Barnett V Davis

An Annotated Transcript of 2015.052.21 — Barnett’s  Grievances

By Clark Bernat

The original of this article appeared in the 2016 Circa magazine.

We recently received a donation of material related to Thomas Barnett. The staff here at the Museum certainly have a soft spot for the Barnett’s and their ongoing saga as business owners at Niagara Falls.  It could be a disdain for what he says about his competitor Saul Davis or it could be the fact that we connect with the owner of the first museum in Niagara Falls.  As mentioned in the document below, Barnett’s was a Museum with natural history curiosities, but we also know that it had a great collection of mummies and other interesting items from around Canada and the world.  The document below is a great description of the issues going on at The Front and around Table Rock (in the words of Thomas Barnett).  These issues would persist until 1873, when it was decided that the only way to ensure that the public had access to the wonder of Niagara Falls was by putting it in the hands of the government.

I have transcribed the document and added notes along the way, almost as a tip of the hat to J. Ross Robertson who did this so well in his publication of the Diary of Elizabeth Simcoe in 1911:  History as told by the person who witnessed it.

The document is seven pages, the last one is blank.  The top page is bonded paper with the marking “J Bateman 1872 [?]” the remaining pages are a different paper.

Punctuation and spelling was intended to be left as written – there are two places where the transcriber left notes, indicated with square brackets [ ].

To his Excellency Sir John Michel ^I  Administrator of the Government of British North America (&c &c &c)

The Petition of Thomas Barnett of the Town of Clifton in the County of Welland gentleman humbly sheweth

1. That about the year one thousand eight hundred and thirty your Petitioner was induced to take up his residence at Niagara Falls by a promise from Sir John Colborne ⁱⁱ and several members of his Government of aid in the establishment of a public Museum at that place and your Petitioner has resided there ever since diligently laboring to build up a Museum that would be a credit to Canada
2. That some years after a lease was granted your Petitioner [missing] Ordnance Department of certain property in the vicinity of Niagara Falls but in consequence of the peculiar wording of the same Your Petitioner was put to much expense in a law-suit that arose thereupon the result of which showed the lease to be of no real value ⁱⁱⁱ .
3. That the said lease was then returned to the Ordnance Department to be amended but before that was done the lands passed into the hand of the Province and your Petitioner was much astonished to find that without his knowledge a lease had been granted to Saul Davis in the year one thousand eight hundred and sixty by which the public were excluded from free access to the Falls
4. That said last mentioned lease was assigned by the said Saul Davis to one George Caplin a resident of the United States on the very day it was received by the said Saul Davis and your Petitioner acting under the opinion of the of the Crown Lands Department brought an action in the Court of Common Pleas against the said George Caplin and a cross action was also brought by the said George Caplin in the said Court against your Petitioner both of which actions were brought to decide the rights of the several parties under the said lease
5. That both of said actions were decided against your petitioner and in direct opposition to the opinion of the then Commissioner of Crown Lands and your Petitioner was in consequence put to great trouble and expense and had to pay a large amount of costs amounting to upwards of seven hundred dollars ^iv .
6. That your Petitioner was about this time engaged in the erection of large and commodious stone buildings suitable for the reception of his immense collection of natural curiosities and had applied for and expected aid from the government to assist in carrying out his project and although the matter was most favourably reported upon by a committee of the House of Assembly no aid was granted by reason of which and the injury to his business in consequence of the said lease to the said Saul Davis your Petitioner was very materially injured
7. That the lease granted to the said Saul Davis continued in force for nearly two years and was then cancelled by the Crown Lands Department in consequence of the abuse of the privilege granted thereunder by the said Saul Davis
8. That in the month of August one thousand eight hundred and sixty-five the spiral wooden staircase erected by the said Saul Davis was burnt down and the said Saul Davis without the lease or license of the Crown proceeded to excavate by blasting and other means the top of the cliff and roadway opposite his place with the view of narrowing the roadway and rebuilding his staircase in such a manner as to close up the pathway at the foot of the rock used for many years by visitors descending the stairs which your Petitioner had cut out of the solid rock at a very heavy expense
9. That on the application of Your Petitioner a perpetual injunction was granted by the Court of Chancery ^v restraining him the said Saul Davis from doing any further injury to the said Roadway (&c)
10. That the said Saul Davis afterwards obtained a new lease from the Crown Lands Department which however obliged him to rebuild his said staircase on the old site which said last mentioned lease and staircase were seized and sold by the Sheriff and Your Petitioner became the purchaser of the same
11. That from the extortions practiced by the said Saul Davis and his agent upon visitors [?] to the said Falls and the widespread complaints arising therefrom the said Falls have become very materially injured as a place of public resort and property has depreciated in value in consequence thereof
12. That your Petitioner has spent the greater portion of his life and upwards of one hundred thousand dollars ^vi in making a collection of natural curiosities second to none in Canada and in providing suitable buildings for the same
13. That your Petitioner and his son were recently arrested at the instance of the said Saul Davis on a charge of Perjury said Saul Davis alleging that the affidavit made by your Petitioner and son some eighteen months ago for the injunction hereinbefore mentioned was false but upon the trial of said charge at the last Court of Oyer and Terminer ^vii at Toronto Your Petitioner and son were honorably acquitted and that too upon evidence of the first and only witness examined upon the part of the Crown as to the merits of the case the said witness being moreover the father-in-law of the said Saul Davis
14. That the abuses heretofore practiced by the said Saul Davis towards visitors to the Falls will no doubt be to a great extent ameliorated owing to the presence of several of the Provincial Police under the able superintendence Gilbert McMicken Esquire ^viii but your Petitioner would respectfully urge that so long as privileges are granted at the Falls by the Crown Lands Department to the said Saul Davis just so long will the Falls upon the Canadian side be retarded from taking that prominent place among the public resorts of America which it should occupy

