THE NIAGARA FALLS OUTRAGE.

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T he case of William Forsyth—commonly known in the chronicles of the time as the Niagara Falls outrage—differed materially from that of Captain Matthews, not only in kind, but in degree. In the latter case there was no gross violation of the decencies of life, or of the outward forms of law. The mischief was effected by means of spies and secret information, and the damage inflicted was incidental rather than direct. The Forsyth case, on the contrary, was more in the manner of the type riot. It was a violent and utterly unjustifiable exercise of brute force. But in one important respect it was worse than the type riot. That display of ruffianism had been accomplished without the open approbation of the authorities. The Niagara Falls outrage was committed not only with the full assent, but by the express command, of the Lieutenant-Governor himself. Not even the poor excuse that it was done in a moment of anger or irritation could be made for it. It was done deliberately, in cold blood, and was as deliberately repeated. It was a simple case of Might versus Right.

A few words of explanation are necessary by way of prologue.

In the year 1786, before the setting apart of Upper Canada as a separate Province, and just after the commencement of the settlement of the Niagara Peninsula by Butler's Rangers, the territory contiguous to the west bank of the Niagara River was surveyed and laid out into lots by Augustus Jones, a surveyor whose name is familiar to all students of the early history of this Province. In pursuance of instructions received from the Government, Mr. Jones, in laying out these lots, made a reservation of a chain in width—sixty-six feet—along the top of the bank.

The reservation was made partly with a view to the military defence of the Province, and partly for the purpose of preserving a convenient communication.[90] It was expressly specified in the Crown Patents to the owners of adjoining lands, and embodied in all subsequent deeds upon successive transfers. It may therefore be conceded that the Crown's title to the reserved land was indisputable.

In the year 1827, and for some time previously, the principal inn on the Canadian side of the river at Niagara Falls was owned and kept by one William Forsyth. The man and his establishment were well known to travellers, and "Forsyth's" had a high reputation as one of the most comfortable houses of public entertainment in the country. During the heat of summer, many residents of York paid more or less frequent visits to the Falls, not more to enjoy the change of air and the majestic scenery, than to partake of "mine host" Forsyth's hospitality. The inn was in close proximity to the great cataract, and was known as the Niagara Falls Pavilion. It was built on ground that bordered upon and ran up to the Government's reservation, which alone intervened between it and the top of the bank.

Mr. Forsyth drove a flourishing business, but, like some of his successors at the same spot, his greed grew with his increasing gains, and he was not content to grow rich by degrees. He determined to augment his income by the erection of a high post and rail fence, placed so as to shut out visitors from approaching near to the Falls, and rendering it necessary for them to pass through his house before the desired view could be obtained. It should be mentioned that Mr. Forsyth, in addition to the Pavilion and its immediate grounds, owned the adjoining lands for a considerable distance, including all the points from which the great spectacle was to be seen to advantage. By the erection of the fence, therefore, visitors would be debarred and shut off from all that was best worth seeing in the neighbourhood, until they had passed through his inn; and it was of course anticipated that most of those so passing through would spend more or less money on the premises. There was, however, one rather serious objection to the contemplated change. It would involve the enclosure of the Government reservation, a proceeding which was not likely to be permanently tolerated. Forsyth was probably ill advised by his attorney in the matter, for he seems to have been really of opinion that the Government's title to the land was at least open to question, and he had been permitted to occupy a portion of it without remonstrance for about six years. Sometime during the early spring of the above-mentioned year—in time to catch the expected influx of summer visitors—he carried out his design, and constructed the enclosure. His house was thus converted into a thoroughfare, which necessarily gave rise to a greatly increased number of visitors, and to much additional expenditure within its walls. But the public serenity soon began to show signs of disturbance. There was a rival innkeeper named Browne, who was not long in discovering that his own losses were in proportion to Forsyth's gains. He bestirred himself in the matter, and soon succeeded in arousing a good deal of indignation in the minds of visitors. No one was allowed to either enter or pass by his door without being importuned to sign a petition to the Government, praying for a removal of the objectionable fence. Other persons residing in the neighbourhood took umbrage at the innovation, and also made appeals to the Government on the subject. In this way several numerously-signed petitions were obtained and forwarded to headquarters.

