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Lord Elgin
Chapter IV - The Indemnification Act

The legislature opened on January 18th, 1849, when Lord Elgin had the gratification of informing French Canadians that the restrictions imposed by the Union Act on the use of their language in the public records had been removed by a statute of the imperial parliament. For the first time in Canadian history the governor-general read the speech in the two languages; for in the past it had been the practice of the president of the legislative council to give it in French after it had been read in English from the throne. The session was memorable in political annals for the number of useful measures that were adopted. In later pages of this book I shall give a short review of these and other measures which show the importance of the legislation passed by the LaFontaine-Baldwin ministry. For the present I shall confine myself to the consideration of a question which created an extraordinary amount of public excitement, culminated in the destruction of valuable public property, and even threatened the life of the governor-general, who during one of the most trying crises in Canadian history, displayed a coolness and patience, an indifference to all personal considerations, a political sagacity and a strict adherence to sound methods of constitutional government, which entitle him to the gratitude of Canadians, who might have seen their country torn asunder by internecine strife, had there been then a weak and passionate man at the head of the executive. As it will be seen later, he, like the younger Pitt in England, was "the pilot who weathered the storm." In Canada, the storm, in which the elements of racial antagonism, of political rivalry and disappointment, of spoiled fortunes and commercial ruin raged tumultuously for a while, threatened not only to drive Canada back for years in its political and material development, but even to disturb the relations between the dependency and the imperial state.

The legislation which gave rise to this serious convulsion in the country was, in a measure, an aftermath of the rebellious risings of 1837 and 1838 in Upper and Lower Canada. Many political grievances had been redressed since the union, and the French Canadians had begun to feel that their interests were completely safe under a system of government which gave them an influential position in the public councils. The restoration of their language to its proper place in a country composed of two nationalities standing on a sure footing of equal political and civil rights, was a great consolation to the French people of the east. The pardon extended to the rash men who were directly concerned in the events of 1837 and 1838, was also well calculated to heal the wounds inflicted on the province during that troublous period. It needed only the passage of another measure to conceal the scars of those unhappy days, and to bury the past in that oblivion in which all Canadians anxious for the unity and harmony of the two races, and the satisfactory operation of political institutions, were sincerely desirous of hiding it forever. This measure was pecuniary compensation from the state for certain losses incurred by people in French Canada in consequence of the wanton destruction of property during the revolt. The obligation of the state to give such compensation had been fully recognized before and after the union.

The special council of Lower Canada and the legislature of Upper Canada had authorized the payment of an indemnity to those loyal inhabitants in their respective provinces who had sustained losses during the insurrections. It was not possible, however, before the union, to make payments out of the public treasury in accordance with the ordinance of the special council of Lower Canada and the statute of the legislature of Upper Canada. In the case of both provinces these measures were enacted to satisfy the demands that were made for compensation by a large number of people who claimed to have suffered losses at the outbreak of the rebellions, or during the raids from the United States which followed these risings and which kept the country in a state of ferment for months. The legislature of the united provinces passed an act during its first session to extend compensation to losses occasioned in Upper Canada by violence on the part of persons "acting or assuming to act" on Her Majesty's behalf "for the suppression of the said rebellion or for the prevention of further disturbances." Funds were also voted out of the public revenues for the payment of indemnities to those who had met with the losses set forth in this legislation affecting Upper Canada. It was, on the whole, a fair settlement of just claims in the western province. The French Canadians in the legislature supported the measure, and urged with obvious reason that the same consideration should be shown to the same class of persons in Lower Canada. It was not, however, until the session of 1845, when the Draper-Viger ministry was in office, that an address was passed to the governor-general, Lord Metcalfe, praying him to take such steps as were necessary "to insure to the inhabitants of that portion of this province, formerly Lower Canada, an indemnity for just losses suffered during the rebellions of 1837 and 1838." The immediate result was the appointment of commissioners to make inquiry into the losses sustained by "Her Majesty's loyal subjects" in Lower Canada "during the late unfortunate rebellion." The commissioners found some difficulty in acting upon their instructions, which called upon them to distinguish the cases of those "who had joined, aided or abetted the said rebellion, from the cases of those who had not done so," and they accordingly applied for definite advice from Lord Cathcart, whose advisers were still the Draper-Viger ministry. The commissioners were officially informed that "it was his Excellency's intention that they should be guided by no other description of evidence than that furnished by the sentences of the courts of law." They were further informed that it was only intended that they should form a general estimate of the rebellion losses, "the particulars of which must form the subject of more minute inquiry hereafter, under legislative authority."

