Chapter XVI: Part 16

At the time of his appointment the judicial system of the inferior courts was in a very primitive condition. He set himself diligently to work in his own district, and, in the face of many difficulties, succeeded in organizing the system which he has ever since administered with such benefit and satisfaction to the community in which he resides. The position of a judge in a rural district was attended in those days with a good many inconveniences which have disappeared with advancing civilization. The roads were in such a condition that he was generally compelled to make his circuits on horseback. Judge Gowan's district was the largest in the Province, and extended over a wide tract of country, the greater part of which was but sparsely settled. He was frequently compelled to ride from sixty to seventy miles a day, and to dispose of five or six hundred cases at a single session. One of the newspapers published in the county of Simcoe gave an account, several years ago, of some of his early exploits; from which account it appears that he was often literally compelled to take his life in his hand in the course of his official peregrinations. It describes how, on one occasion, he was compelled to ride from Barrie to Collingwood when the forest was on fire. The heat and smoke were sufficiently trying, but he also had to encounter serious peril from the blazing trees which were falling all around him. On another occasion, while attempting to cross a river during high water, his horse was caught by the flood, and carried down stream at such a rate that he might well have given himself up for lost. He saved himself by grasping his horse's tail, and thereby keeping his head above water until he came to a spot where he could find foothold, and so made the best of his way, more than half drowned, to the shore. He was also frequently compelled to encounter dangers from which travellers in the rural districts of Canada are not altogether free, even at the present day--such dangers, for instance, as damp beds, unwholesome and ill-cooked food, and badly ventilated rooms. Notwithstanding all these drawbacks, he was able to say, after he had been a judge for more than a quarter of a century: "I have never been absent from the Superior Courts over which I preside;"--by which he meant the County Courts and Quarter Sessions--"and as to the Division Courts, except when on other duties at the instance of the Government, fifty days would cover all the occasions when a deputy acted for me."

In 1853 Judge Gowan was one of the five judges appointed under the Division Court Act of that year, whereby the Governor was authorized to appoint five judges to frame rules regulating the procedure in the Division Courts. His collaborateurs in this task were the Hon. Samuel Bealey Harrison, Judge of the County Court of the United Counties of York and Peel; Judge O'Reilly, of Wentworth; Judge Campbell, of Lincoln; and Judge Malloch, of Carleton. The rules framed by them have since received many additions, and have been elaborately annotated; but they still form the basis of Division Court practice in this Province. During the same year (1853), Judge Gowan married Anna, second daughter of the late Rev. S. B. Ardagh, Rector of Barrie, and Incumbent of Shanty Bay. After the passing of the Common Law and County Courts Procedure Acts, in 1856 and 1857 respectively, Judge Gowan was associated with the judges of the Superior Courts in framing the tariff of fees for the guidance of attorneys and taxing-masters in the Courts of Common Law. He was also associated with the late Robert Easton Burns, one of the Puisné Judges of the Court of Queen's Bench, and the Hon. John Godfrey Spragge, the present Chancellor, in framing rules and orders regulating the procedure in the Probate and Surrogate Courts. He also rendered valuable service in assisting the late Sir James B. Macaulay and others in the consolidation of the Public General Statutes of Canada and Upper Canada respectively.

In 1862, during Chief Justice Draper's absence in England, special commissions were issued to Judges Macaulay and Gowan, authorizing them to hold certain assizes which the Chief Justice's absence prevented him from holding in person. Later in the same year disputes arose between the Government of Canada and the contractors for the erection of the Parliament Buildings at Ottawa. The disputes were submitted for adjudication to a tribunal of three persons, consisting of the engineer employed by the Government, an engineer named by the contractors, and an Upper Canadian judge to be accepted by both the parties to the dispute. Judge Gowan was the one so accepted. He acted as Chairman to the tribunal, which settled the matter by a unanimous decision.

In 1869 a Board of County Court Judges was formed under the statute 32 Victoria, chapter 23, for further regulating Division Court procedure, and settling conflicting decisions. The Board consisted of Judge Gowan, and Judges Jones, of Brantford, Hughes, of Elgin, Daniell, of Prescott and Russell, and Smith, of Victoria. They began their labours, and promulgated certain rules, in the early spring of the year; but these rules were only temporary, and were followed, on the 1st of July, by other and more elaborately formed regulations, which are still in operation. Judge Gowan was appointed Chairman to the Board, and still retains that position. His large experience, both in the framing of such rules and in carrying them into effect in the courts, have proved very serviceable to the country at large, where the rules and orders promulgated by the Board have all the force of law. During this same year (1869), he was engaged, with other leading Canadian jurists, in consolidating the Criminal Law of the various Provinces, prior to its submission to Parliament to receive the sanction of that Body. Two years later he was appointed one of five Commissioners to inquire into the constitution and jurisdiction of the several Courts of Law and Equity, with a view to a possible fusion. His colleagues in this important inquiry were Judges Wilson, Gwynne, Strong, and Patterson.