Such proceedings as these were in themselves reasonable and proper enough. Forsyth had acted in a selfish and unwarrantable manner, and it would have been nothing more than he had a right to expect if the Government had instituted immediate action against him. It would have been an injustice to the public if he had been permitted to enjoy his monopoly undisturbed. But neither the trespasser himself nor any of those who protested against his conduct was prepared for such high-handed measures as were actually resorted to; measures which effectually proved the unfitness of Sir Peregrine Maitland for his high office; which led to his being cordially hated throughout the length and breadth of Upper Canada; and which doubtless had something to do with his removal to another sphere of action.

One day about the middle of May, when the enclosure had been erected about six weeks, and when the season's regular flow of tourists had fairly set in, the landlord of the Pavilion received a call from Captain George Phillpotts, of the Royal Engineers, who then held command in the District. The latter demanded why Forsyth had presumed to fence-in the Government reserve. Forsyth replied, denying that the reserve belonged to the Government, and asserting his own title thereto, whereupon he was informed that unless the enclosure was removed without delay, he, Captain Phillpotts, would himself undertake its removal. Forsyth professed to feel strong in his rights, and threatened to prosecute the Captain or any one else who might interfere with his property. Here the interview ended. Several days afterwards—on the 18th—the landlord was summoned to his door by a message that a gentleman there wished to see him. The gentleman proved to be Captain Phillpotts, who was accompanied by a sergeant and four other soldiers in fatigue jackets, without arms. Major Richard Leonard, Sheriff of the Niagara District, and Augustus Jones, who had made the original survey of the property forty-one years before, were also in attendance. The Sheriff, who had merely accompanied the party at the Captain's request, took no part in the subsequent proceedings, but contented himself with quietly looking on. Mr. Jones had been brought for a specific purpose, and, at the request of Captain Phillpotts, he then and there made a hasty re-survey of the reserve, the limits of which he indicated by pickets. Upon the completion of this task, the Captain demanded that Forsyth should immediately remove the enclosing fence, and upon his refusal to do so, the soldiers, under orders from their Captain, deliberately cut and threw down the fence, exposing the gardens, meadows and about sixty acres of growing crops to waste. A blacksmith's shop which had been erected on the reserve was demolished, and the building material thrown over the bank. The Captain avowed that he was acting under express orders from the Lieutenant-Governor, which proved to be the fact.

Having accomplished his purpose, Captain Phillpotts and his soldiers departed, accompanied by the Sheriff and the surveyor. They were no sooner out of the way than Forsyth and his servants set themselves to work to repair damages, and before nightfall the enclosure was rebuilt; the premises, with the exception of the blacksmith's shop, being restored to the condition in which they had been before the assault upon them. But intelligence of the restoration was speedily conveyed to Sir Peregrine Maitland, who again despatched the same emissary, and the drama of demolition was re-enacted. The landlord of the Pavilion then gave up the contest, so far as any attempt at reconstruction was concerned, and proceeded to obtain redress by due course of law.