During the session of 1846 the commissioners made a report which gave a list of 2,176 persons who made claims amounting in the aggregate to L241,965. At the same time the commissioners expressed the opinion that L100,000 would be adequate to satisfy all just demands, and directed attention to the fact that upwards of L25,503 were actually claimed by persons who had been condemned by a court-martial for their participation in the rebellion. The report also set forth that the inquiry conducted by the commissioners had been necessarily imperfect in the absence of legal power to make a minute investigation, and that they had been compelled largely to trust to the allegations of the claimants who had laid their cases before them, and that it was only from data collected in this way that they had been able to come to conclusions as to the amount of losses.

When the Draper-Viger ministry first showed a readiness to take up the claims of Lower Canada for the same compensation that had been granted to Upper Canada, they had been doubtless influenced, not solely by the conviction that they were called upon to perform an act of justice, but mainly by a desire to strengthen themselves in the French province. We have already read that their efforts in this direction entirely failed, and that they never obtained in that section any support from the recognized leaders of public opinion, but were obliged to depend upon Denis B. Papineau and Viger to keep up a pretence of French Canadian representation in the cabinet. It is, then, easy to believe that, when the report of the commissioners came before them, they were not very enthusiastic on the subject, or prepared to adopt vigorous measures to settle the question on some equitable basis, and remove it entirely from the field of political and national conflict.

They did nothing more than make provision for the payment of L9,986, which represented claims fully investigated and recognized as justifiable before the union, and left the general question of indemnity for future consideration. Indeed, it is doubtful if the Conservative ministry of that day, the mere creation of Lord Metcalfe, kept in power by a combination of Tories and other factions in Upper Canada, could have satisfactorily dealt with a question which required the interposition of a government having the confidence of both sections of the province. One thing is quite certain. This ministry, weak as it was, Tory and ultra-loyalist as it claimed to be, had recognized by the appointment of a commission, the justice of giving compensation to French Canada on the principles which had governed the settlement of claims from Upper Canada. Had the party which supported that ministry been influenced by any regard for consistency or principle, it was bound in 1849 to give full consideration to the question, and treat it entirely on its merits with the view of preventing its being made a political issue and a means of arousing racial and sectional animosities. As we shall now see, however, party passion, political demagogism, and racial hatred prevailed above all high considerations of the public peace and welfare, when parliament was asked by the LaFontaine-Baldwin ministry to deal seriously and practically with the question of indemnity to Lower Canada.

The session was not far advanced when LaFontaine brought forward a series of resolutions, on which were subsequently based a bill, which set forth in the preamble that "in order to redeem the pledge given to the sufferers of such losses ... it is necessary and just that the particulars of such losses, not yet paid and satisfied, should form the subject of more minute inquiry under legislative authority (see p. 65 ante) and that the same, so far only as they may have arisen from the total or partial, unjust, unnecessary or wanton destruction of dwellings, buildings, property and effects ... should be paid and satisfied." The act provided that no indemnity should be paid to persons "who had been convicted of treason during the rebellion, or who, having been taken into custody, had submitted to Her Majesty's will, and been transported to Bermuda." Five commissioners were to be appointed to carry out the provisions of the act, which also provided L400,000 for the payment of legal claims.

Then all the forces hostile to the government gathered their full strength for an onslaught on a measure which such Tories as Sir Allan MacNab and Henry Sherwood believed gave them an excellent opportunity of arousing a strong public sentiment which might awe the governor-general and bring about a ministerial crisis. The issue was not one of public principle or of devotion to the Crown, it was simply a question of obtaining a party victory per fas aut nefas. The debate on the second reading of the bill was full of bitterness, intensified even to virulence. Mr. Sherwood declared that the proposal of the government meant nothing else than the giving of a reward to the very persons who had been the cause of the shedding of blood and the destruction of property throughout the country. Sir Allan MacNab went so far in a moment of passion as to insult the French Canadian people by calling them "aliens and rebels." The solicitor-general, Mr. Hume Blake,[10] who was Irish by birth, and possessed a great power of invective, inveighed in severe terms against "the family compact" as responsible for the rebellion, and declared that the stigma of "rebels" applied with complete force to the men who were then endeavouring to prevent the passage of a bill which was a simple act of justice to a large body of loyal people. Sir Allan MacNab instantly became furious and said that if Mr. Blake called him a rebel it was simply a lie.

