A BILL OF PARTICULARS.

Top

T he course of bitter persecution sustained by Mr. Gourlay was really the first remote germ of the Upper Canadian Rebellion. In making this statement I would not be understood as asserting that Gourlay was the first person to set himself up in opposition to authority in the Province, or even that he was the first victim of Executive tyranny. There had been more or less of dissatisfaction at the selfish and one-sided policy of the Administration ever since shortly after the departure of Lieutenant-Governor Simcoe in 1796. Between that date and Mr. Gourlay's arrival in the Province several personages of some local note had paid heavy penalties for daring to have opinions of their own. Mr. Wyatt, the Surveyor-General, had been dismissed from office because he had presumed to point out certain official irregularities, and because he would not betray the trust reposed in him. Joseph Willcocks had been goaded into treason by a long course of persecution. Judge Thorpe had been driven from the country quite as effectually as Mr. Gourlay, for no other reason than that he had persisted in holding up official corruption to the public gaze. But none of these manifestations of "the oppressor's wrath, the proud man's contumely," had taken so deep a hold upon the public mind as did the case of Mr. Gourlay. The injuries inflicted upon him had been so cruel, the perversion of justice so vile, that the public conscience received a shock from which it did not recover during the existing generation. For the first time in Upper Canada's history signs of an organized Opposition began to appear upon the floor of the Assembly. Thenceforward the antagonism between the two parties grew in intensity from year to year. In process of time the Opposition frequently became the controlling power in the House. At a later stage of its development it divided into two parts. One of these constituted the moderate Reform Party of the Province. The other was made up of the advanced Radical element, whence emanated the Rebellion which forms the especial subject of the present work. All of which will hereafter be narrated with greater amplitude of detail.

It has been intimated that traces of dissatisfaction began to be apparent soon after Governor Simcoe's time. Upon his demission of authority the direction of affairs devolved upon the Honourable Peter Russell, as senior member of the Executive Council; and that gentleman had not been long in authority before murmurs began to be heard about the partial and defective administration of the important department of Crown Lands. There were comparatively few men in the country possessed of sufficient education and business experience to admit of their being entrusted with the charge of public affairs; and where all the offices were necessarily in the hands of a small number of persons, it was a foregone conclusion that irregularities should creep in, and that cliquishness and favouritism should prevail to a greater or less extent. When Lieutenant-Governor Hunter arrived, in 1799, he found that certain objectionable practices had become common, and that the foundation had been laid of serious public evils. Greed and favouritism had obtained a strong foothold, and scarcely any branch of the public service was efficiently managed. The sin of covetousness was not confined to subordinate officials, but included among its votaries some of the highest dignitaries of the Province. It would seem that President Russell himself had an itching palm, and that his individual interests were carefully watched over during his temporary administration of affairs. Everybody has heard how he made grants of public lands from himself to himself,[24] thereby violating one of the most cherished maxims of English jurisprudence. Lieutenant-Governor Hunter, in a letter written to a friend in England soon after his arrival at York, refers to P. R.—by whom Mr. Russell is clearly indicated—as "an avaricious one." In a subsequent part of the same epistle he adds: "So far as depended upon him [Mr. Russell] he would grant land to the de'il and all his family as good Loyalists, if they would only pay the fees." During Governor Hunter's own term of office, though there is no evidence of corruption or double-dealing on his own part, abuses continued to exist, and dishonesty too often stared honesty out of countenance. During the rÉgime of his successor, Commodore Grant, these abuses grew steadily, both in number and in bulk; and during Francis Gore's long though interrupted administration, they reached a height which called aloud for redress.

And here it is desirable to enquire into the specific nature of the manifold evils which enriched a few at the expense of the many; which endowed a venal and corrupt clique with a practical monopoly of political and social power; which sowed the deadly seed of factious strife, and stemmed the tide of Upper Canadian prosperity.

Theoretically speaking, the constitution granted to Upper Canada by the Act of 1791 was not unfairly represented by Lieutenant-Governor Simcoe as being "the very image and transcript of that of Great Britain."[25] We had a Legislative Council, the members whereof were appointed by the Crown for life. This body bore some resemblance to the British House of Lords. Next, we had a Legislative Assembly, the members whereof were periodically elected by the people—or rather by such of the people as possessed a sufficient property qualification to entitle them to exercise the franchise; and this property qualification was placed so low as almost to constitute universal suffrage.[26] The Assembly corresponded to the British House of Commons; and these two bodies—Council and Assembly—with the Lieutenant-Governor, constituted the Provincial Parliament. The last-named functionary of course corresponded to the Sovereign of Great Britain. He was appointed by the Crown, to whom he was solely responsible. He was in no constitutional sense responsible to either branch of the Legislature, or to both branches combined, or to any other cis-Atlantic authority whatsoever.

