Part 2

"I have every confidence that before consenting to such a means, you devoted to the cases of these persons a calm and dispassionate consideration, but as I have hitherto received from you no report of these executions or of the grounds on which you decided to let the law take its course, I abstain for the present from any further comment on them.

"I am happy to learn, through the same channel of information, that no further executions were likely to take place."[17]

Eight days later, on May 30th, 1838, after receiving Sir George Arthur's despatch of the 14th of April, Lord Glenelg again alluded to the execution and this time one feels that, in his own mild way, the Colonial Secretary is seeking to restrain Arthur:

"I have received your despatch of the 14th April last (No. 4), reporting the executions, on the 12th of that month, of Lount and Matthews, who had been convicted, on their own confession, of 'high treason,' and explaining, at considerable length, the views adopted by yourself and the Executive Council with regard to these prisoners, and the considerations which appeared to you imperatively to demand that the law in the case should be allowed to take its course.

"Her Majesty's Government regret extremely that a paramount necessity should have arisen for these examples of severity. They are, however, fully convinced that you did not consent to the execution of these individuals without having given the most ample consideration to all the circumstances of the case, and they have no reason to doubt the necessity of the course which, with the entire concurrence of the Executive Council, you felt it your duty to adopt."[18]

The Colonial Secretary did not censure Arthur for his conduct in the matter of the execution of Lount and Matthews but he added a significant paragraph regarding the treatment of other political prisoners.

"With respect to the disposal of the other prisoners, Her Majesty's Government cannot give you any specific instructions, until they shall have received the report which you lead me to expect. But I cannot defer expressing our earnest hope that, with respect to these persons, your opinion that no further capital punishments will be necessary, may be acted on. Nothing would cause Her Majesty's Government more sincere regret than an unnecessary recourse to the punishment of death, and I am persuaded that the same feeling will influence not only yourself, but the Executive Council. The examples which have been made in the case of the most guilty will be sufficient to warn others of the consequences to which they render themselves liable by such crimes, and this object having been accomplished, no further advantage could be gained by indict the extreme penalty of the law on any of their associates."[19]

The death of Lount and Matthews seems to have satisfied the desire for revenge on the part of the extremists and a milder course of policy was then pursued by the Lieutenant-Governor and Executive Council. Several other leaders including "Generals" Sutherland and Theller, both of whom were American citizens, were sentenced to transportation. Theller had been sentenced to death and, according to his own account, was only saved from the gallows by the energetic agitation in his favour of the Irish section of the population. He has left a voluminous account of his captivity, including his sensational escape from the Citadel of Quebec, in his book, _Canada in 1837-8_, to which the reader is referred if he wishes to obtain a very highly-coloured bit of autobiography.[20]

Theller's case brought up a very interesting question of International Law. He had been born in Ireland and had become naturalized as an American citizen. When put on trial for his life on a charge of high treason Theller pleaded that his American naturalization had rendered him no longer a British subject. Against him a precedent of 1747 was quoted to support the doctrine of "perpetual allegiance," i.e. "once a British subject, always a British subject." The jury brought in the curious verdict that "if the prisoner was a British subject he was guilty of treason." Chief Justice Robinson, acting in accordance with his belief in the doctrine of 'perpetual allegiance' ruled that Theller was still a British subject and thereupon sentenced him to death. Under the circumstances to carry out the death sentence would have been very inadvisable. Pressure was brought to bear upon the Lieutenant-Governor and the Executive Council, and as a result a respite was granted "until Her Majesty's pleasure should be known."[21] Theller was soon after removed from Toronto to Quebec and detained there in the Citadel, from which he escaped. Sutherland was tried by court martial, imprisoned in Toronto and Quebec, and finally returned to American soil.

These American prisoners were very embarrassing to the Upper Canadian authorities. There was still considerable excitement along the American frontier and the danger of invasion was by no means over. Lount and Matthews were considered martyrs by many on the American side of the border. Highly coloured accounts of the execution appeared in the American press. Even the New York Sun took up the matter and recounted how Mrs. Lount on the day previous to her husband's execution "pleaded with Governor Arthur for hours for his life, and when she pointed to _thirty thousand names_ who petitioned with her for the exercise of the royal prerogative, he coldly replied 'that he had not believed that Mr. Lount had so many friends in the province, and that there was the more necessity that he should be made an example to the rest.'"[22] Under these circumstances the execution of Theller would have added oil to the flame.