Judge Gowan was one of the Royal Commissioners appointed on the 14th of August, 1873, by His Excellency the Earl of Dufferin, to investigate the charges made by the Hon. L. S. Huntington in connection with the Pacific Railway Scandal. His colleagues were the Hon. Antoine Polette, a Judge of the Superior Court of Quebec, and the Hon. C. D. Day, Chancellor of McGill College, Montreal, and formerly a Judge of the Superior Court of Lower Canada. The Commissioners were appointed by virtue of an Act passed during the session of 1868. They were empowered to investigate the charges, and to report thereupon to the Speakers of the Senate and Commons, and to the Secretary of State. Everybody remembers the excitement which prevailed throughout the country at that time. The Commission met at Ottawa three days after the date of its appointment. The examination of witnesses began on the 4th of September, and lasted to the end of the month. Mr. Huntington, though summoned to appear before the Commission and give evidence, did not present himself, nor was any evidence offered in substantiation of the charges made by him on the floor of the House. The labours of the Commission, therefore, were necessarily unproductive, and they simply reported the evidence taken and the various documents filed.

In 1874 Judge Gowan was appointed one of the Commissioners for the revision, consolidation, and classification of the Public General Statutes relating to Ontario; a task which was finally completed in 1877, and which included all public statutory legislation down to the month of November in that year. The Judge has recently received from the Ontario Government a beautifully-executed gold medal struck in commemoration of the completion of that important work.

From the foregoing account of a few of the most important of Judge Gowan's public services, it will be seen that his labours, in addition to his ordinary official duties, have been many and onerous. He has also held various offices which must have involved a considerable amount of labour, and close attention to details. He was Chairman of the Board of Public Instruction from the time of its foundation to its abolition in 1876. He has been for more than thirty years Chairman of the Senior High School Board of the county of Simcoe. He has also held high office in the Masonic Fraternity, and has taken a warm interest in all matters relating to the Episcopal Church, of which he is a life-long member. In 1855 he was largely instrumental in founding the _Upper Canada Law Journal_, and for many years thereafter he contributed to its pages. Notwithstanding all these multifarious pursuits he never looks like an overworked man, but carries his sixty-three years with a remarkably good grace. He continues to take a warm interest in public and social matters. He is revered alike by the public and by the professional men of the county of Simcoe, who are justly proud of his well-deserved fame. About twelve years ago, when he had completed a quarter of a century's service on the Bench, he was presented by the local Bar with a life-sized portrait in oil of himself in his robes. The portrait was accompanied by an enthusiastic address expressive of the respect and esteem in which he was held by the donors. He has been offered a seat on the Bench of the Superior Courts, but has preferred to retain the position which he has so long occupied. During the last eight years he has had an efficient ally in the person of Mr. John A. Ardagh, B.A., who was appointed Junior Judge of the County of Simcoe in 1872.

Judge Gowan resides at Ardraven, a pleasant seat in the neighbourhood of Barrie, overlooking Kempenfeldt Bay, an inlet of Lake Simcoe. He also has a delightful summer residence called Eileangowan, situated on an island containing about four hundred acres, in Lake Muskoka, opposite the mouth of Muskoka River, about an hour's ride from Gravenhurst.

ROBERT FLEMING GOURLAY,

_THE "BANISHED BRITON."_

A few years before his death Mr. Gourlay issued the prospectus of a work bearing the following title: "The Recorded Life of Robert Gourlay, Esq., now Robert Fleming Gourlay, with Reminiscences and Reflections, by himself, in his 75th year." So far as we have been able to ascertain, no portion of the projected work has ever been given to the world; and we may add that nothing like a consecutive account of the life of one of the most remarkable men known to the early political history of Upper Canada has ever been attempted. Any account written at this distance of time, and without access to Mr. Gourlay's family papers, must necessarily be somewhat fragmentary and disconnected. During his lifetime he published several volumes and numerous pamphlets, all of which throw more or less light on certain episodes in his career; but the writer who undertakes to separate the wheat from the chaff, and to weave into a harmonious narrative the rambling, discursive, and often incoherent literary productions of this singular man, will find that he has no sinecure on his hands. It is desirable, however, that the attempt should be made, for Robert Gourlay exercised no slight influence upon Upper Canadian politics sixty-and-odd years ago, and the accounts of him contained in the various histories of Canada are wofully meagre and unsatisfactory. His life is interesting in itself, and instructive by way of an example to egotists for all time to come. It presents the spectacle of a man of good abilities and upright intentions, who spent the greater part of a long life in endeavouring to benefit his fellow-creatures, and who nevertheless, owing to the peculiar idiosyncrasies of his character, was foredoomed to disappointment and misfortune almost from his birth. "Robert," said his father, "will hurt himself, but will do good to others." This judgment was passed when Robert was a boy at school, and his subsequent career fully vindicated the accuracy of the paternal estimate.