15. That in consequence of the privilege of guiding visitors under the falls being exercised by the more than one person a system of payment to cab drivers of a large percentage upon sums received from visitors has sprung up and in order to meet the demands of the cab drivers visitors are charged exorbitant prices for articles purchased guides, dresses, &c and cab drivers are induced to make false representations to intending visitors in order to prevail upon them to patronize whoever will pay them the largest percentage
16. That your Petitioner would respectfully suggest that the only method of putting a stop to the said extortions and abuses is by granting to one person ^ix only the privilege of guiding persons under the falls the same to be under proper restrictions and subject to the forfeiture of said privilege if abused in any way whatever
17. Your Petitioner therefore humbly prays that in view of all the facts hereinbefore set forth and considering that all the public schools are admitted to the museum without charge a new lease may be granted to him giving him the exclusive right to guide visitors under the falls in lieu of the lease granted to the said Saul Davis (of which he is the purchaser as aforesaid) and of the lease granted to himself in the year one thousand eight hundred and sixty-two Your Petitioner undertaking to keep the permanent stairway and pathway leading under the falls in good repair and submitting to such regulations and restrictions as the Government may impose

And your Petitioner as in duty bound will ever pray

Dated at Clifton
the 7^th day of May 1867

Thomas Barnett

Notes

I    John Michel was a lifelong soldier in the British Army who saw action all over the world prior to being appointed to command the forces in British North America in 1865 under Viscount Monck who was Governor General. Most notably, Michel was in charge of forces during the Fenian Invasions.  At the time of this letter, Michel had replaced Monck in his absence as administrator of the Canadas.

ii   Lieutenant Governor of Upper Canada (1828-1836).

iii  Not sure at what point Barnett is referring to his notification that his lease is not legit. The Provincial Archives (Ontario) has a letter dated 1847 from the Officers of the Board of Ordnance to Thomas Clark Street and J. Buchanan assuring them that T. Barnett has not been granted any privileges at the Falls.

iv   The author could not find a good Inflation calculator for Canadian funds pre 1914, however, as a matter of interest, if the $700 was in US currency in 1867 it would now be worth between $10,000 - $12,000 according to different calculators.

v    1837 the government of Upper Canada introduced at Court of Chancery to its now fully-functioning judicial system. The system would consist of superior, county, and district courts, a court of equity (called the Court of Chancery), and a small claims court (called Division Court).

vi   Again, US comparisons made only for reference. These calculators determined that $100,000 in 1867 funds would be equal to somewhere between $1,500,000 - $1,700,000.

vii   The courts for criminal matters were referred to both as "Courts of Assize" and "Courts of Oyer and Terminer and General Gaol Delivery" from 1775-1860.

viii   McMicken arrived in Canada in 1832 and was in the forwarding business along with the Hamilton’s of Queenston. This was the movement of items along the Portage Road between Chippawa and Queenston. He was elected Mayor of Clifton in 1856. From 1857-1861 he was the member of the Legislative Assembly, representing Welland County. He continued an illustrious career as a land agent and Canada’s first undercover agency within the province and then moved to Manitoba to continue his career. In Manitoba he held such positions as Speaker of the House of Assembly and Dominions Land Agent.

ix   The issues involved in this case lead to the Royal Commission to Inquire into Alleged Abuses Occurring in the Vicinity of Niagara Falls in 1873. This Royal Commission was established to inquire into complaints of ill-treatment and extortion practiced upon visitors to Niagara Falls. Commissioner E.B. Wood examined all sides of the controversy and came to the conclusion that the government should cancel all leases and assume control of the area itself, so as to render the area accessible to one and all and hence cut down on the abuses that had become so rampant.