Читать книгу McGill and its Story, 1821-1921 - Cyrus Macmillan - Страница 13

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LESS than three years after he had made his bequest, James McGill died, in December, 1813. Soon after his death the executors of his will sought to fulfil his desire with reference to the establishment of a College, and to ensure that the conditions imposed with regard to time would be complied with as speedily as possible. But they were confronted by obstacles over which they had no control. The will bequeathed the Burnside Estate and the Endowment Fund to the executors in trust, on the understanding that they should as soon as convenient after the testator's death convey it to the Royal Institution for the Advancement of Learning, to be used by them as provided under the Act of 1801. But, as we have seen, the organization of the Royal Institution was bitterly opposed by one section of the community. Every effort to have trustees appointed and to have the Institution put in actual operation was frustrated. The authorities feared to cause friction or discord, and they preferred postponement. There was therefore no Royal Institution, other than in name only, to which the McGill bequest could be conveyed. There were no trustees. It was necessary first for the executors and those interested in the establishment of the College to effect the actual organization of the Royal Institution by securing the appointment of trustees as called for by the Act. They continued, with vigour, to impress this necessity upon the authorities in order that the McGill bequest should not lapse, and they were promised prompt action. But in that troubled period of warfare the Home Government was involved in too many difficulties to devote time to the problem. Action was for these various reasons consequently long delayed and it was not until 1818 that the promise was fulfilled and that the authorities at last appointed Trustees and established in fact the Royal Institution. Were it not for the fear of losing the legacy—a misfortune which after all was narrowly averted—and the persistent efforts of the executors, the appointment would have been doubtless longer delayed. The Provincial Legislature could not appoint trustees without orders and they were unwilling to make any grant of money without authority from the Colonial Office.

But as a result of the hopeful promise made to the executors by the authorities towards the close of 1814, the former began to discuss and to put forward plans for the carrying out of the desire of the founder of the College. The Rev. Dr. Strachan was their spokesman. On February 14, 1815, he wrote to three personal friends who were then members of the Legislature of Lower Canada asking their co-operation and assistance, advising haste, and setting forth his own ideas on the establishment of McGill College—ideas based on his knowledge of educational conditions in Canada and on his own experience of nearly twenty years in educational work. He urged the Provincial Legislature to act independently of the Home Government and to grant the funds necessary to put the College at once in operation, and he suggested making use of the Jesuits' Estates or the Crown Lands for this purpose. From this letter the following extracts are of interest:

“As we [the Executors] have sent the necessary documents to the Commander of the Forces to point out the necessity of his acting promptly in establishing a College according to the conditions of Mr. McGill's Will, and as it is probable he may apply to the House of Assembly upon the subject, I furnish you with my ideas.

“The scheme enclosed for the two Schools and College is as economical as it can well be to render it respectable and useful. The number of students will not be great for some years, nor will it ever be such as to make the Professorships lucrative. Even the Principal will hardly ever be able to reach one thousand pounds per annum, a remuneration sufficiently moderate for the accumulated duties which he will have to perform and to maintain in such an expensive place as Montreal the dignity of his station. If the Provincial Parliament waits for something to be done by the King all will be lost—for the Government have too many things to call their attention. But when the matter is once set on foot, an address from the Legislature can at any time procure assistance from His Majesty's Ministry. Yet six thousand pounds per annum appears to me a trifle, considering the increased opulence of the country. It is not probable that the Roman Catholics will object to such an arrangement—they have already three Seminaries said to be well endowed—but if any of them be poor the Legislature ought to grant them pecuniary relief.

“I say nothing respecting religion, but in the Chapel of the University Lectures on Theology may be given to Protestant students, which Roman Catholics shall not be required to attend. There are many particular regulations which I do not mention, I just furnish a crude outline.

“You are to recollect that if nothing be done, you will soon lose Mr. McGill's donation. The time will never again be so propitious. I say nothing about the nomination of Professors; men of some talent must be selected and of great zeal for the promotion of the Sciences. The first Principal will have many difficulties to encounter and may not live to see the Seminary in a very flourishing condition, but it will ultimately exceed the most sanguine expectations.

“I prefer the form of the Scotch and German Universities to the English, or rather a mixture of both plans, because much more may be done at one-fourth of the expense. In the English Universities the public Professors seldom lecture more than once a week—many of them not at all; the whole system of teaching is conducted by Tutors and emulation and a love of study is kept up among the students by fellowships, etc. The great opulence of Cambridge and Oxford is far beyond our reach, and although I should be sorry ever to see them lose a shilling, for I think them wisely adapted to so rich and populous and learned a country as England, I consider them unfit for this country. Our professors must each during the session, give two, three, or even four courses of lectures, till the funds afford the means of increasing their number.

