CRIMINAL TRIALS
VOLUME II.
ed for Chandlers Criminal Trials, afte
ving: ivy Hopwoodirom n irawJv .
AMERICAN
CRIMINAL TRIALS.
BY PELEG W. CHANDLER,
IE AMERICAN ANTIQUARIAN SOCIETY AND OF THI
MASSACHUSETTS HISTORICAL SOCIETY.
' B't>ST"6N:
TIMOTHY H. CARTER AND COMPANY.
LONDON:
A. MAXWELL, 32 BELL YARD, LINCOLN'S INN.
MDCCCXL1V.
84437
Entered according to the Act of Congress, in the year 1844,
By PELEG W. CHANDLER,
i the Clerk's Office of the District Court of the District of Massachusetts.
BOSTON :
PRINTED BY FREEMAN AND BOLLES,
WASHINGTON STREET.
ADVERTISEMENT.
THE first volume of this work was published more
than two years ago, and was stated to be an experi-
ment, which, if successful, would demonstrate that
the most important and interesting criminal trials,
that have taken place in this country, might be ren-
dered acceptable to the general reader, in the form
of abridged narrations divested of the technicalities
of legal proceedings. The favor with which the plan
and objects of the work were received was highly
encouraging, and the success of the first volume
was at least equal to its merits. The present volume
has been delayed by various causes, one of which was
the difficulty of authenticating some of the facts, and
it is believed, that the value of the work has been
increased by the time consumed in the necessary in-
vestigations for this purpose.
These volumes extend over a period of more than
one hundred and fifty years, and contain accounts of
VI ADVERTISEMENT.
the most interesting trials that have taken place, from
the first establishment of judicial tribunals in this coun-
try, until after the adoption of the constitution of the
United States. If they serve to illustrate the morals
and manners, or the religious and political history of
this period, and thus commend themselves to the
American reader, the object of the author will be fully
accomplished.
BOSTON, MAY, 1844.
CONTENTS.
BATHSHEBA SPOONER AND OTHERS.
Trial of Bathsheba Spooner and others before the Superior Court of
Judicature, for the murder of Joshua Spooner, of Brookfield, Mas-
sachusetts, 1778, I
COLONEL HENLEY.
Trial of Colonel David Henley, before a General Court Martial, for
improper conduct as an officer of the American Army, Cambridge,
Massachusetts, 1778, 59
MAJOR ANDRE.
Proceedings of a Board of General Officers, held by order of General
George Washington, respecting Major John Andre, charged with
being a spy, New York, 1780, 155
JOSHUA H. SMITH.
Trial of Joshua Hett Smith, before a Court Martial, on a charge of
aiding and assisting Benedict Arnold, New York, 1780, . . .183
THE RHODE ISLAND JUDGES.
Proceedings of the General Assembly of Rhode Island, against the
Judges of the Superior Court of Judicature, for their judgment in
the case of Trevett against Wheeden, on information and com-
plaint for refusing paper bills for butcher's meat, Rhode Island,
1786 267
Vlll CONTENTS.
JOHN HAUER AND OTHERS.
Trials of John Hauer and others, before the Court of Oyer and Ter-
miner, for the murder of Francis Shitz, Pennsylvania, 1798, . .351
APPENDIX.
TRIAL OF MRS. SPOONER AND OTHERS.
Indictment, 375
Death Warrant, 377
Petition for a reprieve, 379
Reprieve, 380
Writ de ventre inspiciendo, 381
Return of the sheriff, 382
Opinion of mid wives, 382
Final return of the sheriff, 383
MAJOR ANDRE.
Remarks of Sir Samuel Romilly, 384
Remarks of Lieutenant Colonel Simcoe, 385
Remarks of Mr. J. F. Cooper, 386
NOTES.
Timothy Ruggles 7
William Gushing 11
Levi Lincoln, 12
William Tudor, 162
Henry Marchant, 230
James M. Varnum, 281
William Charming, 343
TRIAL OF BATHSHEBA SPOONER
AND OTHERS.
BEFORE THE
SUPERIOR COURT OF JUDICATURE,
FOR THE MURDER OF JOSHUA SPOONER, OF BROOJCF1ELD.
MASSACHUSETTS, 1778.
Of the trial of Bathsheba Spooner and others, at Worcester, Massa-
chusetts, in 1778, no authentic report has ever been published. But the
case produced great excitement, and was discussed in all the periodical
publications of 'the time. There are also many traditionary accounts
of the affair, most of which, however, are entitled to very little con-
sideration, except as they furnish a clue to the real character of the
transaction. In preparing the following account, I have diligently sought
for information in every quarter where there was any reason to suppose it
could be obtained ; and nothing is stated for which there does not appear
to be good authority. The sources of information upon which I have
mainly relied are : 1. The records of the Superior Court of Judicature,
and those papers relating to the case which are preserved in the archives
of the Commonwealth. 2. The Manuscript Notes of Hon. Jedediah
Foster, one of the judges, who appears to have taken full minutes of the
evidence. 3. The Manuscript Papers of the late Hon. Levi Lincoln,
who was of counsel for the prisoners. 4. "A Sermon preached at Wor-
cester, July 2, 1778, on occasion of the execution of James Buchanan,
William Brooks, Ezra Ross, and Bathsheba Spooner, for the murder of
Mr. Joshua Spooner, of Brookfield, on the evening of the first of March
preceding ; together with an appendix giving some account of these
prisoners in their last stage. By Thadeus Maccarty, A.M., Pastor of the
church in said Worcester." 5. A Sermon preached at Brookfield, March
6, 1778, on the day of the interment of Mr. Joshua Spooner. By Nathan
Fiske, A. M., Pastor of the Third Church in Brookfield. 6. I have also
carefully examined the newspapers of the period alluded to, and have
sought for information from the few living persons who were personally-
cognizant of the facts in the case. My sincere acknowledgments are due
to those gentlemen, who have kindly assisted me in these inquiries I
am under especial obligations to the late William Lincoln, Esq. of Wor-
cester, whose antiquarian zeal was the least of his many excellent traits
of character; to Samuel F. Haven, Esq., the librarian of the American
Antiquarian Society; to the Rev. Joseph B. Felt, the librarian of the
Massachusetts Historical Society, and to the Rev. Lucius R. Paige, of
Cambridge.
TRIAL OF MRS. SPOONER AND OTHERS.
ON the morning of March 2, 1778, a servant of
Joshua Spooner, of Brookfield, in Massachusetts, came
to Cooley's tavern, in that town, with an inquiry for
his master, representing that he had not been at home
during the night, and that his wife and family were
greatly alarmed. This statement was received with
much surprise at the inn, as Mr. Spooner had spent
the previous evening there with some of his friends,
and had left at an early hour for his own house,
which was only at a short distance. A few of
the neighbors immediately called on Mrs. Spooner,
whom they found in the greatest apparent distress.
Upon an examination of the premises, in the neigh-
borhood of the house, they observed the tracks of
several persons on the snow, and, on further search,
the mangled body of Mr. Spooner was discovered in
the well, 1 near his own door. On the next day, an
1 The house in which Mr. Spooner had resided previous to the termi-
nation of his life by murder, is still standing (1843) unchanged, except
4 AMERICAN TRIALS.
inquest being taken, it was found that the deceased,
" on the evening of the first of March, about nine of
the clock, being returning home from his neighbors,
near his own door was feloniously assaulted by one or
more ruffians, knocked down by a club, beat and
bruised, and thrown into his own well with water in
it, by persons to the jury unknown." The family of
the deceased, with the exception of his little daugh-
ter, refused to look at the body, but his wife, at the
urgent request of one of the jury, at length put her
hand on his forehead, and exclaimed "poor little
man."
The report of this event spread very rapidly, and
caused a great excitement in those troublous times,
in the midst of the war. 1 That a peaceable citizen,
in a remote town, should be waylaid and murdered
so near his own house was a matter of serious alarm,
by the waste of years. It was a plain, but large and respectable dwelling,
two stories in height and constructed after the fashion of those times,
when comfort was consulted more than show in the economy of living.
It is situated on the north side of the old road from Brookfield to Wor-
cester, about half a mile eastward from the meeting-house of the South
Parish, in the former town. In front, and nearly opposite, on the south
side of the road, are stately elms. The buildings are unpainted, dilap-
idated, and falling to decay.
1 The following statement appears in the Boston Independent Chroni-
cle, newspaper, of March 12, 1778 : "On the night of the first instant
a most horrid murder was committed at Brookfield, on the person of Mr.
Joshua Spooner. From the long premeditation of this murder, the number
of persons concerned (there being no less than seven capitally concerned)
and the methods made use of to accomplish their designs, it is supposed
to be the most extraordinary crime ever perpetrated in New England.
Monday evening following, three of the villains concerned in the above
murder, were taken up at Worcester. On examination they impeached
their accomplices, in consequence of which Mrs. Spooner (the inventor
of the murder) and the rest of her associates were seized, and on Tues-
day evening carried to Worcester and confined in jail."
BATHSHEBA SPOONER AND OTHERS. 5
and most active measures were immediately taken to
arrest the actors in this mysterious affair. It was
known to some of the neighbors, that two men, who
were formerly British soldiers, and were supposed to
have deserted from Burgoyne's army, then at Cam-
bridge, had been at Mr. Spooner's house on several
occasions shortly before his death, and he had ex-
pressed a suspicion that their intentions were not
entirely honest. One of these men, in a state of in-
toxication, having exhibited at Worcester some of
Spooner's wearing apparel, they were both arrested,
together with Ezra Ross, a young man of eighteen
years, a native of Massachusetts, who had formerly
served in the American army, and who was known
to be intimate in the family of the deceased. From
the statements of these men and the circumstances of
the murder, there was a violent presumption that the
family of Mr. Spooner could not be so ignorant of the
manner of his death as they pretended to be ; and
Mrs. Spooner was also arrested, together with a
female and two male servants, who were subsequently
used as witnesses.
The matter had now assumed an importance, from
the character and standing of the parties implicated
in the transaction, which the atrocity of the murder
could never have given to it. Mrs. Spooner was the
daughter of Timothy Ruggles, a distinguished lawyer
of that day, who had held some of the most honor-
able and important offices in the province, but who,
at this time, on account of his political course, was
under the ban of popular opinion, and had been
obliged to leave the country.
1*
6 AMERICAN TRIALS.
Ruggles was graduated at Harvard college in 1732,
and was soon afterwards called to the bar, where he
rose to great distinction. In 1757, he was appointed
a judge, and in 1762, chief justice of the court of
common pleas, which office he held until the revolu-
tion. He was also distinguished as a military com-
mander, having held the rank of colonel under Sir
William Johnson, in the expedition against Crown
Point. He was second in command at Lake George,
where Baron Dieskau met with a signal defeat ; and
for three years, he was brigadier-general under Lord
Amherst, with whom he served in the expedition
against Canada. His political influence was very
great, and he was several years a member of the
provincial assembly, where he was chosen speaker
of the house. In consequence of the difficulties with
the mother country, delegates were chosen by the
legislature to meet the delegates from the other
colonies at New York, to seek out some possible relief
from immediate and threatened evils, by a represent-
ation of their sufferings to the king and parliament.
Ruggles was chosen one of the delegates on the
part of Massachusetts, and had the honor of being
selected as president of that celebrated congress,
where were present some of the most distinguished
men from eight of the other colonies. At this meet-
ing, among other things, an address to the king was
voted, and certain resolves were framed, setting forth
the rights of the colonies, and claiming an entire ex-
emption from all taxes, excepting those imposed by
the local assemblies. Ruggles refused his concur-
rence in the proceedings ; for which, on his return
BATH3HEBA SPOONER AND OTHERS. 7
home, he was censured by the house of representa-
tives, and was reprimanded by the speaker in his
place. Continuing firm in his allegiance to the king,
he was compelled to leave the country, and all his
large estates were confiscated. 1
General Ruggles was a man of great ability, and
few citizens of the province were more justly distin-
guished ; none were more severely dealt with in the
bitter controversies preceding the revolution. Like
many others who joined the royal party, he was a true
friend to his country, and was honest in his political
opinions ; but at the time of which we are now speaking
he was regarded as the worst of traitors, and his name
was held in the utmost abhorrence. That the daugh-
ter of such a man and his favorite child should
be arrested on a charge of wilful murder, increased
1 Gen Ruggles was born in Rochester, Mass., in 1711. He commenced
the practice of the law in his native town, but subsequently removed to
Sandwich. As his practice became very extensive he removed to Hard-
wick, in Worcester county, about the year 1755. He was a man of great
wealth, and lived in a style of unusual luxury for that day. He kept
thirty horses and had a park of twenty acres for deer, and a pack of
hounds for the amusement of his numerous visiters. On the breaking
out of the revolution he abandoned his extensive estates and left the
country. He died in Wilmot, N. S., in 1795, at the age of 84 years. He
had seven children, namely, Martha, who was bora August 10, 1737, and
married John Tufts, of Brookfield, in 1765; Timothy, born January
7, 1733-9, and died at Granville, N. S., in 1831 ; Mary, born Febru-
ary 10, 1740-1, married Dr. John Green, of Worcester, in 1762;
John, born September 30, 1742, died at Wilmot, N. S., about 1830;
Richard, born March 4, 1743-4, died at Clements, N. S., about 1834;
Bethsheba, (sometimes written Bathshua) born February 13, 1745-6,
married Joshua Spooner, of Brookfield, in 1766 ; Elizabeth, born May 15,
1748, married Gardner Chandler, ofHardwick. Worcester Magazine, ii.
54 ; Washburn's Judicial History of Massachusetts, 226 ; Willard's Ad-
dress to the Worcester Bar, 50 ; Records of the towns of Hardwick and
Sandwich; MSS. letter of Rev. Lucius R. Paige.
AMERICAN TRIALS.
the excitement, already very great, and gave rise to
exaggerated and foolish reports, some of which
have come down in tradition to the present day, and
are told as sober truths in the region where this mur-
der took place.
There are, however, many circumstances attending
this case, which invest it with an unusual degree of
interest, and render it one of the most remarkable in
the annals of our criminal jurisprudence. Mrs.
Spooner was the sixth child of General Ruggles.
She was born on the 13th of February, 1745-6 ; and
undoubtedly received all the advantages of education
which were accessible at that day in the province.
Tradition represents her as extremely prepossessing
in her personal appearance, and she was noted for
great strength of character; but her temper was
haughty and imperious, and the circumstances of her
birth and early education were not favorable to that
delicacy and refinement, which constitute the greatest
charm of the sex.
She was married in 1766, to Joshua Spooner,
a retired trader, and had lived with him about
twelve years. 1 The connection was not a happy
one, and it was soon apparent, that there was no
real affection between this husband and wife, who
were in reality so ill suited to make a happy home.
Mr. Spooner was in character a feeble man ; and a
woman of her marked and energetic nature, whose
1 They had three children, one son and two daughters. The latter
were subsequently married. It is supposed that the son was lost at
sea, so that none of the name now remain.
BATHSHEBA SPOONER AND OTHERS.
passions had never been properly restrained, 1 would
scarcely have a deep and trustful affection for a hus-
band, who seemed incapable of supporting a manly
importance as the head of his family, and who was
incompetent to regulate the government of it in a
manner to command respect. Domestic dissensions
became frequent, and Mrs. Spooner soon conceived
an utter aversion to her husband, until at length she
seems to have cherished a criminal regard for another
person, and, in the blindness of passion, lost all self-
control.
Many months before the death of Mr. Spooner, a
young man became an inmate of his house, under
circumstances which were calculated to enlist the
warmest sympathies of the family in his behalf. Ezra
Ross, at that time a youth of sixteen, was the son of
respectable parents in Ipswich, and with four brothers
had joined the American army on the commencement
of hostilities. On returning from his first campaign,
he was cast upon the hospitalities of Mr. Spooner,
from whose wife, during a severe fit of sickness, he
experienced every kindness. After this he became
a frequent and a welcome visiter in the family, and it
is highly probable that an improper intimacy grew up
between him and Mrs. Spooner, although her hus-
band never seems to have lost his attachment for
1 It is said that General Ruggles and his wife did not set a good
example to their children in their conjugal relations. They lived un-
happily together. When he left the country, she remained aud died
about the year 1735. She was originally a Bourne, and was the widow
of a Newcomb, when she married General Ruggles. Tradition says that
she once served up, for her husband's dinner, his favorite dog.
10 AMERICAN TRIALS.
Ross. 1 But it is certain, that the subject of murder-
ing Mr. Spooner was frequently discussed, and vari-
ous projects to accomplish this purpose were sug-
gested. Whether she was actuated by aversion to
her husband, or was hurried on by the blind impulse
of unchaste desire, it is now impossible to know, as
she never made any revelations on the subject, and
the statements of Ross are not worthy of entire confi-
dence ; but it seems probable that she was conscious
that her conjugal infidelity must soon inevitably be-
come known to her husband, and desired the death
of one who must soon have indubitable evidence of
her guilt. This accounts for the inconsistency of her
conduct, and the desperate eagerness with which she
undertook to accomplish her purpose. For, becom-
ing dissatisfied with Ross's dilatory proceedings, she
resorted to a course so bold and open, that her guilt
was placed beyond a doubt, and she involved her-
self and her confederates in a common ruin.
Mrs. Spooner ordered a servant to call in any of
the British soldiers who might pass the house ; and
about a month before the murder, and while Spooner
and Ross were both absent, two men, James Bucha-
nan and William Brooks, who had been British sol-
diers, were passing the house on the way to Spring-
field, when they were invited in by the servant, and
1 The venerable Major Benjamin Russell, who then lived at Worces-
ter, recollects to have seen Ross and Mrs. Spooner riding on horseback
together, before the murder ; he states that the former was a fine
looking youth, and that the beauty of the latter, who was a remark-
able horsewoman, has not been exaggerated in the least by tradition-
ary accounts.
BATHSHEBA SPOONER AND OTHERS. 11
on the solicitation of Mrs. Spooner, they resided in
the family two weeks, being treated with great con-
sideration. There can be no doubt that Mrs. Spooner
made a direct proposal to these entire strangers to
murder her husband, which they agreed to do on the
first favorable opportunity. When Spooner returned,
he expressed a dissatisfaction at the presence of these
men. He requested a neighbor to remain in the
house with him during the night, and ordered Bu-
chanan and Brooks to depart on the next morning.
They remained concealed in the neighborhood, how-
ever, and were a part of the time supplied with food
by Mrs. Spooner. On the night of the murder, Ross
came to the house, either by accident or design, but
which is not certain, although there is reason to doubt
that he had ever seen Buchanan and Brooks before.
At the next term of the superior court of judica-
ture, held at Worcester, on the third Tuesday of
April, 1778, (being the twenty-first day of the month)
the grand jury found a true bill against Buchanan,
Brooks, Ross and Mrs. Spooner, for murder ; and the
trial took place at the same term of the court. The
judges who presided were William Gushing, 1 chief
1 Mr. Chief Justice Gushing was bom in Scituate, in 1732. He was
graduated at Harvard University in 1751, and upon being admitted to
the bar he established himself in Pownalborough, in the district of
Maine, and was the first regularly educated lawyer who settled in that
state. In 1760, he was appointed the first judge of probate for the county
of Lincoln, and, in 1 772, succeeded his father as a judge of the superior
court. In 1775 the superior court was reorganized, but he was restored
to his place on the bench. John Adams was appointed chief justice,
but never sat as a judge, and, the following year, he resigned his place
on the bench. Cushing was then appointed his successor, and held the
office till his promotion to the supreme court of the United States in
1789. In the mean time, he presided over the convention which assem-
12 AMERICAN TRIALS.
justice, Jedediah Foster, Nathaniel Peaslee Sargeant,
David Sewall, and James Sullivan, associate justices.
The names of the jury were Ephraim May, Jonathan
Phillips, Ebenezer Lovel, David Bigelow, Benjamin
Stowell, Samuel Forbush, Joseph Harrington, John
Phelps, Manasseh Sawyer, Elisha Goddard, Abraham
Bacheler, and Mark Bacheler.
Robert Treat Paine was the attorney for the state.
Levi Lincoln 1 was of the counsel assigned to the pris-
oners.
The indictment charged, that William Brooks, of
Charlestown, laborer, James Buchanan, of the same
Charlestown, laborer, and Ezra Ross, of Ipswich, la-
borer, on the first day of March, 1778, made an as-
sault upon Joshua Spooner, of Brookfield ; that Brooks
struck the deceased down, and, with his hands and
feet gave him several mortal bruises of which he in-
bled in Massachusetts in 1787, to act in regard to the adoption of the
constitution of the United States. While Mr. Chief Justice Jay was
absent in Europe, as envoy extraordinary, in negotiating the treaty with
Great Britain, Mr. Gushing was the presiding judge of the United States
court, and upon the resignation of Mr. Jay, he was nominated and unan-
imously confirmed as chief justice of that court. His ill health, how-
ever, compelled him to decline this appointment, and he continued to
hold the place of an associate justice until 1810, the time of his death.
1 He was born in Hingham, May 15, 1749, and was graduated at Har-
vard University in 1772. Upon being admitted to practise law, he es-
tablished himself at Worcester, where he soon came into an extensive
practice, and held various distinguished offices in the gift of the people.
In 1 797 he was a member of the senate of Massachusetts, and was after-
wards chosen a member of the seventh congress. On the second day
after taking his seat, he was appointed, by Mr. Jefferson, attorney gen-
eral of the United States, which office he held four years. He was
afterwards lieutenant-governor of Massachusetts, and in 1811 was ap-
pointed an associate justice of the supreme court of the United States,
but he declined the appointment. He died in 1820, at the age of 71.
Willard's Address, page 82.
BATHSHEBA SPOONEB AND OTHERS. 13
stantly died, and that Buchanan and Ross were pres-
ent, " aiding, assisting, abetting, comforting and main-
taining the aforesaid Brooks." The indictment also
charged, that Bathsheba Spooner was an accessory
before the fact; that she "invited, moved, abetted,
counselled and procured " the murder to be com-
mitted.
To this indictment the prisoners, on their arraign-
ment, severally pleaded that they were not guilty, and
put themselves for trial on God and the country.
Their trial was accordingly fixed for the twenty-fourth
of April, and took place in the meeting-house at Wor-
cester. A large number of witnesses were in attend-
ance on behalf of the prosecution, and, after the re-
turn of the jury of inquest was read, they testified
substantially as follows : '
Jonathan King, a physician, testified that he spent
Sunday evening with Mr. Spooner, at Cooley's
tavern, about a quarter of a mile from Spoorier's
house ; Spooner went home well between eight and
nine of the clock. On the next morning, hear-
ing that Mr. Spooner was dead, the witness rode
there with all speed, and saw the body of the de-
ceased, which had been taken from the well. He
found the face, above his nose, and his temple very
much bruised ; the scalp was cut an inch and a half
long. The body was carried into the east room ;
Mrs. Spooner could not be persuaded to look at it,
and the family, except his little daughter, declined
1 The testimony of the witnesses in this case is derived from the
notes of Judge Foster. It is not well reported, some portions being
very obscure, but I have thought it best to make only slight alterations,
VOL. II. 2
14 AMERICAN TRIALS.
going to see it. After the jury had finished their in-
quest, Mrs. Spooner, at the particular desire of the
witness, went to the body and put her hand on his
forehead and said, "poor little man," There was
blood on the curb of the well.
Ephraim Cooley testified, that Mr. Spooner was at
his house on Sunday evening ; he was pleasant and
sociable, and went away when Dr. King and his wife
went away was well. The next morning Alexan-
der Cumings, one of the family, came and inquired
if Mr. Spooner was there. The witness being anx-
ious, from some apprehensions, for Spooner's safety,
went to his house and six more with him ; they asked
if Mr. Spooner was at home. Mrs. Spooner said no,
and cried. The witness went to look among the
neighbors, and near the gate he found the snow in a
heap, and kicking it found Spooner's hat, which he
carried in and said, " this is Mr. Spooner's hat, what
do you think now ? " Mrs. Spooner said, " it is his
hat." After he had got about thirty rods, they called
him back ; the body was in the well. He saw blood
on the curb in two spots ; lie went immediately for
the coroner and officer. The witness came down
with Mrs. Spooner to Worcester, and at Brown's, in
Worcester, she spoke freely of the matter, and said
she was the whole means of this murder being com-
mitted. She began the discourse herself, and wept
when she talked about it.
Ephraim Curtiss, having heard that the prisoners
were at Walker's, went there and found them on
Monday evening. He stood at the door until they
were taken ; they were carried to Mr. Brown's to be
BATHSHEBA SPOONER AND OTHERS. 15
examined. A few days after Buchanan was com-
mitted he found a ring, which was in court, in his
possession ; he had a wound on his arm.
Joshua Whitney, on the second of March, was at
Brown's when Mr. Curtiss came in, and said he heard
Mr. Spooner was murdered, and three fellows were
at Walker's who were suspected ; he went there and
found them. Brooks had a watch in his pocket, and
a pair of silver buckles in his shoes ; the witness
asked where the other fellow was ; and went into
an upper loft, where he found Ross, who trembled and
appeared to be surprised. When he came down Bu-
chanan was gone ; he saw Brooks turn round to the
negro girl, who showed him the watch, and said Brooks
gave it to her. The watch was in court. Brooks
had a pair of buckles in his shoes with the initial let-
ters of Mr. Spooner's name. Upon the watch being
shown to him he owned it was the same watch which
he had in his pocket. The witness watched to keep
the prisoners. Ross said he wished he could see a
minister, for he was really guilty of this crime, but he
did not strike the first blow, although he was aiding
and assisting ; they were then talking about the kill-
ing of Mr. Spooner said he would confess the whole
when the minister came. Ross said he had got Spoon-
er's jacket and breeches ; that he had let Brooks have
his because they were bloody. The witness found
in his pocket-book four ten pound notes and three
eight dollar bills ; he said the rest was his own ; he
also said he had Spooner's hose, shirt and saddle-
bags.
Joseph Ball, on the second of March, in the even-
16 AMERICAN TRIALS.
ing, went to Walker's and found Brooks. Capt.
Whitney ordered him to lead him down to Mr.
Brown's, and when they were there Ross was com-
mitted to his care. He had on a pair of black knit
breeches and a cloth jacket with metal buttons. The
horse that was there was one that the witness had
seen Spooner and his wife ride formerly. He had
seen Buchanan at Walker's some weeks before ; he
was a blacksmith. He heard Ross say he labored
under a good deal of concern ; he wished a minister
was sent for.
Samuel Bridge went to Mr. Brown's, from thence
to Walker's, and when they came back to Brown's,
Doctor Green's son said the buckles were his uncle
Spooner's. The jacket Ross had on was of brown
cloth with yellow metal buttons. He talked with Mrs.
Spooner when she came down, and heard her say if
she could see the persons face to face she could give
satisfaction ; said this was the effects of bad compa-
ny. She had been in Worcester the Friday and Sat-
urday next preceding the time of her being brought.
Mary Walker, on Thursday evening, saw Brooks
and Buchanan at her mother's, and after they had
been there a little while Mrs. Spooner and a young
man came to the door, when Mrs. Spooner asked if
Sargeant Buchanan was there, and gave him a letter
which she said came from her grenadier. The con-
tents of the letter were, that he would meet him to
go to the hill. She came back from Doctor Green's
very soon, saying that she forgot to give him a piece
of cloth which was his. She said she would knit for
the witness, because she could not sew for want of
BATHSHEBA SPOONER AND OTHERS. 17
sight. She staid there two hours. Buchanan and
Brooks were there all the time, and they staid there
until Sunday forenoon. Mrs. Spooner was often with
them. Sergeant Buchanan wrote sundry letters which
he said were to her servant. Brooks often laid his
head upon Mrs. Spooner's neck, and oftentimes put
his hands round her waist. The witness observing
it, Mrs. Spooner said, " you must not wonder, Billy
(meaning Brooks) has lived at my house and is as
fond of me as he would be of a mother." The wit-
ness saw Buchanan divide powder into eighteen pa-
pers ; they had talked about a sick child at Brook-
field. She asked Buchanan when he would go ; she
said she would send a letter by him, and then said
she would write a letter at Mr. Nazro's, it would not
be any hurt to write to her father. Buchanan was
very sorry that Mrs. Spooner did not come. On Sat-
urday afternoon she came, and they having been in
the chamber together a few minutes, she went away
on the same afternoon. Upon her going away, Mrs.
Spooner said, " to-morrow night at eleven o'clock, re-
member, sergeant." He said, " to-morrow night at
eleven o'clock." On the next Sunday night, Brooks,
Buchanan and Ross came back, and in the morning
early, they told her the Springfield guard were in
pursuit of them, and Brookfield was searched in every
house. Mrs. Spooner met them at Leicester and told
them of it. The witness asked Ross if he had ever
seen Mrs. Spooner, and he said he did not know as
he had ; but he had seen Mr. Spooner, and rode to
Lancaster with him. Ross seemed to be very dull all
Sunday. The witness asked him what made him so
18 AMERICAN TRIALS.
dull ? He walked about the room and leaned against
the side of the house and said, " Reason enough."
Sergeant Buchanan desired her to rip off the ruffles
from a shirt, and she ripped the ruffles off of the
sleeves. Brooks told her that Mrs. Spooner gave him
a shirt and pair of stockings. Buchanan bled him-
self on Monday morning.
Prudence, a negro woman, testified, that Buchanan
came to Mrs. Walker's with Brooks on Thursday, and
talked about going to Mrs. Jones's. Mrs. Spooner
came there and soon went away and soon after came
back again with Dr. Green's two sons. She staid
all the evening, and was often in and out. Mrs.
Spooner told John Green he had better go and see if
his mother was at home. Sergeant Buchanan offered
her his handkerchief. She said " G d d m the
handkerchief, I will not touch it." On Friday
morning, Buchanan had some powders which he did
up in papers. Mrs. Spooner came in, Brooks told
her Buchanan was sick, and she went into the cham-
ber to him. The witness went up there after a
broom, and saw them together. On Saturday, as
Mrs. Spooner was going away, the witness asked her
what Mrs. Green said ; she said she told Mrs. Green
she dined at Mr. Nazro's and drank tea there, and
it was a pretty good lie. On Sunday, Brooks and
Buchanan went away, but on Sunday night they
came back, and said they should have been taken if
it had not been for a friend. Their dress was altered.
She asked what became of Brooks's silk ; they
answered- they sold it for want of money ; they met
with Ross two miles from Leicester tavern.
BATHSHEBA SPOONER AND OTHERS. 19
Thomas Green testified, that the buckles were Mr.
Spooner's ; they were marked J. S. He had seen
them in his uncle's shoes.
Charles Simson testified that he altered the jacket
for Spooner, which Brooks had on.
John Hibbard testified, that he lived with Mr.
Spooner, and had seen Ross, Buchanan and Brooks
there above a week before Mr. Spooner was mur-
dered.
Reuben Olds had frequently been at Mr. Spooner's
the winter past, and about a fortnight before the
murder, Buchanan and Brooks were there one eve-
ning. Mr. Spooner desired the witness to tarry
with him that night. He did tarry there, and
Spooner bade him go out and see what they were
doing in the kitchen. He went out and Buchanan
said, " what is the old fellow about ? (meaning
Spooner) he will not come to say much to me, it
won't be healthy for him, for I would put him in the
well for two coppers." The next morning Mrs.
Spooner told him she would go through with her
plan ; he supposed it was to go to her father.
Loved Lincoln, about the first of February, was at
Spooner's, who wanted to know when he went to
Oakham. He and Spooner and Ross set out, and
he went with them as far as Chadwick's, in Oakham.
On the following Tuesday he went to Spooner to see
if he had done some business for him, and then he
saw Brooks and Buchanan there. Afterwards he was
there and somebody looked into the window, and
presently he heard Sergeant Buchanan speak. Spoon-
er says, " how came you here ? " They said to warm
20 AMERICAN TRIALS.
them. Spooner replied, "you may sit by my fire till
morning, but you must not let me see you after-
wards." Soon after the witness heard Buchanan say,
" if Spooner turns me out of doors to-night, I will
have his life before morning." The night after the
murder, Mrs. Spooner said she did not know how
her husband came by his death. She said the regu-
lars went away the day before yesterday, and that
Ross took Spooner's jacket and breeches. Mrs.
Spooner said Ross was concealed there because he
hurt the horse's back. She said the regulars and
Ross went away together.
Charles, Captain Welden's negro, was at Mr.
Spooner's the night he was murdered, and saw Ross
there ; it was about the dusk of evening.
Mrs. Willson, about three weeks before the murder,
was at Mr. Spooner's. Buchanan and Brooks were
there, and a doctor was there. Alexander Cumings
was whispering with Mrs. Spooner. She saw Ross
there a little before Thanksgiving, the last autumn.
