The Story of the Upper Canadian Rebellion, Volume 1

by John Charles Dent

He paid a heavy penalty for his disobedience. On the 4th of January, 1819—the third day after the expiration of the period allowed him for departure—Dickson and Claus issued an order of commitment, under which he was arrested and lodged in Niagara jail, there to remain until the next sitting of the Court of Oyer and Terminer. His pugnacity was by this time fully aroused, and he determined to fight his ground inch by inch. After some delay, he caused himself to be taken before Chief Justice Powell, at York, under a writ of habeas corpus, for the purpose of being either discharged from custody or admitted to bail. The argument was heard on the 8th of February, when several persons of wealth and good social position presented themselves, and offered to become responsible to any amount for his appearance whenever called upon to stand his trial. The attorney who argued the cause on behalf of the prisoner presented three affidavits, made respectively by the Honourable Robert Hamilton, Peter Hamilton, and the prisoner himself, who, in order to render his position doubly unassailable, had meanwhile taken the oath of allegiance. In the first affidavit it was deposed that Mr. Gourlay had been domiciliated at Queenston for more than nine months, and that the deponent verily believed him to be a natural-born subject of Great Britain. By the second it appeared that deponent had known Mr. Gourlay in Britain, where he was respected, esteemed, and taken to be a British subject; "and that he is so"—thus ran the affidavit—"this deponent verily believes is notoriously true in this district." The prisoner's own affidavit set forth that he was a British subject; that he had taken the oath of allegiance, and that he had been an inhabitant of Upper Canada for more than a year prior to the date of the warrant first issued against him. There could hardly have been a clearer case. But the prisoner's enlargement at this time would have been a triumph for him, and would have made him a popular idol, which would not have comported with the policy of the Unholy Inquisition at the capital. He was remanded to jail, the Chief Justice indorsing judgment on the writ to the effect that the warrant of commitment appeared to be regular, and that the Act under which it was issued made no provision for bail or main-prize.

When Mr. Gourlay was first placed in durance at Niagara he was possessed of robust health, a vigorous frame, a seemingly unconquerable will, and a perfervid enthusiasm for the cause of truth and justice. But his sufferings during the ensuing six months were of a nature well calculated to sap the health of the most robust, to rack the frame of an athlete, to tame the wildest enthusiasm, and to subjugate the strongest will. When we read of what the gentle and erudite John Fisher or the eloquent and upright Sir John Eliot underwent in the Tower for conscience sake, the heart's blood within us is stirred with righteous indignation. But we are calmed by the reflection that these things took place centuries ago, and in a far-distant country. In the case of Robert Gourlay we can lay no such flattering unction to our souls. His slow crucifixion was accomplished in our own land, and at a time well remembered by many persons now living among us. Some idea of what he passed through may be derived from his own words already quoted. Further light on the subject may be obtained from noting his demeanour when placed on trial, as the reader will presently have an opportunity of doing.

For some months after his incarceration his fine state of health and exuberant animal spirits kept him from utterly breaking down. His whole nature was up in arms at the wrongs he had sustained, and his pugnacity asserted itself as far as his circumstances would admit of. He obtained the opinions of eminent English lawyers as to the legal aspect of his case. The unanimous opinion of counsel was that his imprisonment was wholly unjustifiable. Sir Arthur Piggott was clear that Chief Justice Powell should have discharged the prisoner when brought before him under the writ of habeas corpus, and that Dickson and Claus were liable to actions for false imprisonment. This opinion was acted upon, and proceedings were instituted against the two last-named personages. But the contest was too unequal. Each of the defendants obtained an order for security for costs, which security the plaintiff, being in confinement, and subject to various disabilities, was unable to furnish. The actions accordingly lapsed, and Dickson and Claus thus escaped all civil liability for their most reprehensible deeds.

The thread of the narrative may now be resumed pretty nearly where it was dropped a few pages back. It was, as has been said, the 20th of August—nearly a year subsequent to the Kingston trial[12]—when the prisoner was finally placed in the dock to undergo the semblance, without the reality, of a judicial investigation into his conduct. He was himself firmly persuaded that the jury empanelled in his case was a packed one. We have no means of knowing all the circumstances whereby he was led to this conclusion, but the idea is not in itself inherently improbable. In those days, and for long after, no man tried in Upper Canada for anything savouring of radicalism in politics could hope to receive fair play. In Gourlay's case there were one or two suspicious features which, to say the least, require explanation. The custom ordinarily adopted by the sheriff, in selecting jurymen, was to draw them in rotation from the various townships in the district. "In my case," says Mr. Gourlay, "it was said that he had varied his course; and not this only, but, instead of drawing from a square space of country, he chose a line of nearly twenty miles, along which it was well known that there were the greatest number of people prejudiced and influenced against me."[13] Mr. Gourlay further declares that it was observed by people in court that in the glass containing the folded transcripts from the jury-list some of the folded papers were distinctly set apart, so as to admit of their being drawn, apparently with fairness, in the ordinary manner. These papers so set apart from the rest, as Mr. Gourlay informs his readers, were "caught hold of" as the twelve which should decide his fate. The names of the jurors, which, so far as I am aware, have not hitherto appeared in print, are worthy of preservation. They were William Pew, John Grier, William Servos, James B. Jones, Ralfe M. Long, David Bastedo, John C. Ball, John Milton, James Lundy, William Powers, Peter M. Ball and John Holmes.

