POWELL, WILLIAM DUMMER, lawyer, judge, office holder, politician, and author; b. 5 Nov. 1755 in Boston, eldest son of John Powell and Janet Grant; m. 3 Oct. 1775 Anne Murray*, and they had nine children; d. 6 Sept. 1834 in Toronto.
William Dummer Powell was descended on both sides of his family from 17th-century emigrants to Massachusetts from England. His maternal grandfather, William Dummer, had been lieutenant governor of the colony; his paternal grandfather, John Powell, had come out as Dummer’s secretary. His father, also named John Powell, was a prosperous Boston merchant, the holder for three decades before the American revolution of a naval victualling contract. The Powells had been Anglicans and royalists, the Dummers Presbyterians and parliamentarians. By an agreement between his parents, the second John Powell was brought up in the Church of England, but his two younger brothers were raised as Congregationalists. Even before the declaration of American independence the family was also politically divided, John being a declared loyalist and his brothers rebels.
By that time William Dummer Powell had completed his formal education and was trying to decide on a career. After three years at the Boston Free Grammar School he had been sent to an Anglican school in Tunbridge (Royal Tunbridge Wells), Kent, for four years and then to Rotterdam, where for two years he studied French and Dutch. At the age of 16 he had then returned to England for a year, where he “cultivated the good graces of the ladies more than any other pursuit,” until concern for his father’s health recalled him to Boston in 1772. By his own later admission he had been a far from assiduous student: fluency in French, an enthusiasm for cricket, and a continuing taste for the Latin classics seem to have been the main results of his schooling. The Powell view of what constituted frivolity was, however, severe; his letters to his parents reveal a rather priggish young man, serious if not especially studious. He already showed the intense concern for social position that was to characterize him all his life, reacting vehemently to an inaccurate report circulated at the Tunbridge school of his father’s insolvency.
Back in Boston, his father’s bout of rheumatic fever over, Powell set about looking for commercial opportunities. His father proved unwilling to give him a share of the naval victualling contract. A plan to go into business with his mother’s relatives in London having come to nothing, he visited Montreal in the summer of 1773 and Pennsylvania and New York in the next year. In the winters he studied law under the attorney general of Massachusetts, Jonathan Sewell (Sewall), but his object was to prepare himself for public life, not for a legal career. In 1774 Powell hoped to go into business in New York, where anti-imperial sentiment was less widespread than in Boston; but his journey there was interrupted by the death from smallpox of his mother, to whom his attachment was very strong. Returning to Boston, he threw himself into politics as one of the organizers of a declaration of loyal citizens against the revolutionary party (19 April 1775). He served in arms, although apparently not in action, as a volunteer with the British garrison. With open rebellion approaching and his opposition to it established beyond any chance of compromise, he decided to leave North America. He also met Anne Murray, the daughter of a Scottish physician, who had come to live with relatives in Boston. They were married just before leaving for England in October 1775 and settled near her family at Norwich.
His father followed within a year, taking up residence at Ludlow in Shropshire, the county from which his family had come. He continued to support his son, but his ability to do so was now diminished, mostly because a West Indian plantation in which he had invested heavily went bankrupt. A part of his Boston estates was confiscated on 30 April 1779 under an act of that year classifying him as an absentee rather than a traitor; but the confiscated part, inventoried at £902 1s. 2d., went to his rebel brother William, who had advanced him £1,000 when he left Boston. Under a later Massachusetts act of 1784 absentees were allowed to reclaim their property. It was to be a lifelong grievance of William Dummer Powell that he was never able to recover all his father’s estate under the terms of that act, but it seems that most of the elder Powell’s real property in America was retained in spite of his loyalism. It was nevertheless clear that the son would have to find a career to support his growing family.
He was unsuccessful in his competition with other loyalists for a government appointment, and a second scheme for going into business with a relative of his mother’s (this time in Jamaica) failed. He therefore decided upon the practice of law. By May 1779 he had kept the necessary terms at the Middle Temple. Unable then to afford the fees, he did not arrange his formal call to the English bar until 2 Feb. 1784. Yet another of his mother’s relatives, William Grant, the former attorney general of Quebec, recommended that province; and Powell arrived at Quebec in August 1779.
He obtained a licence to practise, but was disappointed in his hopes of patronage from the governor, Frederick Haldimand*. On the advice of the attorney general, James Monk, and the deputy commissary general, Isaac Winslow Clarke (a fellow Bostonian loyalist who later married his sister Anne), he went into private practice in Montreal. It proved a happy decision. Montreal was a growing commercial centre of some 15,000 people where there were not yet half a dozen lawyers. Powell did well enough to bring out his family, to acquire a house on Mount Royal, to command the highest fees at the Montreal bar, and perhaps even to dispense with his father’s assistance.