Alexander Cumings had lived with Spooner from
the time Burgoyne's troops came down. About a
fortnight before the murder, Brooks and Buchanan
came there. Spooner was gone. Mrs. Spooner was
at home ; they staid all day and dined there, and
Buchanan breakfasted with her. Mrs. Spooner had
ordered him to call in all the British troops who
passed along. The witness heard Mrs. Spooner tell
Buchanan that she wished Mr. Spooner was out of
the way ; she could not live with him. Buchanan
said he wished he was out of the way. They staid
there, backwards and forwards, all the time Mr.
BATHSHEBA SPOONER AND OTHERS. 21
Spooner was gone to Princeton. Ross had gone with
Spooner. When Spooner came home, on Monday
night, Brooks and Buchanan were there. The wit-
ness heard Brooks and Buchanan say, they would try
to get Spooner out of the way. He sat up with
Spooner at his request, who said he did not love to
have Brooks in the house ; he did not like the looks
of the man. He desired his wife to get them off;
he said if she did not he would send for the committee.
Next morning the witness saw them in the barn ;
they lay there two days and two nights. Mrs.
Spooner carried them victuals once ; he carried them
victuals once by her order. On Thursday morning
they went to Worcester. On the Saturday night
following Mrs. Spooner came home, and Ross was
in the milk-room. Ross said he did not want Mr.
Spooner to know he was there all day. On Sun-
day Ross was kept concealed in the chamber. On
Sunday night the witness saw Buchanan and Brooks
there. Mr. Spooner was then gone to Cooley's.
The witness went out of doors and saw Brooks, who
asked if that was Mrs. Spooner ; he said no, and
Brooks then told him to ask Mrs. Spooner to come
out to him. The witness refused. Brooks had told
him, just before, that Spooner should not come home
a living man that night. The witness went in and
Mrs. Spooner was in the kitchen ; he then went to
bed and slept about two hours and a half. He waked
and smelt the burning of woollen, and got up, and
saw Brooks, Buchanan, Ross, and Mrs. Spooner in
the parlor. They were burning clothes ; they asked
him what made him look so sullen ; they were then
22 AMERICAN TRIALS.
shifting clothes. Ross put on Mr. Spooner's jacket
and breeches. Mrs. Spooner bade the witness go
with Mrs. Stratten into the chamber to bring down
Mr. Spooner's clothes. Mrs. Stratten got the black
breeches and brought them. Buchanan had on a
shirt of Mr. Spooner's ; he heard Mrs. Spooner say
she gave Brooks a shirt and handkerchief; he saw
Brooks's breeches thrown into the fire all bloody. He
saw Mrs. Spooner take Mr. Spooner's money from
the tin box, which was kept in a mahogany chest.
Mrs. Spooner bade him go and get some water to
wash Spooner's buckles, and he should have them ;
he said he would not have them, but he and Mrs.
Stratten went to the well and could not dip the
bucket. Mrs. Spooner asked him why he did not get
the water, he said he believed Mr. Spooner was in
the well ; she said it was not true., Mrs. Stratten
came in with him, frighted and cried, and run and
got the Bible. Buchanan said to Mrs. Spooner,
" should you 've thought my man would do the job
for him ? " Mrs. Spooner, about a month before, had
desired the witness to kill Spooner and she would
make a man of him. He asked Mrs. Spooner if they
cut Mr. Spooner's throat ; she said, " no, they
knocked him down." The night before they went
to Princeton, Ross dropped some aquafortis into
some toddy to poison him. Spooner said if he had
any enemies in the house he should think they in-
tended to poison him. Ross said to Mrs. Spooner,
when he came, that he had no opportunity to give
him the aquafortis while they were gone. Mrs.
Spooner said he carried half a bottle full. When
BATHSHKBA SPOONER AND OTHERS. 23
they went away, after the murder, Buchanan shook
hands with Mrs. Spooner, and told her she might
expect to see him in about a fortnight. On the next
morning, Mrs. Spooner went to the well, and said
she hoped he was in heaven. She ordered the wit-
ness to get a horse, and go to the tavern and inquire
for Spooner. While they were at the well, she said
she wanted to have him put in the bottom of the well.
Asa Bigelow testified, that the foreman of the jury
of inquest told Mrs. Spooner she must go to jail.
She confessed that she hired the people to concert
the murder ; was to give them one thousand dollars,
and had paid them two hundred. She mentioned
the names of Brooks and the sergeant ; she said they
were all three together.
Sarah Straiten lived at Mr. Spooner's at several
times. The first time she saw Ross there was in the
last fall of the year, between the two Thanksgivings.
Spooner came from Boston after they were in bed ;
Mrs. Spooner got up and let him in. About three
weeks before Spooner was killed, Buchanan and
Brooks were there, and the night he was murdered
one Gray and another man lodged there. She car-
ried some supper into the room where Ross and
Buchanan were. Mrs. Spooner supped with Mr.
Gray and his partner. The witness did not see Mr.
Spooner killed, but when she went to light Mr. Gray
to bed, she saw Mrs. Spooner showing a money box.
She took the witness by the hand, and said she hoped
Mr. Spooner was in heaven. When she went to
light Gray to bed, his partner was in bed and asleep,
as it appeared to her. She brought down the box,
24 AMERICAN TRIALS.
and soon after Mrs. Spooner asked her to go up
chamber, and get a pair of black knit breeches, but
she could not find them. Mrs. Spooner was paying
some money, and Buchanan had a great deal of pa-
per money in his hand. She heard Mrs. Spooner
tell Alexander to go and get some water, and he
asked the witness to go out with him. She went out
and Alek (Alexander) said Mr. Spooner was in the
well. They came in without any water. She had
seen Mr. Spooner wear a ring very much like the
one in court. She lodged a part of the night with
Mrs. Spooner, who sighed and tumbled a good deal.
She told Mrs. Spooner she would go and tell the
neighbors. Mrs. Spooner said if she would keep it
secret, she would give her a good deal. Mrs. Spooner
often said she hoped Mr. Spooner was in heaven.
When the men went away, Mrs. Spooner gave them
money. The witness asked Brooks what he had
been about ; he made answer, " his time is come."
The Saturday night before Spooner was murdered,
Ross came in ; said he had Mr. Spooner's horse a
fortnight, and hurt his back, and was not willing he
should see him. Mrs. Spooner came in soon after
Ross came.
Jesse Parker had lived at Mr. Spooner's at times ;
he had seen Buchanan and Brooks there in the barn.
About a fortnight before Mr. Spooner was killed they
lay there two or three nights. Mrs. Spooner, Alek
and he carried victuals to them. Mrs. Spooner told
him to go to the barn to look at the horses and take
care of the doors, but he did not, because the regu-
lars were about. When Mr. Spooner came from
B.VTHSIIEBA SPOONER AND OTHERS. 25
Princeton, Mrs. Spooner said she never was so
stumped in her life. The witness heard Mrs. Spooner
say she had been to the west parish, and the regu-
lars were gone to Worcester, and she wanted to go
there to see her sister. She asked Mr. Spooner for
a horse, but he declined letting her have one, and she
sent to Capt. Welden's and got his. The witness
went from the house on the Sunday, and Ross was
there.
Obadiah Rice, sometime before the murder, heard
Mrs. Spooner say she wished old Bogus was in heaven.
When Mrs. Spooner, Alek, and Mrs. Stratten were
brought to jail they came in his sleigh, and when
they were on the road Mrs. Spooner said, " tin's
don't seem like Christmas day." She said she had
a great desire to see her Daddy, and if it had not
been for that this murder would never have been
committed. He heard Mrs. Spooner say she would
suffer ten deaths for Mrs. Stratten and Alek before
they should suffer, for they were innocent.
Elisha Hamilton was the constable. Mrs. Spooner
took on much and said, " if it was not for this thing
I could meet my Judge." She said, " this happened
by means of Ross's being sick at our house." She
told Cooley that she did not blame any body, for this
was all her own doings. She said Mrs. Stratten and
Alek were innocent. She had bribed them to do
and say what they had done.
William Young, a justice of the peace, before
whom the prisoners were examined on their first ar-
rest, produced the confessions of Brooks, Buchanan
and R.OSS, which were freely given to him by these
26 AMERICAN TRIALS.
prisoners. He testified that Mrs. Spooner, since her
commitment, had confessed that she consented to the
murder. The confessions of the three men were in
substance, that the murder was committed by them
at the instigation of Mrs. Spooner. When her hus-
band was entering his yard on the evening of the
murder, he was attacked and immediately killed, and
thrown into the well. The four persons then met in
the house, when Mrs. Spooner distributed among her
confederates a portion of her husband's wearing ap-
parel and a considerable sum of money. The men im-
mediately left the house, and were arrested as before
stated.
Such, in substance, was the testimony against the
prisoners. No evidence appears to have been offered
in their behalf, and their counsel proceeded to sum
up in the defence, under a pressure of circumstances
that might well have discouraged the most zealous
advocate. Mr. Lincoln's argument was as able and
ingenious, perhaps, as could have been expected in
such a case ; it was necessarily based, in a great de-
gree, upon purely technical points. A brief and im-
perfect abstract of his address to the jury is all that
can now be collected.
He commenced by alluding, in a feeling manner, to
the importance and novelty of the case. It was the
first capital trial since the establishment of the gov-
ernment. Perhaps a more important or difficult case
had never been committed to an American jury. The
public mind was intensely excited ; but he begged of
the jury to banish all feeling and prejudice all in-
dignation at the enormity of the offence all opin-
BATHSHEBA SPOONER AND OTHERS. 27
ions from hearsay all political feelings. 1 By the
great principles of the law the prisoners were inno-
cent until proved to be guilty.
Murder was where a person of sound memory and
discretion unlawfully kills a reasonable creature in the
peace of government, with malice aforethought, either
express or implied. An accessory before the fact was
he who, being absent at the time, doth yet procure,
counsel, and commend the crime. For if present,
aiding, and one only doth the act, they are all prin-
cipals. In order, therefore, to determine whether the
prisoners had been guilty of the crimes charged in
the indictment, the jury must keep in their minds the
evidence against each one separate and distinct. It
was necessary that they be convinced that each one
was designedly instrumental in the death, which fact
must be [roved in such a manner as to leave not even
a shadow of doubt in their minds.
Now the fact of killing was not denied ; that it was
murder, in somebody, was confessed. But it did not
follow that A, B and C were the murderers, which
must be proved beyond all doubt before the jury
could convict them ; for the jury could not infer
from the murder itself, which did the act, when it
might be one of them. One must have done it.
Could not all the facts have taken place as testified,
and yet A not be concerned to that degree which this
indictment supposed ? If the proof was of a less
degree of guilt than the indictment supposed, then in
respect to this indictment, it was no proof at all.
1 This, doubtless, was in allusion to the violent prejudice at this time
in Massachusetts against Mrs. Spooner's father, on account of his politi-
cal course.
28 AMERICAN TRIALS.
It was not his business to defend either of the pris-
oners against the imputation of guilt ; all had been
wicked ; all had been guilty in a degree. He could
not deny ; he believed he might safely admit, that A
was privy to, and concealed the death of the deceas-
ed, and, perhaps, consented to it, or did not try to
prevent it, and was guilty of misprision of felony
and yet firmly stand upon the only ground which it
behooved him to maintain. Principal or accessory
was the gist of the inquiry, and the proof of nothing
else was to the purpose. Everything that was proved
respecting Ross was perfectly innocent in reference
to the crime charged in the indictment. He was sure
the circumstances, taken altogether, did not afford
proof presumptive, probability, or even suspicion of
there being a design in Ross to hurt Mr. Spooner.
Was there anything in the nature of things that
Ross, doing so and so, necessarily implied the ex-
istence of all those circumstances that constitute mur-
der ? Was not innocency, in the sense of the indict-
ment, perfectly consistent with the facts proved ? And
it was a rule, that no man's guilt could be proved by
any evidence that was compatible with his innocence.
The proof of a crime might be divided into two
classes, perfect and imperfect. Those were perfect
which excluded the possibility of innocence. Imper-
fect, those which did not exclude this possibility. Of
the first, one only was sufficient for condemnation ;
of the second, as many were required as form a per-
fect proof ; that is, if each, taken separately, did not
exclude this possibility, yet if they did by their union,
it was perfect proof, which was always requisite ;
BATHSHEBA SPOONER AND OTHERS. 29
but separate, independent proofs, which did not con-
nect in time, so as at last to connect with the fact to
be proved, did not amount to perfect proof.
The confession of a criminal could rarely be turned
against him, without obviating the end for which he
must be supposed to have given it. It was uncertain ;
there had been instances of murder avowed that had
not been committed, and confession of goods stolen
that were never out of the possession of the owner. 1 It
was unjust and dangerous to suffer confessions, dictated
by the distraction of fear, or the misdirected hopes of
mercy, to have much weight. Besides, the evidence
of words ought to be received with great caution and
distrust, which were spoken in unsuspicious confi-
dence, or in. the hurry and perturbation of a mind
anxious and pressed by leading questions. The words
might be very innocent when spoken, and criminal
when related ; much depended upon the time and
concomitant circumstances.
The learned counsel then proceeded to a more full
discussion of the law of principal and accessory, con-
tending that the testimony was not sufficient to con-
vict Ross of the offence charged in the indictment,
although he might be guilty of misprision of felony
and proceeded against as such. The mere fact of his
being present was not sufficient. The jury must be
satisfied, beyond all doubt, that he was present with a
1 The most remarkable case of this sort occurred since this trial. It
was tlie ciise of the Booms, two brothers, in Vermont, who. upon being
char.,"';l with the murder of one Co!vin, who had suddenly disappeared
in HI 3 rrm le a full arrl circumstantial confession, and were condemned
to de ith. But the m;in, supposed to have been murdered, appeared be-
fore the day fixed for the execution. Law Reporter, V. 193.
3*
30 AMERICAN TRIALS.
design to assist. Now if Ross had a design against
Spooner's life, he had previously had frequent oppor-
tunities to take it at his house at Princeton
on the road by poison. The matter had been long
in agitation, and his neglecting various opportunities
to accomplish it, showed that he had no real design
to do it, but only wished to keep up the appearance
of an intention.
In regard to Mrs. Spooner, the main argument of
Mr. Lincoln was, that she was not in a sound mind.
The whole evidence was that of a fool or a distracted
person. Born in a high rank of life well educated
and accomplished a wife and a mother, and in the
enjoyment of a good estate, what object could she
have in undertaking such a detestable crime ? What
end could it serve ? Were there any reasons per-
suading, hopes inviting, or advantages arising from
the death of her husband ? By it she would deprive
her children of their father and guardian herself of
a husband, and would subject herself to the burthens
of her family with only one third of the estate instead
of the whole of it. Could she, then, have seriously
projected this matter, with a design of having it ex-
ecuted ? and if she did, could she have been in the
exercise of her reason ? If it was said she could not
live with her husband, could she not have separated,
and gone to her father, whose favorite she was to
her brother and her other friends ? There, with her
address, and engaging appearance, she might have
had any gallant she pleased, not such as Ross, but
one more fitted to her rank and station in life.
It was a well known principle, founded in nature,
BATHSHEBA SPOONER AND OTHERS. 31
that the source of wickedness, the incentive to guilt,
was the hope of impunity. But what hopes of being
undetected, what presumption of impunity could she
have ? Was it possible to conceal the matter, con-
sidering the number of persons engaged, their char-
acter, their situation, and their profession, no plan
formed to conceal it, no story agreed on, no place to
flee to the matter entrusted to strangers, with no
evidence of their fidelity ? She is seen in company
with them the night before, at Walker's procures
calomel agrees on the time reminds them of it
before company, "at eleven o'clock. " Why the cal-
omel, if her husband was to be assassinated ? She
previously tells that Mr. Spooner is going a long jour-
ney, and inquires if any body wants to hire his farm.
After the murder, she gives the murderers his watch,
buckles, waistcoat, breeches and shirts, and even puts
them on, to be worn in the eye of the world, where
they were well known to be Spooner's clothes, and
from their goodness and fashion might be known not
to belong to the persons wearing them, being low and
vulgar. Was this the conduct of a person in the
exercise of reason ? Would it have been less rational
to have written on their foreheads, in capitals, " the
murderers of Mr. Spooner ! "
If, then, the conduct was irrational, if it was what
could not be directed by a person in the exercise of
reason, there was the best evidence of a disordered
mind that the nature of the thing would admit of.
For there was no knowing the state of the mind, but
by a person's conduct. The distraction, the disor-
ders of the mind operate variously mark the differ-
32 AMERICAN TRIALS.
ence between a fool and a man disordered the fool
draws wrong conclusions from right principles the
disordered mind argues right from wrong principles.
As to confessions, they were not evidence any fur-
ther than, from the nature of the thing and circum-
stances, they could be supposed to be true. If the
confession of one was taken as conclusive evidence of
the truth, then another's might be, which was differ-
ent and inconsistent ; but if the first was taken for
true, then a confession was admitted as evidence of
truth, which was necessarily untrue. Besides, a per-
son confessing his own turpitude, was not to be re-
garded against others, and why against himself, seeing
it could not be believed, on the veracity of the wit-
ness, for if that was the foundation of belief, it was
as good against another person as himself. If the
ground was, because it was against his interest, then
if any reason could be assigned for his doing it, be-
sides its being true, it could be no evidence of truth.
Then, why should he not make a wrong confession,
as well as a true one ? a man that has murdered
could not feel an obligation to speak the truth.
Was it credible, that it should ever enter into the
head of a person of so much capacity and so much
cunning, to entrust an affair so heinously criminal to
strangers, deserters and foreigners, who, had they
escaped detection here, would probably have boasted
of their feats, after they got off to the enemy ; and if
she was afraid they would not disclose it, to entrust it
with other women and boys ? Must she not have had
some motive, some proper means, some plan fixed,
some chosen trusty confidant, or some reason to hope
BATHSHEBA SPOONER AND OTHERS. 33
either to accomplish or conceal so detestable an
action before she would have engaged in it, if she
had been in her senses ? It was perpetrated in the
heart of a populous town, near neighbors where it
must at farthest be discovered by the morning liable
to be heard in the time of it by the people abroad,
by the two travellers who lodged there that night, by
the children, and others of the family.
Was it possible she would commit so atrocious a
crime, and run so great a hazard from no motive ?
It was said she was upon ill terms with her husband.
This was to trump up one crime, that there may seem
to have been a motive to have perpetrated another
from. But to whom did she commit the execution
of it ? Whom did she make use of as her accom-
plices ? whom as her confidant ? Whom did she
trust with the management of a villany, that so nearly
affected her reputation, her safety, her life, her
children, the lives of others, and the happiness of her
friends ? The answer was, to prostitutes, tories,
regulars, deserters, strangers and foreigners. Was a
woman that is admitted to have sense, so stupid, if
in the exercise of her reason, as to trust all that was
valuable to her and hers, in the hands of such persons ?
Could there be a doubt, in the minds of the jury, that
this woman was not in a state of mind which rendered
her guilty in the eye of the law, of a most horrible
crime, which would subject her to the last infliction
of human power and vengeance ?
Such is a condensed statement of Mr. Lincoln's
argument, as gathered from his manuscript notes of
the trial. Some portions of it were ingenious, and
34 AMERICAN TRIALS.
the whole was as able and consistent as could have
reasonably been expected under the circumstances of
such a case. But it did not serve to raise any real
doubts as to the guilt of all the prisoners, and it
required but little effort, on the part of the attorney
for the state, to expose the fallacy of the technical
points, in their application to the facts as proved.
The jury returned a verdict of guilty of murder,
and sentence of death was pronounced on the four
prisoners by the chief justice. The trial occupied
sixteen hours. t During the whole of it Mrs. Spooner
manifested perfect composure and appeared to be
utterly indifferent as to the result. Her demeanor
was proud and reserved, and she submitted to her
fate without a murmur.
The time appointed by the council of the state for
the execution of the prisoners was Thursday, the
fourth day of the ensuing June. Meanwhile they
were confined in the jail at Worcester. The three
men seemed entirely broken down by their fate.
They acknowledged the justice of their sentence,
and, under the teachings of their spiritual adviser,
they gave themselves to prayer, and " became mighty
in the scriptures, and were wont to make very perti-
nent observations upon many passages that were
mentioned to them." They made a full and particu-
lar confession 1 of their guilt, which is here inserted.
" On February 8th, 1778, we, James Buchanan and
William Brooks left Worcester with an intent to*go
1 " The dying declaration of Jdmes Buchanan, Ezra Ross, and William
Brooks, who were executed at Worcester, July 2, 1778, for the murder
of Mr. Joshua Spooner."
BATHSHEBA SPOONER AND OTHERS. 35
to Springfield to work. In passing Mr. Spooner's
we were called in by Alexander Cumings, who we
thought was a British soldier. Having stood some
time by the fire, he told us his master was gone from
home, but he would go and call his mistress, for she
had a great regard for the army, as her father was in
it and one of her brothers. He called her, and she
came down, and appeared glad to see us. She asked
us whether we came from the Hill ? We told her
we did, and were going to Canada, as I, Buchanan,
had left my family there. She ordered breakfast for
us, and as soon as it was ready we were desired to
go into the sitting-room. We were very much sur-
prised at this, for we should have thought ourselves
well dealt by to have received any favors she might
see fit to bestow on us in the kitchen. However, we
all breakfasted together. The weather being very
bad, we were asked to stay till it cleared up. As we
had but little money, we accordingly stayed. The
weather continuing very bad, we stayed there that
day and night. I (Buchanan) am not positive whether
it was the first or second day, she told me, when by
ourselves, that she and her husband did not agree
that he was gone a journey to Princeton, and that
he would not be home soon that we should not go
from thence until the weather was fair, there being a
great fall of snow at this time.
" We very readily consented, and stayed from day
to-day, expecting Mr. Spooner home. Mrs. Spooner
getting very free in discourse with me, (Buchanan)
one day told me that she never expected Mr. Spooner
to return, as there was one Mr. Ross gone with him,
36 AMERICAN TRIALS.
who had an ounce of poison, which he had promised
her he would give to Mr. Spooner the first conve-
nient opportunity.
" The reader must needs think this a very strange
circumstance, that she should make such a discovery
to an entire stranger. She said at the same time, we
should stay till we saw whether Mr. Spooner returned
or not. Accordingly we stayed, and were never in
better quarters, little thinking of the bait the seducer
of souls was laying for us ; we were then in a dispo-
sition to catch at it, having no fear of God before our
eyes, and being entirely forsaken of him.
" Having tarried ten or eleven days, as nearly as can
be recollected, her husband came home, and seeing
us there, asked her who we were. She told him that
I (Buchanan) was cousin to Alexander Cumings.
He took no further notice of it, but going out among
his neighbors, it is likely he was informed how long
we had been there, and probably heard, at the tavern,
of the quantity of liquor he had to pay for, since his
going on his journey. Be that as it may, at night
he came home, and seeing we were not gone, he de-
sired us to go immediately. We begged he would
let us stay till morning. He after some time consented
that we should stay by the fire all night. He was in
the sitting-room by himself, and Mrs. Spooner went
to bed. There was one Reuben Old came upon some
business with Mr. Spooner, and after some time came
out and told us that Mr. Spooner told him he was
afraid we should rob him, adding that he had lost a
silver spoon, and a great deal of pewter. This vexed
us, as we were conscious we had no thought of steal-
BATHSHEBA SPOONER AND OTHERS. 37
ing from him. Had we been so inclined, we had as
much opportunity as we could have desired. The
spoon he found where he laid it, and Cumings con-
vinced him there was none of the pewter missing.
" Mr. Spooner went up stairs and brought down a
box, which he had his money in, and lay down on
the floor with it under his head. Everything Mr.
Spooner did or said, Old came and told us, and was
with us all the time he was asleep, and we were all
merry together, sitting by the kitchen fire. Said Old
declared in court, that I, Buchanan, said if Mr.
Spooner came out, I would, for two coppers, put him
into the well, which is false. In the morning, it not
being convenient to see Mrs. Spooner, to take our
leave of her, we, Buchanan, Brooks and Cumings
went to Mrs. Stratten's to pass the day, till we could
get an opportunity to bid Mrs. Spooner farewell.
We stayed at Mrs. Stratten's the best part of the
day. Cumings having received five dollars from Mr.
Spooner, to treat his pretended cousin with, we went
to Mr. Cooley's tavern and had some drink, from
thence to doctor Foxcroft's, stayed there until Cum-
ings came and told us Mr. Spooner was in bed.
We then went to the house, and had supper and
liquor, retired to the barn and tarried all night. In
the morning had breakfast sent to the barn for us.
And as Mrs. Berry and Mrs. Tufts had been there
the day before and wanted to see me, (Buchanan) I
said I would go and see them. Mrs. Spooner said
she would also go, which was agreed on. Buchanan
and Brooks went there, and we all stayed at Mr.
Green's, drinking until late ; some distance from
1 11*7
38 AMERICAN TRIALS.
thence, she said she had given a handkerchief to a
British soldier that had some words in anger with me,
Buchanan, upon which Brooks went back on the
horse, and she and I went home. Brooks missed
his road on his return, but got to the house some time
after us ; but he did not get the handkerchief, as the
soldier would not deliver it, until he saw Mrs. Spoon-
er. Buchanan and Brooks stayed that night in the
barn ; in the morning went to Mr. Gilbert's tavern
and stayed there some time, and on coming out from
his house we saw Cumings approaching on one of
Mr. Spooner's horses; he told us his master was gone
to the tavern, and that his mistress desired we would
come there, which we did, and had supper ; we went
to the barn that night, and in the morning she sent
us word that her husband was gone abroad into the
country to get some oats.
"The boy Parker had proposed to Brooks, if he
would come and meet Mr. Spooner and himself, on
their return, the said Parker said he would help to
take Mr. Spooner's life. We went over from the
barn to the house, and found he was gone, and stayed
there all day, and lived on the best the house afforded
of meat and drink.
" Mr. Spooner came home in the dusk of the
evening, so that we had like to have been seen ; but
we heard him come with the sleigh to the door and
Brooks ran into the cellar, and I went and stood on
the back stairs, until he went into the sitting-room.
We then came out, and went to the barn, there
stayed all next day, and at night when Mr. Spooner
was in bed, we were sent for to the house and
BATHSHEBA SPOONER AND OTHERS. 39
received supper and some liquor to encourage another
plan, which Cumings and Parker (who have for
this time escaped punishment,) proposed to poor
Brooks, which was, they all three to go up stairs, and
Brooks to take his life from him ; for which he was
to receive one thousand dollars, Mr. Spooner's watch,
buckles, and as much cloth as would make a suit of
clothes ; but Brooks's heart failed him ; and Mrs.
Spooner said she did not think he was so faint-
hearted. Had this been done he was to be put into
the well as he was taken out of bed ; for she observed
it would be thought he had fallen in, while drawing
water in the night ; next day we had breakfast
brought us by Cumings. He informed us there was
another plan formed by her, which was as follows.
Either Cumings or Parker were to tell Mr. Spooner
one of the horses was sick ; and, as he came to the
barn, to kill him, and put him amongst the horses'
feet, to make people believe, when he was found, that
the horses had killed him. But Brooks told Parker
not to tell him, but to make her believe he would
not go over. The boy conducted accordingly. We
stayed all that day and night. The next day being
Sunday, we stayed there ; she came over at night ;
we told her we should go away the next morning ;
ghe desired we would not ; but we would not stay.
We set out to go to Springfield ; as we went through
Western on that road, we engaged to work with one
Mr. Marks, a smith ; I, Buchanan, worked there two
days ; but as he had no files fit for the branch of
trade Brooks followed, we proposed to go to Worces-
ter to get home, which was agreed to.
40 AMERICAN TRIALS.
" We set off on Wednesday about noon, and in
going by Mr. Spooner's we called and told her where
we were going ; she said she would follow us down
the next day, as she wanted to see her sister, saying
she was glad we had got work so near ; and further
added, that she had got two notes, one of twenty
pounds, lawful, and another of three hundred dollars,
which she would endeavor to get changed, and let
me, Buchanan, have one hundred dollars, to purchase
anything I might want.
" We stayed in the barn till morning, and then set
out for Worcester, and she followed us the same day
and called at Mrs. Walker's for us, according to
agreement ; she came in and stayed some time, and
gave me, Buchanan, a note, as much cloth as made a
shirt, and six or seven dollars, observing that they
came from one M'Donald, an acquaintance of hers ;
she then went to see her sister, and desired us to stay
till she came back, which we did ; she returned on
Friday morning about ten o'clock, and stayed till
night ; she told me, Buchanan, at parting, that she
had no more paper money, but what she had given
me ; but begged I would procure her some poison to
give Mr. Spooner. I accordingly that day got one
drachm of calomel, and made it into twenty papers.
I desired her to give one in the morning; she told me
she never gave him any ; she went to her sister's late
that night and called on us in the morning, about ten
o'clock. I went to the door ; she would not come
in, but desired me to come up to Mr. Nazro's shop,
and she would get files for us, as we had not money
sufficient to get what we wanted ; she asked me,
BATHSHEBA SPOONER AND OTHERS. 41
when we would come through Brookfield. I told
her if she would sit up, we would call on Monday
night, at eleven o'clock ; she said she would. I parted
with her and sent Brooks up to the shop. But as he
came in sight he saw her ride from the door, and
therefore did not go there ; we stayed at Walker's
until Sunday afternoon, and then left Worcester,
and about eight o'clock at night got to Mr. Spooner's ;
we saw Mrs. Stratten at the well. Buchanan spoke to
her ; she told me there was company in the house,
but she would let Mrs. Spooner know we were there.
Mrs. Spooner came out, and told us that one Mr.
Ross was in the house, who had a brace of pistols
loaded, and that he had promised her he would kill
Mr. Spooner as he came home from the tavern. She
desired us to come in, which we did ; he showed us a
pistol, and said Mr. Spooner should die by that to-
night. Either Brooks or Buchanan said it would
alarm the neighbors.
" Brooks said if Ross would help him he would
knock him down ; accordingly it was agreed on, and
there was a look-out kept at the sitting-room door
for his coming. In the mean time there was some sup-
per brought by Mrs. Stratten to us ; we had had some
flip before, and there was now some rum brought,
which we drank, each of us by turns giving a look
out. We are certain Mrs. Stratten could not but
know what was going forward. That we leave the
public to judge of. Mr. Spooner was at length seen
coming, and then was the time for the Devil to show
his power over them who had forsaken God.
" William Brooks went out and stood within the
4*
42 AMERICAN TRIALS.
small gate leading into the kitchen, and as Mr.
Spooner came past him he knocked him down with
his hand. He strove to speak when down. Brooks
took him by the throat and partly strangled him.
Ross and Buchanan came out ; Ross took Mr. Spoon-
er's watch out and gave it to Buchanan ; Brooks and
Ross took him up and put him into the well head
first ; before they carried him away, I, Buchanan,
pulled off his shoes : I was instantly struck with
horror of conscience, as well I might. I went into
the house and met Mrs. Spooner in the sitting-room ;
she seemed vastly confused : she immediately went
up and brought the money which was in a box. She
not having the key, desired me to break it open,
which I did; at the same time Brooks and Ross
came in : she gave two notes of four hundred dollars
each to Ross to change and give the money to
Brooks ; but there was found some paper money,
which Brooks received (two hundred and forty-three
dollars) and the notes were returned. At the same
time she gave Ross four notes, each of them ten
pounds, to purchase camlet for a riding dress. Ross
gave Brooks his waistcoat, breeches and a shirt.
She went and brought Ross a waistcoat, breeches and
shirt of Mr. Spooner's. When they were shifted she
gave me, Buchanan, three eight dollar bills, and
asked me when she should see me again ; I told her
in fourteen days ; but it pleased God to order it
sooner, and in a dreadful situation. Had we all
been immediately struck dead, after the perpetration
of so horrid a murder, and sent to hell, God would
have been justified and we justly condemned.
BATHSHEBA SPOONER AND OTHERS. 43
" About 1 1 o'clock at night, we set off for Worces-
ter. About 4 o'clock in the morning we reached
Mrs. Walker's house ; Mary Walker and a negro girl
were within ; we told them a parcel of lies to excuse
our sudden return ; in the morning we went to drink-
ing, to endeavor to drown the thoughts of the horrid
action we had been guilty of. We stayed there all
day with a view to go off at night, but it pleased God
to order it otherwise ; for Brooks, being in liquor, went
down to Mr. Brown's tavern ; there showing Mr.
Spooner's watch, and the people seeing him have sil-
ver buckles, became suspicious of him, and one En-
sign Clark going to Mrs. Walker's and seeing what
passed there, gave information concerning us. The
news of the murder had now reached the town, and
we were all taken, and brought before the committee,
and examined, and committed to jail. On the 24th
of April last we were brought to trial before the su-
perior court, found guilty and received sentence of
death."