Then followed a scene of tumult, in which the authority of the chair was disregarded, members indulged in the most disorderly cries, and the people in the galleries added to the excitement on the floor by their hisses and shouts. The galleries were cleared with the greatest difficulty, and a hostile encounter between Sir Allan and Mr. Blake was only prevented by the intervention of the sergeant-at-arms, who took them into custody by order of the House until they gave assurances that they would proceed no further in the unseemly dispute. When the debate was resumed on the following day, LaFontaine brought it again to the proper level of argument and reason, and showed that both parties were equally pledged to a measure based on considerations of justice, and declared positively that the government would take every possible care in its instructions to the commissioner; that no rebel should receive any portion of the indemnity, which was intended only as a compensation to those who had just claims upon the country for the losses that they actually sustained in the course of the unfortunate rebellion. At this time the Conservative and ultra-loyal press was making frantic appeals to party passions and racial prejudices, and calling upon the governor-general to intervene and prevent the passage of a measure which, in the opinion of loyal Canadians, was an insult to the Crown and its adherents. Public meetings were also held and efforts made to arouse a violent feeling against the bill. The governor-general understood his duty too well as the head of the executive to interfere with the bill while passing through the two Houses, and paid no heed to these passionate appeals dictated by partisan rancour, while the ministry pressed the question to the test of a division as soon as possible. The resolutions and the several readings of the bill passed both Houses by large majorities. The bill was carried in the assembly on March 9th by forty-seven votes against eighteen, and in the legislative council on the 15th, by fifteen against fourteen. By an analysis of the division in the popular chamber, it will be seen that out of thirty-one members from Upper Canada seventeen supported and fourteen opposed the bill, while out of ten Lower Canadian members of British descent there were six who voted yea and four nay. The representatives of French Canada as a matter of course were arrayed as one in favour of an act of justice to their compatriots. During the passage of the bill its opponents deluged the governor-general with petitions asking him either to dissolve the legislature or to reserve the bill for the consideration of the imperial government. Such appeals had no effect whatever upon Lord Elgin, who was determined to adhere to the well understood rules of parliamentary government in all cases of political controversy.

When the bill had passed all its stages in the two Houses by large majorities of both French and English Canadians, the governor-general came to the legislative council and gave the royal assent to the measure, which was entitled "An Act to provide for the indemnification of parties in Lower Canada whose property was destroyed during the rebellion in the years 1837 and 1838." No other constitutional course could have been followed by him under all the circumstances. In his letters to the colonial secretary he did not hesitate to express his regret "that this agitation should have been stirred, and that any portion of the funds of the province should be diverted now from much more useful purposes to make good losses sustained by individuals in the rebellion," but he believed that "a great deal of property was cruelly and wantonly destroyed" in Lower Canada, and that "this government, after what their predecessors had done, and with Papineau in the rear, could not have helped taking up this question." He saw clearly that it was impossible to dissolve a parliament just elected by the people, and in which the government had a large majority. "If I had dissolved parliament," to quote his own words, "I might have produced a rebellion, but assuredly I should not have procured a change of ministry. The leaders of the party know that as well as I do, and were it possible to play tricks in such grave concerns, it would have been easy to throw them into utter confusion by merely calling upon them to form a government. They were aware, however, that I could not for the sake of discomfiting them hazard so desperate a policy; so they have played out their game of faction and violence without fear of consequences."

