This passage was fastened upon as libellous, and a criminal prosecution

was set on foot against the author. He was arrested, and on the 14th of

August, 1818, thrown into jail at Kingston, where he remained until the

day of his trial, which was the 20th. He conducted his own defence, and,

although the Attorney-General, John Beverley Robinson, pressed hard for

a conviction, he was triumphantly acquitted. A few days afterwards he

was again arrested and placed on trial at Brockville for another alleged

libel contained in the petition. He was once more successful in securing

his acquittal. These triumphs roused his egotism to a high pitch. He

became for a time a sort of popular idol, who had suffered grievously

for endeavouring to obtain justice for the people. Public meetings and

banquets were held in his honour, and he was in his element. His

complacency, however, was doomed to receive a severe check. The Compact,

with Dr. Strachan at their head, finding it impossible to convict him of

libel, resolved that he should literally be driven out of the country.

He was represented to the public as a man of desperate fortunes and

vicious character. Rumours were set afloat that he entertained projects

of rebellion, and that he had attended a treasonable meeting in England

prior to his arrival in Canada. As matter of fact, Mr. Gourlay, both

then and throughout the whole course of his life, was a loyal man, but

his effervescing radicalism seemed to lend some sort of colour to the

accusation. The word "convention," too, under which name the meeting at

York had been summoned, and which word was often in Mr. Gourlay's mouth,

had a republican sound about it which was not grateful to the ears of

the loyal Upper Canadians. The Assembly also modified its hitherto

kindly feelings towards him, and regarded the holding of "conventions"

as an unconstitutional infringement of its own prerogatives. In the

meantime Sir Peregrine Maitland had succeeded to the

Lieutenant-Governorship. It was a matter of course that he should have

no sympathy with a man of Mr. Gourlay's views, and the latter had

prejudiced the new Lieutenant-Governor against him by a foolish letter,

in which he had offered to wait upon the representative of royalty and

give him the benefit of his knowledge and experience of Canadian

affairs. When Parliament met on the 12th of October, the

Lieutenant-Governor's speech contained a sentence that was well

understood to be levelled directly at Gourlay. "In the course of your

investigations,"--so ran the sentence--"you will, I doubt not, feel a

just indignation at the attempts which have been made to excite

discontent, and to organize sedition. Should it appear to you that a

convention of delegates cannot exist without danger to the Constitution,

in framing a law of prevention your dispassionate wisdom will be careful

that it shall not unwarily trespass on the sacred right of the subject

to seek a redress of his grievances by petition." This

cunningly-constructed sentence, in which the hand of Dr. Strachan is

sufficiently apparent, was well calculated, not only by its

characterization of Mr. Gourlay's projects, but by its covert flattery

of the Assembly, to increase the hostility of the latter against the

former. And thus the injudicious champion of popular rights found

himself in conflict with the entire Legislature. The Assembly--the

special guardian of popular rights--in its reply to the speech of the

Lieutenant-Governor, even went so far as to use these words: "We lament

that the designs of one factious individual should have succeeded in

drawing into the support of his vile machinations so many honest men and

loyal subjects of His Majesty." Two or three weeks later, a Bill was

introduced and passed to prevent the holding of conventions. It was

introduced by Mr. Jonas Jones, the member for Leeds, a man whose public

career and conduct, as Mr. Lindsey truly remarks, present as few points

on which admiration can find a resting-place as any Canadian politician

of his time.[14] It was significant of the state of public opinion that

only one vote was recorded against this measure. It was equally

significant of the fluctuating nature of public opinion that when the

Act was repealed, two years later, there was only one vote recorded

against the repeal. In the latter instance the dissenting vote was given

by the Attorney-General, Mr. John Beverley (afterwards Chief Justice)

Robinson.

A good many people still championed Mr. Gourlay's cause, but they were

for the most part unconnected with politics, and unable to materially

assist him when he stood most in need of powerful aid. The time of his

chastening was near at hand. By a statute passed on the 9th of March,

1804, known as "the Alien Act," and intended to check the designs of

disloyal immigrants from Ireland and the United States, authority was

given to the Governor, Lieutenant-Governor, members of the Legislative

and Executive Councils, and to the Judges of the Court of Queen's Bench,

to issue a warrant for the arrest of "any person or persons not having

been an inhabitant or inhabitants of this Province for the space of six

months next preceding the date of such warrant,. . . or not having taken

the oath of allegiance,. . . who by words, actions, or other behaviour

or conduct, hath or have endeavoured, or hath or have given just cause

to suspect that he, she, or they, is or are about to endeavour to

alienate the minds of His Majesty's subjects of this Province from his

person or government, or in any wise with a seditious intent to disturb

the tranquillity thereof, to the end that such person or persons shall

forthwith be brought before the said person or persons so granting such

warrant;. . . and if such person or persons. . . shall not give. . .

full and complete satisfaction that his, her, or their words, actions,

conduct, or behaviour had no such tendency, or were not intended to

promote or encourage disaffection. . . it shall and may be lawful. . .

to deliver an order or orders, in writing, to such person or persons,. .

