Manitoba History: Victimizing His Lordship: Lord Selkirk and the Upper Canadian Courts
by F. L. Barron
In 1812 Lord Selkirk established his Red River Colony near the juncture of the Red and Assiniboine Rivers in what today is southern Manitoba. In doing so the Earl immediately provoked the ire of the North West Company which perceived the fledgling settlement as a darkly laid scheme to ruin the firm’s control over the fur trade. Not only was Lord Selkirk a major shareholder in the rival Hudson’s Bay Company, but also the colony’s location was such that it threatened to sever the supply lines of the Nor’Westers between the rich fur-bearing Athabasca country and Fort William, the company’s interior headquarters. The inevitable result was a series of armed confrontations culminating in the tragic events of 1816. In June of that year some twenty-one settlers were slain by North West Company partisans during a pitched battle at Seven Oaks and this was followed by the takeover of Fort William by Lord Selkirk and a group of mercenaries.
While the events of the so-called “pemmican war” have been recorded in the history of the fur trade, relatively little attention has been paid to the aftermath in which Lord Selkirk’s health, reputation and wealth were strained to the point of near bankruptcy. In 1817 the Governor General of the Canadas issued a royal proclamation officially ending open warfare in the Indian Territory. Far from quieting the passions which had precipitated the crisis, however, the proclamation merely redirected those passions to the Canadian judiciary. It was there, first in the courts of Lower Canada and then in those of Upper Canada, that a final judgement would be made on the claims of the contending parties. It was there too, as it turned out, that Lord Selkirk would find himself the victim of a complex and distorted legal process.
The focus of the litigation and the means to Lord Selkirk’s vindication were the cases involving company defendants. In all, there were thirty-five charges, ranging from conspiracy to murder, preferred against partners of the North West Company, as well as some 135 charges directed against minor company officials and servants. By comparison, Lord Selkirk and his settlers were to be arraigned on fewer offences, mainly involving misdemeanors and lesser felonies.
Between March 1817 and May 1818, grand juries returned no fewer than eighteen true bills against members of the North West Company. In Selkirk’s eyes, this more than justified what one writer has described as the Earl’s “fatal enthusiasm” for British justice.  But as the trials proceeded through the courts, it became evident to his Lordship that justice was being subverted. In the end, only a handful of the scores of Nor’Westers indicted by true bill were ever brought to trial, and of these, only one was found guilty, and then his sentence was never carried out.
These results, together with Selkirk’s subsequent conviction on charges of false imprisonment at Fort William, have been unanimously condemned by Selkirk biographers as a blatant judicial travesty. There is also unanimity as to the source of the injustice. The standard interpretation is that Lord Selkirk’s judicial crucifixion had been ordered by the Colonial Office in London and that Canadian officials, being dutiful and obedient servants of the Crown, willingly complied. This view was established by Chester Martin in 1916,  and later reiterated by Gene Grassley  as well as by J. M. Gray. 
The problem with this explanation is that, while correctly identifying Canadian court officials as the wilful instruments of injustice, it does not accurately account for the cause of Selkirk’s persecution. Not only is it contradicted by existing correspondence, but in depicting Canadian officials as tractable, mindless agents of British imperialism, it is inconsistent with the way in which local oligarchies actually operated.
This paper, it is hoped, will demonstrate the weaknesses of the traditional interpretation, first by critically examining relevant Colonial Office dispatches, and second by looking at developments in Upper Canada which suggest an alternative explanation of Selkirk’s mistreatment, one that is more in keeping with the political realities of oligarchic government. Of necessity, such an explanation must be speculative because, in themselves, neither the transcripts of the trials nor the correspondence of the litigants and officials yield much understanding. Consequently, the “why” of Selkirk’s legal misfortune in Upper Canada must be approached indirectly through related questions. Who in the upper province, for example, had sufficient reason to prejudice the court proceedings in favour of North West Company defendants? Equally important, who had the necessary power to do so? The answer is based on only circumstantial evidence, but no more so than that provided by the Selkirk biographers.
To place Chester Martin’s interpretation in context, it is important to note that his thesis was actually “borrowed” from Lord Selkirk himself. The first indication that there was a hidden force directing the proceedings of the Canadian courts was contained in a letter Selkirk received from Governor General Sherbrooke (3 May 1817) who, without relating the content of his instructions, advised his Lordship that he was determined to carry out his orders “strictly and fully ... however painful that duty may be.”  One month later, John Spence, a Selkirk sympathizer, informed the Earl that there was some “unknown purpose” beneath the injustice he had encountered.  Then, on the 4th of July, Samuel Gale (Selkirk’s legal counsel) made what could only be described as an educated guess to explain the mystery. In a letter to Lady Selkirk he wrote, “does it not seem possible that orders have been received from England for something like a hunt against the Earl of Selkirk through the influence of the underfriends of the North West Company at home?”  This was the very idea which Selkirk later seized upon, but it was not until March 1818 that the Earl accidentally stumbled onto what he considered conclusive evidence that confirmed Gale’s suspicions: Attorney General Uniacke of Lower Canada, in giving some papers to his Lordship, had included by mistake a dispatch from the Colonial Office, recopied in the handwriting of the Advocate General of Quebec. This dispatch, dated 11 February 1817, is at the core of the Selkirk-Martin thesis, and consequently might be quoted at length:
The significance of this February dispatch, according to Lord Selkirk, was that the Colonial Office had prejudged his case, and in so doing, had prejudiced his chances in the Canadian courts. “An impression has evidently gone forth,” he wrote, “that in these matters, it has been the decided wish of His Majesty’s Government, without waiting for the results of a fair judicial investigation, to favour one party, and to crush another.” 