His reasons for not reserving the bill for the consideration of the British government must be regarded as equally cogent by every student of our system of government, especially by those persons who believe in home rule in all matters involving purely Canadian interests. In the first place, the bill for the relief of a corresponding class of persons in Upper Canada, "which was couched in terms very nearly similar, was not reserved," and it was "difficult to discover a sufficient reason, so far as the representative of the Crown was concerned, for dealing with the one measure differently from the other." And in the second place, "by reserving the bill he should only throw upon Her Majesty's government or (as it would appear to the popular eye in Canada) on Her Majesty herself, a responsibility which rests and ought to rest" upon the governor-general of Canada. If he passed the bill, "whatever mischief ensues may probably be repaired," if the worst came to the worst, "by the sacrifice" of himself. If the case were referred to England, on the other hand, it was not impossible that Her Majesty might "only have before her the alternative of provoking a rebellion in Lower Canada, by refusing her assent to a measure chiefly affecting the interests of the habitants and thus throwing the whole population into Papineau's hands, or of wounding the susceptibilities of some of the best subjects she has in the province."

A Canadian writer at the present time can refer only with a feeling of indignation and humiliation to the scenes of tumult, rioting and incendiarism, which followed the royal assent to the bill of indemnity. When Lord Elgin left Parliament House--formerly the Ste. Anne market--a large crowd insulted him with opprobrious epithets. In his own words he was "received with ironical cheers and hootings, and a small knot of individuals, consisting, it has since been ascertained, of persons of a respectable class in society, pelted the carriage with missiles which must have been brought for that purpose." A meeting was held in the open air, and after several speeches of a very inflammatory character had been made, the mob rushed to the parliament building, which was soon in flames. By this disgraceful act of incendiarism most valuable collections of books and documents were destroyed, which, in some cases, could not be replaced. Supporters of the bill were everywhere insulted and maltreated while the excitement was at its height. LaFontaine's residence was attacked and injured. His valuable library of books and manuscripts, some of them very rare, was destroyed by fire--a deplorable incident which  ecalls the burning and mutilation of the rich historical collections of Hutchinson, the last loyalist governor of Massachusetts, at the commencement of the American revolution in Boston.

A few days later Lord Elgin's life was in actual danger at the hands of the unruly mob, as he was proceeding to Government House--then the old Chateau de Ramezay on Notre Dame Street--to receive an address from the assembly. On his return to Monklands he was obliged to take a circuitous route to evade the same mob who were waiting with the object of further insulting him and otherwise giving vent to their feelings.

The government appears to have been quite unconscious that the public excitement was likely to assume so dangerous a phase, and had accordingly taken none of those precautions which might have prevented the destruction of the parliament house and its valuable contents. Indeed it would seem that the leaders of the movement against the bill had themselves no idea that the political storm which they had raised by their inflammatory harangues would become a whirlwind so entirely beyond their control. Their main object was to bring about a ministerial crisis. Sir Allan MacNab, the leader of the opposition, himself declared that he was amazed at the dangerous form which the public indignation had at last assumed. He had always been a devoted subject of the sovereign, and it is only just to say that he could under no circumstances become a rebel, but he had been carried away by his feelings and had made rash observations more than once under the belief that the bill would reward the same class of men whom he and other loyalists had fought against in Upper Canada. Whatever he felt in his heart, he and his followers must always be held as much responsible for the disturbances of 1849 as were Mackenzie and Papineau for those of 1837. Indeed there was this difference between them: the former were reckless, but at least they had, in the opinion of many persons, certain political grievances to redress, while the latter were simply opposing the settlement of a question which they were bound to consider fairly and impartially, if they had any respect for former pledges. Papineau, Mackenzie and Nelson may well have found a measure of justification for their past madness when they found the friends of the old "family compact" and the extreme loyalists of 1837 and 1838 incited to insult the sovereign in the person of her representative, to create racial passion and to excite an agitation which might at any moment develop into a movement most fatal to Canada and her connection with England.

Happily for the peace of the country, Lord Elgin and his councillors showed a forbearance and a patience which could hardly have been expected from them during the very serious crisis in which they lived for some weeks. "I am prepared," said Lord Elgin at the very moment his life was in danger, "to bear any amount of obloquy that may be cast upon me, but, if I can possibly prevent it, no stain of blood shall rest upon my name." When he remained quiet at Monklands and decided not to give his enemies further opportunities for outbursts of passion by paying visits to the city, even if protected by a military force, he was taunted by the papers of the opposition with cowardice for pursuing a course which, we can all now clearly see, was in the interests of peace and order. When at a later time LaFontaine's house was again attacked after the arrest of certain persons implicated in the destruction of the parliament house, and one of the assailants was killed by a shot fired from inside, he positively refused to consent to martial law or any measures of increased rigour until a further appeal had been made to the mayor and corporation of the city. The issue proved that he was clearly right in his opinion of the measures that should be taken to restore order at this time. The law-abiding citizens of Montreal at once responded to a proclamation of the mayor to assist him in the maintenance of peace, and the coroner's jury--one member being an Orangeman who had taken part in the funeral of the deceased--brought in a unanimous verdict, acquitting LaFontaine of all blame for the unfortunate incident that had occurred during the unlawful attack on his residence.

