DISENFRANCHISEMENT.

Top

Mackenzie remained in England much longer than he had anticipated, and did not return to Canada until towards the end of August, 1833. He was absent in all nearly sixteen months, which was considerably longer than was necessary for the accomplishment of the objects of his mission. He doubtless enjoyed life in the metropolis, and was loth to relinquish it.[165] His mission had not been wholly fruitless, for his representations at the Colonial Office had led to the writing of Lord Goderich's despatch already referred to, by which the faction in Upper Canada were led to see that they would for the future be compelled to act with somewhat more of circumspection. Several much-needed suggestions were made in the despatch on subjects of practical importance—among others as to the remuneration of members of the Assembly representing Town constituencies; as to the extension of the franchise to persons who, by reason of their religious scruples, could not conscientiously take the prescribed oath; as to the repeal of the law disqualifying British subjects from voting at elections till the expiration of seven years after their return from a residence in a foreign country; and as to the interference of ecclesiastical Legislative Councillors in secular matters.[166] Mackenzie was also entitled to claim credit for obtaining important reforms in the management of the Provincial Post Office. He had brought the affairs of the Province conspicuously before the minds of several eminent public men, whose interest in Canada had thus been aroused, and who were thenceforth able to display some familiarity with Canadian questions as they came up for discussion in the House of Commons. During his stay in London he had published a duodecimo volume, extending to 504 pages, entitled "Sketches in Canada and the United States," in which a good many Provincial abuses had been specified. The information contained in this work had been thrown together in a higgledy-piggledy fashion, and it could not be said to have much real value, more especially as many of its statements were inaccurate, and must have been known to be so when they were written.[167] Still, it probably had some effect in seconding the author's efforts to attract attention to himself and the interests which he represented. He had moreover acquainted the Colonial Secretary with matters which could not possibly have been clearly explained otherwise than orally. It was tolerably certain that information furnished by him had led to the dismissal of Boulton and Hagerman, a proceeding which had wonderfully exhilarated his mind; and his depression had been correspondently deep upon learning that the one had been promoted and the other reinstated. He had hoped to see Mr. Rolph appointed to the Solicitor-Generalship, and, if his word is to be credited, he really seems to have had some grounds for believing that such an appointment would be made.[168] He afterwards declared that he had "good reasons for believing" that Mr. Rolph's appointment had actually been made out and transmitted to Canada, but that Sir John Colborne and Chief Justice Robinson had prevented it from taking effect.[169]

As has already been seen,[170] Mackenzie, during his absence in England, had once more been elected to represent the County of York in the Assembly. Upon the first meeting of Parliament after his return he presented himself as a member. There was however a persistent determination that he should not be permitted to take his seat. The hostile majority in the House professed to believe that they had a right to exercise a discretion as to who should be permitted to sit therein. Mackenzie, they alleged, had libelled the House by libelling a majority of its members, and he had neither made nor attempted to make any reparation or apology. The Clerk, acting most probably on instructions, refused to administer the oath to him. A resolution was adopted that he should not be permitted to sit or vote as a member during the session, and a writ for a new election was ordered. Again did he return to his constituents, and again was he returned without opposition. The electors of York were by this time heartily tired of the farce, the perpetual re-enactment whereof had the effect of partly disfranchising them by leaving them with only one representative in the Assembly instead of two. They were nevertheless fully resolved not to yield their undoubted rights without some further assertion of them. The member of their choice was under no legal disability. They were advised that there was no constitutional justification for the action of the Assembly. They declared that they owed it to themselves and those who were to come after them not to submit tamely to injustice of such a nature. The election being over, a considerable body of them escorted him to the Houses of Parliament. But a short time had elapsed since the last expulsion, and the Legislature was still in session. The members of the Assembly stared in astonishment at the sudden and altogether unlooked-for incursion of strangers, who poured into the gallery and into the space below the bar, where they were permitted to intrude themselves, and where Mackenzie presented himself to take the oath. Those who could not find room inside remained without in the lobbies. In a few moments a lull occurred in the proceedings of the House, whereupon burly Peter Perry rose in his place and announced that he had a petition to present on behalf of the inhabitants of the County of York. The contents of the petition were not of a nature to render it acceptable to a majority of the members. It referred to Mackenzie's expulsion, and prayed that that indignity might not be repeated. There was a very general feeling among the supporters of the Government that the House ought not to receive such a petition, and several of them gave utterance to their opinions on the subject. Allan MacNab expressed himself to this effect with his customary emphasis, and was greeted with a storm of hisses from the York electors in the gallery. Ominous sounds! The House could not be expected to tamely brook such a manifestation, and an order was given to clear the gallery. While the order was being obeyed, the Sergeant-at-Arms approached Mackenzie where he stood below the bar, and directed him to leave. Mackenzie replied to the effect that he had a right to be there, and that he intended to remain. The door was then opened by the Sergeant-at-Arms, who proceeded to eject Mackenzie by force; but before he could carry out his purpose a rush was made from the adjacent lobby. The door was promptly closed and barricaded, but not until several of the invaders had effected an entrance. The excitement was intense, and for some minutes the proceedings of the House were suspended. When quiet had been in some measure restored, the Speaker directed the Sergeant-at-Arms to clear the space below the bar of strangers. That functionary again ordered Mackenzie to leave, and he received the same reply as before. This was communicated to the Speaker, who decided that, as Mackenzie had not taken the oath, he was not a member of the House, and was not entitled to remain. Mackenzie was there, ready and anxious to take the oath; but he was nevertheless removed by the Sergeant-at-Arms, and the Assembly was once more purged of his presence. On the next day he was again formally expelled by a vote of the House[171]—an anomalous proceeding in view of the Speaker's decision that he was not a member! He had thus been thrice expelled from the House, and once excluded therefrom upon the ground that he was not a member.

