CHAPTER 5

A Briton Banished and a Union Averted

A British traveller visiting Upper Canada not long after the war noted that the conflict formed an “important era” in its history, so much so that the people dated every occurrence as having happened “before or after the war.” A Kingston newspaper editor saw something more significant: “the proofs of loyalty everywhere given…and even by the American emigrants” had confirmed and strengthened the population in their British allegiance; “the line of separation” between the province and its republican neighbour “was more distinctly drawn.”¹

Suspicion of American republicanism increased generally throughout the province, but it was at its highest among those in or close to the government, who were more than ever determined that all policy must be aimed at maintaining that line of separation. Men such as John Strachan and his former pupil John Beverley Robinson, who were to provide the conservative leadership of the coming generation, emerged from the conflict convinced that they had narrowly escaped absorption by the United States. Their still-infant province was fated to go on living beside “a powerful and treacherous enemy” who would seize the first opportunity to repeat the attack. The war had shown how essential it was to hold fast to the British tie as the only sure means of protection. Indeed, the great worry of Robinson, Strachan, and others like them was that the British might abandon them or, out of ignorance of North American conditions, take some heedless action that would put the province in jeopardy. For instance, in 1815 and 1816, when there was talk of transferring the capital from York to Kingston, the move was vehemently opposed on the ground that Americans would interpret it as the first stage of withdrawal from the interior.² To the Tory mind of Upper Canada the British needed almost as much watching as did the Americans.

The political and psychological consequences of the war proved to be far more significant than its physical effects. Apart from distress in the Niagara area and in some of the western counties the province had suffered little injury that could still be discerned a few months after the return of peace. The war years had in fact been a time of considerable prosperity, when large sums of money had been spent to carry on the conflict. Army bills, issued on the authority of the government of Lower Canada and backed by the British government, had provided Upper Canada with its first adequate circulating medium, paper money that was redeemed at par. Farmers had received high prices for their goods, and merchants had flourished from the business of supplying the armed forces. In some instances roads had been improved in order to facilitate the movement of troops. It was generally accepted by contemporaries that the war although “in some cases injurious to individuals was a benefit to the Country at large.”³

After this wartime prosperity the province had to a great extent to fall back upon its own resources as plans were made for the future. The first, primitive stages of pioneer settlement had been left behind, and everyone looked forward to a period of more rapid growth, to an expansion of settlement and the beginning of major works of public improvement. The first regular stage-coach lines between Kingston and York began to run in 1817, and in that same year the first steamboat appeared on Lake Ontario. Banking schemes were projected, as will be seen later.

Nevertheless, the years just after the war were a time of economic frustration for the people of Upper Canada, not made easier by the knowledge that their republican neighbours were “going ahead” at a rapid rate. Prices fell after the army ceased to be a customer. Hard money became scarce, and there was no adequate paper money to take the place of the army bills. A post-war depression, which also hit the United States in 1819, lay at the root of many of the irritations and discontents evident in Upper Canada shortly after the war.

In these circumstances many in the province looked hopefully to the mother country for further assistance, with attention being concentrated on the subject of claims arising out of the war. Although losses were not great for the province as a whole, they had been severe in some sections. If prompt and adequate payment were made, a fillip might be given to post-war economic adjustment. The British government, which had just fought a much longer and far more terrible war and was facing post-war problems beside which Upper Canada’s were puny, hoped at first that the claims might be met from the proceeds of the sale of the confiscated estates of traitors. Hearings were held, and an original total of some £400,000 was arrived at as representing the claims to be paid. It was soon obvious that the confiscated estate sales would not begin to cover the claims, even when they had been drastically scaled down, and the province renewed its pleas for compensation from the mother country. Complicated and protracted negotiations dragged on for many years to come before partial payments were forthcoming. The failure to make prompt grants of lands promised to certain categories of militia also led to irritation.

Apart from the war claims the leading focus of post-war dispute lay in the decision to discourage further American immigration into the British provinces. This decision was considered by imperial and provincial officials to be essential to the security of the provinces, but in Upper Canada it aroused much general resentment, despite the antagonism toward the United States, born of the war.

Well before the war ended military and political leaders voiced concern over the number of residents of doubtful loyalty who were fast turning Upper Canada into “a compleat American colony.” If the influx were resumed with the return of peace, it would inevitably alienate the province “from the Mother Country and betray it…to the incroaching power of the United States.”⁴ Accordingly, General Sir Gordon Drummond, administering the government of Upper Canada, heartily approved a plan broached to him by Lord Bathurst (Secretary of State for War and the Colonies, 1812–27) of assisting Scottish Highlanders to settle in the province. These people were determined to emigrate, and the British government was now ready to offer them inducements to go to the colonies rather than to the United States. Drummond reported that he would be glad to have Scottish immigrants in “a Country already too much inhabited by Aliens from the United States, very many of whom are avowedly disaffected to the British Government, and as many more of doubtful principles.” The Scots should be established close to the American border, thus providing “a kind of defence…of the very best materials and people loyal and attached to the Government, who would afford at the same time, a counterpoise to that ill disposed and disaffected part of the population, which it is so much regretted has crept from time to time, during a Series of Years into it.” Drummond also wanted more Anglican clergymen brought into the province to counteract the influence of the “itinerant fanatics, enthusiastic in political as well as in religious matters,” who “were in the habit of coming hither from the United States,” and who “succeeded but too well in disseminating their noxious principles.”⁵ Considerations of defence and security were uppermost as future settlement policies for the province were being fashioned.

