Part 37

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

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

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

And here it becomes necessary to revert for a moment to the convention of delegates which had been held at York during the preceding year. Among the matters which the convention had had in view was the calling of the Royal attention to a promise which had been held out to the militia during the war of 1812-'15, that grants of land should be made to them in recompense for their services. It had been the policy of the United States to hold out offers of land to their troops who invaded Canada--offers without which they could not have raised an army for that purpose; and these offers had been punctually and liberally fulfilled immediately after the restoration of peace. On the British side, three years had passed away without attention to a promise which the Canadian militia kept in mind, not only as it concerned their interest, but their honour. While the convention entrusted the consideration of inquiry to the Lieutenant-Governor and Assembly, they ordered an address to be sent home to His Royal Highness the Prince Regent, as a matter of courtesy and respect, having annexed to it the rough sketch of an address originally drafted by Mr. Gourlay, as already mentioned, for the purpose of being borne home by a commission. In that sketch the neglect of giving land to the militia was, among other matters, pointed out. The sketch having been printed in America, found its way into British newspapers. In June, 1819, when Mr. Gourlay had lain more than five months in jail, the Lieutenant-Governor of Upper Canada summoned the Assembly to meet a second time, and, in his speech, notified them that he had received an order from the Prince Regent to grant land to the militia, but that he himself should think it proper to withhold such grant from those persons who had been members of the convention. The injustice of this measure was instantly in the mouth of everyone. Several weeks passed away, while it was anxiously hoped that the Assembly would mark its disapprobation of the opening speech, but approval was at last carried by the Speaker's vote, and the Legislative Council concurred in the most direct and submissive language. This was too much for Mr. Gourlay to bear with composure. He seized his pen, and liberated his mind by writing a virulent commentary upon the situation, which he procured to be published in the next issue of the Niagara _Spectator_. The communication was discussed by the House of Assembly, and pronounced to be a libel, and the Lieutenant-Governor was solicited to direct the Attorney-General to prosecute the editor. Sir Peregrine Maitland was not the man to turn a deaf ear to such a solicitation from such a quarter. The unfortunate editor, who had been away from home when Mr. Gourlay's diatribe was published, and who was wholly ignorant of its publication, was seized in his bed during the middle of the night, hurried to Niagara jail, and thence, next morning, to that of York, where he was detained many days out of the reach of friends to bail him. Mr. Gourlay fared worse still. His treatment was marked by a malignant cruelty to which no pen but his own can do complete justice. "After two months' close confinement," he tells us, "in one of the cells of the jail my health had begun to suffer, and, on complaint of this, the liberty of walking through the passages and sitting at the door was granted. This liberty prevented my getting worse the four succeeding months, although I never enjoyed a day's health, but by the power of medicine. At the end of this period I was again locked up in the cell, cut off from all conversation with my friends, but through a hole in the door, while the jailer or under-sheriff watched what was said, and for some time both my attorney and magistrates of my acquaintance were denied admission to me. The quarter sessions were held soon after this severe and unconstitutional treatment commenced, and on these occasions it was the custom and duty of the grand jury to perambulate the jail, and see that all was right with the prisoners. I prepared a memorial for their consideration, but on this occasion was not visited. I complained to a magistrate through the door, who promised to mention my case to the chairman of the sessions, but the chairman happened to be brother of one of those who had signed my commitment, and the court broke up without my obtaining the smallest relief. Exasperation of mind, now joined to the heat of the weather, which was excessive, rapidly wasted my health and impaired my faculties. I felt my memory sensibly affected, and could not connect my ideas through any length of reasoning, but by writing, which many days I was wholly unfitted for by the violence of continual headache. Immediately before the sitting of the assizes the weather became cool, so that I was able to apply constantly for three days, and finish a written defence on every point likely to be questioned on the score of seditious libel. I also prepared a formal protest against any verdict which might pass against me, as subject to the statute under colour of which I was confined. It was again reported that I should be tried only as to the fact of refusing to leave the Province. A state of nervous irritability, of which I was not then sufficiently aware, deprived my mind of the power of reflection on the subject; I was seized with a fit of convulsive laughter, resolved not to defend such a suit, and was, perhaps, rejoiced that I might be even thus set at liberty from my horrible situation. On being called up for trial, the action of the fresh air, after six weeks' close confinement, produced the effect of intoxication. I had no control over my conduct, no sense of consequence, nor little other feeling but of ridicule and disgust for the court which countenanced such a trial. At one moment I had a desire to protest against the whole proceeding, but, forgetting that I had a written protest in my pocket, I struggled in vain to call to mind the word _protest_, and in another moment the whole train of ideas which led to the wish had vanished from my mind. When the verdict was returned, that I was guilty of having refused to leave the Province, I had forgot for what I was tried, and affronted a juryman by asking if it was for sedition."