The Congress of the United States passed a "Neutrality Bill" which cleared up the situation a great deal by denying official sanction to any schemes of invasion and enjoining neutrality on all American citizens. The state authorities along the frontier also tried to prevent any movement of armed forces against Canada. Theller records how he successfully dodged the American authorities in making his attack on Fort Madden and how Governor Mason of Michigan was coming down the river with a strong force when Theller and his friends approached the island of Bois Blanc which lies in Canadian waters. No doubt there often was a certain amount of laxity on the part of the American authorities, and Sir George Arthur finds occasion to condemn it at times, but the United States Government seems on the whole to have acted very wisely. The burning of the "Caroline," which it should be remembered was an American vessel attacked by a Canadian force in American waters, might easily have led to very serious consequences. If President Van Buren and his cabinet had wanted war it would have been quite possible to claim the destruction of the ill-fated "Caroline" as an overt act of hostility. Fortunately milder counsels prevailed and war was avoided. But this incident profoundly affected and prolonged the agitation on the American side of the border.

On April 23rd, 1838, an "authorized agent" of the United States Government, Mr. Aaron Vail, who had recently been Chargé d'Affaires in the American Embassy in London, arrived at Toronto. Mr. Vail, according to the official despatch of the British ambassador at Washington, Mr. H. S. Fox, was charged with the task "of inquiring into, and reporting upon, the actual condition of various individuals, who are now in confinement in Canada." Mr. Fox considered Mr. Vail a very fitting envoy and that his mission would be beneficial "by dissipating false rumours which tend to keep alive feelings of ill-will between the British and American inhabitants on the Canadian frontier."

Aaron Vail's mission seems to have fulfilled expectations, for on April 25th Arthur wrote to Fox that it was quite impossible that a more proper person than Mr. Vail could have been selected by the President, and that he trusted all the benefit would result from his mission as Fox had anticipated. Vail does not seem to have formed a very high opinion of the American prisoners, whom he described as "the 'scum' of the population."[23] Theller has left us an amusing account of how the Toronto gaol was carefully scrubbed in honour of Vail's visit and how the prison authorities hinted that "the Americans had better clean and dress up, as they might expect to see some visitors, and probably hear some good news."[24] The prisoners poured out their tale of woe to Vail who "took notes and assured us that the government of the United States would strictly inquire into the matter."[25] Nothing much, however, seems to have resulted from the inquiry, since it was evident that Vail's mission was to smooth over affairs rather than to stir up further strife by issuing an inflammatory report on Canadian conditions.

Soon after the departure of Mr. Vail occurred the trial and conviction of Charles Durand. Durand's case was peculiar, and noteworthy as illustrating the methods employed by Arthur and his Executive Council to stamp out disaffection. Durand was put on trial for high treason, the chief evidence against him being a letter which was found in his house among his papers addressed to W. L. MacKenzie, and which contained within it charges against the Executive Council and Family Compact generally. This letter was never sent and MacKenzie in his _Gazette_ denies ever having seen it. It was, therefore, a high handed proceeding to sentence a man to death on the evidence of a private paper which was never published. Durand was afterwards respited and banished to the United States, but his trial and conviction on the 7th of May did not tend to increase the popularity of the Lieutenant-Governor and his Executive Council.

Durand's letter certainly was written in no mild tone and it still breathes forth the spirit of disaffection. But it was never published and as such should not have been used to convict its author. The following-sentences will serve as a sample of the whole:

"The principles of the reformers are those of truth, are those that tend to promote the happiness of the many--instead of the few. Although in common with thousands of the old farmers in Canada, with thousands of the sons of U. E. Loyalists, I was willing to petition the mother country for the redress of our political wrongs, and even to petition them again and again, yet when I see insult upon insult heaped upon the reformers of this Province: our Governors allowed with impunity to slander and laugh at the people and their House of Assembly--when I see Governors who have held up with both hands the gracious despatches of the deceitful and tyrannical Colonial Office--conspiring against the liberties of this colony by establishing a 'Dominant Church' and 'English Church Rectories' amongst us against our will and desire, _raised, promoted_ and _applauded_ for deceiving the people here, when I see Judges suspended and dismissed from their offices for voting for liberal men and the _elective franchise_, the only spark of liberty we can boast of, trampled down by office holders, and done away with by the Governor issuing thousands of patent deeds to his favorites and officials, I begin to ask myself, shall I, shall we, who have made the country what it is, be used thus with impunity? Shall we, the native Canadians, the sons of U. E. Loyalists, be called aliens in the land of our birth, and by the fluttering officials that hang on the smiles of a Governor's brow--I say nay. I feel that we are too tame--that we have forgotten that we are free--that we are in America,"[26] etc. etc.

There is no need to quote more of this verbiage. The above is sufficient to show that Durand was able to "tear a passion to tatters, to very rags," and if he had ever had this letter published it would have doubtless "split the ears of the groundlings." The curious thing it that a man should be condemned to death for writing such a letter. Truly Arthur and his Executive Council lacked a sense of humour!