. requiring of him, her, or them, to depart this Province within a time

to be limited by such order or orders, or if it shall be deemed

expedient that he, she, or they, should be permitted to remain in this

Province, to require from him, her, or them, good and sufficient

security, to the satisfaction of the person or persons acting under the

authority hereby given, for his, her, or their good behaviour, during

his, her, or their continuance therein." Under this statute, Mr.

Gourlay, who was just about to establish his land agency, and was

negotiating for a suitable house at Queenston, in which to commence

business, was on the 21st of December, 1818, arrested by the Sheriff of

the Niagara District, and carried before the Hon. William Dickson and

the Hon. William Claus. These gentlemen were members of the Legislative

Council, and bitter enemies of the unhappy man who appeared before them,

though they had at one time professed much esteem for him. They adjudged

that he should depart from the Province on or before the first day of

January, 1819; that is to say, within ten days.

There can be but one opinion about this proceeding. It was not merely a

glaring instance of oppression, but was founded upon downright

rascality. In the first place, the Act of 1804 was an unconstitutional

measure, under which it is doubtful whether any one could have been

legally punished. But, even had it been valid, it was intended to apply

to aliens, and not to loyal subjects of Great Britain, such as Mr.

Gourlay undoubtedly was. He had never been asked to take the oath of

allegiance, and his persecutors well knew that his loyalty was at least

as sincere as their own, and far more unselfish. Moreover he had, as

both Dickson and Claus were well aware, been a resident of the Province

for nearly a year and a half, whereas the Act applied only to "any

person or persons not having been an inhabitant or inhabitants of this

Province for the space of six months." By what bribe or other means an

unprincipled man named Isaac Swayze, who was a member of the Legislative

Assembly, was induced to make oath that he verily believed that Robert

Gourlay had not been an inhabitant of the Province for six months, and

that he was an "evil-minded and seditious person," will probably never

be known. An information from some quarter it was necessary to have

before any decisive action could be taken, and it was furnished by this

man Swayze, who had been a spy and "horse-provider" during the

Revolutionary War, and who now proved his fitness for the position of a

legislator by deliberate perjury.

The allotted term of ten days expired, and the proscribed personage had

not obeyed the order enjoining him to quit the Province. "To have obeyed

this order," says Gourlay, "would have proved ruinous to the business

for which, at great expense, and with much trouble, I had qualified

myself; it would have been a tacit acknowledgment of guilt whereof I was

unconscious; it would have been a surrender of the noblest British

right; it would have been holding light my natural allegiance; it would

have been a declaration that the Bill of Rights was a Bill of Wrongs. I

resolved to endure any hardship rather than to submit voluntarily.

Although I had written home that I meant to leave Canada for England in

a few weeks, I now acquainted my family of the cruel delay, and stood my

ground." On the 4th of January, 1819, a warrant was issued by Dickson

and Claus, under which he was arrested and lodged in jail at Niagara. On

the 20th of the month he obtained a writ of Habeas Corpus, under which

he appeared before Chief Justice Powell, at York, on the 8th of

February. The Chief Justice, after hearing a short argument by an

attorney on Mr. Gourlay's behalf, declined to set him at liberty, and

indorsed on the writ a judgment to the effect that "the warrant of

commitment appearing to be regular, according to the provisions of the

Act, which does not authorize bail or mainprize, the said Robert Gourlay

is hereby remanded to the custody of the Sheriff of the District of

Niagara, and the keeper of the jail therein, conformable to the said

warrant of commitment." The poor man was accordingly remanded to jail,

where he languished for eight weary months. For some time his spirits

remained buoyant, and his pugnacity unconquered. He obtained written

opinions from various eminent counsel learned in the law. These counsel

were unanimous in pronouncing his imprisonment illegal. Sir Arthur

Pigott declared that Chief Justice Powell should have released him from

imprisonment under the writ of Habeas Corpus; and further expressed his

opinion that Gourlay had a good ground of action for false imprisonment

against Dickson and Claus. This opinion was forthwith acted upon, and

civil proceedings were instituted against both those persons. The

plaintiff's painful position, however, compelled him to fight his

enemies at a great disadvantage. An order was obtained by the

defendants, calling upon him to furnish security for costs; which, being

in confinement, he was unable to do, and the actions lapsed.