“I must further add on the subject of finding Professors, that gentlemen newly from England, and accustomed to the wealthy Universities of that country, may not always possess the qualities necessary to make them useful in this projected Seminary. Learning they may have in abundance, but the industry, labour (I may say drudgery) and accommodation to circumstances cannot be expected from them. There are several gentlemen in this country qualified for the first race of Professors, and after the Seminary is once set agoing there will be no risk in electing Englishmen to fill vacant chairs, because the rules and regulations being established, all must submit.

“I have only mentioned one restriction, the Principal to be of the Church of England. This, I think necessary on many accounts. The Seminary must and ought to have a distinct religious character, and this simple regulation will confer it without circumscribing its liberality and openness to all persuasions. I think also the Principal's department should be Moral Philosophy or Theology.”

In the same letter Bishop Strachan outlined his suggested scheme for the organisation of McGill College. He pointed out “that the necessity of sending young men out of the Province to finish their education has been found both dangerous and inconvenient; that reason and policy equally demand that our youth be educated in the Province, or in England, if we wish them to become friendly to our different establishments and to the Parent State; that few can defray the expense of sending their children to England, and, if they could, the distance from parental authority is dangerous to their morals; and that there is at present no Seminary in which the English youth of Canada can obtain a liberal education.”

To remedy these alleged evils, he therefore proposed that there should be established “two Grammar Schools, one at Quebec, and one at Montreal, each under a Rector or Head Master and three Assistants, at which the following branches of education shall be taught: the Greek, Latin, French and English languages, Writing, Arithmetic, Geography, and Practical Mathematics. These schools, to be appendages and nurseries for a University to be established on the model of the Scotch and German Universities in the neighbourhood of Montreal, on the property bequeathed for that purpose by the late Honourable James McGill, and to be named as he desired, McGill College or University; that the following branches of academical education be taught in the said University, (1) Greek and Latin; (2) Natural History and Botany; (3) Mathematics and Astronomy; (4) Natural Philosophy and Chemistry; (5) Moral Philosophy, Logic and Rhetoric; (6) Surgery and Anatomy; (7) Civil and Public Law; that the Professors of Surgery and of Civil and Public Law shall not be required to reside within the College; that a house be provided within the College for a Principal and four Professors; that the members of the University be constituted a Corporation capable of sueing and being sued, and of receiving donations of money and lands, etc., for the benefits of the Institution; that the Principal be always a clergyman of the Church of England; that young men of all denominations, as Christians, be freely admitted to the different lectures; that new Professorships be established as soon as the funds will admit; that the University be represented in the House of Assembly by two Members; that no degree be conferred upon a student who has not resided three years; that an attendance of three years at the University shall entitle a student to be called to the Bar one year earlier than any other, provided he be of age; that a report of the state of the University be annually laid before Parliament; that there be frequent Visitations by the Bishop, the Chief Justice, the Speaker of the House of Assembly, etc., appointed a committee for that purpose; and that there be two public examinations every year.”

Dr. Strachan estimated the expense of the necessary buildings to be £18,000, “made up of £4,000 for each of the two Grammar Schools including residence for the Head Masters, and £10,000 in addition to James McGill's bequest of £10,000, an excellent site and house extremely commodious for the Principal or one of the Professors.” The annual expense of the Grammar Schools was estimated at £2,000, “made up of £300 a year to each of the Head Masters, £200 a year to each of two second Head Masters, £100 a year to each of four Under Masters, and £300 to each school for servants, repairs, library, premiums, etc.” It was added that “this will render them desirable, and together with a moderate fee, payable by each scholar to his respective Teacher, will make them an object to men of talent!”

The total annual expense of the University was estimated at £4,000, made up as follows: “The Principal to be also a Professor, £750; the Senior Professor, £500; three Professors, £400 each; the Professor of Surgery and Anatomy, and the Professor of Civil and Public Law, £200 each; in addition each Professor is to enjoy a moderate fee from the students attending his lectures; for the purchase of books for the Library, £300; for the purchase of Philosophical and Chemical apparatus, £250; for the purchase of Plants for the Botanic Garden, £100; Librarian's salary, £100; Gardener's salary, £100; Servants and Contingencies, £300.” It was explained that smaller salaries were given to the Professors of Surgery and Law because “they will be Professional men not expected to reside in the College or to be exclusively confined to its duties, but attending at the same time to their private practice.”

