On November 28, 1838, young Kingston attorney, John A. Macdonald, undertook service as legal counsel to Nils Von Schoultz and other prisoners captured after the Battle of the Windmill. Considering the outrage of the populace over the attack--some seventeen British officers and men had been killed, plus one civilian woman, whose daughter was badly wounded. (Seventy-two Patriots died) Why did Macdonald venture this service?

Historian Donald Creighton observed, 'It was a difficult, unprofessional, unpopular and possibly dangerous task. In a court martial, bereft of his usual status and prerogatives, [Macdonald] would be a nobody in an alien and perhaps hostile world. It would be almost impossible for him to secure an acquittal, or even to mitigate the death sentence, for the statute was clear and comprehensive enough, and the prisoners had been caught red-handed. Yet even an ineffectual defence might arouse the whole community against him. The prisoners were hated, as only foreigners who interfere by force in the affairs of others can be hated. The town was mad with grief and rage and horror. The futile enormity of the invasion itself, the long, needless list of dead and wounded at the Battle of the Windmill, the revolting mutilation of Lieutenant Johnston's body, and the heap of carved, double-edged bowie knives which had been taken from the Bandits and exhibited to the astounded Kingstonians--all worked like madness in the minds of the townspeople. Every circumstance seemed unfavourable. It was surely wisdom to have nothing to do with the whole affair. And yet, he took the case. Even he might have found it difficult to say why. A curious interest in people, a relish for cases which were odd and difficult, a jaunty recognition of the fact that professional prestige involved publicity, and, perhaps, a certain stubborn, independent conviction that these helpless and deluded men deserved at least the bare minimum of assistance--all these may have helped to move him to his decision."

Biographer Richard Gwyn suggests, despite lack of documentary evidence, that there is a plausible explanation for Macdonald's motives: a criminal lawyer who took on dramatic cases got himself noticed well beyond the narrow confines of the Kingston business community. Macdonald would be operating in the arena where he would spend by far the greatest part of his life--the court of public opinion.

Macdonald was merely twenty years old when he opened his Kingston law office, three years before the Fort Henry court martial proceedings. But as he complained, John had a short boyhood, going into a Kingston law office at age fifteen. He was "called to the bar" two years before the Fort Henry trails.

How precisely did Macdonald become involved in the Patriot episode? Donald E. Graves related that the twenty-three-year-old civilian lawyer was retained by the brother-in-law of prisoner Daniel George to help with defence of Hunter officers. Daniel George, of Jefferson County, New York, was a teacher who served as paymaster to the Hunters. He was the first to be hanged, on December 12, 1838.

Not yet married, Macdonald lived at the time in a commodious house at 110-112 on Kingston's Rideau Street. His first law office was then located at 169-171 Wellington Street, where he had taken in two law students, Oliver Mowat and Alexander Campbell, both of whom later became Fathers of Confederation.

Macdonald was not new to this sort of defence. Earlier in the summer he had defended eight men accused of treason during Mackenzie's uprising (mentioned elsewhere). Although conviction was generally expected, Macdonald won an aquittal. Then as co-counsel he won a settlement for damages after arrest of a Kingston jailor who may or may not have been complicit in escape of fifteen prisoners.

In court martial proceedings, counsel could advise defendents, but was not allowed to plead for them. What did Macdonald advise Von Schoultz, and how did Von Schoultz defend himself?

Donald E. Graves provides vivid descriptions of the Fort Henry proceedings, conducted in the Officer's Mess Hall, outside the fort's main gate. Waiting for handcuffed Von Schoultz and Daniel George were sixteen members of the courts martial, sitting at a round table, "replendent in their best scarlet and gold or silver lace. Along the back wall of the room was a line of soldiers, and the flag of the Onondaga Hunters, taken down from the windmill was on prominent display as were many of the Hunter's captured weapons."