And here it becomes necessary to revert for a moment to the convention

of delegates which had been held at York during the preceding year.

Among the matters which the convention had had in view was the calling

of the Royal attention to a promise which had been held out to the

militia during the war of 1812-'15, that grants of land should be made

to them in recompense for their services. It had been the policy of the

United States to hold out offers of land to their troops who invaded

Canada--offers without which they could not have raised an army for that

purpose; and these offers had been punctually and liberally fulfilled

immediately after the restoration of peace. On the British side, three

years had passed away without attention to a promise which the Canadian

militia kept in mind, not only as it concerned their interest, but their

honour. While the convention entrusted the consideration of inquiry to

the Lieutenant-Governor and Assembly, they ordered an address to be

sent home to His Royal Highness the Prince Regent, as a matter of

courtesy and respect, having annexed to it the rough sketch of an

address originally drafted by Mr. Gourlay, as already mentioned, for the

purpose of being borne home by a commission. In that sketch the neglect

of giving land to the militia was, among other matters, pointed out. The

sketch having been printed in America, found its way into British

newspapers. In June, 1819, when Mr. Gourlay had lain more than five

months in jail, the Lieutenant-Governor of Upper Canada summoned the

Assembly to meet a second time, and, in his speech, notified them that

he had received an order from the Prince Regent to grant land to the

militia, but that he himself should think it proper to withhold such

grant from those persons who had been members of the convention. The

injustice of this measure was instantly in the mouth of everyone.

Several weeks passed away, while it was anxiously hoped that the

Assembly would mark its disapprobation of the opening speech, but

approval was at last carried by the Speaker's vote, and the Legislative

Council concurred in the most direct and submissive language. This was

too much for Mr. Gourlay to bear with composure. He seized his pen, and

liberated his mind by writing a virulent commentary upon the situation,

which he procured to be published in the next issue of the Niagara

_Spectator_. The communication was discussed by the House of Assembly,

and pronounced to be a libel, and the Lieutenant-Governor was solicited

to direct the Attorney-General to prosecute the editor. Sir Peregrine

Maitland was not the man to turn a deaf ear to such a solicitation from

such a quarter. The unfortunate editor, who had been away from home when

Mr. Gourlay's diatribe was published, and who was wholly ignorant of its

publication, was seized in his bed during the middle of the night,

hurried to Niagara jail, and thence, next morning, to that of York,

where he was detained many days out of the reach of friends to bail him.

