They Said 9 Would Hang

Pro-Rebel magistrates, mutinous soldiers and a stubborn jury all tried to save Linus Miller. But Canada ’s rulers had demanded his head

LINUS W. MILLER July 15 1946

They Said 9 Would Hang

Pro-Rebel magistrates, mutinous soldiers and a stubborn jury all tried to save Linus Miller. But Canada ’s rulers had demanded his head

LINUS W. MILLER July 15 1946

They Said 9 Would Hang

LINUS W. MILLER

Pro-Rebel magistrates, mutinous soldiers and a stubborn jury all tried to save Linus Miller. But Canada ’s rulers had demanded his head

This is the true story of Linus Miller, 20-year-old law student of Stockton, N. Y., who was an undercover agent of the “Provisional Government of Canada” set up in the United States during the rebellion of 1837-38. Betrayed by Jacob Beemer, a turncoat Rebel, he narrowly escaped capture at Hamilton in April, 1838, on an expedition to save seven condemned Patriots from the gallows.

In June he was sent back to Canada io stop an unauthorized band of rebels in the Niagara Peninsula from going into action without support. Finding Beemer, mad for Tory loot, in charge of the gang, Miller mutinied and liberated the British lancers Beemer had captured and planned to hang. The band then scattered, and Miller was captured near St. Catharines.

WHEN sufficiently rested, I returned with my two captors to the road, where the whole troop were assembled—about 30 in number—and such a powwow I never saw before or

since. They had captured a drebel, and the

whole troop would share in the honor.

“Gentlemen,” said I, “you can spare yourselves all this rejoicing. I give you fair warning that I am not the prize you deem me.”

“Pray what are you then? Why did you run from us if not a rebel?”

'T am an American, travelling on private business. My reasons for trying to avoid you were simply these: I have private business of importance to transact, which cannot be delayed. I crossed into the country the morning after the affair at the Short Hills, and was advised to return, as I would be liable to be apprehended and thrown into prison by the first party of military I might chance to fall

in with. This, however, did not drive me back, but I determined to travel in the woods, avoid the public roads and parties who are out in search of rebels, transact my business and return in the same way. What my affairs are, which are so urgent, is none of your business, gentlemen; but it was to prevent any delay or interference from you that I ran when we so unfortunately met.”

The officer most active in my capture, after consulting his subalterns, answered: “Your story is plausible, and may be true: I hope it is—still, it is my duty to take you before the nearest magistrate and leave you to his disposal.”

He then ordered my arms to be tied behind with ropes, and, directing his troop to proceed on their way, mounted me on horseback behind the subaltern who had assisted in my capture. We rode three and a half miles to the “forty,” where “the American traveller” was soon introduced to the village magistrate, a nice old gentleman of apparently very modest pretensions.

He listened with the most profound attention, first, to the story of my captors, then of myself; drummed his fingers for 20 minutes upon a Bible which lay before him, and then gave utterance to a determination not to interfere in the matter. The lieutenant took me on about five miles farther, where two magistrates resided; but met with the same success. They said they would not meddle with me, and my captors had better either take me back where they found me or carry me to St. Catharines, where a board of magistrates was sitting, which would probably assume the responsibility of discharging me.

At St. Catharines the board of magistrates, among whom were two good Patriots who knew me well, was about to discharge me, when orders arrived that every person apprehended should be forwarded to headquarters at Niagara Falls. All hopes of escape were now at an end.

A wagon was procured, and I took my seat between the guards, for the drive to the Falls.

“They Shan’t Hang You!’’

PASSING a hotel one mile from headquarters, a very unpleasant denouement took place. One of the lancers, of Short Hills memory, rushed from the door, exclaiming, “Oh! Holy Virgin, have they got you! I would rather see my own brother a prisoner; but they shan’t hang you, by ——-!”

My two guards turned deathly pale. “Good heavens!” said they, “is it possible! and are you really a rebel? We believed you innocent.” One of them whispered to me, “Why did you not tell me the truth? You should never have come here. I am a Patriot myself in heart but have been obliged to turn out on military duty or go to jail.”

Arriving at the Pavilion Hotel, a scene ensued which baffles description. The lancers, and others, who were our prisoners at the Short Hills, at once besieged me. Some of those who were in the greatest danger on that occasion shed tears, and all swore that not a hair of my head should be injured. The 24th Regiment and several hundred militia and volunteers were present. The officers, with one or two exceptions, expressed their regret at my having been taken. They had been informed of my conduct at St. Johns, and had hoped I should escape.