With such substitutes for King, Lords and Commons, Upper Canada might therefore be said to possess a pretty close copy of the British constitution. But when carried into practice the resemblance failed in a matter of the very highest import. The absence of ministerial responsibility was an all-comprehending divergence. When a British ministry fails to command the confidence of the electorate, as represented by the House of Commons, resignation must follow. In other words, the Government of the day derives its power from the people, to whom it is responsible for the manner in which it discharges the trust reposed in it; and the moment it fails to command public confidence it must give way to those who possess such confidence. The test of confidence is the vote in the House of Commons. This has been a recognized principle of English Parliamentary Government for nearly two hundred years; in fact, ever since the settlement of the constitution after the Revolution of 1688. With us in Upper Canada there was none of this ministerial responsibility. We had a ministry, but not a responsible ministry. It was manifestly impossible that each member of the Legislative Council and Assembly should be consulted as to every minute detail of the administration. Such a system would be cumbrous, and altogether impracticable. The actual task of carrying on the Government was therefore, as in England, entrusted to a small body of men who, from the nature of their functions, were known as the Executive Council. The members of this body were appointed by the Crown—that is to say, by the Lieutenant-Governor—at will. It was not necessary that they should have seats in either branch of the Legislature, to neither of which were they in any sense responsible. They were not required to possess any property or other qualification. In a word, the Crown's representative was at liberty to select them without any restriction, and no one in the Province would have had any constitutional right to call him to account if he had seen fit to enrol his own valet as an Executive Councillor. As matter of fact they were commonly selected from the judiciary and other salaried officials, and from the members of the Legislative Council. Their number was indeterminate, but was seldom less than four or more than six, in addition to the Lieutenant-Governor himself. Their functions consisted of giving advice to the Lieutenant-Governor on all matters of governmental policy, whenever he might deem it expedient to consult them. With respect to mere matters of detail, such as appointments to office, he was not supposed to be under the necessity of advising with them, nor, according to an opinion long and ostentatiously proclaimed, was he in these early days under the smallest obligation to follow their advice after it had been given. This, however, was merely the prescriptive view, and it derived no sanction from the Constitutional Act itself, which incidentally refers to the Executive Council as being appointed "within such Province, for the affairs thereof." On the other hand, the Executive Councillors themselves were not legally or constitutionally responsible to the Upper Canadian people, either individually or collectively, for any line of policy they might inculcate, or for any advice they might give. There were no means whereby they could be called to account by the people, even should they corruptly and openly abuse the trust reposed in them.

It is not difficult to foresee the result of so anomalous a state of things, though in this Province, owing to sparsity of population and other local causes, the result did not immediately become apparent. Simcoe was a strong-minded, as well as a conscientious man. He had a policy of his own for the government of the country, both at large and in detail, and during his rÉgime he carried out that policy as to him seemed best. He from time to time went through the form of consulting with his Executive Council, but, so far from receiving any impulse from them, he invariably carried all before him at the Council Board, and was the be-all and end-all of the Administration. He was, in short, a beneficent despot, of high and disinterested views, who accomplished much good for Upper Canada, and would doubtless have accomplished more but for his too early removal. The moment his all-pervading influence was gone, however, the mischief, as has already been seen, began to work. President Russell granted public lands to Peter Russell, and rapidly laid up a store of wealth. Where the head of the public service was thus disposed to help himself, we may be sure that subordinate officials were not slow to follow his example. Subsequent Lieutenant-Governors were for the most part military men, with little knowledge of the country's needs, and with a disposition to make their voluntary exile as easy and agreeable—and withal as profitable—as might be.[27] They naturally turned for counsel and assistance to their Executive Councillors, who thus became the dispensers of patronage and the supreme power in the State. The Crown's representative was a mere tool in their hands. Their domination was complete. "A body of holders of office thus constituted," says Lord Durham,[28] "without reference to the people or their representatives, must in fact, from the very nature of colonial government, acquire the entire direction of the affairs of the Province. A Governor, arriving in a colony in which he almost invariably has had no previous acquaintance with the state of parties or the character of individuals, is compelled to throw himself almost entirely upon those whom he finds placed in the position of his official advisers. His first acts must necessarily be performed, and his first appointments made, at their suggestion. And as these first acts and appointments give a character to his policy, he is generally brought thereby into immediate collision with the other parties in the country, and thrown into more complete dependence upon the official party and its friends."

It has been the fashion with most writers on our early history to represent the Executive Council as an arbitrary creation of the early Lieutenant-Governors: as an arrangement sanctioned by the Imperial authorities, but not authorized by the Provincial constitution. Such writers cannot have read the debates which took place in the House of Commons while the Constitutional Act of 1791 was under discussion there. Nay, they cannot have read the Act itself with much care. Nothing is more certain than that the framers of that statute contemplated the creation of an Executive Council. By reference to the seventh, thirty-fourth and thirty-eighth clauses it will be seen that the Executive Council is definitely mentioned by name, and that the appointment of such a body is assumed, and treated as a matter of course. But that the Council should occupy the same relative position as in Great Britain, and that it should be amenable to public opinion as expressed by the vote of the House of Assembly, does not appear to have been clearly understood. Indeed, with the exception of a few master minds, such as Pitt, Fox, and Burke, but little interest seems to have been taken by British legislators in this important colonial experiment. Parliamentary Government, though it had been long established in England, had not then been reduced to a science. Even such clear-sighted statesmen as Pitt and Fox were blind to facts which at the present day force themselves upon the attention of every student of constitutional history. What wonder, then, that there should have been defects in the measure of 1791? What wonder that even eminent statesmen should have attempted to square the circle in politics by introducing such an incongruity as representative institutions without Executive responsibility? Power was given to the popular branch of the Legislature to pass measures for the public good. But, no matter how overwhelming might be the majorities whereby such measures were passed, there was no obligation on the other branches of the Legislature to accept or act upon them. In the words of one of our own writers: "the Legislative Councils, nominated by the Crown, held the Legislative Assemblies by the throat, kept them prostrate, and paralyzed them."[29] As for the members of the Executive Council, they were to all intents and purposes independent of public opinion, and could override a unanimous vote of the Assembly without incurring any responsibility whatever. By reference to the correspondence between successive colonial Governors and the Home Office, it appears to have been tacitly recognized by the magnates on both sides of the Atlantic that it was unnecessary for a colonial Executive to defer to a Parliamentary majority. The right of appointment to office was considered to be the exclusive prerogative of the representative of the Sovereign, and it was regarded as a badge of colonial dependence that the people should have no voice in such matters.

It seems to have been assumed that certain Imperial interests were involved in this great question, and that to give way to the popular demand would be to render the colonies free from Imperial control. What those particular interests were which required to be protected by so jealous and anomalous a doctrine does not appear to be anywhere specified with precision. But nothing is more certain than that confusion and chaos must be the inevitable outcome of any attempt to reduce to practice such opposite principles as are involved in Representative Government and Executive irresponsibility. Such an attempt in England would very soon produce revolution. Such an attempt in France did actually produce revolution in 1830, when Charles the Tenth was deposed for his persistent endeavours to maintain an unpopular ministry in power. No country in the world would long continue to tolerate a Parliamentary system which was free and representative in theory, but tyrannous and despotic in practice. Upper Canada was indeed long-suffering, but a time arrived when it became evident that there was a limit to her powers of endurance.