Mr. Gourlay fared worse still. His treatment was marked by a malignant

cruelty to which no pen but his own can do complete justice. "After two

months' close confinement," he tells us, "in one of the cells of the

jail my health had begun to suffer, and, on complaint of this, the

liberty of walking through the passages and sitting at the door was

granted. This liberty prevented my getting worse the four succeeding

months, although I never enjoyed a day's health, but by the power of

medicine. At the end of this period I was again locked up in the cell,

cut off from all conversation with my friends, but through a hole in the

door, while the jailer or under-sheriff watched what was said, and for

some time both my attorney and magistrates of my acquaintance were

denied admission to me. The quarter sessions were held soon after this

severe and unconstitutional treatment commenced, and on these occasions

it was the custom and duty of the grand jury to perambulate the jail,

and see that all was right with the prisoners. I prepared a memorial for

their consideration, but on this occasion was not visited. I complained

to a magistrate through the door, who promised to mention my case to the

chairman of the sessions, but the chairman happened to be brother of one

of those who had signed my commitment, and the court broke up without my

obtaining the smallest relief. Exasperation of mind, now joined to the

heat of the weather, which was excessive, rapidly wasted my health and

impaired my faculties. I felt my memory sensibly affected, and could not

connect my ideas through any length of reasoning, but by writing, which

many days I was wholly unfitted for by the violence of continual

headache. Immediately before the sitting of the assizes the weather

became cool, so that I was able to apply constantly for three days, and

finish a written defence on every point likely to be questioned on the

score of seditious libel. I also prepared a formal protest against any

verdict which might pass against me, as subject to the statute under

colour of which I was confined. It was again reported that I should be

tried only as to the fact of refusing to leave the Province. A state of

nervous irritability, of which I was not then sufficiently aware,

deprived my mind of the power of reflection on the subject; I was seized

with a fit of convulsive laughter, resolved not to defend such a suit,

and was, perhaps, rejoiced that I might be even thus set at liberty from

my horrible situation. On being called up for trial, the action of the

fresh air, after six weeks' close confinement, produced the effect of

intoxication. I had no control over my conduct, no sense of consequence,

nor little other feeling but of ridicule and disgust for the court which

countenanced such a trial. At one moment I had a desire to protest

against the whole proceeding, but, forgetting that I had a written

protest in my pocket, I struggled in vain to call to mind the word

_protest_, and in another moment the whole train of ideas which led to

the wish had vanished from my mind. When the verdict was returned, that

I was guilty of having refused to leave the Province, I had forgot for

what I was tried, and affronted a juryman by asking if it was for

sedition."

Strange to say, this sad story is not exaggerated. The poor man's mind,

never very firmly set in its place, had been thrown completely off its

balance, and throughout the remaining forty-four years of his life he

was subject to frequent intervals of mental aberration.

To return to the narrative: he was found guilty under the Act of 1804,

and ordered to quit the Province within twenty-four hours, under pain of

death in case of his return. He crossed over into the United States, and

published, at Boston, a pamphlet under the title of "The Banished

Briton," giving an account of his wrongs. From Boston he made his way to

England. His family and affairs there were in a state of unspeakable

disorder, which had been grievously aggravated by his long imprisonment.

At Michaelmas, 1817, the Duke of Somerset had made a distraint for rent.

Poor Mrs. Gourlay had contrived to borrow money to pay the rent, but she

had been panic-struck by calamity, and, by her brother's advice, had

abandoned Deptford Farm. An assignment of the tenancy had been forwarded

by her across the Atlantic to her husband, which he had executed and

returned. His successor had contrived to get possession of the lease and

stock for next to nothing, and Mr. Gourlay's pecuniary condition had

thus been rendered more desperate than ever. When he landed in England

in December, 1819, he found that his father had just breathed his last,

and that his mother was in much affliction at her home in Fifeshire. He

hastened thither, and spent a month in adjusting her affairs, after

which he waited upon a bookseller in Edinburgh with a formidable

collection of manuscript for publication. We have seen that during his

stay in Canada he had become the confidential friend of Mr. Barnabas

Bidwell. That gentleman had, just before the breaking out of the war of

1812-'15, written a series of historical and topographical sketches of

Upper Canada, embodying a large amount of useful information. They were

not published, but the author carefully preserved the manuscript, and

after the close of the war revised it throughout, and inserted a

considerable amount of additional matter. Soon after Mr. Gourlay's

arrival in Canada, Mr. Bidwell presented the MS. to him, partly for the

latter's personal information, and partly with a view to ultimate

publication. We have also seen that Mr. Gourlay received numerous

replies to his series of questions addressed to persons in the various

townships of the Province. During his confinement in jail at Niagara, he

had beguiled his saner moments by carefully going through these various

MSS. After his return to Great Britain he re-read them all with great

care, and wrote a great mass of rambling matter on his own account,

giving a description of his trials and persecutions, and embodying

various official documents and Acts of Parliament. The entire collection

amounted to a formidable mass of MSS., and he was desirous of laying the

whole before the public. Hence his interview with the Edinburgh

bookseller as above recorded. The bookseller declined to undertake the

publication, and Mr. Gourlay carried his MSS. to London, where they were

published in three large octavo volumes in 1822. The second and third

volumes contain what the author calls the "Statistical Account of Upper

Canada;" and the first contains a "General Introduction." The value of

the work as a whole is beyond question, but it is strung together with

such loose, rambling incoherence, that only a diligent student,

accustomed to analyze evidence, can use it with advantage, or even with

perfect safety. His wife had meanwhile been removed from a life of

turmoil and anxiety, and his children had been placed under the care of

some of their relatives in Scotland. Mr. Gourlay himself engaged in

further litigation with his old enemy, the Duke of Somerset, about the

tenure of Deptford Farm. Into the history of this litigation there is no

time to enter. Suffice it to say that the Duke's purse was too long for

Mr. Gourlay, whose household furniture and effects were sold to meet law

expenses. He avenged himself by attacking the Lord Chancellor (Eldon),

and various other persons high in authority, through the public press.