Yet he was soon dissatisfied in Montreal. Paradoxically, part of the reason was his success at the bar. His first client was Pierre Du Calvet*, charged with a libel against the judges of the Court of Common Pleas in Montreal. Du Calvet, displeased at an earlier judgement by the court, had published a letter critical of the judges and had beaten one of them, John Fraser, who had attacked him. Although warned by Monk that any lawyer who took the libel case would earn the resentment of the whole bench and of the governor as well, Powell defended Du Calvet and persuaded the jury to acquit him. In January 1780 he scored another triumph, this time before a court of quarter sessions without a jury. He was able to show that an old English statute on which Haldimand had relied to prosecute grain merchants for price-fixing had been repealed. Powell was willing to defy popular as well as official disapproval – he undertook prosecutions for refusals to transport military stores under the law of corvée – but his successes branded him as an opponent of the administration. That did not prevent his being retained on government as well as on commercial cases, but it was a role which his toryism made uncomfortable.
He was, however, convinced that government and the administration of justice under the Quebec Act of 1774 were arbitrary, in particular that English law relating to juries and the writ of habeas corpus must be introduced. He claimed later to have been silent himself and to have “inculcated silence and subordination in others,” but his views were well enough known to make him one of the delegates who sailed from Quebec on 25 Oct. 1783 with a petition against the Quebec Act. Nothing immediate came of the petition, but on his way back from England Powell spent almost a year in Boston. He attempted to recover the confiscated part of his father’s property. He agreed to manage the estates of his rebel uncle Jeremiah Powell for a time and he even hoped that, with the American war over, he could return to Boston without renouncing his British allegiance. The failure of his attempt, the disappointment of his hope, and the death of his uncle sent him back to Montreal early in 1785.
There he not only recovered his position at the bar, he found that most of the sources of his earlier discontent had been removed. An ordinance of 29 April 1784 had introduced habeas corpus, and another of 21 April 1785 soon adopted the general common law right to jury trials in civil cases. Perhaps best of all, Haldimand had gone. Sir Guy Carleton*, now Lord Dorchester, arrived in October 1786 for his second term as governor of Quebec; and under him Powell at last found official favour. He must be said to have earned it. In 1787 he served without remuneration as one of two commissioners sent to report on the dissatisfaction of loyalists settled on the upper St Lawrence, who were worried about the tenure of their lands. This commission recommended the 200-acre bonus for settlers who had made improvements to their land that became known as “Lord Dorchester’s bounty.” Powell wrote the commission’s report for a similar investigation of the seigneury of Sorel. He was on a commission to settle claims for freight charges against up-country traders who had used government vessels during the war. Finally, he led the board of inquiry into claims against the Quebec merchant John Cochrane, who had supplied specie to the army during the war and was accused of profiteering on bills of exchange. The board recommended dismissing the claims and found the court proceedings that had been taken against Cochrane improper. Powell therefore encountered the renewed hostility of the judges involved, Adam Mabane* and John Fraser. Mabane accused Powell of having taken an oath of allegiance to the American government, but he was not believed. Powell was granted the “few Acres of land” (in fact 3,000 acres) that Mabane was trying to deny him. Successful though his return to Montreal was, he could hardly look for a judicial appointment there.
The whole upper part of the province, which was to become Upper Canada in 1791, was still included in the district of Montreal. Except for justices of the peace, any two of whom could hear actions for debt up to £5, its only civil jurisdiction was the Montreal Court of Common Pleas. The St Lawrence loyalist settlers had petitioned for a separate province in 1785, and Montreal merchants in the next year made concerted complaints about the lack of courts in the interior. Dorchester opposed a separate province, but on 24 July 1788 he did create four new districts, each with a court of common pleas. The most westerly of them was Hesse (renamed the Western District from 15 Oct. 1792). Three judges were appointed for it, all residents of Detroit; Jacques Baby*, dit Dupéront, and William Robertson* were merchants, and Alexander McKee* was an officer in the Indian Department. All three joined in the inhabitants’ petition for a trained lawyer, following no other profession and not connected with trade. Powell, with his experience of up-country cases in Montreal, was an obvious choice. On 2 Feb. 1789 he was appointed first judge, and as it turned out the sole judge, of common pleas at Detroit. The stipend of £500 (sterling) probably exceeded his Montreal income. In retrospect, Powell claimed to have accepted the position “with the latent but confident expectation” of getting the chief legal appointment when a new province was created. At the time, it may have been enough that the court of Hesse, because the fur trade required it to have jurisdiction over acts outside its district (ordinance of 30 April 1789), was from a lawyer’s perspective the most important of the new courts.
Detroit was a rough town of about 4,000 people, the smallest and most remote place in which Powell had ever lived. He was to spend nearly all the rest of his life in smaller towns; York (Toronto) had not yet reached half that size when he retired there in 1825. Detroit was picturesque, and the officers of the garrison provided a society that Powell’s wife and sister Anne found agreeable, but the Powells were not happy there for long. He made no particular enemies through his court, which sat at L’Assomption (Sandwich) because Detroit itself was on American soil. He instituted simple procedure and dispensed quick justice, perhaps aided by the fact that he never called a jury. But he was also on the land board (7 Aug. 1789 to October 1792), where his refusal to recognize irregular purchases from the Indians and his faithful attendance – he missed only 5 of 53 meetings – made him a threat to the military and Indian Department officers who were unused to interference, especially from a newcomer. Powell’s life was threatened, his wife and children frightened by mock Indian ambushes, and his loyalty questioned. In October 1791 his wife took the family to England to keep them safe and to put the two eldest boys in school. Finally two officers, in what may have been intended as a cruel joke, forged a treasonable letter from Powell to the American secretary of war, Henry Knox.