About this time a new movement against Canada was on foot in the United States. "Hunters' Lodges" were formed with the object "never to rest, till all tyrants of Britain cease to have any dominion or footing whatever in North America."[27] This new organization seems to have originated in May, 1838, and to have spread rapidly, especially through the states bordering on Upper Canada. Lindsay tells us that at a convention of the Hunters' Lodges of Ohio and Michigan held at Cleveland from September 16th to 22nd[28] of that year, seventy delegates were present. At this meeting a republican government was appointed for Upper Canada, including a president and complete cabinet. A "republican bank of Upper Canada" was projected which was to issue a paper currency adorned with the heads of Lount, Matthews and Moreau who took part in the Short Hills affair in June, 1838, to which reference will shortly be made. But the members of the "Hunters' Lodges" though full of enthusiasm were short of funds, so the bank did not prosper.

Before this grandiloquent meeting at Cleveland there had been several disturbances along the border. The first of these was the destruction on May 30th, of the Canadian passenger steamer "Sir Robert Peel" at Wells' Island by American sympathizers. Wells' Island, one of the Thousand Islands, is situated in American waters and so the authorities of New York state were to a certain extent negligent in allowing the incident to occur. The destruction of the "Sir Robert Peel" seems to have been regarded by the "patriots" who boarded her as an act of revenge for the burning of the "Caroline." But whatever the motives of those concerned the incident caused bad feeling along the border. An American steamer, the "Telegraph," was fired upon on June 2nd by the Canadian sentries at Brockville, the excuse given that the "Telegraph" had not answered when hailed by the sentries. An investigation was held at which the authorities of St. Lawrence County, N.Y., were present, and it was ascertained that the sentries had acted without orders.

A few days after these incidents a body of "patriots" under the leadership of James Moreau crossed the Niagara frontier in order to free Upper Canada. Moreau, who is called Morrow in the Canadian records, issued a proclamation which called upon the Canadians to come to his assistance and proclaimed that this was the hour of their redemption. The answer of the "oppressed Canadians" was the engagement fought at the Short Hills on June 21st when the "patriots" were defeated by the Canadian militia. Moreau fled with a price on his head but was captured, tried and condemned to death. The Executive Council on July 26th refused to reprieve him since he was considered a proper case for capital punishment under an Act of the Parliament of Upper Canada passed the previous session in order "to protect the Inhabitants of this Province against lawless aggressions from Subjects of Foreign Countries at Peace with Her Majesty." Moreau was accordingly executed at Niagara on July 30th. If Sir George Arthur had had his way there would have been more executions, but Lord Durham intervened.

The next serious outbreak on the frontier was the attack of von Schoultz near Prescott on November 11th. The invaders seized a point of land on which a stone windmill had been built and fortified the place. An engagement ensued and the invaders were driven back to shelter within the windmill. On the 14th of November British reinforcements, including artillery, arrived, and two days later an attack was made at the distance of only 400 yards. The garrison of the windmill then surrendered and nearly 160 prisoners were taken.[29] Von Schoultz and nine others were executed in Kingston. Von Schoultz was defended by Sir John A. Macdonald, then a young barrister just beginning his profession, but there was little that could be said in his defence.

The last movement against Upper Canada took place on December 4th, when an attack was made on Windsor. This affair is thus described in the District General Orders of December 10th, dated at Toronto:[30]

"A large body of pirates and brigands, belonging to the hostile combination in the neighbouring country which has of late so much disturbed the peace of this province, after assembling in the neighbourhood of Detroit, and showing themselves at different points in the vicinity, at length had the hardihood to effect a landing near Windsor, about three miles from Sandwich, on the morning of the 4th instant, where they commenced their work of destruction by burning a steam-boat called the "Thames," and a house used as a barrack, making prisoners a small but gallant party of militia quartered therein, who, in defending themselves against the attacking banditti shot their leader and eventually effected their escape."

At Sandwich, Colonel Prince gathered a force of local militia, made "a spirited attack" and put the invaders to flight. Four prisoners who had been taken were shot by orders of Colonel Prince, whose action was afterward severely censured by Lord Brougham and others. After the action at Sandwich the rest of the invaders either recrossed to American territory or else took to the woods, where many perished from the cold. So ended the last attempt at invasion of Upper Canada. Seven of those captured at Windsor were executed at London, including Daniel Davis Bedford and Albert Clark. The cases of these two men were discussed at two separate meetings of the Executive Council and it was decided that each of them should suffer the death penalty. In these decisions Sir George Arthur entirely concurred. The ex-governor of the penal colony was still exacting vengeance. In his defence it should be stated that the loyal section of the province, including the Executive Council, considered these men filibusters and murderers.