The personal appearance of the prisoner had undergone a woful change during his confinement. Had his own wife seen him at that moment it is doubtful whether she would have recognized her lord. Could it be possible that that frail, tottering, wasted form, and that blanched, sunken-eyed, imbecile-looking countenance were all that were left of the once formidable Robert Gourlay? The sight was one which might have moved his bitterest enemy to tears. His clothing, a world too wide for so shrunken a tenant, hung sloppy and slovenly about him, and it was remarked by a spectator that he had aged fully ten years during the six months that had elapsed since his journey to York in the previous February. His limbs seemed too weak to support him where he stood, and as he leaned with his hands upon the rail in front of him his fingers twitched nervously, while his whole frame visibly trembled. The saddest change of all had been wrought in his once fine eyes. They were of light grey, and their ordinary expression had been more sharp and piercing than is commonly found in eyes of that colour. They had been clear and keen, and expressive of an active, vigorous brain behind them. At present they were wandering, weak and watery, altogether lacking in lustre or expression. They told their sad tale with piteous brevity. The brain was active and vigorous no longer, or, if still active, was so to no definite purpose. The spark of reason was for the time quenched within him. His oratory and his writings were no longer to be dreaded. The man whose large presence had once carried about with it unmistakable evidences of physical and mental power had been reduced to a physical and mental wreck. No man in that closely-packed court-room was now more harmless than he. The Compact had indeed set an indelible mark upon him—a mark which he was to carry to his grave, for during the forty-four years of life that remained to him he was never again the Robert Gourlay of old, and was subject to periodical seasons of mental aberration.

And yet, as he stood there trembling and distraught, with that sea of faces turned upon him, he was not altogether without some glimmering of reason. He was at least passively conscious, like one in a troubled dream, of what was going on around him. He realized, in a misty, dazed sort of fashion that he was on his trial; but, cudgel his memory how he would, he could not recall the nature of his alleged offence. The fact is that, though no stimulant had passed his lips, he was in a state that can only be characterized as one of intoxication. We know, on undoubted authority, that very emotional persons are sometimes intoxicated by a plate of soup, and that invalids have become tipsy upon eating their first beefsteak after convalescence. Mr. Gourlay was endowed with an enthusiastic, exuberant nature, which required to be kept in subjection by abundant exercise. Up to the time of his imprisonment he had led an active out-of-door life, whereby the demon of nervousness within him had been kept at bay. But long-continued confinement in a close cell, deprivation of fresh air and suitable exercise, had hindered his exuberance from finding vent. His mind had been thrown back upon itself. He had not been permitted to confer with his friends, except under such restrictions as made converse intolerable. He had been kept in such a state of nervous tension that he had had no appetite, and had eaten scarcely any food. His sleep had been broken by mental discomfort, and he had sometimes lain the whole night through without a minute's unconsciousness. What wonder that his flesh had sunk away from his bones, and that his frame had lost its elasticity! For some hours every day he had lain prostrate on the bed in his cell, in a state of feebleness pitiful to behold, unable to speak or move, and hardly able to breathe. "One morning," he writes, "while gasping for breath, I besought the gaoler to let me have more air, by throwing up the window. 'You are no gentleman,' said he; 'you gave that letter[14] out of the window, and I will come presently to nail it down.' Happily a friend soon after called upon me, and through his interference the window was put up. The brutal gaoler had never before been uncivil to me ... but there is a spirit throughout animal nature, brute and human, to oppress in proportion as opportunity is safe, and the object defenceless. The wounded stag, and the close prisoner of a Provincial Government, experience similar treatment."[15]

