The Story of the Upper Canadian Rebellion, Volume 1

by John Charles Dent

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.

1827.

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]

1828.

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.