The Story of the Upper Canadian Rebellion, Volume 1

by John Charles Dent

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.