Robert Gourlay--who when past middle life assumed the name of Robert Fleming Gourlay--was a native of the parish of Ceres, in Fifeshire, Scotland, and was born there on the 24th of March, 1778. He came of respectable ancestry. His father, a man of liberal education, had studied law, and practised for thirteen years as a Writer to the Signet in Edinburgh; and before the birth of his son, the subject of this sketch, had become the possessor, by marriage, descent, and otherwise, of considerable landed property. Soon after Robert's birth the old gentleman retired from the practice of his profession, and settled upon one of his estates, in the parish of Ceres, where he devoted much of his time to devising and carrying out various agricultural improvements. He also expended large sums of money in improving and beautifying the highways in his parish, and in contributing to the comfort and happiness of his poorer neighbours. His real estates were worth at least £100,000 sterling, and he had a floating capital of about £20,000. Robert received an education commensurate with his station in life. After being taught by several private tutors, he was placed at the High School of Edinburgh. He was also for a short time at the University of St. Andrews, where he was a contemporary and warm personal friend of Thomas (afterwards Doctor) Chalmers. The Doctor has left written testimony to the capacity and moral worth of his fellow-pupil. The latter also seems to have spent a term at the University of Edinburgh. Owing to his being the eldest son, and born to considerable expectations, he was not bred to any regular profession, and his life for some years after leaving school seems to have been passed in a somewhat desultory fashion. He lived at home, and was on visiting terms with the resident gentry of Fifeshire. He took some interest in military matters, and in October, 1799, received a commission to command a corps of the Fifeshire Volunteers. This commission appears to have lapsed, for, when war was declared by Great Britain against Bonaparte in 1803, we find Robert Gourlay volunteering as a private in a troop of yeomanry cavalry. The services of the troop, however, were not required, and, regarding this as a slight to the troop and himself, he withdrew his name from the muster-roll in high dudgeon. In 1806 he was again seized with military ardour, and offered his services to take charge of a military corps and invade Paris, during Bonaparte's absence in Poland. He at this time evidently possessed an energetic, but unpractical and ill-balanced mind, which may have been to some extent due to the nature of his training, but was doubtless chiefly a matter of inherited temperament. Like his father, he was very kind and generous to the poor of Ceres and the neighbouring parishes, and spent much time in making himself familiar with their needs and sympathies. By the lower orders he was greatly beloved, and with reason, for he was actuated by a sincere philanthropy, and contributed largely to the improvement of their condition. He studied the economical side of the poor question with great diligence, and was recognized as an authority on all matters relating to parish rates, tithes, visiting justice business, and pauperism generally. These studies brought him into contact with Mr. Arthur Young, the eminent writer on agricultural questions, whose "Travels in France during the years 1787, '88, '89 and '90," is the most trustworthy source of information regarding the condition of that country just before the breaking out of the Revolution. Mr. Young formed a high estimate of Gourlay, and, at his suggestion, the latter was appointed by a branch of the Government to conduct an inquiry into the state of the poor in England. Mr. Gourlay travelled, chiefly on foot, through the greater part of the chief agricultural districts of England and Scotland, and when he had brought his inquiries to an end, he was pronounced by Mr. Young to be better informed with respect to the poor of Great Britain than any other man in the kingdom. He was consulted by members of Parliament, political economists, parish overseers, and even by members of the Cabinet, as to the best means for reforming the poor laws, and was always ready to spend himself and his substance for the public good.

In 1807 he married, and settled down at Pratis, one of his father's estates in Fifeshire. He had only been thus settled a few months when he got into a quarrel with his neighbour, the Earl of Kellie. The cause of quarrel seems ludicrously small to have produced such results as ensued. Lord Kellie was Chairman of a meeting of heritors held at Cupar on the 15th of February, 1808. The object of the meeting was to pass a loyal address to the King, and to discuss certain details respecting the farmers' income-tax. The address was duly voted, after which it was proposed to adjourn the discussion on the income-tax question until a future day. Mr. Gourlay, who was present, opposed this adjournment with much vehemence. While he was making a speech, in favour of proceeding with the discussion without delay, the Chairman, Lord Kellie, pronounced the meeting adjourned, and vacated his chair. This action Mr. Gourlay construed into a personal insult to himself. He and Lord Kellie were diametrically opposed to each other in their views on this income-tax question, and Mr. Gourlay considered that the Earl had taken an unfair advantage of his position in order to stave off discussion. In this view he was probably borne out by the fact. There can be no question, however, that his anger was altogether out of proportion to the offence. He wrote to Lord Kellie demanding an apology. The demand not being complied with he devoted a fortnight to writing his "Letter to the Earl of Kellie concerning the Farmers' Income Tax, with a hint on the principle of representation, &c. &c." This letter, which occupies sixty-three printed octavo pages, was published in London, at the author's expense, and circulated throughout the county of Fife. Mr. Gourlay's argument on the main question was sound enough, but it could have been stated effectively in two or three pages, instead of in more than twenty times that number. The pamphlet diverged into all sorts of extraneous matters, and was full of personal abuse of Lord Kellie. It did Mr. Gourlay no good in the county, even with the farmers whose cause he espoused, and from this time forward we perceive in all his writings the most unmistakable evidences of an irritated mind, and a temper under very inadequate control.