Of the three men, Ross seems to have been the
best educated and the least hardened, and altogether
of the most interesting character. The inducements
to the crime on the part of Buchanan and Brooks
were principally the promise of a pecuniary compen-
sation. They deliberately and in cold blood planned
the murder of one, who was an entire stranger to
them, and from whose death they could only hope
for gold as a reward. Moreover, they had arrived at
years of maturity. Buchanan, who was a Scotchman,
and had been a sergeant in Burgoyne's army, was
thirty years old, and a man of decent education and
44 AMERICAN TRIALS.
good appearance. Brooks, an Englishman, had been
a private in the same army, and was twenty-seven
years old. On the other hand, Ross was a mere
boy. He was of respectable parentage, and had
been well educated. He was also prepossessing in
his personal appearance, and having been cast upon
the hospitality of Mr. Spooner under peculiar circum-
stances, he received many acts of kindness from Mrs.
Spooner, between whom and himself there grew up
an improper, but very warm attachment. Having a
strong aversion to her own husband, it is not strange
that she was able to gain an influence over the mind
of the youth whom she had tenderly nursed in ill-
ness, and to whom she held out most tempting allure-
ments to crime. It is evident, however, that Ross
hesitated long as to the murder ; and there was no
positive testimony, that he knew of Mrs. Spooner's
arrangements with Buchanan and Brooks, or that he
had entered into their deliberations before the fatal
night when he met them, apparently by accident, at
the house, and where he became a party to the
crime.
Upon the aged parents of Ross, the news of his
conviction fell with a crushing weight. In the state
archives of Massachusetts, there is a touching peti-
tion, which they presented for the life of the son,
who was so dear to them in their old age.
" The memorial and petition of Jabez Ross, and
Joanna Ross, of Ipswich, in the county of Essex,
humbly sheweth, That your memorialists are the un-
happy parents of a most unfortunate son, now under
BATHSHEBA SPOONER AND OTHERS. 45
sentence of death for the murder of Mr. Spooner
a murder the most shocking in its kind and in cir-
cumstances not to be paralleled That out of the
public troubles of the day your memorialists have been
called by providence to suffer a large and uncommon
share That at the commencement of hostilities, of
seventeen children, six sons and three daughters alone
survived to your aged and distressed petitioners,
whose footsteps from that period have been marked
with anxiety, and whose sorrows, from the melancholy
fate of their youngest son, have received a tinge of
the keenest kind.
" At the first instance of bloodshed, five of the six
sons entered the public service ; four fought on Bun-
ker Hill, three marched to the southward with Gen-
eral Washington, of which number was the unhappy
convict, who engaged for one, the other two for three
years. A fourth mingled at the northward his bones
with the dust of the earth.
" On his return from the first year's campaign, he
was, by the lot of providence, cast upon Mrs. Spooner,
in a severe fit for [of] sickness, from whom he re-
ceived every kind office and mark of tenderness, that
could endear and make grateful a child of sixteen,
sick, destitute, in a strange place, at a distance from
friend or acquaintance. After the evacuation of
Ticonderoga, in his march to reinforce the northern
army, gratitude for past favors led him to call on his
old benefactress, who then added to the number of
her kindnesses, and engaged a visit on his return.
With a mind thus prepared and thus irresistibly pre-
possessed, by her addresses, kindnesses on his tender
46 AMERICAN TRIALS.
years, he for the first time heard the horrid proposals ;
tempted by promises flattering to his situation, and
seduced both from virtue and prudence, a child as he
was, by a lewd, artful woman, he but too readily
acceded to her measures, black as they were. But
never attempted an execution of the detestable crime,
notwithstanding repeated solicitations, and as frequent
opportunities, until on an accidental meeting, he be-
came a party with those ruffians, who, without his
privity, had fixed on the time and place for that hor-
rid transaction, of which he now stands justly con-
victed.
" Your petitioners by no means attempt an exten-
uation of guilt, or measures inconsistent with the
safety of the community and the preservation of indi-
viduals. But if it is consistent, if the criminal, who
is thoroughly impressed with a sense of what is past,
present, or to come, can be spared, and his guilt con-
demned ; if he has been a valuable member of soci-
ety, and fought in her cause, although from the inex-
perience peculiar to youth, the strength of some
momentary impulses, and alluring seducements, he
gradually erred until he arrived to the violent act of
wickedness ; if upon recollection he has found re-
pentance, confesses his life a forfeiture to the law,
looking up to heaven for that forgiveness which none
can find on earth ; if an early confession of the
whole matter, and the suffering of a thousand deaths
in the reflections of the mind ; if the law, the govern-
ment, and the grave can be satisfied and mercy dis-
played in fine, if youth, if old age, the sorrows, the
anguish of a father, the yearning of a mother, the
BATHSHEBA SPOONER AND OTHERS. 47
compassion and wishes of thousands can avail ; if
any or all of these considerations can arrest the hand
of justice, plead effectually for mercy, and induce
your honors to extend that pardon towards one of
the four unhappy victims destined to a most awful
execution, and thereby give him an opportunity of
atoning to the public for the injury he has done it
restore him to his country, to himself, his sympathizing
friends, to his aged, drooping and distressed parents ;
it will console them under the weightiest afflictions,
and turn the wormwood and the gall into something
tolerable ; and your petitioners in duty bound will
ever pray."
George Leslie, the minister of the church in Line-
brook, to which these aged people belonged, joined
their petition in a modest and feeling request that
their prayer might be granted, if not inconsistent
with public justice. But the supreme authority of
the state saw no reason for making any exception in
favor of Ross, and he was left for execution. He
conducted with great propriety after his fate was de-
cided upon, and was publicly baptized. The day of
his execution was kept as a season of fasting and
prayer for his untimely end, in his native parish. 1
But the object of the greatest interest in this un-
happy affair, was the wretched woman, who must be
held responsible, in a great degree, for all the misery
it occasioned. After the trial, she was often visited
by Mr. Maccarty, the aged minister of Worcester, and
with him she conversed freely upon her situation ;
1 Felt's History of Ipswich, 117.
48 AMERICAN TRIALS.
but would not admit the justice of her sentence. She
insisted that the witnesses had wronged her, and de-
clared that although she had planned the matter, yet
that she never thought it would be executed ; that she
relented when she found they were in earnest. She
exhibited uncommon fortitude in her trying situation,
or rather she seemed hardened and destitute of all
feeling, " being far less affected by many circumstan-
ces in her case, than those around her." She refused,
by word or deed, to ask or accept the sympathy of
others, and, being conscious of the intense prejudice
and excitement against her, she determined that her
appearance should be marked by no weakness, or
womanly infirmity. She occasionally remarked, to
her spiritual adviser, however, that she felt more than
she could express. And there was one point on
which she exhibited all that anxiety and feeling which
is only known to the female breast. She declared
that she was soon to become a mother.
A petition for a respite of all the criminals was im-
mediately sent to the council, to which Mr. Maccarty
added his own desire, that it might be successful, in
order that they might be the better prepared for the
solemn scene before them. " And as to the unhappy
woman he would beg leave further to represent, that
she declares she is several months advanced in her
pregnancy, for which reason she humbly desires that
her execution may be respited, till she shall have
brought forth." To which Mrs. Spooner added ;
" the above application is made at my most earnest
request."
The council ordered the executions to be stayed
BATHSHEBA SPOONER AND OTHERS. 49
one month, 1 and the sheriff was ordered to take the
steps pointed out by the law to ascertain whether the
statement of Mrs. Spooner was true. Accordingly
a jury, consisting of two men-midwives and twelve
matrons was summoned in, and made the necessary
examination. They returned a verdict that the pris-
oner was not quick with child. On being informed
of this result, she immediately petitioned to the coun-
cil in the following terms.
" May it please your honors : with unfeigned grat-
itude I acknowledge the favor you lately granted me,
of a reprieve. I must beg leave, once more, humbly
to lie at your feet, and to represent to you, that
though the jury of matrons, that were appointed to
examine into my case, have not brought in in my
favor, yet that I am absolutely certain of being in a
pregnant state, and above four months advanced in
it ; and that the infant I bear was lawfully begotten.
I am earnestly desirous of being spared, till I shall be
delivered of it. I must humbly desire your honors,
notwithstanding my great unworthiness, to take my
deplorable case into your compassionate consideration.
What I bear, and clearly perceive to be animated, is
innocent of the faults of her who bears it, and has,
I beg leave to say, a right to the existence which
God hath begun to give it. Your honors' humane
Christian principles, I am very certain, must lead
1 " Last week the Honorable Council granted a reprieve to the prison-
ers, under sentence of death in this place, for four weeks ; their execution
will be on the 2d July. The prisoners complain much of the multitudes
that crowd in upon them. They therefore desire that none may come to
see them out of a vain curiosity, but leave them to enjoy their short time
in as profitable a manner as may be." Worcester Spy of June 2, 1778.
VOL. II. 5
50 AMERICAN TRIALS.
you to desire to preserve life, even in this its minia-
ture state, rather than to destroy it. Suffer me,
therefore, with all earnestness, to beseech your honors
to grant me such a further length of time, at least, as
that there may be the fairest and fullest opportunity
to have the matter fully ascertained and as in duty
bound, shall, during my short continuance, pray."
The council having refused to grant this petition,
a strong effort was made to induce them to change
their purpose. Mr. Maccarty sought a reprieve with
great earnestness, expressing a firm belief that the
jury of matrons were mistaken. The two men-mid-
wives who were on the jury, and one of the matrons
joined in a written statement with Dr. Green, the
brother-in-law of Mrs. Spooner, that they now be-
lieved she was quick with child. But two other
matrons, who were of the jury, certified, that on a
second examination, their opinion was unchanged. 1
The council, in this conflict of opinion, were inflexi-
ble, and the prisoner was left for execution at the
appointed time. She received the announcement
with great calmness ; but insisted upon the truth of
her statement, and requested that her body might be
examined after her death.
On the morning of the second of July, 1778, the
town of Worcester was filled by an immense throng
of people, many of whom had come a great distance,
1 A copy of the warrant to the sheriff to summon in a jury, and his
return, with the other papers on this point, maybe found in the Appendix
at the end of this volume. The originals are in the state archives of
Massachusetts.
BATHSHEBA SPOONER AND OTHERS. 51
to witness the execution of these criminals. 1 Mean-
while, the intense excitement of the crowd without
was in striking contrast with the apparent calmness
of the woman who was to suffer an ignominious death.
Mrs. Spooner appeared more quiet than usual on this
eventful day ; but she seemed more humble and pen-
itent, and professed her faith in the Saviour of the
world, and her dependence upon him. A few mo-
ments before she left the cell she was baptized.
According to the custom of that day, a sermon was
preached in the presence of the prisoners, before the
execution, by Rev. Thaddeus Maccarty, from Deuter-
onomy, xix. 13. " Thine eye shall not pity him, but
1 The following advertisements in the Worcester Spy, of that period,
give some idea of the excitement on the subject, and are curious on
many accounts.
"The stK'< '.men of the town of Worcester, taking into their consid-
eration the large concourse of people that will probably attend at the
execution of the unhappy persons under sentence of death here, as also
that there are several hospitals, in this county, for the reception of
persons having the small pox, do, in behalf of the public, caution and
request all physicians and nurses, concerned in such hospitals, and per-
sons having lately had the small pox, not to appear in the assembly of
spectators, unless sufficiently cleansed. Otherwise their attendance
may prove fatal to many, and render the execution, which is intended
for the warning and benefit of all, a public detriment.
By order of the selectmen,
WILLIAM STEARNS, Town Clerk.
Worcester, June 84, 1778.
WORCESTER, JULY 2, 1778.
" This day was published, price two shillings, The Dying Declaration
of James Buchanan, William Brooks, Ezra Ross, who are to be exe-
cuted this day for the murder of Mr. Joshua Spooner, late of Brookfield."
" Also, this day published, a Poem on James Buchanan, Ezra Ross, and
William Brooks, who are to be executed at Worcester, this day, being
Thursday, July 2, together with Bathsheba Spooner, for the barbarous
murder of her husband, Mr. Joshua Spooner, late of Brookfield. Sold
at the printing office, in Worcester, and by I. Thomas, in Londonderry.' 1
52 AMERICAN TRIALS.
thou shalt put away the guilt of innocent blood from
Israel, that it may go well with thee." Mrs. Spooner,
" through great bodily infirmity, was not able to at-
tend the public exercise on that day."
It was about half past two of the clock, in the
afternoon, when the four criminals were brought out
of prison and conducted to the place of execution,
under a guard of one hundred men. The three
soldiers went on foot. Mrs. Spooner was carried in
a chaise, being then, as she had been for several days,
exceedingly feeble. The procession was regular and
solemn. Just before they reached the place of ex-
ecution one of the most terrific thunder storms that
had occurred within the memory of the oldest inhabit-
ants, darkened the heavens. " There followed an
awful half hour. The loud shouts of the officers,
amidst a crowd of five thousand people, to ' make
way, make way ! ' the horses pressing upon those in
front ; the shrieks of women in the tumult and con-
fusion ; the malefactors slowly advancing to the fatal
tree, preceded by the dismal coffins ; the fierce cor-
uscations of lightning athwart the darkened horizon,
quickly followed by loud peals of thunder, con-
spired together and produced a dreadful scene of
horror. It seemed as if the Author of nature had
added such terrors to the punishment of the criminals
as might soften the stoutest hearts of the most obdu-
rate and abandoned."
At length, the place of execution having been
reached, Ross, Buchanan and Brooks, ascended the
stage, when the death-warrant was read to them.
The former made an audible prayer ; the other two
BATHSHEBA SPOONER AND OTHERS. 53
were engaged in private devotions till they were
turned off. Mrs. Spooner, on account of her feeble
health, was suffered to remain in ihe chaise in which
she had been conveyed, until the last moment. She
was frequently seen to bow gracefully to many of the
spectators with whom she had been acquainted.
" When called to ascend the stage, with a gentle
smile, she stepped out of the carriage and crept up
the ladder on her hands and knees." When the
faces of the malefactors were covered and all was
ready, Mrs. Spooner acknowledged, for the first time,
that her punishment was just. She took the sheriff
by the hand and said, " my dear sir, I am ready.
In a little time I expect to be in bliss ; and but a
few years must elapse when I hope I shall see you
and my other friends again."
On the evening of the same day the body of the
wretched woman was examined by surgeons, as she
had requested, and a perfect male foetus, of the
growth of five months, was taken from her. It was
thus discovered, but too late, that a great and humane
principle, to be found in the laws of all civilized
nations, had been violated in her death. The effect
of this discovery on the public mind can scarcely be
adequately described. The excitement against Mrs.
Spooner, from the nature of the crime which she had
committed, had been naturally increased by the
prejudice against her family, and especially by her
apparent indifference to her fate and her open con-
tempt for public opinion. She made no request for
life. She constantly refused to beg for mercy for
herself, and her statement that she was about to
5*
54 AMERICAN TRIALS.
become a mother, was generally regarded as the trick
of an artful woman to postpone the day of her
suffering. But when she had paid the full penalty of
the law and the startling truth was whispered to the
retiring multitude, that her statement was true, and
that the vengeance of the law had fallen on her un-
born child, there was a universal feeling of regret at
the haste of the proceedings. Every mother, who
had seen her die, shuddered at the recollection ; and
what must have been the feelings of that "jury
of discreet matrons" mothers as they were to
whom had been committed the charge of ascertain-
ing the truth, and who, through prejudice, or igno-
rance, or malice, had been the occasion of this griev-
ous mistake !
The terror, which her punishment was intended to
produce, was neutralized by pity for her sufferings.
Her appearance was so calm, and her end so peaceful,
that it was forgotten how deeply her hands were
stained with blood. The tragedy was long recited
around the hearths of those who saw her die, and the
obdurate wickedness of the heroine was almost dis-
regarded in the admiration excited for her beauty, her
energy, and her fortitude.
But to those familiar with criminal jurisprudence, the
case furnishes only an additional illustration, that the
most revolting crimes, of which we have any account,
have been committed by the fair hand of woman.
And the effect of criminal indulgence on the female
mind is the more remarkable, as we do not expect to
find her a criminal at all. When woman oversteps
the modesty of her position and breaks loose from
BATHSHEBA SPOOOER AND OTHERS. 55
the restraints of the laws her whole character is
changed her affections are inverted she is turned
to stone.
Women are soft, mild, pitiful, and flexible ;
Thou, stern, obdurate, flinty, rough, remorseless.
Accordingly, it will be found, that no criminals
are so hardened, none go through the ordeal of a
public trial, Cr endure a death of shame with more
calmness and apparent innocence than women.
With thinking men of that day, it was doubtless a
matter of deep regret, that there should have been
any circumstances attending the death of Mrs.
Spooner, which should divert the public attention
from the enormity of her crime. The trial itself
seems to have been properly conducted, and the jus-
tice of the verdict no one can presume to doubt.
But the subsequent proceedings were of a most ex-
traordinary character. By the humane principles of
the common law, where a woman is capitally con-
victed, and pleads her pregnancy, there must be a
respite of execution. This is a mercy dictated by the
law of nature, in favorem prolis ; and therefore,
says the learned commentator on the laws of Eng-
land, no part of the bloody proceedings in the reign
of Queen Mary, hath been more justly detested, than
the cruelty that was exercised in the island of Guern-
sey, of burning a woman big with child ; and when,
through the violence of the flames, the infant sprang
forth at the stake, and was preserved by the by-stand-
ers, after some deliberation of the priests who assisted
at the sacrifice, they cast it into the fire as a young
56 AMERICAN TRIALS.
heretic ; a barbarity which they never learned from
the laws of ancient Rome, which direct, with the
same humanity as our own, quod pragnantis muli-
eris damnata pcena differatur, quoad pariat, which
doctrine has also prevailed in England, as early as
the first memorials of our law will reach. In case
this plea be made in stay of execution, the judge
must direct a jury of twelve matrons or discreet
women, to inquire the fact : and if they bring in
their verdict, quick with child, (for barely with
child, unless it be alive in the womb, is not suffi-
cient) execution shall be staid till the next session ;
and so from session to session, till either she is de-
livered, or proves, by the course of nature, not to have
been with child at all. 1
Mrs. Spooner did not plead her pregnancy in stay
of execution ; but after sentence was passed she
prayed for a respite. Whereupon a warrant was
sent from the executive council of the state to the
sheriff to summon in a jury of matrons, and make
the proper examination. Their verdict, as time soon
demonstated, was erroneous ; and under the circum-
stances of doubt with which the case was enveloped, the
refusal of the council to grant a reprieve was certainly
most extraordinary. A letter addressed to them by
the Rev. Mr. Maccarty, places the matter in its true
1 Blackstone's Commentaries on the Laws of England, iv. 394. See also
3 Inst. 17 ; 2 Curw. Hawk. 657 ; 1 Hale, P. C. 368 ; 2 Hale, P. C. 413.
The latest case upon this subject is that of Regiua v. Wycherly, in Eng-
land, (8 Carriiigton and Payne's Reports, 262). In that case the jury of
matrons found a verdict that the prisoner was not quick with child, l>ut
before the time appointed for her execution, she was respited, in order
that it might be ascertained with certainty whether she was quick with
child or not.
BATHSHEBA SPOONER AND OTHERS. 57
light. " The news arrived last evening to Mrs.
Spooner," wrote this venerable clergyman to the
council, a few days before the execution, " that her
petition for a reprieve was not granted. People that
are acquainted with her circumstances, are exceed-
ingly affected with it. I am myself fully satisfied of
her being in a pregnant state, and have been so for a
considerable time, and it is with deep regret that I
think of her being cut off, till she shall have brought
forth, which will eventually, though not intentionally,
destroy innocent life. An experienced midwife,
belonging here, visited her this week, and examined
her, and found her quick with child. Wherefore,
though I think justice ought to take place upon her
as well as the rest, yet I must beg leave earnestly to
desire that she might be respited, at least for such a
time as that the matter may be fully cleared up. And
I have no doubt it will be so satisfactorily to every
one. I write this, may it please your honors, of my
own accord, not at her desire, for I have not seen
her since the news arrived. I should be very sorry if
your honors should consider me as over officious in
the matter. But principles of humanity, and a desire
that righteousness may go forth as brightness, and
judgment at the noon-day, have powerfully prompted
me to make this application on her behalf."
The whole subject is of a most distressing charac-
ter, and at this day, when all the facts cannot be
known, the only apology for these proceedings must
be sought in the excitement of the public mind upon
this subject, and the unsettled condition of the state
governments during the war of the revolution. For,
58 AMERICAN TRIALS.
in any view of the case, it is surely a stigma upon
the criminal jurisprudence of Massachusetts, that the
execution of Mrs. Spooner was not respited until the
birth of her child. Even now, after the lapse of half
a century, no one can read the story of this wretched
woman, without a shudder at the fate of that mother,
who made an ineffectual prayer for the life of the
innocent one whose existence was so intimately and
sacredly connected with her own ; and who, instead
of submitting to her fate with so much calmness and
fortitude, might well have exclaimed,
Murderers !
They that stabb'd Cassar, shed no blood at all,
Did not offend, nor were not worthy blame,
If this foul deed were by to equal it.
He was a man ; this, in respect, a child ;
And men ne'er spend their fury on a child.
TRIAL OF COLONEL DAVID HENLEY,
BEFORE A
GENERAL COURT MARTIAL,
FOR IMPROPER CONDUCT AS AN OFFICER OF THE
AMERICAN ARMY.
CAMBRIDGE, MASSACHUSETTS, 1778.
The trial of Colonel Henley, at Cambridge, Massachusetts, in 1773,
was published in that year, under the following title : " The proceedings
of a General Court Martial, held at Cambridge on Tuesday the twen-
tieth of January ; and continued, by several adjournments, to Wednes-
day, the 25th of February, 1778, upon the trial of Colonel David Henley.
Boston: printed by J. Gill, in Court Street, 1778." An edition of the
trial was also printed in England, which I have never_seen, but which is
stated in the Collections of the Massachusetts Historjcal Society, viii.
296, (second series) to have been "much garble^" ' "An account of this
trial is also given in a rare work, entitled, " Travels through the Inte-
rior Parts of America; in a series of Letters. By an Officer. London.
1789." The author of this work was Thomas Anburey, an officer in
General Burgoyne's army. It is written in a bitter spirit, and many of
the statements are not entitled to credit, although the work is not defi-
cient in ability. Anburey seems to have been present at the trial, and
gives a more complete report of General Burgoyne's address to the court
than can be found elsewhere. Moreover, his report was undoubtedly
corrected by General Burgoyne, before its publication ; and I have not
hesitated to adopt it. In addition to these works, I have consulted the
standard historical works of that period, especially the Memoirs of Gen-
eral Heath, and the papers in the Collections of the Massachusetts His-
torical Society. I have also derived assistance from an interesting dis-
course on the imprisonment of Burgoyne's army, by Ivers J. Austin,
Esq., who examined the manuscript papers left by General Heath.
TRIAL OF COLONEL HENLEY.
ONE of the most important schemes of the British
government, in the early part of the revolutionary
struggle, was that of opening a way to New York by
means of an army, which should descend from the
lakes to the banks of the Hudson, and unite, in the
vicinity of Albany, with that commanded by General
Howe. The junction of the two armies, it was con-
fidently believed, would shortly bring about the total
subjection of America. All measures, which were
deemed essential to the success of so important an
enterprise, were accordingly taken. The entire direc-
tion of the operations was confided to General Bur-
goyne, an officer of uncontested ability, possessed of
an exact knowledge of the country, and animated by
an ardent thirst for military glory. He displayed
extreme activity in completing the preparations which
might conduce to the success of the enterprise ;
VOL. II- 6
62 AMERICAN TRIALS.
and, in a short time, collected in Canada, a grand
army of many thousand men in the best possible
condition, and accompanied by a formidable train of
artillery. No means were neglected to ensure the
success of the expedition ; and the detestable course
was resorted to, of employing the savages in this un-
natural war : a measure which merited, as it received,
the execration of all good men in every part of the
world. The preparations being at length completed,
General Burgoyne issued his memorable and infamous
proclamation unworthy the general of a civilized
nation in which he magnified the force of the
British armies and fleets, which were about to em-
brace and crush every part of America ; and warned
the contumacious, that justice and vengeance, accom-
panied with devastation, famine, and all the calam-
ities in their train, were about to overtake them.
This proclamation was issued on the twenty-ninth
of June, 1777 ; on the seventeenth of October, in
the same year, the grand army and its general sur-
rendered themselves prisoners, under capitulation,
to the American forces at Saratoga, commanded by
General Gates.
A convention was entered into between the two
generals, which provided, that the British army should
be marched to the port of Boston, and should be al-
lowed a free embarkation and passage to Europe,
upon condition of not serving again in America.
The army were not to be separated, particularly the
men from the officers. Roll-calling and other merely
formal duties were to be allowed. The officers were
to be admitted on parole, and suffered to wear their
COLONEL HENLEY. 63
side-arms. All private property was to be retained,
and no baggage was to be searched or molested.
The army immediately took up its march for Boston.
Meanwhile, the greatest difficulty was experienced
in making adequate preparations for this large body
of men in the vicinity of Boston. The state of Mas-
sachusetts was at this time heavily taxed for the sup-
port of the war. She was supporting twelve thou-
sand troops in the continental army, besides militia and
those engaged on the sea-coast within her own juris-
diction ; and had also incurred a heavy expense in
preparing an expedition to St. John's, and other
places on the Bay of Fundy, at the sole charge of the
government and people of the state.
Under these circumstances, the quartering of these
soldiers in Massachusetts was not regarded with much
favor ; and the people, who held General Burgoyne
and his army in the utmost detestation, were not dis-
posed to exert themselves very much for their ac-
commodation. Under the command of General
Heath, the barracks on Prospect and Winter Hills,
near Boston, were made ready for the soldiers ; but
the utmost difficulty was experienced in procuring
houses for the officers ; and, on the day that General
Burgoyne arrived, no quarters had been obtained for
him.
Nor was this all. The scarcity of food and fuel
was severely felt by the citizens generally, and by the
soldiers to a still greater extent ; and the difficulty
was not remedied until the American commander
seized all the fuel collected for private use lying
on the wharves in Charlestown, and appropriated it
64 AMERICAN TRIALS.
to the use of the prisoners. The latter, who were
suffering under the bitter mortification of defeat, were
indignant at what they considered harsh treatment,
and took no pains to conceal their contempt for the
people whose prisoners they were. The officers, in
particular, seemed to forget the relation in which they
stood to their captors, and indulged in a haughtiness
and arrogance of manner, which were as unbecoming
in them, as they were annoying to the American com-
manders. This conduct was met, however, with
such firmness and determination as soon convinced
the prisoners that they had mistaken the character
of those, upon whose will they were then depend-
ent. All the American officers were strictly en-
joined to be attentive to the conduct of the pris-
oners, and forthwith to report any insult offered to
the independence of the states or the proceedings of
congress. The offender was to be immediately ar-
rested, and, if a prompt and full apology was not
made, he was to be confined to the guard-house for
a time proportioned to the magnitude of his indiscre-
tion. " Scarcely a day passed without a dozen ar-
rests for this cause alone."
It is obvious, that, under these circumstances,
causes of irritation would constantly arise ; and,
in point of fact, there were continual altercations be-
tween the parties, some of which were of an alarming
character.
In the minds of the common soldiers, the ill-ap-
pointed army which conquered them at Saratoga
contrasted strangely with their own splendid array,
and they could not doubt that fortune and no merit
COLONEL HENLEY. 65
of their adversary had thrown them into his posses-
sion. Their mortification was heightened by their
subjection to such a " slovenly and unhandsome
foe." They paid no further respect to the rules and
regulations of their captors than they were com-
pelled to do by external force. They often stole
out of camp, and not unfrequently committed depre-
dations on the neighboring farms. Highway rob-
beries were not uncommon, and, in one instance,
a party of prisoners committed an aggravated mur-
der. Passes were constantly counterfeited ; and
officers lent their side-arms, or suffered favored sol-
diers to take them, in order to deceive the sentries
after dark. When this artifice was finally discovered,
the prisoners who had a right to wear them were
often stopped by the guards, and hence complaints
without number of the insolence of the American
sentinels.
Colonel Henley, who had the immediate command
at Cambridge, was a brave man and a good officer ;
but being of a somewhat irritable and impetuous dis-
position, he had frequent personal collisions with the
prisoners, in some of which, being pressed beyond
endurance by the outrageous insolence of the soldiers,
he adopted a course of punishment, which, to say the
least, was scarcely consistent with the dignity of his
position, although the circumstances were of a most
aggravating character. On some occasions, this offi-
cer was placed in a trying situation, when the most
decisive and energetic action was necessary. On
January 8, 1778, a report was made to the com-
manding officer, that in the night before, a British
6*
66 AMERICAN TRIALS.
soldier had thrown a stone at a sentry, which had
knocked him down, deprived him of reason, and
nearly killed him. Search was immediately made
for the offender and the sentry's musket, which had
been taken off. The prisoners resisted the search,
and, being armed with clubs and stones, prepared
to attack the guard. They were charged, however,
with clubbed firelocks, driven from barrack to bar-
rack, and thirty of their number taken prisoners, who
were ordered to be transferred to the guard-ship.
Meanwhile the British soldiers again assembled, and
were ordered to disperse. They in effect refused to
obey, and pressed upon the guard, loading the Ameri-
cans with the most insolent abuse. They also suc-
ceeded in rescuing one man, when decisive measures
became necessary. Colonel Henley accordingly
rushed upon the crowd with fixed bayonets, and
himself pricked a British soldier with his sword.
As soon as General Burgoyne became acquainted
with the facts, he addressed a letter to General Heath,
the American commander, in which he demanded,
in the most peremptory manner, the release of the
prisoners who had been transferred to the guard-ship,
" together with a satisfactory apology," and con-
cluded in the following terms : " Insults and provo-
cations, at which the most placid dispositions would
revolt, are daily given to the officers and soldiers of
this army. Regular, decent complaints are received
by your officers, sometimes with haughtiness, some-
times with derision, but always without redress.
These evils flow, sir, from the general tenor of lan-
guage and conduct held by Colonel Henley, which
COLONEL HENLEY. 67
encourages his inferiors, and seems calculated to
excite the most bloody purposes.
" For want of sufficient information, and not bring-
ing myself to believe it possible that facts as related by
common report could be true, I have hitherto declined
taking public notice of this man ; but upon positive
grounds, I now and hereby formally accuse Colonel
Henley of behavior heinously criminal as an officer,
and unbecoming a man ; of the most indecent, vio-
lent, vindictive severity against unarmed men ; and
of intentional murder. I demand prompt and satis-
factory justice, and will not doubt your readiness to
give it. Whenever you will inform me that a proper
tribunal is appointed, I will take care that undeniable
evidence shall be produced to support these charges."
General Heath immediately ordered a court of
inquiry to investigate the grounds of the complaint of
General Burgoyne, and the report was, that " it would
be most for the honor of Colonel Henley, as well as
for the satisfaction of all interested, that the judgment
of a court martial should be taken on his conduct,
during his command at Cambridge."
Accordingly a special court martial was ordered to
sit at the court-house in Cambridge " for the trial of
Colonel David Henley, late commanding officer at
that post, accused by Lieutenant General Burgoyne,
of a general tenor of language and conduct heinously
criminal as an officer, and unbecoming a man ; of the
most indecent, violent, vindictive severity against
unarmed men, and of intentional murder."
The court assembled on January 20, 1778, and
continued by adjournments to the 25th of the follow-
68 AMERICAN TRIALS.
ing month. The members were : Brigadier General
Glover, president, Colonels Wesson, M. Jackson,
Lee, H. Jackson, Lieutenant Colonels Colman, Bad-
lam, Popkin, Major Curtis, Captains Randall, Lang-
don, Sewall, and Hastings. Lieutenant Colonel Wil-
liam Tudor was judge advocate.
Colonel Henley appeared before the court, and
the following charge was exhibited against him :
" Lieutenant General Burgoyne accuses Colonel Hen-
ley of a general tenor of language and conduct hein-
ously criminal as an officer, and unbecoming a man ;
of the most indecent, violent, vindictive severity
against unarmed men ; and of intentional murder."
To this Colonel Henley answered that he was not
guilty.
The letter of General Burgoyne to General Heath
having been read by the judge advocate, General
Burgoyne took notice of a distinction between the
charge, as stated in his letter, and General Heath's
order. In the letter, the general tenor of Colonel
Henley's language and conduct, encouraging his infe-
riors, and seemingly calculated to excite them to
bloody purposes, was only stated as a matter of sus-
picious belief; reasoning upon this principle, it was
more candid to suppose one instigator of such evils,
than a general, voluntary, bad disposition among the
American troops ; that the direct matter of charge
which the general pledged himself formally and offi-
cially to support, was contained in the words " beha-
vior criminal as an officer, and unbecoming a man,
of the most indecent, violent, vindictive severity
against unarmed men, and of intentional murder."
COLONEL HENLEY. 69
General Burgoyne made this observation, as a secu-
rity against any censure of inconsistency on his part,
for not going at large into matters of inferior moment,
as to the general tenor of language and conduct of
Colonel Henley, declaring he should confine his evi-
dence to transactions of the nineteenth of December
and the eighth of January, except in cases where the
behavior of Colonel Henley, at other times, served
to elucidate the principles and designs upon which he
acted upon those particular days. After making this
observation, as to the distinction in the charge, the
General opened the prosecution.