The treatment meted out by the Executive Council to those British subjects, American citizens and others who were taken in arms against the government of Upper Canada has been discussed at some length. This has been done for two reasons, first that it bulks so large in Sir George Arthur's official despatches, and second because it shows what complete harmony existed between Sir George and his Executive Council. Not even Sir Francis Head was more devoted to the Family Compact party. Sir George Arthur was by temperament and training entirely on the side of established authority and opposed to disaffection in all its forms. A strong conservative, he mistrusted the rule of the people and, therefore, opposed as stubbornly as possible the popular demand for Responsible Government. In this, as in other respects, Arthur found himself completely at variance with the Governor-General, the Earl of Durham.

It was unfortunate for Arthur that he was in Upper Canada during a period of unrest and transition. It was even more unfortunate for him that he was brought into contact with Lord Durham. Durham was a man of vision who sketched out a mighty scheme which took years to put into actual practice. Arthur was a man of routine who could not appreciate either Durham or his visions. Above all he mistrusted that pet project of Lord Durham, Responsible Government, and did not hesitate to say so.

The appointment of the Earl of Durham as Governor-General of the British North American provinces was deeply resented by Sir George Arthur. By virtue of his commission Durham was empowered to assume the government of the province in which he might be and to retain it during his residence in that province. During that period the functions of the Lieutenant-Governor were to be altogether suspended.[31] Due notice of this fact was sent each of the Lieutenant-Governors of the British North American provinces including, of course, Sir George Arthur. After receiving this notice Sir George wrote on June 5th, 1838, to Lord Glenelg, complaining of this arrangement. He based his case against it on his experience in Van Diemen's Land, which was during his tenure of office there a dependency of New South Wales, and called to Lord Glenelg remembrance a conversation he had had with him on the subject. In fact, as Arthur reminds Glenelg, the terms on which he consented to become Lieutenant-Governor of Upper Canada were that no change of that sort would be made.

Three days after writing thus to Lord Glenelg Sir George Arthur received a circular letter from Lord Durham requesting him "to enter into the most free and confidential communication ... on all subjects affecting the province of Upper Canada, both as regards its internal condition and the state of affairs on the frontiers."[32] Lord Durham included in this letter the following paragraphs in order to allay the suspicion that might exist in Arthur's mind that he wished to diminish the Lieutenant-Governor's authority,

"Your Excellency will of course understand that this request does not contemplate any interference with your administration of the government, but refers to the necessity which exists that I, as Governor-General of all the North American provinces, should be immediately informed of all matters of general interest affecting the high and important mission which has been conferred upon me.

"It will be my duty as well as my inclination to uphold your authority, not only from the respect which I must entertain for you personally, but from a due regard to the efficiency of the public service."

This circular must have mollified Arthur somewhat, or else he was too well trained a public servant to show his innermost feelings. At any rate he writes to Durham on June 9th as follows,

"I sincerely thank your Lordship for your very kind declaration of confidence in me and for the determination which your Lordship has expressed of upholding my authority.

"It is peculiarly gratifying to me to receive these assurances from your Lordship, for I ought in candour to say that from the time I received Lord Glenelg's 'Circular,' I have been very apprehensive of the embarrassment which might arise out of the new relative position in which I found myself most unexpectedly placed. The immeasurable distinction between your Lordship's station and my own must satisfy your Lordship that this has proceeded from no vain jealousy, on personal grounds, of the control of a superior. With diminished influence I feared the ability of being useful to Her Majesty's Government and to this province would be taken away; for I have to co-operate with a legislature which must have a reasonable degree of confidence of my powers to act in union with them, and to fulfil my professions.[33]"

To this rather naïve letter Durham on June 18th replied stating even more clearly that no act of his would diminish Arthur's influence and authority in Upper Canada. He goes on to put his case as follows,

"I repeat to you, that I have no wish to interfere with the local administration of the affairs of any of the provinces included in my general government.

"Those functions will be vested, as before, in the Lieutenant-Governors; but it is essential to the success of my mission and to the due execution of my duties, more especially in the present disturbed state of our relations with the frontier population of the United States, that I should be promptly and directly made acquainted with all events bearing on those important questions."

Arthur seems to have followed out Durham's instructions as regards frontier troubles to the letter, since we find the following postscript added to his despatch of June 22nd, 1838 (No. 4):

"_P.S._ I make now no communications myself to the American Government, and have troubled your Lordship with all these particulars, as a representation will of course come with far greater force from your Lordship."[34]