Selkirk was deeply interested in the result of these accusations and had given a great deal of attention to the investigation, he did not wish in the absence of his Lordship to put these men on their trial." The cases proceeded on Monday, October 26, in the absence of the private prosecutor: he left Montreal, indeed, at that time in the direction of Upper Canada and was confidently expected there; but he turned off to the left and proceeded to England by way of New York and never set foot in Canada again.

He petitioned the Prince Regent and Parliament but without redress; a volume of correspondence between his friend Halkett acting on his behalf, and Lord Bathurst is well known.15 Most serious charges were made by him and have been made since by his admirers against the administration of Justice in Upper Canada. A late writer says: "Justice was undoubtedly perverted in Upper Canada in the most shameless way";16 and this kind of charge has been widely believed. Any impartial person who will peruse with care the contemporary and other accounts of the transactions will say with perfect confidence that there is not a shadow of evidence to support the charge of perversion of justice in Upper Canada. Dealing only with the Chief Justice; whatever the merits of the controversy in the Red River Country, he had nothing to do with it. Lord Selkirk with an armed force of soldiers took forcible possession of Fort William, he was the first wrong doer in territory over which the Upper Canada Courts had jurisdiction. His mistake in sending those whom he accused of crime in the Indian Territory to Sandwich, was corrected by the Chief Justice. Shortly thereafter, partners in the North West Company applied to the Chief Justice for a warrant against him for felony, and he refused. Then the partners asked for his interference in the matter of the forcible entry and detainer of Fort William: that he also refused, and told the applicants that this was exclusively in the jurisdictin of the Magistrates of the Western Districts and the redress a writ of restitution if the Magistrates saw fit to award one. A writ of Habeas Corpus to produce the body of Daniel McKenzie was then asked for; that he could not refuse, but lest there should be bloodshed the Writ was not entrusted to the Company but to a special tipstaff who had specific instructions to deliver it peaceably and privately to Selkirk. This was done, and Selkirk returned that McKenzie was not in his custody.

When the Earl presented himself at Powell's house at York to surrender upon the warrant, he was referred to the Attorney

General, D'Arcy Boulton, and it was arranged that he should surrender to the Magistrate who issued the warrant. This warrant had been issued upon the sworn information by two persons who appeared to know the facts; and even Selkirk does not complain of what was done by the Magistrates upon the hearing nor has he anything to say against the Crown Officer, Acting Solicitor General Henry John Boulton-Boulton said "he was officially directed to bring forward against Lord Selkirk a charge of resistance to legal processes" and Selkirk was bound over in a trifling sum to appear at the next Assizes.

An indictment had been found at the previous Quarter Sessions against him for assault, etc., upon William Smith; he was bound over for this also but was unable from press of business to attend the next Sessions, and the bill was, at the instance of Attorney General Robinson, quashed for irregularity.

The proceedings at Sandwich at the Assizes have already been detailed. The only thing that Selkirk could possibly complain of was that a Bill was laid for Conspiracy. With that Powell had nothing to do. There was no perversion of justice, and the only irregularity was that of the friends of Selkirk on the Grand Jury in hearing witnesses on his behalf.

Whether the Act of the Legislature enabling proceedings to be had elsewhere than at Sandwich was wise may be a matter of opinion; that the Houses of Parliament approved is obvious, and after what had occurred at Sandwich few will doubt the wisdom.

Those who were accused by Selkirk and who came before the Upper Canada Courts were prosecuted with vigour, and no fault can be found with the rulings of the Judges. As the Chief Justice is the person most assailed it should be mentioned that the opinions of all the Judges on matters of law agreed and that in charges to the Jury Mr. Justice Boulton was much more favourable to the accused than was his Chief.

No complaint has ever been made against Powell in the civil trials.

As the Attorney General was rather an Imperial than a Provincial Officer and responsible to the authorities at Westminster, it may not be improper to say that "the temper and judgment with which he . . . . conducted himself during the whole of these long and difficult proceedings . . ." received the entire approbation of the Home Government.17

W

CHAPTER XVII

DECLINE IN INFLUENCE

HEN Gore left the Province in 1817, he was succeeded by Samuel Smith as Administrator of the Government and he remained Administrator for more than a year, being succeeded by Sir Peregrine Maitland, August 13, 1818. Maitland had undoubtedly received an unfavourable impres sion of Powell, "too marked to be mistaken", from some source before his arrival at York and for some time he treated him with great coolness and distrust.1

But this distrust passed away by the end of the following year; and from 1819 to 1822, Powell was, with the exception of certain intervals of reserve and coolness on the part of the Governor, persona grata with him. He, however, was not the "power behind the throne" which he had been in Gore's time. Whether because Powell could not concur with him in all matters or for some other reason, Gore on his return to Upper Canada procured the appointment to the Executive Council of the Reverend John Strachan-the divine was Chaplain of the Legislative Council but he became a Member of that body in 1820. It is not proposed here to discuss the character of this remarkable man: we are perhaps too near his times for an impartial estimate and opinions are yet modified if not determined by sectarian relationships. But all are agreed that he was "a man of fiery energy and resolution", "a grim and determined warrior" "who was wont to take a masterful lead", that he never surrendered and his idea of retreat was reculer pour mieux sauter, that he was whole heartedly attached to his Church and earnestly advanced what he believed to be her interests, wholly disregardful of the opinion of those not of her communion.2

After Dr. Strachan's call to the Executive Council if not before, he and Powell were looked upon by the public as leaders of the official party afterwards to be known as the Family Compact. But there seldom was complete harmony,1 and as time went by the differences became acute.