Chester Martin’s main contribution to this interpretation is his clarification of Selkirk’s views. Accordingly, his investigation points to a statement (18 March 1815) by Secretary of State Bathurst to the effect that the Red River colonization scheme was “wild and unpromising.”  Consequently, said Martin, Bathurst left the Selkirk dispute to the strong-willed Parliamentary Undersecretary, Henry Goulburn, who, throughout the entire period, maintained a cordial correspondence with the London partners of the North West Company.  Thus was explained Samuel Gale’s reference to the “under-friends” of the Nor’Westers. Allegedly, it was Goulburn who penned the February dispatchthe directive which, in the hands of Canadian executive and judicial officials, “bore all the weight of indictment, verdict, and sentence combined.” 
Central to the weakness of the Selkirk-Martin thesis is the implied hostility of the Colonial Office. In actual fact, his Lordship’s efforts in colonization were meant to serve imperial interests, and given the fact that his views on settlement were published in Britain, it seems unlikely that the Colonial Office would have been either unmindful or scornful of his attempts to serve the national cause. As early as 1803, by which time Selkirk’s “indiscriminate benevolence” had narrowed into “the absorbing pursuit of colonization,”  his Lordship had become disillusioned with the promises of American democracy,  and in turn, his emerging anti-Americanism was incorporated into his emigration plans. As panacea for Irish discontent and Highland clearances, Selkirk’s emigration scheme was meant to serve the empire in a number of ways. It would deflect the flow of British emigrants away from the United States where, of course, they would be lost to the empire forever. By settling them on lands in British North America, it would allow them to recover their independence and prosperity, and thereby reaffirm their loyalty to the Mother Country.  And by strategically locating the colonyone composed of settlers exhibiting “peculiar and characteristic manners” distinct from the American culturethe scheme would act as a buttress to the British fact by its imperviousness to “the dangerous principles” emanating from the United States.  Thus, it was no accident that the Red River Settlement (1811) was strategically established as a buffer against American encroachment from the south, just as it was no accident that Selkirk’s Baldoon colony in Upper Canada (1803) was located on Lake St. Clair near the American border. 
Assuming that there was little in Selkirk’s imperialist aims that would have displeased the Colonial Office, why then did Lord Bathurst discredit the Red River scheme as wild and unpromising? The answer has been provided by J. M. Gray. He argues that the Secretary of State, confronted with post-Napoleonic War unrest and disruption, simply felt that the Selkirk dispute was unimportant in relation to the larger problems of empire.  This suggestion also explains why a free hand was given to Goulburn, who received his mandate not from Bathurst’s antipathy, but from his apathy.
However, if one accepts this conclusion, there is no reason to believe that the Parliamentary Under-secretary, once he had taken charge of the affair, made any attempt to support the North West Company at Selkirk’s expense. On the contrary, it is apparent that the source of the injustice was to be found in the Canadas and that the Colonial Office acted with reason and moderation. This was underscored in the exchange of information between Goulburn, in the name of the Secretary of State, and the Canadian Governors General.
The first insight the Colonial Office received about the Red River dispute was contained in a group of letters dispatched by Governor General Drummond on 16 August 1815. Prominent among these letters was one from William McGillivray to the Governor General, who had petitioned the Montreal company for information which it “assuredly possessed] the best means of affording.”  McGillivray naturally attested to the innocence of the Nor’Westers, and then proceeded to attack “the arrogant and violent conduct of Lord Selkirk’s agents.”  In addition, Selkirk himself was portrayed as a selfish land speculator and fur trader who had usurped the Indian Territory in disregard of British imperial interests, and who had established his Red River colony thou-sands of miles from London as an invitation to American annexation.  Nowhere in the entire dispatch was there a letter in defence of the Earl.
Over the next eighteen months, the Governor General’s office continued to forward one-sided information to the Colonial Office. On 28 November 1815, for example, a second statement by William McGillivray was sent off. A new source of information was not forthcoming until 1 January, 1817, when Sherbrooke, the new Governor General, related to Bathurst the opinions of Commissioner Coltman. Coltman was one of two men appointed by the Governor to investigate the dispute, and on the whole, his findings echoed the opinions of the Nor’Westers.  A day later, Coltman’s report was followed by the affidavit of one Robert McRobb, a company clerk who, needless to say, did not hesitate to vilify Selkirk’s takeover of Fort William in 1816. 
