Part 2 (1/2)

[17] _General Introduction_, pp. ccviii., ccix., and note.

[18] The sheriff was Thomas Merritt, father of the gentleman who afterwards became the Hon. William Hamilton Merritt, to whose enterprise, more than to that of any other man, we owe the Welland Ca.n.a.l. It is right to add that most of the subordinate duties of the office of sheriff were discharged by an underling, and that Thomas Merritt may have been personally free from blame in respect of Mr.

Gourlay. a.s.suming him to have been blamable, his son, the Hon. W. H.

Merritt, in after days, did his utmost to atone for it by espousing Mr.

Gourlay's cause in the Canadian a.s.sembly, as will be seen by reference to the Parliamentary debates of 1856, 1857 and 1858.

[19] _Statistical Account_, Vol. II., pp. 400, 401.

[20] Ib., p. 401.

[21] Mr. Gourlay was in error as to the date of the Duke's death. He represents him as ”writhing in agony at the self same hour,” and as dying on the same day when he, Mr. Gourlay, crossed over into the United States.--_Statistical Account_, vol. 2, p. 401. He was astray by exactly a week. By reference to the precept of the court, I find that Mr.

Gourlay's trial took place on the day specified in the text--Friday, the 20th of August. He left the Province on the following day--Sat.u.r.day, the 21st. The Duke's death took place on Sat.u.r.day, the 28th.

It may perhaps be as well for me to refer here to a story which seems to have obtained some currency, to the effect that the Duke of Richmond's death was due, not to hydrophobia, but to delirium tremens. There is not the shadow of truth in the story. The evidence as to the Duke's having been bitten at Sorel by a tame fox; as to his showing the healed wound on his thumb several weeks afterwards; as to his dread of water during the day before his death, and as to all the circ.u.mstances attending that tragical event, is as clear as evidence can very well be. Moreover, his habits were by no means such as to lead to _mania a potu_. He was a _bon vivant_, but, so far as I have been able to ascertain, he did not drink to excess, and was always master of such brains as he possessed. His end was one which his family might honestly mourn, and there was little in his life, nothing in his death, of which they had any cause to feel ashamed.

[22] ”Major-General” D. McLeod, in his ”History of the Canadian Insurrection,” p. 75, incorrectly states that Ferguson ”died in jail from extremely cruel usage.”

[23] _Canadian Portrait Gallery_, Vol. III., pp. 240-256.

CHAPTER II.

A BILL OF PARTICULARS.

The course of bitter persecution sustained by Mr. Gourlay was really the first remote germ of the Upper Canadian Rebellion. In making this statement I would not be understood as a.s.serting 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 Willc.o.c.ks 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 a.s.sembly. 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 const.i.tuted 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 const.i.tution 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 a.s.sembly, the members whereof were periodically elected by the people--or rather by such of the people as possessed a sufficient property qualification to ent.i.tle them to exercise the franchise; and this property qualification was placed so low as almost to const.i.tute universal suffrage.[26] The a.s.sembly corresponded to the British House of Commons; and these two bodies--Council and a.s.sembly--with the Lieutenant-Governor, const.i.tuted 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 const.i.tutional sense responsible to either branch of the Legislature, or to both branches combined, or to any other cis-Atlantic authority whatsoever.

With such subst.i.tutes for King, Lords and Commons, Upper Canada might therefore be said to possess a pretty close copy of the British const.i.tution. 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 const.i.tution 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 a.s.sembly should be consulted as to every minute detail of the administration. Such a system would be c.u.mbrous, 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 const.i.tutional 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 Const.i.tutional 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 const.i.tutionally 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 a.s.sistance 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 const.i.tuted,” 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 fas.h.i.+on 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 const.i.tution. Such writers cannot have read the debates which took place in the House of Commons while the Const.i.tutional 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 a.s.sumed, 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 a.s.sembly, 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 const.i.tutional 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 inst.i.tutions without Executive responsibility? Power was given to the popular branch of the Legislature to pa.s.s measures for the public good. But, no matter how overwhelming might be the majorities whereby such measures were pa.s.sed, 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 a.s.semblies 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 a.s.sembly 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 a.s.sumed 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 members.h.i.+p 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 a.s.sembly 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 pa.s.sing such measures as it saw fit, but if the measures so pa.s.sed 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 a.s.sembly, 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 a.s.suming a very serious const.i.tutional aspect. It was not till the third decade of the century that the conflict a.s.sumed such a character as to threaten the foundations of the const.i.tution itself; and it was not till the fourth decade that any actual attempt was made to subvert those foundations.