As the years rolled by, and the country steadily advanced in wealth and population, abuses grew apace.[30] The Executive became rapacious and tyrannical. Commanding, as they did, the entire administrative and official influence of the Province, they ordered all things according to their own pleasure. They could count upon the support of every member of the Legislative Council. Indeed, through their pliant tool, the Lieutenant-Governor for the time being, they controlled the membership of the latter body, and took care that no man was appointed a Legislative Councillor unless he was either one of themselves or wholly subject to their influence. The Assembly soon found that it was deliberately and systematically deprived of the privileges which of right belonged to it, and that it was little better than a nullity. It might meet and go through the form of passing such measures as it saw fit, but if the measures so passed were not acceptable to the Legislative and Executive Councils they were contumeliously vetoed when they reached the Upper House. This brought the two deliberative branches of the Legislature into direct and perpetual conflict. The Assembly, however, in early years, was always largely made up of such men as Isaac Swayze—subservient creatures of the Administration, who opposed their influence to that of the tribunes of the people, and prevented any collision between the two Houses from assuming a very serious constitutional aspect. It was not till the third decade of the century that the conflict assumed such a character as to threaten the foundations of the constitution itself; and it was not till the fourth decade that any actual attempt was made to subvert those foundations.

The Province was about fifteen years old before the inhabitants of Upper Canada generally began to realize what an intolerable burden they had to bear in this irresponsible Executive. Before that time some of the better educated and more intelligent among them recognized its existence as an evil with which they or their descendants would at some future time be called upon to deal. But such persons were comparatively few in number, and as the burden did not lie with special heaviness upon their own backs, they did not feel called upon to involve themselves in what might prove a ruinous quarrel with persons who would not tamely submit to interference. As for the inhabitants generally, they were too busily occupied in clearing their lands, in hewing out homes for themselves and their families in the vast wilderness, and in reducing the soil to a state fit for cultivation, to give themselves much concern about public affairs. There was no newspaper press to stimulate them to enquiry. The only sheet published in the Province which by any license of language could be called a regular newspaper was The Upper Canada Gazette, which was the official mouthpiece of the Administration. The Canada Constellation, which was a quaint long folio, published at the old capital, Niagara, had but a brief existence, and expired during the very early years of the century. The Upper Canada Guardian, to be hereafter referred to, did not come into being till 1807. Editorial articles, except of the briefest and crudest sort, were a still later development. The bucolic mind had no intellectual stimulant whatever except such as was to be obtained from contact with other bucolic minds through the medium of conversation. It was no wonder, then, that for the first fifteen years after the creation of Upper Canada, the Provincial Government should have been permitted to do very much as it chose, without being subjected to any formidable criticism on the part of the community.

The Legislative Council, as has been said, was composed of members nominated by the Sovereign's representative. By the sixth section of the Constitutional Act provision had been made for the creation of a hereditary nobility, with the hereditary right of being summoned to the Legislative Council. Happily this authority was not exercised; otherwise, as Gourlay has remarked, "we should have seen, perhaps, the Duke of Ontario leading in a cart of hay, my Lord Erie pitching, and Sir Peter Superior making the rick; or perhaps his Grace might now have been figuring as a pettifogging lawyer, his Lordship as a pedlar, and Sir Knight, as a poor parson, starving on five thousand acres of Clergy Reserves."[31] We were spared the spectacle of such absurdities, and life members of the Legislative Council were the nearest approach to a nobility vouchsafed to us. Some of the first appointees were men of intelligence and probity, but few of those subsequently created could with any show of truthfulness be so characterized. They were for the most part dependants of the Government, with no fitness, educational or otherwise, for the discharge of grave legislative functions, and with no motive but to do the bidding of those who had clothed them with the dignity of office. All things considered, this condition of things was to be looked for; but the inevitable result followed. The few upright members either died off in the course of time, and were succeeded by sycophantic placemen, or, finding themselves outnumbered, ceased to attend the sittings of the branch of the Legislature to which they belonged. In one way and another, those who really wished to preserve the public interests were weeded out, and nothing was left but a rump devoted to the Executive will. Instead of answering the purpose for which it was originally intended, the Legislative Council became a mere instrument in the hands of the oligarchy for stemming back the tide of public opinion. Instead of forming a seasonable and wholesome check upon extravagance and inconsiderate legislation in the Lower House, it contributed to the impoverishment of the Provincial revenue by assisting to keep the control of public affairs in the hands of selfish and unprincipled men. Instead of preserving the "happy balance of our glorious Constitution"—a phrase constantly placed in the mouths of Lieutenant-Governors, and embodied in their addresses to our Canadian simulacrum of the House of Lords—it tended to keep the balance all on one side, and that side was the one most prejudicial to the public good. It became a mere stop-gap interposed by the Government between itself and the Assembly. The Assembly passed measure after measure with careful deliberation, only to find that their time had been thrown away, for upon reaching the Upper House these measures were ignominously thrust aside. One who had himself been a member of the Assembly, and who had had personal experience of the evils whereof he wrote, has left the following description of the manner in which Bills from the Lower Chamber were treated in the Upper: "Sitting for a short time each day, the Bills of the Assembly are despatched under the table with unexampled celerity. Deputations, conveying up popular measures, no sooner have their backs turned than the process of strangulation commences. Bills that have undergone discussion for days in the other House, and that have been amended and perfected with the greatest care, no sooner arrive in their august presence than their fate is sealed."[32] He adds: "Of those who attend to their duties, two-thirds are dependent on the Government for either salaries or pensions. It is not harsh to say that they become the willing tools of the hand that feeds them, instead of looking to the interests of those from whom they indirectly derive their support. Such gratitude may be very amiable, but it is no qualification for an independent legislator."[33] These lines were written as late as the year 1837, and their author informs us that within the preceding eight years the Council had rejected no fewer than three hundred and twenty-five Bills passed by the Assembly, being an average of more than forty for each session[34]—a statement which is fully confirmed by reference to the official journals of the respective Houses.