The Montreal disturbances soon evoked the indignation of the truly loyal inhabitants of the province. Addresses came to the governor-general from all parts to show him that the riots were largely due to local causes, "especially to commercial distress acting on religious bigotry and national hatred." He had also the gratification of learning that his constitutional action was fully justified by the imperial government, as well as supported in parliament where it was fully discussed. When he offered to resign his office, he was assured by Lord Grey that "his relinquishment of that office, which, under any circumstances, would be a most serious blow to Her Majesty's service and to the province, could not fail, in the present state of affairs, to be most injurious to the public welfare, from the encouragement which it would give to those who have been concerned in the violent and illegal opposition which has been offered to your government." In parliament, Mr. Gladstone, who seems never to have been well-informed on the subject, went so far as to characterize the Rebellion Losses Bill as a measure for rewarding rebels, but both Lord John Russell, then leader of the government, and his great opponent, Sir Robert Peel, gave their unqualified support to the measure. The result was that an amendment proposed by Mr. Herries in favour of the disallowance of the act was defeated by a majority of 141.

This action of the imperial authorities had the effect of strengthening the public sentiment in Canada in support of Lord Elgin and his advisers. The government set to work vigorously to carry out the provisions of the law, appointing the same commissioners as had acted under the previous ministry, and was able in a very short time to settle definitely this very disturbing question. It was deemed inexpedient, however, to keep the seat of government at Montreal. After a very full and anxious consideration of the question, it was decided to act on the recommendation of the legislature that it should thereafter meet alternately at Toronto and Quebec, and that the next session should be held at Toronto in accordance with this arrangement This "perambulating system" was tried for several years, but it proved so inconvenient and expensive that the legislature in 1858 passed an address to Her Majesty praying her to choose a permanent capital. The place selected was the city of Ottawa, on account of its situation on the frontier of the two provinces, the almost equal division of its population into French and English, its remoteness from the American borders, and consequently its comparative security in time of war. Some years later it became the capital of the Dominion of Canada--the confederation of provinces and territories extending across the continent.

In the autumn of 1849 Lord Elgin made a tour of the western part of the province of Upper Canada for the purpose of obtaining some expression of opinion from the people in the very section where the British feeling was the strongest. On this occasion he was attended only by an aide-de-camp and a servant, as an answer to those who were constantly assailing him for want of courage. Here and there, as he proceeded west, after leaving French Canada, he was insulted by a few Orangemen, notably by Mr. Ogle R. Gowan, who appeared on the wharf at Brockville with a black flag, but apart from such feeble exhibitions of political spite he met with a reception, especially west of Toronto, which proved beyond cavil that the heart and reason of the country, as a whole, were undoubtedly in his favour, and that nowhere was there any actual sympathy with the unhappy disturbances in Montreal. He had also the gratification soon after his return from this pleasant tour to receive from the British government an official notification that he had been raised to the British peerage under the title of Baron Elgin of Elgin in recognition of his distinguished services to the Crown and empire in America.

But it was a long time before Lord Elgin was forgiven by a small clique of politicians for the part he had taken in troubles which ended in their signal discomfiture. The political situation continued for a while to be aggravated by the serious commercial embarrassment which existed throughout the country, and led to the circulation of a manifesto, signed by leading merchants and citizens of Montreal, urging as remedies for the prevalent depression a revival of colonial protection by England, reciprocal free trade with the United States, a federal union or republic of British North America, and even annexation to the neighbouring states as a last resort. This document did not suggest rebellion or a forceable separation from England. It even professed affection for the home land; but it encouraged the idea that the British government would doubtless yield to any colonial pressure in this direction when it was convinced that the step was beyond peradventure in the interest of the dependency. The manifesto represented only a temporary phase of sentiment and is explained by the fact that some men were dissatisfied with the existing condition of things and ready for any change whatever. The movement found no active or general response among the great mass of thinking people; and it was impossible for the Radicals of Lower Canada to persuade their compatriots that their special institutions, so dear to their hearts, could be safely entrusted to their American republican neighbours. All the men who, in the thoughtlessness of youth or in a moment of great excitement, signed the manifesto--notably the  Molsons, the Redpaths, Luther H. Holton, John Rose, David Lewis MacPherson, A.A. Dorion, E. Goff Penny--became prominent in the later public and commercial life of British North America, as ministers of the Crown, judges, senators, millionaires, and all devoted subjects of the British sovereign.