It was by this time clear that from a House so constituted Mackenzie could not expect to meet with fair play. Mr. Bidwell, Mr. Perry, and others of his friends had all along spoken manfully on his behalf whenever an opportunity of doing so had presented itself, but their arguments had simply been thrown away. His pugnacious spirit was however fully aroused, and he determined to exhaust every means before abandoning his endeavours to take the seat to which he was entitled. He applied to the Lieutenant-Governor for permission to take the oath prescribed for members of the Legislature before his Excellency, or before some one specially appointed for the purpose, under the twenty-ninth section of the Constitutional Act of 1791.[172] The question involved in this application was submitted to the Attorney-General, Mr. Jameson, who pronounced the opinion that Mackenzie was entitled to the privilege asked for. The matter was nevertheless allowed to remain in abeyance for some weeks, as the hostile members of Assembly had been worked up to a great pitch of excitement by the incursion of the rural population, and were in no humour to tolerate Mackenzie's presence. Meanwhile petitions to the Lieutenant-Governor were sent in from various parts of the County of York, as well as from other places. The language in some of these was of the most unmistakable kind, and it was evident that endurance had nearly reached its limits.

On Monday, the 10th of February, Mackenzie, having taken the oath before the Clerk of the Executive Council, and having obtained a duly attested certificate of the ceremonial, ventured once more to present himself in the Chamber of the Assembly.

The House was in Committee on the question of improving the navigation of the St. Lawrence when he entered. The gallery was crowded with spectators, most of whom were sympathizers with Mackenzie, and had assembled there to impart to him a sort of outside numerical support. He walked to the seat which he had once been accustomed to occupy, and quietly sat down in it. Ere many minutes the Sergeant-at-Arms[173] approached and requested him to withdraw. This he declined to do, alleging that he was a member legally elected, duly sworn, and charged with no offence or irregularity which could disqualify him from sitting and voting.[174] He produced the attested copy of the oath, and bade the Sergeant-at-Arms interfere at his peril. The following is Mackenzie's own account of what ensued; and, unlike most of his narratives, it is in all substantial respects confirmed by several eye-witnesses. "He [the Sergeant-at-Arms] said he must use force, and he did so in as gentle a manner as was consistent with the act. Although his proceedings were illegal, his whole conduct in carrying them into effect was marked by a discretion wisely adopted in the excited state of the minds of the dense audience by whom he was surrounded. I almost immediately returned to the seat I had occupied, and while on my way was seized hold of by Colonel Frazer, Collector of Customs at Brockville, and obliged to change my route. Before I had got well seated, one of the members, I think Mr. Boulton[175] moved that the Speaker take the chair. He did so, and I addressed him, stating the insult I had received while in the performance of my duty as a member. To this he made no reply, but said that the Sergeant-at-Arms must know his duty. He then left the chair; the Committee resumed, and I was a second time forced from my seat by violent means. After a little reflection I decided to resume my seat; was a third time forced from it by the Sergeant-at-Arms, and when the Speaker had returned I was placed at the bar, charged by the Sergeant-at-Arms with refusing to leave the House."[176] The Sergeant-at-Arms then reported to the Speaker that he had taken into custody William Lyon Mackenzie for disorderly conduct, and that he had him in charge at the bar; whereupon it was moved by Mr. Samson, and seconded by Mr. Vankoughnet, member for Stormont, that William Lyon Mackenzie, having been brought to the bar of the House by the Sergeant-at-Arms for disorderly conduct, be called upon to state what he might have to say in his defence. To this motion Mr. Perry moved an amendment to the effect that Mackenzie was under no legal disqualifications, and had a right to sit and vote in the House. Then followed a long debate which lasted nearly six hours,[177] and which left the question at issue pretty nearly where it had been. Mr. Perry's motion was lost by a vote of twenty-one to fifteen. A dense crowd occupied the gallery until far into the night, but good order was preserved, the only demonstration being a subdued hiss while Mr. William B. Robinson, member for Simcoe, and brother of the Chief Justice, was speaking. Much rancour was exhibited by some of the Tory speakers, several of whom approved their loyalty by inveighing loudly against the Lieutenant-Governor for permitting the Clerk of the Executive Council to administer the oath to Mackenzie. Allan MacNab declared his intention to vote for committing Mackenzie to the common jail. Casting his eyes up to the gallery, he scowled at the occupants, to whom he referred as a band of ruffians who had come there to intimidate the House. The Lieutenant-Governor, he said, had interfered very improperly, and in a manner no way creditable to himself. He had acted like the Vicar of Bray, and might yet find, like that individual, that by taking both sides of a question he might fall through between. Mr. Samson, member for Hastings, spoke to a similar purport, declaring himself to be in favour of sending Mackenzie to jail without a hearing, and referring to the Lieutenant-Governor in terms of strong censure. "His Excellency," remarked Mr. Samson, "knew perfectly well that Mr. Mackenzie had been expelled by us, and for him to allow the oath to be administered under such circumstances was a most unwarrantable proceeding. He had no right whatever to interfere. I do say he acted a most improper part, and I do not know but this House ought to take it up." When Mackenzie attempted to speak at the bar, William Hamilton Merritt, member for Haldimand, rose in much anger, and exclaimed: "Drown his voice. He ought to be put out of the House, and two men stationed continually at the door to keep him out." Absalom Shade, of Galt, member for Halton, was of the same opinion. The speech of the member for Simcoe, which evoked the hiss from the gallery as already mentioned, was perhaps the most violent of all. He advocated that Mackenzie should be punished and consigned to jail without being allowed to utter "one single word" in defence of his outrageous proceedings. "Mackenzie," said he, "would never have dared to show himself in this House again if he had not had his Excellency's sanction for doing so in his pocket. His Excellency's conduct, I maintain, has been utterly unjustifiable. Indeed, I could not have believed it possible that his Excellency should have thought of taking such a step without consulting the Speaker of this House. He had no right whatever to do so, and now that he is told that we do not recognize such a right on the part of the Executive, I trust he will not persevere."[178] For milder language than this, many of the Reformers had been branded as "traitors," "disaffected," and "republicans," by the very person who now gave utterance to it. The beam in one's own eye is so much harder to perceive than the mote in the eye of one's brother.