By then Powell had other reasons for alarm. Upper Canada had been made a separate province, but Dorchester’s advice had been ignored in choosing the officials of its government. His choice for lieutenant governor, the loyalist Sir John Johnson, had been passed over. Their combined support for Powell did not get him the post of chief justice which he coveted, nor even a place on the Legislative and Executive councils. His authority as a judge of common pleas was extended beyond the Hesse District to cover the whole province (31 Dec. 1791), but his new masters were strangers with whom he had no influence. In February he went to Quebec to meet the new lieutenant governor, John Graves Simcoe*, and to disavow the forged letter. Their first acquaintance was reassuring to both of them, and he returned to his duties at Detroit. In the fall he went on leave to England, carrying Simcoe’s guarded endorsement that “the behaviour and conduct of Mr. Powell, as far as lies within my knowledge, has been in every respect such as becomes the station He holds.” He got similar assurance from the home secretary, Henry Dundas.
He remained an outsider under the new administration. The chief justice, William Osgoode, who had none of Powell’s experience of legal practice, of the bench, or of the province, did not consult him in reorganizing the courts. The new scheme replaced the district courts by a central court of king’s bench having criminal as well as civil jurisdiction. Before this judges like Powell had only limited criminal jurisdiction, supplied by temporary commissions of oyer and terminer and of general jail delivery. Powell was commissioned puisne judge of king’s bench on 9 July 1794. He first presided on the following 6 October at Newark (Niagara-on-the-Lake), his wider jurisdiction having released him from Detroit. Since the only other regular judge of the court was the often absent chief justice, Powell bore the brunt of its work from the beginning, as he did for the rest of his career.
Except for the location of the capital at York, Powell did not object to the policies of Simcoe’s administration: his criticism of district land boards had already foreshadowed the grounds on which Simcoe abolished them, and he was an enthusiast for the plan of endowing the Church of England by leasing the clergy reserves. Yet he resented the young Englishmen set over him, was ostentatiously patient about the disappointment of his ambitions, and referred rather too often to “the long and unimpeached discharge of my Duty as the first Magistrate of this new Colony before its Seperation from Lower Canada.” He was right in questioning the legality of land grants made before 1791, but he did so in conjunction with the malcontent Niagara magnate Robert Hamilton*, leaving the provincial attorney general, John White*, to find out about it after the law officers in Westminster had given their opinion. Without the substance of opposition, he deliberately gave the appearance of it: knowing of Simcoe’s antipathy towards the governor at Quebec, he named his home at Newark “Mount Dorchester.” When Osgoode left the province, Powell was again passed over, Simcoe urging a chief justice who was “an English Lawyer.” There were private grounds for bitterness, too: the sale of Powell’s house in Montreal to Monk led to a long squabble, and Mrs Powell’s attempts to collect a Boston inheritance got her little except a quarrel with her brother, George Murray.
Powell’s patience was to be tried further. His friend Peter Russell*, who administered the government after Simcoe’s departure, lacked the influence to be his patron; Powell acted as chief justice for over two years, only to see the appointment go to John Elmsley*. His claims were not entirely unrecognized: another lobbying trip to England, obtained by a threat of resignation, won him half the chief justice’s salary, if that post was vacant, in addition to an increase in his own. This increase more than doubled his income whenever he was alone on the bench to £1,300 (sterling), although nearly half of that was taken up by the expense of making six district circuits a year. He had considerable political sense, as he showed in attempting to compose the quarrels of William Jarvis*, provincial secretary, with his colleagues. He advised David William Smith*, elected to the first assembly for the riding of Suffolk and Essex, that he could not expect French Canadian votes but could win without them. His advice against prosecuting the son of Joseph Brant [Thayendanegea*] for murder (3 Jan. 1797) was based on political considerations, although he did at that time think that Indians in their own villages were independent of the courts. On the first Heir and Devisee Commission from 1797 he showed the assiduity, grasp of detail, and concern for fairness that made him a good if unimaginative administrator.
He thought of himself as a man of principle, willing for its sake to risk the displeasure of authority, but his principles were apt to be most in evidence when his own interests or his partisan feelings were involved. When he called attention to the justice of loyalists’ claims to special importance in Upper Canada, he added his own claims to advancement. He pointed out, in the long wrangle among officials over land fees, that Jarvis’s share did not cover his costs; Jarvis was a friend, whose eldest son Samuel Peters* was to be Powell’s business agent and to marry his youngest daughter, Mary Boyles. When Lieutenant Governor Peter Hunter* put government during his frequent absences in the hands of a committee of the Executive Council, Powell insisted on the possible illegality of the arrangement; he had just been ignored again for a seat on the council, and offended by Hunter’s supersession of Russell. He felt himself to be “without Patronage in Europe,” as he wrote Dorchester, “in a species of disgrace here, where my local Information and Zeal for the Service were an unpardonable libel on the new Government.”