Despite the biased information provided by the Governor General’s office, the response of Goulburn was moderate and just. On two separate occasions, both before and after the February dispatch, the Colonial Office merely instructed Sherbrooke to have Selkirk return home to bring the charges against the Montreal company before the courts in England.  On 13 June 1817, Goulburn explained that he doubted the impartiality of the Canadian judiciary, and consequently preferred that company defendants not be tried locally.  Only after the company and Selkirk had agreed that, in order to lessen the costs of litigation, the Canadian courts should handle the dispute, did the Colonial Office give its consent. In view of Goulburn’s reluctance, however, and considering the importance Selkirk attached to the trials, it would seem that the Colonial Office was very much alive to his Lordship’s best interests.
Indeed, even the February dispatch does not in the least debase the honourable performance of either Bathurst or Goulburn. In this respect, there are four observations to be made. In the first place, enclosed with the February dispatch was a letter from the Colonial Office advising the Governor “to communicate to his Lordship [Selkirk] the substance of [his] instructions.”  The fact that Sherbrooke, for unknown reasons, chose to disregard this instruction cannot be blamed on the Colonial Office.
The second consideration is that, according to the expressed purpose of the February dispatch, the law was to be enforced “with respect to all.” Special mention was made of Selkirk, but by implication, this meant only that the law was not to be discriminatory, regardless of the defendant’s wealth and station. Moreover, considering that the Colonial Office had already communicated its wishes concerning company defendants, there was nothing irregular or malevolent in establishing the correct procedure, laid down by law, for bringing Lord Selkirk to trial, especially in view of the volume of affidavits and statements which the Colonial Office had in its possession. The information forwarded by the Governor General’s office, in itself, demanded a hearing and it was only in response to that demand that the February dispatch came into being.
Thirdly, the directive was designed to cover all eventualities. Thus the precondition to Selkirk’s arrest”upon a true bill being found”might equally have read, “if a true bill is found.” Furthermore, even if the original words are interpreted to mean that Goulburn had prejudged Selkirkwhich is doubtful the finding of a true bill signified only that Selkirk would be bound over for trial. There was no related instruction that his Lordship should be found guilty, only that he be prosecuted.
Lastly, if for the sake of argument it is assumed that the directive implied that Selkirk was to be found guilty, this assumption offers no explanation of why, given the Colonial Office’s stated determination that company defendants be tried by an impartial court, Canadian officials should have taken it upon themselves to prejudice the proceedings in favour of these defendants. In doing so, they were clearly acting on motives that had nothing to do with actual instructions from the Colonial Office.
Because the process of injustice took place in both Lower and Upper Canada, it seems that Lord Selkirk and Chester Martin looked for an explanation that would transcend the border between the two colonies. In point of fact, evidence suggests that the motivation and means for Selkirk’s persecution respected the geographical boundary. Whereas much of the prejudice against Selkirk in the courts of the lower province can be traced to the influence of the North West Company, the erosion of justice in Upper Canada seems to have revolved around John Strachan, the Anglican rector of St. James and an emerging influence in the ruling oligarchy. A man of indomitable will, Strachan was one of the earliest and staunchest opponents of Selkirk and his Red River Colony.
The first indication of opposition was contained in a private letter (1808) sent to a friend in England. Strachan remarked that, having recently read Selkirk’s prospectus for settlement, he agreed with his Lorship’s assessment of the degeneracy of the American states. He hastened to add, however, that he did “not want to be understood as approving Selkirk’s arguments.”  Unfortunately, there was nothing in the letter to indicate either the substance or extent of his disapproval.
By 1816, however, following the blood-letting at Seven Oaks, Strachan apparently felt some compulsion to make his view both explicit and public. He did so by publishing a pamphlet entitled, A letter to the Rt. Hon. The Earl of Selkirk on His Settlement at the Red River Near Hudson’s Bay, which was an attempt to prove that his Lordship was neither “right” nor “honourable.” Reflecting the spirit and ability of the author, this diatribe contains a systematic and menacing rebuttal to Selkirk’s justification for the Red River colony. The purpose of the open letter, as defined by the “Advertisement,” was to demand that Selkirk suffer the punishment of the law for having pillaged innocent immigrants.  Accordingly, his Lordship was depicted as a damnable land speculator who, in order to charge exorbitant prices for real estate at Red River, had enticed unsuspecting immigrants into the “dreary wilderness.”  Without a market for his goods or protection from Indian massacre, said Strachan, the poor settler was lured into the “polar regions” where even a minimal agricultural economy was impossible.  According to the author, the Red River area was fit only as a “residence for uncivilized man.” 
