the
time as the Niagara Falls outrage--differed materially from that of
Captain Matthews, not only in kind, but in degree. In the latter case
there was no gross violation of the decencies of life, or of the outward
forms of law. The mischief was effected by means of spies and secret
information, and the damage inflicted was incidental rather than direct.
The Forsyth case, on the contrary, was more in the manner of the type
riot. It was a violent and utterly unjustifiable exercise of brute
force. But in one important respect it was worse than the type riot.
_That_ display of ruffianism had been accomplished without the open
approbation of the authorities. The Niagara Falls outrage was committed
not only with the full assent, but by the express command, of the
Lieutenant-Governor himself. Not even the poor excuse that it was done
in a moment of anger or irritation could be made for it. It was done
deliberately, in cold blood, and was as deliberately repeated. It was a
simple case of Might _versus_ Right.
A few words of explanation are necessary by way of prologue.
In the year 1786, before the setting apart of Upper Canada as a separate
Province, and just after the commencement of the settlement of the
Niagara Peninsula by Butler's Rangers, the territory contiguous to the
west bank of the Niagara River was surveyed and laid out into lots by
Augustus Jones, a surveyor whose name is familiar to all students of the
early history of this Province. In pursuance of instructions received
from the Government, Mr. Jones, in laying out these lots, made a
reservation of a chain in width--sixty-six feet--along the top of the
bank.
The reservation was made partly with a view to the military defence of
the Province, and partly for the purpose of preserving a convenient
communication.[90] It was expressly specified in the Crown Patents to
the owners of adjoining lands, and embodied in all subsequent deeds upon
successive transfers. It may therefore be conceded that the Crown's
title to the reserved land was indisputable.
In the year 1827, and for some time previously, the principal inn on the
Canadian side of the river at Niagara Falls was owned and kept by one
William Forsyth. The man and his establishment were well known to
travellers, and "Forsyth's" had a high reputation as one of the most
comfortable houses of public entertainment in the country. During the
heat of summer, many residents of York paid more or less frequent visits
to the Falls, not more to enjoy the change of air and the majestic
scenery, than to partake of "mine host" Forsyth's hospitality. The inn
was in close proximity to the great cataract, and was known as the
Niagara Falls Pavilion. It was built on ground that bordered upon and
ran up to the Government's reservation, which alone intervened between
it and the top of the bank.
[Sidenote: 1827.]
Mr. Forsyth drove a flourishing business, but, like some of his
successors at the same spot, his greed grew with his increasing gains,
and he was not content to grow rich by degrees. He determined to augment
his income by the erection of a high post and rail fence, placed so as
to shut out visitors from approaching near to the Falls, and rendering
it necessary for them to pass through his house before the desired view
could be obtained. It should be mentioned that Mr. Forsyth, in addition
to the Pavilion and its immediate grounds, owned the adjoining lands for
a considerable distance, including all the points from which the great
spectacle was to be seen to advantage. By the erection of the fence,
therefore, visitors would be debarred and shut off from all that was
best worth seeing in the neighbourhood, until they had passed through
his inn; and it was of course anticipated that most of those so passing
through would spend more or less money on the premises. There was,
however, one rather serious objection to the contemplated change. It
would involve the enclosure of the Government reservation, a proceeding
which was not likely to be permanently tolerated. Forsyth was probably
ill advised by his attorney in the matter, for he seems to have been
really of opinion that the Government's title to the land was at least
open to question, and he had been permitted to occupy a portion of it
without remonstrance for about six years. Sometime during the early
spring of the above-mentioned year--in time to catch the expected influx
of summer visitors--he carried out his design, and constructed the
enclosure. His house was thus converted into a thoroughfare, which
necessarily gave rise to a greatly increased number of visitors, and to
much additional expenditure within its walls. But the public serenity
soon began to show signs of disturbance. There was a rival innkeeper
named Browne, who was not long in discovering that his own losses were
in proportion to Forsyth's gains. He bestirred himself in the matter,
and soon succeeded in arousing a good deal of indignation in the minds
of visitors. No one was allowed to either enter or pass by his door
without being importuned to sign a petition to the Government, praying
for a removal of the objectionable fence. Other persons residing in the
neighbourhood took umbrage at the innovation, and also made appeals to
the Government on the subject. In this way several numerously-signed
petitions were obtained and forwarded to headquarters.