He continued to memorialize Whitehall on his merits and on the improvements to provincial legislation that he would have advised if asked. Before his ambition could be fulfilled, he had still to outlast two more immigrant chief justices: Henry Allcock* and Thomas Scott. He got along well enough with the latter to borrow $400 from him in July 1806 during the most melodramatic of his personal crises. His fourth son, Jeremiah, having joined a quixotic and farcical attempt to assist rebellion in the Spanish colony of Venezuela, lay in the notoriously fever-ridden prison of Omoa, near Cartagena (Colombia), sentenced to ten years’ hard labour. Powell took six months’ leave of absence to lobby in Boston, New York, Philadelphia, London, and Madrid for his son’s release. Jeremiah was set free in 1807, only to die at sea the following year. Powell’s success reveals that his connections outside Upper Canada were more extensive and effective than he admitted – they ranged from the Duke of Kent [Edward* Augustus] to the godmother of the son of the Spanish minister to the United States – and his grief did not prevent him from pressing his own case while in London. The deaths of his favourite sister Anne in childbirth at Montreal in 1792, of his infant daughter Anne in 1783, of his second son William Dummer in 1803, and of his youngest child Thomas William at school in Kingston in 1804 had been more tragic, but they had not drained his energies and finances as had Jeremiah’s escapade. He returned to York, worn out, in October 1807. He and his wife were now touchier and more status-conscious than ever, jealous of their claims to precedence in York society and ready to feel slighted at the formal manners of a new lieutenant governor, Francis Gore*. Mrs Powell was insulted in September 1807 at the prospect of having a wealthy York merchant, Laurent Quetton St George, as a son-in-law. She ignored her husband’s requests and risked Gore’s displeasure in refusing to cooperate in his attempt to rehabilitate Mrs John Small in York society.
In fact Gore’s arrival marked a turn in Powell’s fortunes. He declined the lieutenant governor’s first offer of a seat on the executive council, because it would have been unpaid; but a regular salaried place came open and he was sworn in on 8 March 1808. He remained stiffly independent, offending Gore by his decision on 15 July 1809, upheld on appeal to the imperial law officers, that David McGregor Rogers could not be dismissed as registrar of deeds because of his opposition in the House of Assembly. Gore however returned to the opinion he had expressed in the preceding March, that Powell was “a Gentleman who has discharged the duties of his important office with probity and honour for upwards of twenty years and whose local knowledge particularly fits him” to be an executive councillor. The council, with two assiduous and competent members in Powell and John McGill, now made progress with its backlog of business, Powell undertaking a simplification of the confused process by which land patents were issued. His credit rose steadily, and he soon had the satisfaction of being petitioned by such magnates as Richard Cartwright* and such prominent immigrants as John Strachan* to use his influence with the lieutenant governor.
That influence was exaggerated in popular conception at the time, as it was by the later reform critics Robert Gourlay*, Francis Collins, and William Lyon Mackenzie*. It also appears greater and more personal in retrospect than it really was, because the later correspondence between Gore and Powell reached a level of cordiality exceptional in Powell’s life. The two agreed that the subordinate officers of government should be men with experience of the province, but whereas that was a matter of practical common sense for Gore, for Powell it was a desire to “retain the Honors of the [legal] profession amongst ourselves.” Powell could obtain the appointment of his eldest son John as clerk of the Legislative Council (19 Feb. 1807) in succession to James Clark*, but not that of his protégé John Macdonell* (Greenfield) as attorney general. It was Isaac Brock*, administrator of the province during Gore’s absence, who agreed to Macdonell’s appointment and who recommended that Powell’s third son, Grant*, be made principal of the Court of Probate (April 1813). Powell drafted Brock’s celebrated reply of 22 July 1812 in response to Brigadier-General William Hull’s proclamation issued at Detroit. In Powell’s view at the time, Brock and later Sir George Murray* (administrator from 25 April to 30 June 1815) relied on his advice as much as Gore had done.
The decade up to 1818 saw the height of Powell’s career. Although in 1797 he had sworn never to settle his family at York, he now had an impressive house, Caer Howell, with another 100 acres in York Township and 5,000 more throughout the province. He assumed the obligations marking the status of which he, and still more his wife, were jealously proud; always complaining of the expense, he duly subscribed to building funds for a fire hall (1802) and for St James’ Church (1803), and was director of the subscription library (1814), the Loyal and Patriotic Society of Upper Canada (1812), and the Society for the Relief of Strangers in Distress (1817). As his wife was to write in 1819, “in an aristocratical Government, expences must be incurred according to the station held.” York was for him no longer, as he had called it in 1797, the seat of “the little policy of a remote Colony,” it was his home. His family ties to Boston had been cut well before the War of 1812 and he was committed to York, where most of his success and all of his prospects lay.
After the war came, he resolutely stayed at York during its occupation by American troops. He ran no military risk – “Our principal distress,” he wrote in 1815, “arose from the incredible Expense of living enhanced by the demands for the Army” – but he did keep British commanders informed of enemy movements and he sent regular reports on the state of the occupied town to the commander-in-chief, Sir George Prevost*. Less flamboyantly but just as firmly as Strachan, he insisted that the American commander maintain order and protect property against looting, whether by his own troops or by the civilians whom Powell thought chiefly responsible. The old charges of American sympathies, last raised briefly in 1807, were now totally implausible. By the end of the war, with Chief Justice Scott gravely ill and Gore returned from leave, Powell’s ascendancy on the bench and his influence in council were unquestioned. He was appointed to commissions to hear charges of treason (11 April 1814) and claims for wartime losses (21 Dec. 1815). The assembly granted him £1,000 for his continued work on the Heir and Devisee Commission. When Scott became unable to chair the Legislative Council, Powell felt strong enough to drive a mean bargain. He accepted a seat on the council and its speakership on condition that Scott resign them at once, giving up the salary. When commissioned (21 March 1816) Powell took no salary, but he recovered the arrears two years later. And at last he received the post to which he had felt himself entitled 25 years before and in which he had so often acted: on 1 Oct. 1816 he was commissioned chief justice of Upper Canada.