The summer heat, as before mentioned, had been excessive. No rain had fallen for weeks until just before the opening of the assizes, when there had been three days of damp, cool weather. During these three days the prisoner's strength had rallied wonderfully, and he had been able to prepare a written defence, as well as a written protest against the legality of his trial, in case of a hostile verdict. But the exertion had been too much for him in his enfeebled condition, and, as though to add to his miseries, the heat had become more intolerable than before. He had not known how utterly his nerves were shattered until his case had been called for trial, and he had been placed in the prisoners' dock. Hot and stifling as was the air of the court-room, it was balm itself when compared with the vitiated element which he had long been forced to breathe. The stimulus was too great, and he was no longer master of himself. To quote his own words, he became rampant with the fresh air, and was reduced to imbecility at the very moment when he specially needed strength, patience and recollection. Such was his condition when Mr. Attorney-General rose from his seat and proceeded to lay bare the prisoner's unspeakable enormities. It had been determined that no attempt should be made to convict him of sedition, and that the only charge to be pressed against him should be his refusal to leave the Province. The indictment, however, was read and commented upon, doubtless for the purpose of influencing the minds of the audience. It charged, with wearisome iteration and reiteration, that he, the said Robert Gourlay, being a seditious and ill-disposed person, and contriving and maliciously intending the peace and tranquillity of our lord the King within the Province of Upper Canada to disquiet and disturb, and to excite discontent and sedition among his Majesty's liege subjects of this Province—and so forth, and so forth, to the end of the tedious and tautological chapter. The patriotic and disinterested conduct of Dickson and Claus, in performing the imperative but unpleasant duty of committing their personal friend to jail, lest he should undermine the loyalty of the people, was commented upon with periphrastic eloquence. When the official inquiry was put to the prisoner: "How say you, Robert Gourlay, are you guilty or not guilty?" he instinctively replied "Not guilty." Then came the next query: "Are you ready for your trial?" Ready for his trial, indeed! when his helpless condition was apparent to everybody who could catch a glimpse of his tottering frame and his vacant, expressionless face. The unmeaning sound which issued from his lips was taken for an affirmative, and the farce of an impartial investigation proceeded with.

During the whole of these proceedings the prisoner stood like one amazed and confounded; as one who gropes blindly in the dark for what he cannot find. From the various hints scattered here and there throughout his numerous writings, we are able to form some idea of what he underwent during that trying ordeal. His imagination had been rendered more lively by weakness and prostration of body, and he was so stimulated by the change of air from his cell to the court-room that his sensations were chiefly those of a vague and unreasoning delight—delight at the prospect of freedom; delight at the prospect of once more enjoying the luxury of heaven's sunlight unimpeded by the bars of a prison cell; of running rampant through the land, and feeling upon his sunken cheeks the deliciously invigorating air of the open fields. His high spirit had been effectually tamed by that rigid, excruciating torture of close confinement during the dog days, with no other companion than despair. By this time personal liberty and fresh air seemed to him the only things greatly to be desired. He was cognizant of a sensation of thankfulness that his trial had come on at last, even though it should result in his banishment. He rejoiced that he should even thus be set at liberty from his horrible situation.[16] He longed to feel the tide of human life ebbing and flowing around him, and to feel that he himself was not a mere drone in the hive. During the progress of the trial, though he was oblivious of most that was going on in the court-room, memory and fancy were keenly alert, and he rapidly lived over again many episodes of his past life. The dead and gone years rose up before him like the scenes of a rapidly-shifting panorama, even as the past is said to arise before the mental vision of those lying on beds of pain, just before the great mystery of the grave is unfolded to their view. Subjects and scenes long forgotten or seldom remembered presented themselves. There was the little Fifeshire school, with its umbrageous playground, where he had been a merry laughing lad, and where Dominie Angus had given him his first taste of ferule and Fotherup. There was the patched portrait of Cardinal Beaton, in St. Mary's College, at which he and his friend John Dean had been wont to gaze with rapt admiration in the old days left so far behind. There was that odd adventure among the Mendip Hills, during his professional peregrination through Somersetshire more than a dozen years before, and upon which he could not remember that he had bestowed a single thought since his arrival in Canada. There, too, was the drunken type-setter from Bristol, who had taught him the technical marks to be used in making corrections for the press, and whom he had neither seen nor thought of since the publication of his pamphlet in which be had portrayed the sufferings of Bet Bennam and Mary Bacon. Who shall say what other scenes, sad or mirthful, presented themselves among his "thick-coming fancies"? Possibly he recalled the high hopes of his boyhood, when he thirsted to better the condition of the poor, and was almost persuaded that he had been sent into the world expressly to guard their interests against the exactions of grasping landlords. Visions, too, may have arisen before him of his beautiful Wiltshire farm, where the modest daisies peeped above the grass, and the joyous lark sang from the meadow; where he had once been so happy in the companionship of his fond wife and little ones, who at this moment waited in longing expectation for tidings from the absent husband and father. Perchance also he called to mind, at that crisis, his little dead daughter, who had blossomed and faded among the green glades of Wily, and over whose grave the parson of the parish had refused to read the services of the Church.[17] The poor babe had died unchristened, and under such circumstances the rubric forbade the solemnization of funeral rites.