Mr. President, and Gentlemen of the Court :
I present myself as prosecutor before you, in
charges of a heinous nature against Colonel Henley ;
and, before I proceed to adduce the evidence in
support of them, I think it a duty to my station, and
a part of propriety towards the court, to declare the
principles upon which I act. If the reports in my
hand, and which will presently be brought to test
upon oath, do not deceive me, public faith has been
shaken, wanton barbarities have been committed, and
a general massacre of the troops under my care, ap-
parently threatened. In objects of this magnitude,
where not only the rights of a single nation, but the
interests of human nature are concerned, the conduct
of the prosecution falls naturally (however disagree-
able the office and unequal the talents of the person)
to him who has the supreme trust upon the spot.
A second inducement to appear here, is that of
private honor. I have undertaken to accuse Colonel
Henley, in a degree that ought to affect the feelings
70 AMERICAN TRIALS.
of a soldier nearer than life. It is fit I stand forth,
in person, to maintain my accusation, and if it fails
in point of proof, to make him the fullest atonement
in my power.
I acknowledge a third impulsion upon my mind,
equally irresistible ; gratitude, esteem and affection
to that meritorious, respectable part of my country,
the brave and honest British soldier a private man,
defenceless, because unarmed, ignorant of your laws,
unqualified to make good his cause in a court of jus-
tice, and who has not to look for redress of injury to
his own officers. I confess I am too selfish to resign
to my brother officer the pride and gratification of
standing in the front, for the defence of men, faithful
comrades of honor and misfortune who have fought
bravely under my orders, who have bled in my pre-
sence, and who are now exposed to oppression and
persecution, by the abuse of a treaty signed by my
hand.
Thus much I thought proper to premise, lest any
man should suppose me actuated by so mean and
paltry a motive, as vindictive personal resentment
against a gentleman too, of whom, before these trans-
actions, I could know no harm, and towards whom,
if I had any prejudice, I seriously declare it was, from
his general deportment, a prejudice of favor. Per-
sonal resentment ! No, gentlemen, I stand upon
broader and firmer ground the ground of natural
rights, personal protection and public honor, and I
appeal to the great principles and landmarks by which
human societies hold and are directed, and which,
whether in situations of amity or hostility, are es-
COLONEL HENLEY. 71
teemed equally sacred by the universal concurrence
of civilized man.
And this leads me to a momentary reflection upon
the order under which you sit, originating from the
report of the court of inquiry. It states, that the
court, after mature consideration, are of opinion, that
from the evidence offered on the side of General Bur-
goyne against Colonel Henley, it will be most for the
honor of Colonel Henley, as well as for the satisfac-
tion of all interested, that the judgment of a court
martial should be taken on his conduct, during his
command at Cambridge. The General approving the
opinion of the court, orders, &c.
I confess I expected General Heath would have
joined issue with the prosecutor, in this instance, and
placed the court martial upon a more enlarged basis
than the honor of an individual, however respectable
he may be, or the satisfaction of the complainants.
But be it as it may, my purpose is answered, a court
martial is obtained, the members are sworn, and they
are bound to decide.
I know you will feel with me the difference between
this and common courts ; such a state of the minutes
as would suffice for your internal conviction, after
hearing the evidence, or as would be merely explan-
atory to the person who is to confirm the sentence,
will not be thought sufficient here. You well know
the whole of this matter will be published, translated,
considered and commented upon by every nation in
the world ; not only reality, but perspicuity of jus-
tice must appear upon the face of the proceedings.
You are trustees for the honor of an infant state, and
72 . AMERICAN TRIALS.
therefore evasion, subterfuge and law-craft, 1 were any
man hardy enough to offer such at your tribunal,
would be of no avail ; nay, were it possible any mem-
ber could be warped unintentionally by personal favor,
or prejudice of civil contest, (good minds are some-
times prone to such illusions) yet here a moment's
reflection upon the reputation of his country, would
retrieve his reason, and what his prejudice would in-
cline him to adopt, policy would prompt him to re-
ject.
Upon the full confidence, therefore, of the neces-
sary, as well as willing justice of the court, I shall
proceed to call the evidence. I have neither inclina-
tion or powers to heighten the facts by a previous
narrative ; let them strike the view as truth shall show
them in all the simplicity of their horrors a mon-
strous spectacle, from which the mind and eye will
turn aside with detestation.
Upon the conclusion of General Burgoyne's ad-
dress, the witnesses were sworn and examined. In
the course of their testimony there is much profanity,
which good taste would require to be omitted ; but as
the most important point at the trial was to ascertain
the state of mind, not only of the accused, but also
of the witnesses and the soldiers, it seems necessary
to print their exact expressions.
Corporal Buchanan. I was present at the bar-
racks on Prospect Hill on the nineteenth of De-
1 In allusion, as Anburey says, to the judge advocate, who was a law-
yer in Boston, and whom this writer styles " a little, vain, conceited fel-
low."
COLONEL HENLEY. 73
cember. Colonel Henley came down and ordered
a number of the British soldiers, who were prison-
ers, out of the guard-house. He addressed him-
self to Corporal Reeves, with the rest of the pris-
oners, inquiring what he was confined for ? Reeves
said that he had affronted one of the provincial
officers, not knowing him to be an officer, and
he was sorry for it. Colonel Henley replied, " Sir,
if you had served me so, I would have run you
through the body, and I believe you to be a great
rascal." Reeves made answer, " Sir, I am no rascal,
but a good soldier, and my officers know it." Colo-
nel Henley then demanded silence. On this, Reeves
repeated, " I am no rascal, but a good soldier, and I
hope soon to be under the command of General
Howe, to carry arms, and to fight for my king and
country." Colonel Henley said, " Damn your king
and country when you had arms you were willing to
lay them down." Reeves said he was not willing to lay
them down. Colonel Henley then ordered silence ;
Reeves not obeying his orders, but repeating the same
words, Colonel Henley ordered one of the guard to
run him through the body : the man not obeying
him, Colonel Henley immediately dismounted from
his horse, and seizing a firelock with a fixed bayonet
from one of the guard, stabbed Reeves in the left
breast ; while the bayonet was at Reeves's breast,
Colonel Henley told him if he said another word, he
would have it through his body. Reeves said he did
not care, he would stand for his king and country
till he died. Colonel Henley then made another
push at him, when I threw up my hand and turned
VOL. II. 7
74 AMERICAN TRIALS.
the bayonet over Reeves's shoulder. I told Colonel
Henley the man was a prisoner, and said, " don't
take his life ; as he is now in your custody, you can
take other means with him." Colonel Henley then
returned the firelock to the man of the guard he took
it from, and then ordered Reeves and myself into the
guard-room, and dismissed the rest of the prisoners.
General Burgoyne. When Colonel Henley made
the second pass at Reeves, where would it have
struck him had you not thrown the bayonet up with
your hand ?
" Much about the same place in the left breast."
" When Colonel Henley demanded silence, did he
direct himself particularly to Reeves ? "
" I can't tell, as there was ten or a dozen prisoners
who were making their excuses together."
" Was there not much noise made by the prison-
ers ? "
" There was, as they were all speaking together."
" What kind of noise was it ? "
" It was excusing themselves to one another, so
that Colonel Henley might hear them ; that they had
been confined there for some nights, and they should
take care not to come there again."
" Was there any other sort of noise or laughing ? "
" No."
" Was there any muttering or grumbling, or inso-
lent looks directed to Colonel Henley ? "
" No, but quite the reverse ; the men seemed
pleased at being released."
Alexander Thompson, of the twenty-ninth regi-
ment. I was at the barracks on Prospect Hill on the
COLONEL HENLEY. 75
nineteenth of December. Colonel Henley ordered
the prisoners out of the guard-house, of whom I was
one. The prisoners were drawn up before the guard-
room window, the guard in their front. Colonel
Henley pulling a paper out of his pocket, began to
read the crimes at the right of the line of the prison-
ers, and said, " Now soldiers I am come to release
you, and hope you will behave better for the future."
Colonel Henley, directing himself to Corporal Reeves,
told him he was confined for abusing an officer of
the continental service ; and asked him what was
the reason of his abuse ? Reeves replied he did not
know the reason of the abuse, as he was in liquor at
the time, but said he was very sorry for it, not know-
ing him to be an officer. Colonel Henley then said,
" Had it been me, I would have certainly run you
through the body," and added, " I believe you to be
a rascal." Reeves said he was no rascal, but was a
good soldier, and his officers knew it. Colonel Hen-
ley demanded silence, and Reeves again said that he
was a good soldier, and hoped, in a short time, to
fight under General Howe for his king and country.
Colonel Henley then said, " Damn your king and
country ; when you had arms you were willing to lay
them down." Corporal Reeves made answer that
he was not willing to lay them down, and had he
then arms, he would do his utmost to fight for his
king and country. Colonel Henley then ordered one
of his guard to run the rascal through. The man
not obeying, he immediately dismounted his horse,
seized a firelock with a fixed bayonet from one of the
guard, extended his arm above his head, with his
76 AMERICAN TRIALS.
hand on the but of the firelock, and made a pass at
Corporal Reeves, and pricked him near the nipple of
the left breast ; he then drew back the firelock and
made another pass at him. I then seized hold of the
socket of the bayonet, and begged of Colonel Henley
not to take his life, that he might use other means of
satisfaction, and begged he would send him into
the guard-room again. Colonel Henley then ordered
Reeves into the guard-room, the guard committed
him, and Colonel Henley went on to speak to the
rest of the prisoners. Reeves put his head out of the
guard-house window and said something, but I do
not know what. Colonel Henley then released the
rest of the prisoners, except Buchanan, who was or-
dered into the guard-house.
The President. Was there nothing said by
Reeves between the first and second pass of Colonel
Henley ?
" To the best of my recollection there was not."
" Did not Colonel Henley frequently command
silence before he stabbed Reeves ? "
" I believe he did more than once or twice."
" Did not Colonel Henley direct himself to Reeves
when he demanded silence ? "
" He looked first at Reeves, and then along the
line of the prisoners."
" Was not Reeves more talkative than any of the
other prisoners ? "
" He was."
" Was there anything said about king Han-
cock ? "
" I heard nothing."
COLONEL HENLEY. 77
The same question was put to Buchanan, who
answered, " Not till after Reeves was returned to
the guard-room, and the other prisoners dismissed.
Reeves then said to me, < This is a poor pass I
am come to, to be taken out of the guard-house
and stabbed, and my king and country damned
damn king Hancock and the congress.' Whether
Colonel Henley heard it or not I can't say ; he
might have heard it. This discourse was between
Reeves and myself, as we stood near the guard-house
window."
Dr. Bowen, surgeon of the ninth regiment. I saw
Corporal -Reeves a few hours after he was wounded ;
the wound appeared to be made by a bayonet, it
penetrated the breast a little above the left nipple ;
the wound was not so bad as to require immediate
dressing ; the wound was slight, it did not penetrate
deep enough to be of any consequence ; it might have
drawn a drop or two of blood.
General Burgoyne. What further depth would
have put his life in danger ?
" An inch farther might have rendered the wound
hazardous."
" Was the direction of the wound towards the
heart, or a mortal part ? "
" It was not towards the heart, but towards a mor*
tal part."
Page, a soldier of the twenty-fourth regiment. I
was at the barracks, on Prospect Hill, on the 8th of
January. About 1 1 o'clock in the morning, I saw a
guard of continental soldiers coming up from Winter
Hill ; when they came near the British guard-house
7*
78 AMERICAN TRIALS.
a number of us were standing to see them march by.
I happened to tread on one of my comrade's toes,
and he cried out, " God damn my soul," when a ser-
geant (as I took him to be, as he was out of the ranks)
turned about, stepped back two or three paces, and
stabbed him in the right breast ; then drew out his
bayonet from the man's breast, and said to the man,
" Damn you, you rascal, do you damn me ? " the sol-
dier made answer, " No." I likewise said that he did
not speak to him ; he then made another push at
him, and pricked him the second time, and then
clubbed his firelock and cut him on his right temple ;
a provincial officer came from the rear of the party
and damned us for rascals, and told us we all de-
served it.
" Did you see Colonel Henley at or near the party
during this transaction ? "
" I did not."
" What number of British soldiers were together
when the party passed them ? "
" There might be fifty or sixty."
General Burgoyne. What number did the pro-
vincial guard consist of?
" I guess about one hundred and fifty."
" Did you see any insult by word or gesture passed
from the British soldiers towards the guard ? "
" I did not."
" Did you hear any provincial officer or soldier
complain of any affront offered ? "
" I did not, except what passed as before re-
lated."
The President. Did the British soldiers give the
COLONEL HENLEY. 79
party full room to march in the same open order after
they came up to them as before ?
" There was full room where I stood for the party
to pass."
Walker, surgeon's mate, of the twenty-fourth regi-
ment. On the 8th of January, about 1 1 o'clock, I
dressed a British soldier, who had just before been
wounded ; his name was Traggot ; there were two
orifices just above the right breast, which the man
told me had been done by two different stabs of the
bayonet ; from the free communication of the two
orifices I should have thought it had been only one
wound ; the wound was not dangerous. I have
dressed it several times since, and at present it is in
a fair way of a cure ; I saw no other wound nor any
marks of beating about the man.
" Are you satisfied that the wound was made by
one stab of the bayonet, or more ? "
" I am of opinion, from the nature of the wound, it
was done by one push."
" Did the man complain of any other wound ? "
" He did not."
Major Foster, of the twenty-first regiment, testified
that he was present on the occasion referred to. He
neither saw nor heard any provocation on the part of
the British soldiers towards the continental guard.
When the rear of the guard came near the British
guard-room, he noticed a scuffle. The guard passed
on, and he found Traggot, a British soldier, was
wounded. He ordered the men to disperse, and
they did so immediately. Corporal Kidley testified
to a wound inflicted on another soldier, on the same
80 AMERICAN TRIALS.
occasion. Several other soldiers testified that Colo-
nel Henley came up with a party of American sol-
diers, and after forming them into two columns, or-
dered them to load. He told them that the first
man who rescued a prisoner out of his hands, he
would blow his brains out. He then ordered the
British soldiers to leave the parade immediately.
They moved off, but Colonel Henley, finding that
they did not move as fast as he expected, rushed for-
ward and stabbed Corporal Hadley. He followed
another soldier, threatening to run him through if he
did not go off the parade. The wound of Hadley
was not severe, and he was only confined by it a
short time.
On the same day, after this difficulty, Colonel An-
struther, the British officer in command, called on
Colonel Henley, who informed him that the British
soldiers had behaved so badly that morning, that he
was obliged to run one of them through the body,
and that some others had been hurt by his men's
bayonets.
The next charge or circumstance, brought against
Colonel Henley, related to an occurrence on the 22d
of December, when it was alleged that a provincial
sentry fired at a woman. There was but one witness
who testified to this occurrence.
Colonel Lind, of the twentieth regiment. On or
about the 22d December, being field-officer of the
week, I was going upon Prospect Hill, in the fore-
noon, with Captain Banks, of the same regiment. I
saw three women coming down the hill, one of which
run past a continental sentry, who called upon her to
COLONEL HENLEY. 81
stop, and immediately fired his piece before she had
time to turn round ; the ball, from the noise, passed
between the woman and myself, and near me. I or-
dered the woman to go back, and went up to the
sentry, and asked him if he was not ashamed to fire
upon a helpless woman ; he replied he had orders for
so doing. I then went to a sergeant's guard, which
was just by, told the sergeant what had happened,
and desired him to confine the sentry, that the affair
might be inquired into ; he told me he would not
confine him ; that they had orders to fire upon all
British soldiers and women, who attempted to pass
the sentries. I observed a number of British soldiers
were collecting, who were murmuring and clamoring
at the time. I therefore, for fear of the consequences,
desired them immediately to disperse and go to their
barracks, and promised them my endeavor to get
them redressed. I then went towards the main or
captain's guard, and in my way was stopped by a
provincial sentry, who charged his bayonet upon me,
with the muzzle pointed at my breast. I told him I
only wanted to speak to the captain of the guard, and
did not want to go further, and begged he would call
him, and remove the muzzle of his gun from my
breast ; he said he would keep the muzzle there, and
bid me keep off, and then called the sergeant of the
guard, who immediately came up, who I desired
would order the sentry to remove his firelock, as I
was an officer, and commanded in the barracks, and
wanted to speak to the captain of the guard upon
business. The sergeant told the man to take away
his gun, telling me he was a young soldier, and did
82 AMERICAN TRIALS.
not know better ; the captain of the guard came up
soon after, and I pulled my hat off, which he took no
notice of. I then told him the action of the sentry's
firing on the woman, and begged the sentry might be
confined till the affair should be inquired into ; he
told me that he would not, and that the sentries had
particular orders to fire on all women who attempted
to pass the sentries, as well as soldiers. I observed
it must be some mistake ; he replied it was none of
his business, they were his orders, and I must seek
redress somewhere else, and we parted.
" From the position of the sentry at the time he
fired, were not passengers on the road exposed to the
shot ? "
" Most undoubtedly."
" Was any report of this transaction made to Colo-
nel Henley ? "
" Not that I know of."
The next occurrence which was inquired into, took
place on the 16th of December.
John Fleming, sergeant of the forty-seventh regi-
ment. On or about the 16th of December, I was at
the door with a number of the sergeants of the office,
to apply for passes. I mistook Colonel Henley for
Mr. Keith, the Deputy Adjutant General, and saluting
him, was just going to address him, when Colonel
Henley extended his arm, with his fist clinched, and
exclaimed, " You rascal, I '11 make damnation fly out
of you, and I will myself one of these nights go the
rounds, and if I hear the least word or noise in your
barrack, I '11 pour shot amongst you, and make flames
of hell jump out of you, and turn your barracks inside
COLONEL HENLEY. 83
out ; ye are all a parcel of rascals." In the discourse
he said if he was a sentry, and a British soldier looked
sulky at him, he would blow his brains out.
" Was there anything that brought on this dis-
course on your parts ? "
" Nothing."
" Did Colonel Henley mention no circumstance
which could account for such violent expressions ? "
" After being asked by me whether anything was
amiss, he said there was, for that the last night one
of his sentries had been knocked down by some of
our people ; he moderated his passion, and a very
few words passed afterwards."
After the testimony was in, General Burgoyne pro-
posed to address the court upon the facts as proved.
To this the judge advocate interposed an objection.
He contended, that in courts martial there was no
prosecutor but the judge advocate. There had been
instances of counsel being allowed a prisoner, but not
against him. Still, if Colonel Henley had no objec-
tion, and the court conceded it as an indulgence, he
should acquiesce.
General Burgoyne expressed surprise at the judge
advocate's exception being made so late in the cause ;
he thought it more particularly extraordinary, as the
general had not only stated his idea of the mode of
proceeding at the first, in which the judge advocate
had acquiesced, but at the last meeting it had been
fully discussed in open court between them, and the
judge advocate had agreed to his right, both of apply-
ing the evidence upon the charge, and also of reply-
ing to the defence, provided the judge advocate had
84 AMERICAN TRIALS.
the closing of the whole. He averred that, had the
court declared against this claim in the beginning, or
could he have expected such objection, he should
have examined the witnesses in a very different man-
ner, in order to bring several matters more fully and
pointedly before the court, than he thought necessary
to do upon the supposition of a future occasion, to
explain the reasons of his questions, and by deduction
and inference to make the application. The general
nevertheless proposed that the principle upon which
he spoke should lie dormant to avoid trouble to the
court ; that he had his own opinion upon the right,
the judge advocate might retain his upon the indul-
gence, and provided nothing concerning the matter
was entered upon the proceedings, he should make
use of the power without further question.
Colonel Henley. Mr. president, and gentlemen of
the court ; I have no objection to General Burgoyne's
making use of all the rhetoric in his power against me ;
I stand on such firm ground, I can safely trust my
reputation in your hands, against every effort of my
prosecutor to ruin me.
The court, after consultation, informed General
Burgoyne that he might proceed, and he addressed
them as follows.
Mr. President, and Gentlemen of the Court :
It being now admitted, that in closing the evidence
I may offer such arguments as to me shall seem pro-
per, in support of the charge, and reserving to myself
a claim of replying to the defence, I shall enter upon
COLONEL HENLEY. 85
the first part of the very painful, though by no means
difficult undertaking painful, because I cannot pur-
sue the offender without setting that offender in points
of view, at which every benignant mind must shud-
dereasy in every other respect is the task, because
I will venture to pronounce the evidence, when ar-
ranged and adjusted, will amount to such a mass of
proof as cannot be overthrown, and will authorize
and call for the strongest terms I can use, in my de-
mand of public justice. And, gentlemen, let me be
permitted to assume to myself applause rather than
blame, that the evidence has not been laid before
you in a regular series ; the reason was, that though
assured by the reports made to me, that the evidence
would produce conviction upon the whole, I was ig-
norant how the testimony of the particular witnesses
would apply, and point to the progression of the
charges, because I had no previous intercourse with
them. I declare, upon my solemn word and honor,
that I had no concern or communication, directly or
indirectly, with any noncommissioned officer or sol-
dier who has appeared at your bar, one only excepted,
namely, Sergeant Fleming, of the forty-seventh regi-
ment, who has deposed to the salutation Colonel Hen-
ley gave him and his comrades at the Adjutant Gener-
al's office ; the whole matter appeared so very improba-
ble, that I not only sent for the sergeant, to warn him
of the sacredness of an oath, and the crime of intem-
perate zeal that led to bearing false witness ; but also
I thought it my duty to inquire minutely into his
character. I found the man firm and uniform in as-
86 AMERICAN TRIALS.
serting his facts ; and I found his officers unanimous
in supporting the credit of his veracity.
In every other circumstance I adhered religiously
to the determination I had taken, of secluding my-
self from the witnesses, not only to guard my char-
acter, in this region of suspicion and aspersion, against
the supposition of unfair practices ; I besides had
a scruple of trusting my own mind with too hasty
prepossessions in a cause where, with the solemn mat-
ter of a public nature, is involved the fate of a gen-
tleman, high in his military station, and to judge by
the apparent signs of good wishes on this day, high
in popular esteem.
Thus unprejudiced I came into court. I scorn to
take the slighter matters that might be comprehended
in the general words of the charge, such as personal
incivility to the officers, expressions and actions of
peevishness, haughtiness and disgust. I mean not
to press, that they existed, or if they did, I am de-
sirous that they should pass as faults of temper and
deficiencies of manners, incident to man's nature,
education, and habitual course of life ; and I shall con-
fine my comments, as it is my duty to do, to the testi-
monies of your minutes, and the circumstances relat-
ing to them.
Without departing from this principle, it will be
necessary to take a general view of the state of things
previous to the date of the grievances complained of.
We arrived at Cambridge, passengers through your
country, under the sanction of a truce. In whatever
capacity we had been found in a foreign, and as you
intend, an independent state, we were entitled to a
COLONEL HENLEY. 87
personal protection, by the general and most sacred
laws of custom and reason ; but when, to the pro-
mulgated law of civilization, are added, the unwritten
principles or written only upon the hearts of gen-
erous people honor, respect for the brave, the hos-
pitable wishes that usually press to the relief of the
unfortunate, the stranger, and the defenceless man in
your power, how will our claims multiply upon the
mind ! Sanguine imaginations conceived yet further
motives for kindness ; there were among us men so
vain as to believe, that notwithstanding the separation
between us, the different duties we now maintained,
the prejudices of political zeal, and the animosity of
civil war yet still the conflict over, it might be re-
membered we once were brothers, and the more espe-
cially, as it was impossible, by the convention of Sar-
atoga, that the generality of us should ever oppose
America in arms again.
We were led into these delusive hopes by the very
honorable treatment shown us by General Gates, by
that we received from you, Mr. President, when
you conducted us upon the march, and by that we
afterwards found from the worthy member of the
court near you, who had the immediate command in
this district upon our arrival, and to whom, most hap-
pily for us, the command is now again devolved.
The first symptom we discovered of any uncandid
design, was the mode established for correcting errors
and disturbances in the troops of convention ; men
were taken up, imprisoned and otherwise punished by
the American troops, without any prior reference to
their own officers. I very well know with how much
88 AMERICAN TRIALS.
slight and severe derision my sentiments have been
treated on this subject, but I still insist, that after
taking up men for faults, to have applied to the offi-
cers of the convention troops, in the first instance,
for their punishment, would have been consonant to
every principle of decorum and good policy, not
meaning to deny, that upon any proof of partiality
or connivance, or undue lenity, it then became a pro-
per and indispensable duty of General Heath, to take
the distribution of justice into his own hands. 1
The contrary maxim having been established, let
us examine, in point of time, though the last in the
proceedings, that burst of independency, scurrility
and impiety, from Colonel Henley to the Quarter
Master Sergeants at the Adjutant General's office. It
is not without difficulty I can frame my mouth to read
the words, as they were delivered upon oath, by that
very respectable witness, Sergeant Fleming ; " You
rascals, &c. I'll make damnation fly out of you, and
I will myself, one of these nights, go the rounds, and
if I hear the least word or noise in your barracks, I'll
pour shot amongst you, and make flames of hell jump
out of ye, and turn your barracks inside out."
The court will remember, that when this evidence
was given, it rather excited laughter in some part of
the audience, than any serious condemnation ; this
1 When the British troops first arrived at Cambridge, the officers
wished to have the sole jurisdiction of all offences committed by their
own soldiers. The American commander admitted that the British offi-
cers might command and punish, for the purpose of internal order and
obedience ; hut the exercise of his own command, and the enforcement
of his own orders, when necessary, was a jurisdiction which the British
officers must not expect to exercise. Heath's Memoirs, 136.
COLONEL HENLEY. by
day it seems to make a very different impression the
minds of all around follow me while I contend, that
expressions so wild, so unfit, so unprecedented, from
the mouth of a gentleman, argue the most horrid pas-
sions boiling in the breast the very enthusiasm of
rage and malice. I defy any man to divest himself
of that idea ; it will attend the mind through the
whole course of the proceedings, and cast a shocking
glare over every subsequent transaction, of fore-
thought intention, and bloody resolution.
It is very material to observe, that this demonstra-
tion of Colonel Henley's mind was on or about the
1 6th of December, and it was no longer than till the
19th, before he confirmed, by an overt act, the princi-
ples he had professed. The stabbing of Corporal
Reeves is proved by the evidence of Corporal Bu-
chanan, Alexander Thomson, and Robert Steel. I
shall quote indiscriminately from the testimony of
these witnesses, because though one may recollect a
few short passages or words more than another, there
is not a shadow of contradiction, and I am confident
there never was an instance where truth was laid
before a court by united evidence, more perspicu-
ously.
It has been sworn, that on the morning of the
19th of December, Colonel Henley went to the bar-
racks, on Prospect Hill, to release some British sol-
diers, who were prisoners ; that having paraded them
he read over their crimes, and coming to Reeves, told
him he was confined for insulting a provincial officer.
Reeves made answer, he was sorry for it ; that he
90 AMERICAN TRIALS.
was in liquor, and would not have acted so had he
known him to have been an officer.
I pause here to apply to the feelings of the court,
whether a more decent, proper and satisfactory excuse
could have been conceived what did it draw from
the colonel ? " Had it been me you served so, I
would have run you through the body, you rascal."
Continue the comparison between the language of the
colonel and the corporal : " Sir, I am no rascal, but
a good soldier, and my officers know it ; and I hope
soon to be with General Howe, and fight for my king
and country." What did this produce from the colo-
nel ? " Damn your king and country," and an order
to the guard to run him through the body. Not a
hand nor a heart could be found for the butchery.
The colonel, enraged at the virtuous disobedience of
his men, leaps from his horse, seizes a firelock with a
fixed bayonet, and strikes at the man's heart. I call
upon the gentleman of a learned profession near me,
to inform the court, when he sums up the evidence
at the close of the trial, whether this act would not
constitute malice prepense in law. I mean, that ad-
mitting, for the sake of argument, there had been
such provocation given, as would have justified a man
having an offensive weapon to make use of it instantly,
which would have been only manslaughter, whether
the intermediate act of dismounting a horse, and
taking a firelock from the other, implying time for
recollection, would not have constituted the act of
wilful murder, had the man died. Consider now,
gentlemen, what followed : the brave corporal, in the
instant expectation that his words would cost him his
COLONEL HENLEY. 91
life, persevered, " I don't care, I will stand by my
king and my country till I die ! " The action would
have charmed a brave man ; it would have been a
spell upon his arm, and kept the stroke suspended
beyond the power of witchcraft. What effect had it
upon the colonel ? To provoke a second stab, which
was only diverted by the intervention of the man
next him, who caught hold of the bayonet and threw
it up.
Gentlemen, when I say the perseverance of the
corporal ought rather to have pleased than provoked,
I speak not vaguely or romantically I feel conscious
proof of the truth ; and when I consider the actions of
a Washington when I meet in the field a Gates, an
Arnold, a General Glover, and see them bravely facing
death in support of their principles though I would
shed my last blood upon a different conviction, I can-
not withhold from the enemy the respect due to the
soldier ; and, the immediate conflict over, he robs me
of my anger, and seizes my good will.
Gentlemen, in the different parts of the examina-
tion upon this fact, many questions have been asked
by the prisoner, by the judge advocate, and by the
court, respecting the appearance of the prisoner's
temper. Was he not in a mild mood ? Did he not
seem good-humored ? Mild murder good-humored
murder are phrases, I fancy, will not convey any
clear meaning, till men change their ideas of that
crime ! We hear, it is true, sometimes, as a sort of
proverb, to mark the utmost malignity and treachery,
of a man smiling in your face while he cuts your
throat ; but, I believe, such smiles were never pro-
92 AMERICAN TRIALS.
duced as excuses or extenuation of guilt. These
questions, therefore, as I conceive, can have no ten-
dency but to insinuate, that Colonel Henley's passion
was entirely raised by the immediate provocation he
received. I am ready to join issue upon this argu-
ment, and if the gentleman will rest his cause upon
it, I will relinquish the proof established of Reeves's
decency and consistency, and give him latitude for all
the provocation he can suppose, short of personal
assault, and the necessity of self-defence, which I am
sure will not be pretended. Transpose, if he pleases,
the time when Reeves is proved to have talked about
king Hancock, and bring it back to the instant where
it was attempted to be introduced as a substantial
matter of provocation. He shall add insolence of
gesture to abusive terms, and under all these fictitious
circumstances, I will take the judgment of the court,
whether Colonel Henley, with full powers to imprison,
and to punish by regular, decent, legal proceeding,
has a shadow of justification for making himself, in
his own person, party, judge and executioner.
From the 1 9th of December, the hands of Colonel
Henley were imbrued in blood, till the 5th of Janu-
ary ; but it evidently appears upon your proceedings,
that the influence of his example, and the encourage-
ment of his precepts, failed not to operate. As the
first proof of it, I request the attention of the court
to the testimony of Colonel Lind, concerning the po-
sition of the sentry, which was such as must necessa-
rily affect every passenger upon the public road,
whenever he fired ; and at the same time with a read-
iness to do mischief, so marked, that he took women
COLONEL HENLEY. 93
for his objects, and would not give them lime to turn
round ; he had orders so to do. Let the behavior of
the next sentry, to whom Colonel Lind applied, con-
cerning the ungentlemanlike behavior of the officer,
with his confirmation of the whole proceeding, being
according to order, be combined and compared, and
it must universally strike common sense, that these
were several parts of one determined plan to diffuse
the seeds of discord and fury, in order afterwards to
countenance a general havoc.
But, it may be said, the orders under which the
continental troops acted, were not those of Colonel
Henley, but of a superior. Will that be pleaded ?
Was the position of the sentries to kill or wound
three or four passengers at a shot, the firing upon
women, the refusal of redress to Colonel Lind, with
all the indecent manner and language attending
will these circumstances be alleged to have proceeded
from superior orders ? If so, the excuse, indeed,
becomes more alarming to us. It is not my part, at
this time, to drop a consideration that would lead far
on that subject. I shall only remark, how little the
excuse would benefit Colonel Henley, who would still
remain a cruel agent of (I will use no improper
terms) I will only say, a cruel agent of too hasty
principles.
Colonel Henley has asked, whether complaints
were made to him of the transactions of the 22d. I
believe there were not - but I dare say he will recol-
lect the reason other grievances of the most atro-
cious nature, abuse of officers, and assaults upon their
lives, were preparing to be laid before General Heath :
94 AMERICAN TRIALS.
they were in number, and in time, to have filled up
a much longer interval than between the 19th of De-
cember and the 8th of January, and not brought
before this court, because I understood it to be the
intention of General Heath they should be separately
inquired into. Enough has appeared to show how
the system of persecution was preserved, and I come
now to the transaction of the 8th of January.
Upon a general view of that black day, I am at a
loss where first to carry your observation the field
was extensive, the scenes separate and successive, but
evidently guided by one uniform design. In one
place, a party on the march are stabbing and knock-
ing out the brains of innocent spectators at another,
men, under pretence of a prisoner's escape, are glut-
ting the same bloody purposes upon men not pre-
tended to be concerned in a third, Colonel Henley,
in person (the British officers at the same time being
denied admittance) is running men through the body
with his sword.
