Chapter XII: (1838.)

THE TRIALS--PETITION TO THE EARL OF DURHAM.

The rebellion of 1837 had been completely suppressed. To rush to arms against the constituted authorities is sinful, unless the people are ground down by repeated oppression, and even then the morality of a revolt is questionable, unless repeated applications for redress had been refused. Such was the case, then, in Upper Canada. Their petitions to the throne were unheeded, their remembrances ridiculed, their grievances unredressed. Driven to frenzy, they rebelled--not against their amiable and youthful sovereign, but in opposition to the tyranny of Sir Francis Head and the mal-administration of the Family Compact--of the Jones, the Sherwoods, the Macaulays, and the Hagermans--all closely connected by marriage or consanguinity. The insurgents had now been put down; peace and tranquility reigned over the land. Court-martials were being held in Lower Canada, while two of the leading rebels in the Upper Province, Lount and Matthews, were condemned and executed. Executions were of daily occurrence in Montreal. The drama of political vengeance was acted out _a l'outrance_. Mercy was not dreamt of. The law of High Treason was carried out in all its horror. Lieut. Weir's cruel and treacherous murder by Jalbert and his ruffian companions had steeled the hearts of the military judges and of the Executive against the common feelings of humanity. Montreal was baptized in a sea of blood. The minority had triumphed in both provinces. In both, the grievances of the people were overlooked, and their wrongs unredressed. The petty oligarchies in each looked forward for many years to a reign of supremacy, without question or molestation. But they were, fortunately for the country, disappointed. Statesmen at home came to the conclusion that something was wrong. Lord Glenelg roused himself from his sleepy apathy, and Viscount Glenelg from his luxurious ease and voluptuous excesses, and in alarm stayed the effusion of blood--stopped all further executions, sent out a special commission composed of the Earl of Durham, as Governor-General, Sir George Grey, and Sir Charles Gibbs. They recalled Sir Francis Head, and superseded Lord Gosford. Sir George Arthur was appointed Lieut.-Governor of the Province, instead of the notorious Bond Head. The Chief had now lost his best and most accommodating friend. Everything was looking up for the settlers. Lord Durham's name was the household word for radical reform. He was the very man for the aggrieved settlers of McNab.

While these important matters were going on through the country, the Laird was preparing fresh suits. Mr. Allan Stewart (late Treasurer of the Township) had inadvertently cut some timber on one of the unlocated lots in the township. The Chief, hearing of this, at once evoked the aid of the Attorney-General, and commenced _a qui tam_ suit against Mr. Stewart for trespassing on the lands of the Crown.--Stewart at once went and offered the Chief the duty. No; his Lairdship required the timber. This Mr. Stewart refused to give. While this action was in progress, the trial of Donald Mohr McNaughton was approaching. The Chief got his witnesses subpoenaed, and all parties bent their steps to Perth. The Quarter Sessions came on; Col. Alex. Fraser was elected chairman. Donald McNaughton was put in the bar, and indicted on several counts, the principal of which was assault with intent, etc. Daniel McMartin, Esq., conducted the prosecution; Mr. Radenhurst the defence. Manny Nowlan, in his evidence, which was overstrained and exaggerated, did his best to convict the accused. Mr. D. C. McNab, then residing with the Chief--a mere youth--also was a witness, and simply related the facts as they occurred. Donald Mohr was quite satisfied with the latter's evidence and called no witnesses. Col. Fraser, to his credit be it spoken, charged the jury to find a simple assault and entirely ignored that of a more aggravated nature. The jury retired, and brought in a verdict of "Guilty of simple assault of a trifling nature, under strong provocation, and recommends the defendant to the leniency of the Court." The sentence was L2 10s. and costs. The sentence was light, but the costs amounted to L17 5s. Scarcely had the sentence been pronounced, when an execution was placed in the Sheriff's hands against the Chief for the balance of the judgment for the road money. The Chief's horse was at once seized at Cross's stables, and notices of sale freely distributed through the town. McNaughton at once paid his fine and the costs, amounting in all to L19 17s. 9d. Had he been a poor man, he would have been imprisoned for months, or perhaps years, but unfortunately McNab's victim had the means, and he was foiled somewhat in his expectations. The Court rose. The two antagonists met at the door of the Court House.