Such proceedings as these were in themselves reasonable and proper
enough. Forsyth had acted in a selfish and unwarrantable manner, and it
would have been nothing more than he had a right to expect if the
Government had instituted immediate action against him. It would have
been an injustice to the public if he had been permitted to enjoy his
monopoly undisturbed. But neither the trespasser himself nor any of
those who protested against his conduct was prepared for such
high-handed measures as were actually resorted to; measures which
effectually proved the unfitness of Sir Peregrine Maitland for his high
office; which led to his being cordially hated throughout the length
and breadth of Upper Canada; and which doubtless had something to do
with his removal to another sphere of action.
One day about the middle of May, when the enclosure had been erected
about six weeks, and when the season's regular flow of tourists had
fairly set in, the landlord of the Pavilion received a call from Captain
George Phillpotts, of the Royal Engineers, who then held command in the
District. The latter demanded why Forsyth had presumed to fence-in the
Government reserve. Forsyth replied, denying that the reserve belonged
to the Government, and asserting his own title thereto, whereupon he was
informed that unless the enclosure was removed without delay, he,
Captain Phillpotts, would himself undertake its removal. Forsyth
professed to feel strong in his rights, and threatened to prosecute the
Captain or any one else who might interfere with his property. Here the
interview ended. Several days afterwards--on the 18th--the landlord was
summoned to his door by a message that a gentleman there wished to see
him. The gentleman proved to be Captain Phillpotts, who was accompanied
by a sergeant and four other soldiers in fatigue jackets, without arms.
Major Richard Leonard, Sheriff of the Niagara District, and Augustus
Jones, who had made the original survey of the property forty-one years
before, were also in attendance. The Sheriff, who had merely accompanied
the party at the Captain's request, took no part in the subsequent
proceedings, but contented himself with quietly looking on. Mr. Jones
had been brought for a specific purpose, and, at the request of Captain
Phillpotts, he then and there made a hasty re-survey of the reserve, the
limits of which he indicated by pickets. Upon the completion of this
task, the Captain demanded that Forsyth should immediately remove the
enclosing fence, and upon his refusal to do so, the soldiers, under
orders from their Captain, deliberately cut and threw down the fence,
exposing the gardens, meadows and about sixty acres of growing crops to
waste. A blacksmith's shop which had been erected on the reserve was
demolished, and the building material thrown over the bank. The Captain
avowed that he was acting under express orders from the
Lieutenant-Governor, which proved to be the fact.
Having accomplished his purpose, Captain Phillpotts and his soldiers
departed, accompanied by the Sheriff and the surveyor. They were no
sooner out of the way than Forsyth and his servants set themselves to
work to repair damages, and before nightfall the enclosure was rebuilt;
the premises, with the exception of the blacksmith's shop, being
restored to the condition in which they had been before the assault upon
them. But intelligence of the restoration was speedily conveyed to Sir
Peregrine Maitland, who again despatched the same emissary, and the
drama of demolition was re-enacted. The landlord of the Pavilion then
gave up the contest, so far as any attempt at reconstruction was
concerned, and proceeded to obtain redress by due course of law.