Now, it may perhaps be admitted that Forsyth was rightly served, or at any rate that he deserved little or no sympathy. His enclosure of the Crown reserve had been without any strict colour of right, and had been due to pure greed and selfishness. But his blacksmith's shop had been constructed on the land as far back as 1821, when he had purchased the adjoining lot from William Dickson, and no one had ever questioned his right to maintain it there. He seems to have thought that he had as good a claim to the property as anybody. He had been informed, contrary to the fact, that the Government reserve extended only to the lower bank, and did not cover the land at the top. He might easily have discovered that his information was misleading, but he had not chosen to take so much trouble, and deserved to suffer the legal consequences of his neglect. He could undoubtedly have been dispossessed by means of an action of ejectment, with the costs of which he would justly have been saddled. But he had a right to expect that, after being allowed to remain so many years in undisturbed possession, he should only be dispossessed by civil process. It was not a case where an arbitrary removal was justifiable, such as may lawfully take place when it becomes necessary to abate a nuisance. But it was above all things intolerable that the military should have been employed for such a purpose. Sir Peregrine Maitland, in sending Captain Phillpotts on the expedition, had acted, not in his capacity of Lieutenant-Governor, but in that of Major-General Commanding the Forces in Upper Canada. This it was that wrought up the public pulse to such a pitch of excitement. This it was that created a dangerous antagonism between the people and the soldiery, and led to frequent quarrels and bickerings between them. The Committee subsequently appointed by the Assembly to investigate the subject echoed the popular sentiment when they reported that "a person long in possession of land, like the petitioner, ought to have been ejected by the law of the land, which is ample, when impartially administered, for securing the rights of property, but the interference of the military, by such acts of violence, for maintaining supposed or contested rights, is justly regarded with jealousy in all free countries, and ought to be seriously regarded in a colony where the most unprecedented outrages have been perpetrated without prosecution, and even followed by the patronage of the local Government upon the wrong-doers."[91] The presence of the civil power on the occasion, in the person of the Sheriff, had been even an aggravation of the offence, for the Sheriff had thus been made to lend his countenance to the proceeding. As for the Lieutenant-Governor's action in the matter, he himself was solely to blame, for his intentions were not made known to the Executive Council, or, so far as appears, to any member of that body. It was simply and solely a barefaced and most impudent abuse of authority, the responsibility for which rests upon no shoulders but his own.

Forsyth had no success in his appeals to the law. He brought two actions of trespass, one of which was against Sheriff Leonard and Captain Phillpotts jointly, for removing the fence and blacksmith's shop; and the other of which was against Captain Phillpotts alone for removing the fence the second time. Sir Peregrine instructed Attorney-General Robinson to defend both these suits, and to vindicate the Crown's title to the reserved land.[92] To effect the latter object in the most formal and decisive manner, the Attorney-General filed an information for intrusion against Forsyth, upon which a verdict was rendered in favour of the Crown. The plaintiff altogether failed in his action against Phillpotts and the Sheriff, and the decision in that case rendered it useless for him to proceed with the action against Phillpotts alone.[93]

While those suits were in progress, Forsyth, finding that public opinion, if not in his favour, was at least hostile to the Lieutenant-Governor, sent in a petition to the Assembly, setting forth the circumstances, and praying for redress. This was during the session of 1828. The Assembly entertained the petition, and appointed a Committee of Inquiry. The Committee proceeded to inquire accordingly. While their investigations were in progress they resolved to examine two of the Government officials, who, as there was reason to believe, could throw light upon Sir Peregrine's reasons for such arbitrary conduct as that of which he had been guilty. The officials whose evidence it was thought desirable to obtain were Colonels Coffin and Givins, both of whom were heads of departments. The former occupied the position of Adjutant-General of Militia for Upper Canada; the latter was Superintendent of Indian Affairs. Both of these gentlemen were summoned to attend before the Committee at a specified time. In this there was nothing strange or unusual. It was a matter of frequent occurrence for officials of the Government, high and low, to be summoned before Parliamentary committees while the Legislature was in session; and there was no question as to the right of such committees to require such attendance. In this instance, however, the persons summoned were not permitted to obey the behests of the Committee, and in the attendant circumstances there were pretty plain indications of crookedness and collusion between the Crown officers and Sir Peregrine Maitland. Each of the two officers concerned, immediately upon receiving his summons, caused the fact to be communicated to the Lieutenant-Governor, and each wrote a shuffling letter to the Chairman of the Committee. Later in the day the Lieutenant-Governor positively declined to permit the attendance of the persons summoned, assigning as a reason that he had not been made acquainted with the facts as to which it was desired to interrogate them. Now, when one considers all the facts and circumstances of the case, one is driven to the conclusion that Colonels Coffin and Givins were in possession of certain information which the Executive, or at any rate the Lieutenant-Governor, had a strong interest in keeping secret. Why else were they forbidden to attend? The reason assigned was certainly not a sufficient one. In the first place it was not founded upon fact. That the Committee had been appointed for the specific purpose of investigating the circumstances connected with the Niagara Falls outrage was matter of common notoriety. When the two Government officers were summoned to give evidence before that Committee there could be no doubt that the intention was to examine them touching their knowledge of the matter in hand.[94] Some years before this time, when the Compact were all-powerful in the Assembly, as well as in the Upper House, a custom had been introduced of notifying the Lieutenant-Governor whenever it was proposed to examine any of the Government officials as witnesses before a Parliamentary committee. It had been customary to specify, in the address of notification, the subject on which it was intended to take evidence. This, however, had been a mere matter of courtesy and conventionality, upon which nobody had any right to insist; and the practice had not been uniform or consistent, various instances having occurred where Crown officers had been summoned and examined as witnesses without any such notification having been given. Upon such a flimsy pretext, however, did Sir Peregrine Maitland base his refusal to permit the two witnesses to attend for examination in the Forsyth case.