Although Strachan on several occasions denied that his attack on Selkirk was motivated by personal sympathy for the North West Company, he was not the disinterested observer he professed to be. Soon after his arrival in the Canadas, he had developed, probably through the offices of Richard Cartwright, a warm and lasting friendship with many of the Montreal tradersan association reinforced in 1808 when he married the widow of Andrew McGill. Indeed, the sheer volume of his correspondence with the McGillivrays, James McGill, John Richardson, the Auldjos and Isaac Todd has led one writer, G. W. Spragge, to conclude that “... if Strachan was before 1818, a member of any ‘Family Compact’, it was of that true family compact of himself and the Montreal fur traders.”  Not surprisingly, it was from William McGillivray that Strachan obtained information on the Selkirk dispute for the specific purpose of penning his open letter against his Lordship. 
While Strachan’s association with the Nor’Westers was important, it was complementary, or perhaps even secondary, to his political and philosophical opposition to the Red River scheme. He was, of course, a Canadian Tory who, as a frame of reference for his anti-Americanism, warmly embraced the concept of empire, one based on a reciprocal relationship between the Mother Country and the colonies. While British statesmen were to formulate policies that would ensure Canadian strength and prosperity, the Canadas in turn would become the guardian of the British fact in North America.  Fundamental to this concept was a strong undercurrent of “Canada first” sentiment. In 1816, for example Strachan suggested to Lord Bathurst that within a very few years Upper Canada would be able to support an army ten times that necessary for its own defence and even replace the New England States in provisioning the British West Indies.  Implicit in the suggestion, however, was the understanding that Canadian development was a necessary prerequisite to, rather than a by-product of, imperial service. Moreover, far frombeing the servile colonial official implied by the Selkirk-Martin thesis, Strachan was ever vigilant against those in England who would destroy the duality of imperial-Canadian interests which he perceived as important. He believed that there were those in the Mother Country who were “continually plotting directly or indirectly the expulsion of the British from North America,” and he warned that a close watch must be kept, not only on the Americans to the south, but also on certain influential British statesmen. 
Lord Selkirk was seen as just such a statesman. He was a Whig who, at one time, had held rather advanced liberal views. That not only made him suspect as an American sympathizerdenoted in Strachan’s reference to him as an “American land jobber” but also made a sham of his imperialist objectives. Although Strachan readily applauded the aim of diverting the flow of British emigration from the United States to British North America, he insisted that the Red River colony would not serve the purpose because it was destined to “become an appendage to the United States and, of course, hostile to Great Britain.”  The Selkirk settlement was so completely isolated from British civilization that, in the interest of mere survival, it would gravitate toward the southern republic.  The consequent loss of British manpower would not only weaken the British presence in North America, but also strike at Canadian prosperity, which was contingent upon the very immigration that Selkirk was deflecting to the Red River area.  In short, Lord Selkirk’s justification for settlement was little more than sheer fabrication, according to Strachan.
By contrast, the North West Company was seen in quite a different light. For years, the Montreal company had sought to justify its existence in terms with which Strachan readily identified. In 1811, a company partisan, G. Aitcheson, published a book in which it was argued that the North West Company was the only imperial concern capable of preventing American encroachment in the west. It was also suggested that the trade of the company was vital to the mercantilism of the empire, and equally, to the general well-being of the Canadas.  That Strachan agreed was indicated on a number of occasions. He was among the first to protest the surrender of the western posts as being detrimental to Canadian interests,  which presumably included those of the North West Company. And in a letter to justice Campbell in 1816, Strachan insisted that Lord Selkirk was attempting to ruin a trade “which had given bread to thousands for two centuries.”  Evidently, the North West Company represented that duality of Imperial and Canadian interests which Strachan deemed so important.
In the final analysis, there is no reason to believe that, in attacking Selkirk’s “pretended imperialism,” Strachan was attempting to construct a theoretical facade to conceal his obvious sympathy for the North West Company or that he was insincere when he protested that his only interest in the dispute was the “public good.” The theory explicit in his objections to the Red River settlement was basic to Strachan’s entire career and character, and more important, to a conservative doctrine which, in Strachan’s mind, was meant to serve the public good. In that sense, his involvement with the trading company was incidental to a concept of Canadian and imperial interests that, in itself, had preordained his active opposition to Lord Selkirk.
It is extremely doubtful that Strachan could have satisfied his attack on Selkirk merely by relying upon the power of the pen. Most historians familiar with his energy and character would agree that he was virtually incapable of accepting such a limitation when so much was at stake. Nor was he above distorting the judicial process when convinced that there was a “higher case” to be considered. As J. C. Dent points out, “when he wished to pervert the law to his own purposes, who so apt at enjoining a disregard therefor.”  The question, then, is not whether Strachan wished to affect the outcome of the trials, but rather, whether he possessed the necessary influence to do so.
