The Trial at Niagara (Part II)

In the days following Morreau’s execution, the trials continued. James Gammell and his fellow Patriots were indicted, convicted, and sentenced in the District Court of Niagara. Miller and the three other Americans were charged with a felony;(1) James and five others were charged with treason. Gammell, Grant, McPhaden, and McNulty pleaded guilty; Kemp and Yerks were acquitted. Although no lives were lost in the Short Hills raid, the men were tried as if lives had been taken. The original indictment reads as follows:

The Jurors for our Sovereign Lady the Queen upon their oath present that James Gammell late of the Township of Pelham in the District of Niagara, labourer. John Grant late of the same place labourer. Murdock McPhaden late of the same place labourer. John James McNulty late of the same place labourer. Solomon Kemp late of the same place labourer, and William Yerks late of the same place labourer, being subjects of our said Lady the Queen, not regarding the duty of their allegiance nor having the fear of God in their hearts, but being moved and seduced by the instigation of the devil, as false traitors against our said Lady the Queen and wholly withdrawing the allegiance, fidelity and obedience, which every true and faithful subject of our said Lady the Queen should and of right ought to bear towards our said Lady the Queen, on the twenty first day of June in the second year of the reign of our said Lady Victoria by the Grace of God of the United Kingdom of Great Britain and Ireland, Queen Defender of the faith, with force and arms at the Township aforesaid in the district aforesaid, together with divers other false traitors, to the Jurors aforesaid unknown, armed and arrayed in a warlike manner, that is to say, with guns, muskets, pistols, blunderblusses, swords, bayonets, pikes, and other weapons being then and there unlawfully, maliciously and traitorously assembled and gathered together against our said Lady the Queen most wickedly, maliciously and traitorously did levy and make war against our said Lady the Queen within this province and did then and there maliciously and traitorously attempt and endeavor by force and arms to subvert and destroy the constitution and Government of this Province…(2)

On August 5, 1838, Justice Jonas Jones of Hamilton handed down a guilty verdict. Linus Miller, in his account, describes the sentence as it was pronounced in the courtroom to the four American citizens, and then to the twelve Canadians, including James, being tried as British subjects:

The sentence of the court is, that you, Linus Wilson Miller, George Cooley, Norman Mallory, and William Reynolds, be taken to the jail from whence you came, and that on Saturday the twenty-fifth day of this present month, you be taken to the place of execution, and be hanged by the neck until you are dead.(3)

Before pronouncing the next sentence, Justice Jones added that “in all probability mercy(4) would be extended to some of them, but to whom, no one then knew,” and he urged them all to make “immediate preparation for another world:”

The sentence of the court is, that you, Samuel Chandler, Benjamin Wait, Alexander McLeod, James Gemmell, John Grant, Murdoch McThaddon, John James McNulty, David Taylor, James Waggoner, Garret Van Camp, John Vernon, and George Buck, and each of you, be taken to the jail from whence you came, and that on the twenty-fifth day of this present month of August, you, and each of you, be drawn on a hurdle to the place of execution, and that you be there hanged by the neck until you are dead; then your bodies are to be quartered; and may God have mercy on your souls!(5)

Miller reflected the emotional reaction of all the men after hearing the sentence:

No language can describe the anxious days and nights endured by our doomed party, while under sentence of death. As no one knew who, if any, would be spared, the excitement which all experienced, was greater than it would have been had it been expected that all would suffer. The men, in general, exerted themselves to appear cheerful; and while many a prayer was offered in secret to that Gracious Being who tempers the wind to the shorn lamb, a casual observer would scarcely have dreamed, from the calm and cheerful looking countenances we wore, that our days on earth had been limited to so short a period.

We were daily visited by friends, and particularly clergymen, many of whom appeared deeply and sincerely to sympathize with us, and sometimes a solemn scene of weeping and prayer took place, in which some engaged who had perhaps scarcely wept or prayed before for many long years. We were encouraged by hundreds to hope for the best; but at the same time admonished to be prepared for the worst.(6)

Numerous petitions from both Canada and the United States were sent to Sir George Arthur pleading that mercy be granted the prisoners: William H. Seward,(7) governor-elect of New York, wrote a letter to Arthur in behalf of the parents of Linus Miller, the twenty-year-old law student from Stockton, New York; Maria Wait left her baby with friends and traveled 700 miles to Quebec by steamer in order to appeal personally to Lord Durham in behalf of her husband Benjamin Wait; and the lancers whose lives were spared at the Short Hills immediately swore an affidavit in defense of the condemned men.(8)

On August 22nd, just three days prior to the date of execution, the sheriff came to the jail and read a document stating that: “His Excellency the Lieutenant Governor, has been graciously pleased, in consideration of some circumstances in your favor, to commute your sentence of death to transportation for life to her Majesty’s penal colony of Van Dieman’s Land [an island off the southern coast of Australia].”(9)

It may be human nature to prefer the unknown enemy, or even a short postponement of pain, to certain death. We can only imagine what James may have felt on hearing this news. Miller’s words may describe the reaction of all his comrades:

It would be difficult to say whether I rejoiced or mourned at this change in my prospects. Could I have then foreseen one-fourth part of the sufferings which that commutation entailed upon me, I should certainly have preferred immediate death; but the veil of uncertainty hid things from my view, and so long as I could hope even for a chance of escape from my enemies, so long I could wish to live.(10)

This “mercy,”(11) as the British called it, was extended to James Gemmell, Linus Miller, and eleven others, leaving Chandler, Wait, McLeod, and Beemer, still under sentence of death.(12) The apparent change of heart on the part of Lieutenant-Governor George Arthur was not what it seemed. He had intended all along to transport about a half of the condemned men as “a stern warning to any future Patriots”:(13)

The lieutenant governor of Upper Canada, Sir George Arthur, had extensive experience with penal transportation as the previous governor of VDL [Van Diemen’s Land], and he saw this option as the most effective way of curtailing further border disturbance. He was also urged to widespread use of this penalty by the British ambassador to Washington, who emphasized that ‘transportation is regarded with extreme terror by the Americans.’ Ninety percent of those transported to VDL were citizens of the United States, some eighty men [out of a total of 92].(14)

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1. Linus W. Miller, p. 64. The Lawless Aggressions Act had been passed in January 1838 to deal with United States citizens. This new law stated that foreigners could be tried for a felony offense in the criminal courts when they joined with British subjects in armed hostilities. (Read, p. 109.)
2. Archives Office of Tasmania, document #114653. (Compare Miller, pp. 65-66.)
3. Miller, p. 93.
4. Mercy was, in effect, transportation to Van Diemen’s Land.
5. Linus W. Miller, p. 94. Taylor died at Fort Henry. McThaddon, age 18, and Buck, age 17, were sentenced to Kingston Penitentiary for three years.
6. Miller, pp. 95-96.
7. William Henry Seward was later Secretary of State under Abraham Lincoln and Andrew Johnson.
8. Miller, pp. 96-97.
9. Miller, p. 97.
10. Miller, p. 98.
11. As Pybus explains: “…care was taken to avoid transportation as a direct sentence and again it was imposed only as a secondary punishment through the local exercise of the prerogative of mercy.” (Pybus, “Patriot Exiles,” p. 193.)
12. Miller, pp. 97-98. Beemer had been tried a few days after the others.
13. Pybus, Introduction to Snow’s narrative.
14. Pybus, “Patriot Exiles,” p. 188.