"See what it is, Donald," exclaimed MacNab, "to oppose your Chief."

"See what it is, Chief," replied McNaughton, "not to pay your debts. Your horse is now seized and will be sold for the road-money."

"Pho, nonsense!" said the Laird, "they would not dare to do that. You better not get up another petition against me."

"That we will, and a dozen of them," was the reply, "now that Lord Durham is coming out."

The Chief stalked away in proud disdain, snorting like a rhinocerous; but he found Donald's words true; his horse was impounded, and he had to borrow the money from Craig-darroch to get him released.

No sooner had McNaughton reached home than a general meeting of the whole township was held at the Flat Rapids, and it was unanimously resolved to memorialize the new Governor-General, and send a special delegate to wait upon Lord Durham, upon his arrival at Montreal. Mr Allan Stewart drafted the petition, and he was selected as the most proper person to present it. He started on his mission in July of this year, after having the petition signed by almost every settler in the township. A few of the timid and vacillating refused to do so. Dread of McNab's retributive anger alone prevented them. They wished the mission every success, but they declined compromising themselves by any overt act of domestic treason. When Mr. Stewart reached Montreal, the Earl of Durham was there. This proud democratic nobleman disdained to enter any house in the city. He chartered the _John Bull_ steamer, which was fitted up sumptuously for his accommodation, and this was his temporary palace. Mr. Stewart intended to present the petition to him in person; but just as he reached the wharf Lord Durham had disembarked, and instantly jumped into a carriage. His _aide-de-camp_, Col. Cooper, seeing Stewart's perplexity, at once went up to him, frankly entered into conversation, took the petition, and promised to present it. Stewart gave him his address. Col. Cooper was as good as his word. Next day Stewart received a reply, stating that as soon as the viceroy reached Toronto, an investigation would be held in these matters, and justice should be done.

In the meantime, while the settlers were getting up active measures of resistance, the Chief was preparing a blow and maturing a plan, which if successful, would have placed the people completely under his power, and which nothing but endless litigation and the intervention of Chancery could render nugatory.

Upon hearing of the appointment of Lord Durham as Lord High Commissioner, he became intuitively aware of his danger, and hastily applied to the Government for a _Trust-Deed_ for 10,000 acres, so that he might transfer to those settlers who had settled with him, the portion of land upon which each had been located. This application reached Toronto two days after the departure of Sir Francis Bond Head. Had that gentleman been occupying the gubernatorial chair, the Trust-deed would have been at once handed over to the Laird; but, luckily for the settlers, Sir George Arthur had arrived, and he was a different sort of character from his predecessor. The Council were for granting what McNab asked. The Lieut.-Governor demurred, and the Chief was summoned to Toronto. He arrived early in June, 1838, and had an immediate interview with His Excellency. Sir George heard his story, and became more determined than ever to refuse his application; it was too much power to put in the hands of one man. McNab might, under the deed, sell to any one who would become a settler, the lands under location to his rebellious followers. Thus argued Sir George, and he reasoned correctly. The application was refused. The Chief then devised another scheme more nefarious than the former, which he was within a hair's breath of accomplishing. The following public documents will speak for themselves, and tell the tale:--

[COPY.]

To His Excellency, Sir George Arthur, K.C.H., Lieutenant-Governor
of the Province of Upper Canada, etc.

The Petition of the McNab Sheweth:

That since it appears to your Petitioner there are some
difficulties entertained by Your Excellency and the Executive
Council as to granting him a Trust-Deed for enforcing the terms of
his agreement with his settlers for the present, and duly
appreciating the motives, he humbly hopes there can be no objection
to ordering him his patent-deed, for the Five-thousand acres
granted this Petitioner originally for settling the Township. And
your Petitioner shall ever pray, etc.