By the time that the Montreal defendants appeared before the York magistracy in 1818, Strachan was not only a regular member of the executive council, but also a considerable political influence. This was borne out by Strachan himself. A year earlier, he had penned a letter to the Lord Bishop of Quebec suggesting that, were he appointed to the legislative council, he would have influence over its membership:
Rather significant is the fact that the five men over whom Strachan claimed influence represented two-thirds of the total membership of both the executive and legislative councils. 
A second letter, dated 7 June 1824 and addressed to the Archbishop of Canterbury, also bears witness to Strachan’s influence. On this occasion, Strachan maintained that it had been he, aided by his students and friends, who had provided in 1818 the initial “check to Mr. Gourlay’s seditious and levelling plans.”  Robert Gourlay, it may be recalled, was the Scottish radical whose criticism of the Upper Canadian government had provoked a reaction by the ruling oligarchy. At the same time that the Selkirk dispute was being tried, Gourlay was arrested on charges of sedition and in 1819 sentenced to banishment from the province. Considering that Strachan was the one man in the oligarchy who had taken an instant dislike to Gourlay, and that subsequently the full weight of the government was brought to bear on the “Banished Briton,” it seems likely that Strachan’s claim to credit was justified.
The question might be raised as to whether or not Strachan was merely feigning authority in order to curry favour. There are a number of factors which suggest that his influence was real.
In the first place, Gourlay himself, at the height of his troubles, identified Strachan as the man behind his persecution. In one editorial, he maintained that one of his original supporters, Thomas Clark, had been “whipt” into submission “by the taws of an arrogant and paltry School master.” Strachan, according to Gourlay, was “a miserable, misbegotten manunculus,” who had come to prominence “by a concurrence of fortuitous events.” 
Secondly, Strachan’s influence seems to have extended to the legislative council, although he was not appointed to that body until 1820. It is true that, in 1817, Strachan’s attempt to win legislative support for an Anglican seminary was blocked by the council, at the time composed mainly of Presbyterians. And yet it is equally true that, at no time, did the upper house introduce legislation detrimental to an established Church of England. The conclusion that one writer has drawn is that it was probably Strachan, the main proponent of an Anglican establishment, who discouraged any such attempt.  Conceivably, he did so through his membership in the executive council, the composition of which was nearly the same as that of the legislative council. 
Thirdly, according to Strachan’s correspondence, he was strongly supported by his pupils, whom he had personally groomed for public office and through whom he hoped to extend his influence.  By 1818, no fewer than four of these “disciples” had been elected to the assembly, one of whom was the clerk. In addition, both the Attorney and Solicitor Generals of the province were past students. They not only echoed the politics and philosophy of their mentor, but also gave Strachan indirect access to the judiciary. 
Fourthly, Strachan had a direct pipeline to the most influential man in the province, the Governor. This had been true of Gore,  and it was even more true of Sir Peregrine Maitland who arrived in 1818. Although the exact relationship between the new governor and Strachan is not clear, it is certain that Maitland was a “pious Christian, interested in education, fearful of American influence, and anxious that Upper Canada should be a thoroughly British colony.”  These were the very ideals that Strachan personified, and for that reason, there is little doubt that he gained a powerful ally in the new governor. This conclusion is endorsed by W. R. Riddell, the biographer of Chief Justice Powell, who notes that Strachan was “exceedingly influential” in Maitland’s councils. 
Lastly, and most importantly, Strachan’s influence functioned at the personal and social, rather than institutional, level. Those writers who argue that he became a political power only in the 1820s invariably point to the fact that, despite his requests, Strachan was not appointed to the legislative council until 1820.  The fallacy is that they tend to interpolate into Strachan’s day the institutional complexities of the modern age, and thus emphasize the significance of public office in the consolidation of power. They forget that, even in the 1820s, “muddy little York” was little more than a village-capital, where “a number of friends” often meant considerable influence. It was a society in which personal considerations and social contact were of paramount importance. In fact, this was the only kind of power that Strachan ever claimed. In 1824, by which time Strachan was the recognized leader of the ruling oligarchy, he wrote a letter to the Lord Bishop of London asking that he be appointed to the Bishopric of Upper Canada. The letter was designed to impress upon the reader the extensive nature of Strachan’s authority in the colony, yet nowhere did it make mention of his membership in the councils of government. On the contrary, the ingredients of power, as Strachan saw them, were his numerous “Personal Friends” in both Canadas, his many “Scholars” in influential positions, and “almost all the young men of eminence in Upper Canada” who, he said, “accorded him the attachment of children.” 