As the war drew to an end Bathurst’s plans became more concrete. First, it was arranged to demobilize some of the British regular troops, especially those with families, at the end of the war, and to give them lots along the frontier as a barrier against American invasion or peacetime encroachment. Second, a number of “industrious families” would be sent out with the spring fleet of 1815 as a first experiment in government-sponsored colonization. Such settlers would come mainly from Scotland and Ireland (in fact, they all came from Scotland), and would be given “every encouragement and all reasonable assistance” to ensure their establishment in Upper Canada. Finally, Bathurst announced a new policy, which was to have far-reaching consequences, when he ordered that no land was to be granted “to Subjects of the United States,” and that every endeavour was to be made to prevent their settling in either of the Canadas.⁶

The details of the new settlement scheme became known to the government of Upper Canada in the spring of 1815. Free passage on the ships being sent out to bring back the troops would be granted to emigrants and their families. Heads of families would be given one hundred acres of land, as would male children when they reached twenty-one years of age. Free rations would be provided for a limited period, while axes and other necessary implements would be furnished at a reduced price. The government promised, under certain circumstances, to pay salaries to clergymen and schoolmasters accompanying emigrants. As a means of discouraging anyone from going on to the United States after receiving a free passage across the Atlantic, deposits were to be required, to be returned after two years to settlers who were still living on the land that had been allotted to them. In this program the British government professed that it was not trying to stimulate new emigration, but simply to divert to the Canadas that “surplus population” which would otherwise proceed to the United States. Drummond was instructed to give careful attention to the settlers, to make certain that they would see the advantages of staying in the provinces.⁷

Although the government of Upper Canada was kept informed of these plans, their actual implementation was assigned to military officers responsible to the governor-in-chief, in Lower Canada, since the whole project was military in purpose. Francis Gore, back in the upper province, thus had to watch a settlement program for which he had to provide land, but over which he had little control and which he felt to be an invasion of the rights of his government. There was soon friction between the two provincial authorities, and little had been done to prepare for the first immigrants when they arrived at the end of the summer. Eventually, however, a range of townships west of the Rideau River was made available, and military and Scottish settlers moved onto this rather rocky and swampy land in the spring of 1816. Many of the soldiers, as might have been expected, soon drifted away, but the Scots around Perth proved to be tenacious, building there a sturdy and enduring community. This first experiment in imperial colonization had a very limited success for the expense it involved, and Parliament became very wary of assisted emigration schemes. It was also viewed with much suspicion by the government and leaders of Upper Canada, who did not like a settlement project which was under the supervision of outside military officers and a cause of considerable expense. The military objective was also somewhat lost sight of, although it was argued that the country along the Rideau should be protected since the Ottawa-Rideau waterway was planned as a military route connecting Montreal and Kingston. The Perth settlement proved to be no more military in character than any other community in the province.

As well as assisting with the military settlements, Gore had to carry out Bathurst’s instructions to keep American citizens out of the province. This was an order with which the Lieutenant-Governor was in full sympathy, but at first he was nonplussed as to how it should be obeyed. He found, shortly after his arrival in September 1815, that Americans were once again “pouring into the Province,” while he had no legal power to halt the influx except that provided by a provincial sedition act (of which more will be heard later) authorizing “the dismissal from the Province upon very slight grounds, of all such as have not been resident six months, or taken the oath of allegiance.” The direct and immediate use of this statute was not contemplated, but on the advice of the executive council he ordered the magistrates throughout the province not “to administer the Oath of Allegiance to any Person not holding Office in the Province, or being the Son of a U.E. Loyalist, without a special authority in such case” from the lieutenant-governor’s office. Thus, American citizens would always be open to prosecution under the sedition act; more important, probably, was the fact that, since it was impossible to secure a land title without taking the oath of allegiance, the order would be effective in discouraging further American immigration. The magistrates were also asked to report on the number and character of aliens from the United States or elsewhere coming into the Province “to reside therein, in any Capacity, either as Preachers, School masters, Practitioners in Medicine, Pedlars or Labourers.”⁸

But the provincial authorities were convinced that it was not enough merely to stop new immigration. Many residents who had previously taken the oath of allegiance, and many who were natural-born subjects, were returning from wartime sojourns in the United States as if nothing had happened. These too must be kept under supervision. Also, the U.E. List must be kept free of the stigma of disloyalty. An order went out from York stating that the sons and daughters of Loyalists were not to receive their allotments of land until they could prove “that the Parent retained his Loyalty during the late War, and was under no suspicion of aiding or assisting the Enemy – and if a Son, then of Age, that he also was Loyal during the late War, and did his duty in defence of the Province – and if a Daughter of an U.E. Loyalist married, that her Husband was loyal, and did his duty in defence of the Province.”⁹

At first, these measures of the imperial and the local executive authorities had the support of the provincial legislature. When the wartime Assembly met for its last session in February 1816, it showed an eager willingness to be co-operative in all matters. It seconded the efforts of the executive against the disloyal by passing a bill to punish residents who, having taken the oath of allegiance, had left the province during the war and had now returned. This bill was so harsh that the legislative council insisted on softening it in some respects.

Moreover, the members were in a generous mood, of a kind unparalleled in provincial annals. They voted £500 to the retiring Speaker of the Legislative Council, Chief Justice Thomas Scott. They provided Gore with a provincial aide-de-camp and then, unanimously, voted £3,000 to buy him a service of plate in gratitude “for his firm, upright, and liberal administration.” (He had been back in the province for six months, after being away throughout the war years.) They provided for the appointment of a provincial agent, to reside in England, and to be named by the lieutenant-governor. (He named his own secretary.) And they capped all this by voting £2,500 to defray the expenses of the civil administration – the first such appropriation in the province’s history. In all this, as well as in the other measures of the session, there was little or no hint of party divisions or party spirit. Here, if ever, was a loyal representative body, readily supporting and advancing the measures of the executive branch.