The war and his own success resolved some complications in his toryism. He no longer had reason to be jealous of appointees from England, and his self-consciousness as an American loyalist was no longer defensive. His old sense of grievance and of colonial inferiority persisted only in the retention of personal animosities: memories of Haldimand, Simcoe, Osgoode, Elmsley, Hunter, and Allcock were an irritant all his life. He was incurably, perhaps deliberately, provincial in dress, manners, and speech – he bought his clothes in Boston, when at home gobbled food with his fingers, and his voice never lost its Yankee twang – but these had become assertions of his independent character, not obstacles to his success. He remained convinced that Upper Canada was by right destined to be a special loyalist province and that most of the refugees from New York in 1784 would have come to it if imperial delays in arranging their reception had not left their establishment in New Brunswick “too far effected to think of removal.”
Upper Canada had become his country, with the imperial connection its essential support. The dangers that he saw to it arose not from imperial neglect or American aggression but from a spirit of democratic opposition and the pretensions of the legislative assembly. Much as he had disapproved of Robert Thorpe*’s combining his judgeship with political opposition in 1807, he had seen the main danger of Gore’s early critics as lying in the popularity of Joseph Willcocks*’s newspaper, the Upper Canada Guardian; or, Freeman’s Journal. He was worried enough by the radicalism of John Mills Jackson*’s A view of the political situation of the province of Upper Canada . . . (London, 1809) to annotate his copy for a reply. The reply actually published, however, Letters, from an American loyalist (Halifax, 1810), was written not by Powell, as Robert Thorpe supposed, but by Cartwright. The assembly’s claim to the sole initiative in introducing money bills had seemed to him a threat to the Legislative Council long before he took a seat on the latter, and he had denied the lower house’s right to examine administrative expenditures even when it was asserted against the lieutenant governor he most actively disliked, Hunter. The assembly’s final clash with Gore in April 1817, although it was led by Robert Nichol, a land speculator whose interests coincided with his own, was for him evidence that the province was facing the same danger of democratic subversion that had driven him from Boston.
Perhaps he had simply been a malcontent for so long that he needed an object of disapproval. At any rate, from early in 1817 the references in his correspondence to the society of Upper Canada were increasingly gloomy. Having undertaken to raise his granddaughter Anne Murray Powell at York, he shared his wife’s concern that “there can in this place be no distinction of classes,” and that the young lady might therefore acquire plebian manners. It was probably as much a source of comfort as of concern for the Powells to find after the election of 1828 that “the majority of the lower House are too low to render association pleasant,” but he had a growing sense that the province was departing from its original loyalist design. In 1822, by a passionate appeal to the “true British and Loyal” origins of the province, he secured the rejection of an assembly motion to restore the original name of Toronto to the town of York. When the town was at last incorporated as the city of Toronto in 1834, he recorded his objections to “the wild and Terrific Sound of toronto entailing upon its miserable Inhabitants the annual Curse of a popular Election to power to call forth all the bad passions of human nature.” His disapproval of popular elections might have been mitigated if he had lived to see his grandson John chosen alderman in Toronto in 1837 and mayor of the city, 1838–40.
His appointment as chief justice and his reputation as the most experienced member of the provincial administration did not end his capacity for making enemies. His neighbour in York, John Strachan, conceded in 1816 that Powell’s “knowledge of this Province (and perhaps of the Lower) exceeds that of any man living,” but he was offended that Powell’s displacement of Scott was “not conducted with delicacy.” The two soon disagreed over plans to endow the Church of England in the province. It was Powell’s early view that the term “Protestant clergy” in the Constitutional Act of 1791 did not confine the clergy reserves to the Church of England. He changed his mind some time before February 1828, when he sent to the secretary of state, William Huskisson, a pamphlet On clergy reserves objecting to Presbyterian claims to a share of the revenue from them. He held to the opinion that the reserves had been intended as a substitute for tithes, which Strachan hoped to introduce. Apart from any question of their legality, Powell thought that it would be impractical to attempt the collection of tithes. It was hard enough to find tenants for the clergy reserves, because settlers with so much land open to them required “very strong baits to spend their labour on another’s soil.” By May 1817 Strachan had relegated Powell to being only “Perhaps” an adherent to the Church of England, although Powell’s daughters were teaching in his Sunday school, and was regretting that Powell would be “a little indifferent or inclined towards opposition but would be afraid to come forward boldly” in the Legislative Council against Strachan’s plans for the clergy reserves.
