near the present town of Chillicothe, he became, in 1791, Commander of the troops in war against the Miami Indians. He was surprised and his force cut to pieces near the Miami villages, and his cannon and camp with much official and other correspondence were taken-although his command was composed of 1500 regulars and 800 militia and the Miamis had only 2000 all told, his force was cut to pieces and a horrible massacre followed. A young American Officer from Maryland had been saved from the slaughter and was under the protection of the Officer Commanding at Detroit; he, being apprehensive of some insult to him from the Indians who frequently visited the Fort and became intoxicated, requested Powell to harbour him until the opening of navigation; and this young prisoner's residence at Powell's country house gave some miscreant an opportunity of bringing Powell's loyalty in question-Powell gives the following account of the disgraceful plot:

"A letter addressed to Mr Knox, Secretary at War at Philadelphia in close imitation of Mr Powell's writing and with references which appeared incontrovertibly pointed to him, was clandestinely conveyed into the Quarters of a Military Officer, was communicated to all the Departments and to the indian Villages. It was of a nature to rouse the Indignation of All Parties against the writer. It acknowledged an habitual traitorous Correspondence with the Enemy, invited their approach, described Troops, deprecated the character and persons of their Commanders and officers, and marked the whole indian Department as bloodthirsty savages worse than indians themselves, and finaly instructed how to destroy the Tribes without risque by infecting the Indian Prisoners amongst the Americans with the Smallpox, and sending them to carry the infection among the Tribes. As this contagious disease takes the character of Plague when it reigns among the Indians and is more fatal than any Plague recorded in history, it may be well conceived what Effect such a Complication of wickedness must have, not only on the Indians themselves but all classes who could give it credit and various Modes were adopted to enforce belief."15

The forgery was so well executed that when shown to Powell by the officer who found it in his room, Powell at once and without reading it, acknowledged it to be in his handwriting. When he discovered the contents, he indignantly repudiated the authorship: but such pains were taken to circulate the contents of the letter and to induce belief in his treachery that his life became unsafe. He got possession of

the letter and with it made his way to Quebec. Reports were industriously circulated through the Province and the United States that the indignant populace had executed summary vengeance and hanged him without trial: many such statements appeared in the newspapers of the United States.1

16

Before the time of his arriving at Quebec, Lieutenant Colonel John Graves Simcoe, the Lieutenant Governor of the New Province of Upper Canada, had arrived at that City where he remained for seven months before going to his Province. Powell continues his narrative:

"The result was that, by the advice of the Commander of the Troops and Ships, Mr. P. quitted his station and proceeded to Quebec where He met Colonel Simcoe, the lieut Governor of Upper Canada, now divided from that part of the Province of Quebec to be called in future, Lower Canada. Upon the first introduction of Mr. P. to the Lt. Governor, that Gentleman congratulated himself upon having discovered the Parties to the wicked forgery, who had betrayed themselves in a Communication upon that Subject to Col. Simcoe and sent one of their consorts to give him further Details. Mr. P. had the further Consolation of receiving the handsomest Testimony from the Commander of the Forces, Sir Alured Clark, and from Prince Edward17 (since Duke of Kent). Thus there was wanted no better Evidence of the meritorious Conduct observed by him at Detroit, than that the most inveterate Enemies (as those who got up the forgery appeared to be) could find sufficient to form a probable charge upon and had been driven to absurdities which condemned themselves."

Simcoe informed Powell that the persons responsible for this villainous libel were two officers who had gone with him from Montreal.18

This is the true story of occurences which were misrepresented both at the time and afterwards.

M

CHAPTER X

THE PROVINCE OF UPPER CANADA

ATTERS in the Province of Quebec did not quiet down

after the failure of Powell's Petition of 1783: there was continual quarreling between the Old and the New Subjects as to the law which should be in force. This was very

greatly increased when after the Peace of 1783, the upper country began to be filled with Loyalists from the South-these demanded the laws to which they had been accustomed. At length it was decided to form two Provinces, and to allow each Province to decide for itself its own law-the well known Canada or Constitutional Act of 1791 was passed and by the beginning of 1792 there were two Provinces where one had been before the Province of Upper Canada to the west, and the Province of Lower Canada to the east of the line which Dorchester had in 1788 selected as the Eastern boundary of the new District of Luneburg.1

By this Act there were to be two Houses in the Legislature of each Province the Legislative Assembly elected by the people, and the Legislative Council appointed by the Crown.