Now, it may perhaps be admitted that Forsyth was rightly served, or at
any rate that he deserved little or no sympathy. His enclosure of the
Crown reserve had been without any strict colour of right, and had been
due to pure greed and selfishness. But his blacksmith's shop had been
constructed on the land as far back as 1821, when he had purchased the
adjoining lot from William Dickson, and no one had ever questioned his
right to maintain it there. He seems to have thought that he had as good
a claim to the property as anybody. He had been informed, contrary to
the fact, that the Government reserve extended only to the lower bank,
and did not cover the land at the top. He might easily have discovered
that his information was misleading, but he had not chosen to take so
much trouble, and deserved to suffer the legal consequences of his
neglect. He could undoubtedly have been dispossessed by means of an
action of ejectment, with the costs of which he would justly have been
saddled. But he had a right to expect that, after being allowed to
remain so many years in undisturbed possession, he should only be
dispossessed by civil process. It was not a case where an arbitrary
removal was justifiable, such as may lawfully take place when it becomes
necessary to abate a nuisance. But it was above all things intolerable
that the military should have been employed for such a purpose. Sir
Peregrine Maitland, in sending Captain Phillpotts on the expedition, had
acted, not in his capacity of Lieutenant-Governor, but in that of
Major-General Commanding the Forces in Upper Canada. This it was that
wrought up the public pulse to such a pitch of excitement. This it was
that created a dangerous antagonism between the people and the soldiery,
and led to frequent quarrels and bickerings between them. The Committee
subsequently appointed by the Assembly to investigate the subject echoed
the popular sentiment when they reported that "a person long in
possession of land, like the petitioner, ought to have been ejected by
the law of the land, which is ample, when impartially administered, for
securing the rights of property, but the interference of the military,
by such acts of violence, for maintaining supposed or contested rights,
is justly regarded with jealousy in all free countries, and ought to be
seriously regarded in a colony where the most unprecedented outrages
have been perpetrated without prosecution, and even followed by the
patronage of the local Government upon the wrong-doers."[91] The
presence of the civil power on the occasion, in the person of the
Sheriff, had been even an aggravation of the offence, for the Sheriff
had thus been made to lend his countenance to the proceeding. As for the
Lieutenant-Governor's action in the matter, he himself was solely to
blame, for his intentions were not made known to the Executive Council,
or, so far as appears, to any member of that body. It was simply and
solely a barefaced and most impudent abuse of authority, the
responsibility for which rests upon no shoulders but his own.
Forsyth had no success in his appeals to the law. He brought two actions
of trespass, one of which was against Sheriff Leonard and Captain
Phillpotts jointly, for removing the fence and blacksmith's shop; and
the other of which was against Captain Phillpotts alone for removing the
fence the second time. Sir Peregrine instructed Attorney-General
Robinson to defend both these suits, and to vindicate the Crown's title
to the reserved land.[92] To effect the latter object in the most formal
and decisive manner, the Attorney-General filed an information for
intrusion against Forsyth, upon which a verdict was rendered in favour
of the Crown. The plaintiff altogether failed in his action against
Phillpotts and the Sheriff, and the decision in that case rendered it
useless for him to proceed with the action against Phillpotts alone.[93]
[Sidenote: 1828.]
While those suits were in progress, Forsyth, finding that public
opinion, if not in his favour, was at least hostile to the
Lieutenant-Governor, sent in a petition to the Assembly, setting forth
the circumstances, and praying for redress. This was during the session
of 1828. The Assembly entertained the petition, and appointed a
Committee of Inquiry. The Committee proceeded to inquire accordingly.
While their investigations were in progress they resolved to examine two
of the Government officials, who, as there was reason to believe, could
throw light upon Sir Peregrine's reasons for such arbitrary conduct as
that of which he had been guilty. The officials whose evidence it was
thought desirable to obtain were Colonels Coffin and Givins, both of
whom were heads of departments. The former occupied the position of
Adjutant-General of Militia for Upper Canada; the latter was
Superintendent of Indian Affairs. Both of these gentlemen were summoned
to attend before the Committee at a specified time. In this there was
nothing strange or unusual. It was a matter of frequent occurrence for
officials of the Government, high and low, to be summoned before
Parliamentary committees while the Legislature was in session; and there
was no question as to the right of such committees to require such
attendance. In this instance, however, the persons summoned were not
permitted to obey the behests of the Committee, and in the attendant
circumstances there were pretty plain indications of crookedness and
collusion between the Crown officers and Sir Peregrine Maitland. Each of
the two officers concerned, immediately upon receiving his summons,
caused the fact to be communicated to the Lieutenant-Governor, and each
wrote a shuffling letter to the Chairman of the Committee. Later in the
day the Lieutenant-Governor positively declined to permit the attendance
of the persons summoned, assigning as a reason that he had not been made
acquainted with the facts as to which it was desired to interrogate
them. Now, when one considers all the facts and circumstances of the
case, one is driven to the conclusion that Colonels Coffin and Givins
were in possession of certain information which the Executive, or at any
rate the Lieutenant-Governor, had a strong interest in keeping secret.