But such happy accord was not an accurate reflection of contemporary opinion. This Assembly, elected back in 1812, was apparently little aware of the feelings of dissatisfaction and frustration which were swirling about the province.

These feelings could not find expression in any organized movement of political protest, which as yet did not exist. Instead, the first indications of opposition to official policies came from men of some prominence, who were acting only for themselves and concerned only with their own personal interest. They were large landholders, speculators, as Gore called them, who objected to the order aimed at excluding American settlers. The best known of these, William Dickson, was actually a member of the legislative council, as well as a commissioner appointed to administer the oath of allegiance. When the decline of immigration from the United States began to affect sales of his land, he flatly refused to obey Gore’s order to withhold the oath of allegiance from Americans. Such people were the only possible purchasers of the large tracts of land owned by Dickson and men like him. There was no immediate prospect that many settlers would be received from Britain, and those who might come would be too poor to buy much land from private owners. Americans with money in their pockets, however, might be attracted. Although Dickson and his friends were as anxious as any official that Upper Canada remain a British province, they saw no reason to fear an influx of hard-working American freeholders, who were ready to take the oath of allegiance. They represented, in fact, the only immediate means by which the province could be built up.

As punishment for his defiance of the Lieutenant-Governor, Dickson’s name was removed from the commission for administering the oath. But the subject was taken up during the first session of the new Assembly, in the early spring of 1817. The prime mover now was Colonel Robert Nichol, who represented Norfolk County along Lake Erie. Nichol was far from being a radical or a spokesman for frontier democracy. He had an outstanding record of war service, and his considerable property interests in the Niagara area had suffered heavy damage from American raids. In the Assembly he had always sturdily supported the policies of the executive. But by 1817 he was both exasperated at Gore’s refusal to back his claims for reward and compensation arising out of the war and in sympathy with his friend Dickson on the subject of American immigration. He now began a career of criticism of the administration which lasted intermittently until his death in 1824.

In the session of 1817 he responded to Gore’s request for a larger supply bill than usual by securing the establishment of a committee to investigate the state of the province. The resolutions of this committee, apart from one concerned with land grants for the militia, expressed strong opposition to the whole policy of keeping American settlers out of the province. The first three, which merely pointed to the previous encouragement of American immigration, were approved by the Assembly, in a two-to-one vote, but before the remaining resolutions could be introduced, Gore hurriedly prorogued the legislature. He professed to believe that their real purpose was to transfer “this devoted Province to the United States of America,”¹⁰ a remark that revealed an attitude characteristic of nearly all official reaction to criticism in these years.

The resolutions kept from the Assembly touched on matters that were close to the hearts of many residents of the province: the need for more population and the injury sustained by keeping out Americans, the obstacles to settlement posed by the Crown and Clergy Reserves, and the desirability of putting these up for sale instead of continuing the current leasing policy.¹¹ There was no quarrel, as yet, with the purposes of the Reserves, simply a desire that their extent be reduced.

But Gore saw the resolutions as expressing the cupidity of land speculators, who were hoodwinking ignorant members of the Assembly into supporting them. He assured Lord Bathurst that if the influx of Americans were not restrained “the next declaration of Hostilities by America, will be received by Acclamation, and the Loyal population of the Colony, will be reduced to defend themselves from the disloyal.”¹² Shortly after sending off this dispatch Gore once again left the province, this time never to return, and it was his successors who had to deal with the thorny problems raised by the American-born settlers in the province.

Another indication of the irascible and touchy atmosphere in post-war Upper Canada is found in the events of the following session of the legislature, early in 1818. This time the controversy was purely constitutional in form, and to some extent in substance. It was the old problem, fought over so many times in British constitutional history, of the power of the purse. In the long run there could be only one result in Upper Canada, as elsewhere: the complete victory of the representative house; but here, as elsewhere, the victory was not immediately or easily won. And here, too, the contest was not simply over constitutional forms, but also over political and economic interests which stood to gain or lose by the outcome.

The controversy came into the open when the legislative council undertook to amend a bill sent up to it from the Assembly regulating trade with the United States. The question was argued in purely constitutional terms, with the council maintaining that since it had the power to reject money bills (which this one was, in part), it could amend them as well. The council also asserted, correctly, that its amendments were in line with imperial trade legislation. The Assembly, however, with the aggressiveness of colonial popular bodies, claimed that it had all the powers of the British House of Commons in the matter of money bills, and denied the right of the council to amend them in any respect. Back of the contest lay two conflicting points of view: on the one hand, there was the mercantile wish to provide easy entry of American goods in order that these might be attracted down the St Lawrence; on the other, the agrarian fear, represented in the Assembly, that such entry would pose dangerous competition to the farmers of the province.

Presently, relations between the two Houses were so strained that all normal communication between them ceased, bringing the business of the session to a full stop. The Assembly, as far as can be ascertained from its Journals, was unanimous in its stand, and ready to open up the whole question of provincial finance, much of which was not under its control. It was only two years since the provincial legislature had been asked to contribute to the support of the civil government, and it was now apparent from the accounts that some of the money voted in 1816 and 1817 had been used for purposes (such as pensions to certain retired officials) which did not have the approval of the Assembly. If that body were to vote money, it should be used in ways the Assembly favoured. With no intercourse between the Houses, the Assembly voted a supply message of its own, sent directly to the Administrator, who refused to accept it without the concurrence of the legislative council.

The Assembly’s grievances were collected into an address, directed to the Prince Regent, which used Simcoe’s statement of 1792 that the province enjoyed a constitution which was the very image and transcript of that of Great Britain to buttress its claim in the matter of money bills. At the same time the legislative council was criticized as being too closely identified with the executive, since many members of the one council also had seats in the other. This address was the last straw for Samuel Smith, acting as Administrator after Gore’s departure. He promptly prorogued the legislature, bringing it abruptly to a close for the second year running, this time without supply voted and with the members of the lower House in a very bad humour.