Such a method of procedure, leading to inevitable conflicts between the two Houses, caused the public business to be impeded and the public interests to be very inefficiently conserved. The whole administrative system of the Province was disorganized. The contest was very unequal, for the Government could frequently command a majority of votes in the Assembly. The minority in that House smarted under a sense of tyranny and injustice, and felt that they were of no weight in the body politic. That sense of dignity which is imparted by a consciousness of contributing to the formation of public policy and opinion was wanting. Not only were the benefits arising from a proper organization of labour altogether lost, but the antagonism between the two factors in political life was so great that they to a large extent neutralized each other. The Upper House had no weight with the people; the Lower House had no weight with the Crown.

One of the greatest drawbacks to the country's prosperity was the method of granting public lands. It had been the policy of Governor Simcoe to encourage immigration from the United States, as well as from Great Britain and continental Europe. He had offered great inducements, in the shape of free grants of wild lands, to persons settling in Upper Canada, and his offer had produced the expected results in the shape of a full tide of immigrants. He had, however, exercised a rigid personal supervision over these grants, and had done his utmost to prevent the abuse of his bountiful regulations. His successors were less scrupulous, and being, as has been seen, under the control of greedy and selfish persons, they permitted the public lands to be used as means of enriching and corrupting the favourites of the Administration. The land-granting department was honeycombed by jobbery and corruption. Grants of five thousand acres were made to each member of the Executive Council, and of twelve hundred acres to each of their children. Similar grants were made to certain favoured members of the Legislative Council and their children.[35] Numerous other personages who could command sufficient influence at Court obtained grants of twelve hundred acres each. The extent of an ordinary grant was two hundred acres. From the creation of the Province down to 1804 these donations were unattended by any cost whatever to the grantees beyond trifling fees to the officials for their trouble in passing the entries through the office books. The privilege of obtaining landed estates for nothing was abused to such an extent, however, that the Home Office interfered, and in the year last named a scale of fees proportionate to the extent of the grant was introduced; but U. E. Loyalists, officers, soldiers, Executive Councillors and their children were exempt even from this trifling burden. In 1818 the performance of certain settlement duties was imposed upon all persons receiving grants, without any exemptions, and in after years several other scales of fees were introduced from time to time. The public lands were committed to the care of an official called the Surveyor-General, and it was not until 1827 that a Commissioner of Crown Lands was appointed. During the first thirty-five years of the Province's history grants of land were entirely subject to the discretion of the Governor-in-Council, not merely as to the quantity and situation of the land itself, but also as to whether the applicant should receive any grant at all.[36] Under such a system it was inevitable that the grossest partiality should prevail, and it was but seldom that any one succeeded in obtaining a grant until those in authority had satisfied themselves that he was to be relied upon to uphold any policy which they might see fit to dictate. Official dignitaries granted lands to their servants and other dependants, and, as soon as certain requisite forms had been complied with, these lands were transferred to themselves or their children. In other cases persons were actually hired by the month to draw land and perform the settlement duties, after which the land was conveyed to their employers. Having the run of the official books, these cormorants contrived in one way and another to acquire for themselves and their creatures all the best lands in the Province, either wholly for nothing or at a price which was merely nominal. "The keys of office," says a writer already quoted from, "were held by themselves or friends, and no admittance to their secrets was allowed except to the initiated, whose favourable out-of-door statements could be relied on. Never since the Norman invasion of England was there such a wholesale partition of plunder."[37] Many persons owned or controlled, directly or indirectly, entire townships.[38] Others owned thousands of acres which they had never seen. As the taxes imposed on unsettled lands were trifling, these immense tracts were no appreciable expense to their owners, who could hold them from year to year, until the progress of settlement rendered them of immense value. Such progress was inevitable, for though these huge reservations tended to keep back the country, settlers obtained grants of adjoining lands, and their labours could not fail to increase the value of all contiguous territory. The Home District, including the most valuable portion of Upper Canada, was especially afflicted by these wholesale reservations, but every part of the Province was more or leas crippled by them.

The ruling faction and their favourites, not satisfied with the enormous direct and indirect grants of lands which they managed in one way and another to obtain, availed themselves of every opportunity to buy up land which had been granted to persons who had expended their little all on their properties, and had thereby become impoverished. Among these latter were many half-pay officers and others of good birth but limited means, who had sought homes for themselves in the Canadian wilderness. Not a few had been compelled to sell their commissions in order to obtain the wherewithal to settle themselves and their families on the lands granted to them. Finding themselves cut off from society, and ill-suited to face the privations of pioneer life, they became discouraged, and sold their lands for whatever meagre price they could get. The land-jobbers were ever on the alert to buy up these tracts at a few shillings an acre, not with any intention of settling upon or improving them, but solely for the purpose of holding them for an increased value. The grants to the children of U. E. Loyalists were the constant subjects of bargain and sale, and wrought great evil to the Province without producing any corresponding benefit to the recipients. Very few of the lots so granted were ever occupied by the grantees, most of whom were young persons of both sexes who resided with their parents, and had no inclination to set up for themselves in the wilderness. These grants were frequently sold at ridiculously low prices. From two to five pounds was an ordinary price for a lot of two hundred acres. Mr. John Radenhurst, who was Chief Clerk in the office of the Surveyor-General for many years, is entitled to speak on this subject with authority. In his evidence taken before Lord Durham's Commissioner, in 1838, he states that the general price paid by speculators for the two-hundred-acre lots granted to sons and daughters of U. E. Loyalists was "from a gallon of rum up to perhaps six pounds." In answer to another question, he states that while millions of acres were granted in this way, the settlement of the Province was not advanced, nor the advantage of the grantee secured in the manner that may be supposed to have been contemplated by Government. He mentions the Honourable Robert Hamilton, a member of the Legislative Council, and the two Chief Justices, Elmsley and Powell, as among the largest purchasers of these lands. Mr. Hamilton's acquisitions amounted to about a hundred thousand acres.[39] Elmsley and Powell, in addition to the five thousand acres which each of them had obtained for nothing as members of the Executive Council, managed to acquire quantities of land which, had they been brought together in one spot, would have made a township of average size. Thus was monopoly perpetuated and increased from year to year, and thus were large tracts of the Provincial territory maintained in a state of primitive wilderness.