(Signed) ARCH. McNAB.
Toronto, June 28th, 1838.

* * * * *

GOVERNMENT HOUSE, 29th June, '38.

Referred to the consideration of the Honorable, the Executive
Council.

By Command,
(Signed) JOHN MacAULAY.

* * * * *

IN COUNCIL, 29th June, 1838.

Recommended the Patent issue for 5,000 acres, free of expense.

(Signed) R. B. SULLIVAN, P.C.
(Signed) GEORGE ARTHUR.

* * * * *

GOV'T HOUSE, 7th July, 1838.

Referred to the Surveyor-General to report thereon for the
information of the Honorable, the Executive Council.

By Command,
JOHN MacAULAY.

[COPY.]

The lots selected by the Laird of McNab to cover his grant of 5,000
acres made to him in Council, 29th June last, are principally those
lots located in the names of his followers. I was therefore under
the necessity of withholding the description until the pleasure of
Your Excellency could be had thereon.

(Signed) J. RADENHURST.
Sur.-General's Office, 20th July, '38.

* * * * *

IN COUNCIL, 11th Oct., 1838.

The Council cannot recommend a location to the Laird of McNab of
lands located to his settlers.

(Signed) R. B SULLIVAN.
(Signed) G. A.

This was a wholesome scheme of vengeance as flagitious and vindictive as it was heartless and unprincipled. The Laird had, when marking out the lots to be patented to him, inserted in the diagram of the Township that some of the original locatees were dead; others had fled to the United States; and others again had abandoned their lots and gone to reside in a neighboring county; and he was believed. The nefarious intrigue was frustrated by a mere accident. The hand of Providence had interfered to save the poor and oppressed settlers from utter ruin. Mr. T. M. Radenhurst, of Perth, was in Toronto on the 12th July, 1838, attending to some law business, when in a casual conversation with his brother, Mr. J. Radenhurst, of the Surveyor-General's office, the affairs of the Township of McNab came upon the carpet, and Mr. T. Radenhurst informed his brother that the settlers represented as dead and absconded were living upon the lands located to them by the Chief, and for which lots he had applied to be covered by his patent. Immediately upon hearing this intelligence, Mr. J. Radenhurst forwarded to the Lieut.-Governor the remonstrance dated the 13th of July, 1838. All further action in the matter was stayed until inquiries should be made.

In August of the same year Lord Durham appointed a commission to investigate the affairs of the township. It sat in Toronto. Not a single settler was examined. The archives of the Crown Lands Department were alone searched into. Discrepancies were discovered between the original assignment of the township for settlement and the manner in which McNab had carried on the business of his agency. The Chief was condemned. The Commission recommended the immediate deprivation from the Chief of all further power, and that the original grant should be carried out in all its integrity. That these settlers who came to the country at their own expense should receive their lands free, and that those brought out by the Laird should pay for their lands at a valuation, and the proceeds be handed over to the Chief. This report was made in October. Immediately upon its substance being communicated to the Government of Upper Canada, the order for the patent to the Chief on the located lands (that is the lots of the settlers), was rescinded, as appears by the Hon. R. B. Sullivan's and Sir George Arthur's order of October, 1838, already published; but the equitable arrangement proposed by Lord Durham's investigating committee was indefinitely postponed. That nobleman, proud, haughty, and unrestrained in his indignation when aroused, took mortal offence at the attack made upon him by Lord Brougham in the House of Lords. He at once threw up his commission, left Sir John Colborne in his place, and went to England. With the exception of Sir George Arthur, the Laird's friends were now in power. The Family Compact still held the reigns of government, and although they dare not patent the settlers' lands to the Chief, they allowed the question to remain in abeyance.