The personal and social bases of Strachan’s influence were even more pronounced in 1818 than when he wrote this letter. At the time, York had a population of little more than 1,000, with only 306 adult males, and only 130 assessed voters.  It was a setting which allowed full scope for Strachan’s ability, personality and ambition, and undoubtedly he made the most of it. Although he already was an executive councillor and the chaplain of the legislative council, he could not demand his appointment to the upper house. But he did have power over its memberspower as he said, founded on friendship, obligation, intimacy, confidence, and in one case, fear.  These were the social intangibles that seemingly were instrumental in the suppression of Robert Gourlay, and evidence suggests that they were not without import in silencing sympathy for Lord Selkirk.
That Strachan’s influence had an effect on the judicial process may be inferred from his relationship to the leading court officials. Samuel Gale very early on had expressed his doubts about Upper Canadian justice, but it was only after the proceedings had opened in York that he realized the extent of the “contemptible business.”  Writing to Lady Selkirk in November, 1818, he bitterly complained that, although he had expected the worst, the complete incapacity and partiality of the court were still matters of astonishment to him.  Gale’s charge of incompetence was not levelled mainly at Judge Boulton who, along with Justice Campbell, played a relatively minor role on the bench. His main censure was directed at the Attorney General, John Beverley Robinson, and at the Chief Justice, William Dummer Powell. Both men, according to Gale, were guilty of subverting justice either by complicity or apathy. This was true particularly of Robinson whose prosecution of North West Company defendants in 1818 was in sharp contrast to his reputation and ability. Three years earlier, as a “rising star” anxious to win the commendations of officialdom, he had secured seventeen convictions in twenty-one cases of treason arising from the War of 1812,  but where the North West Company was concerned, apparently his best effort was lacking.
Although Robinson and Powell displayed a certain uniformity in their legal performance, there is no reason to suppose that they acted on their own initiative. At the time, neither had any real connection with the North West Company, and both had reason to accord Selkirk at least a fundamental fairness. The Chief Justice, in particular, was personally obligated to Selkirk an obligation clearly contradicted by his predisposition to favour company defendants. It was this kind of incongruity that characterized the entire proceedings and one which defied explanation if examined solely in reference to Robinson and Powell. Such is not the case, however, if the careers of these men are discussed in relation to Strachan. He was not only the common denominator between the Attorney General and the Chief Justice, he was also in a position to influence the attitude and behaviour of both men.
Of the two lawyers, the Attorney-General bore the more direct relationship to Strachan. As a child, Robinson had been placed under the protective wing of Strachan who, through the years, became something more than a mere benefactor and teacher. Indicative of the relationship was a poem written by Robinson in 1807 on the occasion of Strachan’s birthday:
That Strachan did in fact guide Robinson’s “youthful way” is certain. As an expression of affection, and in all probability, in an attempt to extend his own influence, Strachan made every effort to further the interests and career of his young protégé. To that end, he steered Robinson into the Tory camp, keeping him on a tight leash and supervising his political and professional development at every turn. As a student in the law office of D’Arcy Boulton, Robinson was severely tongue-lashed for his “want of perseverance,” and.later received similar treatment for having written a satire which, according to Strachan, would create enemies and “shut doors against [him].”  On another occasion, in 1814, when the newly appointed acting Attorney General was preparing a case against those charged with treason, Strachan not only advised him of the principles involved in the case, but proceeded to outline the general arguments Robinson was to use in his address to the jury.  By the same token Strachan took a direct hand in securing Robinson’s official recognition and promotion. It probably was no accident, for example, that in 1817 Robinson was recommended for the Attorney Generalship by none other than Governor Drummondthe same man whose support had been pledged to Strachan by the Governor’s secretary, Colonel Harvey. 
As might be imagined, the result of Robinson’s training was that he became not only “an ornament to the province,”  as Governor Drummond put it, but also what one writer called “the most brilliant and polished exponent of Strachan’s political theory.”  What this meant was that on most political issuesthe Gourlay affair being a case in pointRobinson could be expected to adopt the proper course of action, one in keeping with the public good as Strachan defined it. In this sense, Robinson’s apathetic prosecution of North West Company defendants may have been a kind of reflex action, conditioned by his early education and continuing association with Strachan.
Unlike Robinson, William Powell has remained a shadowy though significant figure in Upper Canadian history; consequently, his relationship to Strachan is less clear. What does seem certain is that, during his early career, he made some political mistakes which apparently jeopardized his advancement. In 1779, soon after his arrival in Quebec, he defended a merchant named Pierre Du Colvet, charged by the oligarchy with libel against the Quebec judiciary. In the end, Powell won a startling victory. It not only increased his clientele among the Montreal merchant class, many of whom were one-time New Englanders and suspect because of their republican principles, but also earned him the cold disapproval of officialdom. To make matters worse, Powell himself was from an American background. In 1784, he made the error of journeying to Boston in an attempt to recover his family estates which had been seized during the American revolution. On his return to Quebec, he was accused through “malignant whispers” of being an American sympathizer and, while the accusation was probably unfounded, it took years before the taint was removed. 