The case of Nils Von Schoultz was called on the fourth day of the courts martial. "Von Schoultz astonished the court by pleading 'guilty' to the charges against him," according to historian E M. Waterbury, who observed, "He asked, when he was requested to plea to the charge made against him, if a statement he had made voluntarily to a magistrate following his arrest would be received and sent to the lieutenant governor of Upper Canada. On being answered that it would, he pleaded 'guilty.' The Judge Advocate at once cautioned him against the consequences of such a plea; told him that in the present circumstances of Upper Canada he could hold out no hope of mercy, and therefore the prisoner must consider his situation well, and if he thought proper he might withdraw his plea and plead not guilty. The prisoner answered that he had been induced to take command of the invaders under false impressions, and now that he saw through the whole and discovered the delusion under which he had labored, he was aware of the nature of his conduct. It was of no use to say anything in his own defense, and that he would persist in his plea of guilty." (Waterbury cites the Upper Canada Herald, Kingston, December 4, 1838 and the Oswego Palladium, December 4, 1838.)

Liz Kerrison photograph.

Was a guilty plea what John A. Macdonald had advised? The defence offered by Daniel George more evidently reflected the skilled attorney's legal arguments. If only those stone cell walls had ears. The dialogue between the future, first prime minister of Canada and this cosmopolitan, romantic adventurer would be memorable. Probably Von Shoultz acted contrary to advice of his counsel, just as he had ignored the previous advice. Other prisoners whom Macdonald advised did not similarly plead "guilty," except Martin Woodruff, who is buried next to Von Schoultz. But, regardless of how they pleaded, all were convicted.

What was Von Schoultz thinking? A revealing feature of the story was his concern that his message be delivered to the lieutenant governor of Upper Canada. It was a matter of personal honour, of salvaging his reputation. Von Schoultz did not want to be associated with the mutilation of the his opposing commander's body--a shameful blight on the record that particularly incensed Canadians.

Macdonald referred to his experience with von Schoultz for the rest of his life.

Von Schoultz's decision seems consistent with the sort of idealist that others saw him to be--a role he played with conviction. Most important at the moment of life and death was getting his message to others--perhaps in hopes of clemency, of course, but more probably because Von Schoultz knew he was doomed before he made any plea whatsoever. In truth, historians seem to agree that it was predetermined that all Hunter officers would be hanged, regardless of any plea or defence they presented at the courts martial. Von Schoultz simply wanted to set the record straight, for posterity.

Nils Von Schoultz concluded, saying "I have no witnesses to call." The president then pronounced, "Nils Szoltecy von Schoultz, you shall suffer death by being hanged by the neck till dead at such time and at such place as His Excellency, the L[ieutenan]t Gov[ernor] shall be pleased to state."

The will that Macdonald drafted for Von Schultz provided support to the widows and children of four men killed on the British side. Funds also were to assist Roman Catholic Regiopolis College, then being built in Kingston. The balance was to be shared by family and friends. Whether such bequests materialized is unknown. Apparently the funds were to be provided by sale of Von Schoultz's salt refining patents.

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Historian Judith Wellman observed that Sir John A. Macdonald might be considered "Canada’s John Adams," because Adams defended the British soldiers who attacked the Boston State House in 1770, killing five people--the "Boston Massacre." The colonists were outraged and John Adams called it "a slaughter." Nevertheless Adams agreed to represent the commander and eight British soldiers in court. Adams simply felt they deserved a fair trial. Seven of the nine defendants were acquitted. Recalling this three years later, Adams commented, "As the Evidence was, the Verdict of the jury was exactly right."

 

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The tragic episode of the Patriot War might be conveyed to the public in a dramatic production to be presented annually at Fort Henry. We have our own distinguished composer, Augusta Cecconi-Bates, of Cape Vincent. Augusta has produced a historical "musical narrative" about Kingston's Molly Brandt and might do something of the sort for the Fort Henry drama. Kingston is renowned for its choral ensembles, and the community has a fine symphony. A cantata, perhaps?