The question of financial control would inevitably come up again, but when it did party differences would prevent the unanimity in the Assembly displayed in 1818. Meanwhile the province was undergoing an experience which did a good deal to bring such party differences into being. Its grievances, its discontents, its irritations, such as they were, were now in the tender care of a self-appointed physician who had come to pronounce cures.

It was the fate of Upper Canada to attract a number of fiery Scots who did much to enliven its history, although it cannot be said that they did as much to advance the solution of its problems along useful and constructive lines. Without John Strachan and William Lyon Mackenzie the province would have been a duller but possibly a happier and more normal community. And without Robert Gourlay it would have been spared reams of violent, acrimonious and often aimless abuse, producing bad tempers on all sides and leading finally to petty persecution. Gourlay had little that was helpful to offer Upper Canada, and yet his career there threw a flood of light on the harsh and unyielding attitudes of the men who held political power. In the long run, the way in which they hounded him out of the province did much to increase demands for a broader and more flexible political system.

Robert Gourlay was a congenital dissident, an inveterate scribbler, a stiff-necked individualist who sooner or later fell out with nearly everyone he knew, whether friend or foe. From early manhood in Scotland and in England he had been involved in controversies, lawsuits, and quarrels of all sorts. He had many good qualities. He was personally incorruptible, genuinely devoted to the public good, apparently well versed in the science of agriculture, and industrious to a fault. But his enthusiasm and sincerity were so overbalanced by his intense egotism, his exaggerated touchiness, and his unvarying habit of rushing into print at every opportunity, that he could accomplish little in the world of practical affairs.

Gourlay arrived in Upper Canada in the summer of 1817, driven there by the collapse of his fortunes at home. He and his wife owned several hundred acres of land in the province; further, they were related to some prominent people, including the above-mentioned William Dickson. At first, Gourlay’s plans were uncertain; but after touring the Perth settlement and the Genesee country in New York State, he felt a call to inaugurate a grand scheme of emigration to Upper Canada. Britain badly needed to get rid of her surplus population, while Upper Canada badly needed more settlers. Although he believed that the Perth settlement had been hopelessly mismanaged (he succeeded in finding mismanagement wherever he turned) it nevertheless showed how much the poor were benefited by emigrating to Canada. But it was equally important, in his view, to attract substantial propertied emigrants from home, the sort of people who were going to the Genesee country and elsewhere in the United States because of their ignorance of Upper Canada.

He discussed his ideas with several leading provincial figures, meeting general encouragement from them and was given permission to publish an address “To the Resident Land-owners of Upper Canada,” dated October 1817, in the Upper Canada Gazette, the official government newspaper. Here he set forth the benefits that would result from “an enlarged and liberal connexion between Canada and Britain,” which would make unnecessary any reliance on American immigration. The first requisite for bringing about this new order was the “drawing out and publishing a well-authenticated statistical account of Upper Canada,” and to get this started he annexed a set of thirty-one queries to his address, to which he hoped to get replies from every township in the province. If he received enough answers he promised to publish them in England.¹³ To give further currency to the address and the queries he had seven or eight hundred copies of them printed in pamphlet form and distributed throughout the townships.

So far all had gone well. Only one person of importance appears to have opposed Gourlay at this stage. John Strachan, the rector of York and since 1815 a member of the executive council, considered Gourlay to be a presumptuous trouble-maker who ought to be opposed rather than sanctioned by the government. The very idea of stirring up the public to express opinions on the conduct of affairs was enough to disturb Strachan, and especially objectionable was the notorious 31st Query: “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?”

Still, Strachan’s was a minority opinion at this stage, and throughout the province there was much enthusiasm for Gourlay’s scheme. Many township meetings were held, in which magistrates and other leading residents participated. Presently Gourlay had received more than forty sets of answers to his queries, providing a great deal of information on economic conditions in the province. The replies to the 31st Query advanced many explanations for the province’s slow rate of progress, such as bad roads, remoteness from markets, and the difficulties of navigating the St Lawrence, but two stood out. First, there was the extreme dispersal of settlements resulting from the enormous amounts of land held by absentee owners for a rise in price and from the lands tied up in Crown, Clergy, and other reserves. With many millions of acres of uncultivated lots and blocks of land scattered throughout the province, compact and flourishing settlements could not possibly develop. Second, there was the “want of people,” especially men of capital and enterprise, caused both by the lack of a “liberal system of emigration” and by the policy of shutting out American settlers.¹⁴

But Gourlay could not long confine himself to the task of gathering information. After a tour through the western part of the province at the end of 1817, he concluded that the government had been guilty of vicious mismanagement, and in a second address to the land-owners he acquainted them with the “reigning abuse” that he had uncovered. This effusion, dated February 1818, was verbose and unorganized, and filled with vague attacks on Lieutenant-Governor Gore, who had left the province just before Gourlay arrived. He bitterly criticized Gore’s efforts to discourage American settlement, although he still urged his readers to rely on Britain. To be sure, their property would rise to twice its value “were Canada united to the States,” but a “liberal connection with Britain” and efficient government in place of “a system of paltry patronage and ruinous favouritism” would increase the value of property by ten times. By way of action, Gourlay demanded an immediate legislative inquiry into the state of the province, to be followed by a “commission appointed to proceed to England with the result of such inquiry.”¹⁵

Whether in response to Gourlay’s call or not, there was a motion for a “Committee to take into consideration the state of the Province” in the session of the legislature that met immediately after the publication of Gourlay’s second address.¹⁶ But shortly thereafter the Assembly became involved in its wrangle with the legislative council over money bills, and the session was abruptly ended, as already noted.