The importance of these mistakes was underscored in the lack of government patronage. At the time, there were only a handful of lawyers in the colony and Powell was probably among the most capable of them, yet all of his appointments were minor. Between 1780 and 1783, he was retained by the military command to prosecute those French Canadians who had refused to transport supplies during the American revolution; in 1783 he served on a commission of the Surveyor-General; then in 1789 he became a justice for Hesse District; and finally, following the King’s Bench Act of 1794, he was appointed puisne judge of Upper Canada. Yet the Chief Justiceship, for which he applied in 1791, 1794 and 1796 was entirely beyond his reach. Out of desperation, he travelled to London in 1797 to lay his case before the Home Administration, and although he was assured that there were no objections to his candidature for the office, his appointment was not realized until some nineteen years later. 
Part of Powell’s inability to secure the Chief Justiceship can be explained by referring to Governor Simcoe who, during his administration, seemingly vetoed the appointment out of hatred for Powell’s patron, Lord Dorchester.  But this does not account for Powell’s continued failure after Simcoe’s term of office had ended. On the contrary, a more consistent explanation would be that Powell was paying for the mistakes of his early career. After all, the Chief Justiceship, which included the speakership of the legislative council, was a position of power reserved for those whose commitment to the crown was unquestionablewhich was not true of Powell. Indeed, this conclusion is borne out by the fact it was only after he had won his “Tory spurs” and removed the blemish of disloyalty that Powell became Chief Justice. He did so first by befriending Governor Gore and then by taking the lead in defending Gore against the charges of maladministration preferred in 1807 by the agitator, William Firth. His appointment was delayed by the Governor’s recall, but in 1816, when a vacancy occurred during Gore’s second term of office, Powell became Chief Justice. 
In turn, the circumstances of his appointment seem to have had a bearing on his relationship with Strachan, who undoubtedly understood the nature of Powell’s confirmed loyalty to the interests and philosophy of oligarchic government. It was probably this same commitment that was appreciated in Strachan’s letter of 1817 in which he noted that “the Chief Justice if a little indifferent or inclined toward opposition would be afraid to come forward boldly.”  Apparently, Strachan had sensed Powell’s determination not to offend officialdom a second time, and it might well be imagined that he was not above exploiting the situation. In fact, in a letter written to acting Attorney General Robinson in 1814, Strachan had endorsed as a modus operandi the same principle of coercion that Powell’s background invited. In part the letter suggested that “a fear of the people may in some minds be strong, but a fear of giving offence to the higher powers is much stronger.”  In the case of the Chief Justice, this precept was particularly applicable after August 1818, when Governor Maitland arrived. For some reason, the new Governor disliked Powell who, consequently, was even more indebted to Strachan’s good will. 
Although Powell may not have feared Strachan personally, he undoubtedly had misgivings about offending a cause for which Strachan could rally influential support. That is, Strachan’s power over the Chief Justice was his ability to convince Powell that what he advocated was the “proper line” and that to endorse any other course was to risk official censure. In October 1817, for instance, Strachan’s opinions of Robert Gourlay “were treated with ridicule by the Chief Justice,” who had approved of Gourlay’s initial address to the resident landowners. Yet following the tirade in which Gourlay called for a system of township meetings as a prelude to a provincial convention, Strachan was able to write confidently to Colonel Harvey that “lately the chief Justice being absent on a visit to Boston we have roused him a little respecting Mr. Gourlays [sic] seditious meetings and he now appears to feel proper on this matter.”  Evidently, Powell had experienced a change of heart, one undoubtedly reinforced two months later when Maitland arrived to institute against Gourlay what Strachan described as “that line of conduct which he [Strachan] had urged.” 
Powell’s fear of giving offence is not conclusive, but it does explain events which otherwise defy explanation. This is especially true of his curious behaviour toward Selkirk. Following Coltman’s investigations, the Earl made his way from Red River to Upper Canada via the United States, appearing at the home of the Chief Justice in January 1818. At the time, he expected Powell either to grant bail or to try him on the charge of resistance to arrest at Fort William. Much to his surprise, however, Powell informed him that, because the charge had not come officially to his notice, he could not act unless Selkirk pleaded guilty, in which case, since the offence was not bailable, Selkirk would have to be held in custody until the next assizes.  Also, at some point during their discussion, the Chief Justice expressed regret that Selkirk had not remained on the American side of the border until the court at Sandwich had convened.  In retrospect, Selkirk later maintained that Powell in reality had suggested that he “return” to the United Statesa suggestion seen as an invitation to an impropriety. 
The behaviour of the Chief Justice was questionable not only because he had invoked a legal technicality to prevent an early trial and had refused bail for an offence that Coltman had already deemed bailable, but also because he did so at the expense of an old friend. In 1803, during his first visit to York, Selkirk had been entertained at the Powell residence and, from all indications, this was the beginning of a friendship. Four years later, the amity was cemented by an event involving Powell’s son, Jeremiah, who had been imprisoned in Spain for illicit transactions in Latin America. On Powell’s behalf, Selkirk secured the aid of Lord Holland, whose influence in Spain ultimately produced Jeremiah’s full pardon and freedom. 