Meanwhile Col. Townsend, of the 24th—who commanded in the absence of Sir Allan McNab—

accompanied by his staff, rode up, and his eye kindled with savage fury as he sat in silence for a few minutes, gazing upon the scene before him.

His own regiment, as well as the other forces, were in a state bordering on mutiny. When he was first observed, the confused noise and murmur of many voices was hushed for a minute or so, but it soon commenced again.

“Silence!” at last burst forth from his quivering lips like thunder. “Is this Her Majesty’s 24th? Is this their loyalty to their sovereign? I would never have believed that my regiment could, under any circumstances, behave thus. Shame! Shame, my men! Remember your oaths, and your duty to your sovereign.” Turning to me he vented his rage in a speech intended, no doubt, less for my ears than those of his own men.

“So, sir, we have got you at last, you d— — rebel sympathizer. I congratulate the country upon your capture. You are the most valuable prisoner ever

yet taken by our forces, and by -----we’ll make

sure work of you ! I will fry you tomorrow morning at break of day on a drumhead court-martial, and ere the sun rises again you shall be shot.”

A voice from one of the lancers: “You shall shoot me first.” A dozen voices from the crowd: “He

shan’t die, by--!” The colonel again shouted,

“Silence! Shame! men, shame!”

A lancer: “General, he saved our lives.”

“Silence! Interrupt me again and I’ll punish you. Your motives for interfering in the affairs of the country are plunder of its peaceful inhabitants. There stands a man (pointing to Overholt) whom your party robbed of $1,000.”

“General, he’s no robber; he made the scoundrel, Beemer, give us back our money and property,” said a lancer.

“Silence! Can I not be obeyed?”

“General, he saved our lives, at the risk of his own, and he shall not die!” shouted several voices in one breath.

Turning to an officer of the 24th, the colonel said, “Take your company, put heavy irons and handcuffs on him, and guard him to the cells, and if any attempt is made to rescue him, blow his brains out first and then fire upon the mutineers.”

I had been sitting all this time in the wagon in which I had ridden from St. Catharines, with my arms still tied behind. When the colonel ordered me to be ironed, one of the lancers appeared to notice for the first time that I was pinioned. He instantly sprang into the wagon, and, tearing the ropes from my arms, shouted, “Colonel, he saved our lives! Took off the ropes with which we were bound and set us free; and he shan’t be ironed, nor bound in any way, by -—— ! You shall shoot me first.”

A murmur of approbation arose from the crowd, and many voices shouted, “That’s right; we’ll stand by you,” when the colonel exclaimed:

“Take him away— away with him at once. Never mind the irons away to the cell with him, or, by

-, we shall have the whole army in a mutiny.”

A company of the 26th took me in charge, and after shaking hands with my good friends, the lancers, who told me not to fear—“For,” said they, “he dare not hurt a hair of your head—his own regiment would not stand for it”—I marched unfettered, about 60 yards, to the guardhouse. The door of a cell in the basement story was opened and I walked in. There was no bedding; nothing but an iron bedstead and a piggin of water. A loaf of bread was shoved into my new apartment.

The door was closed and bolted; and for the first time in my life I heard the key turned upon me, and felt myself captive!

When I awoke in the morning my limbs were stiff and chilly with the cold damp. At nine o’clock my cell door was thrown open and I was ordered out. I was soon joined by about 40 others, who were confined in the same guardhouse; among whom were Col. Morrow, Major Wait, Mr. Kemp and my friend Deal. They were all heavily ironed, which inconvenience I had escaped through the interference of the lancers. The sergeant who had us in charge soon handcuffed us in pairs.

We were marched, under a strong escort, about 300 yards to a hotel, where a bench of magistrates was sitting, for the purpose of making out, warrants of commitment to jail.

The business was soon dispatched; a few questions were asked of the witnesses, and I made a statement which was taken down by the clerk verbatim, in which I told the truth, although, 1 must confess, not t he whole truth; as, had I done so, my case would have been hopeless indeed.

A Visit From Ilis Excellency

EARLY the next morning the prisoners were removed to Niagara (Ed.’s note: now Niagaraon-the-Lake) jail, heavily ironed, and escorted by a company of cavalry. The second day after our arrival at Niagara we were removed to Toronto, in the steamer Experiment., there to stand our trials, as the sheriff informed us, but this was, doubtless, not the real cause. The 4th of July was near, when an attack was expected from the Patriot forces, and it was natural for them to wish us in a place of security, as a rescue would probably be attempted.