The Chairman of the Committee duly reported to the Assembly the non-attendance of the witnesses, and that body determined that its authority should not thus be defied and set at naught with impunity. The chief offender, the Lieutenant-Governor—or the Commander of the Forces, if he was to be considered as acting in that capacity—was of course beyond reach, but proceedings were forthwith instituted against the recalcitrant witnesses. Warrants were issued against them by the Speaker, in order that they might be brought up before the House, in custody of the Sergeant-at-Arms, to answer for their contempt. Acting under legal advice, they declined to submit to such authority unless compelled to do so by force; and they boldly threatened that in case of force being resorted to they would prosecute the Speaker. It is to be presumed that the warrants would in any case have been acted upon, but this impudent threat left the Assembly no alternative. If Government officers, paid out of the public purse, were to be allowed to defy that branch of the Legislature which alone represented the popular voice—if they were to be permitted to treat its mandates with contempt, and to threaten its representative with ulterior consequences in the event of those mandates being enforced—then, indeed, liberty and equal rights were at a low ebb in Upper Canada. The warrants were promptly executed, the house in which the two officials had ensconced themselves being forcibly entered for the purpose. Being brought to the bar of the House, and charged with their contempt, they sought to vindicate themselves by pleading the action of the Lieutenant-Governor in refusing to sanction their attendance. The House then adopted a resolution under which they were handed over to the custody of the Sheriff, and committed to the common jail of the Home District. They formally notified the Lieutenant-Governor, through his private secretary, of the calamity which had come upon them through obedience to his behests, and requested that the advice and assistance of the Crown officers—that is to say, of the Attorney-General and Solicitor-General—might be vouchsafed to them. They however remained in confinement only three days, for the Lieutenant-Governor, in accordance with an intimation previously given, prorogued the Legislature on the 25th of March—they had been committed on the 22nd—and the power of the Assembly to commit did not extend beyond the time when it was actually in session.

Colonels Coffin and Givins carried out their threat, and sued the Speaker for damages for false imprisonment. The right of the Assembly to commit for contempt was however a matter too well established, and was confirmed by the Court of King's Bench in another cause then pending. So that the Adjutant-General of Militia and the Superintendent of Indian Affairs, in addition to their respective bills of costs, had their three days' imprisonment as a reward for their fealty to Sir Peregrine Maitland, and for their disloyalty to the Canadian people.