When Lord Elgin found that the manifesto contained the signatures of several persons holding office by commission from the Queen, he made an immediate inquiry into the matter, and gave expression to the displeasure of the Crown by removing from office those who confessed that they had signed the objectionable document, or declined to give any answer to the queries he had addressed to them. His action on this occasion was fully justified by the imperial government, which instructed him "to resist to the utmost any attempt that might be made to bring about a separation of Canada from the British dominions." But while Lord Elgin, as the representative of the Queen, was compelled by a stern sense of duty to condemn such acts of infidelity to the empire, he did not conceal from himself that there was a great deal in the economic conditions of the provinces which demanded an immediate remedy before all reason for discontent could disappear. He did not fail to point out to Lord Grey that it was necessary to remove the causes of the public irritation and uneasiness by the adoption of measures calculated to give a stimulus to Canadian industry and commerce. "Let me then assure your Lordship," he wrote in November 1849, "and I speak advisedly in offering this assurance, that the dissatisfaction now existing in Canada, whatever may be the forms with which it may clothe itself, is due mainly to commercial causes. I do not say that there is no discontent on political grounds. Powerful individuals and even classes of men are, I am well aware, dissatisfied with the conduct of affairs. But I make bold to affirm that so general is the belief that, under the present circumstances of our commercial condition, the colonists pay a heavy pecuniary fine for their fidelity to Great Britain, that nothing but the existence of an unwonted degree of political contentment among the masses has prevented the cry for annexation from spreading like wildfire through the province." He then proceeded again to press upon the consideration of the government the necessity of following the removal of the imperial restrictions upon navigation and shipping in the colony, by the establishment of a reciprocity of trade between the United States and the British North American Provinces. The change in the navigation laws took place in 1849, but it was not possible to obtain larger trade with the United States until several years later, as we shall see in a future chapter when we come to review the relations between that country and Canada.

Posterity has fully justified the humane, patient and discreet constitutional course pursued by Lord Elgin during one of the most trying ordeals through which a colonial governor ever passed. He had the supreme gratification, however, before he left the province, of finding that his policy had met with that success which is its best eulogy and justification. Two years after the events of 1849, he was able to write to England that he did not believe that "the function of the governor-general under constitutional government as the moderator between parties, the representative of interests which are common to all the inhabitants of the country, as distinct from those that divide them into parties, was ever so fully and so frankly recognized." He was sure that he could not have achieved such results if he had had blood upon his hands. His business was "to humanize, not to harden." One of Canada's ablest men--not then in politics--had said to him: "Yes, I see it all now, you were right, a thousand times right, though I thought otherwise then. I own that I would have reduced Montreal to ashes before I would have endured
half of what you did," and he added, "I should have been justified, too." "Yes," answered Lord Elgin, "you would have been justified because your course would have been perfectly defensible; but it would not have been the best course. Mine was a better one." And the result was this, in his own words:

"700,000 French reconciled to England, not because they are getting rebel money; I believe, indeed that no rebels will get a farthing; but because they believe that the British governor is just. 'Yes,' but you may say, 'this is purchased by the alienation of the British.' Far from it, I took the whole blame upon myself; and I will venture to affirm that the Canadian British were never so loyal as they are at this hour; [this was, remember, two years after the burning of Parliament House] and, what is more remarkable still, and more directly traceable to this policy of forbearance, never, since Canada existed, has party spirit been more moderate, and the British and French races on better terms than they are now; and this in spite of the withdrawal of protection, and of the proposal to throw on the colony many charges which the imperial government has hitherto borne."

Canadians at the beginning of the twentieth century may also say as Lord Elgin said at the close of this letter, Magna est Veritas.

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