Apart from disagreements on policy, they were both jealously ambitious men; if Strachan resented Powell’s greater influence, Powell resented Strachan’s pretensions. They were also rivals over which of them could claim to be the patron of John Beverley Robinson*, Strachan’s pupil who with Powell’s support had risen to be acting attorney general (1812–14) and solicitor general (13 Feb. 1815). Powell helped Robinson to get two and a half years’ leave to study law in England, but Robinson returned with London connections of his own that secured his appointment as attorney general (11 Feb. 1818) and left him little need of either Strachan’s or Powell’s favour. He also returned with an English wife, dashing the hopes of Powell’s daughter Anne. As attorney general he soon found that Powell was not an easily managed judge. A new lieutenant governor, Sir Peregrine Maitland*, found the same. The two parted company over a plan to tax unimproved lands. Maitland wanted legislation to make an existing tax effective. Powell objected to bringing the assembly into a matter that belonged to the courts and the administration. Maitland thought him pedantic, opinionated, and self-interested, while he thought Maitland neglectful of the royal prerogative and indifferent to local experience. In 1821 Powell was humiliated in the Legislative Council, which replaced him with Robinson as a commissioner to seek imperial help in settling the division of customs duties with Lower Canada. Powell, bitter at being displaced by his own protégé, believed that Robinson and Strachan had conspired against him; but it is more likely that his irascibility had simply offended too many people and would have made him a bad commissioner. There was worse to come: his daughter Anne, still enamoured of Robinson, defied her parents to follow him when he went to England as commissioner and was drowned in the wreck of the ship Albion (22 April 1822).
Powell’s primary loyalty was always to the principles of English common law, not to the provincial administration of Upper Canada. The pettiness, the ungenerous spirit of calculation, and the tendency to store up resentment which characterized his pursuit of office contrasted with his joviality and concern for defendants on the bench. His judicial humour was merely conventional: to a divided jury in a murder trial he explained that he could neither half hang the defendant nor hang half of him, so that the verdict amounted to acquittal. His faith in jury trials did not involve a high opinion of jurors’ ability to understand the law or even to distinguish the relevant facts in a case. His instructions to juries left little doubt as to which witnesses he himself found credible or what verdict he expected. When the slave Jack York* was tried for burglary in September 1800, Powell cautioned the jury emphatically against the self-interest of York’s owner, James Girty, as a defence witness. York was convicted, and Powell sentenced him to death. A month earlier, he had pronounced the same sentence on William Newberry, the son of a loyalist, after his conviction on the same charge. If the two cases were parallel in law, however, Powell did not think that the practical results ought to be the same. He expected the letter of the law to be tempered with mercy; but mercy was properly a matter of prerogative discretion, not for the sympathy of juries. York, whose owner was connected with the Indian Department officers with whom Powell had clashed at Detroit, would have hanged if he had not managed to escape from jail; but Powell recommended to the lieutenant governor that Newberry’s sentence be reduced. In a less dramatic case in August 1810, having charged the jury to convict a Methodist minister of illegally solemnizing marriages, he recommended a pardon.
Powell opposed the suspension of habeas corpus and the declaration of martial law during the War of 1812 and disliked the resort to special commissions on treason charges, because he thought that the regular course of the common law should not be interrupted for the sake of administrative expediency. In June 1814 he took turns with Chief Justice Scott and Mr Justice William Campbell in presiding over treason trials at the Ancaster assizes. He charged the jury to convict only 7 of the 50 defendants whose cases came before him in absentia, despite his personal belief that they all deserved punishment. He presided over 6 of the 18 trials at which prisoners appeared to plead not guilty. His harsh view of what constituted a treasonable act, uncompromisingly conveyed to the jury, resulted in the conviction of the luckless Jacob Overholser*. Three others, against whom there was an abundance of evidence, were also convicted. Yet, of the four prisoners acquitted at Ancaster, two, Robert Troup and Jesse Holly, were tried when Powell was presiding; and his summaries of the evidence clearly anticipated their acquittal. He was, however, unwilling to extend anything beyond strict justice to traitors: unlike the other two judges, he made no recommendations for mercy.
In the years after he attained the post of chief justice, Powell’s crankiness began to show itself on the bench. He had long felt that the rules of his court were inconveniently restricted by statute; his original procedures, after having been changed to a more elaborate English model by Elmsley, had been partly restored by the assembly in 1797, in an act “ill comprehended by the Law makers . . . almost compelling the Court to evade by Shifts, Anomalies and Inconsistencies which could not be reconciled.” He responded by an increasing, and to many it seemed an increasingly partisan, tendency to raise technicalities in the law, some of them of doubtful application. In August 1819, charging the jurors in an action for damages (Randal v. Phelps), he was said by the plaintiff Robert Randal to have threatened them with a writ of attaint – a writ unused for more than 100 years – if they did not follow his own preference for the defendant. He told the grand jury at Sandwich (Windsor) in 1821 that Indians, although subject by common law to the regular courts, might be exempt from their jurisdiction by treaty. The next year this remark became the basis for the defence in the murder trial of Shawanakiskie, whose conviction was therefore not confirmed until after reference to the imperial law officers four years later. In October 1823 the trial for infanticide of a servant girl, Mary Thompson, showed how far Powell had retreated into technicalities. The jury in convicting her recommended clemency, and Powell himself felt sympathy for her, but her pathetic circumstances were not enough to make him recommend a pardon. It was only after finding that some of the evidence he had allowed against her would not have been admissible in contemporary English practice that he changed his mind. Growing finicky about the letter of the law did not prevent him, near the end of his career, from becoming a little vague about the limits of his authority. In 1823 he refused to support the nomination as commissioner for war claims of Alexander Wood*, to whose morals he objected. When Wood was appointed anyway on Strachan’s recommendation, Powell as chief justice refused to swear him in. Wood successfully sued him for £120 damages. Powell tried to set aside the judgement by a bill of exceptions, which would have required Maitland to have acted as a judge in equity. Even when this dubious and obscure device failed, he refused to pay; and the debt was forgiven after his death.