Sir Peregrine appears to have felt a little dubious as to how his proceedings would be regarded at the Home Office. It was quite certain that the Colonial Secretary would hear of the affair, but that dignitary's approval was open to question. It would at all events be well that the official mind should receive its first impression on the subject from Sir Peregrine himself, who accordingly lost no time in sending over his own version of the transaction. His despatch, which bears internal evidence of having been written or revised by Attorney-General Robinson, is dated the 29th of March—the fourth day after the prorogation. Under the pretext of asking for advice as to how he should act in the future in case of any of the officials being summoned before Parliamentary committees without any notification having been made to himself, he recounts the story of the Niagara Falls outrage. His narrative, it is almost needless to say, is from first to last garbled and one-sided. Forsyth is referred to therein as "a person notoriously of indifferent character;" and the Assembly and its committees are maligned in language highly improper to be employed in a confidential communication from the Lieutenant-Governor of a colony to his superiors at home.[95] The Colonial Secretary, however, was shrewd enough to penetrate the veil of misrepresentation in which the despatch was enveloped, and to arrive at a pretty just appreciation of the merits of the case. He officially expressed his opinion that there had been adequate grounds for inquiry by the Assembly. "I cannot but consider," he wrote, "that Sir Peregrine Maitland would have exercised a sounder discretion had he permitted the officers to appear before the Assembly; and I regret that he did not accomplish the object he had in view in preventing Forsyth's encroachments by means of the civil power, which is said to have been at hand, rather than by calling in military aid." This despatch, however, was written, not to Sir Peregrine Maitland himself, but to his successor, Sir John Colborne. The Forsyth case, coming, as it did, in the wake of other ill-advised proceedings on the part of Sir Peregrine, determined the Home Government to withdraw him from Upper Canada, where it was quite evident that his usefulness—if he had ever had any—was gone. He was transferred to Nova Scotia, whither it is not necessary that this narrative should follow him.

With respect to Forsyth, it may he added that, being unable to obtain any recompense for the Phillpotts invasion, and being harassed by protracted litigation, he sold his property at Niagara Falls at a price considerably below its value, and removed from the spot. It cannot be said that he deserved much sympathy, for he had brought his losses on himself by his own selfishness. He took advantage of the situation to pose in the character of a martyr to Executive tyranny, and he succeeded in deceiving many of his contemporaries into the belief that he was a much injured man. The historical interest, however, centres not in him, but in the consequences arising out of the employment of soldiers to do the Sheriff's work in a time of profound peace, and without any initiatory civil process having been issued. The popular excitement consequent on the outrage encouraged Forsyth to petition the Assembly. The petition led to the appointment of the Committee of Inquiry, which in its turn led to the summoning of witnesses and the conflict between the Assembly and the Lieutenant-Governor. The conflict led to the latter's removal, and, from that point of view, is not to be regarded in the light of an unmixed evil.

[90] See the letter from Chief Justice Robinson to Lieutenant-Colonel Rowan, Secretary, etc., etc., dated at York, 31st December, 1832, and appended to the Report of the Committee of the House of Assembly on the Petition of William Forsyth, dated April 1st, 1835. In one part of this letter the Chief Justice says that the laying out of the lots took place "some time between the years 1785 and 1790, and while General Haldimand administered the Government of Canada." General Haldimand did not administer the Government of Canada during any part of the time thus specified—a fact of which Chief Justice Robinson ought to have been aware. In a subsequent part of the same letter he properly gives the date as 1786.[91] See the report, p. iv., appended to the Seventh Report of the Grievance Committee.[92] The defence of these two suits would seem to have been the means of considerably augmenting the Attorney-General's already ample income. From certain accounts sent down to the Assembly it appears that a sum of £127 6s. 6-¾d. sterling were paid to him during the year 1834 for "expenses incurred by him in defending two suits with costs in reference to the military reserve near the Falls of Niagara."[93] There was a very general belief throughout the Niagara District at the time that Major Leonard, who was an obedient servant to the Executive, had manipulated the lists from which the jurors in those cases were selected. The truth or falsity of the belief cannot now be pronounced upon, the circumstances upon which it was founded being buried in oblivion.[94] "He [Sir Peregrine Maitland] must have inferred that the Committee proposed to examine these officers respecting the employment of a military force for the ejecting of Forsyth from the land."—See Despatch from the Colonial Secretary, Sir George Murray, to Major-General Sir John Colborne, dated 20th October, 1828, appended to the Report on Forsyth's petition.[95] See the despatch, appended to the Report on the Forsyth Case, at end of Grievance Committee's Report. The Colonial Secretary's despatch quoted in the text will be found appended to the same Report.