His health having temporarily given way, he determined to try change of climate, and in the course of the year 1809 he took up his abode in England, as tenant of Deptford Farm, in the parish of Wily, in Wiltshire, an estate belonging to the Duke of Somerset. His Grace had expressed himself as being very desirous of improving the condition of the English farming community, and had for several years made pressing overtures to Mr. Gourlay to settle in Wiltshire, and to give him the benefit of his knowledge and experience. There can be no doubt that Mr. Gourlay was actuated at least as much by philanthropy as by selfish motives in becoming the Duke's tenant. It may be said, indeed, that throughout the whole of his life he was singularly indifferent to mere gain. He had a bee in his bonnet which was constantly stinging him to set himself up in opposition to those in authority, but he was thoroughly honest in his views, and would suffer any trial or indignity rather than sacrifice what he regarded as a righteous principle. In his inability to see any side of a question but his own, he was undoubtedly a consummate egotist, but his egotism was of the intellect only, and a more honourable and single-minded man in all his pecuniary transactions never lived. In almost every battle which he fought with the world he had right on his side, but he had the unfortunate faculty of always putting himself in the wrong. He was critical without discrimination, and though naturally frank and open in his disposition, was morbidly suspicious of the motives of others. He was also infected by an itch for notoriety. It was sweet to him to know that people were talking about him, even if they were speaking to his disadvantage. He was often guided by petulance and passion; seldom or never by sober judgment. His mission in life seemed to be that of a grievance-monger, and no occupation was so gratifying to him as the hunting-up and exposure of abuses. Had his just and liberal principles been allied to a calm intellect and a patient temper, he would have accomplished much good for his fellow-creatures, and might have lived a happy and useful life. But his cantankerous temper and irritable nerves were constantly placing him at a disadvantage. He had not been long settled at Deptford Farm ere he began to agitate for a reform of the poor-laws. It was no secret that the poor-laws were in a most unsatisfactory state, and needed reformation, but Mr. Gourlay's method of advocacy was ill calculated either to produce the desired end or to elevate him in public esteem. He wrote column after column in the form of letters to the local newspapers, in which the most sweeping and impracticable measures were suggested as proper subjects for legislation, and in which the magnates of the county of Wilts were referred to in the most violent and opprobrious language. When the papers refused to publish his communications any longer he issued them in pamphlet form, and circulated them broadcast through the land at his own expense. He got together considerable bodies of the labouring classes, and harangued them with scurrilous volubility about the oppressions to which they were subjected by the "landed oligarchy." He declaimed violently against the Government, which permitted such "reptiles" to "grind the faces of God's poor." He drew up petition after petition to Parliament, in which the landlords were denounced as tyrants, bloodsuckers, and monsters of selfish greed.

This course of procedure could have but one result. It influenced the poor against their landlords, who looked upon Gourlay as a visionary and mischievous demagogue. The Duke of Somerset's ardour for improving the condition of his tenants suddenly cooled, and he began to regret that he had imported this pestilent Scotchman, whom he stigmatized as a "republican firebrand," into the hitherto quiet vales of Wiltshire. The pestilent Scotchman, however, had an agreement for a lease of his farm for twenty-one years, drawn up by the Duke's own solicitor, and had expended several thousands of pounds in improvements and farm-stock. He had faithfully performed all the conditions on his part, and his farm was a model throughout the county. He gained premiums from various agricultural societies for the best ploughing and the best crops. No matter; it was necessary that he should be got rid of, at any cost. A cunning solicitor found a pretext for filing a bill in Chancery against him, and he was thus involved in a protracted and ruinous litigation, whereby it was sought to avoid the agreement on certain technical grounds into which it is unnecessary to enter. After much delay a decree was pronounced in his favour; whereupon he filed a bill against the Duke for specific performance of the agreement. This occasioned further delay and expense, for the Duke's solicitors fought every inch of ground, and resorted to every conceivable means to embarrass the plaintiff. When the suit was finally decided in the latter's favour, he was a ruined man. His farming operations had never been profitable, for his object had been to carry on a model farm rather than to make money. The lawsuits had been attended with great expense, his mode of living had been suited to his condition and expectations, and his charities to the poor had been abundant. Worse, however, remained behind. His father had become bankrupt, and his own expectations of succeeding to an ample fortune were at an end.