3

Some of

the dissension arose from the view of Dr. Strachan that the Clergy Reserves belonged entirely to the Church of England, while Powell, a lawyer before all else, considered that the

words "Protestant Clergy" in the Canada Act had a much wider connotation. But that did not account for the wholetwo strong men, of strong views, unbending and determined had met the one must increase, the other decrease. Strachan's rugged physical health gave him an advantage over Powell who was now feeling the effects of advancing years he was twentytwo years older than his clerical antagonist, and his health was broken by toil and the harassing care of a large familyhe never knew what it was to be even comfortably situated financially, but suffered the res angusta domi to the end of his life. Strong man as he was in intellect and will, he was no match for Dr. Strachan; evidence slight perhaps but significant appears indicating that he was failing, becoming more self-centred, losing his sense of proportion-in a word, "losing his grip."

Strachan had a powerful ally in John Beverley Robinson, who having been when under age appointed at Powell's instance, Acting Attorney General in 1812 on the death of John Macdonell, became Solicitor General in 1815 and Attorney General in 1818. He had been a student in Dr. Strachan's school and loved and revered him to the last.

Open rupture was not long delayed: it was inevitable in any case; but the occasion is not one which reflects much credit upon Powell. The story is not long or complicated: the two Provinces of Upper and Lower Canada had early agreed that Upper Canada would not place an import duty on goods coming from the Lower Province, but that Lower Canada should collect the duty upon all goods coming through Lower Canada into Upper Canada and divide the money so raised with Upper Canada. Trouble arose between the two Provinces as to the amount each was to receive: and it seemed necessary to appeal to the Home Authorities. Powell who had been in Upper Canada from the beginning was asked by Maitland to draw up a Statement to be submitted to His Majesty; he did so, and it was adopted by both Houses of the Legislature. Maitland at the time Powell was asked to draw up the Statement, also asked him to carry it to England to enforce the necessity of relief from England: Powell agreed; but he and the Governor had reckoned without their host. The Legislative Assembly and Council "while they disclaim all desire of interfering with an appointment which . . . rests solely with Your Excellency and repose the fullest confidence in Your Excellency's wisdom to select a person duly qualified for this imporant mission, on considering the magnitude of the object, have agreed in opinion

from their experience of the extensive information of His Majesty's Attorney General on the affairs of the Province that the duties suggested . . . will be fulfilled by him in a manner most conducive to the attainment of the important end they have in view."

Whether the Lower House was influenced to snub Powell in this way by his entering a Dissent on the Proceedings of the Legislative Council, December 21, 1821, against a money Bill sent up by the Assembly and passed by the Council: and whether the Council was under the influence of Dr. Strachan we need not enquire-it is enough that both Houses concurred in the requests—and no one knowing the two men would hesitate to prefer as an Ambassador on such an important mission the young, strong and active Attorney-General to the aging and physically weak Chief Justice.

Maitland was thus placed in a quandary: he took the proper course and stated the whole matter to Powell, showing that it was now impossible to appoint him to represent Upper Canada in England on this exceedingly important mission. Powell was indignant and took no pains to hide his anger: he entered his Dissent from the Address upon the Journals of the Legislative Assembly "because, however glossed, I consider it an undue interference with His Majesty's Representative in the exercise of a Right admitted and declared to exclude all participation by any other Branch of the Legislature"-he later on entered his Dissent to the Act authorizing the appointment and to another granting money to provide for the expenses of the Commissioner "because it is unasked and unnecessary to enable His Majesty's Representative to transmit duly to the foot of the Throne the sentiments of the other Branches of the Legislature." This comes with very ill grace from one who had himself hoped to be the Commissioner and was angry only on being passed over."

Powell's conduct excited universal disapprobation: the Council itself protested against the presiding officer entering a Dissent and held it a breach of privilege for that officer to oppose the majority of the House whose servant he was. Maitland threatened removal from the office of Speaker and even from that of Chief Justice, and Powell gave way, having, as he says, discharged his duty by entering the Dissents. The Governor had two Members of the Council move and second the removal of the Dissents from the Journals and the motion was carried without opposition. The Dissents were removed before the Journals were sent to the Secretary of State; and