Our situation in Toronto jail was exceedingly uncomfortable. Dirt and filth were the most prominent objects within the walls; but hunger was no stranger there, our daily rations being only 12 ounces of bread and a pint of bullock’s head soup. This last was so filthy that nothing but starvation could have enabled any Christian to eat it.

At night Morrow, Chandler, Wait and Reynolds were taken below to sleep in the ground cells. They were heavily ironed; those upon Morrow’s limbs had the staggering weight of 60 pounds.

His Excellency, Sir George Arthur, the Lieutenant-Governor, and suite, visited the jail while we were there, and evinced a determination to be severe.

I think he observed that hanging was too good for us.

He was, I should judge, about 50 years of age, in stature rather below mediocrity, round-shouldered, his head grey and somewhat bald, visage long, eyes small and piercing, and the general expression of his countenance perfectly passionless. But there was a compression about his lips which strikingly evinced his great perseverance, determination, promptitude, and decision of character. These qualities he possessed in an eminent degree; and probably no person could have been found in the British dominions so well calculated to stand at the helm of

British interests in Canada during these times.

On July 14 we were taken back to Niagara, to stand our trials. We were between 60 and 70 in number. The grand jury were called together, and “true bills” were forthwith found against those whom the Government had selected for the scaffold. A special session of the court was convened for the express purpose, and not a moment’s unnecessary delay took place in the ominous preparations.

The law under which it was determined to try the citizens of the United States was an act passed by the Legislature of Upper Canada on Jan. 12, 1838, providing for the trial of foreigners found in arms against Her Majesty’s Government in the province. As yet no American citizen had been tried under this act in the civil courts, and, as there was a possibility that in the first case tried some flaw or irregularity in the indictment or other proceedings might occur, George B. Cooley, a mere lad, and extremely ignorant, was placed at the bar, merely for the purpose of testing the law and paving the way for a more important prisoner to walk safely to the gallows. This poor youth was tried and found guilty. I was informed by a legal gentleman present at his trial that it was irregular and that he was undoubtedly entitled to an immediate discharge from custody.

Guilty or Not Guilty?

AFTER Cooley’s trial my own name was called, and I was hurried upstairs into a densely crowded court and placed in the prisoner’s box. Judge Jones, Hamilton, presided. A jury were in attendance; the attorney-general and solicitor general were in their places, and several legal gentlemen in their professional gowns. All eyes were turned upon me when the clerk of the court arose and read my indictment; after which the solicitor general demanded:

“Linus Wilson Miller, what say you—guilty or not guilty?”

“I shall not plead to my indictment at present.” Solicitor General: “But you must.”

“I choose to be excused.”

Solicitor General: “But you cannot be excused.” “I tell you I am not prepared to stand my trial now.”

Chief Justice: “Answer you, prisoner at the bar, the question put to you by the court. What say you, Linus Wilson Miller, guilty or not guilty?” “My lord, that is a question which, as I before said, I am not now prepared to answer.”

Chief Justice: “You must say guilty or not

guilty.”

“Your lordship must excuse me.”

Chief Justice: “You shall answer either guilty or not guilty; it is only mere matter of form.”

“Doubtless your lordship considers hanging by one’s neck until dead only mere matter of form.” Chief Justice, in a rage: “Do you mean, sir, to

insult the court?”

“My lord, I mean only what I say, that I must have time to prepare for my trial.”

Chief Justice: “Will you, or will you not, plead to your indictment? What say you, prisoner at the bar, guilty or not guilty?”

“My lord, I cannot plead now.”

Chief Justice: “You shall, by-!”

“My lord, I will not!” (great sensation).

The Attorney-General: “How dare you insult

his lordship? You must answer at once.”

“I repeat what I said before, I will not!”

Chief Justice: “Prisoner at the bar, three weeks have passed since your capture, and you have had sufficient time to prepare your defense. I now ask you for the last time—what say you, Linus Wilson Miller, to the charges preferred against you; are you guilty or not guilty?”

“My lord, I am informed by your lordship that I have had sufficient time to prepare for my trial, having been in custody three weeks. How was I to prepare my defense before I had been indicted— how know what charges, if any, would be preferred against me? I have but now heard them read, and am required, without one moment’s warning, to plead to charges of the most serious nature, affecting my life!