The first of these complicated horrors, in point of
time, was the attack first with the bayonet, and after-
wards with the but end of the firelock. I will read
the evidence, without a comment, and I have only
now to remark, it is rather a prepossession in favor of
the continental troops, to suppose that such malicious
treatment could proceed from a general sentiment ;
no body of people are so barbarous, unless instigated,
and now is the time to call upon the learned gentle-
man near me, for another duty of his office, to ex-
pound to the court the principles of law, respecting
accessories and accomplices, and to say whether a
COLONEL HENLEY. 95
man, by order, advice, example, or any other encour-
agement, influencing another to do a mischievous act,
is not particeps criminis, at an hundred miles dis-
tance, as much as if present on the spot.
The stabbing of Wilson follows in course of the
evidence. And it appears as little comment is neces-
sary upon this, as upon the former action, further than
to remark, that in this case, Colonel Henley is found
to be accessory, not upon circumstantial, presumptive
and argumentative, but upon positive proof, for it is
sworn the action was done in his sight ; that he made
no attempt to prevent it, and though it be alleged,
and even admitted, that he was at too great a dis-
tance, yet his giving no reprimand nor check to the
soldiers, upon seeing the act committed, carries as
direct a conviction of approbation and encourage-
ment, as if he had given open applause.
The last act to mark the thirst of blood, is the stab-
bing Corporal Hadley, and following Winks with
threats of the same fate. It would be superfluous to
expatiate upon the strength of the proofs, the concur-
rence of witnesses, that there was no provocation to
this deliberation and wantonness of barbarity. The
intention is so clear, in my opinion, against the pro-
bability of doubt, that I should not touch a moment
upon it, were it not that a very grave application was
made to the court, by the most respectable authority
in it, to consider of the nature of the wounds, as mat-
ters of the greatest importance, and question upon
question was put to the surgeon, in every case, to find
whether they were dangerous or not. Is it possible
that any gentleman can mean to measure the degree
96 AMERICAN TRIALS.
of the crime by the depth of the wound, and to ar-
gue that a man may thrust a weapon into another's
breast with impunity, provided he does not touch a
mortal part ! If this doctrine holds good, you ought
to establish schools of anatomy for the education of
young officers ; the science of dissection should be
added to the skill of the fencing-master, to train the
pupils to that nicety of touch, that can feel to a
hair's breadth between death and life ; a sort of fid-
dlestick dexterity, that can run divisions upon veins
and arteries, and stop short in time and tune to the
thousandth part of a second. Really, gentlemen, I
am not willingly ludicrous upon this subject, but it is
impossible to treat such an argument gravely. I dis-
miss it to my learned neighbor, with one more injunc-
tion to show the court, in law, that where a man
passes a sword with violence at another's breast,
whether the wound is a mere puncture, or goes to
the hilt, the intentional guilt is the same. I have
only one matter further to observe, upon the cross-
questioning of the witnesses. It has perhaps been
wished to insinuate, that at the time of these violent
proceedings, there was cause of apprehension the
armed troops might be surrounded and overcome.
The troops themselves will hardly thank their friends
for that idea ! What, shall it be alleged that the
militia of America, who, animated by their cause,
have been self-taught the use of arms ; that body,
where every man is supposed himself to be a host
shall such soldiers be apprehensive of danger, from
half their number of unarmed, mercenary, ministe-
rial slaves, for such I know they think us ! No, gen-
COLONEL HENLEY. 97
tlemen, I reject with you so injurious a suppositon ; I
give credit to the spirit and force of your militia ;
I do it seriously and upon experience, and it is upon
that credit I found this proposition, that it being im-
possible the officers and soldiers should be induced
to acts of violence, by any apprehension of resistance,
it follows, by the fairest deduction, that either there
was more prevalent malignity than ever appeared
before in the human heart, or that the whole pro-
ceeded from direction, order, and a systematical plan.
Little more, I imagine, need be remarked, to ap-
ply the evidence to the several distinct terms I have
used in the charge. That the whole tenor of Colo-
nel Henley's conduct was heinously criminal, as an
officer, will hardly be disputed, in a country where
the principles of liberty have been so deeply studied.
An army is not to be borne in a free state, but upon
the principle of defence against an outward enemy,
or the protection of the laws. The officer who makes
himself the arbiter of the law, is guilty of the most
shameful perversion of moral duty, and his impunity
would scarcely be thought a very comfortable presage
of the growing liberties of his country.
I have also said, the colonel's behavior was unbe-
coming a man. I will not trifle with the time or
understanding of the court, to enter into definitions
upon this term, nor will I shock the ears of officers,
nor even of the unfortunate person under trial, with
so gross a term as the world in general apply to the
act of assaulting a woman, a priest, or unarmed man,
for they are all exactly in the same predicament. The
sword drawn for such a purpose is no longer the
98 AMERICAN TRIALS.
badge and distinction of a gentleman ; it is degraded
with the implements of the assassin and hangman,
and contracts a stain that can never be wiped away.
Gentlemen, I have now gone through the material
parts of the proceedings ; whether the offences are
resolved into vindictive resentment, or more deep de-
sign, or both, it must still appear wonderful that a
general massacre did not ensue. By the patience and
the discipline of the British soldiers, those horrors
have been avoided ; but whatever the escape may
have been upon our part, it is tenfold more material
on yours. We might, perhaps, for the struggles of
the desperate are hard but, perhaps, we might have
been sacrificed to the last man we should thus have
paid a soldier's debt, which we have often risked ;
our fall would have been revenged, and our memo-
ries attended with pity and honor. But for America,
the transactions would have remained a foul and in-
delible blot in the first page of her new history, nor
would any series of disavowal and penitence, nor
ages of rectitude in government, purity in manners,
inflexible faith, or the whole catalogue of public vir-
tues, have redeemed her in the opinion of mankind. 1
Now, gentlemen, consider the words of the order
under which you sit reform the opinion of the
court of inquiry, and say, whether it is the honor of
Colonel Henley, or the honor of America, by which
your minds ought to be impressed, when they proceed
to judgment in this cause. I close with that consid-
eration, as far as I can impress it upon your breasts.
1 Here, says Anburey, the court was struck with much awe, and seemed
to be impressed with a resolve to act impartially !
COLONEL HENLEY. 99
I trust they are replete and pregnant with justice,
honor, and duty to your profession ; and above all,
with that glorious whig principle, the words of which
are become almost a general motto in this country,
and the genuine substantial practice of which I shall
ever revere in any country, a due sense of the gen-
eral rights of mankind. I trust you have all these
qualities, and in that persuasion, I cannot doubt what
will be the issue of the cause."
Upon the conclusion of this address, the judge ad-
vocate declined making any observations on the evi-
dence, until the witnesses in behalf of Colonel Henley
had been examined. He renewed, in this stage of
the proceedings, his objection to General Burgoyne's
making any remarks upon the evidence, regarding it
as improper, and a dangerous precedent. Colonel
Henley was then called upon to make his defence,
but declined at that time to enter into a detail of his
conduct as connected with the charge. He only re-
quested that the witnesses in his behalf might be
examined ; and stated, that if any remarks in his own
vindication should seem necessary, he would submit
them afterwards.
Major Swasey. I was present with Colonel Hen-
ley, at the guard-house on Prospect Hill, when he
wounded Corporal Reeves. I attended him there
with a design of inquiring into the offences of several
British soldiers, who were confined in the guard-
house. Previous to this step, I had acquainted Colo-
nel Henley with General Heath's orders, which were
to release those prisoners whose crimes were trifling :
100 AMERICAN TRIALS.
those who had insulted any inhabitant and refused
making any atonement for the affront, were to be
sent on board a guard-ship. When we came to the
guard-house, the prisoners were ordered out and
paraded. I examined the charges of each, and find-
ing Buchanan and Reeves, who stood together, were
confined (Buchanan for insulting and striking an in-
habitant, Reeves for insulting an officer,) we passed
these two over as not subjects of releasement. After
learning the other prisoners' offences, Reeves was
called upon to relate how he got into confinement.
He mentioned the circumstances, and closed his nar-
rative by repeating a low and very abusive expression,
which he had made use of to the officer who con-
fined him ; on which I told him he was an imperti-
nent rascal for treating any person with such lan-
guage. He replied he was no more a rascal than I
was, that he was a good soldier. On this I ordered
silence, and threatened if he did not stop his imperti-
nence I would lay him over the head with my whip.
He kept on his talk, and Colonel Henley dismounted
his horse, after bidding the fellow be silent to no
purpose, took a firelock with a bayonet from one of
the guard, and told Reeves if he said another word
he would run him through ; Reeves replied he might
do it, if he pleased ; upon this Colonel Henley made a
lunge at him, and pricked him in the breast. Reeves
continuing his insolent language, Colonel Henley
stepped back and made a motion to cock the firelock,
and told him if he was not silent he would blow
his brains out. One of the British soldiers finding
Reeves was not to be silenced, begged of the colonel
COLONEL HENLEY. 101
to return him to the guard-house. Buchanan and
the other British soldiers begged the colonel not to
take notice of the affair, for Reeves was drunk. On
this Reeves damned them, and said he was not drunk.
He was ordered into the guard-house. I do not re-
member that much swearing passed, nor can I recol-
lect the words of insolence used by Reeves. After
Colonel Henley had pricked him, Reeves said he was
a good soldier, and he would fight for his king and
country as long as he had breath, and hoped that he
should soon be with General Howe, that he might
seek revenge.
" Did it appear to you that Colonel Henley's inten-
tion, in making the pass at Reeves, was to injure or to
frighten him into silence ? "
" Only to silence him ; for had the colonel ex-
tended his arm, he might have run him through with
the bayonet."
General Burgoyne. Did you hear Colonel Hen-
ley order nny of the guard to run Reeves through
the body before he dismounted from his horse ? "
" I did not ; but he might have done it."
" In what position was Colonel Henley when he
made the pass ? "
" He had his right hand on the but of the firelock,
and the left grasping the stock."
" Did you hear Reeves apologize to Colonel Hen-
ley for insulting the officer ? "
" He said he did not know him to be an officer."
" Did you not think Reeves's insolence of language
as much directed to yourself as to Colonel Henley ? "
" It was before the colonel pricked him,"
9*
102 AMERICAN TRIALS.
" By what rule do you judge of insolence of lan-
guage when you do not remember the words ? "
" By the manner."
" Did Reeves throw out any reflections upon Amer-
ica, or the persons concerned in the cause of it ? "
" He did not that I heard."
" Did you consider Reeves's saying he would fight
for his king and country as part of the insolence you
mention ? "
" I did not ; Colonel Henley in reply damned
General Howe, or his king and country, and told him
nobody blamed him for fighting in the cause he had
engaged in."
" Did you see any resistance made, or any mark of
disobedience on the part of Reeves to the colonel's
orders, except his not being silent ? "
" There was no other order given ; Reeves made
no open resistance."
" In going down to the guard-house did Colonel
Henley express satisfaction at having it in his power
to release the British prisoners ? "
He did."
Silas . Wild, captain in the militia. I had com-
mand of the guard on the 19th of December last.
Colonel Henley and Major Swasey came to the guard-
house and inquired what number of prisoners I had
in custody, and ordered them paraded ; they were
accordingly drawn up in a single line, Reeves was on
the right, and Buchanan next to him. The colonel
mildly asked the prisoners why they would get into
difficulties ? I handed the charges against them
to Major Swasey, and as he read over their names
COLONEL HENLEY. 103
and offences, the colonel spoke to each one upon the
subject of his confinement. When he came to
Reeves, he observed to him that he was the lad who
abused the officer down in town. Reeves said he
did not know him to be an officer at the time. Ma-
jor Swasey told him that if he had been the officer,
he should have taken his satisfaction on the spot.
Colonel Henley then told Reeves he was a rascal ;
Reeves replied, " I am no rascal, but a true Briton,
and by God I will stand up for my king and country
till I die." The colonel told him that he was a good
fellow to stand up for his king and country, that he
did not blame him, but he must be silent. Reeves
kept on talking ; the colonel ordered silence, and
turned to Buchanan. The major went on to read
his crime, and Buchanan was making an excuse for
his conduct ; Reeves continued talking and swearing,
and turned round to Buchanan and said, " Damn you,
why don't you stand up for your king and country ? "
Buchanan desired him to be quiet ; Reeves an-
swered, " God damn them all, I '11 stand up for my
king and country while I have life ; if I had my arms
I would soon be with General Howe, and be re-
venged on them." Upon this, Colonel Henley got
from his horse, and took a gun from one of the guard
with a fixed bayonet, and brought it up towards
Reeves's breast, and made a push at him, and said,
" You rascal, if you don't hold your tongue, I will
run the bayonet thiough you." Reeves stepped one
foot back, and said he would stand up for his king
and country, and if you have a mind to kill me you
may. The colonel brought up the piece again, and
104 AMERICAN TRIALS.
Reeves repeating the same words, the colonel ex-
claimed, " God damn your king and country, if you
do not hold your tongue, I will run you through the
body." Buchanan then took hold of the musket,
and Colonel Henley bid him keep his distance. Find-
ing Reeves was not to be quieted, I desired the colo-
nel to recommit him, and he was remanded to the
guard-house. After he was in the guard-house, he
looked out of the window, and kept talking and
swearing while Colonel Henley was addressing the
other prisoners.
" Do you suppose Colonel Henley, in the pass
he made at Reeves, intended to wound or only to
silence him ? "
" Only to silence him. The colonel spake very
mildly till Reeves said, ' God damn them all.' "
" Did Colonel Henley dismiss the rest of the pris-
oners with a mild reproof ? "
He did."
" Did Colonel Henley do all he could to satisfy
the prisoners before he dismissed them ? "
" Yes ; he mildly cautioned them, and told Bu-
chanan he would release him after he had wrote to
the inhabitant who had been abused."
" If Reeves had not stepped back do you think
the bayonet would have gone into his body ? "
" I do not think it would."
General Burgoyne. Is it usual, in the American
service, to silence men by the sword and bayonet ? "
" No, it is not ; but when the temper is raised a
man will do that which at another time he would
not."
COLONEL HENLEY. 105
" Did you hear Colonel Henley order any of the
guard to run Reeves through the body, before he got
from his horse ? "
" I did not hear him ; he might possibly have or-
dered it, but I was very near to him."
Several other witnesses were examined as to the
occurrence at the guard-house, and they represented
the language and conduct of Reeves as most grossly
indecent and insulting to Colonel Henley. It also
appeared that Reeves was then in confinement for
using language to a continental officer, of such an
indecent character, that only one witness ventured to
repeat it. The next occurrences upon which the tes-
timony was offered, were those at Prospect Hill, on
the 7th and 8th of January. 1
Colonel Gerish, of the militia. On the evening
of January 7th, a messenger came to me at Winter
Hill, where my regiment is posted, and acquainted
me that a sentry had been knocked down on his
post, and his gun taken from him. In consequence
of this report, I ordered the regiment out, and de-
tached two hundred men, with two captains, as a
reinforcement to the guard at the French lines on
Prospect Hill, with orders to march silently and sur-
round the first row of barracks, where I supposed the
gun was carried in. I accompanied the detachment.
The party was in two divisions, one under Captain
Huse, the other under Captain Kimball. I left the
party under Captain Huse in front of the first row of
1 The precise order in which the witnesses testified is not followed in
the text, but the testimony is arranged according to the time of the
events related, in order to give a clearer idea of the facts.
106 AMERICAN TRIALS.
barracks, and then Captain Kimball (who had mis-
taken my first orders, and got to a wrong situation,)
to join Captain Huse ; while Captain Kimball marched
to make the junction, I was left a little behind in
front of the second row of barracks. A British soldier
came out and said to me, " Damn you, what do you
come here for, we have done you no hurt in these
barracks ; we have got arms and we will shoot you."
I then thought the sentry's gun might be in that bar-
rack, and called for a sergeant and a dozen men ;
they came up, then the British soldiers came to the
door of the barrack and presented a weapon out, (I
thought it had been a musket, though I afterwards
found it had only been a club,) and said, " God
damn you, we'll shoot ye." I then ordered my
small party to fire upon them, but upon the party's
cocking, I re-called the order, as the British soldiers
in the room might not all be guilty, and some of my
own men might be endangered, who were in the rear
of the barrack. We then approached close to the
door, and found that they were not guns which the
soldiers in the room had in their hands. One of
them, as we approached, made a stroke at us with a
stick, but did not hit either of us ; as he was making
another pass I struck him down, and we entered the
barrack, and took five or six of those in the room,
and sent them off to the main guard. I then got a
candle and searched the room, found no arms, but a
number of hickory sticks, shorter and stouter than
walking sticks. When the search was over, one of
the British soldiers catched at the candle and put it
out, and followed us to the other barrack, where he
COLONEL HENLEY. 107
was insolent and saucy, and I thought proper to send
him to the guard-house. I then gave orders to the
British soldiers that they should not leave the bar-
racks till the barracks were searched, telling them
they should not be molested by my men. I then
searched the barracks where I supposed the gun was
carried in. They were loth the barracks should be
searched, and refused giving me any direct answers ;
they were insolent and kept damning of us. Several
of them called us damned rebels and yankees several
times ; this gave me strong reasons of suspicion that
the gun was secreted among them, and I therefore
thought proper to send the greater part of those in
that room to the main guard. I then went on, and
searched several rooms in the same row of barracks,
and met with no opposition or insult. Finding the
search fruitless, I returned with my detachment to
Winter Hill, except a party I left to reinforce the
guard at the French lines.
Colonel Henley. Did you receive any orders
from me whatever, that evening ?
" No ; I made report of the transaction to you
next morning."
General Burgoyne. Were you distinguished from
the men by any mark that could designate you to be
an officer of rank ?
" I had on a blanket-coat, and sword slung over it,
with a firelock in my hand, and it was dark."
Colonel Eleazer Brooks. On the morning of
January 8th, I made a report to Colonel Henley, to
the best of my remembrance in the following words :
" Sir, before I make my report as an officer of the
108 AMERICAN TRIALS.
day, (yesterday) I thought it my duty to inform you
that one of your sentries was last night knocked
down, and his gun taken from him ; that Colonel
Gerish, in attempting to recover the gun, was resisted
with clubs, &c. That about twenty of the British
soldiers were confined for this affair. I am this mo-
ment informed that two of our men were killed last
night ; whether it be true or not, I can't say."
Colonel Henley. Had you orders to get your reg-
iment under arms ?
" The regiment were, I believe, got under arms
immediately, and soon after dismissed ; but I was not
with them."
Captain Caleb Brooks. On the 8th of January
I was the captain of the guard on Prospect Hill, and
had in custody twenty-nine British soldiers. About
II o'clock, Colonel Henley and Major Swasey came
up to the guard-house, and after some inquiries, and
my reporting that everything was very quiet, Colonel
Henley told me that a reinforcement was coming up,
and he thought it would be best to take the prisoners
out of the guard-house, and send them to Cambridge,
where an inquiry could best be made into their
crimes. We went into the guard-house together,
and presently the detachment came into the citadel,
and formed about four rods from the guard-house.
At this time I saw a large number of British soldiers
collecting near a corner of the guard -house. I went,
with Colonel Henley's orders, to bid them disperse
and retire to their barracks ; he ordered them two or
three times ; finding they would not obey him, he
called twelve men from the detachment. After some
COLONEL HENLEY. 109
time the twelve men moved from the party, upon
which the British soldiers gave a shout and dispersed,
going off towards their barracks. Immediately on
this, a man came up and told Colonel Henley that a
prisoner had been rescued from him by the British
soldiers. Colonel Henley on this said he would take
the command himself ; and then marched the detach-
ment out of the citadel, and paraded them in the rear
of the barracks in the fort. I know of no transac-
tions while the detachment were in the fort, for as
captain of the main guard I could not quit my post
at such a time.
" What was the number of British soldiers who
were assembled near the corner of the guard
house ? "
" I believe near three hundred, and more were
collecting when they dispersed."
" Was there any insult offered to Colonel Henley
by the British soldiers ? "
" Not personally to Colonel Henley ; but they
were laughing and jeering at the guard ; some of
them cried out ' Yankees,' but I can't be particular in
their expressions."
General Burgoyne. Was there any appearance
of an assault on the part of the British soldiers ?
" No ; they appeared to me rather with a view of
insulting than assaulting the guard ; they pointed at
and laughed at the guard ; they were talking, but I
did not hear their expressions ; there was a breast-
work between the British soldiers and the detach-
ment, over which they were looking at the detach-
ment."
VOL. II. 10
110 AMERICAN TRIALS.
" Had the British soldiers any weapons in their
hands ? "
" Not that I saw."
Major Swasey. On the morning of the 8th of
January I was accompanying Colonel Henley to
Prospect Hill. At the bridge on the road to Pros-
pect Hill, the sentry was examining a pass showed
him by Corporal Buchanan. Colonel Henley sus-
pecting the pass might be forged, ordered Buchanan
to show it to him ; with much reluctance he gave it
to Colonel Henley ; the name of another man in-
serted in it. In consequence of this discovery, Colo-
nel Henley ordered a file of men to take charge of
him. As there had been frequent rescues before,
Colonel Henley ordered the guard, in case any British
soldiers should attempt to rescue him out of their
hands, to fire upon them. I then went on with
Colonel Henley to the guard-house on Prospect
Hill. Soon after we got upon the hill, a detach-
ment, which had been ordered up to take charge
of some prisoners in the main guard, arrived ; after
the detachment had paraded near the guard-house,
a large body of British soldiers appeared near
the breast- work, who were ordered to their bar-
rack by an officer, and then by Colonel Henley ; they
appeared to move slowly off. At this time I stepped
up to the breast-work, and observed Buchanan com-
ing up with the guard ; the guard had got into a
crowd of British soldiers, and I observed a British
soldier hold of the skirts of the coat of one of the
guard, and heard some amongst the crowd cry out,
" Run, damn you, run," and saw Buchanan running
COLONEL HENLEY. Ill
through the crowd of the British soldiers ; one of the
guard pursuing him with a charged bayonet, was in-
tercepted by the crowd, and I saw no more of Bu-
chanan. Immediately on this Colonel Henley ordered
the whole of the detachment to march out of the
fort, and we went out of the fort together, and Colonel
Henley asked me what measures he should take to
recover Buchanan ? I observed to him the best way
would be to acquaint the British commanding officer
of the day of it, and did not doubt he would give
Buchanan up. Colonel Henley then desired me to wait
on the commanding officer, and acquaint him with
the matter. I accordingly waited on Major Foster,
of the twenty-first regiment, and on acquainting him
with the matter, the major told me he would send
for the adjutant of the regiment and order him con-
fined, and report the matter to the brigadier. In six
or seven minutes I returned to Colonel Henley, and
reported Major Foster's answer, with which he seemed
perfectly satisfied.
" What number of British soldiers were assembled
at the time Buchanan was rescued ? "
" I imagine one hundred and fifty, within a circle
of one hundred yards."
James Hartwell. I was at the guard-house on
Prospect Hill, on the forenoon of the 8th of January,
when Colonel Henley and Major Swasey rode up,
and soon after a detachment came up and were pa-
raded near the guard-house ; at this time a number
of British soldiers made their appearance outside the
breast-work, near the guard-house ; orders were re-
peatedly given to them by the captain of the guard
112 AMERICAN TRIALS.
and by Colonel Henley to disperse, which they paid
little regard to. There were about one hundred at
the breast-work, and more were coming up ; at this
time I saw two or three of our men armed, coming
through the British soldiers. Colonel Henley called
out for a dozen men, upon which the British soldiers
gave a shout and moved towards the barracks, and
on their way rushed between the two or three armed
men before mentioned, and there was a scuffle among
them as they cleared away. I suppose a British sol-
dier, by his clapping his hand near his hip, was
wounded. Colonel Henley soon marched out with
the detachment, and paraded them in the rear of the
barracks ; I followed and stood in the rear of the
guard near the centre. As soon as the detachment
halted, the British soldiers gathered round in front
and rear of the detachment, to the amount of up-
wards of two hundred. On this Colonel Henley or-
dered twelve men on the right to prime and load,
and then wheeled them to the left so as to form an
angle. Colonel Henley then turned towards the
British soldiers, and said that he had had one prisoner
rescued, and if they offered to rescue any more, he
would order his guard to fire upon them. Colonel
Henley asked for Major Swasey, and seeing Colonel
Gerish on horseback, he stepped up to him ; two or
three British soldiers followed him, and stood at two
or three yards distance, listening (to appearance) to
what was said by Colonel Henley and Colonel Ger-
ish. Colonel Henley then ordered a division from
the left of the detachment to go into the citadel
and bring out some prisoners ; they marched off
COLONEL HENLEY. 113
accordingly, and were about one fourth of the whole
detachment. Colonel Henley then disposed his men
to receive the prisoners which might be brought ; by
this time the British soldiers had collected in such
numbers, that the colonel had hardly room to pass in
front of his guard. Colonel Henley then addressed
the British soldiers, and ordered them to disperse and
go to their barracks. Some few turned round ; Co-
lonel Henley repeated his orders, and said, " Begone
to your barracks, every one of you ; " some others
then turned round and moved slowly. Colonel Hen-
ley, on their moving slowly, cried, " God damn you,
why don't you move," and made a lunge with his
sword at a British soldier, which I imagine struck
him, as I observed the sword was bent, and saw the
colonel endeavor to straighten it. They then moved
off, and the men returned from the guard-house with
the British prisoners, and the whole detachment
marched off the hill with them.
" Did you hear any British soldier say anything to
Colonel Henley, during any of the time you have
spoken of?"
" I did not ; there was a buzzing amongst them,
but I can't repeat any expression they used."
" Had any of the British soldiers any weapons in
their hands ? "
" Not that I saw."
" Did you observe any circumstance to prevent
Colonel Henley from taking any of the British sol-
diers prisoners, had he thought proper ? "
" He might have taken the man prisoner whom he
struck at with the sword."
10*
114 AMERICAN TRIALS.
" Might he not have taken any other man pris-
oner ? "
" He might have taken a single man ; it might
have been dangerous taking more."
" Was the man Colonel Henley made the lunge at
moving off at the time ? "
" I think he was not ; he stood with his face
towards the guard, at the distance of a yard or
two."
" What did Colonel Henley do after making the
lunge you have mentioned ? "
" He turned round and walked in the front of his
guard towards the right, and spoke to a British sol-
dier, who was walking very slowly in front of the
guard, and bid him go along immediately ; he re-
peated the order ; the soldier did not in the least
quicken his pace ; Colonel Henley followed him a
little way, and then turned round ; the British sol-
dier attempted to pass the sergeant, who stood on
the right of the guard ; the sergeant pushed him off
the bank."
" Did you see Colonel Henley make a pass at this
last soldier you have mentioned ? "
" I did not."
" Did you hear him make use of any other words
besides what you have related ? "
" I do not recollect any other."
Asa Peirce, of the militia. On the 8th of Janu-
ary, in the forenoon, orders came to the sergeant of
our guard, to furnish a file of men and a corporal to
take charge of a British soldier, of which I was one ;
we took him at the bridge, just below the provision
COLONEL HENLEt. 115
house. Colonel Henley, when we took charge of the
prisoner, was by, and gave us orders if any man
attempted to rescue him to fire upon them. We
marched on with him (his name was Buchanan) ; he
told us he had done nothing more than having a pass
that was not his own, that he should not be punished,
and that one of us would be sufficient to guard him.
Just as we got within the works behind the barracks,
where there was a considerable number of British
soldiers collected, a British soldier came up to us
upon the run ; I told him to keep off; he muttered
something, and told me if I did not mind he would
take my firelock from me. Our corporal told him if
he did not mind how he talked he would take care
of him. On this he stepped aside, and walked along
with us, talking with Buchanan upon the subject of
his confinement ; as we went along we came up to a
crowd of British soldiers, I should think three or four
hundred of them ; our corporal ordered them to make
way, which they refused to do, and stood so thick
together that we could hardly tell which the prisoner
was. The prisoner stepped out and another British
soldier stepped in, took hold of Buchanan's arm, and
placed himself between me and Buchanan, who went
off with the crowd ; our corporal turning round and
seeing Buchanan gone, stepped in among the British
soldiers to recover Buchanan. The same British sol-
dier who had taken hold of Buchanan's arm, took
hold of the corporal and stopped him ; upon this I
brought my piece down and pricked the soldier who
had hold of the corporal, between the hip and the
ribs. The soldier then let go the corporal's arm, and
116 AMERICAN TRIALS.
we marched on to the main guard without our pris-
oner.
" Did the British soldiers refuse, by words or ac-
tions, to make way for the guard to pass ? "
" By actions ; I mean they did not move out of
the way ; they talked, but I don't recollect what they
said."
" After Buchanan had escaped from the guard, did
the British soldiers show any marks of triumph ? "
" Yes ; they laughed and huzzaed a good deal."
" Do you know the name of the person whom you
pricked ? "
" I do not."
" Do you think you run the British soldier into the
body ? "
" I imagine I did, for I pushed with a good will,
and he cried out, ' God damn you.' "
Other witnesses were introduced to show that the
American sentries had been frequently knocked down
on their posts by the prisoners ; and soldiers who
were arrested were frequently rescued. It also ap-
peared that it was common for the British soldiers to
use every possible term of insult towards the American
soldiers while on duty, and sometimes even to the offi-
cers. On one occasion an American lieutenant made
known to the British officers the circumstances of an
insult and rescue, of a very aggravated character.
The guilty party was afterwards tried by a British
regimental court martial, and sentenced to receive
fifty lashes ; but the sentence was remitted, and the
man set at liberty, and no satisfaction was given to
the American officer who had made complaint. The
COLONEL HENLEY. 117
standing orders from Colonel Henley to the main
guard, (dated December 23, 1778,) were as follows.
" The guards are to be vigilant and alert, and do
their utmost to prevent disorder, and keep peace,
ever attentive to the security of the camp. No officer
or soldier shall be allowed to stroll from the guards.
No offence to be given to any officer or soldier of
General Burgoyne's army, nor is any to be received
from them by the officers and soldiers of the United
States of America ; but they are to take up and con-
fine any that offer the least abuse, and report them
to the commanding officer. The officer commanding
the guard will give orders to the sentries, that they are
to defend barracks, fences, and all property whatsoever
belonging to the army, or to any of the inhabitants of
the United States. When any insurrection of the
the prisoners shall appear to be of consequence, the
commanding officer at Cambridge, is to have due no-
tice thereof."
The evidence on the part of the prisoner being all
in, General Burgoyne examined two witnesses to in-
validate some of the testimony in the defence, respect-
ing Corporal Reeves. He then produced three offi-
cers of the British army, to show that prosecutors
had been admitted, assistant to the judge advocate.
Captain England, of the grenadiers, stated " on his
honor," that in the month of August, 1774, he was
member of a general court martial, at New York,
whereof the late Brigadier General Nesbitt was presi-
dent, that Captain Adye, of the royal artillery was
judge advocate to the court martial ; that the Rev.
Mr. Newburgh, chaplain to the eighteenth regiment,
118 . AMERICAN TRIALS.
was tried by the court martial for various offences,
and prosecuted by Captain Chapman, of the same
regiment, and in the name of the regiment ; that
after the witnesses against and for the prisoner were
examined, the prisoner made a defence, to which
Captain Chapman, the prosecutor, made a reply, in
which he commented and remarked upon the prison-
er's evidence and defence, having being allowed a
certain time to prepare his reply. Captain Willoe,
of the king's regiment, stated on his honor, that
Lieutenant Molesworth, of the fifty-second regiment,
was tried by a general court martial, of which he
was a member, at Quebec, in the year 1769. After
the prisoner had made his defence, Lieutenant Wil-
liamson, who prosecuted, replied and remarked upon
the evidence produced by Mr. Molesworth. Lieu-
tenant Bibby, of the twenty-fourth regiment, stated
on his honor, that in the trial of Captain Garsten, of
the seventeenth dragoons, in Dublin, in the year
1771, Major Birch appeared as prosecutor, and it
being objected at first by the prisoner, that the pros-
ecutor should have the assistance of counsel, it was
the opinion of the court, that both the prisoner and
prosecutor should, if they thought proper, have coun-
sel to prompt and assist them, but not to plead ; the
judge advocate upon this trial was an attorney ; Ma-
jor Birch, acted through the whole course of trial, as
prosecutor.
Tudor, judge advocate, upon this point addressed
the court as follows :
Mr. President, and Gentlemen of the Court :
This, in common with all courts of record, un-
COLONEL HENLEY. 119
doubtedly has power to direct its own proceeding,
subject to the articles of war. I do not ground
my objection on anything in those articles, pro-
hibitory of the claim I oppose, but on the customs
which prevail in the American army and the sup-
posed duty of the judge advocate. Those articles
constitute a judge advocate, who, although enjoined
to prosecute in behalf of the government, hath always
been considered in our armies bound to assist the
prisoner, not only in points of law, but by an impar-
tial representation of facts. The whole evidence in
the trial is taken in writing, subject to the inspection
of the court. You cannot, therefore, gentlemen, be
deceived by sophistry, or misled by rhetoric. Plead-
ings for this reason are unnecessary, except on a
point of law, for which the judge advocate is pre-
sumed to be competent ; and unbiased by the tenure
of his office.