The bankruptcy of the elder Gourlay was due to various causes. The close of the war between Great Britain and France had produced a great fall in the price of real estate throughout the United Kingdom. Mr. Gourlay's property consisted chiefly of land, and he was thus shorn of much of his wealth. This might have been borne up against, but he had unfortunately engaged in some injudicious speculations which collapsed at this time, and rendered it necessary that he should pay a large sum of money. His only means of obtaining the requisite amount was by sale of his real estate, and the small prices realized for the latter were absolutely ruinous to the seller. So far as can be judged, he seems to have been an honourable, high-minded man, but--at any rate in his declining years--with little capacity for business. There is no doubt that his affairs were wofully mismanaged, and that a man of more tact and experience might have steered clear of insolvency. The crash came, however, and he was reduced to ruin. This was in 1815. He survived his reverse of fortune about four years, and died towards the close of the year 1819.

Meantime five children--a son and four daughters--had been born to Robert Gourlay, and his wife was in delicate health. After casting about in his mind what to do, he resolved to visit Canada, where he owned some land in right of his wife, and also a block in the township of Dereham, in the county of Oxford, which he had purchased on his own account in 1810. He looked across the Atlantic with wistful eyes, and thought it possible that he might to some extent retrieve his broken fortunes there. Leaving his family on the farm in Wiltshire, where he had then resided for more than seven years, he sailed from Liverpool in the month of April, 1817. The expedition was intended to be merely experimental. In the event of his prospects in Canada turning out equal to his anticipations he purposed to remove his family thither. In any case he did not intend to fight the Duke of Somerset any longer, and before his departure he offered to surrender his tenancy of Deptford Farm, upon terms to be settled by mutual arbitrators. The offer was declined, the Duke foreseeing that he would be able to get rid of his refractory tenant upon his, the Duke's, own terms. Such was the state of affairs at the time of Mr. Gourlay's departure from England.

He arrived in Upper Canada early in June. He was delighted with the appearance of the country, and pronounced it "the most desirable place of refuge for the redundant population of Britain." A man with an eye for abuses, however, could not be long in Upper Canada in those days without being greatly dissatisfied with the management of public affairs. He formed the acquaintance of Mr. Barnabas Bidwell, the father of Marshall Spring Bidwell, and received from that gentleman a great deal of valuable information respecting Canadian history and statistics. He also derived from him a tolerably accurate notion of the evils arising from an irresponsible Executive and the domination of the Family Compact. He found the management of the Crown Lands and the Clergy Reserves in the hands of a selfish and grasping oligarchy, who cared very little for the advancement of the country, and whose attention was chiefly directed to enriching themselves at the public expense. There was corruption everywhere, and some of the officials did not even deem it necessary to veil their unscrupulousness. With such grievances as points of attack, Robert Gourlay was in his element, and he soon began to make his presence felt. He determined to engage in business as a land-agent, and to set on foot a gigantic scheme of emigration from Great Britain to Canada. As we have seen, he had obtained much statistical information from Mr. Bidwell. With a view to supplementing this knowledge, and making the condition of the Upper Province known to the world, he addressed a series of thirty-one questions to the principal inhabitants of each township. Looking over these questions at this distance of time, the reader, unless he be minutely acquainted with the state of affairs in Upper Canada in 1817, will be amazed to think that the seeking for such information should have been regarded by any one as criminal or objectionable. Not one of the questions is unimportant, and the answers, taken collectively, form a photographic representation of the condition of the country which could not readily have been obtained by any other means. They relate to the date of settlement of the various townships; the number of people and inhabited houses; the number of churches, meeting houses, schools, stores, and mills; the general character of the soil and surface; the various kinds and quantities of timber and minerals; the rate of wages; the cost of clearing the land; the ordinary time of ploughing and reaping; quality of pasture; average crops; state of public highways; quantity and condition of wild lands; etc., etc., etc. It will be observed that information relating to such matters was of the utmost importance to the public, and more especially to persons in Great Britain who were desirous of emigrating to Canada. It is also apparent that the particular questions propounded by Mr. Gourlay had no direct bearing upon politics. The stinger, however, was the thirty-first question, which was in the following words: "What, in your opinion, retards the improvement of your township in particular, or the Province in general, and what would most contribute to the same?" In the phraseology of this momentous question, it is not difficult, we think, to detect the cunning hand of Barnabas Bidwell.

