20
Lord Selkirk’s Prisoner

On the eighth day of the voyage from Fort William, as the canoes carrying McLoughlin and his fellow prisoners wended their way along the north shore of Lake Superior, disaster struck.

Around noon the party stopped to eat. During the meal the wind picked up, but since the men were on the leeward side of an island they did not realize how strong it really was. The commanding officer, Lieutenant G. A. Fauche, asked William McGillivray if he thought it was safe to proceed. ­McGillivray replied that it would be safe as long as the soldiers allowed the guides to do their duty. With that goading remark from his lead prisoner, Fauche decided to chance it. But as soon as the canoes pushed off from the shelter of the island and were out on open water, the men realized their mistake. The fierce westerly made it impossible to turn back, so they steered for the nearest mainland. But the heavy chop was too much; the big canoes began to take on water. Changing course again, they paddled for a small island lying to the north.

It was McLoughlin’s bad luck to be in the smallest canoe, which was so low in the water by the time it approached the island that it could not be maneuvered through the shoals. With icy water swirling about the men’s ankles and breakers crashing on all sides, the canoe turned broadside to the surf and foundered. Plunged into the frigid water and tossed amongst ninety-pound packs and flailing men, McLoughlin went under. By the time some other crew members hauled him out of the lake he was half-drowned and unconscious. He lay as if lifeless on the shore for many long minutes before the men managed to resuscitate him. The other two canoes came to the rescue, but by the time they arrived the overturned canoe was smashed to pieces in the surf and only twelve of the twenty-one men on board could be accounted for. A wider and wider search was made for the missing men and finally, sometime later, the bodies of the other nine were found washed up on a nearby beach. The dead included one partner, two soldiers, and six Iroquois canoemen.¹

Amidst the heavy loss of life, the survivors could at least rejoice over the fact that their friend still lived. They stripped off the doctor’s wet clothing and warmed him by a fire and were thrilled when his first teeth-chattering utterances offered proof that he was coming around to his old cantankerous self again. Although drowning and near-drowning accidents were not uncommon in the fur traders’ experience, it still seemed almost miraculous to them that McLoughlin had revived after lying motionless without so much as drawing a breath for so many minutes on end.

Medical science now tells us that when drowning victims are submerged in cold water they may undergo what is called the “mammalian diving reflex,” a set of bodily reactions found in various mammals and especially in sea mammals. These include a slowing of the heart rate by as much as 50 percent in humans; a restriction of the blood flow to extremities so as to increase the blood and oxygen supply to the vital organs, especially the brain; and a blood shift to the chest to avoid collapse of the lungs. Near-drowning victims may go without breathing for many minutes—in rare cases even as long as an hour—without sustaining brain damage. Even so, the more usual result is hypoxemia, or shortage of oxygen in the blood, causing damage to the brain or lungs.

Medicine in McLoughlin’s day had just begun to address the treatment of near-drowning victims. In earlier times, medical practice limited itself to the treatment of the sick, and there was no tradition of emergency medical response, or first aid, for accident victims. By the end of the eighteenth century, first aid was becoming a regular part of a physician’s education, and most doctors knew a little about first aid to near-drowning victims because drowning was a relatively common accident. Various methods were used to resuscitate a person, though the modern treatment of cardiopulmonary resuscitation, or CPR, was not developed till later. McLoughlin saw plenty of drowning or near-drowning accidents in his medical practice, and he surely would have known that he was a lucky man to have survived and escaped brain damage.²

He seems to have been less fortunate with his lungs, however. In the months and years following the accident, he suffered repeated bouts of serious, sometimes protracted, illness. Once, several weeks after the accident, while still detained in Lower Canada, he was laid up for a month in the care of a tavern keeper. The illness may have been a case of bacterial infection and pneumonia brought on by his having had water in his lungs. Or perhaps it was a different complication from the near-drowning: he may have damaged some lung tissue, bringing on a case of what doctors would now call acute respiratory distress syndrome, a chronic shortness of breath, which also leads to pneumonia. Whatever the ailment was, it struck again and again until McLoughlin came to believe that he was never completely recovered from it. Some five years after the accident, he finally committed himself to a long convalescence of about six months to try to shake it for good, and the treatment worked. In all likelihood his lungs were indeed impaired as a result of the accident.³

The Nor’ Westers held Lord Selkirk responsible for the disastrous loss of life, since they were his prisoners when the accident occurred. It rankled them deeply that Selkirk had placed his mercenaries, the De Meuron Regiment, in control of their lives, and that the commander of the prisoner escort, ­Fauche, had acted with such callous disregard for their safety. The Nor’ Westers lamented that the soldiers of the De Meuron Regiment were nothing but a bunch of “worthless plunderers and deserters from ­Buonaparte’s armies in Spain.” The disaster would never have happened were it not for the De Meurons’ mishandling of the canoes.⁴

Following the disaster, Fauche and the surviving prisoners still had many miles to travel together. On September 3, they arrived in York, the capital of Upper Canada, where Fauche expected to turn over his charges to the attorney general. But the attorney general was out circuit riding, so their journey continued, to one town and then another, in a vain effort to catch up with this official. “At Kingston we were informed that the Attorney-General was at Brockville,” Fauche later stated by affidavit. “We soon arrived at that place, where I hoped to be unburdened from so disagreeable a charge; but the prisoners having applied for a Writ of Habeus Corpus, I was charged to convey them to Montreal, where we arrived on the 10th of September, and where the prisoners were all admitted to bail.”⁵