The plain fact of the matter is, that no sentiment of either loyalty or disloyalty had anything whatever to do with the treatment to which Mackenzie was subjected at the hands of the Compact and their supporters. It was simply this: Mackenzie was a thorn in their sides. He watched them closely, and exposed their conduct in language which was telling and vigorous, albeit often ill-considered and unbecoming. They felt that their supremacy was menaced, and largely by his instrumentality. His expulsions were due to a fixed determination to keep him out of Parliament, irrespective not only of what was constitutional or unconstitutional, but even of what was right or wrong. To carry out this determination they resorted to all the party devices which a majority in the Assembly placed at their disposal. "From first to last," as Mr. Lindsey remarks,[179] "the proceedings against Mr. Mackenzie were conceived in a party spirit, and carried by party votes. No worse description or condemnation of them could be given, seeing that they were in their nature judicial."

The debate, as has been said, came to nothing. Mackenzie was not permitted to take his seat, and did not again attempt to do so during the session. No new writ was issued for the election of a member by the County of York. Mackenzie's supporters opposed the issue of a writ because such a proceeding would have assumed that the expulsion had been legal, and that there was a legal vacancy in the representation. Others, who were not friendly to Mackenzie, felt that a new election would only lead to fresh complications. York would undoubtedly return the expelled member, and he would again be refused a seat in the House. The session accordingly dragged on to its close without any writ having been issued: a matter of little practical importance, inasmuch as there was to be a general election in the course of a few months. It will thus be seen that the County of York underwent a partial disfranchisement for three years, during which three sessions were held. Before another session came round a new Parliament had come into being, and the political situation had undergone a complete metamorphosis.

During the session of 1833-4, which witnessed the tumultuous scene just described, the Provincial Parliament made one important concession to public opinion by passing an Act to render the Judges of the Court of King's Bench independent of the Crown. It is right to state, however, that this was done in consequence of pressure from the Imperial Government,[180] and not from any wish to remove an abuse of long standing. The Act provided that "the Judges of His Majesty's Court of King's Bench for this Province shall hold their offices during their good behaviour, notwithstanding the commissions which have been heretofore granted to them, or either of them, may specify that the office is to be held during the pleasure of His Majesty; and that from and after the passing of this Act the commissions to the Judges of the said Court shall be made to them respectively to hold during their good behaviour, and that the commissions of Judges of the said Court for the time being shall be, continue, and remain in full force during their good behaviour, notwithstanding the demise of His Majesty, or of any of his heirs and successors." Thus were the Judiciary rendered independent of the humours of the Executive, whereby a long step was taken towards securing a pure administration of justice in the Superior Court of the Province. Had a similar policy been pursued with respect to other gross abuses, the effect upon the public mind would have been most pacificatory. Standing, as it did, alone, the Act exhibited a striking contrast to every other feature of the Executive policy, and it may be doubted whether a solitary inhabitant of the Province was conciliated thereby.