The news of this event – hearing the cannons from York boom across the lake at Niagara – produced in Gourlay a frenzy of outrage. The failure of the legislature to appoint a commission of inquiry convinced him that nothing could be expected of either governors or legislators. The existing system was incurably bad, and must be radically changed or overturned. Its basic fault lay in the governor’s power to dispense patronage – “to give away land at pleasure…to dispose of all places and pensions – to make and unmake magistrates – to appoint militia officers, custom-house officers, inspectors, school-masters, registers – to grant licences, pardons, and I know not what; – to be worshipped as ’His Excellency,’ and to have sufficient means to provide dinners and drink to all and several, suppliants and sycophants.” With a governor having such power to threaten and to cajole, Gourlay concluded that no Assembly could be truly independent of him.¹⁷

Accordingly, he again took to his pen, and within a day had turned out another tirade for the instruction of the eye-weary resident landowners. He informed them that the only hope for improvement lay in appealing directly to the Prince Regent or to the Parliament of Britain. This should be done by petitioning “in collective bodies,” which Gourlay asserted was just as legal as individual petitioning. He proposed a scheme of township meetings at which representatives would be chosen, who would later meet in a provincial convention to “dispatch commissioners to England with the petitions, and hold correspondence with them, as well as with the supreme government.”¹⁸ That is, Gourlay proposed the assembling of a popular body that would assume at least some of the authority of the provincial legislature.

Township meetings were now organized. Although fewer in number than those of the previous autumn, they again attracted many prominent and substantial men. By this time the provincial government was exceedingly alarmed by Gourlay’s activities, but under Smith’s ineffectual leadership, there was uncertainty about what to do. This lack of firm leadership was most galling to the Attorney General, John Beverley Robinson. This strikingly handsome, sharply intelligent and rigidly conservative young man, of Loyalist origins and with war service not long behind him, followed his mentor Strachan in believing that Gourlay’s activities must be stopped. He could not find that either the township meetings or the convention were unconstitutional, but he did regard them as a most dangerous type of popular movement. While recently completing his legal studies in England, Robinson had been horrified by the popular tumults led by such demagogues as Cobbett and Hunt. Gourlay not only knew these men, but appeared to be imitating their activities in Upper Canada. In England, however, the troops could be called out to restore order; except for a few small garrisons, Upper Canada had been almost entirely denuded of soldiers after 1815. Moreover, the word “convention” had unfortunate overtones of the American and French Revolutions.¹⁹

But Smith would not act, and the only step open to Robinson was to prosecute Gourlay for libel, in the hope that he might be silenced. In a draft of the proposed address to the Prince Regent, to be sent with the commissioners, Gourlay had referred to scandalous abuses in the land department, to corruption worse than anything to be found elsewhere in the British Empire, and had used many other such extravagant phrases. On the basis of these and other passages, Gourlay was arrested at Kingston in June for criminal libel while on a tour of the eastern section of the province, and let out on bail. Later in this month he was also arrested at Brockville, and similarly released to stand trial later in the summer. In August sympathetic juries acquitted him on both charges. This method of silencing him had failed.

Meanwhile township meetings had selected representatives to attend the dreaded convention at York on July 6, which in fact turned out to be a very mild affair. There were only fourteen delegates, about half of them of Loyalist origin and several of them magistrates. Their deliberations were public and the minutes of their meetings were carefully recorded and published. The tone of their discussions was cautious, with the lead being given by Gourlay himself, who was invited to speak, although he was not a voting delegate. He advised a “change of measures”; instead of sending a commission directly to England, one more attempt should be made to get action from the provincial authorities. With a new governor (Sir Peregrine Maitland) coming out there was hope of a change for the better. Accordingly two addresses were adopted, one intended for the Prince Regent, which the new governor was to be asked to forward, and the second, directed to Maitland himself, criticizing the recent conduct of both the legislative and the executive authorities and asking for an early election, to be followed by an investigation of the state of the province.²⁰ Although provision was made for two branch conventions to meet later at Ancaster and at Kingston, it was obvious that the convention was not really trying to usurp the role of the legislature.

Nevertheless, the leaders of the provincial government were apparently greatly alarmed as well as bitterly resentful of Gourlay’s personal attacks on them, and they poured out their hearts to Sir Peregrine when he arrived in August. This veteran soldier, the son-in-law of the Duke of Richmond, was to be lieutenant-governor of Upper Canada for a longer period than any other holder of the office, and then to hold other important posts in the colonial service in later years. He had been tested in a long series of campaigns culminating in his command of the first brigade of guards at Waterloo. He had all the strengths and weaknesses of his kind: a keen sense of duty, impeccable honesty, and a genuine desire to further the welfare of the province over which he governed; at the same time, his temperament was cold and aloof, and his views were narrowly conservative. Of more immediate import, he had a well-developed habit of command, and was at once ready to take stronger measures against Gourlay than had Smith’s “feeble Administration.”²¹ In particular, when the legislature met in October, Maitland proposed a new law to prohibit the assembling of conventions. This measure was quickly approved, Upper Canada’s rather mild equivalent of the Six Acts passed a year later in England. Maitland also refused to receive the petitions brought to him by the committee of the late convention.

Gourlay, of course, was brought to a new pitch of indignation by this course of events, and as always expressed himself violently and volubly in the newspapers after hearing that the law against conventions had passed. John Strachan believed, however, that things were now falling back to a peaceful state, and that Gourlay’s influence was ebbing.²² In this opinion he was doubtless correct, although there was probably much feeling in the province that the law banning conventions was extreme.