In Montreal, McLoughlin had to go through four grueling days of questioning, mainly concerning his role in the deaths at Seven Oaks in June. After he and the others were arraigned, they were released on bail to await trial. Because the trial was not scheduled until 1818, McLoughlin returned to Fort William in the spring of 1817—that is, after his month-long illness when he had to hole up in a tavern.⁶

In the meantime, the strife between the two rival companies continued. As charges and countercharges flew, the number of cases pending before the colonial courts multiplied. The Nor’ Westers managed to obtain a warrant for the arrest of Selkirk himself on charges of abusing his legal authority and unlawfully seizing the company’s property at Fort William. When Selkirk refused to submit to arrest, his own legal troubles mounted. By the time McLoughlin returned to Fort William in the spring of 1817, Selkirk and the De Meurons had already vacated the premises and were at Red River. Selkirk spent that summer taking depositions and making further efforts to restore the colony. In the fall, he journeyed back east through the United States. His route was by minor waterways and the Mississippi River to St. Louis, then up the Ohio and across the Alleghenies to Washington. Although Selkirk had legitimate business with the American government (he met with Secretary of State John Quincy Adams in hopes of getting compensated for the portion of his land grant that lay south of the forty-ninth parallel), his decision to return east through the United States exposed him to the charge that he was avoiding arrest in Canada. Writing to his attorney that he was offended by those allegations, he returned to Montreal in January 1818 to face his accusers.⁷

McLoughlin and the other Nor’ Westers who were called to stand trial began to assemble in Montreal later that year. The many trials became a sensation. With prosecuting and defense counsel lined up on both sides of the conflict, Selkirk’s personal attorney remarked, “All becomes a perfect chaos.” A comprehensive list of over a hundred separate cases printed in the Montreal Courant showed the Nor’ Westers facing charges of murder, arson, robbery, grand larceny, and malicious shooting, while Selkirk and the Hudson’s Bay Company stood accused of riot and larceny, false imprisonment, and assault.⁸

Although public opinion in Lower Canada favored the North West Company—the Montreal-based fur company was, after all, the home team in this contest—McLoughlin felt none too sanguine about his own pending day in court. The clash at Seven Oaks and the shocking death of the governor and colonists continued to lie at the center of the government’s interest in the whole matter, and the charge of murder hung on McLoughlin menacingly like a steel trap. But as the months passed and no new indictments were issued against the Métis who had fought on that fateful day, he took it as a sign that Canadian officialdom was becoming skeptical of Selkirk’s characterization of the incident as a massacre of noncombatants.⁹ There was more good news when attorneys for the North West Company succeeded in moving most of the trials to York, where, it was hoped, more witnesses from the Northwest could be brought to testify.

The trials of the Nor’ Westers finally took place over the last two weeks of October. McLoughlin had to sit through several days of proceedings before his own case came up. First on the docket was the case of two Métis, Paul Brown and François Boucher, who had participated in the Battle of Seven Oaks. Witness testimony covered a wide gamut of alleged misdeeds by both fur companies but focused most heavily on the Seven Oaks affair. The attorneys for the Crown attempted to show that the North West Company and the Métis had conspired to destroy the colony and that this conspiracy had culminated in a murderous attack on Governor Semple and innocent colonists. The attorneys for the North West Company, two brothers by the names of Samuel and Livius Sherwood, presented a different story. Skillfully playing to the sympathies of the jury, they constructed a narrative in which the Red River colony was nothing but a hunting camp peopled by Hudson’s Bay Company partisans. In their version, the battle was a spontaneous combustion, or “great riot,” that occurred following a string of provocations and aggressions by the Hudson’s Bay Company going all the way back to the founding of the Red River colony and the so-called Pemmican War. In closing arguments, Samuel Sherwood declared that the killings at Seven Oaks amounted to acts of self-defense, not unprovoked manslaughter.¹⁰

The direction of the court’s verdicts began to emerge when both men were acquitted of the charge of murder. Their two-day trial was followed by others involving incidents of alleged theft and arson in 1815, which ended in acquittals as well. Finally, McLoughlin’s case opened on October 30. At bar with him were four other partners and one clerk, John Siveright, who had been at Fort Gibraltar during the summer of 1816. The partners were charged with being accessories to murder after the fact, while Siveright was charged with being an accessory to murder both before and after the fact. The prosecution called several witnesses who had already testified in the trial of Brown and Boucher; in the partners’ trial their testimony was directed toward establishing each of the defendants’ presence or absence at various points along the now-familiar timeline. Several witnesses identified McLoughlin as having been among the Nor’ Westers who had traveled to Rainy Lake in June 1816 to recruit Indians for an assault on the Red River colony. Two witnesses testified that the doctor had taken part in detaining the colonists as they fled down the Red River after the Battle of Seven Oaks. One witness stated that McLoughlin had joined in the council at Fort Douglas in which the Nor’ Westers congratulated the Métis on their victory. If this was a conspiracy, then there could be little doubt that McLoughlin had taken part in it. But as the jury had already acquitted Brown and Boucher of murder, it seemed unlikely that the charge of accessory to murder brought against McLoughlin and his five co-defendants would be any more convincing to this court. Closing arguments were heard late on the second day of the trial, then the jury retired. After only three-quarters of an hour, they returned. When all had taken their seats and the courtroom was once again quiet, hushed with anticipation, the foreman delivered a verdict. Not guilty.¹¹

For the first time in over two years, McLoughlin was a completely free man. But he was in no mood to rejoice. Even though he had been more and more confident of the outcome of the trial toward the end, the strain of living under an indictment for murder had soured what little enthusiasm for the fur trade he had remaining.