I do not oppose these precedents because they are
British ; had they been from Portugal or Turkey, and
been pertinent and reasonable, they ought to influ-
ence your determination ; although the instance men-
tioned by Lieutenant Bibby, is rather against the
general, considered in the latitude to which he aims
to extend his claim. The articles of war which gov-
ern the British army, are extracted from the Roman
code of civil law ; and ours are nearly the same with
those adopted by the British mutiny act.
The trials by courts martial are designed to be
simple, speedy, and decisive. The soldier's duty is
clearly prescribed, and the punishment for neglect of
it plainly ascertained, by the articles which give juris-
120 AMERICAN TRIALS.
diction to the court that are to inquire into and pun-
ish delinquency. The judge advocate acts in the
double capacity of prosecutor and counsel to the pris-
oner, which, those who are acquainted with the pro-
ceedings of military courts, will allow not to be in-
consistent duties. The office of judge advocate has
been considered by some in an army, the same as
that of attorney general in the courts of criminal
jurisdiction at common law, but I can safely appeal
to your decision, gentlemen, if I am wrong as to the
duty of that officer in our army, as I have laid it
down.
The altercations of the bar in the courts of com-
mon law, arise from a combination of rights in free
society, which are unknown in an army. A man
when he commences a soldier, makes a temporary
relinquishment of the privileges of a citizen. If a
prosecutor, (and in this case a very able one) is ad-
mitted in addition to the judge advocate, surely it
would be unreasonable to deny counsel in defence of
the prisoner and then consider, gentlemen, what
would be the consequence. Every man brought be-
fore a court martial would be entitled to the same
indulgence. All the subtleties and delays which pre-
vail at common law would be introduced into courts
martial, infinitely to the public disservice, under the
circumstances which armies, durante bello especially,
ought to be maintained and governed. I submit my
objection to the opinion of the court.
The court was ordered to be cleared, and after
debate, were of opinion, that General Burgoyne
COLONEL HENLEY. 121
should have the liberty of remarking upon the evi-
dence offered by Colonel Henley, and the judge ad-
vocate was directed to acquaint the general with this
determination.
The court then adjourned four days, and at the
the next meeting, Colonel Henley being called upon
to close his defence, replied as follows :
Mr. President, and Gentlemen of the Court :
I have particular reasons, and in my own ap-
prehension very sufficient, for declining to say a
single word in answer to the illiberal abuse thrown
upon me, and the palpable dishonor done to my
country, by General Burgoyne, in this court. It
is, Mr. President, a new thing under the sun,
and taken in all its circumstances, totally with-
out example. The judge advocate will sum up
the evidence with ability and impartiality. Such is
my consciousness of having done nothing through
this whole affair, but what the honor and safety of
my country absolutely required, that I shall rest en-
tirely satisfied with your decision ; being at the same
time fully persuaded, that the impartial public, at
whose bar I stand, will join with you in acquitting
me from all the injurious and illiberal charges of
General Burgoyne, and that they will vindicate me
for that humanity, characteristic of an American
officer, and with which the officers and soldiers of
General Burgoyne's late army have been treated,
while I was honored with the command of the
guards.
The court having decided that General Burgoyne
VOL. II. 11
122 AMERICAN TRIALS.
might reply to Colonel Henley's defence, he addressed
them as follows : '
Mr. President, and Gentlemen of the Court :
On the day of your last adjournment, the judge
advocate notified to me, that the court had agreed I
should reply to Colonel Henley's defence, but had
directed that the reply should be made immediately
after the colonel closed : he added, that all interested
are to attend and come prepared.
I did not judge, from the manner in which the
court have treated rne hitherto, that in any instance
they meant me uncandidly. I therefore suppose, that
when they made it a point I should come prepared
to answer, off hand, arguments which might have
been a month in framing, they saw the evidence
before them in so strong a view, that no argument,
on my part, could be necessary. Did I want further
confidence in this opinion, I could not fail of deriving
it, in a most ample degree, from the conduct of the
prisoner, who has been just now constrained, by his
situation, to substitute invective for argument, and to
recriminate, where it was impossible to defend. Un-
der the sanction of the court, and the circumstances
of the time, this candid gentleman has ventured to
make use of terms to which my ears have not been
accustomed ; but he is mistaken if he thinks to draw
from me an intemperate reply : on the contrary, as
conductor of this prosecution, I have rather to thank
him for his assistance. After having furnished me,
' This address of General Burgoyne's is taken from Anburey's letters.
In the printed trial no part of it is given, and it is stated that " no notes
were taken of this speech."
COLONEL HENLEY. 123
during the whole course of what is called his defence,
with evidence to corroborate the facts alleged against
him, he at last steps forth a volunteer witness (the
most undeniable one sure that ever came before a
court) to prove the heat of his own temper, which is
of itself a material part of his accusation. This re-
mark is the only return I shall at present address to
the prisoner, for the expressions he has used ; but I
cannot quit the subject, without seriously appealing
to the recollection of the court, whether, from the
outset, I did not, in the most positive terms, disavow
all personal resentment, and whether the strongest
language which the course of my duty, as prosecutor,
led me to use, did not invariably arise from the facts,
and apply to the offence more than to the offender.
I make the same appeal against the accusation of
" having done palpable dishonor to the country in this
court." Is it to do palpable dishonor to a country to
appeal to the justice of it ? It puzzles my intellects
to conceive the meaning of this last expression ; but
indeed, sir, I want no other vindication than your
silence, to prove that I have not abused the latitude I
possessed in either case ; for would you, Mr. Presi-
dent, or any member of the court, have suffered a
prosecutor to insult an unhappy man, under trial, with
illiberal abuse ? Still less would you have suffered
the country to be treated opprobriously. It is for
Colonel Henley to reconcile with his respect to the
court, charges, which if founded, would be a general
reflection upon their conduct.
I understand great expectation has been raised of
a very elaborate defence on the part of Colonel Hen-
124 AMERICAN TRIALS.
ley, and acknowledge I myself little thought he would
throw up his cause quite so confessedly, though I
was always sure, that neither ingenuity nor sophistry,
nor all the talents which the ablest counsel could as-
sist him with, would be sufficient to affect the great
leading proposition upon which I ground myself, as
upon an immovable rock, namely that the proofs on
the part of the prosecution do not only remain unim-
peached, but are augmented and enforced in the most
material parts, by the evidence produced in the de-
fence.
Gentlemen, a very few observations will suffice to
justify this assertion. The first part of the charge
which the prisoner brings evidence to oppose, is that
concerning Corporal Reeves, on the 19th of Decem-
ber, and the first evidence is Major Swasey, an officer
of rank and trust in your army, warm in the present
unhappy contest, and naturally impressed with incli-
nations to favor his countryman, his brother officer
and friend. Yet, with all these circumstances to bias
(such is the force of truth and honor upon that gen-
tleman's mind) he proves to be the strongest witness
of the whole trial, on the side of the prosecution.
The beginning of this gentleman's relation is a
confirmation of all the leading circumstances men-
tioned by the other witnesses. The first new matter
of evidence is, that when he, the major, told Reeves
he was a rascal, the corporal made a reply to him
(not to Colonel Henley) he was no more a rascal than
he was, at which he raised his whip, and told him, if
he did not hold his impertinence, he would strike
him. One circumstance of this part of the evidence
COLONEL HENLEY. 125
cannot pass observation, namely that the poor corpo-
ral had two aggressors to answer instead of one. The
word, and the menaces attending that word rascal,
came to his ears on both sides. Another circum-
stance is equally observable, and it stands upon your
proceedings, as a record of honor to Major Swasey,
that his warmth of temper was moved at the recital
of Reeves's offence, to give a sharp rebuke, and to
use an opprobrious expression, but the idea of chas-
tisement went no further than a stroke with a riding-
whip. Happy had it been for the prisoner had he
followed so temperate an example.
The major's narrative proceeds in respect to Colo-
nel Henley's dismounting, catching the firelock and
stabbing Reeves, in conformity to all the witnesses
for the prosecution, except that the circumstance of
ordering one of the guard to run the corporal through
is omitted, and his recollection being called to that
circumstance, by a question in the cross-examination,
he replies, " he did not hear him " (but with a can-
dor and tenderness to his oath which never departs
from him) he adds, " he might have given such an
order and I not hear it."
The foregoing evidence, therefore, is not shaken
by any contradiction, but it is immediately after aug-
mented by an entire new circumstance, namely, that
after the first thrust, upon Reeves's still talking to
Colonel Henley, he stepped back, and made a motion
to cock the firelock, and added, he would blow his
brains out, or words to that effect, when a British
soldier took hold of the firelock and threw it up. I
request the court to take notice, that Major Swasey,
126 AMERICAN TRIALS.
uncalled upon by any leading question, remembers
that act which saved Reeves from a second thrust,
accompanied perhaps with fire. Can any doubt be
now entertained of Colonel Henley's resolution ? I
think I have proof they were obvious to Major Swa-
sey, at the time, by the very remarkable part of the
evidence, " I then got off my horse," (a conduct
worthy his character, expressive of his apprehensions
and his humanity) " and begged Colonel Henley to
send Reeves to the guard-house." The other peti-
tioners joined their intercession, and the man's life at
last was saved.
It may perhaps be objected to this argument, that
Major Swasey, upon being asked, in the cross-exam-
ination, whether he thought Colonel Henley made a
thrust with an intent to injure or to silence the cor-
poral, answers, to silence him ; for if he had pushed
his arm forward, he would have run him through.
And in another place he makes use of the words,
" to still him."
I scorn to insinuate, that a witness of the major's
description meant to keep a salvo upon his mind, and
purposely to use any term .of ambiguity. I upon my
honor believe, that when the major makes use of the
words, to silence or to still, he means to terrify him
till he held his tongue ; but I beg leave to observe,
that great difference might be made in the major's
opinion, between the time the act was committed, and
the time his sentiments are asked in court. The con-
versation with Colonel Henley, the belief of his other
friends, and the candor of his own heart now per-
suaded him, that the colonel's intents were innocent.
COLONEL HENLEY. 127
His own interference and intercession mark his
doubts, at least at the time, and did they not, the
court will hold themselves bound to act upon their
own opinion, formed upon combination and compari-
son of circumstances, and not upon the opinion of
another, which is no evidence. They will also recol-
lect, that this opinion goes only to the first stab, and
is formed upon its not being forcible. It does not
appear that the major formed any opinion, nor indeed
could he, upon what force would have been the
second stab of a man rising in a passion, had it not
been prevented by seizing the bayonet and his inter-
cession.
It is not necessary to trouble the court with a re-
view of any other parts of this upright evidence,
which is long. The answers to the cross questions
in general go to a full confirmation of the narrative,
with this one addition and aggravation of Colonel
Henley's conduct, that the major thinks the language
of Reeves was addressed more to himself than the
colonel, till after the stab.
Captain Wild, of the militia, is the next witness,
and confirms the excuse of Reeves, and every other
circumstance in the beginning of the affair, as stated
by the former witnesses, and by Major Swasey, ex-
cept the small difference that Colonel Henley, not
Major Swasey, first made use of the word rascal.
He mentions afterwards another new circumstance,
that the prior witness had forgot, namely, Reeves
turning to Buchanan, and damning him, saying, " why
don't you stand up for your king and country."
Buchanan desired him to be still. Reeves replied,
128 AMERICAN TRIALS.
" God damn them all, I'll stand up for my king and
country while I have life ; if I had arms and ammu-
nition I would soon be with General Howe and be
revenged." He afterwards relates, in a very circum-
stantial manner, making the push at Reeves ; Reeves
stepped back one foot, but the bayonet pricked him ;
and the lifting up the piece a second time, and Bu-
chanan seizing it and turning it aside.
Upon the cross-questioning, the witness gives nearly
the same answers as Major Swasey, upon the matter
of opinion of Colonel Henley's intention, and of not
hearing Colonel Henley order a man of the guard to
run Reeves through, before he dismounted, but re-
peating the first, the manner in which this gentleman
expresses himself is remarkable : " I believe you only
meant to silence him, as you spoke mildly, till Reeves
said, < God damn them all.' " That Captain Wild
thought the colonel was in a passion afterwards, is
clear from his answer to the question, whether it is
a rule in the continental service, to silence men by
the bayonet or sword ; when he replied, " it is not,
but when a man's temper is raised, he is apt to do
things he would not at other times."
I cannot quit this evidence, without classing it with
Major Swasey's, and while it does honor to the wit-
ness, in point of truth and candor, it is to be re-
marked, that it is also exceedingly circumstantial, new
and leading circumstances are remembered, none for-
got, except the order to the guard, and the court will
see, by-and-by, why I so solicit their attention to these
remarks.
The witnesses that follow are indeed of a very dif-
COLONEL HENLEY. 129
ferent sort ; the court will recollect the appearance of
the first, Corporal Dean ; he told his story very flu-
ently, with that remarkable new incident of provoca-
tion in Corporal Reeves, who, he swears positively,
said to Colonel Henley, " if I am a rascal, you are a
damned rascal ; " but after all this fluency and recol-
lection, upon his cross-questioning, neither encourage-
ment, nor admonition, nor patience, nor leading ques-
tion, could draw an answer that any man could un-
derstand ; and particularly the court will remember
his silence and his countenance, when pressed to de-
clare his sentiments upon the obligation of an oath ;
I will not be so uncandid as positively to pronounce
upon guilt from appearance, but it is the great value
of parol evidence, that a court may see the manner,
and thence form a judgment upon the credibility of a
witness. From what probable cause did the confu-
sion of this man arise ? It was not the awe of the
court ; and it is fair to suppose it is a weakness of
understanding ; consequently he was a fit subject to
be tutored, and if not wilfully perjured, led into a
belief of more than he actually saw and heard.
He is followed by a string of the best-instructed
young men that ever related a story in public Elijah
Horton, Silas Moss, James Brazer, Wedsworth Hor-
ton, and John Beny, most of them lads of sixteen
years of age.
I need not recall to the court the precision of the
recital of these youths, nor the manner of their de-
livery. It was the exact tone and repetition of a fa-
ble at school, and so well was the lesson got by heart,
that there was not a single difference in the arrange-
130 AMERICAN TRIALS.
ment, and scarce a syllable misplaced. But it is not
only in the similitude of memory these youths are
extraordinary, they are equally remarkable in the pre-
cision of their forgetfulness, with a recollection so
acute, as to repeat verbatim a long story of Corporal
Reeves, and the marked expression damned rascal
to Colonel Henley ; not one syllable was heard by
any British witness, nor by those attentive, circum-
stantial, respectable witnesses Major Swasey and
Captain Wild ; not one of the whole five can remem-
ber a word or circumstance respecting the colonel's
damning Reeves's king and country, attempting a
second pass, and being prevented by Buchanan's seiz-
ing the firelock ; to all of which all the other wit-
nesses have positively sworn. Upon the whole, I
contend, that no contradiction of witnesses could in-
validate their testimony more than such an exact con-
formity in circumstances, sentences and words, when
it was for the purpose of five persons to recollect the
same story, and an equal conformity in the want of
recollection in circumstances, that must indispensably
have been as manifest to their observation, as to that
of any other witness.
I owe an apology to the court for having dwelt
upon the invalidation of these witnesses longer than
was necessary ; for the weakness of their instructor,
whoever he has been, has counteracted his wicked-
ness, and it would do no harm to this prosecution, to
give a full scope to their testimony, because there is
no maxim in law more clearly laid down, and more
generally understood, than that no affront by words
or gestures only is a sufficient provocation, so as to
COLONEL HENLEY. 131
excuse or extenuate such acts of violence as mani-
festly endanger the life of another.
The next matter to which the witnesses in defence
have gone, is the stabbing of Traggot on the 8th of
January, and there likewise their testimony has served
to aggravate, instead of contradicting the charge.
Sergeant Kettle, in particular, expressly says, he
thought the soldiers deserved stabbing, as they would
not get out of the way ; and in another place, that
laughing and sneering as it were (which he acknow-
ledges was the only provocation) was sufficient to
justify stabbing.
I shall give the court no trouble upon the evidence
brought to prove the provocation of a rescue ; the
escape of Buchanan was not heard without a smile
in court, nor can it be seriously commented on, ex-
cept in the answer of Asa Pierce, a lad of sixteen,
to the judge advocate, who asked him whether he
thought he run the British soldier into the body :
" I believe I did," says he, triumphantly, " I pushed
as hard as I could, and with a good will ; he cried
out ' God damn you.' " This is but one of several
instances that might be selected from these proceed-
ings, to show the degree of rancor to which the minds
of the American soldiers were excited. Children
that had scarcely lost the taste of their mother's milk,
acquired a thirst for blood, among those from whom
they took the example ; the colonel thinks a man de-
serves death if he looks sulky ; the sergeant thinks
the same if he smiles. Good God ! What is the
value of a British life, at such a time, in such hands ?
In a former part of these proceedings, I expressed
132 AMERICAN TRIALS.
my desire that the judge advocate would explain to
the court the established principles of law, respect-
ing absent persons being accessories to offences which
they have in any manner influenced, and almost
every sentence that has fallen from the last witness
upon the affair of Traggot, is a new call to press the
consideration of those principles. I am persuaded
the learned gentleman will not contradict me, in the
few more leading propositions I shall add to those I
mentioned on a former occasion : first, " any man
advising, influencing, or countenancing another, be it
by words, reward or example, to do mischief, is an
accessory at a distance. Secondly : Though mis-
chief is committed by different means than those pro-
posed between instigator and perpetrator ; for instance,
A persuades B to poison C, he kills him by any
other means, A is accessory. Thirdly : When the
principal goes beyond the term of solicitation, if in
the event the mischief committed was a probable con-
sequence of what was ordered or advised, the person
giving such orders or advice will be accessory.
Apply the above maxims : Colonel Henley di-
rects his men only to knock down any British soldier,
who they think looks sulky at them (you have seen
that he often thought a much greater punishment was
due for such a crime as a sulky look) but we will
suppose, he only orders them to knock a man down,
or to prick him or still him, and a soldier fires down
a common road, sticks his bayonet into one, and
strikes at the brains of another with the but of his
firelock, Colonel Henley is a party to the mischief,
whatever it may be, and upon a continuation of the
COLONEL HENLEY. 133
principle laid down before, " the advice, orders or
influence, are flagitious on the part of A the events
falling out beyond his original intention, are in the
ordinary course of things the probable consequence
of what B does under the influence, and at the in-
stigation of A ; and therefore in the justice of the
law, he is answerable for them.
So much, sir, for the enormities committed under
the orders, influence, encouragement and example of
Colonel Henley, when he was not present ; as for the
rest, it is needless for me to follow the witnesses
brought by the colonel through all the parts, wherein
they severally and distinctly confirm the former evi-
dence, upon the charges respecting the attempt upon
Wilson in the colonel's sight, and of the stabbing
Hadley with his own hands. I shall only remark one
very striking circumstance, a little previous to the
latter fact, which came out upon the second examina-
tion of that very honorable and sensible gentleman,
Major Swasey. After Buchanan had run away, Colo-
nel Henley (having first ordered some men to load,
and put himself at the head of the whole detachment)
asked Major Swasey what method he thought they
should take to recover Buchanan : the major said " the
best way would be to acquaint the British command-
ing officer on the hill, and he made no doubt but he
would give him up immediately." The major went
with a message from Colonel Henley to Major Foster,
the British officer then commanding, who ordered the
man to be sought for and confined. I state this cir-
cumstance to show, not only what was the proper and
ready method of avoiding differences and ill blood in
VOL. II- 12
134 AMERICAN TRIALS.
fact, but also to show that this method was proper in
the judgment of your own temperate officers. The
major proceeds to say, that Colonel Henley appeared
perfectly satisfied with the answer he brought from
Major Foster, but it is well woithy remark, that the
violent act of stabbing Hadley, was committed in the
interim of Major Swasey's leaving Colonel Henley
and his return.
The whole stress of the evidence upon the defence
I have not remarked upon, goes to one single point,
namely, to prove provocation. I have admitted that
a sentry was knocked down, as I readily admit every
slighter provocation alleged, and shall not give a mo-
ment's trouble to the court, in addition to what I
argued and quoted in a former part of the proceed-
ings upon this subject, from undeniable authority of
law. I assume it to be undeniable, because I under-
stand, gentlemen, that the criminal and common law
of England, as well as a great part of the statute law,
are, notwithstanding your present separation, in force
and practice in your government, and that your arti-
cles of war are almost transcripts from ours. The
maxims then, to which I have alluded, will hold
equally good in martial and other judicatures.
I have only, sir, to revert to the leading proposi-
tion, and affirm that the charges are proved in the
fullest manner, even by the prisoner's witnesses. It
is not for me to suggest an opinion upon the nature
of punishment. I scorn the idea of feeling joy from
the most rigorous sentence ; and the most perfect
acquittal would not harm me further, than that such
an example might continue the insecurity of the
COLONEL HENLEY. 135
troops. Inflexible and impartial justice, and rigid
discipline, are the vital principles upon which a re-
public rises to maturity, and establishes itself in re-
spect and fame. Should the court, upon due reflec-
tion, find these principles reconcilable with lenity in
the present case, and the great tribunal of the world
be of a contrary judgment this cause cannot be said
to have miscarried.
As to the displeasure which this prosecution may
bring upon me, I fear, in the present temper of this
part of the country, it is not to be avoided. I stand
in this circle, at best an unpopular, with the sanguine
enemies of Britain, perhaps an obnoxious character.
This situation, though disagreeable, does not make
me miserable. I wrap myself in the integrity of my
intentions, and can look round me with a smile. Im-
placable hatred is a scarce weed in every soil, and
soon is overcome and lost, under the fairer and more
abundant growth of cultivated humanity. To the
multitude who only regard me with the transient
anger that political opinions and the occurrences of
the time occasion, I retain not a thought of resent-
ment, because I know the disposition and hour will
come, when steadiness of principle, that favorite char-
acteristic in America, will recommend me amongst
my worst enemies : as Christians I trust they will for-
give me ; in spite of prejudice I know they will re-
spect me.
But from the present resentful sentiments of this
audience, should I carry my apprehension further,
and suppose it possible that misapprehension or mis-
representation of my conduct, should operate upon
136 AMERICAN TRIALS.
the supreme rulers of this country to treat me with
severity, I hope I should still find myself prepared.
Let suspension be added to suspension, and health
and fortune, and fame, and life, become successive
forfeits in this lingering war, I shall lay at last down
my devoted head with this consolatory reflection, that
I have done what I ought that I have performed to
the best of my power my duty to my country, to the
British troops under my charge, and to myself and
above all, it will be consolation to reflect, that how-
ever misinterpreted or abused, I have acted in all in-
stances, and specifically in this trial, without a spark
of private malice towards any individual soever.
With this declaration I opened, with the same I con-
clude, and have only to assure the court of my
acknowledgments for the patience, the attention, and
the civility with which they have heard me.
On the conclusion of General Burgoyne's speech
the court adjourned, and at the next session the judge
advocate addressed them. 1
Mr. President, and Gentlemen of the Court :
It remains with me to close this cause which has
employed so much time, and been the subject of such
public expectation. The mode of inquiry established
in all trials by courts martial, necessarily renders the
process tedious. This has been particularly so, and
was an apology wanting, the patience exhibited by
the court through the whole course of it, would atone
1 This is taken from the reported trial. The account of it by Anbu-
rey is quite different, and apparently written out from recollection.
COLONEL HENLEY. 137
for the hours spent in the investigation of the sub-
ject.
This cause, gentlemen, has been rendered impor-
tant rather from the distinguished rank and peculiar
circumstances of the very able prosecutor, than from
the real merits of it. For however it may have been
insinuated that Colonel Henley was appointed com-
mandant of the garrison at Cambridge, for the pur-
pose of executing the bloody designs of an irritated,
vindictive, and sanguinary people ; I believe the pub-
lic, as well as the court, will consider the prisoner as
alone interested in it ; and that this trial must for-
ever stand the clearest refutation to any one hardy
enough to repeat an assertion as injurious as it is false.
No sooner was the charge handed to General Heath,
the guardian of the public military reputation in
this department, than Colonel Henley was suspended
from his command, and an immediate inquiry ordered
into his conduct.
Yet notwithstanding this prompt, this early en-
deavor to discover facts, and punish if criminality
should be proved, a wound has been aimed at the
reputation of this country.
It has been said, gentlemen, before a respectable
and crowded audience, that a general massacre of the
troops of the convention was in contemplation, and
Colonel Henley fixed upon as the black instrument
of execution. There was not an American present
at that time, I dare assert, who did not feel indignation
beat in every pulse, while his heart reprobated the
idea.
This charge, heightened with all the pomp of
12*
138 AMERICAN TRIALS.
words which attic diction and tragic eloquence could
furnish ; painted in those vivid, animated colors which
keen feelings and lively apprehensions would supply ;
wanted nothing but truth to have answered the de-
sign proposed. And that this was wanting, you gen-
tlemen, from the evidence now on your table, are, I
presume, convinced. The world hereafter may be
satisfied. If I thought General Burgoyne, when mak-
ing this assertion, sincerely believed it to be true,
though I should wonder at his deception, I should
have a better opinion of his fairness ; and while we
smiled at his panic, we might pity his timidity.
Whatever particular, personal reasons for gaining
popularity, or securing the affections of his army,
or great political motives may have actuated the
prosecutor in this business, you, gentlemen, who are
to judge upon oath as well as upon honor, the two
strongest ties that can bind you as men and as sol-
diers, will be swayed by nothing but the sacred prin-
ciples of truth and justice. It is my duty to exhibit
facts as they arise from the evidence, stripped of the
meretricious coverings which ingenuity and rhetoric
have attempted to conceal them in.
However excusable it may be in General Burgoyne
to take a partial survey of the cause ; by well turned
periods to catch the attention, and force the admira-
tion of listening crowds ; and by a brilliancy of ex-
pression, or affected nobility of sentiment, attempt to
dazzle, the more effectually to mislead the court,
the judge advocate has a very different part to act ;
he ought to know no party, but undeviatingly to
follow the road marked out by truth alone.
COLONEL HENLEY. 139
The difficulty of keeping the mind unbiased in
this cause will strike the minds of the court. This
is the trial of a gallant and meritorious officer ; of a
man, whose services in camp and in the field, most
of you, gentlemen, have been witnesses to, and whose
conduct as a citizen, previous to his commencing the
soldier, was ever irreproachable. I must then de-
pend on the candor of the court, should I err in sum-
ming up the evidence, to restore me to the path of
disinterestedness. Much is due to the character of
such an officer ; but more to the safety of thousands,
who, disarmed and in our power, are entitled by the
laws of nations, of war, of humanity, and of justice,
to protection and security, provided no mal-condnet
on their parts, works a forfeiture of these rights.
Fiat justitia mat ccelum. Let us now look into the
evidence ; the court will adjudge the blame to fall
where it ought.
It appears that Colonel Henley, on the 19th De-
cember, in consequence of orders from General
Heath, visited the main guard with Major Swasey,
with the design of releasing a number of British sol-
diers who had got into custody, for different misde-
meanors. That he was calm and good-humored, and
proceeded to execute his instructions in the most
suitable way, that of inquiring into the respective
offences of the culprits, previous to their dismission,
and cautioning them against conduct which might
subject them to another confinement. Reeves, in
turn, being asked the cause of his commitment, with
some hesitancy informed the colonel. And from his
own account it appeared he had so grossly affronted
140 AMERICAN TRIALS.
an American officer, that even the nerves of the can-
did, the placid Major Swasey grew irritated, and he
was provoked enough to give Reeves a very resentful
answer. Colonel Henley's feelings being more keen,
he called Reeves a rascal ; Reeves retorted the epi-
thet ; and the colonel, after repeatedly ordering si-
lence, in order effectually to stop a very harsh alter-
cation which had ensued, dismounted from his horse,
seized a gun and fixed bayonet, and pricked Reeves
in the breast. It appears, from the concurrent testi-
mony of all the witnesses on the side of Colonel Hen-
ley, that his design was rather to silence Reeves than
to wound him ; rather to convince him he would
he obeyed than to injure him. The extreme slight-
ness of the wound, which from the surgeon's account
was little more than a scratch, confirms this to have
been the colonel's intention. It would certainly have
been better to have remanded him to the guard-
house. And if, gentlemen, you think the witnesses
in support of the charge have told you all that really
passed, you ought, at least, to think that Colonel Hen-
ley is a rash, passionate, precipitate officer ; a man
who considers stabbing his fellow creatures as a very
venial offence. But if full credence is given to the
evidence of six witnesses, the court will consider
whether an officer, acting in such a character as the
colonel then appeared in, so saucily and abusively
replied to by a prisoner in Reeves's circumstances, is
not pardonable, I do not say justifiable, in adopting
such a mode of silencing impudence and repressing
contempt.
It has been said that Reeves's behavior was only
COLONEL HENLEY. 141
firm, not insolent. British firmness often so nearly
approaches insolence, that Europeans as well as
Americans have been very apt to confound them.
The court will recollect the pains taken, in one or
two instances during this trial, to get from the British
witnesses their idea of insolence. They all affected
to think it impossible a Briton could look insolent.
It was, they said, only looking up. But this os sub-
lime, this erect countenance they boast of, leads them
to looking down upon the rest of the world, though
not always with impunity. Britain is feared because
she is powerful. What pity it is a nation cannot be
just as well as gallant. Less pride had prevented the
dismemberment of her empire, had saved the blood
of thousands. And real magnanimity had, ere this,
arrested the hand of destruction from the heads of
men, whose greatest fault, (once the glorious fault of
Britons !) is the love of freedom.
The judge advocate then examined the charge
against Colonel Henley, of intentional murder, and
contended that there was neither law nor fact to sup-
port it. In allusion to General Burgoyne's assertion
that Colonel Henley was responsible for most of the
outrages that took place, the judge advocate said
" But, says General Burgoyne, Colonel Henley's con-
duct had a great effect on his guards. He was
known to be no friend of the British soldiers ; he
had himself wounded one, and been violent in his
menaces against them all ; he thus influenced his
soldiers to stab and murder whom they pleased, if
they belonged to the British army ; and ought there-
fore to be considered as an accomplice in every out-
142 AMERICAN TRIALS.
rage which took place. If this reasoning is conclu-
sive, by the same logic the general himself is an
accessory to all the murders perpetrated by the fero-
cious bipeds, the savages who accompanied and dis-
graced his army last summer. Ought it to be said
that because these black attendants knew that Gen-
eral Burgoyne did not love Americans, that therefore
he would be pleased at the butchery of the nerveless
old man, defenceless female, and infant prattler ?
Because he hated rebels, he therefore influenced the
Indians to massacre that young unfortunate, the
inoflending and wretched Miss McCrea ! "
The judge advocate then proceeded to sum up the
testimony respecting the occurrences on the 8th of
January, as follows :
Mr. President, and Gentlemen of the Court :
We come now to the last and principal transaction
of the 8th of January the wounding Hadley on the
parade. It will be necessary to state the circum-
stances anterior to this unfortunate action. You have
the fullest proof, the confession of the prosecutor, that
a sentinel, on the evening of the 7th, was knocked
down on his post, that he was beat, disarmed, and
his gun carried off. Colonel Gerish, like a true
spirited officer, upon hearing of this daring outrage,
determined immediately and in person to discover
the British soldiers who were concerned in it. He
accordingly with a party of his regiment surrounded
one of the British barracks, and after some opposition
searched several rooms which appeared suspicious.
