McSWINEY, EDWARD, clerk and militiaman; m. with four children; fl. 1812–15.

One of the significant aspects of the 19th-century loyalist account of Canada’s origins is the role of Upper Canadians and the militia in successfully repelling American invaders during the War of 1812. In fact, however, this loyalist myth (long since discredited) was in part generated by contemporaries such as John Strachan* who feared that the province would be lost by the actions of the disloyal. Since at times the foremost problem of civil government and military command was disaffection [see Jacob Overholser], it is not surprising that an outstanding demonstration of loyalty, no matter how suspect, could be its own reward in a society anxious for examples of zealous adherence to the crown. The hitherto untold tale of Sergeant Edward McSwiney is a case in point.

A “British European” by birth, McSwiney came to Upper Canada from the lower province to clerk for surveyor Reuben Sherwood. Soon after the outbreak of war in June 1812 McSwiney enlisted for service, becoming a sergeant in his employer’s company of 1st Leeds Militia. On 10 October he stood guard at the arms depot of the Elizabethtown (Brockville) garrison. When a fellow militiaman, Andrew Fuller, attempted to take several items without authorization, McSwiney challenged him. After exchanging abusive language, the two men scuffled. A friend of Fuller’s, Daniel Cloud, encouraged him to whip “the damned Rascal.” Now threatened by two men, McSwiney discharged his musket, mortally wounding Fuller. McSwiney was arrested and turned over to the district sheriff.

After a lengthy incarceration he was indicted by the grand jury at the Johnstown District assizes on 7 Sept. 1813 and was tried three days later before William Campbell*. The petit jury, after hearing the evidence of eight witnesses for the crown and one for the prisoner, found McSwiney guilty. Campbell sentenced him to be hanged on 18 October, thereby allowing sufficient time for the usual petitions for pardon to be made on the prisoner’s behalf. Campbell himself reported to the administrator that there was no legal cause “to induce a Mitigation of his fate,” but he mentioned McSwiney’s “having declined to avail himself of the opportunity to escape afforded him by the Enemy on the 6th February last.” On 17 September, “in his own hand writing,” McSwiney penned the first of several eloquent, petitions seeking royal mercy.

The petitions reveal a shrewd mind. Here was a man who knew how to make a case for himself. He drew on the commonplace elements of such documents: personal suffering, disgrace, and the plight of his family. But his genius was to emphasize aspects of his case which on a larger scale were provincial concerns raised by the exigencies of the war. In a district that was later called the most disaffected within the province, he was a man who sought “to retain life, only that he may devote it to his Country in defending it from the grasp of a malignant and inveterate foe.” Taking for himself the cloak of loyalty, he tarred both his victim and the jury with the brush of treason. Fuller was “a man recently from the United States, a mercenary, or hired Substitute for one of the Militiamen, of base dissolute reputation, and strongly suspected as being inimical to His Majesty and Government.” Seizing upon the desertions which had been rife among the colony’s militia since the beginning of the war, McSwiney tied Fuller’s action to the “daily occurrences of Mens deserting to the Enemy.” Fuller’s accomplice, Cloud, whom McSwiney noted in a later petition had deserted to the enemy, was hostile to him because of his “strict enquiries” about Cloud’s brother, also a deserter. As a man of only pure and patriotic impulses, McSwiney disavowed any malice on his part in the fatal shooting. It had occurred “in the heat of momentary passion [and was occasioned by] his Zeal for the service, his Loyalty and the most affectionate attachment to his ever beloved Sovereign and Country.”

The heroic deeds of the war were not confined to the battlefield. The unquestionable proof of McSwiney’s ardent loyalty was the incident mentioned by Campbell that occurred on the night of 6 Feb. 1813, when American troops raided Elizabethtown, taking several captives and, according to McSwiney, “liberating the Prisoners from the Gaol.” All, that is, but one. Animated by an abiding patriotism, McSwiney remained in an empty jail. He wrote that he had “spurned the thought of becoming a Fugitive in the land of, and amongst the Enemies of his King and Country.” But his refusal to leave the jail had been ignored by a jury “prejudiced against him. . . . Had [he] been a Yankee, or [been] possessed of Yankee principles . . . the Testimony would have been less criminating, and the Verdict less severe.”