In December 1818, however, without the knowledge or approval of the government, Gourlay was arrested and brought before a court of magistrates at Niagara under the terms of the provincial Sedition Act passed in 1804. By this Act anyone who had not lived in the province for six months and who had not taken the oath of allegiance might be arrested and required to prove that his words, actions, and conduct were not intended to promote or encourage disaffection. If he did not give proof to the satisfaction of the judge or other official before whom he was arraigned, he could be ordered out of the province. If he did not leave, he could be jailed, without bail, and tried for the offence of not leaving. If then found guilty, he could be banished. If he still did not leave, or returned without a licence, he could be put to death.²³ This act, which had originally been inspired by fear of the Irish rebels who might enter the province following the uprising of 1798, was applicable to Gourlay under a strict reading of its terms, since he had visited in the United States within the previous six months before his arrest. Also, he had not taken the oath of allegiance in the province, although he had taken it at home.

Gourlay felt the full rigour of this harsh law. He was given ten days to leave the province and when he refused was put in jail, where he remained for eight months. Finally, he was tried at the assizes in August 1819, with the Chief Justice presiding, and ordered to leave the province at once. He crossed into New York on the following day, and returned to Britain before the end of the year.

From a legal point of view the prosecution of Gourlay was within the terms of the Act of 1804. It should also be noted that the action was not instigated by the government, which apparently thought his arrest to be imprudent and inexpedient. Still, the government made no effort to discourage the action, and probably concluded that this was the surest way of getting rid of Gourlay. In their eyes he had raised up a good deal of “sullen discontent” where none needed to exist, and had given Upper Canada such a bad name at home that “the Province is considered in a state of insurrection or near it and rich Emigrants are prevented from coming out.” Maitland was so determined to punish those who had co-operated with Gourlay that he refused to grant land to any members of the militia who had been involved in the convention, and in a spirit of vindictiveness dismissed all those holding militia or civil appointments who had shown any open sympathy for Gourlay, unless they abjectly recanted.²⁴

Nothing could have been more absurd than to bring a charge of sedition against a man whose great ambition was to tie Upper Canada more closely to the British Empire, and who, as he said of himself, was often imprudent, sometimes foolish, but never for a moment harboured a criminal design. But to call into question the government’s use of its powers and to make unfavourable comparisons of conditions in Upper Canada with those across the line was enough to damn a man in the eyes of the leaders of Upper Canada, even without Gourlay’s insulting and sometimes scurrilous language. Gourlay thought it “self-evident” that her North American colonies could not “be retained to Britain for many years, on principles less free and independent than those which govern the adjoining country”; they must be given more liberal treatment or they would “fall into the arms of the United States.”²⁵ This was meant as counsel for the prevention of such annexation; to Strachan and Maitland, it was mischievous and seditious talk. Like everyone else who criticized the existing political system, Gourlay was put down as a republican by its defenders.

In the long run, the expulsion of Gourlay proved to be a serious mistake on the part of those who had engineered and condoned it. As an organized opposition movement took form during the following decade, it turned again and again to this episode to find ammunition which could be fired at Maitland and his advisers. For instance, the Assembly consistently passed bills during the 1820’s to repeal the Sedition Act of 1804, and the legislative council blindly allowed the issue to be kept alive by rejecting them just as consistently, until 1829 when the measure was finally accepted. The “Banished Briton” came to be regarded as a martyr who had been ruthlessly broken by an arrogant oligarchy; his name cropped up periodically over the next forty years as a standing proof of the evils of the government in these bad old days.

For the time being, however, the excitement died down as quickly as it had arisen. With Maitland’s approval, the law banning seditious meetings, passed in 1818, was repealed early in 1820, and the newspaper publisher who had been jailed for printing Gourlay’s letters and addresses was pardoned. There was some apprehension in government circles over what effect the recent agitation would have on the elections for the Assembly held in 1820, but it proved to be unwarranted. To be sure, the elections were marked by much violence, whisky and rum flowed freely, heads were broken, efforts were made to keep people from voting, and religious and national prejudices were loudly proclaimed. All this, however, was perfectly normal in an Upper Canada election, then and for years to come, and had little or nothing to do with the Gourlay episode. Although a few men who had supported or sympathized with him were returned, the new House, which had just been considerably enlarged (to forty members), proved to be tractable enough, so much so that Maitland reported himself to be well pleased with it.²⁶

As the Gourlay affair subsided the attention of political and business leaders was increasingly centred on the imminent possibility of bankruptcy in the provincial government. Efforts to avoid this catastrophe were in turn partly responsible for involvement in a much larger question, a project for reuniting Upper Canada with its sister province along the St Lawrence. As events were to show, a much greater crisis than that of the early 1820’s was needed before sufficient pressure could be built up to end the political division of 1791, but the whole episode was to throw much light on provincial attitudes and problems as well as to foreshadow many of the debates and alignments of the months preceding the enactment of the Union Bill in 1840.

The threat of bankruptcy arose out of the old difficulty – as old as the province of Upper Canada – of how to exist without a seaport; in particular, how to secure a fair share of the customs duties collected at Quebec on goods destined for the inland province. Such duties made up a very large proportion of Upper Canada’s revenue, four-fifths, according to a joint committee of the legislature;²⁷ without them, outstanding obligations, such as pensions promised to disabled militiamen of the War of 1812, could not be paid, and public works could not be planned for a growing and ambitious community. Moreover, the financial situation at this time was made more difficult by the fact that the province had, since 1817, assumed responsibility for civil government charges that had earlier been paid by the British government. In short, the province was at the mercy of Lower Canada for vital revenues, while lacking any certain means to ensure their payment.

