It was apparent that the Chief Justice must soon resign his judicial office also: Gore was authorized to make arrangements for his retirement on a pension and to appoint Powell in his stead. Powell attained the great object of his ambition, October 1, 1816 at the age of 61.18 The Colony was agitated almost from end to end over the "Alien Question" i. e. the permission to American citizens to hold land in the Province. Gore, acting as he believed-and with reason—on the wish of the Home Government, issued a Proclamation forbidding the administration of the Oath of Allegiance to anyone who was not in office or the son of a United Empire Loyalist without special authority so to do— October 24, 1815. Some of the prominent men of the Province, including even some of the Commissioners for Taking Oaths, had large quantities of land for sale and wished that as many persons as possible should be considered qualified to buy and receive grants for lands. At least one of these, William Dickson, refused to obey the orders of the Governor; and the Province was in an uneasy mood. When the new Parliament19 met in 1817, it resolved itself into Committee of the Whole on the State of the Countrywhich was substantially equivalent to a vote of want of confidence in the Government. Not only was the Alien question raised but complaint was made of the Clergy Reserves, the grants to the Militia, the Post Office, &c. Two Resolutions were carried, a third lost and more were to be considered at a subsequent sitting of the Committee of the Whole: Gore, fearing the passing of still stronger Resolutions, suddenly dissolved the Parliament with an imprudent if not impudent Address-this was done in a fit of temper and against the strongest protests on the part of Powell.20 The Province was aflame with indignation-the days of the Stewarts seemed to have come again. Gore left the Province in June, 1817, never to return: Powell thereby lost his best and strongest friend (next perhaps to Lord Dorchester), and he never had the same importance again. Just as Gore was leaving the Province, Robert Gourlay was entering it: while Gourlay had no influence on Powell's life and career, he has done more than any other to blacken his name by detraction and insinuation-he deserves a chapter to himself. WE CHAPTER XV ROBERT GOURLAY E now come to an episode, or series of episodes, which have given Chief Justice Powell more notoriety than all the other events of his life put together. For his part in the prosecution of Robert Gourlay he was vehemently attacked by that virile writer and held up to obloquy as a tyrant and oppressor. Whatever may have been his motivesand there is absolutely nothing to indicate that they were not pure-his actions cannot fairly be complained of. Gourlay is a type of a class at no time small and by no means extinct, who place their own interpretations upon law, statutory or otherwise, and when that view is not acceded to, proceed to attack the law itself as unjust, and at length assail those who are called upon to administer it.1 Gourlay had land in Upper Canada, and came out in 1817 to see about it. On the voyage it occurred to him to make a statistical account of the Province, and with that end in view he prepared a series of questions to be submitted to the settlers in the various parts of the country. These questions attracted the attention of the authorities and he was accused of sedition: he was not slow to retaliate or to denounce what he thought wrong. He was indicted at Kingston for libel on the Government but triumphantly acquitted in August, 1818; again indicted for a similar offence at Brockville, he was, later on in the same month, again triumphantly acquitted. But there was a weapon he had not thought of, a Statute passed in 1804 by the Provincial Parliament containing extraordinary but not wholly unprecedented provisions.2 The Act was passed in consequence of the influx into the Province of United Irishmen and those who had been concerned in the uprising in Ireland in 1798, as well as some who were entering the Province from the United States, and who, it was suspected, were stirring up disaffection to British rule. It seems probable that the Bill was drawn up in England, and sent out for the Colonial Parliament to pass: but that it was modified and enlarged in its scope during its passage through Parliament. Powell certainly had no hand in drawing the Act, in having it pass the Legislature, or in advising its enforcement. The Act authorized certain officials to cause the arrest of anyone who had not been in the Province for six months or who had not taken the oath of allegiance: and if they were not satisfied with the accused to command him to leave the country if he should refuse he might be tried and again ordered to leave the country: if he refused or if leaving the country he returned the penalty was death. One of the official set at York, and seemingly only one at first believed that Gourlay's conduct was seditious and dangerous-but that one was the Reverend John Strachan who had become exceedingly influential in the councils of the new Governor, Sir Peregrine Maitland. The prosecutions for criminal libel having failed, more drastic measures were determined upon-it is not, however, certain that Maitland approved or even knew that such proceedings were to be taken: unfortunately proceedings were taken although without express instructions from the Governor while at the same time almost certainly not against his desire.5 William Dickson and William Claus, both members of the Legislative Council, issued a warrant against Gourlay under the Act of 1804 upon an information sworn by Isaac Swayze, Member of the Legislative Assembly. No doubt the two Councillors acted in a most high-handed-way; it is said with every appearance of truth that Swayze acted in concert with them if not on their initiative, and if so, of course they should not have sat at all. But having granted a warrant, they had the power to deal with Gourlay as they did. Gourlay acted apparently without legal advice; he had no confidence in