But McSwiney’s sterling example of loyalty had made a deep impact upon local militia officers and the leading members of society in the Johnstown District. Each of his petitions bore the support of members of the local élite, including Archibald McLean* and Jonas Jones*. McSwiney’s craft in framing his petition had its calculated effect. Upon receipt of the first petition, the provincial administrator, Francis Rottenburg*, “felt inclined to pardon him.” Acting Attorney General John Beverley Robinson* apprised him that pardon fell within the royal prerogative and that the appropriate course of action was to postpone the execution and recommend McSwiney to “His Majesty’s mercy.” Campbell was shocked. He was unable to “report any thing favorable” of McSwiney and regarded even the mere application for clemency as “totally unmerited.” None the less, the execution was respited “until His Majestys pleasure shall be known.” At issue was not legal cause – neither Campbell nor Robinson thought much of McSwiney’s claims in this regard – but his manifest loyalty on the night of 6 February. Not all, however, were as impressed by this act as the provincial administrators were. The jailer on that fateful evening noted tersely that McSwiney, in spite of his assertion to the contrary, was the “only one [in jail] at the time the Americans passed this place; it was impossible for him to make his escape unless rescued as he is kept in Irons and chained.”

At this juncture the case became complicated by the change of administrations (Rottenburg was succeeded by George Gordon Drummond* in December 1813), by the rudimentary state of the attorney general’s office, and by legal technicalities. McSwiney insisted that the reprieve constituted a pardon, but there was no copy of it at York (Toronto) and matters rested until January 1814, when Robinson, after receiving a copy from the Johnstown District sheriff, apprised Drummond that the convict was mistaken. McSwiney continued to languish in jail, “kept in Irons – hands as well as legs, and chained to the floor,” while Robinson attempted to sort out matters. The sentence was continually respited until on 25 Oct. 1814 Governor Sir George Prevost’s secretary notified Drummond that the case was entirely within Upper Canadian jurisdiction.

Finally, on 2 Jan. 1815, Drummond forwarded to the Colonial Office McSwiney’s plea for mercy, supported by petitions and his own recommendation. The local petitions urging clemency were of critical importance. Drummond described them as coming from “gentlemen . . . of the most respectable Standing . . . and they bear strong testimony of the Loyalty and Zeal for the Service of his King and Country which he [McSwiney] had evinced.” Drummond added that the jury was “prejudiced against McSwiney, not only on account of his Loyalty and Activity in bringing the Seditious to justice but because the man who had . . . provoked the occasion . . . was one-like themselves.” The appeal was forwarded immediately to the Home Department where it was passed to the Prince Regent and Privy Council for their consideration. Once again McSwiney’s deft handiwork proved utterly convincing; a pardon was drawn up on 29 June. After passing back down the successive stages of authority, Attorney General D’Arcy Boulton* issued a fiat for McSwiney’s release on 30 October. McSwiney thereafter disappeared from sight and likely left the province.

The case of Edward McSwiney is a marvellous illustration of individual cunning. Gaining a pardon was no mean feat. A lowly sergeant, he had to overcome the legal opinion of Campbell that there was not a shred of evidence to support his extravagant claims. Moreover, Robinson was totally unsympathetic for reasons probably similar to Campbell’s. But men of a less legal bent were easily won. The ultimate success of McSwiney’s petitions without judicial recommendation reflected the mentality of a harrowed administration; men such as Drummond were as anxious to reward loyalty as they were to suppress disaffection. Had allegiance been more certain it is possible that the beguiling productions of that most artful of dodgers, Edward McSwiney, would have received short shrift from all concerned.

Robert Lochiel Fraser III