Three reasons were given by Dr. Strachan for preferring Montreal to Quebec as the place for the establishment of the University: “its more central position; its greater suitability for a Botanic Garden; and the large sum of money and a most beautiful estate already given for the express purpose.” In conclusion, Dr. Strachan wrote: “Thus it appears that for an appropriation of £18,000, and six thousand pounds per annum, an establishment may be formed of incalculable importance to the Province, in a religious, moral and political light. The Legislature might in a few years be relieved from the burden by procuring from the Crown the Jesuits' Estates to be given for the support of the Institution, and by grants of lands capable of becoming productive. The allowance for Philosophical and Chemical apparatus will in a few years become too great; the surplus may then assist the library.”

The three members of the Legislature to whom this letter was sent by Dr. Strachan at once brought it to the attention of their colleagues, and the question was again referred to the Home Government. It seems to have been pressed with earnestness and persistence but it was apparently not regarded as very urgent by the Colonial Office. The authorities were evidently too busy with the Napoleonic Wars in Europe and America, and with their own internal problems to give much attention to Colonial education, and the year passed without further action. Finally, on the 30th of December, 1815, Lord Bathurst wrote from Downing Street to Sir Gordon Drummond, then administering the Government of Lower Canada, the following letter asking for information about the Jesuits' Estates, and intimating the intention of the Government to proceed with the establishment of a College or Colleges in the Province, for the erecting of which the revenues of these estates might be used:

“His Royal Highness, the Prince Regent, being desirous of marking by some permanent establishment the high sense which he entertains of the exertions made by the Provinces of Canada during the late war with the United States, has been pleased to signify his intention of founding and endowing in the Province one or more Colleges for the education of youth. An establishment so necessary cannot be too early accomplished, and although the details of such a measure are not completely arranged, yet Montreal has been from its central situation selected as the town best fitted for such a purpose. There does not appear any reason why the commencement of the work should not take place immediately. You will, therefore, lose no time in selecting such a spot in the immediate vicinity of Montreal, taking care that the ground selected be sufficiently extensive to leave an adequate space for the formation of walks and gardens, and you will proceed without delay to enclose it for that purpose. You will further take the necessary measures for acquainting the trustees in whose hands the late Mr. McGill deposited by will a sum of £10,000 in aid of this object, that it is the intention of His Majesty's Government to commence such an undertaking and to call upon them as soon as the plan shall have been definitely settled for the application of the funds entrusted to them for the purpose of erecting the building. I forbear in this first stage of the undertaking to mention either the assistance which His Majesty's Government is prepared or may be enabled to give or that which the Province may be disposed to contribute. The benefits of such an establishment are such as must be felt both in the Colonies and in the Mother Country, and when felt cannot but ensure on the part of both a hearty co-operation and liberal support.

“With a view to the endowment of a College, the estates lately belonging to the Jesuits and now in possession of the Crown, afford a resource of which His Majesty's Government are to a certain extent determined to avail themselves. But previous to deciding upon the extent of the establishment it is necessary that I should be informed of the present value of these Estates, of their capability of improvement and of the mode in which their revenues have hitherto been disposed of.

“I have therefore to desire that you will as early as possible furnish me with adequate information upon these several points. Upon the receipt of which His Majesty's Government will lose no time in entering upon the final arrangement of an establishment calculated to afford to all classes of His Majesty's subjects in the Province that degree of education and those means of improvement which they have hitherto been compelled to seek at a distance from home.”

It is evident from the above letter that the writer had no knowledge of the conditions of James McGill's will nor was he aware that before Colleges could be established it was first necessary to appoint Trustees for the Royal Institution and thereby to enable that body to assume control of educational institutions established in the Province, as already provided for by the Act of 1801. However, the Executors of the McGill will were informed, as requested, of the Home Government's intention, and the information asked for with reference to the Jesuits' Estates was forwarded to the Colonial Office. Lord Bathurst was apparently meanwhile made acquainted with the conditions of the will and with the Act of 1801. A few weeks later, on March 14th, 1816, he again wrote to Sir Gordon Drummond, as follows:

“My despatch of the 30th December will have informed you of the determination of His Royal Highness the Prince Regent to avail himself of the return of peace to forward the important objects of education and instruction in His Majesty's Dominions, and especially in the Provinces of Canada. When I then addressed you I had not had an opportunity of perusing the will of Mr. McGill which afforded by the liberality of his bequest such important assistance in carrying such an object into effect. I have since been furnished with a copy of the will of which an extract is enclosed for your consideration. You will no doubt observe that the mode in which the bequest is directed to be made, no less than the nature of it, superseded the necessity of carrying into effect the instructions conveyed to you on the 30th December under an erroneous impression of its contents. You will therefore consider that instruction to be recalled and in lieu of adopting any measures for enclosing a spot well fitted for the erection of the University, you will suspend all measures of such a nature till the necessary preliminary arrangements have been made in conformity with the Act of Parliament of the Province of Lower Canada passed in the 41st year of His Present Majesty, entitled 'An Act for the Establishment of Free Schools and the Advancement of Learning in this Province.' Those arrangements you will immediately carry into effect, by appointing under the Great Seal of the Province the following persons to be Trustees of the Schools of Royal Foundation in the Province in the manner and for the purposes specified in the Act and constituting them a Body Corporate by the name of the Royal Institution for the Advancement of Learning. The persons to be nominated in the first instance are the Governor, Lieutenant-Governor, or person administering the Government for the time being; the Right Reverend Jacob Mountain, Bishop of Quebec; Jonathan Sewell, Esq., the Chief Justice of the district of Quebec; James Monk, Esq., the Chief Justice of the district of Montreal; the Reverend J. O. DuPlessis, Superintendent of the Romish Church.

“As soon as this preliminary arrangement shall have taken place you will call upon the persons named in Mr. McGill's will for the execution of the trust reposed in them, and you will by an early opportunity receive detailed instructions for your future proceedings.”

Three weeks later, on the 9th April, 1816, Lord Bathurst forwarded to Sir Gordon Drummond the following despatch containing the names of additional Trustees and cancelling for obvious religious, political and racial reasons which would prevent criticism the former appointment of the Governor:

“In my despatch of the 14th ult., I conveyed to you the instruction of His Royal Highness, the Prince Regent, to nominate and appoint under the Provincial Act of 1801 a Body Corporate for the Advancement of Learning, and I communicated to you the names of several persons who appeared best qualified for such a duty. It has since appeared more advisable to increase the number of Trustees to eight in order to obviate the inconveniences which if the number were less might arise from the non-attendance of individual members. It has been deemed proper also in order to obviate all objections which might be grounded on the circumstances of the peculiar situation in which with regard to this commission the Governor is placed, to withdraw from that commission the name of the Governor or Officer administering the Government. You will therefore take the necessary measures for inserting in the Patent the following names in lieu of those which I have previously specified, viz.—Jonathan Sewell, Esq., Chief Justice of the district of Quebec; James Monk, Esq., Chief Justice of the district of Montreal; the Right Rev. Jacob Mountain, Bishop of Quebec; Rev. J. O. DuPlessis, Superintendent of the Romish Church; the Rev. Dr. Alexander Sparke of the Church of Scotland; John Richardson, Esq., of Montreal, a member of the Executive and Legislative Councils; William Bachelor Coltman, Esq., of Quebec, a member of the Executive Council; and John Reid, Esq., of Montreal, one of the Judges of the Court of King's Bench.”

Notwithstanding the above instructions the Provincial Government was slow to act, for reasons already specified. Opposition to the establishment of the Royal Institution continued to be powerful and somewhat bitter, and two years passed before trustees were finally appointed. The Rev. J. O. DuPlessis, the Superintendent of the Romish Church, objected to becoming a member of the Board, and later declined. Meanwhile vigorous efforts were made to have the grants for schools and the McGill bequest augmented by the Crown, through the use of Crown Lands or the revenues of the Jesuits' Estates as partly promised in Lord Bathurst's letter of December 30, 1815.

As a result of these persistent efforts by some members of the Legislature and by church authorities interested in education, the Home Government realised that the funds devoted to educational institutions were lamentably insufficient and that additional means should at once be provided for the better equipment of schools and for the engagement of a greater number of teachers. They seem to have realised, too, that the bequest of James McGill was not in itself sufficient to provide for the erection of College buildings and for a subsequent endowment. They therefore decided after much consideration to make use of the estates of the Jesuits which had reverted to the Crown on the extinction of the order. For several years the assigning of the revenues of these estates to educational and religious purposes under Protestant control had been advocated and by the strange irony of history this was in time brought about. Indeed, as early as February 10th, 1810, Sir Gordon Drummond, then administering the Government of Lower Canada, wrote from Quebec to the Colonial Office stating that the Anglican Cathedral in Quebec “was badly in need of repair and that for the purpose of repair there was little hope of obtaining from the inhabitants of Quebec any contribution worthy of consideration.” He therefore asked that the Home Government should authorise him to devote to the purpose part of the revenue arising from the Jesuits' Estates, the whole of which “to the amount of more than £4,500 annually has hitherto been transferred to the Military chest.” And he added, “I beg leave to suggest my opinion that this is the most proper source from which the means of repairing the cathedral can be drawn, and indeed, that this fund might with propriety in the future be applied to the general support of the places of worship of the Established Church throughout the Province.”