It will be remembered that an agreement, lasting only two years, had been made in 1795 providing Upper Canada with one-eighth of the duties. Afterward, the province preferred to keep a record of the goods passing through Côteau du Lac, at the boundary between the two provinces; by comparing this amount with the total imported at Quebec it was possible to arrive approximately at the upper province’s share of the revenues collected there. Nevertheless, payments lagged from time to time, and Upper Canada built up considerable claims for arrears. In 1817 a new agreement was made, to last until 1819, promising Upper Canada one-fifth of the proceeds, but shortly afterward a bitter quarrel broke out in Lower Canada between the governor and the Assembly over financial control, with the result that in two successive years (1819 and 1820) the Legislature of Lower Canada made no arrangements to continue the agreement. In the hope that the money would turn up soon the Legislature of Upper Canada empowered the lieutenant-governer to borrow on this expectation. As 1821 wore on, however, and no agreement was reached with the commissioners finally appointed by Lower Canada, the financial outlook became extremely precarious. Since the government of Upper Canada could do nothing itself to break the deadlock, its only recourse was to appeal to the imperial authority. In January 1822 the legislature chose Attorney General John Beverley Robinson to proceed to England to seek the intervention of the British government.

There, Robinson found a much larger scheme afoot than the adjustment of trade relations between the two provinces – nothing less than the union of the two Canadas. This of course was not a new idea. The mercantile leaders of Montreal, who had opposed the partition of 1791, had never given up hope that political unity would be restored to the commercial empire over which they presided. Now that political deadlock had gripped the lower province, they seized the opportunity to convince the mother country that the unwise experiment in division should be quickly ended. With the end of the Montreal fur-trading empire, marked by the absorption of the North West Company into the Hudson’s Bay Company in 1821, it became doubly imperative to organize for the effective exploitation of the new staples of wheat and timber. Yet the French Canadians were now both politically conscious and, under their popular leaders, especially Louis Joseph Papineau, politically organized; in the Assembly they could effectively block all plans for the commercial development of the St Lawrence and Great Lakes region. As things were, said old John Richardson of the Montreal firm of Forsyth, Richardson and Company, Canada was not worth holding; only union would “remove many impediments to the common prosperity and improvement, and make this a British instead of a foreign Province.”²⁸

The pleas of the mercantile leaders of Montreal and Quebec were reinforced by those of the English-speaking residents of the Eastern Townships, who had grown to number forty thousand. These people were denied adequate representation in the Lower Canadian Assembly, and were “subjected to foreign laws in a foreign language.” Their growth was stunted by a legislature which openly discouraged any further English-speaking immigration into the province. Only by union could the vacant lands be occupied by an English-speaking population, and Lower Canada made into a truly British province.²⁹

It happened that in the early months of 1822 the British government was receptive to these arguments. Union would not only limit the power of the French Canadians, but it would also have the effect of nullifying any tendencies toward American republicanism on the part of the upper province. What could be neater than to tie the two provinces together, in order to weaken the dangerous tendencies of each? Accordingly, a bill was prepared that provided for equal representation of each province in a united legislature (although the upper province’s population was less than half that of the lower’s) and for the keeping of all records of the legislature in the English language, with all debates to be held in that language after fifteen years. Membership in the legislature would be limited by a high (£500) property qualification, and the hand of the governor would be strengthened by giving him the power to appoint two members of the executive council of each province to sit in the Assembly, where they might debate but not vote. By these and other terms it was anticipated that the tide of French-Canadian nationalism would be stemmed and reversed, democratic tendencies checked, and the influence of the executive strengthened.

But the bill failed when it was introduced in the House of Commons in the summer of 1822. Opposition members objected that so important a change in the Canadian constitution should be made without consulting the people of the Canadas, and the government withdrew the bill rather than go on with it at the tail end of the session. All that the House would readily accept was the Canada Trade Bill, by which Upper Canada was guaranteed one-fifth of the duties collected at Quebec, with the promise that this proportion would be readjusted every three years according to the amount of goods brought into each province – an arrangement that lasted until the union of 1841.³⁰

This sequence of events was a matter of profound relief to Attorney General Robinson. He was glad to see the union project dropped, since he had no instructions from York on the matter. In any event he had no wish for a close union with the French Canadians. On the other hand, he had got the trade bill, largely of his own drafting, which was the object of his trip.

Yet Robinson was aware that the British government might well revive the union plan after Canadian opinion had been heard, and assuming the inevitable outcry from Lower Canada there was a good chance that the bill would be amended in that province’s favour. He warned his associates at York that Upper Canada might end up as a mere dependency of the lower province, and that the people of Upper Canada should hasten to express their views on union.³¹

In fact, a vigorous debate on the union was developing in each province. In Lower Canada, as expected, opinion generally followed racial lines, with the French Canadians vehemently denouncing the scheme and the English-speaking community strongly supporting it. In Upper Canada there were more uncertainties, and feelings were not so heated, but it presently became apparent that prevailing opinion was hostile to the bill, with the exception of the eastern sections of the province where interest in the improvement of the St Lawrence was strongest. As one moved west opposition to the bill mounted. Petitions revealed that certain details were specially disliked, such as the one requiring a high property qualification for members of the Assembly (it was argued that in some counties not a single resident would be eligible); the provisions for strengthening the influence of the executive in the representative body were also attacked. The broadest objection, however, had to do with the dissimilarity of the peoples of the two provinces, who were “distinct in their origins, language, manners, customs, and religions,” and would inevitably engage in bitter quarrels if required to live within one political unit.³²