The conduct of a number of very obstreperous fel-
lows, which he found in one of the rooms, strength-
COLONEL HENLEY. 143
ened his suspicion, and he thought proper, after being
assaulted, menaced, and insulted, to send several of
them to the main guard. The transactions of this
evening were reported to Colonel Henley next morn-
ing with aggravation. The colonel, finding he had
got so large a number of British soldiers as twenty-
nine, prisoners in the main guard, which was situated
so near the barracks of the British army, that some
difficulty might arise, adjudged it most prudent to
remove all the prisoners up to the town, where a
proper inquiry could be made ; the culpable pun-
ished, and the innocent dismissed. A detachment
of one hundred men were ordered to the main guard
for this purpose, and the colonel with the town major
set out for the hill, to see that the detachment did
their duty. On his way down, he met Buchanan
playing off upon a sentinel the evasive trick which
had now become common with the British soldiers,
that of escaping from their barracks under counterfeit
or borrowed passes. The colonel gave the orders
(respecting Buchanan) we have before read, and pro-
ceeded on for the main guard ; not with the most
agreeable feelings, if we suppose the irritation which
a variety of offensive reports and provoking consid-
erations must have raised in his mind, during the
course of the morning. Soon after he got to the
main guard, the detachment marched into the citadel,
and formed near the guard-house. By this time a
very large body of British soldiers had assembled
near the guard-house, Captain Brooks says, to the
number of three hundred. The colonel, apprehensive
that some disorders might arise, when the British
144 AMERICAN TRIALS.
prisoners should be sent off with the detachment,
ordered the British soldiers to disperse. Finding he
was not likely to be obeyed, he called for a dozen
men from the detachment, which produced a move-
ment among them, and they were going off; when
just at this time Buchanan was rescued within sight
of Colonel Henley. This act of insolent triumph
determined Colonel Henley to take the immediate
personal command of the detachment, which he in-
stantly marched out of the citadel upon the parade in
the rear of the barracks. He had hardly time to
halt his men before he was surrounded by the British
soldiers, who amounted to near two hundred men,
which was double his number. I rate the number
on a medium between what they were said to be, by
the witnesses for the prosecution, and those in behalf
of Colonel Henley. Consider now, gentlemen, what
must have been Colonel Henley's sensations ; at the
head of a party of militia, who, from being daily
affronted by the British soldiers, were become their
jest ; that it had at length become absolutely neces-
sary to convince these Britons that there was energy
enough in their guards to force obedience and curb
licentiousness ; that a tumult had arisen the night
before, and that an act had just taken place which
was a defiance to himself: that he had not room to
mano3uvre his men without great difficulty, owing to
the British soldiers pressing in upon the party ; and
that these were most of them the very men who had
just before been laughing at the party, while paraded
in the citadel, and who, in contempt of his orders,
were again collected to keep up the laugh at the
COLONEL HENLEY. 145
expense of the detachment. I put it upon this
footing, because I think it was apparent they were
assembled rather to insult than to assail the party ;
though they were so near, that it was only stretch-
ing out their arms, and it would have been easy to
disarm the detachment by a sudden movement ;
especially after the colonel had detached a quarter of
his whole party to bring out the prisoners from the
guard-house. Under these circumstances, gentlemen,
and still more so if he was apprehensive of an at-
tempt to disarm his men, how extremely difficult
must it have been for the colonel to have checked his
resentment, or stopped the hand which had been so
repeatedly and insolently defied. The colonel had
told them he had lost a. prisoner, threatened to fire
upon them, and given reiterated orders for them to
disperse, before he made the lunge at Hadley. It
has been proved that the British soldiers in general
were slowly moving off at the time, but not that
Hadley was one of them. If you are convinced,
gentlemen, that he was going off, you will then con-
sider how far the colonel's impetuosity is reprehen-
sible, and punish him accordingly.
It appears clearly that the British soldiers had no
weapons of any kind in their hands, that they made
no attempt on the guard nor struck any of them,
from which it may be a question, whether, had Had-
ley died of the wound he received from Colonel
Henley, the colonel would not have been guilty of
murder, because, upon the principles of municipal
law, words alone, however impudent of provoking,
will not reduce murder to manslaughter,. though a
VOL. II. 13
146 AMERICAN TRIALS.
very slight blow first given by the person killed might
have made the killing manslaughter, or even a less
species of homicide.
If the nice distinctions of common law are to be
made the rules of conduct in military discipline, and
the regulation of a garrison, Colonel Henley must
suffer. But I imagine, gentlemen, you will hardly
admit this to be true. Because soldiers and citizens
are entitled to very different privileges. In an army,
the disobedience of an order is sometimes punished
with instant death, and such an action justified and
applauded, which, was it to take place among citizens,
might subject a man to a halter.
Colonel Henley had stood for some time, first in
the citadel, and afterwards on the parade at the head
of a detachment armed, and heard the provoking epi-
thets of " yankee " and " rebel " very liberally thrown
out against his guards, by the Scotch and British
loyalists who surrounded him. The word yankee,
when used by these proficients in abuse, is intended
to convey the idea of clownishness and cowardice.
And to call a man yankee rebel, is considered by
them as the strongest term of invective. Where is
the officer, in such circumstances, who could suppress
his indignation upon such an occasion ? If, gentle-
men, you should be satisfied that Hadley, at the time
he was wounded, was moving off, you will consider
whether Colonel Henley is not very blameworthy for
making a violent lunge into a man's body, who was
obeying his orders and getting out of his way
should you be convinced that Hadley was not remov-
ing, though such peremptory and repeated orders
COLONEL HENLEY. 147
were given him with his comrades to retire to their
barracks, your opinion will be different.
Mr. Bibby swears that on the morning of the 8th
January, as he passed over the parade where the de-
tachment was drawn up, he heard an officer, whom he
took to be the captain of the guard, " damn his men
for inattention, and ordering them to run any man
through who came near them." This speech appears
to have been made soon after the wounding of Hadley,
while the passions were in a tumult, and the pulse
beating high from what had passed. The order was
rash and unjustifiable, and the court will consider
whether the example just set by Colonel Henley, in
stabbing Hadley, did not occasion it, and how far he
is accountable for encouraging sentiments of such a
nature.
The instance mentioned by Colonel Lind, of the
sentry's firing on three camp women, cannot by any
means affect Colonel Henley, because it does not
appear that he ever gave such orders, nor was any
report made of it to him. For surely it would be
unreasonable to make the commandant of such a
garrison as this, where the guards are made up of a
young and inexperienced militia, unskilled in military
science or duty, accountable for all the mistakes and
violence of such soldiers. Had a complaint been
made to him of this action, and he had refused taking
notice of it, it would undoubtedly have been such an
avowal of it, as to have made him responsible for all
the consequences of it.
The expressions and violent menaces which Flem-
ing and Wilson swear they heard Colonel Henley
148 AMERICAN TRIALS.
throw out at the adjutant general's office on the 16th
December, carry with them, prima fade, very strong
marks of malice, and a heart boiling with the most
vindictive and turbulent passions. But the court will
recollect that the colonel had that morning a report
of Mason and Crane being knocked down and dis-
armed, while one of them was on his post. They
were both much beaten. It does not appear what led
to the conversation, but Colonel Henley was relating
the affair to some officer in the office, when the ser-
geant came up and met with the salute, which has
been laid before the court. The greeting was rough
to be sure, but might not the meaning only be, that
the devil had got into their barracks and possessed
the occupiers of them, and that he should turn exor-
cist some night or other, turn the barracks inside out,
and expel him from their territory. But I mean not,
gentlemen, to palliate this matter, the words are be-
fore you. You are the judges, and will determine
how far the sentiments expressed were malicious, and
afterwards, as such, acted from by the colonel.
I will not take up any of the court's time by re-
marks on the evidence of the different rescues that
took place from the beginning of December to the 8th
of January, except of that sworn to by Lieutenant
Stearns. This officer, after being insulted in the
grossest manner by words and gesture ; after having
the fellow who gave it rescued in his sight ; and after
complaining, through tenderness, to the man's own
officers ; proving the complicated charge against him ;
to be then trifled with by a promise of a proper pun-
ishment being inflicted on the aggressor, and after all
COLONEL HENLEY. 149
to have the fellow set at liberty unpunished ; proves
the necessity of exercising the right set up by General
Heath, of punishing the offenders of the convention
troops, who could thus commit enormities with im-
punity, and shows in how contemptible a light the
officers of the guards were held by the British army,
and the expediency of convincing them that there
was spirit enough to resent injuries, and energy
enough to chastise offenders.
I shall now submit the cause, gentlemen, to your
decision. Many observations have been omitted,
which might have been pertinent, but which have
doubtless occurred to the minds of the court, partic-
ularly with respect to the characters and contradic-
tions of the witnesses. And I doubt not your judg-
ment will vindicate the justice of our country, and be
approved by the honest and impartial wherever it
shall be known.
Upon the conclusion of these remarks, the court
was ordered to be cleared, and, upon mature consid-
eration, decided that the charge against Colonel Hen-
ley was not supported, and that he be discharged
from arrest. General Heath approved this decision,
and ordered Colonel Henley to reassume his com-
mand at Cambridge immediately. In the general
orders announcing this result, the following statement
appeared. " The General thinks it to be his duty,
on this occasion, to observe, that although the con-
duct of Lieutenant General Burgoyne, (as prosecutor
against Colonel Henley) in the course of the forego-
ing trial, in his several speeches and pleas, may be
13*
150 AMERICAN TRIALS.
warranted by some like precedents in British court
martials, yet as it is altogether novel in the proceed-
ings of any general court martial in the army of the
United States of America, whose rules and articles of
war direct, that the judge advocate general shall
prosecute, in the name of the United States, and as
different practice tends to render courts martial both
tedious and expensive, he does protest against this
instance being drawn into precedent in future."
Such was the result of this exciting trial, the jus-
tice and propriety of which must be judged of by the
military code. In a moral point of view, although
the principal charges were entirely unsupported by
the testimony, there is surely room to doubt whether
the conduct of Colonel Henley was not, on some of
the occasions referred to in the proof, " unbecoming
a man." It seems to have been the opinion of the
judge advocate, that some of his proceedings were
not entirely correct ; and the decision of the court
rather resembles the dubious character of a Scotch
verdict of " not proven," than the emphatic deter-
mination of " not guilty."
The acquittal of Colonel Henley was the occasion
of bitter complaint on the part of the convention
troops ; but it was received with great satisfaction by
the continental army. Indeed, an able writer in the
Boston Gazette, while the court was in session, com-
plained vehemently, that it was ever ordered, con-
tending that prisoners of war had no right to demand
such tribunals, and that it was unnecessary for Colo-
nel Henley's honor that one should have been insti-
COLONEL HENLEY. 151
tuted. There was much complaint also, that General
Burgoyne was permitted to act the part of a prose-
cutor. It must be admitted that great latitude was
allowed the British commander, in this respect. He
had no right to expect any extraordinary favor from
the Americans. His proclamation, at the beginning
of the campaign, was still fresh in their recollection ;
and it could not be forgotten that he was responsible
for some of the greatest atrocities that occurred dur-
ing the war. It is quite apparent that his principal
object in this trial was to obtain popularity with his
army, and assistance in the unfortunate predicament
in which the capture of that army had placed him at
home. He accordingly exerted all his talents on this
occasion, and conducted the prosecution with extra-
ordinary ability. But his addresses to the court were
not calculated to render him more popular to the
American people ; and a cotemporary writer, after
denouncing the " ill-judged clemency of the American
general, who, at the arrogant demands of the British
prisoner, calls a court martial," is indignant that the
court should have suffered " the once potent general,
with his forty other titles the grand parliamentary
debater, now sunk to the pitiful pettifogger to vil-
ify the superior character of this brave young officer,
and brand him with the coarse Billingsgate epithets
of hangman, murderer and assassin." General Bur-
goyne was also referred to as the " British general
who gave orders to his brother savages to destroy the
valuable lives of innocent, defenceless women and
children."
The Americans, in the immediate vicinity of this
152 AMERICAN TRIALS.
trial, were the more sensitive on this subject, as
the dignified bearing, the pungent wit, and well-
turned periods of General Burgoyne, were in striking
contrast with the plain and homely, not to say coarse
appearance of Colonel Henley. 1 And the judge ad-
vocate was no fair match as a skilful debater, for the
British general, although his speech never seems to
have received his own revision, like that of his oppo-
nent, and is not a fair test of his real merits.*
The difficulties between the American command-
ers and the British troops became more serious after
this trial than they had been previously ; but these
1 Stephen Codman Esq., of Boston, who attended this trial, informs
me that the appearance of General Burgoyne throughout, was impres-
sive and dignified. He was attended by his principal officers in uni-
form. Colonel Henley was a native of Charlestown, and was bred to
the mercantile profession. At the commencement of the revolution he
resided in Virginia, and was personally known to General Washington.
After his trial he left the command in Cambridge, and before the termi-
nation of the war he retired from the army, and established himself in
Boston, in business with the father of the Hon. Harrison Gray Otis.
2 William Tudor was born in Boston, March, 1750. He was gradu-
ated at Harvard University, in 1769, and studied law with John Adams,
and established himself in Boston. In 1775 he was elected judge advo-
cate general, and held the office until 1778, when he resumed the prac-
tice of his profession. Among those who read law in his office, were
the late Chief Justice Parker, Judge Minot, Fisher Ames, and Josiah
Quincy. On the death of his father, in 1796, Mr. Tudor retired from
the profession, and went to Europe. In London, he was presented at
court. On mention of his name, the king exclaimed, " Tudor! What
one of us ? " The interview continued so long that the lord in waiting
growing impatient, said, " His majesty seems to be so deeply engaged
with his cousin, that he forgets what a number of persons are in wait-
ing to be presented." Mr. Tudor held various officers of trust and
honor in his native state. He married, in 1778, Miss Delia Jarvis, and
had eight children. The eldest married Robert Hollowell Gardiner, Esq.,
of Gardiner, Maine, and the youngest, Commodore Charles Stewart, of
the United States Navy. Mr. Tudor died in 1819.
COLONEL HENLEY. 153
belong to the general history of the time, and are
not appropriate to our present purpose. Meanwhile
General Burgoyne obtained leave to return to Eng-
land before his troops, and left the scenes of his de-
feat and disgrace with enfeebled health and a heavy
heart, for he had little to expect from the ministry, in
whom he had excited the hope of brilliant success on
assuming his command in America. He has been
described as of a noble figure and commanding
mien, " an elegant writer, a good speaker, an amiable
and accomplished gentleman, and a gallant officer.
Devoutly attached to his country ; ambitious, but
ambitious of distinction in the service of his sove-
reign." He held a respectable rank among the wri-
ters of that day, having composed and published
three dramas of considerable merit. On his return
home he was coldly received by the ministry, and
was neglected by the court. Upon his repeated and
earnest solicitation, an inquiry was instituted by par-
liament into his conduct on the expedition. It was
however broken off by the prorogation of parliament,
and was never resumed. After his return he became
a member of the house of commons, where he an-
noyed the ministers by the ability and zeal of his
opposition, and they ordered him back to America.
Of course he refused to obey, and resigned his com-
mission. He died in 1792.
PROCEEDINGS
A BOARD OF GENERAL OFFICERS,
ORDER OF GENERAL GEORGE WASHINGTON,
RESPECTING
MAJOR JOHN ANDRE,
CHARGED WITH BEING A SPY.
NEW YORK, 1780.
The proceedings respecting Major Andre hardly come within the
legitimate province of the present work, and might very properly be
omitted, especially as the whole subject is so well described in Mr.
Sparks's admirable life of Benedict Arnold. But a brief account of
these proceedings seems necessary in order to a proper understanding of
the trial of Joshua H. Smith, which immediately follows, and which is
not so generally known. In addition to the work of Mr. Sparks, and
the histories of the revolution, I have examined the proceedings of the
court of inquiry, which were printed by order of congress, and the nar-
rative of Joshua H. Smith, which was published in England many
years after the events which it purports to describe. The portrait of
Andre, at the beginning of this volume, is taken from an engraving in
Smith's narrative. The military journal of Lieutenant Colonel Simcoe,
recently published, has some interesting facts in relation to this sub-
ject, hut nothing that is remarkably new.
MAJOR JOHN ANDRE.
IN the year 1780, at the most critical period of the
American revolution, a plan was formed by Benedict
Arnold, a major general of the American army, to
deliver into the hands of Sir Henry Clinton, the
British commander in New York, the important fort-
ress of West Point, on the Hudson River, of which
Arnold was at that time in the command. The
causes of this extraordinary proceeding on the part
of an officer, who stood deservedly high in the esti-
mation of his countrymen for his valuable services
during the war, are to be found in his character and
personal history ; to which, however, it is not neces-
sary to allude with much particularity in this con-
nection. Naturally vain and passionate, Arnold had
become a soured and discontented man, and he delib-
erately resolved to commit an act of treason, which
he expected to result in the most brilliant success to
himself, and by which he hoped to have ample re-
venge for real or fancied wrongs.
VOL. II. 14
158 AMERICAN TRIALS.
Under the influence of these feelings, General Ar-
nold at length made a direct proposal to the British
commander, to surrender the important post which
had been entrusted to his command by Washington.
To gain an object of so much importance, Sir Henry
Clinton could not hesitate to accede to any terms,
however exorbitant ; and he devoted himself with
great zeal to obtain this fortress by a stratagem of war,
which he could never hope to take by open attack.
It was obviously necessary for all parties, that the
negotiations should be conducted with the utmost
secrecy, and with sound discretion. The person in
the British army to whom the commander principally
confided this delicate matter, was Major John Andre,
a man of refined manners, of a highly cultivated
mind, and of the strictest integrity.
Andre was originally destined for mercantile pur-
suits, and had been several years in the counting-
room of a respectable establishment in London, when
he formed an ardent attachment for a young lady,
which was reciprocated ; but the marriage was de-
feated by the opposition of the lady's father, and she
was subsequently married to another person. From
that moment Andre became disgusted with his pur-
suits, and resolved to seek relief from his bitter asso-
ciations, and dissipate the memory of his sorrows,
in the turmoil and dangers of war. He joined the
British Army in Canada, with a lieutenant's commis-
sion, and was taken prisoner at the capture of St.
John's by General Montgomery, in the autumn of
1775. He was sent with other prisoners to Lancas-
ter, in Pennsylvania, where he remained a few months
MAJOR ANDRK. 159
till he was exchanged. Not long afterwards he said,
in a letter to a friend, " I have been taken prisoner
by the Americans, and stripped of everything except
the picture of Honora, which I concealed in my
mouth. Preserving that, I yet think myself fortu-
nate." The picture had been delineated from the
living features of the object of his affection, by his
own hand.
To a graceful and handsome person, Andre added
many accomplishments of mind and manners. He
was passionately fond of the fine arts, and had at-
tained very considerable skill in drawing and paint-
ing. A journal of his travels and campaigns in
America, which he kept from the time of his first
arrival in Canada, contained lively and picturesque
sketches of the people, their dresses, houses, and
other objects, illustrating the habits of life, customs,
and amusements of the Canadians, Americans, and
Indians ; and also drawings of animals, birds, insects,
trees, and plants, each in its appropriate colors.
Landscapes, views, and plans of places were inter-
spersed, and connected by a narrative and written
descriptions. This journal was seen and perused in
Philadelphia, while the British had possession of that
city. To a taste for poetry he united a love of elegant
letters, and his attainments in the various branches
of literature were extensive. His epistolary writings,
so far as specimens of them have been preserved,
show a delicacy of sentiment, a playfulness of imagi-
nation, and an ease of style, which could proceed
only from native refinement and a high degree of
culture.
160 AMERICAN TRIALS.
These attractions, connected with an affable de-
portment, and the address of a perfect gentleman,
gained him ready access to all circles, and won the
hearts of numerous friends. A favorite in the army,
and everywhere admired in the walks of social life,
his merits were soon discovered by those, who had
power to reward them. Unaided by any other recom-
mendation, than that of his own character, he was
received into the military family of Major General
Grey as aid-de-camp, soon after his release from
captivity. In this station he remained till General
Grey returned to Europe, when he was transferred to
the same post in the family of Sir Henry Clinton.
Such was the confidence and the respect for his
talents, which he inspired in Sir Henry Clinton, that,
when a vacancy occurred in the office of adjutant
general, by the resignation of Lord Rawdon, he ap-
pointed Andre to fill the place at the head of the
department. Andre was now only a captain in the
service, and, the rank of major being requisite for an
adjutant general, Sir Henry Clinton wrote to the
minister on the subject, and requested that he might
accordingly be promoted. The minister declined
complying with the solicitation, on the ground that
Andre was too young an officer for such an elevation,
In reply, General Clinton intimated surprise and a
little displeasure, that his request should be thus
turned aside ; and said he could not fix his choice
on any other person so suitable for the office, and
therefore he should continue to employ Andre to dis-
charge its duties, and should forbear for the present
to make any other appointment.
MAJOR ANDRE. 161
This representation was successful. The rank of
major was conferred on Andre, and Sir Henry Clin-
ton then applied in form to have him commissioned
by the king, as adjutant general of the army in Amer-
ica. The letter containing his application was dated
only three weeks preceding the capture of Andre.
Hence he did not receive the commission before his
death, although he had for nearly a year filled the
office of adjutant general. 1
Such was the officer whom Sir Henry Clinton, at
the solicitation of Arnold, had requested to undertake
the mission of meeting with him, for the purpose of
arranging specifically the terms upon which he was
to consummate his treachery. The dangers and diffi-
culties of the undertaking were fully appreciated on
both sides, and various expedients were proposed and
partially acted upon, but without success. Mean-
while the British commander had sent the Vulture,
sloop of war, up the Hudson River, as far as Teller's
Point, in order to facilitate an interview with the
American commander. A boat was sent on board
by Arnold in the night, and Andre came on shore in
his uniform, which was concealed by a cloak. An
interview then took place between the two officers,
but the business could not be completed, and it was
thought best for Andre to accompany Arnold to the
house of Joshua H. Smith, which had been procured
for the purpose, and which was within the American
lines. Here, on the following day, the arrangements
were concluded, although the details have never come
Sparks's American Biography, 171, 174.
14*
162 AMERICAN TRIALS,
to light. Andre was supplied with certain papers
explanatory of the military situation of West Point,
which, by Arnold's advice, he placed between his
stockings and feet, and was then ready to return to
New York. His own desire was to be carried again
on board the Vulture ; but for some reason, which
has never been satisfactorily explained, Joshua H.
Smith, in whose house Andre was staying, and who
had assisted in bringing him ashore, obstinately refused
to return again on board the Vulture. 1 Andre sub-
mitted to the necessity of his situation, and prepared
to return to New York by land. He was prevailed
upon to exchange his military coat for a citizen's
dress, and, with a passport from Arnold, he set out
on his dangerous route, under the assumed name of
John Anderson.
He had passed over a considerable portion of what
was then called the " neutral ground," without any
serious interruption, and as he approached the point
where all danger would be at an end, there was a
marked alteration in his appearance. The weight
which had rested upon his spirits seemed removed ;
he became animated and even cheerful, and when
Smith at length left him to return home, he proceeded
on his journey, with the feeling that the great object
1 The reason which Smith gives in his narrative is, that he was at-
tacked severely with the ague, and could not suffer an exposure in the
boat. But this could hardly have been the true reason, as he did, in
fact, accompany Andre several miles on horseback. Smith's conduct
and his real motives have always been shrouded in mystery. He was
unfortunate enough to incur the contempt of both parties. He was
obliged to flee this country, and in England his condition was not much
improved. See the Political Magazine, for February, 1781. Smith's
Narrative, passim. Sparks, 211.
MAJOR ANDRE. 163
of his dangerous mission was about to be accom-
plished. But his hopes were destined to a disap-
pointment as disastrous as it was unexpected, and
the well-concerted scheme was utterly defeated in a
manner as singular and interesting, as it was credita-
ble to all who were concerned in its discovery.
By a law of the state of New York, at that time
in force, any person was authorized to seize and
convert to his own use, all cattle or beef that should
be driven or removed from the country in the direc-
tion of the city, (which was then in possession of the
British,) beyond a certain line in Westchester county.
By military custom, also, the personal effects of
prisoners, taken by small parties, were assigned to
the captors as a prize. It happened that, at the very
time Andre was returning to New York, three per-
sons were concealed in the bushes, watching the road
to intercept any suspicious stragglers or droves of
cattle, that might be seen passing to that city. The
names of these men were John Paulding, David Wil-
liams, and Isaac Van Wart. On seeing Andre, who
appeared to be a stranger, they stopped -him, when
almost the first words he spoke revealed a part of his
secret. " Gentlemen," he said, " I hope you belong
to our party." " What party ? " " The lower party."
Andre then most incautiously added, " I am a British
officer, out of the country on particular business, and
I hope you will not detain me a minute." The sus-
picions of his captors being confirmed by this avowal,
he was ordered to dismount ; he then exhibited to
them General Arnold's pass ; but as he had called
himself a British officer, they determined to search
164 AMERICAN TRIALS.
him, and on finding the papers concealed in his stock-
ings, they refused to let him proceed. The unfortunate
officer was reduced to despair by this unexpected
misfortune, and offered his captors any sum of money
to let him proceed on his way ; but finding them
resolved to do otherwise, he resumed the natural dig-
nity of his deportment ; he begged of them to ask
him no questions, and said that when he came to any
commander, he would reveal all.
On arriving at the nearest military post, his papers
were transmitted to General Washington, and it be-
ing evident that any farther attempts at concealment
would be useless, he subsequently wrote the following
letter to the commander in chief of the American
army.
" Salem, 24th September, 1780.
" SIR, What I have as yet said concerning my-
self was in the justifiable attempt to be extricated ; I
am too little accustomed to duplicity to have suc-
ceeded. I beg your Excellency will be persuaded,
that no alteration in the temper of my mind, or ap-
prehension for my safety, induces me to take the step
of addressing you ; but that it is to rescue myself
from an imputation of having assumed a mean char-
acter for treacherous purposes or self-interest ; a
conduct incompatible with the principles that actuate
me, as well as with my condition in life. It is to
vindicate my fame that I speak, and not to solicit
security. The person in your possession is Major
John Andre, adjutant general to the British army.
The influence of one commander in the army of his
adversary is an advantage taken in war. A corres-
MAJOR ANDRE. 165
pondence for this purpose I held ; as confidential (in
the present instance) with his Excellency, Sir Henry
Clinton. To favor it, I agreed to meet upon ground
not within the posts of either army a person, who
was to give me intelligence ; I came up in the Vul-
ture man-of-war for this effect, and was fetched by a
boat from the ship to the beach. Being there, I was
told that the approach of day would prevent my
return, and that I must be concealed until the next
night. I was in my regimentals, and had fairly risked
my person. Against my stipulation, my intention,
and without my knowledge beforehand, I was con-
ducted within one of your posts. Your Excellency
may conceive my sensation on this occasion, and will
imagine how much more must I have been affected
by a refusal to reconduct me back the next night as
I had been brought. Thus become a prisoner, I had
to concert my escape. I quitted my uniform, and
was passed another way in the night, without the
American posts, to neutral ground, and informed I
was beyond all armed parties and left to press for
New York. I was taken at Tarrytown by some vol-
unteers. Thus, as I have had the honor to relate,
was I betrayed (being adjutant general of the British
army) into the vile condition of an enemy in disguise
within your posts. Having avowed myself a British
officer, I have nothing to reveal but what relates to
myself, which is true on the honor of an officer and
a gentleman. The request I have to make to your
Excellency, and I am conscious I address myself well,
is, that in any rigor policy may dictate, a decency of
conduct towards me may mark, that, though unfor-
166 AMERICAN TRIALS.
tunate, I am branded with nothing dishonorable, as
no motive could be mine but the service of my
king, and as I was involuntarily an impostor. An-
other request is, that I may be permitted to write an
open letter to Sir Henry Clinton, and another to a
friend for clothes and linen. I take the liberty to
mention the condition of some gentlemen at Charles-
ton, who, being either on parole or under protection,
were engaged in a conspiracy against us. Though
their situation is not similar, they are objects who
may be set in exchange for me, or are persons whom
the treatment I receive might affect. It is no less,
sir, in a confidence of the generosity of your mind,
than on account of your superior station, that I have
chosen to importune you with this letter. I have the
honor to be, with great respect, sir, your Excellency's
most obedient and most humble servant."
The astonishment produced throughout the whole
country, and especially in the American army, by the
discovery of the astounding treachery of an officer
high in command, was only equalled by the feel-
ings of indignation with which his conduct was re-
garded. But notwithstanding the detestation in which
the traitor was universally held, the accomplished
young officer, who had fallen into the hands of his
enemies, was regarded with the greatest sympathy ;
a feeling very much strengthened by his noble and
manly bearing, under the trying circumstances in
which he was placed, and his determination to meet
his fate, whatever it might be, with the simplicity of
truth as well as with the courage of a soldier.
MAJOR ANDR. 167
The first effort of Washington was to secure the
traitor, but having failed in this, by the escape of
Arnold to the British man-of-war, his next care was
to guard in every way from the possible effects of the
meditated treason, especially by ascertaining, with all
possible delicacy and caution, whether the disaffec-
tion had extended to any other officers of the army.
He then turned his attention to Major Andre himself,
and determined to take such energetic and efficient
measures in respect to that officer, as the laws of war
and the emergencies of the case seemed to justify and
require. He summoned a board of general officers,
directing them to examine into the case of Major
Andre, to report a precise state of the same, and to
give their opinion, as to the light in which he ought
to be regarded, and the punishment that should be
inflicted. The board consisted of six major generals
and eight brigadiers, as follows : '
Major General Greene, President ; Major Generals
Lord Stirling, St. Clair, the Marquis de la Fayette,
Howe, the Baron de Steuben ; Brigadier Generals
Parsons, Clinton, Knox, Glover, Patterson, Hand,
Huntington, Starke. John Lawrence was the judge
advocate general.
The board having assembled in the meeting-house,
at Tappan, in the state of New York, on 29th Sep-
tember, 1780, Major Andre was brought before them,
and the following letter from General Washington
was read :
1 The reader will observe, that the board was not a court martial, but
merely a court of inquiry, instructed to examine and report facts, and to
express an opinion.
168 AMERICAN TRIALS.
" GENTLEMEN, Major Andre, adjutant general to
the British army, will be brought before you for your
examination. He came within our lines in the night,
on an interview with Major General Arnold, and in
an assumed character ; and was taken within our
lines, in a disguised habit, with a pass under a feigned
name, and with the enclosed papers concealed upon
him. After a careful examination, you will be pleased,
as speedily as possible, to report a precise state of his
case, together with your opinion of the light in which
he ought to be considered, and the punishment that
ought to be inflicted. The judge advocate will at-
tend tc assist in the examination, who has sundry
other papers, relative to this matter, which he will
lay before the board. I have the honor to be, gen-
tlemen, your most obedient and humble servant."
The names of the officers composing the board
were then read to Major Andre, and the president of
the board informed him that various questions would
be asked, but that the board desired him to feel at
perfect liberty to answer them or not, as he might
choose, and to take his own time for recollection and
weighing what he said. On his being asked whether
he confessed the matters contained in the letter from
General Washington to the board, or denied them,
he stated that his letter to General Washington con-
tained the truth, and the letter was then read to the
board (ante, page 164). He also gave a brief narra-
tive of what occurred between the time of his coming
on shore and that of his capture, to the effect, that
he came on shore from the Vulture sloop of war in
MAJOR ANDRE. 169
the night of the 21st of September instant, some-
where under the Haverstraw mountain. That the
boat he came on shore in carried no flag, and that he
had on a surtout coat over his regimentals, and that
he wore his surtout coat when he was taken. That
he met General Arnold on the shore, and had an
interview with him there. He also said that when
he left the Vulture sloop of war, it was understood
he was to return that night ; but it was then doubted,
and if he could not return he was promised to be
concealed on shore in a place of safety, until the next
night, when he was to return in the same manner he
came on shore ; and when the next day came he
was solicitous to get back, and made inquiries in the
course of the day, how he should return, when he
was informed he could not return that way, and he
must take the route he did afterwards. That the first
notice he had of his being within any of the American
posts, was, being challenged by the sentry, which was
the first night he was on shore. He also said, that
the evening of the 22d of September instant, he
passed King's ferry between our posts of Stony and
Verplank's points, in the dress he is at present in
and which he said was not his regimentals, and which
dress he procured after he landed from the Vul-
ture, and when he was within the American post,
and that he was proceeding to New York, but was
taken on his way, at Tarrytown, as he mentioned in
his letter, on Saturday, the 23d of September in-
stant, about nine o'clock in the morning. He also
confessed that certain papers, which were shown to
VOL. II. 15
170 AMERICAN TRIALS.
him, were the same that had been concealed in his
boots, and that a pass for John Anderson, in the
handwriting of Arnold, was the one he had exhibited
to his captors. Being interrogated as to his concep-
tion of the manner in which he came on shore, and
whether he considered himself under a flag, he an-
swered, that " it was impossible for him to suppose
he came on shore under the sanction of a flag, and
added, that, if he came on shore under that sanc-
tion, he might certainly have returned under it."
Throughout his examination Major Andre maintained
a manly, dignified, and respectful deportment, re-
plied to every question promptly, discovered no em-
barrassment, sought no disguise, stated with frank-
ness and truth everything that related to himself, and
used no words to explain, palliate, or defend any
part of his conduct. So delicate was he in regard
to other persons, that he scrupulously avoided men-
tioning names, or alluding to any particulars except
such as concerned himself. General Greene spoke
of Smith's house, in reference to the place of meet-
ing between Andre and Arnold. " I said a house,
sir," replied Andre, " but I did not say whose house."
" True," answered Greene, " nor have we any right
to demand this of you, after the conditions we have
allowed." The examination being closed, Major An-
dre was asked whether he had any remarks to make
on the statements that had been presented. He re-
plied in the negative, and said he should leave them
to operate with the board. He was then remanded
to the place of his confinement.