“I thank God for the little knowledge I have of English law, which enables me to defy this court to move another step in this trial until the full time has expired which the law so humanely provides for a prisoner capitally charged to prepare for his defense. I have been repeatedly told by your lordship and others that I shall now stand my trial; but your lordship dare not enforce it. So gross a violation of law cannot be cloaked up; and your lordship well knows that in case I was executed under a conviction thus obtained, it would be nothing less than a cold-blooded murder, for which your lordship would be liable to impeachment.

“My lord, I have done—but I again demand from your lordship the full time allowed by law for my defense.” Chief Justice: “Will you be pre-

pared for trial in three days? The court will allow you that time, but no more.”

Miller Stands Pat

MY LORD, I am allowed seven full days after the finding of the indictment before I am required to 'plead to the charges it sets forth. At the çnd of seven days I shall be prepared to state what witnesses I require from ä distance, to procure which I will have the full time allowed by law, for it is not only my right but absolutely necessary to my defense.”

Chief Justice: “The court is under

no obligation to grant you time to procure absent witnesses, unless you can show a Continued on page 36

Continued from page 22

bona fide defense which requires them.” “It will be time enough to show that at the end of seven days. At present I have only to request to be furnished with a copy of my indictment.”

Chief Justice: “The court will not

allow you a copy.”

“I shall take an exception to your lordship’s refusal to grant a copy. Will the court please to make a note of that point, as it is an important one to me?” Here a short consultation took place between the chief justice and the attorney-general and solicitor general, after which the two last-named gentlemen came to the bar where I stood, and tried, for nearly half an hour, to prevail upon me to stand my trial at once. It would be for my interest to do so, etc., etc. The other legal gentlemen present and more than 30 others—spectators— followed them in turn; but I had one answer for all, which was, “I will not do it.” There happened to be one honest man among the number, who whispered:

“That’s right; stick to it, my lad, as you value your life; for they are determined to hang you!”

“I understand their wishes, and shall disappoint them,” I whispered in return.

Chief Justice, to the attorney-general and others, in a low voice: “Well, gentlemen, have you succeeded?”

Attorney-General: “My lord, he

remains as stubborn as at the first.” Chief Justice, to the deputy sheriff in

attendance: “Take the dYankee

lawyer away—away with him at once, and bring up Morrow in his stead; we’ll see if we can manage him any better. But by no means allow them to speak together.”

Poor Morrow was hurried up, while I was almost kicked downstairs. Could I have conversed with him, but for a moment before he entered those fatal doors, he might have been saved; but the wily judge took care that I should not do so.

He was, therefore, placed at the bar without knowing his right to a postponement of his trial. And then came the climax to that day’s work: “The

sentence of the court is that you, James Morrow, be taken to the jail from whence you came, and from thence, on Monday, the 30th day of this present month, to the place of execution; and,

between the hours of 11 and one, you be hanged by the neck until you are dead; and may God have mercy on your soul!”

After his sentence he requested of the court permission for me to occupy the condemned cell with him during the short time he had to live. The court consented and we were, accordingly, locked up together.

Monday, the day of my friend’s execution, was a solemn and painful one to his fellow captives. There was not one in our little company who did not esteem and love him. About two hours before his death he gave me his dying charge, which was, if I should ever have it in my power to do so, to acquaint the world with the particulars of his unfortunate expedition and his feelings with reference to it in his last days.

After he had taken a solemn farewell of our little company, I knelt with him for the last time in prayer, and heard him earnestly beseech Almighty God to bless the cause of Canadian liberty; to forgive his enemies, and to receive him into His heavenly kingdom. We arose, embraced for a moment, and parted. His last words to me were, “I die a martyr to a righteous cause, and I die happy. Death has no sting, for I shall soon wear a crown of glory.”

A few minutes afterward the sheriff came. The weeping captives formed a double rank from the cell through the hall; the cell door opened and Sheriff Hamilton, with a countenance ghastly and pale as death, walked in front; then came two Catholic priests, reading the solemn service appointed for the occasion; and our beloved colonel followed.

He waved his handkerchief as a final adieu. His fine, manly countenance was calm and serene. He walked with a firm step through the hall, ascended the stairs which led to the scaffold, and was hidden from our sight.