From all such musings he was recalled by the voice of Chief Justice Powell, demanding if he had aught to say ere the sentence of the court should be pronounced upon him. The sentence of the court! For the best part of two hours he had been wool-gathering, and the words beat upon his brain without arousing any just appreciation of their significance. He now once more awoke to the fact that he was on his trial, but he could not grasp the potentialities of his situation, nor could he for the life of him recall the precise nature of the offence with which he had been charged. He did, however, realize that the jury had returned a verdict to the effect that he had been guilty of refusing to leave the Province, pursuant to the order served upon him. By a desperate effort he managed to rally his senses sufficiently to remember that he had been accused of being a seditious person, though whether the accusation had been made yesterday, or the day before, or half a century ago, he was wholly unaware. Turning towards the jury-box, he enquired of the nearest occupant whether he had been found guilty of sedition. Suddenly it flashed across him that he had prepared a defence, together with a written protest against the anticipated verdict. But by no mental exertion of which he was capable could he remember what he had done with the defence, nor could he call to mind the word "protest," although at that moment he had the written one in his pocket. After a moment's struggle to remember what he wished to say, he found himself hopelessly befogged, and abandoned the attempt. Then, to the amazement of all who heard him, he burst out into a loud, strident peal of unmeaning, maniacal laughter—laughter which had no spice of merriment in it, and which was a mere spontaneous effort of nature to relieve the strain upon the shattered nerves. Bench, bar, jury and spectators stared aghast. Such laughter sounded not only incongruous, but sinister, ominous. It was suggestive of the expiring wail of a lost soul. It was more eloquent than any mere words could have been, and spoke with most miraculous organ. Over more than one heart there crept a sort of premonition that a dread reckoning must sometime arrive for that day's work: that Eternal Justice would sooner or later exact a fit penalty for the cruel perversion of right which was then and there being consummated. It would be interesting to know what, at that particular moment, were the innermost sensations of William Dickson and William Claus, both of whom sat within a few feet of their victim, and both of whom had repeatedly received offices of kindness at his hands.

Strange to say, the miserable man's memory was merely suspended, and he afterwards recalled with much clearness the thoughts and reflections which passed through his mind during that delirium of more than two hours. He even remembered the senseless bray of laughter which, to the sympathetic mind, is not the least impressive feature of that iniquitous trial. His overwrought nerves being temporarily relieved by the cachinnation, he regained for a few minutes some measure of composure and sanity. With the return of reason came a returning sense of injustice and oppression. He made a brief but ineffectual attempt to argue the matter with the Chief Justice, who informed him that the facts had been dealt with by the jury, and that he could be permitted to speak only on questions of law. The sentence of the Court was then pronounced. It was to the effect that the prisoner must quit the Province within twenty-four hours. He was reminded of the risk he would run in the event of his presuming to disobey, or to return to Upper Canada after his departure therefrom. He would be liable, according to the words of the Act of 1804, to suffer death as a felon, without benefit of clergy. The Chief Justice finally proceeded to read him a severe lecture upon his past course since his arrival in Canada, and furthermore to give him some excellent advice. He informed him that in this country the law is supreme; that no man can be permitted to run counter to it with impunity; that those who administer the law should be no respecters of persons; that justice is even-handed, and metes out impartially to the poor man and the rich. He advised him to turn his great abilities to practical account, whereby he would no doubt win happiness and distinction. "Perhaps," says George Eliot, "some of the most terrible irony of the human lot is to hear a deep truth uttered by lips that have no right to it." Poor Gourlay was conscious of some feeling of this sort when he heard such truths proclaimed from such lips. To his morbidly-sensitive nature, such irony seemed an aggravation of all he had endured. To think that, after such experiences as had fallen to his share, a Family Compact judge should gravely inform him that in Upper Canada the administrators of the law should be no respecters of persons! that justice is even-handed! To think that such an one should presume to advise him to become practical, with a view to wealth and happiness! It was like the adulterous woman who, on eloping with her paramour, wrote to her husband enjoining him to be virtuous if he would be happy. The incongruity struck the prisoner so forcibly that for a moment he was on the verge of another explosion of sardonic laughter. Before leaving the dock he made one last attempt to draw attention to the treatment he had sustained while in prison. By way of heightening the effect of his narration, he informed the Court that his letters had been suppressed by the sheriff:[18] that while his enemies had been allowed to fill the newspapers with lying diatribes against him, and to prejudice the public mind in view of his impending trial, his own letters to the Niagara Spectator had been rigidly withheld from the light of day, and this by official interference. Chief Justice Powell put the cap-sheaf upon the pinnacle of absurdity by informing him that if he chose he might prosecute the sheriff. Prosecute the sheriff! when he had just been sentenced by the Chief Justice himself to leave the Province within twenty-four hours, and when he was liable to the last penalty of the law in case of his return to prosecute!