Intimations of the gigantic abuses existing in the land-granting system of Upper Canada were more than once sent across the Atlantic to the Colonial Secretary, who instructed the Lieutenant-Governor to impose certain regulations with a view to preventing the continuous repetition of injustice. The Colonial Office, however, was more than three thousand miles away, and means were easily found for evading any restrictions imposed at such a distance. Some idea of the extent which the evil had attained in the year 1818 may be derived from the two passages in that very petition to the Prince Regent for which Mr. Gourlay was indicted at Kingston and Brockville, as related in the preceding chapter. "The lands of the Crown in Upper Canada," proceeds the petition, "are of immense extent, not only stretching far and wide into the wilderness, but scattered over the Province, and intermixed with private property already cultivated. The disposal of this land is left to ministers at home, who are palpably ignorant of existing circumstances, and to a council of men resident in the Province, who, it is believed, have long converted the trust reposed in them to purposes of selfishness. The scandalous abuses in this department came some years ago to such a pitch of monstrous magnitude that the Home ministers wisely imposed restrictions upon the Land Council of Upper Canada. These, however, have by no means removed the evil; and a system of patronage and favouritism, in the disposal of the Crown Lands, still exists; altogether destructive of moral rectitude and virtuous feeling in the management of public affairs. Corruption, indeed, has reached such a height in this Province that it is thought no other part of the British Empire witnesses the like, and it is vain to look for improvement until a radical change is effected. It matters not what characters fill situations of public trust at present—all sink beneath the dignity of men—become vitiated and weak, as soon as they are placed within the vortex of destruction. Confusion on confusion has grown out of this unhappy system; and the very lands of the Crown, the giving away of which has created such mischief and iniquity, have ultimately come to little value from abuse. The poor subjects of His Majesty, driven from home by distress, to whom portions of land are granted, can now find in the grant no benefit; and Loyalists of the United Empire—the descendants of those who sacrificed their all in America in behalf of British rule—men whose names were ordered on record for their virtuous adherence to your Royal Father—the descendants of these men find now no favour in their destined rewards; nay, these rewards, when granted, have in many cases been rendered worse than nothing, for the legal rights in the enjoyment of them have been held at nought; their land has been rendered unsaleable, and, in some cases, only a source of distraction and care. Under this system of internal management, and weakened from other evil influences, Upper Canada now pines in comparative decay; discontent and poverty are experienced in a land supremely blessed with the gifts of nature; dread of arbitrary power wars, here, against the free exercise of reason and manly sentiment; laws have been set aside; legislators have come into derision; and contempt from the mother-country seems fast gathering strength to disunite the people of Canada from their friends at home." Notwithstanding these long, involved, awkwardly-constructed sentences, there is no more accurate picture to be found anywhere of the effect of the pernicious administration of affairs in the Public Lands Office at York in 1818. Twenty years later Lord Durham found it not much improved.[40]

Another hydra-headed monster which ate into the very vitals of the commonwealth was the provision for the clergy, known as the Clergy Reserves. This was perhaps the greatest of all the curses imposed upon Upper Canada by the Constitutional Act, for its ill effects were both direct and incidental. It not only tended to stop the march of progress, but it created a degree of sectarian animosity and hatred little calculated to inspire respect for Christianity in the breasts of the secular portion of the community, and it disturbed the public tranquillity for nearly two generations.

By the thirty-sixth section of the Act of 1791, power was given to reserve out of all future grants of land in Upper and Lower Canada, as well as in respect of all past grants, an allotment for the support of "a Protestant Clergy." It was provided that this allotment should be "equal in value to the seventh part of the lands so granted." By the thirty-seventh section, the rents, profits and emoluments arising from the lands so appropriated were to be applicable solely to the maintenance and support of a Protestant Clergy. By subsequent sections provision was made for the erection and endowment by the Lieutenant-Governor, under instructions from the Crown, of parsonages or rectories, one or more in every township or parish, according to the establishment of the Church of England, and for the presentation of incumbents, subject to the bishop's right of institution. By section forty-two it was enacted that no Provincial statute varying or repealing these provisions should receive the royal assent until thirty days after it had been laid before both Houses of Parliament in Great Britain. These famous enactments were destined to produce more discord and heartburning than all the other clauses of the Constitutional Act combined. They were destined to make the Church of England more cordially detested in this Province by persons without the pale of her communion than she has ever been in any other part of the world. They were destined to set one Legislative faction against another in such fierce array that the public business frequently had to be suspended. They were destined to divide the Provincial population into two hostile camps, each filled with envy, malice and all uncharitableness towards the other. They were destined to be the key-note of general elections, and to shape the policy of successive Administrations. They were destined to be the chief factor in bringing about a Rebellion which for a time seriously disturbed the industries of the Province; which filled the Provincial jails with suffering prisoners; which consigned a number of persons to a premature and ignominous death; which brought sorrow and ruin to many a once happy fireside; which bequeathed a legacy of hatred to the children of those who took part in it; and which seriously disturbed the international amity between Great Britain and the United States.