In answer to this request, however, no immediate action was taken, for although the Home Government had a legal right to dispose of the Estates as they saw fit, they naturally wished to proceed slowly and tactfully in order to avoid religious friction or bitterness within the Province. In 1815, when, as already pointed out, it was intimated by the Colonial Office that the Jesuit Estates might possibly be appropriated in aid of the McGill bequest, there seems to have been no intention to limit the assistance which should be provided by this increased revenue to McGill College alone. On the contrary, the object appears to have been to use the additional funds in order that, irrespective of race or creed, the benefits of education might be diffused as widely as possible throughout the country. But delay again followed, and it was not until the next year that definite instructions were issued by Lord Bathurst for the transfer of the Jesuits' Estates to the Royal Institution for the Advancement of Learning. These instructions were contained in the following historic letter, destined to have so large a part in the establishment of McGill College and in Canadian education, and forwarded to the Officer Administering the Government of Lower Canada by Lord Bathurst from Downing Street on May 10th, 1816:

“I have already expressed to you the gracious intention of His Royal Highness, the Prince Regent, to forward the extension of education in the Provinces of Canada and I have pointed out the preliminary measures necessary on your part to give effect to that intention. In furtherance of this object, I have received the commands of His Royal Highness to instruct you to transfer to the Trustees of the Royal Institution for the Advancement of Learning all those estates which formerly belonged to the Society of Jesuits, which, since the abolition of that order, have been vested in the Crown, in order that the Royal Institution for the Advancement of Learning may possess present means for establishing and maintaining the Seminaries which it may be necessary to found and may possess the revenue which cannot fail progressively to increase in proportion to the improvement of the Provinces and the consequent demand for additional means of instruction.

“In transferring, however, those estates to the management of the Royal Institution for the Advancement of Learning, you will retain for the future disposal of His Royal Highness the accumulation of the rents and profits of preceding years which may be either in the hands of the Receiver of those estates, or which may have been by him paid to the Colonial Government, and you will with as little delay as possible transmit to me a detailed account of the amount of the Fund which has been so created.”

Meanwhile the executors of the will of James McGill had been again informed of the definite intention of the authorities to proceed with the erection and endowment of a College at Montreal, and on May 13th, 1816, John Richardson, one of the surviving executors, acknowledged on behalf of himself and his colleagues receipt of the information in the following letter, in which, remembering perhaps Lord Bathurst's letter of December 30, 1815, they emphasised the conditions imposed in the will:

“We have the honour of receiving your letter of the 9th inst., written by command of His Excellency, the Administrator in Chief, to acquaint us that His Majesty's Government have it in contemplation to erect and endow a College at Montreal and that it is their intention as soon as the plan of this establishment shall be definitely settled, to call upon us as Trustees of the Will of the late Mr. McGill for the application of the lands entrusted to us for that purpose.

“And further desiring to be acquainted for His Excellency's information, what are the extent and advantages considered with reference to the object proposed of the House and property of the late Mr. McGill in the vicinity of Montreal and whether the grounds are sufficiently extensive to have an adequate space for the formation of walks and gardens—in compliance with His Excellency's desire, we have to acquaint you that the grounds above mentioned contain about forty-six superficial arpents in a very healthy, moderately elevated, and pleasant situation, well watered, at a convenient distance from the city towards the mountain, and consequently appear to be sufficiently extensive and well calculated for every purpose of the contemplated establishment. There are already upon the premises a good stone house of two and a half stories, a barn, office, and a large garden, which may be applied to the residence of the President or some of the Professors or to other useful purpose connected with the object in view.

“We have further to acquaint you for His Excellency's information that the devise by the late Mr. McGill is upon several conditions, one whereof is that 'one of the Colleges be named McGill College, or if only one College should be selected, then that the said one shall be called McGill College!' Another of the conditions is 'that it be erected upon the tract so devised.'

“We therefore take the liberty of suggesting that it will be needful in forming the plan of the establishment to attend to these conditions so as to enable the Trustees to act in conformity to the trust reposed in them by the will of the deceased.”