Strange to say, this sad story is not exaggerated. The poor man's mind, never very firmly set in its place, had been thrown completely off its balance, and throughout the remaining forty-four years of his life he was subject to frequent intervals of mental aberration.

To return to the narrative: he was found guilty under the Act of 1804, and ordered to quit the Province within twenty-four hours, under pain of death in case of his return. He crossed over into the United States, and published, at Boston, a pamphlet under the title of "The Banished Briton," giving an account of his wrongs. From Boston he made his way to England. His family and affairs there were in a state of unspeakable disorder, which had been grievously aggravated by his long imprisonment. At Michaelmas, 1817, the Duke of Somerset had made a distraint for rent. Poor Mrs. Gourlay had contrived to borrow money to pay the rent, but she had been panic-struck by calamity, and, by her brother's advice, had abandoned Deptford Farm. An assignment of the tenancy had been forwarded by her across the Atlantic to her husband, which he had executed and returned. His successor had contrived to get possession of the lease and stock for next to nothing, and Mr. Gourlay's pecuniary condition had thus been rendered more desperate than ever. When he landed in England in December, 1819, he found that his father had just breathed his last, and that his mother was in much affliction at her home in Fifeshire. He hastened thither, and spent a month in adjusting her affairs, after which he waited upon a bookseller in Edinburgh with a formidable collection of manuscript for publication. We have seen that during his stay in Canada he had become the confidential friend of Mr. Barnabas Bidwell. That gentleman had, just before the breaking out of the war of 1812-'15, written a series of historical and topographical sketches of Upper Canada, embodying a large amount of useful information. They were not published, but the author carefully preserved the manuscript, and after the close of the war revised it throughout, and inserted a considerable amount of additional matter. Soon after Mr. Gourlay's arrival in Canada, Mr. Bidwell presented the MS. to him, partly for the latter's personal information, and partly with a view to ultimate publication. We have also seen that Mr. Gourlay received numerous replies to his series of questions addressed to persons in the various townships of the Province. During his confinement in jail at Niagara, he had beguiled his saner moments by carefully going through these various MSS. After his return to Great Britain he re-read them all with great care, and wrote a great mass of rambling matter on his own account, giving a description of his trials and persecutions, and embodying various official documents and Acts of Parliament. The entire collection amounted to a formidable mass of MSS., and he was desirous of laying the whole before the public. Hence his interview with the Edinburgh bookseller as above recorded. The bookseller declined to undertake the publication, and Mr. Gourlay carried his MSS. to London, where they were published in three large octavo volumes in 1822. The second and third volumes contain what the author calls the "Statistical Account of Upper Canada;" and the first contains a "General Introduction." The value of the work as a whole is beyond question, but it is strung together with such loose, rambling incoherence, that only a diligent student, accustomed to analyze evidence, can use it with advantage, or even with perfect safety. His wife had meanwhile been removed from a life of turmoil and anxiety, and his children had been placed under the care of some of their relatives in Scotland. Mr. Gourlay himself engaged in further litigation with his old enemy, the Duke of Somerset, about the tenure of Deptford Farm. Into the history of this litigation there is no time to enter. Suffice it to say that the Duke's purse was too long for Mr. Gourlay, whose household furniture and effects were sold to meet law expenses. He avenged himself by attacking the Lord Chancellor (Eldon), and various other persons high in authority, through the public press. Quiescence seemed to be an utter impossibility for him. He was also involved in litigation arising out of the winding-up of his father's estate. Erelong he was left absolutely penniless, and became for a time nearly or quite insane. On the 9th of September, 1822, he threw himself upon the parish of Wily, in Wiltshire, where he had formerly resided. Having proved his right of settlement, he was set to work by the overseer of the poor of that parish to break flints on the public highway. This was not such a hardship as it appears, for