Powell had been recommended by Dorchester as a member of both the Legislative and the Executive Council and by Sir John Johnson the Indian Superintendent (who expected himself to be Lieutenant Governor) for the Legislative Council— Powell expected and had a right to expect that he would be appointed and the omission of his name has never been fully explained. It is possible that Haldimand, who detested him, had something to do with it. Simcoe could give no better reason than that his name was overlooked through "mere forgetfulness and oversight": but Simcoe himself detested Dorchester and Dorchester's patronage of Powell was enough to damn him in Simcoe's eyes. Powell says:

"Col. Simcoe was conscious that his animosity3 to Lord Dorchester had induced a mistrust of and disinclination towards me which had destroyed all benefits that nobleman had in view for me; yet he had the Candour to admit that the obvious forgery was the work of a base enemy (known to him), and that it only operated as evidence that no real Cause of Complaint existed against me when resort to such

preposterous and self-obvious falsehood was had by my Enemies."

"A Sort of Apology was offered by him for the entire omission of my name either in his Lists of Counsellors which, it was true, had been at the head of both in those transmitted by Lord Dorchester; but the nature of this apology was adding Insult to Injury so that I dropped all thoughts of further Distinction in the New Province or its Institutions."

Disappointed as he was in not being of either Council, he felt still more his being passed over for the Chief Justiceship of the Province, which went to William Osgoode:* he concealed his disappointment and accompanied the Govenor and his Civil Staff to Kingston. There the Governor's Commissions were read and he and his Executive Council were sworn into office on the arrival of a quorum.

5

Powell had received a Commission of Oyer and Terminer and General Gaol Delivery for the District of Mecklenburg enabling him to hold the Court of Criminal Assizes at Kingston, but this was under the old régime; he had no Commission from the new Governor and there was no Proclamation validating the former Commission. Nor could Simcoe then legally issue such a Commission; his Instructions required him to take the oaths before the Members of the Executive Council. Four had been named, Osgoode, Robertson, Grant and Russell, and only Grant was in the country. There could, therefore, be no quorum of the Executive Council on Simcoe's arrival at Kingston—the Common Law requiring at least half of the number to be present. Powell, it was said at the time, was quite ready to overlook the irregularity and go on and try the prisoners. Fortunately this was not necessary: the Chief Justice arrived at Kingston with the Attorney General, John White: after the Lieutenant Governor and his Council had been sworn in, a Commission of Oyer and Terminer and General Gaol Delivery was issued to Osgoode and he presided in the Criminal Assizes," Powell returned to his post at Detroit and took up again his judicial work: but he found that his wife, his father, and his whole family connection in England were alarmed by the reports concerning him in the American papers which had been copied into the English papers: and he asked for and obtained leave of absence to go to England.'

He sat in his Court at L'Assomption, September 5, 1792he does not seem to have taken his seat on the Land Board after he had left Detroit in 1791—and went to Quebec where he caught the Fall fleet and rejoined his wife in England.

Fortunately, Dorchester was in England at the time and had reassured the anxious friends concerning the atrocious stories, but Powell was none the less eagerly awaited and warmly received.

Powell is singularly reticent as to his movements on this visit to England: it is, however, certain that he attended the office of the Secretary of State, asked for an enquiry into the charges made against him, and urged his claims to advancement. It is also certain that he received assurances that "his name was clear" with the Secretary, and that there was no obstacle to his being appointed to the Chief Justiceship in case of a vacancy if recommended by the Lieutenant Governor. It would be going too far to call this assurance a promise, but Powell had a right to expect, and did expect the appointment. From contemporary letters, it is clear that he sought the assistance of Mr. (afterwards Sir) William Grant, member of Parliament for Shrewsbury, and afterwards Master of the Rolls.9

Leaving three sons behind to be educated, Powell with his wife returned by way of New York where they remained for a time with her brother, George W. Murray.10 Coming to Detroit, he resumed his judicial duties and sat regularly from September 16, 1793, until the Court was abolished. During his residence in Detroit, he received a number of Commissions of Oyer and Terminer and General Gaol Delivery for his own and other Districts.

The time had come for a change in the Judicial system and its assimilation to that of England. Colonel John Graves Simcoe, the first Lieutenant Governor of Upper Canada, was English to the core-he loved and admired everything English in Church and State, law, custom, and habits-he would have gladly brought into operation the curious provision of the Canada Act for a hereditary Legislative Council, had he found any in the Province worthy of the honour of founding a noble family. He took an active part in the legislation whereby the English law was introduced in civil cases and all questions of fact were directed to be tried by a jury.1

12

The system of Courts for Civil Justice in Upper Canada was wholly un-English: each District had its own separate Court and these had no connection with one another. In England it is true there were local Courts but the Superior Courts were all centralized at Westminster-there they all sat en Banc, there they had their offices, and there the records of pleadings, judgments, etc., were all made up, and kept of record.