Two years of inaction followed, and even after the trustees of the Royal Institution were appointed, delay characterised the efforts of the authorities. There seems to have been considerable disagreement between the Home Government and the Provincial Government with regard to the exact objects for which the revenue of the Jesuits' Estates was intended, and on the method of distribution. The Home authorities would not agree to assign any of the revenue to aid in the establishment of McGill College. Finally, in 1819, Lord Bathurst directed the Duke of Richmond, the Governor-General, immediately to commence the building of McGill College, and he authorised him to defray the expense which it might in the first instance be necessary to incur “from any funds which might be in the hands of the Receiver of the Jesuits' Estates.” But this instruction was not carried out. Its object seems to have been merely to prevent the lapse of the McGill bequest in conformity with the expressed condition of the will that the College should be erected within a definite time. Further, the proposed assistance from the Jesuits' Estates seems to have been an advance and not a gift. It is unnecessary here to follow in detail the disagreement and the struggle arising from the distribution of the revenue of these estates. For several years the subject was one of controversy, and meanwhile the cause of education suffered. In 1823 Lord Bathurst recommended to the Lords Commissioners of the Treasury that a loan of £50,000 at 4% interest should be granted to the Royal Institution, but this recommendation was not complied with. In 1825 a system was proposed by Lord Dalhousie, and subsequently followed, by which the management of the estates was taken over by the Inspector of the King's Domain under the control of the Governor in Council. He was allowed an agent in each district to collect the rents which were then turned in at stated periods to the Receiver General. For several years, however, particularly in 1830 and 1831, the question of assigning the revenues from the estates for the purpose of education was repeatedly under discussion, but no pledge for such financial assistance was given by the Home Government. At last, in 1831, the Home Government surrendered the Jesuits' Estates to the Provincial Legislature, and against much opposition the schools were placed under the control of the House of Assembly. The salaries of teachers were greatly reduced; they were granted on an annual vote on condition that instruction be given by each teacher to at least twenty pauper scholars. As a result, it was stated by those opposed to this new plan that “the schools were nothing more than places of cheap education for the children of people in the lower walks of life.” But notwithstanding this criticism the schools of the Province seem to have flourished to some extent at least under the new system. But it should not be forgotten that the Jesuits' Estates which had so long been the subject of discussion and controversy had in the end a very prominent part in the early history of McGill College. It was because of the funds derived from them when all other sources of revenue were exhausted that the trustees of the Royal Institution, and the executors of the will of James McGill, were permitted to prove in the courts the legality of the McGill bequest and to prosecute successfully their claims to his Burnside estate.

In accordance with Lord Bathurst's instructions to the Duke of Richmond in 1819, the Royal Institution for the Advancement of Learning proceeded to have the McGill property transferred from the executors of the will to their own control. They gave a power of attorney to S. Sewell, who subsequently continued for several years to act on their behalf. But delay again characterised the efforts of the Royal Institution, and it was not until January 18th, 1820, that final application for the transfer of the McGill estate was made to the three surviving executors, Hon. John Richardson, Hon. James Reid, and the Rev. Dr. Strachan. The estate was then in possession of Francis Desrivières, the nephew of the first husband of Mrs. James McGill. He was occupying Burnside House, James McGill's former home, and he was in control of the lands, products and rents of the estate. On receipt of the request from the Royal Institution, the executors wrote to Mr. Desrivières on January 20th, 1820, informing him that a University or College was about to be erected and established “for the purpose of education as designated in the will and in conformity to the conditions therein presented,” and asking “when the tract of land and premises now in your possession can be delivered over without subjecting you to unnecessary inconvenience.”

This inquiry was the beginning of a long and wearying controversy which resulted in protracted litigation and ended finally in an appeal to the Privy Council. The reply to the above request indicates that the Desrivières family was not inclined to give up the property without a struggle. Francis Desrivières wrote, “I beg leave to mention that when the demand for the property in question is made by the Corporation referred to [The Royal Institution], I will determine how far a compliance with that demand ought to take place on my part.” The executors forwarded this reply to the Attorney for the Royal Institution with the comment “you will perceive that it is evasive.” They further stated their intention to proceed nevertheless with the conveyance, “which, when completed, will be handed over to you; it will then rest with your Corporation to pursue such measures as may be considered proper on the occasion.”