Readers of "Little Dorrit" cannot have forgotten the dread and horror of the brilliant young gentleman of the Circumlocution Office, when Mr. Arthur Clennam "wanted to know, you know." He regarded the querist as a dangerous, revolutionary fellow. The horror of Barnacle Junior, however, was not one whit more pronounced than was that of the ruling faction in Upper Canada when this other dangerous, revolutionary customer put forth his famous thirty-one queries. "Upon my soul, you mustn't come into the place saying you want to know, you know. You have no right to come this sort of move." Such was the language of the heir of Mr. Tite Barnacle, and it faithfully mirrors the sentiments of the Canadian oligarchy and their hangers-on towards Mr. Gourlay in the year of grace 1817. Most of them had a pecuniary interest in preserving the existing state of things undisturbed. No taxes were imposed on unsettled lands, and a goodly portion of the Upper Canadian domain was in the hands of members of the Compact and their favourites. Being exempt from taxation, these lands were no expense to the proprietors, and could be held year after year, until the inevitable progress of the country and the labours of surrounding settlers converted the pathless wilds into a valuable estate. If this man Gourlay were allowed to go on unchecked, they would be compelled either to pay taxes or to throw their lands into the market. It was imperative for their selfish interests that he should be silenced. Strenuous exertions were made to prevent the persons applied to from furnishing any answers to the thirty-one queries. In many cases the exertions were successful, for the faction had various means of bringing influence to bear, and were not backward in employing them. The Home District, including the counties of York and Simcoe, contained numerous large tracts of land forming what is now the most valuable part of the Province, but which were then lying waste for want of settlement. The owners were in nearly every instance subject to Compact influence. They would not sell at any price, and the country was kept back. Owing chiefly to the efforts of Dr.--afterwards Bishop--Strachan, not a single reply was received by Mr. Gourlay from this District. Many replies came in from other parts of the Province, but in a few instances the stinging thirty-first question was ignored or left unanswered. In cases where it was replied to, the almost invariable tenor of the reply attributed the slow development of the townships to the Crown and Clergy Reserves, and to the immense tracts of land held by non-residents. A reply received from Kingston may be taken as a sample of the prevalent sentiment in the frontier townships wherein public opinion was unshackled. It says: "The same cause which has surrounded Little York with a desert creates gloom and desolation about Kingston, otherwise most beautifully situated; I mean the seizure and monopoly of the land by people in office and favour. On the east side, particularly, you may travel miles together without passing a human dwelling. The roads are accordingly most abominable to the very gates of this, the largest town in the Province; and its market is supplied with vegetables from the United States, where property is less hampered, and the exertions of cultivators more free."

But at this juncture, Mr. Gourlay's unfortunate faculty for putting himself in the wrong asserted itself, and seriously retarded his efforts for the public good. His pugnacity, querulousness and egotism displayed themselves in various ways, and rendered him offensive even to many persons who would willingly have been his friends. He wrote violent letters to the newspapers, wherein Dr. Strachan and everybody else connected with the Executive were stigmatized in terms of which no sober-minded citizen could approve. The Reverend Doctor was referred to as "a lying little fool of a renegade Presbyterian." Other prominent personages came in for scurrility equally coarse. This sort of writing, however, was not without its effect upon a certain class of minds, more especially as the grievances complained of were patent to all the world. A feeling of hostility against those in authority began to make itself apparent throughout the Province, and at the next meeting of the Legislature the Assembly passed a vote in favour of a commission of inquiry into the state of public affairs. The Family Compact were alarmed, and before any steps could be taken towards entering upon the proposed inquiry they prevailed upon the Governor, Francis Gore, to prorogue the House. For this prorogation there was not the slightest legitimate ground, as a great deal of the public business was necessarily left unfinished. The alleged pretext for the step--a dispute with the Legislative Council--was not looked upon with more favour than the act itself, for the dispute was believed to have been artificially fermented with a view to lending some sort of colour to the prorogation. The popular discontent was very great, and made itself heard in unexpected quarters. Mr. Gourlay eagerly availed himself of this discontent, and suggested through the public press that a convention should be held at York, for the purpose of drafting a petition to the Imperial authorities. He himself drafted a petition to the Prince Regent as a basis, to be approved of by the proposed convention. The manuscript was submitted to a meeting of sixteen respectable persons, among whom were six magistrates. These gentlemen approved of the contents, and had the entire petition printed in pamphlet form. Several thousand copies of it were gratuitously circulated throughout the Province, and it was also placed on sale in book-stores in the various towns and villages. Its contents produced considerable effect on the public mind, which had become thoroughly aroused. The people caught at the suggestion of a convention, which was in due course held; but in the meantime the Executive had also become thoroughly alarmed, and they now determined that this interloping Mr. Gourlay should be silenced or got rid of. They bestirred themselves to such good purpose that the action of the convention came to nothing, it being arranged that the subject-matter of the petition should be inquired into by the Lieutenant-Governor and the House of Assembly. The Executive next instituted proceedings against Mr. Gourlay. In the draft petition published by him, there was a passage which reflected very strongly upon the way in which the Crown Lands were administered. As there is no more faithful picture of the state of the Province to be found, and as the work containing it has long been practically unprocurable for general readers, we reproduce the passage entire: "The lands of the Crown in Upper Canada 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 on 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 till 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."