It soon became apparent, also, that, despite its sympathy and community of interest with the merchants of Lower Canada, the governing group in York shared the dislike for the bill that Robinson was expressing in London. They did not wish to pull up stakes in York, just as they were getting well settled in the little capital, or relinquish control of a government which they thought of as their own to direct. Under this government, they felt, Upper Canada had progressed more rapidly than had her sister province, and they had no wish to become involved in the quarrels that were bedevilling the latter. Moreover, an enlarged Assembly, with members from both provinces, would be quite impossible to control. As it was, the government had to use every kind of influence at its disposal to get its measures through the local Assembly; in the one proposed, the executive authority would find “all the French joined by all the radical English arrayed” against it, an accurate prophecy, incidentally, of the situation after 1841. John Strachan was also worried that the interests of the Protestant religion in general, and the Church of England in particular, would have little protection in a body that might well have a Roman Catholic majority. He believed that the union could be made acceptable only by placing the capital in Upper Canada (“on the Ottawa beyond Perth”) and by giving Upper Canada a preponderance of members in the Assembly, not just an equal number. This arrangement would involve “no injustice – to make this a British Colony we must have a decided majority.”³³

It was Strachan’s considered view, however, that an attempt to yoke the two provinces would fail. He realized, despite the above remark, that any terms acceptable to Upper Canada would be regarded as a great affront by the French Canadians. Schemes for political reorganization must go “much further” if “lasting tranquillity” were to be produced. He had in mind a measure “as would without any positive enactment sink the French name, their language and narrow ideas of Commerce,” while sparing their feelings in the process. This magic was to be accomplished by a union of all the British North American provinces. In a general parliament “the French would be only a component part and would merge without any sacrifice of national vanity or pride &c.,” by the simple device of requiring that all its written and oral proceedings, as well as those of the law courts, should be in English.³⁴

Strachan’s former pupil was thinking along the same lines as he continued his discussions with Colonial Office officials in London. In the hope that he could interest them in the broader scheme, Robinson drafted a plan for a general union which he submitted to the Colonial Office and which he supported in a pamphlet published in London. He argued that such a union would show to all the world, and to the United States in particular, that Great Britain was determined to protect all these colonies against aggression or infiltration. He denied that union would lead to a movement for independence, since the colonies were fully aware of the advantages of membership in the empire. There was also no danger of a movement for annexation to the United States. “More free they could not be,” since they enjoyed “all the substantial advantages of independent states”; while if they joined the republic, they “would shrink into comparative insignificance as the remote sections of a territory already too far extended, and as unimportant and unfavoured members of a great confederacy in the councils of which they could expect to have little influence.”

If, Robinson went on, the colonies became a distinct kingdom, under a viceroy, within the empire, perhaps the first of several that might be formed, many beneficial results would follow. They would develop a greater sense of “community of interest and feeling among themselves,” have a more important role on the world scene, get away from “petty factions and local discontents,” and widen the distinction between their institutions and those of their republican neighbours.³⁵ Here, then, in 1823, was some vision of the later Confederation and of the later Commonwealth, from a young tory lawyer from Little York.

But the plan evoked no enthusiasm within the Colonial Office, where it was quite rightly regarded as impractical because of the slow communications between the Atlantic and inland provinces. Union of the two Canadas was still the preferred solution, despite evidences of mounting opposition in the provinces. This opposition prevented any action in 1823, but in 1824 the under secretary, Wilmot Horton, tried to revive the subject. Another bill was drafted in which John Strachan, who was in England on ecclesiastical business, had a hand. When Strachan tried to safeguard what he took to be the interests of Upper Canada by adding several new conditions after the bill was drafted, it was obvious that his suspicions were as strong as ever. And like Robinson before him, he again made a plea for a general union, and again without success. Dual union also came to nothing, largely because of the unbroken front presented by the French Canadians, and the project remained in abeyance until after the Rebellions of 1837.

This outcome was a bitter blow to the majority of the English-speaking community of Lower Canada, which appeared to have lost all chance of being rescued from the French-Canadian sea in which they felt themselves to be adrift. But the people of Upper Canada showed no desire to try to save them at the risk of being engulfed themselves. The conservative governing group fully shared this sentiment, and yet, equally, shared the ambitions of the mercantile community for the commercial growth of the St Lawrence and Great Lakes region. Presently they hit on a device which seemed to avoid all difficulties: Montreal should be annexed to Upper Canada. In 1828 W. H. Merritt advised the Colonial Secretary that, although Union was opposed because of the “fear of French domination,” the annexation of Montreal would “satisfy every man in the Upper Province.”³⁶ By one stroke a large section of the English-speaking population of Lower Canada would be liberated, while the Montreal French Canadians thus acquired would be helpless; Upper Canada would have a seaport and no longer be a commercial dependency of the sister province; and the whole length of the St Lawrence needing improvement would be under one government. With a seaport, Upper Canada would be brought out of its inland seclusion, in fact, brought more fully into the British orbit, and thus more effectively detached from American influences. It was a dazzling conception, and the conservative and commercial leaders of Upper Canada could never fully understand why everyone concerned did not endorse it with enthusiasm. The idea was of course anathema to the French Canadians, and the reform movement in Upper Canada also opposed it in later years. Its advocates, however, remained loyal to it until union with all of Lower Canada was finally forced on them in 1840.

Thus the little ruling group at York had survived two threats to their position, neither of them very formidable. They had put down a highly vocal critic who had provided a focus for incipient discontent but who was too eccentric to be a very serious political opponent. They had staved off a union that would have brought to an end their own distinct political identity, but antagonism to that union was so strong in the other province that there was never much possibility of its being carried out. The results of these first trials of strength were reassuring but in no way conclusive, for more dangerous threats to their authority and policies were brewing within the province. All along, they had regarded the large American population in Upper Canada as the fundamental obstacle in the way of achieving their design for the province, and as yet they had found no answer to this problem.

It is time, then, to look more closely at the men in power at York and at the forces preparing to challenge their ascendancy.