it was deliberately brought about by Mr. Gourlay himself, with a view to the reëstablishment of his mental and physical health, which he believed would be most effectually restored by hard bodily labour. This state of things went on for some weeks, after which he seems to have wandered about from one part of the kingdom to another, in an aimless sort of way, and generally with no particular object in view. He was at times by no means insensible to his mental condition, and there is something ludicrous, as well as pathetic, in some of his observations about himself at this period. His health, however, was much improved, and his many afflictions seem to have sat lightly upon him. He compared his condition with that of the Marquis of Londonderry, who, while suffering from mental derangement, had committed suicide. "A year before Lord Castlereagh left us," says Mr. Gourlay, in a paper addressed to the Lord Chancellor, "I heard him in the House of Commons ridicule the idea of going to dig; but had he then _'gone a digging'_ he might still have been prating to Parliament. I have had greater provocation and perplexity than the departed minister, but I have resorted to proper remedies; and among these is that of _speaking out_. I have not only laboured and lived abstemiously, travelled and changed the scene, but I have talked and written, to give relief to my mind and play to my imagination." He at this time had a mania for presenting petitions to the House of Commons on all sorts of subjects, but chiefly relating to his personal affairs. This line of procedure brought him into collision with Mr. Henry Brougham, the member for Westmoreland--afterwards Lord Brougham and Vaux. Mr. Brougham seems to have presented one or two petitions for him as a mere matter of form, but finally became weary of his continual importunity, and left his letters unanswered. With an irritation of temper bordering on insanity, Mr. Gourlay determined to take a decisive step which should call the attention of the whole nation to his calamities. On the afternoon of the 11th of June, 1824, as Mr. Brougham was passing through the lobby of the House of Commons, to attend his duty in Parliament, a person who walked behind him, and held a small whip in his hand, which he flourished, was heard by some of the bystanders to utter, in a hurried and nearly inarticulate manner, the phrase, "You have betrayed me, sir; I'll make you attend to your duty." Mr. Brougham, on encountering this interruption, turned round and said, "Who are you, sir?" "You know well," replied the assailant, who without further ceremony laid his whip smartly across the shoulders of the august member for Westmoreland. The latter made his escape through the door leading into the House of Commons. The bustle excited on the occasion naturally attracted the attention of the constables, and Mr. Brougham's assailant--who of course turned out to be Mr. Gourlay--was taken into custody for a breach of privilege, deprived of his whip, and handed over to the Sergeant-at-Arms. The _Courier_ of the next morning (June 12th) contained the following account of the poor man's aspect and conduct after his arrest: "From the appearance of the individual yesterday, coupled with the eccentricity of his recent conduct, an inference would arise more of a nature to excite a feeling of compassion for this person, who once moved in a different situation of life, than to point him out as a fit person to be held sternly responsible for his actions. His appearance is decayed and debilitated; and, when removed into one of the committee-rooms of the House of Commons, in the custody of the constable who apprehended him, he let fall his head upon his hand, as a person labouring under the relapse incidental to violent excitement. He complained of some neglect of Mr. Brougham's respecting the presentation of a petition from Canada, which, we understand, has no foundation, and the course taken by Mr. Canning in postponing the consideration of the breach of privilege supports the inference of the irresponsibility of the individual, for a reason apparent from the very foolish nature of the act itself. On being, in the course of the evening, told that, if he would express contrition for his outrage, Mr. Brougham would instantly move for his discharge, he refused to make any apology to Mr. Brougham, but said he had no objection to petition the House. He added, that he was determined to have a fight with Mr. Brougham, because he had shamefully deserted his cause, and taken up that of a dead missionary. It is hardly necessary to add that Mr. Brougham is totally unconscious of the alleged desertion, and that Gourlay labours under a complete and melancholy delusion."