Despite his indebtedness to Selkirk, Powell in 1818 was determined not to take any action which might be construed as sympathetic to him. It is possible, contrary to Selkirk’s recollections which had been embittered by subsequent events, that Powell’s regret at Selkirk’s appearance in York was an expression of friendship, rather than malice. But quite clearly, the Chief Justice was totally unwilling to expedite Selkirk’s case. Under normal circumstances, this could have been done with few questions asked.
The fact was, however, that circumstances were not normal. Prior to the meeting, Strachan had published his Letter to the Earl of Selkirk. This was a condemnation which undoubtedly was circulated throughout York, especially after news of Selkirk’s illegal actions at Fort William had reached Upper Canada, andwhich, from Powell’s point of view, was probably taken as a statement of the proper way to deal with Selkirk. That this was the calculated purpose behind the pamphlet was suggested in a letter written by Strachan three years earlier; at the time, acting Attorney General Robinson, as prosecutor of those charged with treason, was advised to publish the legal proceedings to order “to force everyone to do their duty.”  Like Robinson, Powell knew what was expected of him, and as indicated by Selkirk’s complete surprise at his behaviour, it seems that he acted according to Strachan’s design. Implicit in Selkirk’s eagerness to see the Chief Justice in 1818 was the assumption that their friendship was still intact, yet as he quickly learned, the assumption was ill-founded. Something had intervened to alter their relationship and that something apparently had been the publication of Strachan’s pamphlet.
Thus the behaviour of the Chief Justice can be understood in relation to his fear of giving offencehis fear of transgressing against Tory doctrine, as defined by Strachan. At the time, Strachan was the only man in Upper Canada who had the reason, the influence, and the means to impress upon the good judge the necessity of sacrificing an old friend.
Perhaps one of the most telling commentaries on Selkirk’s troubles was the persecution of Robert Gourlay. Arrested on perjured evidence and virtually railroaded out of the province in 1819, Gourlay had dared to question the precepts and assumption of a Tory dominated society, and like Selkirk, he suffered the consequences. His prosecution was conducted by Attorney General Robinson and presided over by Chief Justice Powell, but as Gourlay came to realize, the whip behind his banishment was Strachan, the first in the province to pressure the oligarchy into crushing the Scottish radical.
Directing the forces of reaction, Strachan was totally dedicated to preserving and defending what he termed the public good, by which Gourlay’s “levelling tendencies” and Selkirk’s “pretended imperialism” had been tried and found wanting. In each case, both colonizers had transgressed against one or more articles of Strachan’s Tory faith, and in each case, their heresy had summoned the inquisition of the ruling oligarchy.
In the final analysis, it is not possible to conclude with absolute certainty that Strachan was the architect of Lord Selkirk’s misfortune. Nevertheless, the import and circumstances of Strachan’s emerging power in Upper Canada point to an explanation of that misfortune which is as least as plausible as that offered by the Selkirk biographers.
8. “Papers Relating to the Red River Settlement; 1815-1819,” The Red River Settlement: Return to an Address from the Honourable House of Commons to His Royal Highness the Prince Regent, Dated 24th June 1819 (London, 1819), pp. 72-3, Bathurst to Sherbrooke, 11 February, 1817. Hereafter referred to as Return to an Address.
9. A Letter to the Earl of Liverpool from the Earl of Selkirk:Accompanied by a Correspondence with the Colonial Department (in the years 1817, 1818, 1819), on the Subject of the Red River Settlement, in North America (London, 1819), pp. 23-24.
15. Earl of Selkirk, Observations on the Present State of the Highlands of Scotland with a View of the Causes and Probable Consequences of Emigration (Edinburgh, 1806), p. 168. Hereafter referred to as Observations.
17. The question of location figures less prominently in the Prince Edward Island Colony. Originally, Selkirk had petitioned the colonial office for a grant of lands at Red River, but this was refused on the grounds that it would entail setting aside the charter claims of the Hudson’s Bay Company. In compensation, he was given lands on Prince Edward Island and promised additional lands in Upper Canada, subject to his choice of location. It was only laterafter his subsequent visit to the United States in 1803that his anti-Americanism became explicit in his emigration schemes and that the location of a colony assumed strategic importance. For a discussion of Selkirk’s choice of lands in the Lake St. Clair area as a bastion against American absorption, consult Gray, Lord Selkirk, pp. 27, 30-1.
34. See “The Robinson Papers” (P.A.O.), 1816, Strachan’s “Reasons Against Removing the Seat of Government of Upper Canada from York to Kingston.” Hereafter referred to as Strachan’s “Reasons.” Also consult The John Strachan Letter Book, pp. 12, 84.
Page revised: 27 October 2012