Why else were they forbidden to attend? The reason assigned was
certainly not a sufficient one. In the first place it was not founded
upon fact. That the Committee had been appointed for the specific
purpose of investigating the circumstances connected with the Niagara
Falls outrage was matter of common notoriety. When the two Government
officers were summoned to give evidence before that Committee there
could be no doubt that the intention was to examine them touching their
knowledge of the matter in hand.[94] Some years before this time, when
the Compact were all-powerful in the Assembly, as well as in the Upper
House, a custom had been introduced of notifying the Lieutenant-Governor
whenever it was proposed to examine any of the Government officials as
witnesses before a Parliamentary committee. It had been customary to
specify, in the address of notification, the subject on which it was
intended to take evidence. This, however, had been a mere matter of
courtesy and conventionality, upon which nobody had any right to insist;
and the practice had not been uniform or consistent, various instances
having occurred where Crown officers had been summoned and examined as
witnesses without any such notification having been given. Upon such a
flimsy pretext, however, did Sir Peregrine Maitland base his refusal to
permit the two witnesses to attend for examination in the Forsyth case.
The Chairman of the Committee duly reported to the Assembly the
non-attendance of the witnesses, and that body determined that its
authority should not thus be defied and set at naught with impunity. The
chief offender, the Lieutenant-Governor--or the Commander of the Forces,
if he was to be considered as acting in that capacity--was of course
beyond reach, but proceedings were forthwith instituted against the
recalcitrant witnesses. Warrants were issued against them by the
Speaker, in order that they might be brought up before the House, in
custody of the Sergeant-at-Arms, to answer for their contempt. Acting
under legal advice, they declined to submit to such authority unless
compelled to do so by force; and they boldly threatened that in case of
force being resorted to they would prosecute the Speaker. It is to be
presumed that the warrants would in any case have been acted upon, but
this impudent threat left the Assembly no alternative. If Government
officers, paid out of the public purse, were to be allowed to defy that
branch of the Legislature which alone represented the popular voice--if
they were to be permitted to treat its mandates with contempt, and to
threaten its representative with ulterior consequences in the event of
those mandates being enforced--then, indeed, liberty and equal rights
were at a low ebb in Upper Canada. The warrants were promptly executed,
the house in which the two officials had ensconced themselves being
forcibly entered for the purpose. Being brought to the bar of the House,
and charged with their contempt, they sought to vindicate themselves by
pleading the action of the Lieutenant-Governor in refusing to sanction
their attendance. The House then adopted a resolution under which they
were handed over to the custody of the Sheriff, and committed to the
common jail of the Home District. They formally notified the
Lieutenant-Governor, through his private secretary, of the calamity
which had come upon them through obedience to his behests, and requested
that the advice and assistance of the Crown officers--that is to say, of
the Attorney-General and Solicitor-General--might be vouchsafed to them.
They however remained in confinement only three days, for the
Lieutenant-Governor, in accordance with an intimation previously given,
prorogued the Legislature on the 25th of March--they had been committed
on the 22nd--and the power of the Assembly to commit did not extend
beyond the time when it was actually in session.
Colonels Coffin and Givins carried out their threat, and sued the
Speaker for damages for false imprisonment. The right of the Assembly to
commit for contempt was however a matter too well established, and was
confirmed by the Court of King's Bench in another cause then pending. So
that the Adjutant-General of Militia and the Superintendent of Indian
Affairs, in addition to their respective bills of costs, had their three
days' imprisonment as a reward for their fealty to Sir Peregrine
Maitland, and for their disloyalty to the Canadian people.