lawyers; had he in this instance consulted a lawyer he would have been informed that the Act by a not unusual clause provided that the proof of having been an inhabitant and of having taken the oath of allegiance should "lay" upon him. The evidence given against him was most trivial; but he did not prove that he had taken the oath of allegiance. It followed, then, under the Act, that for the purpose of that proceeding he had not taken the oath of allegiance, and consequently was a member of one of the two classes who came within the Act. It was a matter of no importance that he had been an inhabitant of the country for six months even if that was the case. He insisted that the Act did not apply to a British subject; but there is nothing in the Act so restricting its operation; and the persons chiefly aimed at by the Act-the United Irishmen were British subjects by birth like himself. He refused to obey the order of the Legislative Councillors and was arrested and committed to the Gaol at Niagara under the provisions of the Act. The Act is specific that if the order be disobeyed and the person be found at large in the Province after the time set for his departure, a warrant must be issued for his committal to the Common Gaol or to the custody of the Sheriff "there to remain without bail or main-prize unless delivered therefrom by special order from the Governor or person administering the Government for the time being, until he or she can be prosecuted for such offence in His Majesty's Court of King's Bench or of Oyer or Terminer and General Gaol Delivery in this province or under any Special Commission of Oyer and Terminer . . . . " Gourlay contended, as to the last he continued to contend, that the Act applied only to "aliens and outlaws." He applied for a writ of Habeas Corpus and retained an attorney to draw the papers: these were an affidavit by himself that he was a British subject, had taken the oath of allegiance and had been an inhabitant of the Province for more than a year before the date of the warrant; an affidavit by Peter Hamilton that he had known Gourlay in Britain and "that he was there respected, esteemed and taken to be a British subject"; and by Robert Hamilton, that Gourlay had been domiciliated at Queenston more than nine months before the date of the affidavit (January 12, 1819) and that he always understood that he was a natural born British subject. The writ of Habeas Corpus was issued by the Chief Justice; Gourlay complains that the Judge did not express his opinion to the attorney when he applied for the writ; but that is not the function of a Judge, and moreover, it is quite certain that had he done so it would not have changed the course of events. The writ was obeyed. Gourlay was taken to York. He says: "on the 8th I went before the Chief Justice. One question only he put-for what end I do not know-'Have you brought any person with you?" The object of the question could not be doubtful to anyone; the Judge was asking the Prisoner if he had Counsel to argue for him. As no Counsel appeared, the Judge disposed of the case on the material before him, as was his duty and his whole duty. Upon the material he could do nothing else than dismiss the application for the discharge of the prisoner: under the Act bail could not be taken. The accused was remanded into custody and was taken back to Niagara travelling "over a hundred and eighty miles of miry road in custody of the Jailor." The summer of 1819 was unusually hot and sultry and the prisoner suffered severely from his close confinement, his health was seriously affected and his faculties were much impaired-he complains that his memory failed and that he found it impossible to think or write connectedly. The sitting of the Court of Oyer and Terminer and General Gaol Delivery was fixed at Niagara for August. The Act provided that such offences as that charged against Gourlay could be tried in the King's Bench or at a Court of Oyer and Terminer and General Gaol Delivery or under a Special Commission of Oyer and Terminer. It was wisely decided to proceed in the ordinary course of the law; one can easily imagine the outcry which would have been made, had the prisoner been tried before the King's Bench in the extraordinary procedure by Information or if a Special Commission had been issued to try him. His trial came on before Chief Justice Powell and a jury, Friday, August 20, 1819, in the old Court House at Niagara, now "The Western Home." The charge laid against him was, under the provisions of the Act, of being found at large within the Province after the time specified in the order to leave. By reason of the onus of proof being laid on the accused by the Statute, all that was necessary for the Crown officer, Attorney-General John Beverly Robinson, to prove was the order and disobedience thereto of the prisoner; Gourlay had no Counsel and seems from his condition of health to have been unable to conduct his defence. No evidence was given on his behalf and the verdict of guilty was inevitable. He says, indeed, that when he heard that he was to be tried "only as to the fact of refusing to leave the Province. . . . I was seized with a fit of convulsive laughter, 10 resolved not to defend such a suit, and was perhaps rejoiced that I might be even thus set at liberty. But he is not always consistent; in another place he says that he did not know that the word "offence" might be applied to the mere refusal to obey an order till he was, six weeks after the trial so informed by a gentleman from Montreal. It was said by Dr. Dunlop in Parliament in 1841 that the Chief Justice told the jury that to constitute habitancy a man must possess a dwelling of his own; living in the house of another could not make a man an inhabitant, "a most lawyerlike and quibbling construction as to the meaning of habitancy." Gourlay himself says: "My fate, I believe, was determined by a misconstruction of the Judge of the word 'Inhabitant.' To the best of my recollection, this was defined to mean a person who had paid taxes or performed statute labour on |