About two minutes of the most painful silence ensued. Then we heard the fatal drop!

Frontier Justice

At the session of oyer and terminer and general jail delivery held at Niagara on Aug. 1st, 20 persons were convicted of treasonable offenses.

I had intended to manage my own defense; but at the urgent solicitation of my friends, who said the Government was determined to hang me, and the only chance for my life would be to set up a plea of insanity, I yielded

reluctant assent to their wishes for a sham defense, which was managed by a Mr. Boulton, a Tory lawyer of Niagara. The only ground for this plea was that a few months previous I had, unfortunately for myself and friends, suffered, through a fit of sickness and too close application to my professional studies, a partial derangement, which lasted two or three months.

After a long and tedious trial the jury retired for half an hour. This was a time of intense anxiety and excitement.

The jury at length returned into court, and delivered their verdict, which was:

“Guilty; with an earnest recommendation of the prisoner to the extreme mercy of the court.”

Chief Justice, in a great rage: “Gentlemen of the jury, do you know that your verdict is, virtually, an acquittal? How dare you bring in such a verdict in this case? There are no favorable grounds upon which such a recommendation can be based. The prisoner is the most guilty of any of the party, for he cannot plead ignorance as the others; he richly deserves the highest penalty of the law. If you believe from the evidence that he was not of sane mind at the time of the commission of the overt acts of treason charged in the indictment, it is your duty to acquit him; but insanity before or after the commission of the crime cannot affect your verdict.”

The foreman: “My lord, the jury

regard him as having been partially deranged some months since, but of sane mind when he invaded this province.”

Chief Justice: “Then retire, gentlemen, and reconsider your verdict. You cannot recommend him to mercy.”

In a few minutes they returned with a verdict of:

“Guilty; with a recommendation of the prisoner to the mercy of the court.”

Chief Justice: “Gentlemen of the

jury, I’ll teach you your duty. How dare you return such a verdict? If you are determined to recommend the prisoner to mercy, state your grounds for so doing, that the court may judge if they are sufficient; but they cannot be, and you ought to know your duty better. You are a disgrace to the jury box and your country.”

A juryman: “My lord, we recom-

mend him on account of his youth.” Chief Justice: “That is no excuse for his crimes; he is old enough to know better, and I know him to be the most guilty man we have tried.”

Another juryman: “My lord, we

believe him to be an enthusiast in the cause in which he was engaged; that his motives were good, and his conduct honorable and humane.”

Chief Justice: “His enthusiasm is no excuse, and you have no evidence before you that his conduct was either honorable or humane, as you assert. You are not to allow anything which you have heard out of court to prejudice your minds in the prisoner’s favor. The lancers who were prisoners in the hands of his party are present; but his counsel has not thought proper to call upon them as witnesses; the

presumption is that their testimony would rather prejudice his case than otherwise. The consideration of mercy, gentlemen, does not belong to you. Your duty is to pronounce the prisoner guilty or not guilty; and you ought to presume that the court and the lieutenant-governor know, better than yourselves, what circumstances, if any, in this case, will admit of a favorable construction.”

After a short consultation the jury returned a verdict of guilty, only, and the chief justice, with a countenance beaming, bowed to the jury and directed the verdict to be recorded. There sat my worthy counsel, in his robes, during the enactment of the foregoing scenes, without uttering a single protest.

On Aug. 5, 15 fellow captives besides myself were arraigned at the bar of the court to receive judgment. Four of the 16 were tried as American citizens, the others, as British subjects. The courtroom was densely crowded. The stillness of death succeeded the proclamation of the crier to keep silence. The judge proceeded to pass sentence, prefacing it with some remarks justifying the enactment of the law, under which the four Americans had been convicted, upon the ground of expediency.

The Sentence of Doom

“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 25th day of this present month, you be taken to the place of execution, and be hanged by the neck until you are dead.”

The solicitor general then moved the court for judgment upon the other 12, who were tried as subjects of the crown. The judge proceeded to what should have been a painful task. He told them that in all probability mercy would be extended to some of them, but to whom, no one then knew; and that the recommendations to mercy by the jury, in the cases of some, would be represented in the proper quarter. He urged upon them all the importance of immediate preparation for another world, and then pronounced the following sentence:

“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 25th 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!”

This is the second of a series of four articles by Linus Miller, narrating his adventures in the Rebellion of 1837-8. The third will follow in the next issue of Maclean’s.