His descent with advancing age into pedantic crankiness was not surprising in one who had always been so self-consciously insistent on the independence of the bench. Perhaps the only concession to administrative expediency that he ever made as a judge was to refrain in the winter of 1791–92 from questioning the continued legality of his Quebec commission after Upper Canada was proclaimed a separate province. In 1818 he caused inconvenience to the provincial administration in a series of decisions arising from the quarrels of the Earl of Selkirk [Douglas*] in the Red River colony, some of which produced law suits in the courts of Upper Canada. To the chagrin of Robinson, he rejected charges of conspiracy against Selkirk; and to the outrage of Strachan he threw out most of the charges that Selkirk had brought against his opponents. In the most spectacular of his trials, however, Powell found himself trapped by the law into unwilling cooperation in a course of action that he thought unnecessary at best. He thoroughly disapproved of Robert Gourlay and recommended that land grants should be withheld from those who attended Gourlay’s convention at York in July 1818, but he repeatedly advised that there were no legal grounds for prosecuting Gourlay’s attacks on the administration of the province. When such grounds were found under the Sedition Act of 1804 and persisted in by Robinson in spite of Gourlay’s obviously incapacitating illness, Powell had no choice but to pronounce a sentence of banishment.
Most of his cases, however, were mundane. He was uncompromising in the belief not only that convicted debtors should be imprisoned but that those accused of debt should be held in jail for trial. A survey of the province’s 11 district jails in 1827 showed them to have a capacity of 298 cells, 264 of them occupied. Of the prisoners, 159 were being held for debt, and only 29 for felonies. In his last years on the bench he defied both the assembly and the councils by insisting that even legislators were not immune from arrest for debt. By 1824 his judicial duties had become as wearisome to Powell as his administrative work, and he planned to retire from the bench when he reached the age of 70 in November 1825.
He had made too many enemies to be left to a peaceful retirement. On 24 Oct. 1824 Mackenzie published a letter in the Colonial Advocate signed A Spanish Freeholder, which in the course of attacking the York élite lampooned Powell as “Cardinal Alberoni, Lord Chief Justice of His Imperial Majesty of Spain.” It revived the old charges of his American sympathies at Detroit, alleged that he had obtained the chief justiceship in return for the harshness of his sentences at the Ancaster assizes, and condemned his behaviour on the bench in a case not named, but clearly that of Singleton Gardiner in 1822–23. Gardiner, a Middlesex farmer politically at odds with two local tory magistrates, Mahlon Burwell* and Leslie Patterson, had brought a suit against them. Powell doubted that he had a good legal case, but by referring it to a jury he publicized the magistrates’ abuse of their authority. He had acted correctly, but probably also with malice: Burwell in the assembly had promoted Robinson’s appointment as commissioner in 1821, and he was the lieutenant of Thomas Talbot*, towards whom Powell’s enmity went back to Gore’s administration. The Spanish freeholder was probably Burwell’s younger brother, Adam Hood Burwell*. Before it was printed in Mackenzie’s paper, his letter received an approving notice, hinting broadly that it referred to Powell, in Charles Fothergill*’s Weekly Register. The letter soon received an equally intemperate reply in a pamphlet, The answer to the awful libel of the Spanish freeholder, against the Cardinal Alberoni, published under the pseudonym Diego ([York, 1824]).
Although Diego’s pamphlet has been attributed to Powell and to his son-in-law Samuel Peters Jarvis, it is far more likely to have been the work of John Rolph*, Jarvis’s law partner and the recent victor over Mahlon Burwell in the election of 1824. Even before the pamphlet appeared, however, Powell’s temper had led him into indiscretions that neither Maitland nor the councils had the slightest disposition to forgive. Refusing to be content with the grudging apology that Maitland had exacted from Fothergill, the angry old judge prepared two pamphlets of his own: Correspondence and remarks, elicited by a malignant libel, signed “a Spanish freeholder” and Spanish freeholder, app.A. They had little to do with the recent libel: the first rehearsed his grievances against Maitland and his secretary, George Hillier*; the second was addressed to his quarrel with Robinson in 1821; and both printed correspondence meant to be private. Beginning as the victim in the affair, he had turned himself in the eyes of the York administration into the chief offender. On 28 Jan. 1825 the Executive Council reported that he had laid himself open to the legal charge of repeating a libel, had abused the lieutenant governor’s confidence, and had exposed “measures of Government to public contempt and reprehension.” This rebuke was the more bitter because its author was John Strachan, the other two councillors present being the quiescent James Baby and the aged Samuel Smith. And although Strachan was by this time more an instrument of the lieutenant governor than an influence upon him, he felt secure enough to add that the chief justice had been sulking ever since Robinson’s appointment as attorney general. Maitland refused to speak to Powell again except in the presence of a witness.