Sir Peregrine appears to have felt a little dubious as to how his
proceedings would be regarded at the Home Office. It was quite certain
that the Colonial Secretary would hear of the affair, but that
dignitary's approval was open to question. It would at all events be
well that the official mind should receive its first impression on the
subject from Sir Peregrine himself, who accordingly lost no time in
sending over his own version of the transaction. His despatch, which
bears internal evidence of having been written or revised by
Attorney-General Robinson, is dated the 29th of March--the fourth day
after the prorogation. Under the pretext of asking for advice as to how
he should act in the future in case of any of the officials being
summoned before Parliamentary committees without any notification having
been made to himself, he recounts the story of the Niagara Falls
outrage. His narrative, it is almost needless to say, is from first to
last garbled and one-sided. Forsyth is referred to therein as "a person
notoriously of indifferent character;" and the Assembly and its
committees are maligned in language highly improper to be employed in a
confidential communication from the Lieutenant-Governor of a colony to
his superiors at home.[95] The Colonial Secretary, however, was shrewd
enough to penetrate the veil of misrepresentation in which the despatch
was enveloped, and to arrive at a pretty just appreciation of the merits
of the case. He officially expressed his opinion that there had been
adequate grounds for inquiry by the Assembly. "I cannot but consider,"
he wrote, "that Sir Peregrine Maitland would have exercised a sounder
discretion had he permitted the officers to appear before the Assembly;
and I regret that he did not accomplish the object he had in view in
preventing Forsyth's encroachments by means of the civil power, which is
said to have been at hand, rather than by calling in military aid." This
despatch, however, was written, not to Sir Peregrine Maitland himself,
but to his successor, Sir John Colborne. The Forsyth case, coming, as
it did, in the wake of other ill-advised proceedings on the part of Sir
Peregrine, determined the Home Government to withdraw him from Upper
Canada, where it was quite evident that his usefulness--if he had ever
had any--was gone. He was transferred to Nova Scotia, whither it is not
necessary that this narrative should follow him.
With respect to Forsyth, it may he added that, being unable to obtain
any recompense for the Phillpotts invasion, and being harassed by
protracted litigation, he sold his property at Niagara Falls at a price
considerably below its value, and removed from the spot. It cannot be
said that he deserved much sympathy, for he had brought his losses on
himself by his own selfishness. He took advantage of the situation to
pose in the character of a martyr to Executive tyranny, and he succeeded
in deceiving many of his contemporaries into the belief that he was a
much injured man. The historical interest, however, centres not in him,
but in the consequences arising out of the employment of soldiers to do
the Sheriff's work in a time of profound peace, and without any
initiatory civil process having been issued. The popular excitement
consequent on the outrage encouraged Forsyth to petition the Assembly.
The petition led to the appointment of the Committee of Inquiry, which
in its turn led to the summoning of witnesses and the conflict between
the Assembly and the Lieutenant-Governor. The conflict led to the
latter's removal, and, from that point of view, is not to be regarded in
the light of an unmixed evil.
FOOTNOTES:
[90] See the letter from Chief Justice Robinson to Lieutenant-Colonel
Rowan, Secretary, etc., etc., dated at York, 31st December, 1832, and
appended to the Report of the Committee of the House of Assembly on the
Petition of William Forsyth, dated April 1st, 1835. In one part of this
letter the Chief Justice says that the laying out of the lots took place
"some time between the years 1785 and 1790, and while General Haldimand
administered the Government of Canada." General Haldimand did not
administer the Government of Canada during any part of the time thus
specified--a fact of which Chief Justice Robinson ought to have been
aware. In a subsequent part of the same letter he properly gives the
date as 1786.
[91] See the report, p. iv., appended to the _Seventh Report of the
Grievance Committee_.
[92] The defence of these two suits would seem to have been the means of
considerably augmenting the Attorney-General's already ample income.
From certain accounts sent down to the Assembly it appears that a sum of
_L127 6s. 6-3/4d._ sterling were paid to him during the year 1834 for
"expenses incurred by him in defending two suits with costs in reference
to the military reserve near the Falls of Niagara."
[93] There was a very general belief throughout the Niagara District at
the time that Major Leonard, who was an obedient servant to the
Executive, had manipulated the lists from which the jurors in those
cases were selected. The truth or falsity of the belief cannot now be
pronounced upon, the circumstances upon which it was founded being
buried in oblivion.
[94] "He [Sir Peregrine Maitland] must have inferred that the Committee
proposed to examine these officers respecting the employment of a
military force for the ejecting of Forsyth from the land."--See Despatch
from the Colonial Secretary, Sir George Murray, to Major-General Sir
John Colborne, dated 20th October, 1828, appended to the Report on
Forsyth's petition.
[95] See the despatch, appended to the Report on the Forsyth Case, at
end of Grievance Committee's Report. The Colonial Secretary's despatch
quoted in the text will be found appended to the same Report.