This passage was fastened upon as libellous, and a criminal prosecution was set on foot against the author. He was arrested, and on the 14th of August, 1818, thrown into jail at Kingston, where he remained until the day of his trial, which was the 20th. He conducted his own defence, and, although the Attorney-General, John Beverley Robinson, pressed hard for a conviction, he was triumphantly acquitted. A few days afterwards he was again arrested and placed on trial at Brockville for another alleged libel contained in the petition. He was once more successful in securing his acquittal. These triumphs roused his egotism to a high pitch. He became for a time a sort of popular idol, who had suffered grievously for endeavouring to obtain justice for the people. Public meetings and banquets were held in his honour, and he was in his element. His complacency, however, was doomed to receive a severe check. The Compact, with Dr. Strachan at their head, finding it impossible to convict him of libel, resolved that he should literally be driven out of the country. He was represented to the public as a man of desperate fortunes and vicious character. Rumours were set afloat that he entertained projects of rebellion, and that he had attended a treasonable meeting in England prior to his arrival in Canada. As matter of fact, Mr. Gourlay, both then and throughout the whole course of his life, was a loyal man, but his effervescing radicalism seemed to lend some sort of colour to the accusation. The word "convention," too, under which name the meeting at York had been summoned, and which word was often in Mr. Gourlay's mouth, had a republican sound about it which was not grateful to the ears of the loyal Upper Canadians. The Assembly also modified its hitherto kindly feelings towards him, and regarded the holding of "conventions" as an unconstitutional infringement of its own prerogatives. In the meantime Sir Peregrine Maitland had succeeded to the Lieutenant-Governorship. It was a matter of course that he should have no sympathy with a man of Mr. Gourlay's views, and the latter had prejudiced the new Lieutenant-Governor against him by a foolish letter, in which he had offered to wait upon the representative of royalty and give him the benefit of his knowledge and experience of Canadian affairs. When Parliament met on the 12th of October, the Lieutenant-Governor's speech contained a sentence that was well understood to be levelled directly at Gourlay. "In the course of your investigations,"--so ran the sentence--"you will, I doubt not, feel a just indignation at the attempts which have been made to excite discontent, and to organize sedition. Should it appear to you that a convention of delegates cannot exist without danger to the Constitution, in framing a law of prevention your dispassionate wisdom will be careful that it shall not unwarily trespass on the sacred right of the subject to seek a redress of his grievances by petition." This cunningly-constructed sentence, in which the hand of Dr. Strachan is sufficiently apparent, was well calculated, not only by its characterization of Mr. Gourlay's projects, but by its covert flattery of the Assembly, to increase the hostility of the latter against the former. And thus the injudicious champion of popular rights found himself in conflict with the entire Legislature. The Assembly--the special guardian of popular rights--in its reply to the speech of the Lieutenant-Governor, even went so far as to use these words: "We lament that the designs of one factious individual should have succeeded in drawing into the support of his vile machinations so many honest men and loyal subjects of His Majesty." Two or three weeks later, a Bill was introduced and passed to prevent the holding of conventions. It was introduced by Mr. Jonas Jones, the member for Leeds, a man whose public career and conduct, as Mr. Lindsey truly remarks, present as few points on which admiration can find a resting-place as any Canadian politician of his time.[14] It was significant of the state of public opinion that only one vote was recorded against this measure. It was equally significant of the fluctuating nature of public opinion that when the Act was repealed, two years later, there was only one vote recorded against the repeal. In the latter instance the dissenting vote was given by the Attorney-General, Mr. John Beverley (afterwards Chief Justice) Robinson.