It may be doubted whether all the ill effects of these appropriations were foreseen by their promoters in the early years of our history. It was at all events some time before those effects began to be apparent to the people generally. In making the appropriations, care was taken that the reserved lands should be intermixed with grants to actual settlers, whereby they were spread over a large area; the manifest intention being to increase their value by their proximity to cultivated farms, and at the same time to create a tenantry in the settled townships, with a view to the creation of parishes and the endowment of rectories. In several portions of the Province, however, it was impossible to follow this plan. Much of the Niagara peninsula had been granted to Butler's Rangers before the passing of the Constitutional Act. In like manner, certain townships along the north bank of the St. Lawrence, as well as several portions of the Western District, had been granted to other United Empire Loyalists. In none of these cases had any reservations been made, and the lands had already become vested in the grantees. The appropriators accordingly set apart large tracts of aggregated reservations in contiguous townships which were yet unsettled. The prejudicial results soon began to appear. Huge tracts of reserves interposed themselves between one settler and another, enhancing the difficulties of communication and transportation, and hindering or altogether preventing that coÖperation of labour which is essential to the prosperity of pioneer settlements. The inhabitants, instead of being drawn together, were isolated from one another, and combination for municipal or other public purposes was rendered all but impracticable. They were kept remote from a market for the sale of their produce, cut off from the privileges of public worship and public education for their children; deprived, in a word, of the blessings of civilization. Settlement was seriously obstructed, and the industrious immigrant was to a great extent paralyzed by his surroundings.

The evils arising out of these Clergy Reserves were intensified by the unfair and illegal manner in which the appropriations were made. It has been seen that by the Act of 1791 the land reserved for the clergy was to be equal to one-seventh of all grants made by the Crown. One-seventh of all grants would obviously be one-eighth of the whole. Yet, instead of acting on this self-evident proposition, it was the practice of those to whom the duty of reservation was entrusted to set apart for the clergy one-seventh of all the land, which was equal to a sixth of the land granted. The surplus thus unjustly appropriated on behalf of the clergy had in 1838 footed up to a total of three hundred thousand acres. The excess was confined to about two-thirds of the surveyed townships, from which circumstance, as well as from the obvious construction of the statute, it is to be inferred that the excessive reservations were made deliberately, and not from mere oversight or inadvertence.[41]

As the Province increased in population, and as land advanced in value, the grievance became more and more manifest. The growl of discontent began to be heard, and the people began to combine against the intolerable evil. This, at first, was chiefly due to the purely secular reasons above indicated. By degrees, however, the sectarian element was developed, and the growl of discontent became a roar of opposition. A dominant church was not acceptable to the Dissenters[42] who composed the bulk of the population; yet it was contended by those in authority—all of whom were Episcopalians—that the Clergy Reserves were the exclusive domain of the Church of England. It must be conceded that there was some ground for this contention, and that the question was not quite free from doubt. The Act authorizing the setting apart of the Reserves had appropriated them for the maintenance and support of "a Protestant Clergy." The word "clergy" was not commonly applied in those days to dissenting ministers of religion. It had never been used in any English statute to designate any ministers except those of the Church of Rome and the Church of England. The Church of Rome being excluded by the term "Protestant," it was contended that the provision had been for the exclusive benefit of the Church of England, more especially as the creation and endowment of parsonages and rectories—which are institutions peculiar to the Church of England—had been expressly provided for by the same Act. Such was the plea put forward on behalf of the Church of England. Dissenters took a different view. They argued that the term "Protestant Clergy" had been used in the Act in mere contradistinction to the clergy of the Church of Rome. They further urged that the limited construction sought to be put upon the term by the Anglicans was plainly negatived by the thirty-ninth section of the Act, wherein the words "incumbent or minister of the Church of England" were expressly employed. Such terms, it was said, would not have been used by the framers of the Act if they had regarded them as synonymous with "Protestant Clergy," as used in other clauses. "The manifest intention of the Act," said the Dissenters, "was to provide for a Protestant—as distinguished from a Roman Catholic—clergy. The provision for the establishment of parsonages and rectories is a mere matter of detail, which cannot be allowed to override the larger intention so plainly evidenced by other sections." The Presbyterian body took higher ground than their non-Anglican brethren. The Church of Scotland had been expressly recognized as a Protestant Church by the Act of Union of England and Scotland in 1707. It was therefore contended that the ministers of that church were entitled to be considered as "Protestant Clergy;" and this contention was sustained by the English law officers of the Crown in 1819. The opinion expressed by those learned officials was acted upon, and the Presbyterians of Upper Canada put forward claims to a share of the Reserves. Their claims were allowed; whereupon other Protestant denominations followed their example, and demanded, as "Protestant Clergy," to participate in the provision made for them. The private and public quarrels which ensued between leaders of the different sects kept the country in a state of chronic disturbance; while the greed displayed by professed ministers of religion furnished a striking practical commentary upon the doctrines taught by the Founder of all Christian faiths. Opinions were obtained from eminent lawyers as to the respective rights of the various sects, and as to the true meaning of the Constitutional Act. The most opposite conclusions were arrived at by different lawyers, and it became manifest that no apportionment satisfactory to all the claimants could be made by any tribunal. The Church of England meanwhile contrived to secure the great bulk of the spoils. According to a return to the House of Assembly of lands set apart as glebes in Upper Canada during the forty-six years from 1787 to 1833, it appears that 22,345 acres were so set apart for the Clergy of the Church of England, 1160 acres for Ministers of the Kirk of Scotland, 400 for Roman Catholics, and "none for any other denomination of Christians."[43]

But there was a broader and stronger argument than any of these purely technical contentions: an argument founded on experience and practical utility. No matter what had been the intent of the original framers of the Constitutional Act, the fact had become patent to all Dissenters, and even to many liberal-minded lay members of the Anglican Church, that the Clergy Reserves were a curse to the Province—a mill-stone about her neck, which dragged her down in spite of all exertions to raise her to the surface. Not long after this fact had become generally recognized, an agitation arose in favour of the total abolition of State aid to religious bodies. The plan advocated by Reformers was the sale of the Reserves, and the application of the proceeds to public education and municipal improvements. The agitation was kept up until long after the period covered by this work, and the object sought to be attained by it was not fully accomplished until the year 1854. Meanwhile, however, it was the most important question before the country, and it occupied the attention of the Legislature during a large part of almost every session. Here was where the conflict between the two Houses was felt with most pernicious effect. The advocates of abolition and secularization clearly had the country with them, and the Assembly passed Bill after Bill to effect those objects. Their efforts were utterly nullified by the Upper House, which would not listen to any such proposals, and which threw out as many Bills relating to this important subject as the Assembly thought proper to send up for its consideration. Such were the merits of the long and fiercely-contested question of the Clergy Reserves.