The necessary papers for the transfer of the estate, but not the endowment fund—from the executors of the will to the Royal Institution were finally completed in May, 1820; on June 7th following, the conveyance was effected and the Deed was recorded on August 3rd. It was evident, however, to the executors that difficulties were in the way of securing possession of the property. In a letter to the Rev. Dr. Strachan, written on the 24th of May, 1820, the two remaining living executors, John Richardson and James Reid, said: “We are sorry to say that a general belief prevails, and we fear is too well founded, that Mr. Desrivières, the residuary legatee, means to contest this bequest of his venerable benefactor. If that shall be really his intention, it will speedily be known by a refusal after a formal demand is made by the Corporation for the delivery of possession of the aforesaid grounds and premises—whereupon a suit will be instituted against him in the October term.” To this letter Dr. Strachan replied, “I should hope that Mr. Desrivières will have a greater respect for the memory of his greatest benefactor than to contest a Legacy which goes to establish an institution which he had so much at heart.”

That the “general belief” and the fears above referred to were not groundless was soon apparent. Formal application for the vacating and the giving up of the estate was made by the trustees of the Royal Institution. The application was curtly refused. Francis Desrivières was in possession of the estate and he determined to remain in such possession until the Courts should decide otherwise. His solicitors based their claim, on his behalf, on the plea that a college had not yet been erected, that no steps had been taken towards its erection, that there was no intention to proceed with its establishment, and that it was now too late to comply with the conditions of the will with reference to time. With respect to the endowment fund, they claimed that they were not obliged to pay it until a college had been actually erected as provided in the will. As a result of these claims, a suit was at once instituted in the Courts by the Royal Institution for the purpose of obtaining possession of the estate, and on October 3rd, 1820, the Board passed a resolution authorising their attorney, Mr. Sewell, to secure the aid of Mr. Stuart as counsel in the case. Mr. Sewell subsequently had the assistance of Mr. Ogden, Mr. Vallières de St. Real, Mr. Griffin, and Mr. Cochrane.

The Board soon realised that if their suit was to be carried to a successful conclusion they must have funds to meet necessary expenses. They applied to the Governor-General for financial assistance, and as a result a sum of £200 was advanced to them as a loan, from the proceeds of the Jesuits' Estates. They realised, too, that it was necessary at once to give the College some semblance of organisation. Their solicitors advised the securing of a Charter without delay, and on February 7th, 1821, the Secretary of the Board wrote to Mr. Sewell, stating that “application for a Charter will be made to His Majesty's Government without loss of time, but it is the unanimous opinion of the Board that the case should proceed.” The Charter [here included as appendix B] received the sanction of the Crown on March 31st, 1821, and formed the basis of the court plea of the Royal Institution. Two years later the Board decided to secure a teaching staff, and by 1824 they had appointed a Principal, who was to be also Honorary Professor of Divinity, and four Professors. The latter held merely pro forma appointments, and were intended to fulfil a technical legal requirement; none of them ever lectured in the University, and when the College was actually opened five years later those who still remained willingly resigned to leave the Governors free to fill all Professorships as they desired. But the fact of their appointment doubtless helped the Board in the suit then pending.

It is needless here to outline in detail the litigation that followed. In answer to the Desrivières claim, the Board contended that, as required by the testator, McGill College had now been, to all intents and purposes, erected and established by Letters Patent under the Great Seal, and by the appointment of Professors. All the conditions of the will had therefore, they said, been fulfilled. Accordingly on November 8th, 1821, they made a formal demand upon the executors, the Hon. John Richardson and the Hon. Justice Reid, for the transfer of the legacy of £10,000 with interest due since the death of the testator. Francis Desrivières was in possession of this money, and on December 4th, 1821, the executors called on him for its payment. He replied that it would not be paid until the college had been built and established, as the case connected with property only had not yet been decided, and he did not regard the mere obtaining of a Charter as fulfilling the conditions of the will. As a result the executors and the Board issued instructions on December 26th, 1821, for the instituting of a second suit to obtain possession of the endowment fund, and the two suits proceeded.