A good many people still championed Mr. Gourlay's cause, but they were for the most part unconnected with politics, and unable to materially assist him when he stood most in need of powerful aid. The time of his chastening was near at hand. By a statute passed on the 9th of March, 1804, known as "the Alien Act," and intended to check the designs of disloyal immigrants from Ireland and the United States, authority was given to the Governor, Lieutenant-Governor, members of the Legislative and Executive Councils, and to the Judges of the Court of Queen's Bench, to issue a warrant for the arrest of "any person or persons not having been an inhabitant or inhabitants of this Province for the space of six months next preceding the date of such warrant,. . . or not having taken the oath of allegiance,. . . who by words, actions, or other behaviour or conduct, hath or have endeavoured, or hath or have given just cause to suspect that he, she, or they, is or are about to endeavour to alienate the minds of His Majesty's subjects of this Province from his person or government, or in any wise with a seditious intent to disturb the tranquillity thereof, to the end that such person or persons shall forthwith be brought before the said person or persons so granting such warrant;. . . and if such person or persons. . . shall not give. . . full and complete satisfaction that his, her, or their words, actions, conduct, or behaviour had no such tendency, or were not intended to promote or encourage disaffection. . . it shall and may be lawful. . . to deliver an order or orders, in writing, to such person or persons,. . . requiring of him, her, or them, to depart this Province within a time to be limited by such order or orders, or if it shall be deemed expedient that he, she, or they, should be permitted to remain in this Province, to require from him, her, or them, good and sufficient security, to the satisfaction of the person or persons acting under the authority hereby given, for his, her, or their good behaviour, during his, her, or their continuance therein." Under this statute, Mr. Gourlay, who was just about to establish his land agency, and was negotiating for a suitable house at Queenston, in which to commence business, was on the 21st of December, 1818, arrested by the Sheriff of the Niagara District, and carried before the Hon. William Dickson and the Hon. William Claus. These gentlemen were members of the Legislative Council, and bitter enemies of the unhappy man who appeared before them, though they had at one time professed much esteem for him. They adjudged that he should depart from the Province on or before the first day of January, 1819; that is to say, within ten days.

There can be but one opinion about this proceeding. It was not merely a glaring instance of oppression, but was founded upon downright rascality. In the first place, the Act of 1804 was an unconstitutional measure, under which it is doubtful whether any one could have been legally punished. But, even had it been valid, it was intended to apply to aliens, and not to loyal subjects of Great Britain, such as Mr. Gourlay undoubtedly was. He had never been asked to take the oath of allegiance, and his persecutors well knew that his loyalty was at least as sincere as their own, and far more unselfish. Moreover he had, as both Dickson and Claus were well aware, been a resident of the Province for nearly a year and a half, whereas the Act applied only to "any person or persons not having been an inhabitant or inhabitants of this Province for the space of six months." By what bribe or other means an unprincipled man named Isaac Swayze, who was a member of the Legislative Assembly, was induced to make oath that he verily believed that Robert Gourlay had not been an inhabitant of the Province for six months, and that he was an "evil-minded and seditious person," will probably never be known. An information from some quarter it was necessary to have before any decisive action could be taken, and it was furnished by this man Swayze, who had been a spy and "horse-provider" during the Revolutionary War, and who now proved his fitness for the position of a legislator by deliberate perjury.

The allotted term of ten days expired, and the proscribed personage had not obeyed the order enjoining him to quit the Province. "To have obeyed this order," says Gourlay, "would have proved ruinous to the business for which, at great expense, and with much trouble, I had qualified myself; it would have been a tacit acknowledgment of guilt whereof I was unconscious; it would have been a surrender of the noblest British right; it would have been holding light my natural allegiance; it would have been a declaration that the Bill of Rights was a Bill of Wrongs. I resolved to endure any hardship rather than to submit voluntarily. Although I had written home that I meant to leave Canada for England in a few weeks, I now acquainted my family of the cruel delay, and stood my ground." On the 4th of January, 1819, a warrant was issued by Dickson and Claus, under which he was arrested and lodged in jail at Niagara. On the 20th of the month he obtained a writ of Habeas Corpus, under which he appeared before Chief Justice Powell, at York, on the 8th of February. The Chief Justice, after hearing a short argument by an attorney on Mr. Gourlay's behalf, declined to set him at liberty, and indorsed on the writ a judgment to the effect that "the warrant of commitment appearing to be regular, according to the provisions of the Act, which does not authorize bail or mainprize, the said Robert Gourlay is hereby remanded to the custody of the Sheriff of the District of Niagara, and the keeper of the jail therein, conformable to the said warrant of commitment." The poor man was accordingly remanded to jail, where he languished for eight weary months. For some time his spirits remained buoyant, and his pugnacity unconquered. He obtained written opinions from various eminent counsel learned in the law. These counsel were unanimous in pronouncing his imprisonment illegal. Sir Arthur Pigott declared that Chief Justice Powell should have released him from imprisonment under the writ of Habeas Corpus; and further expressed his opinion that Gourlay had a good ground of action for false imprisonment against Dickson and Claus. This opinion was forthwith acted upon, and civil proceedings were instituted against both those persons. The plaintiff's painful position, however, compelled him to fight his enemies at a great disadvantage. An order was obtained by the defendants, calling upon him to furnish security for costs; which, being in confinement, he was unable to do, and the actions lapsed.