Another serious obstacle to Upper Canadian prosperity was the continual interference of the Colonial Office in our domestic concerns. Bills passed by the Provincial Legislature for the regulation of our own internal affairs were disallowed with vexatious frequency, and sometimes, apparently, from mere caprice. Sometimes the irresponsible Executive, unwilling that their obedient servants in the Upper House should incur popular odium by opposing the will of the Assembly, permitted Bills to pass both Houses, and then, through their tool the Lieutenant-Governor, had these identical measures disallowed. Advice, the compliance with which could not fail to be prejudicial to the interests of the colony, was also sent across the Atlantic through the Lieutenant-Governor, to whom it came back by return post in the shape of Imperial instructions to be acted upon. The Colonial Minister, whoever he might for the time happen to be, knew little and cared little about the British North American colonies, and did not generally concern himself with despatches to colonial Governors any further than to sign his name to them. He was thus the unconscious means of furthering Executive tyranny, and to some extent of alienating the loyalty of the colonists.

Among other drawbacks, sufficiently serious in themselves and in their ulterior consequences, but of minor importance when compared with the all-permeating grievances already referred to, may be mentioned the quartering of military men upon the colony in the capacity of Lieutenant-Governors; the unequal representation of the people in the Assembly; the exorbitant salaries of certain public officials; the union of judicial and legislative functions in the same persons; the appointment of judges, sheriffs, magistrates, and other officials during the pleasure of the Executive, and not during good behaviour.

The evils attendant upon placing the local administration of the colonies in the hands of military officers, who were inexperienced in constitutional government, and unfitted by training for such duties as were demanded of them, have already been glanced at.[44] Such persons naturally enough found themselves altogether out of their proper element upon their arrival in the colony, and looked to the Executive Councillors for advice and instruction. That they should follow the instruction received, and that they should surrender themselves to the judgment of those enemies of the public weal, followed almost as a matter of course. In this way the strength of the oligarchy was consolidated and enlarged, and its members rendered more and more independent of public opinion. All that can be urged on behalf of the Home Ministry, by way of excuse for committing the direction of our affairs to such persons, is that the position of Lieutenant-Governor of Upper Canada was not a sufficient inducement to make it sought after by really capable men. The office, in at least one instance to be hereafter recorded, went a-begging.

Unequal representation was a fruitful source of discontent, though Upper Canada was no worse off in that respect than the mother-country prior to the passing of the Reform Bill of 1832. For years before the Rebellion, the little district towns of Niagara, Brockville and Cornwall each enjoyed the privilege of sending a representative to the Assembly. All three of them were notoriously rotten boroughs—as rotten as Gatton, Grampound or Old Sarum—and always returned Tory members prepared to do the bidding of the Executive. By such means was the Assembly corrupted, and the elective franchise turned into an instrument of oppression. Some of the salaries of public officials were altogether out of proportion to the state of the revenue, and to the nature and extent of the duties performed. Certain highly-paid offices were the merest sinecures, and had been created for no other purpose than to provide for serviceable tools of the Administration. The practice of permitting judges to sit and vote in the Legislature needs no comment. Whatever justification there might have been for such a union of functions in the first infancy of the Province, when educated men were few in the land, there was certainly none in the days when Chief Justice Robinson was Speaker of the Legislative Council. The effect of making the tenure of office of judges and other dignitaries dependent on the will of the Executive was such as has attended upon such a system in all countries where it has been in vogue. The officials were selected almost entirely from one political party, and had always an eye upon the nod of their taskmasters, who had the power to make or unmake them. Whenever it was desirable, in the supposed interests of the Executive, that the authority of the courts should be strained to the perversion of judgment, the dispensing of even-handed justice was altogether a secondary consideration. Mr. Gourlay's case, to say nothing of that of Bartemus Ferguson, affords a sufficient illustration of the extent to which the traditions of the Star Chamber were revived in Upper Canadian practice, when it was thought desirable to crush a champion of popular liberty and equal rights.

Such were a few of the burdens which the people of Upper Canada were compelled to bear in the by-gone epoch when tyranny reigned supreme throughout the Province: when

"the law's delay,
The insolence of office, and the spurns
That patient merit of the unworthy takes,"

were the all too frequent portion of such of the inhabitants as dared to call in question the righteousness of existing ordinances. There was a further intolerable grievance which was closely bound up with, and which, so to speak, grew out of or sustained all the rest: which comprehended within itself all the evils affecting the body politic, and which left traces of its existence that have survived down to the present time. This was the Family Compact—a phrase which is in everybody's mouth, but the significance whereof, I venture to think, is in general but imperfectly understood. The subject deserves a chapter to itself.