The settlement of the first case was long delayed, and was attended with numerous discouragements. It involved, too, great expense, which the Board was not always able to meet. The judgment of the Court of King's Bench in Montreal was in favour of the Royal Institution. Mr. Desrivières then appealed from this judgment to the Privy Council, and again an irritating delay ensued before the appeal was heard. In July, 1823, the Board asked the Governor-General for a further loan of £300 from the revenues of the Jesuits' Estates as they were again in financial straits. The advance was made, but it was soon expended, and when forwarding a payment on account to Mr. Sewell on April 15th, 1824, the Secretary of the Board wrote, “this payment exhausts within a few pounds all the money of the Royal Institution. We are therefore in no very enviable situation as to funds.” Four more years passed before the first suit was finally settled; they were years during which in the face of obstacles that threatened the very existence of the College, the Board frequently despaired of success. On August 17th, 1824, the Secretary wrote to the Lieutenant-Governor of the Province, Sir F. N. Burton, pleading for his assistance and co-operation in bringing the case to a speedy conclusion, and asking for further financial assistance. The following extract from his letter indicates that the outlook was not entirely hopeful:

“The judgment of the Court of King's Bench at Montreal in favour of the Institution in suit against Mr. Desrivières has been confirmed by the Court of Appeals; but a further appeal has been made to the Privy Council; the sum of £300, advanced by way of Loan, by order of His Excellency, the Governor in Chief, in consequence of the address above referred to (in addition to £200 before received), from the proceeds of the Estates heretofore belonging to the late Order of Jesuits' has been subsequently expended. Your Excellency is likewise aware that not only is a question arising out of these complicated legal proceedings now pending in the Court of Appeals, but also that the action for the £10,000 which promises to be at least as expensive to the Institution as that for the Estate of Burnside, is as yet undecided in the Court of King's Bench at Montreal. Of the final result of these proceedings no doubt can reasonably be entertained; but the Institution have before them in the meantime the prospect of protracted Litigation without any means whatever of meeting the heavy expense attendant upon it—or even of defraying their ordinary contingent expenses, however trifling their amount. In these circumstances of unexampled difficulty, the Institution once more humbly pray that your Excellency in transmitting their Memorial to His Majesty's Government, will be pleased to accompany it with such representations as to your Excellency may seem best calculated to relieve them from the extreme embarrassment of their situation; from which, if it is not speedily extricated, not only must all hope be relinquished of the actual establishment of McGill College, already erected by the Royal Charter, but their operations must be suspended altogether and their very existence as a Corporation virtually cease.”

The reply to this letter was unfavourable, or at least indifferent, and on November 14, 1824, an appeal was made for a grant or a loan of £50 from the revenues of the Jesuits' Estates. Finally, towards the close of 1828, the judgment previously given in favour of the Royal Institution was confirmed by decree of the Privy Council in Appeal, and early in 1829 the Burnside Estate was given into the Board's possession. The suit in connection with the endowment fund was still pending. Because of the judgment given in the first suit, there was no doubt, however, about its ultimate result, but it was not finally settled by the Privy Council in favour of the Royal Institution until 1837.

When the Board took possession of the Burnside Estate they decided to lease to a farmer named O'Connor, the farm and garden for one year, “on the halves,” on condition that the lease could be cancelled by the Board on three months' notice. The leasing of the property was frequently the cause of controversy and annoyance. O'Connor contracted a bill for garden seeds amounting to over £3. He was unable to pay it and the seed merchant held the Estate liable, as the products of the seeds had improved the property. There was a long and technical discussion, until at last the bill was paid from the proceeds of the sale of wood from apple trees O'Connor had cut down, apparently to end the trouble. On the whole, the leasing was for a time profitable to the Board, but it was not always attended with harmony. Later, the land was leased to another farmer named Kelly for seven years, on condition that the lease could be surrendered on four months' notice, “and that Kelly should cut down the poplar trees.” Subsequently, the estate was leased in smaller sections.

In order to strengthen the claims then before the courts for the possession of the endowment fund, it was desirable actually to open the College in Burnside House as speedily as possible. It was decided that the opening should take place on Wednesday, the 24th of June, 1829, and notification of this intention was published in the press. In April a committee of the Board was appointed to draw up a Code of Statutes for the government of the College. The Rev. Archdeacon Mountain, son of the Principal of the Royal Institution for the Advancement of Learning, had been appointed Principal of the proposed University five years before. But no arrangements had been made for the future. There was apparently but little promise of a grant from the Government, and until the second suit should be settled in the courts and money thereby made available, it was obvious that all plans must be indefinite. The future would, it was hoped, take care of itself; the main object to be considered for the present at least was the opening of the College. With that accomplished, and the endowment fund paid, all difficulties, it was thought, would vanish, and the College would go forward to its intended place. But before it lay troubled years of uncertainty and anxiety. It was only the firm determination and the undefeated optimism of those who believed in its destiny that kept it from being merely the hope or the dream of a Scottish pioneer rather than a place of everlasting influence in our national life. The struggle of those years was not always without great disappointment, and even bitterness. But the product that emerged from the turmoil was perhaps greater and stronger for that fact.