Quiescence seemed to be an utter impossibility for him. He was also

involved in litigation arising out of the winding-up of his father's

estate. Erelong he was left absolutely penniless, and became for a time

nearly or quite insane. On the 9th of September, 1822, he threw himself

upon the parish of Wily, in Wiltshire, where he had formerly resided.

Having proved his right of settlement, he was set to work by the

overseer of the poor of that parish to break flints on the public

highway. This was not such a hardship as it appears, for it was

deliberately brought about by Mr. Gourlay himself, with a view to the

reëstablishment of his mental and physical health, which he believed

would be most effectually restored by hard bodily labour. This state of

things went on for some weeks, after which he seems to have wandered

about from one part of the kingdom to another, in an aimless sort of

way, and generally with no particular object in view. He was at times by

no means insensible to his mental condition, and there is something

ludicrous, as well as pathetic, in some of his observations about

himself at this period. His health, however, was much improved, and his

many afflictions seem to have sat lightly upon him. He compared his

condition with that of the Marquis of Londonderry, who, while suffering

from mental derangement, had committed suicide. "A year before Lord

Castlereagh left us," says Mr. Gourlay, in a paper addressed to the Lord

Chancellor, "I heard him in the House of Commons ridicule the idea of

going to dig; but had he then _'gone a digging'_ he might still have

been prating to Parliament. I have had greater provocation and

perplexity than the departed minister, but I have resorted to proper

remedies; and among these is that of _speaking out_. I have not only

laboured and lived abstemiously, travelled and changed the scene, but I

have talked and written, to give relief to my mind and play to my

imagination." He at this time had a mania for presenting petitions to

the House of Commons on all sorts of subjects, but chiefly relating to

his personal affairs. This line of procedure brought him into collision

with Mr. Henry Brougham, the member for Westmoreland--afterwards Lord

Brougham and Vaux. Mr. Brougham seems to have presented one or two

petitions for him as a mere matter of form, but finally became weary of

his continual importunity, and left his letters unanswered. With an

irritation of temper bordering on insanity, Mr. Gourlay determined to

take a decisive step which should call the attention of the whole nation

to his calamities. On the afternoon of the 11th of June, 1824, as Mr.

Brougham was passing through the lobby of the House of Commons, to

attend his duty in Parliament, a person who walked behind him, and held

a small whip in his hand, which he flourished, was heard by some of the

bystanders to utter, in a hurried and nearly inarticulate manner, the

phrase, "You have betrayed me, sir; I'll make you attend to your duty."

Mr. Brougham, on encountering this interruption, turned round and said,

"Who are you, sir?" "You know well," replied the assailant, who without

further ceremony laid his whip smartly across the shoulders of the

august member for Westmoreland. The latter made his escape through the

door leading into the House of Commons. The bustle excited on the

occasion naturally attracted the attention of the constables, and Mr.

Brougham's assailant--who of course turned out to be Mr. Gourlay--was

taken into custody for a breach of privilege, deprived of his whip, and

handed over to the Sergeant-at-Arms. The _Courier_ of the next morning

(June 12th) contained the following account of the poor man's aspect and

conduct after his arrest: "From the appearance of the individual

yesterday, coupled with the eccentricity of his recent conduct, an

inference would arise more of a nature to excite a feeling of compassion

for this person, who once moved in a different situation of life, than

to point him out as a fit person to be held sternly responsible for his

actions. His appearance is decayed and debilitated; and, when removed

into one of the committee-rooms of the House of Commons, in the custody

of the constable who apprehended him, he let fall his head upon his

hand, as a person labouring under the relapse incidental to violent

excitement. He complained of some neglect of Mr. Brougham's respecting

the presentation of a petition from Canada, which, we understand, has no

foundation, and the course taken by Mr. Canning in postponing the

consideration of the breach of privilege supports the inference of the

irresponsibility of the individual, for a reason apparent from the very

foolish nature of the act itself. On being, in the course of the

evening, told that, if he would express contrition for his outrage, Mr.

Brougham would instantly move for his discharge, he refused to make any

apology to Mr. Brougham, but said he had no objection to petition the

House. He added, that he was determined to have a fight with Mr.

Brougham, because he had shamefully deserted his cause, and taken up

that of a dead missionary. It is hardly necessary to add that Mr.

Brougham is totally unconscious of the alleged desertion, and that

Gourlay labours under a complete and melancholy delusion."

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