[24] Being somewhat doubtful as to the truth of this oft-repeated story, I have taken the trouble to consult the records in the Crown Lands Office, where I find that Mr. Russell on several occasions made grants of land to himself. Among other such grants I may mention lot number twenty-two, in the third concession of the township of York, which was made on the 16th of July, 1797. See Liber A., folio 382, Provincial Registry Office. He also granted various tracts of land to his sister, Miss Elizabeth Russell, the first of which bears date the 15th of December, 1796. See Liber B., folio 334. So that the President appears to have begun to "do good unto himself" and his family before he had been three months in office as Administrator of the Government. Further investigation would doubtless prove that he kept up the practice until the arrival of Governor Hunter.[25] See his speech at the close of the first session of the First Parliament of Upper Canada, on the 15th of October, 1792.[26] The property qualification for a voter was, in counties, the possession of lands or tenements of the yearly value of forty shillings sterling or upwards, over and above all rents and charges; and in towns or townships, the possession of a dwelling house and lot of the yearly value of five pounds sterling or upwards, or the having been a resident for twelve months, and the having paid a year's rent at the rate of ten pounds sterling or upwards. See the twentieth section of the Constitutional Act.[27] The latter part of this clause has no application to Brock, who was made of manlier stuff. Brock, however, was not Lieutenant-Governor, but merely Provisional Administrator of the Province.[28] Report on the Affairs of British North America, English folio edition, p. 29.[29] The Constitutional History of Canada, by Samuel James Watson, Vol. I., p. 128.[30] The abuses specified in the present chapter were not confined to Upper Canada. They existed, with certain local variations, throughout all the British North American colonies, and produced similar results in each; viz., ever-recurring conflicts between the Executive and the popular branch of the Legislature, followed by more or less alienation of loyalty to the mother country on the part of the more radical element in the community. In the Maritime Provinces the alienation was not sufficiently widespread to manifest itself in actual rebellion, though the conflict between the oligarchy and the popular tribunes sometimes produced a very disturbed state of feeling. In Lower Canada, where the element of race-hatred was added to all other sources of disturbance, the conflict attained an intensity far beyond what was reached in any of the other colonies, and left traces behind it which are not even yet wholly obliterated.[31] Statistical Account, Vol. II., p. 296.[32] Canadiana, by W. B. Wells, p. 103.[33] Ib.[34] Ib., p. 104.[35] These grants of five thousand acres to members of the Executive Council were in direct violation of the instructions framed by the Home Government for the regulation of land-granting in Upper Canada. They continued to be made down to 1807, when they were stopped by a peremptory order to that effect from the Colonial Secretary. There is one instance on record of a reserve being applied for and made on behalf of the child of a member of the Legislative Council, though the child was not three days old. See the evidence of John Radenhurst, Chief Clerk in the office of the Surveyor-General, in Appendix B. to Lord Durham's Report on the Affairs of British North America.[36] Most of these facts with reference to the granting of public lands may be obtained from the archives of the Crown Lands Office in Toronto, and from the newspapers and official reports of the period. They may also be found, together with a vast accumulation of other important facts bearing on the same subject, in Charles Buller's Report on Public Lands and Emigration, forming Appendix B. to Lord Durham's Report on the Affairs of British North America.[37] Canadiana, p. 130.[38] In 1796 or thereabouts the Executive offered to grant entire townships to persons who would undertake to settle them with a certain number of colonists within a specified time. The number of colonists required was made proportionate to the extent of territory to be settled. This offer was taken advantage of by ten different individuals. The grants were not actually made, but the respective townships were allocated in the official books to the various persons concerned. Upon the faith of the pledge of the Executive, several of the ten assignees proceeded to carry out the conditions imposed. Among them was Mr. William Berczy, who, having obtained an assignment of the township of Markham, went to great expense in bringing over a number of German families, whom he settled according to the conditions of the contemplated grant. After he had spent a sum of money variously stated at from twenty to thirty thousand pounds sterling, the Executive coolly announced that they had determined to abandon the township system, and that they did not even intend to carry out the grants to those who had complied with the conditions. The compensation offered for this unparalleled breach of faith was a grant of twelve hundred acres to each assignee. Nine of the individuals concerned assented to those terms, but Mr. Berczy refused to accept any such inadequate recompense, and he remained for the rest of his life a ruined man. He shook the dust of Upper Canada from his feet, and took up his abode in Montreal, whence he subsequently repaired to New York, where he died in the year 1813.[39] See Appendix B. to Lord Durham's Report, folio edition, p. 99. Mr. Charles Rankin, Deputy-Surveyor in the Western District, in his evidence before the Commission (ib. pp. 120, 121), says:—"The system of making large grants to individuals who had no intention of settling them has tended to retard the prosperity of the colony by separating the actual settlers, and rendering it so much more difficult, and in some cases impossible, for them to make the necessary roads. It has also made the markets more distant and more precarious. To such an extent have these difficulties been experienced as to occasion the abandonment of settlements which had been formed. I may mention, as an instance of this, the township of Rama, where after a trial of three years, the settlers were compelled to abandon their improvements. It should be noticed that the settlers in this instance were not of a class fitted to encounter the privations of the wilderness, being half-pay officers. In the township of St. Vincent almost all the most valuable settlers have left their farms from the same cause, the townships of Nottawasaga and Collingwood, the whole of the land in which had been granted, and which are almost entirely unsettled (Collingwood, I believe, has only one settler), intervening between them and the settled township, and rendering communication impossible. There have been numerous instances in which, though the settlement has not been altogether abandoned, the most valuable settlers, after unavailing struggles of several years with the difficulties which I have described, have left their farms." This witness further states his belief that nine-tenths of the lands in the Western District were still—in 1838—in a state of wilderness.[40] See his Report, passim; also see the portion of Appendix B. relating to Upper Canada.[41] See the Special Report of Mr. R. Davies Hanson, Assistant Commissioner of Crown Lands and Emigration, forming the commencement of Appendix A. to Lord Durham's Report on the Affairs of British North America.[42] I use this word for want of a better, though it is not strictly accurate as applied to Upper Canada, where there were no clearly prescribed standards of religious faith from which non-supporters of Episcopacy could be said to dissent. The word "Nonconformist" is objectionable for a similar reason.[43] See Seventh Grievance Committee's Report, p. 164.[44] Ante, p. 51.