In the meantime McNab proceeded with his suits at the Fall Assizes. In that one against Mr. Allan Stewart, although the timber had been cut on his own located lot, the Chief was eminently successful, and obtained a verdict of some L40. His suit against Duncan McNab (Isla), also came on, and notwithstanding the law and the Judge's charge, the jury brought in a verdict for the defendant. It was a Dalhousie and Lanark jury that decided the case. They themselves had suffered oppression at home.

They looked to the justice of the case--not to the law of real property--and in spite of the ruling of the judge, the Chief was defeated. It was only a temporary success; yet, such as it was, it diffused unbounded joy throughout the whole township,--McNab was not invincible. He could be conquered by his own weapons. What was accomplished now might be achieved again. Threats of new trials did not deter them from determined resistance. A subscription was got up and placed in a common fund to defray law expenses in opposing the Chief. A regular and systematic organization of the whole township was effected; and this was the state of affairs in December of this year, when the second rebellion broke out. A party of American sympathizers had invaded the country at Windsor. Those in West were soon put down. At Prescott it was different. They had a determined leader end a good general. Von Schoultz had taken possession of the windmill and the house adjoining. The first attacks of the Glengarry Highlanders and the regular troops were repulsed with great loss of life. This was the news that reached the Ottawa. The Chief, as Colonel, called out his regiment. They assembled at Pakenham, 900 strong. A call was made for volunteers. It was almost unanimously responded to by Fitzroy and Pakenham; but the people of McNab held aloof. They would not volunteer under their Chief. They remembered the fate of some of the "Breadalbane Fencibles" under his uncle in 1798. They had volunteered to defend the country against the French,--Lord Breadalbane, as Colonel, and Francis Chief of McNab as Major, tendered the services of the Fencibles to the Government to put down the rebellion in Ireland. An order was made for their departure. They refused to go. It was contrary to their agreement when they entered the service. They openly mutinied, and go they would not. A cavalry and an infantry regiment of the line were drawn up to compel them to march. The Highlanders, instead of submitting prepared themselves for battle and resolved to lie dead on the field of Dunbar sooner than budge a step.--Muskets were loaded on both sides, and the novel spectacle of three British regiments drawn up in hostile array against each other, for the first time presented itself. The officers were obliged to submit. The order was countermanded, and the men returned peaceably to their quarters. Seven of the ringleaders were seized during the night, and were next morning tried by court-martial, and shot. The people of McNab remembered this, and they determined not to give McNab the slightest chance over them. In the evening of the same day, instigated, as some imagined, by the Chief, a fight took place between some of the Orangemen and Highlanders. The poor settlers were looked upon by the ultra loyal as rebels, not only to their Chief, but to the Government; and to punish them severely was now the object of the Irishmen of Pakenham and Fitzroy. Although they numerically surpassed the McNab settlers, about five to one, the Highlanders fought bravely. They were compelled to retreat to Mrs. McFarlane's old house, in which they defended themselves with the utmost resolution. Frying-pans, pokers, tongs, kettles, brooms, and every article of any solidity, were used as weapons of war. The fight lasted till night, when both parties became tired of the contest; some ugly wounds were given and received; and a man of the name of Porter was so badly injured that he died in ten days afterwards. News reached Pakenham that night that the rebels were totally discomfitted, and that Von Schoultz and most of his gang were taken prisoners. This was the final effort of the insurgents, or of their friends. Peace was finally restored, and the home Government earnestly set to work to redress the grievances of the colonies. Hope began to dawn upon the McNab settlers. Their petition to Lord Durham had not only been listened to, but acted upon. McNab's fraudulent scheme of obtaining their lands was completely frustrated, and at the close of this year the people looked forward to a speedy and equitable adjustment of all the matters in dispute between themselves and the Chief; but they had struggles yet before them; McNab was not going to yield up his advantages without a desperate effort. The struggle was yet to be protracted for four years before ample redress could be obtained.