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."