Powell was obliged to resign from the Executive Council in September 1825. He remained a legislative councillor until his death, but had to yield the speakership to William Campbell, who also succeeded him as chief justice (17 Oct. 1825). The secretary of state, Lord Bathurst, allowed Powell a pension of £1,000 (sterling) a year, in spite of the Executive Council’s advice that he was “unworthy of such a favour.” After almost three years in England, securing his pension and justifying his conduct, he returned in 1829 to spend his last years at York. He took no further part in public affairs, except to publish his correspondence with Maitland over the Wood affair.
No one else had put such sustained effort and such shrewd intelligence into the government of Upper Canada. In the history of the province, only Allcock in Hunter’s administration and Robinson in Maitland’s had greater influence than Powell. Strachan and Christopher Alexander Hagerman* may have approached it, but only briefly. Powell had achieved prosperity and seen his surviving children comfortably established. Yet he was pessimistic about the state of the province, with reform politics rising in the House of Assembly, and he had been without real friends in the administration ever since Gore’s departure. Gourlay had well nicknamed him “Pawkie,” for his awkwardness in personal relationships never left him. As his health declined, so did his mental powers, obviously enough to give malicious satisfaction to his erstwhile allies, Robinson and Strachan. He reviewed the quarrels of his life, writing self justifying memoranda on them, and publishing a rather maudlin outline of his life, Story of a refugee (York, 1833). In the end, all his formal successes brought him little pleasure and little faith in the future of his adopted province.
[Powell’s autobiographical writings became increasingly unreliable as he grew older, but he kept a great deal of his correspondence. The main collection of his papers in the MTL, with a smaller collection in the PAC (MG 23, HI, 4), richly documents his life. He appears at his worst in the pamphlets Correspondence and remarks, elicited by a malignant libel, signed “a Spanish freeholder,” in Upper Canada, 14th October, 1824 ([York (Toronto), 1824]?), Spanish freeholder, app.A ([York, 1824]?), (A letter from W. D. Powell, chief justice, to Sir Peregrine Maitland, Lieutenant-Governor of Upper Canada, regarding the appointment of Alexander Wood as a commissioner for the investigation of claims . . .) ([York, 1831]?), and Story of a refugee (York, 1833). He was the object of much comment by his contemporaries at York; some of it survives, especially in the papers of John Strachan (AO, ms 35, and MTL), John Beverley Robinson (AO, ms 4), and Samuel Peters Jarvis (AO, ms 787, and MTL). The most valuable printed collections of documents are Strachan’s Letter book (Spragge); Town of York, 1793–1815 (Firth) and 1815–34 (Firth); and Corr. of Lieut. Governor Simcoe (Cruikshank). The AO Report for 1917 prints the records of Powell’s district court as “Upper Canada, District of Hesse; record of the Court of Common Pleas, L’Assomption, 1789.” The reports for 1910 and 1915 print “The journals of the Legislative Council of Upper Canada. . . .”
The life of William Dummer Powell, first judge at Detroit and fifth chief justice of Upper Canada (Lansing, Mich., 1924) by William Renwick Riddell*, although not the author’s best work, remains the only useful biography of Powell. Riddell has also described the working of his courts in “Practice of Court of Common Pleas of the District of Hesse,” RSC Trans., 3rd ser., 7 (1913), sect.ii: 43–56, and in “The early courts of the province,” Canadian Law Times (Toronto), 35 (1915): 879–90. His review of Powell’s decisions on the status of Indians is in Sero v. Gault (1921), 50 O.L.R. 27. See also his article “The Ancaster ‘Bloody Assize’ of 1814,” OH, 20 (1923): 107–25; Alison Ewart and Julia Jarvis, “The personnel of the family compact, 1791–1841,” CHR, 7 (1926): 209–21; R. E. Saunders, “What was the family compact?” OH, 49 (1957): 165–78; G. M. Gressley, “Lord Selkirk and the Canadian courts,” N.Dak. Hist. (Bismarck), 24 (1957): 89–105; S. F. Wise, “Upper Canada and the conservative tradition,” Profiles of a province: studies in the history of Ontario . . . (Toronto, 1967), 20–33, and “Conservatism and political development: the Canadian case,” South Atlantic Quarterly (Durham, N.C.), 69 (1970): 226–43; Terry Cook, “John Beverley Robinson and the conservative blueprint for the Upper Canadian community,” OH, 64 (1972): 79–94; R. J. Burns, “God’s chosen people: the origins of Toronto society, 1791–1818,” CHA Hist. papers, 1973: 213–28; K. M. J. McKenna, “Anne Powell and the early York elite,” “None was ever better . . .”: the loyalist settlement of Ontario; proceedings of the annual meeting of the Ontario Historical Society, Cornwall, June 1984, ed. S. F. Wise et al. (Cornwall, Ont., 1984), 31–43; and Paul Romney, “The Spanish freeholder imbroglio of 1824: inter-elite and intra-elite rivalry in Upper Canada,” OH, 76 (1984):32–47. s.r.m.]
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