Raiders and Rebels

Following the single trials of the first three Hunter officers—Nils von Schoultz, Daniel George, and Dorrephus Abbey—the Upper Canada court-martial machine shifted into high gear. The colony’s solicitor-general, Lt.-Colonel William Draper, began trying the windmill prisoners in batches.

The first group included Colonel Martin Woodruff, William Gates and three others. Guards led them before 14 officers on December 3, 1838. Draper as Judge-Advocate ran the trials but it was the officers—representing the infantry, navy, artillery and militia—that determined the verdict.

Woodruff pleaded guilty: the others, not guilty. Draper presented evidence against Woodruff despite his plea. As with previous trials, Draper relied heavily on the testimony of Levi Chipman, who had agreed to become a state witness in exchange for clemency. All five were convicted.

On December 5, Draper tried 11 prisoners at once. On December 10, he tried 12 more, including Hunter Vaughan. All were convicted. Each mass trial was astonishingly brief. William Gates wrote about his trial in his memoirs:

"In a similar manner were all our comrades tried, often a dozen or fifteen at a batch, whilst the whole time occupied, from the moment they left the room till their return to it again, would not exceed generally over one hour. All that seemed necessary was to bring the culprit into the presence of the court to hear his indictment, and to give him the opportunity of repeating 'Guilty' or 'Not Guilty' either of which was sufficient to warrant a condemnation."

Stephen Wright confirmed Gates' report in his memoirs.

A guilty verdict required a two-thirds majority of the judging officers. Trials were short, deliberations brief and, in most cases, the verdict was guilty and the penalty death.

Draper held the trials at Fort Henry, Kingston, in a barracks casement like one of these.

Even by 19th-century standards, each court martial of Hunters under the Lawless Aggressions Act was unfair, one-sided and a mockery of British justice. As an example, examine the trial of Daniel Heustis and 11 others December 17, 1838.

Captain Daniel Heustis tried

The prisoners filed in between rows of guards and stood facing a table of officers: one colonel, four lieutenant-colonels, two majors and six captains, plus Colonel Draper. Each officer swore to God and the Queen to be true and honest. None of the prisoners believed a word of it.

Next, Draper read the long-winded charges. "Between the twelfth day and sixteenth day of November in the second year of the reign of our Sovereign Lady Victoria, by the Grace of God ruler of the United Kingdom of Great Britain and defender of the faith, with force and arms at the township of Edwardsburg in the Province of Upper Canada, being citizens of foreign states at peace with the United Kingdom, that is to say, the United States of America, having joined themselves to divers subjects of said Lady the Queen, who were then and there unlawfully and traitorously in arms against our said Lady the Queen, the defendants did then and there make war on our said Lady the Queen, armed with guns, bayonets and other warlike weapons, and did kill and slay divers of her Majesty’s loyal subjects."

When asked to plea, each prisoner replied not guilty. To convict each American prisoner under the act, Draper had to prove three things: that each was a citizen of a foreign country at peace with Britain, each conspired with British subjects bearing arms against the Queen, and each actively participated in the hostilities.

Draper called a barrister to the stand. He had previously interviewed the prisoners and he stated they all claimed to be citizens of the US.

Chipman admitted he was a citizen of Upper Canada and fought at the battle. He then identified Heustis and several others as men definitely involved in the hostilities.

A British sergeant testified that he arrested all the accused at the battle and was certain they must have been active participants based on the amount of weapons found at the scene.

Navy Lieutenant George Leary told the court he was present on the final day of the battle and that any man captured that day was surely involved in the hostilities. Another officer read a list of British and Canadian dead and wounded.

Two officers of the court, who previously interviewed the prisoners, read statements of facts about each man describing their role in the battle. While supposedly part of a prisoner’s defense, the testimony was far from impartial.

In his memories, Heustis wrote each prisoner was asked to sign a statement “colored to their disadvantage” during the prisoner interviews. When he balked, the official said, “There is no need to be stubborn, you are sure to be hanged.” And Heustis replied, “If the government has already decided to hang us, do not expect us to provide the rope.”

Lastly each prisoner read their own defense statement. Heustis admitted he was at the battle but claimed (lied) that he was forced to bear arms and was told he would be shot if he tried to escape. While the prisoners had a right to question any witness, none did.

In short order, Draper had met the three tests needed for a conviction. Each prisoner was an American who conspired with a British subject (Chipman) to bear arms against the Queen. The fact that the testimony of the lieutenant and sergeant amounted to hearsay evidence bothered Draper not. In his view, it was enough proof of every prisoner’s active participation in the hostilities.

Several days later, Heustis and the other 11 learned they were all convicted and sentenced to hang.