After a full consideration of the subject, the board
MAJOR ANDRE. 171
made the following report, which was signed by
every member :
" The board having considered the letter from his
excellency General Washington, respecting Major
Andre, adjutant general to the British army, the con-
fession of Major Andre, and the papers produced to
them, report to his excellency, the commander-in-
chief, the following facts, which appear to them rela-
tive to Major Andre. First, That he came on shore
from the Vulture sloop of war in the night of the
21st of September instant, on an interview with
General Arnold, in a private and secret manner.
Secondly, That he changed his dress within our
lines, and under a feigned name, and in a disguised
habit, passed our works at Stony and Verplank's
points, the evening of the 22d of September instant,
and was taken the morning of the 23d of September
instant, at Tarrytown, in a disguised habit, being
then on his way to New York, and when taken, he
had in his possession several papers, which contained
intelligence for the enemy. The board having ma-
turely considered these facts, do also report to his
excellency General Washington, that Major Andre,
adjutant general to the British army, ought to be
considered as a spy from the enemy, and that agree-
able to the law and usage of nations, it is their opin-
ion he ought to suffer death.
" Nath. Greene, M. Gen., President ; Stirling,
M. G. ; Ar. St. Clair, M. G. ; La Fayette, M. G. ; R.
Howe, M. G. ; Stuben, M. G. ; Samuel H. Parsons,
B. Gen. ; James Clinton, B. Gen. ; H. Knox, Brig.
Gen., Artillery ; Jno. Glover, B. Gen. ; John Pat-
172 AMERICAN TRIALS.
terson, B. Gen. ; Edward Hand, B. Gen. ; T. Hunt-
ington, B. Gen. ; John Starke, B. Gen. ; John Law-
rence, J. A. Gen."
These proceedings respecting Major Andre excited
the deepest feeling throughout both armies. The
final decision rested with Washington, and notwith-
standing the equity of the sentence pronounced by
the board of officers, yet there were so many exten-
uating circumstances connected with the manner in
which Andre had been seduced into the snare, that
a hope was entertained by many even in the Amer-
ican army, that he might be saved by the commander-
in-chief from the last infliction of human power.
But that great and good man was equal to the emer-
gency, and although severely tried in his feelings, he
was entirely satisfied that the extraordinary circum-
stances of the case required the most signal punish-
ment, and he did not shrink from what he regarded
as a public duty. There was but one possible mode
of saving Andre, and that was to exchange him for
Arnold, who had escaped to the British army. Sir
Henry Clinton received, indirectly, an intimation of
this, but he refused to listen to the idea for a mo-
ment. He made every possible effort, however, to
save the life of a favorite officer, who was condemned
to death under circumstances of such melancholy
interest ; and even sent a deputation with a flag of
truce to the American commander, furnished with
evidence to " prove Major Andre's innocence," and
with such information as it was hoped would place
the question in a different light from what it had been
viewed by the American board. One of these com-
MAJOR ANDRE. 173
missioners was met by General Greene by the com-
mand of Washington, and he went into a long exam-
ination of the subject, contending that Andre could
not be justly regarded as a spy, because he landed
under the sanction of a flag, and acted wholly by the
directions of Arnold. The substance of this confer-
ence was communicated to Washington, but it pro-
duced no change in his opinion and determination.
Meanwhile the sentence of the board of officers
was communicated to Major Andre on the day it was
given ; he manifested no surprise, and exhibited,
during his whole confinement, a calmness of manner
and a winning gentleness of deportment that excited
the love and admiration of all who saw him. " I
foresee my fate," he said to Colonel Hamilton, " and
though I pretend not to play the hero, or to be indif-
ferent about life, yet I am reconciled to whatever
may happen, conscious that misfortune, not guilt, has
brought it upon me. There is only one thing that
disturbs my tranquillity. Sir Henry Clinton has been
too good to me ; he has been lavish of his kindness ;
I am bound to him by too many obligations, and love
him too well, to bear the thought that he should
reproach himself, or others should reproach him, on the
supposition of my having conceived myself obliged,
by his instructions, to run the risk I did. I would
not, for the world, leave a sting in his mind that
should embitter his future days." He could scarce
finish the sentence, bursting into tears, in spite of his
efforts to suppress them, and with difficulty collected
himself enough afterwards to add, " I wish to be
permitted to assure him, I did not act under this
15*
174 AMERICAN TRIALS.
impression, but submitted to a necessity imposed
upon me, as contrary to my own inclination, as to his
orders."
His request was readily complied with, and he
wrote the following letter to Sir Henry Clinton :
" SIR, Your excellency is doubtless already ap-
prized of the manner in which I was taken, and pos-
sibly of the serious light in which my conduct is
considered, and the rigorous determination that is
impending. Under these circumstances, I have ob-
tained General Washington's permission to send you
this letter ; the object of which is, to remove from
your breast any suspicion, that I could imagine I was
bound by your excellency's orders to expose myself
to what has happened. The events of coming within
an enemy's posts, and of changing my dress, which
led me to my present situation, were contrary to my
own intentions, as they were to your orders ; and the
circuitous route which I took to return, was imposed
(perhaps unavoidably) without alternative upon me.
I am perfectly tranquil in mind, and prepared for any
fate, to which an honest zeal for my king's service
may have devoted me. In addressing myself to your
excellency on this occasion, the force of all my obli-
gations to you, and of the attachment and gratitude
I bear you, recurs to me. With all the warmth of
my heart, I give you thanks for your excellency's
profuse kindness to me ; and I send you the most
earnest wishes for your welfare, which a faithful,
affectionate and respectful attendant can frame. I
have a mother and two sisters, to whom the value of
my commission would be an object, as the loss of
MAJOR ANDRE. 175
Grenada has much affected their income. It is need-
less to be more explicit on this subject ; I am per-
suaded of your excellency's goodness. I receive the
greatest attention from his excellency General Wash-
ington, and from every person under whose charge I
happen to be placed. I have the honor to be, with
the most respectful attachment, your excellency's
most obedient and most humble servant."
Of his captors, who were about to execute the mar-
tial law, he made but one request ; it was his wish to
die the death of a soldier, and he requested that he
might be shot. " Buoyed above the terror of death,"
he wrote, in a touching letter to Washington, " by the
consciousness of a life devoted to honorable pursuits,
and stained with no action that can give me remorse,
I trust that the request I make to your excellency at
this serious period, and which is to soften my last
moments, will not be rejected. Sympathy towards a
soldier will surely induce your excellency, and a mil-
itary tribunal, to adapt the mode of my death to the
feelings of a man of honor. Let me hope, sir, that
if aught in my character impresses you with esteem
towards me, if aught in my misfortunes marks me as
the victim of policy and not of resentment, I shall
experience the operation of these feelings in your
breast, by being informed that I am not to die on a
gibbet."
It seemed almost a refinement of cruelty that this
request should not be granted ; but by the customs
of war, a spy must suffer death in its most ignomin-
ious form, and it was the opinion of Washington and
the officers he consulted, that the present case ought
176 AMERICAN TRIALS.
to form no exception. The determination not to
grant the request was not made known to the pris-
oner, it being deemed more humane to evade a reply,
than to cause the painful sensations which a positive
refusal would inflict.
Major Andre was executed on the 2d of October,
1780, at noon, at the Dutch village of Tappan,
(Orangetown). His demeanor was such as to excite
the admiration, the respect, and the sorrow of every
beholder. With an easy and graceful carriage, a
placid, but firm and thoughtful countenance un-
nerved by fear, he met his fate ; exhibiting the cou-
rage of a soldier, and the meekness of a Christian.
He was dressed in the rich uniform of a British staff
officer, with the exception, of course, of sash, gorget,
sword, and spurs. The place of execution was near
the centre of the encampment of the army, and in
full view of many of its regiments. The officers of
the American army performing duty on horseback,
with General Greene at their head, were formed in
line on the road. The commander-in-chief was not
present. To those whom Major Andre knew, par-
ticularly those who made part of the board of general
officers who pronounced on his fate, he paid the
salute of the hat, and received the adieus of all with
ease and complacency. 1 The event is graphically
described by an eye-witness, whose account of the
execution presents a most vivid picture of the whole
scene.
" The principal guard officer, who was constantly
1 Letter of Major Benjamin Russell, in the New England Magazine,
for May, 1834.
MAJOR ANDRE. 177
in the room with the prisoner, relates, that when the
hour of his execution was announced to him in the
morning, he received it without emotion, and while
all present were affected with silent gloom, he re-
tained a firm countenance, with calmness and com-
posure of mind. Observing his servant enter the
room in tears, he exclaimed, ' Leave me till you can
show yourself more manly.' His breakfast being sent
to him from the table of General Washington, which
had been done every day of his confinement, he par-
took of it as usual, and having shaved and dressed
himself, he placed his hat on the table, and cheerfully
said to the guard officers, ' I am ready at any moment,
gentlemen, to wait on you.' The fatal hour having
arrived, a large detachment of troops was paraded,
and an immense concourse of people assembled ;
almost all our general and field officers, excepting his
excellency and his staff, were present on horseback ;
melancholy and gloom pervaded all ranks ; the scene
was affecting and awful.
" I was so near during the solemn march to the
fatal spot, as to observe every movement and partici-
pate in every emotion, which the melancholy scene
was calculated to produce. Major Andre walked
from the stone house, in which he had been confined,
between two of our subaltern officers, arm in arm ;
the eyes of the immense multitude were fixed on him,
who, rising superior to the fear of death, appeared as
if conscious of the dignified deportment which he
displayed. He betrayed no want of fortitude, but
retained a complacent smile on his countenance, and
politely bowed to several gentlemen whom he knew,
178 AMERICAN TRIALS.
which was respectfully returned. It was his earnest
desire to be shot, as being the mode of death most
conformable to the feelings of a military man, and he
had indulged the hope that his request would be
granted. At the moment, therefore, when suddenly
he came in view of the gallows, he involuntarily
started backward, and made a pause. ' Why this
emotion, sir ? ' said an officer by his side. Instantly
recovering his composure, he said, ' I am reconciled
to my death, but I detest the mode.'
" While waiting and standing near the gallows, I
observed some degree of trepidation ; placing his foot
on a stone, and rolling it over, and choking in his
throat, as if attempting to swallow. So soon, how-
ever, as he perceived that things were in readiness,
he stepped quickly into the wagon, and at this mo-
ment he appeared to shrink, but instantly elevating
his head with firmness, he said, 'It will be but a
momentary pang ; ' and taking from his pocket two
white handkerchiefs, the provost marshal with one
pinioned his arms, and with the other, the victim,
after taking off his hat and stock, bandaged his own
eyes with perfect firmness, which melted the hearts,
and moistened the cheeks, not only of his servant,
but of the throng of spectators. The rope being
appended to the gallows, he slipped the noose over
his head, and adjusted it to his neck, without the
assistance of the executioner. Colonel Scammell
now informed him, that he had an opportunity to
speak if he desired it. He raised the handkerchief
from his eyes, and said, ' I pray you to bear me wit-
ness, that I meet my fate like a brave man.' The
MAJOR ANDRE. 179
wagon being now removed from under him, he was
suspended and instantly expired." '
Such, at the age of twenty-nine, was the death of this
brave and accomplished officer ; his fate was deplored
by those who had condemned him, and whose cause
he had sought to ruin. No American can read this
portion of our history without deep regret that the
sacrifice was deemed necessary ; no Englishman, who
reads it impartially, can ever assert that the whole
proceedings were not conducted by the strict laws of
war, or that the conduct of Washington was not in
all respects worthy of himself. That Major Andre
was a spy, his own admissions most conclusively
proved ; and, by the martial code, a spy must suffer
death in its most ignominious form. Under the cir-
cumstances of this case, neither Major Andre nor his
friends had any right to expect a departure from the
well established rules of war. The modern reader
may regret that Andre's last request as to the manner
of his death was not granted. But Washington was
ignorant of the extent of this astounding conspiracy,
and he acted under the deliberate advice of his offi-
cers that the circumstances of the case would justly
admit of no departure from the usual course. Nor
was the conduct of the British army in similar cases
such as to call for lenity here. 2 And although Sir
1 Thacher's Military Journal, p. 222.
8 In a conversation which Andre had with Major Tallmadge, soon
after his capture, he wished the American officer's opinion as to his
probable fate. The latter endeavored to evade the question, but when
he could do so no longer, he remarked to him as follows : " I had a
180 AMERICAN TRIALS.
Henry Clinton, in his efforts to procure the release of
Andre, argued with great ability that he could not
be properly considered as a spy, yet he made no
complaint in the narrative which he sent to the Brit-
ish government, that his arguments had been disre-
garded, or that the sentence was unjust. ' In pub-
lishing the event to the army in general orders, he
maintained the same reserve, as to the mode of
Andre's death, and made no insinuation that his
death had been caused by vengeance, injustice, or
any improper act of the enemy. " The unfortunate
fate of this officer," he said, " calls upon the com-
mander-in-chief to declare, that he ever considered
Major Andre a gentleman of the highest integrity and
honor, and incapable of any base action or unworthy
conduct."
Upon the whole, the fate of Andre cannot be
regarded as disgraceful to himself, or as casting any
stain upon the character of Washington. Both acted
in the conscientious performance of duty. But it is
a remarkable commentary on the unnatural system of
war, that a man so universally respected and be-
much-loved class-mate in Yale College, by the name of Nathan Hale,
who entered the army in the year 1775. Immediately after the battle
of Long Island, General Washington wanted information respecting the
strength, position, and probable movements of the enemy. Captain
Hale tendered his services, went over to Brooklyn, and was taken just
as he was passing the outposts of the enemy on his return." Said
Tallmadge, with emphasis, " Do you remember the sequel of this
story ? " " Yes," said Andre, " he was hanged as a spy. But you
surely do not consider his case and mine alike ? " Tallmadge replied,
" Yes, precisely similar, and similar will be your fate."
1 See also the remarks of Sir Samuel Romilly, on this subject, in his
Memoirs, I. 140.
MAJOR ANDRE. 181
loved, should meet with an untimely and ignominious
end for an act which no true soldier could blame him
for performing. In lamenting his fate, however, it
should not be forgotten that he was perfectly aware
of the dangerous character of the enterprise before
he engaged in it ; and his reward, in case of success,
was to have been proportionally great.
Major Andre was buried in an open field, near the
spot of his execution. Forty years afterwards his
remains were removed to England, and deposited in
Westminster Abbey, near the monument erected to
his memory by his royal master.
SACRED TO THE MEMORY
OF
MAJOR JOHN ANDR&,
Who, raised by his Merit, at an early Period of his Life,
TO THE HANK OF
ADJUTANT GENERAL OF THE BRITISH FORCES
IN AMERICA,
And, employed in an important but hazardous Enterprise,
FELL A SACRIFICE
TO HIS ZEAL FOR HIS KING AND COUNTRY,
On the 2d of October, 1780, aged 29,
Universally beloved and esteemed by the Army in which he served,
AND LAMENTED EVEN BY HIS FOES.
His gracious Sovereign,
KING GEORGE III.
Has caused this Monument to be erected.
VOL. II. 16
TRIAL OF JOSHUA HETT SMITH
BEFORE
A COURT MARTIAL,
ON A CHARGE OF
AIDING AND ASSISTING BENEDICT ARNOLD.
NEW YORK, 1780.
The trial of Joshua H. Smith appropriately follows the foregoing
account of the proceedings against Major Andre, as it develops many
of the secret incidents of the conspiracy. The testimony in the case,
which was very voluminous, was written out by the judge advocate, and
was transmitted, with the other papers of the court martial, to the gov-
ernor of New York. They have remained in the Clinton family ever
since, never having been printed in a more permanent form than that of
a newspaper. Many years after the trial, Smith published his narra-
tive, of which the title page was as follows : " An authentic narrative of
the causes which led to the death of Major Andre, adjutant general of
his majesty's forces in North America. By Joshua Hett Smith, Esq.,
counsellor at law, late member of the convention of the state of New
York. To which is added, a Monody on the death of Major Andre.
By Miss Seward. London : printed for Mathews & Leigh, 18 Strand,
1808." This work is characterized by great bitterness, and although
the author evidently had before him a copy of the written testimony
produced to the court at his trial, he utters innumerable assertions
widely different from the testimony itself, and from his original defence.
It is a curious and interesting work, as exhibiting the character and
opinions of the writer, but is worthy of but little credit upon matters of
fact, except where the statements are confirmed by other authority.
TRIAL OF JOSHUA H. SMITH.
As soon as the treason of Benedict Arnold became
known, the commander-in-chief of the American
army took decisive and energetic measures to ascer-
tain how far the defection extended, and to punish
all who had been in any manner cognizant of the
traitor's designs. But it was satisfactorily ascer-
tained, that no just ground of suspicion could be
entertained against any of the American officers,
although the conduct of Major Varick and Major
Frank, the aids-de-camp of General Arnold, was
investigated by a court of inquiry, at their own re-
quest. There was one person, however, who had
been loud in his professions in favor of the cause
of liberty, against whom there were violent suspicions
of a want of good faith in his connection with this
affair. This was Joshua H. Smith, who went on
board the Vulture sloop of war for Andre, and in
whose house the unfortunate officer spent the night
16*
186 AMERICAN TRIALS.
and day after it was determined not to return to the
ship. Indeed, Andre had on a suit of Smith's clothes
when he was taken prisoner. But little doubt was
at that time entertained, that Smith was cognizant of
the whole plot, and he was arrested at Fishkill, in
the night of the 25th of September, 1780, by Colonel
Gouvion, a French officer, whom Washington sent
for that purpose. He was conducted, under guard,
to West Point, and from that place to Tappan, where
he was kept in confinement till he was tried by a
court martial.
Smith was by profession a counsellor at law, and
was a person of substance and well connected in the
province. The family had been previously suspected
of disaffection. His eldest brother, afterwards the
chief justice of Canada, had been banished within
the British lines at New York for his unequivocal
attachment to the British government, and another
brother was generally deemed an enemy to the revo-
lution. Smith himself was one of the delegates
appointed from the county of Orange, to oppose, in
the convention of delegates of the different counties
of the province, in 1776, the measure of independ-
ence then recommended and adopted by congress.
After his arrest he was brought before General Wash-
ington and some of the principal officers of the army,
when his account of his knowledge of and connection
with the proceedings of Arnold was so confirmed, as
to give strength to the suspicions that already existed
in regard to his good faith. He acknowledged that
he went on board of the Vulture ; and that Andre
returned with him, and that he entertained that offi-
JOSHUA H. SMITH. 187
cer at his house, and accompanied him a part of the
way towards the city of New York ; but he denied
emphatically that he was present at any interview
between Arnold and Andre, or that he was in the
least aware of Arnold's plans.
The court martial, ordered for the trial of Smith,
assembled on September 30, 1780, the day after the
examination of Andre, and continued by adjournment
about four weeks. The members of the court were
Colonel H. Jackson, President ; Lieutenant Colonel
Hait ; Major Ball ; Captains Jacob Wright, Drew,
Frye, Sandford, Fowle, J. A. Wright, Marshall,
Chase, and Tiffany. John Lawrence, Judge advo-
cate general.
The judge advocate laid before the court several
charges against the prisoner, and produced to them
certain resolutions of congress, of the 21st August,
1776, and the 27th February, 1778, respecting the
trial of inhabitants ; and he desired their opinion
whether they had a competent jurisdiction to try the
prisoner on these charges. Smith objected to the
legality or propriety of his being tried by a military
tribunal. He conceived himself only amenable to
the civil authority of the state, to which he belonged,
which had established the right of trial by jury in the
constitution then recently established. " I was an-
swered by the court," he says in his narrative, " that
I was tried by a resolve of congress, passed in the
year 1777, authorizing the commander-in-chief of the
army, to hear and try by court martial, any of the
citizens of the United States, who should harbor or
secrete any of the subjects or soldiers of the king of
188 AMERICAN TRIALS.
Great Britain, knowing them to be such, or should
be instrumental in conveying intelligence to the en-
emy, and, if found guilty, should be condemned and
executed as a traitor, assassin and spy. To this I
objected, that the resolve of congress, just alluded to,
was possibly passed anterior to the adoption of the
several constitutions of the United States, when there
were no legal establishments, and was introduced to
supply the want of civil jurisdictions in that early
stage of the war ; and that I could not conceive how
a mere resolve of congress could abrogate a funda-
mental article in any of the civil constitutions of the
United States ; for, if so, it made the military para-
mount to the civil authority, and would establish, if
the court were to proceed on my trial, a precedent
dangerous to the liberties of the subject ; that it
would excite eventually the indignation of my fellow
citizens, in destroying one of the established princi-
ples of liberty belonging to the subject, and the vio-
lation of the right of trial by jury, one of the principal
reasons assigned by congress for their separation from
Great Britain, in the declaration of independence, as
well as allowing the military an extent of power in-
compatible with a free government."
The court, after consideration, were of opinion that
they had jurisdiction under the resolution of congress
of the 27th February, 1778, to try the prisoner upon
one of the charges preferred against him, and as to
the three others, they were of opinion that they had
not jurisdiction.
The judge advocate, prosecuting in the name of
the United States of America, then exhibited the
JOSHUA H. SMITH. 189
following charge against the prisoner, namely, " For
aiding and assisting Benedict Arnold, late major gen-
eral in our service, in a combination with the enemy
to take, kill and seize such of the loyal citizens or
soldiers of these United States, as were in garrison at
West Point and its dependencies."
To this charge the prisoner pleaded not guilty.
The judge advocate then called and examined wit-
nesses in support of the prosecution. Their testi-
mony was as follows :
Samuel Cahoon. On the night of the 21st of
September instant, I went on board the Vulture sloop
of war, belonging to the enemy, with Mr. Smith.
He had been up at Fishkill, as he told me, and came
down in the evening ; he said he wanted to speak a
word with me, and I went with him up to his room,
when he asked me to go with him that night a piece
down the river. I told him I did not want to go ;
he did not urge me hard. Then he said he must
send me up express to General Arnold, and we should
go over to the other house ; but, upon my telling
him I had no mind to go, he seemed to urge my
going, and said it was great business. I then agreed
to go. We went over to his brother's, where I con-
sented to go to General Arnold's, and was furnished
by Mr. Smith with a horse, and a paper to Major
Keirce, and went off. I went on as fast as I could,
and got to General Arnold's just before sunrise ; the
general was not up. I delivered the letter from Mr
Smith to a gentleman there ; and I was informed by
the general, that there was no occasion for an an-
190 AMERICAN TRIALS.
swer ; and I was told by him I might go on as quick
as I could. I returned back, and sometime in the
afternoon General Arnold passed me, and rode to-
wards Mr. Joshua H. Smith's house. (Mr. Smith,
the prisoner, here acknowledged that General Arnold
arrived at his house that afternoon.) Near sundown,
Mr. Smith spoke to me as I was going for the cows,
and told me to come up, as the general wanted to
speak with me. I went up with Mr. Smith to the
room where General Arnold was, who asked me to
go with him a piece that night. I said I could not
go, being up the night before, and told him I was
afraid to go ; but General Arnold urged me to go,
and told me if I was a friend to my country, I should
do my best. At last I asked the general where he
wanted me to go, and the general and Mr. Smith
said on board of the ship in the river ; that there was
a man there the general wanted to see very much.
Upon my asking the reason why he could not stay
till the morning, General Arnold said it must be done
that night ; and upon my saying I could not go
alone, Mr. Smith desired me to go and fetch my
brother. I went, and my wife being dissatisfied with
my going, I went back to General Arnold, and told
him I did not want to go, and told him there were
guard boats out ; he said there was no danger of
them, and added if I did not go, he would look upon
me as a disaffected man. I then went and fetched
my brother ; and when we came back we stood out
a great while before we consented to go ; but at last
we did, and there being a boat in the creek, myself,
Mr. Smith and my brother went to the boat, and
JOSHUA H. SMITH. 191
rowed down to the ship. During my conversation
with General Arnold and Mr. Smith, Mr. Smith was
in and out of the room, and I do not recollect any
particular conversation passing between Mr. Smith
and General Arnold separate. No other conversation
passed between Mr. Smith and myself on the way
down, that I recollect, but Mr. Smith telling me not
to pay anything to the people on board the vessel,
which was General Arnold's charge likewise. We
were hailed by the vessel, and Mr. Smith answered,
" friends," and said we were from King's Ferry, and
bound to Dobb's Ferry ; we were ordered alongside
immediately. When we came alongside of the ship,
Mr. Smith went on board and stayed, I think, not
longer on board than a quarter of an hour ; he re-
turned on board the boat with a man. We set off
from the vessel, and rowed on shore : we landed at
the Lo:ig Cove, a little below Haverstraw, about half
a mile below the dock, and about six miles from
Stony Point. I heard no conversation between Mr.
Smith and this person on the way ashore. I sat in
the bow of the boat, and they in the stern, and I
think if there had been any I could have heard it.
When we came on shore, I heard the noise of a man
at a bank above ; Mr. Smith went up, and returned
immediately. The person we brought on shore then
went up, and Mr. Smith staid with us, and asked
my brother and myself if we would go on board the
vessel again that night. I told him I was fatigued,
being up the night before, and could not go. All
this time the other person was not present, and I do
not know where he was, but suppose he was up
192 AMERICAN TRIALS.
against the bank, as he went that way. Mr. Smith
said if we could not go we must do as we thought
best, and would leave it to us, but made us no offer
to return on board the vessel that night.
The witness further testified, that himself and his
brother then went up in the boat to Haverstraw
creek, and Smith staid on the shore with them from
their first landing, except when he went towards the
bank and returned, as he had mentioned, until he
went in the boat with them to Haverstraw creek.
From thence the witness went with Smith to his
house, but did not see the person there that he
brought on shore from the vessel. The person they
brought on shore had a dark-colored coat on, but
whether black or blue, the witness did not know, as
he did not take notice of it. He never carried Mr.
Smith on board the vessel again ; neither had he
been on board before with him, and did not see Gen-
eral Arnold at Mr. Smith's house when he returned
that night. The witness had no conversation with
Mr. Smith about carrying the man they landed on
board again, except the conversation that took place
on the shore, as he before mentioned ; and he re-
ceived no reward or promise from Smith for bringing
this person on shore ; but testified that General Ar-
nold had promised him fifty weight of flour, which
was before he went on board with Smith. General
Arnold ordered them, when they went down in the
boat, to take a sheep skin with them, to put around
their oars, and the witness put one around his.
Questions by Smith, the prisoner. Don't you
recollect my telling you, in going down to the creek,
JOSHUA H. SMITH. 193
my intention in going was for the service of the
country ?
" You did tell me so,"
" Did General Arnold persuade you a great deal
to go ; and did I appear anxious for your going ? "
" He did. You did not appear anxious."
" Whose business did you suppose it to be ?"
" General Arnold's and yours ; but I did not know
whose it was. I was urged very hard to go by the
general."
By the Court. Did Mr. Smith or General Ar-
nold tell you not to tell your brother what was wanted
of him until he arrived at your house ?
" Mr. Smith did."
" When you returned, did Mr. Smith tell you not
to mention to anybody that you had been on board
the vessel ? "
" Not that I recollect."
" Did you object to going on board at first be-
cause you thought it was wrong, or because you were
tired ? "
" It was because I was tired, and I thought it
wrong, also, to go in the night at that time of night."
Joseph Cahoon. Last Thursday night week Mr.
Smith sent word to me to come over to his house.
When I came there he met me at the door, and sat
down on the bench with me. On asking him what
was his desire, he said he wanted me to go with him
that night. On asking Mr. Smith where he wanted to
go, he said, a little way down the river. On asking
him how far, and where, he said, I think, on board of
the man-of-war, or ship I am not certain which
VOL. H. 17
194 AMERICAN TRIALS.
as a flag on business of General Arnold. I told
him I was sorry I was wanted for that purpose, and
said upon any other thing I was willing to serve him
or the general. Mr. Smith asked me why, and said
there was no hurt in going, as it was general busi-
ness. On asking him whether he did not think we
should be taken up by the water-guard, (meaning
the continental water-guard) he said, no for he
had a pass from the general to go, and the counter-
sign ; and said the countersign was " congress,"
which, when he came up he must give, and so pass.
Mr. Smith made answer to me, and said, " Have you
not always heard that I was a friend to the country,
and did that which was always best for the coun-
try ? " I told him " yes," and always thought he
was ; upon which I asked him why the flag was not
sent down in the day-time, as it ought to be done ?
He said, because it was to be kept private from the
inhabitants and common men. The officers, he said,
knew it, and there was a man on board that the gen-
eral wanted to speak to, and he must be brought on
shore and carried on board again. I then told him I
did not choose to go. He said there was no hurt in
going at all, and if anything should come against me,
he would defend me, and clear me from all. I told
him he could not clear me if there was anything bad
in it. He afterwards got up and went into the house
to General Arnold. General Arnold came out soon
after Mr. Smith went in, and said, upon his coming
out, that I need not be afraid to go with Mr. Smith,
that it must be done for the good of the country, and
it was not done in private, for the officers of the ferry
JOSHUA H. SMITH. 195
knew it, the captain of the water-guard also, and had
the countersign, and it was not a secret to any per-
sons but the inhabitants and common men. I thought
at first it was not good, but thought otherwise upon
the general's mentioning that it was known, as I have
mentioned. The general also said Major Keirce had
agreed to send him up a boat to the creek, at Colonel
Hay's landing place, but had not done it, and he
did not know the reason ; upon which Mr. Smith
asked me if I would take his horse and ride down to
the ferry, to see whether the boat was come. I said
no, he might send his negro ; he ordered the negro
to get the horse, and the negro went off. While the
negro was gone, myself and my brother concluded
not to go ; but both were afraid to tell the general of
it, and did not go to him, and the time passed away
until the negro came. When he came, I asked him
what news concerning the boat ? He said he did not
know, and he brought a letter from Major Keirce to
the general, upon which I told my brother I would
go up and tell the general. I had no mind to go ;
as I was going up I met Mr. Smith in the entry, and
he told me the general wanted to speak with me.
He passed out to the stoop, and I went into the room
to the general, who was sitting by a table with paper.
On his speaking to me, I acquainted him I had no
mind to go, as it was late, and said I would rather
go in the morning. General Arnold said he must go
to head-quarters by ten o'clock in the morning, and
if I would not assist when I was required for the good
of my country and congress, he would put me under
guard immediately. Upon which Mr. Smith came
196 AMERICAN TRIALS.
in, and I went out, and just after this Mr. Smith came
out to the stoop, asked my brother and myself if we
would have a dram, and gave us each one. After-
wards the general came out, and Mr. Smith and my-
self and brother were there together. The general
and Mr. Smith talked together, but what they said I
do not know ; they were withdrawn from us ; the
distance I cannot estimate, but it was such a distance
that I could not hear what they said, as they talked
low ; they were no time of any value together ; may
be two minutes, may be more or less. My brother,
Mr. Smith and myself went down to the landing,
about half a mile below King's Ferry, and passed off in
the boat, and I think it was pretty well near midnight
when we got off. Mr. Smith had on a whitish coat,
a pretty large one, which I think I have seen him
wear before. Mr. Smith told us, on the way, that
when we came on board the vessel, we had nothing
to do but to stay on board the long boat, and when
asked questions, to say nothing at all. When we
came to the vessel they hailed us, and Mr. Smith
answered " halloo," or some such a word, but I think
it was not the word " friend," and upon being asked
where we were frohi, Mr. Smith answered, " from
King's Ferry," and were bound to Dobb's Ferry, and
they ordered us to come on board immediately.
When we got alongside of the ship, Mr. Smith went
on board, and staid a little time, but I cannot say the
exact time, it might be a quarter of an hour, or a
little longer, but the exact time I cannot say ; I was
asked several questions by men who came on board
the boat, such as where we were from, and going to,
JOSHUA H. SMITH. 197
and who he was that came on board the boat ; at
last orders came for every man, who was on board
the boat belonging to the ship, to come out immedi-
ately. Mr. Smith, after a little time, came on board
the boat, and another man came with him, who had
a dark-colored coat on, which I looked upon to be a
watch-coat. I thought it was a watch-coat, because
it covered the whole of his clothing ; then we rowed
on shore at a place called the Long Clove, about six
miles from Stony Point, where we landed ; and Mr.
Smith went up towards the bank, a little way from
the water. I heard Mr. Smith and the person in the
boat talk a little on the way ashore, but how much I
cannot say, and I did not understand what they said.
I did not see any man by the bank ; Mr. Smith staid
a little while there, came back, and the other man
went up, whom I did not see afterwards. When
Mr. Smith returned, he staid with us, and came up
with my brother and myself in a boat to a place
called Crom's Island, in Haverstraw creek. When
we landed, I stepped out and got down under a bush.
I was drowsy, and had no conversation with Mr.
Smith about returning to the vessel that night, neither
had I any conversation with Mr. Smith about return-
ing to the vessel with that man afterwards, and I
declare I have not seen Mr. Smith from that time
until this day. General Arnold promised me fifty
weight of flour for going on board the vessel, but I
never saw it ; Mr. Smith did not promise me any-
thing for it. Mr. Smith, after his return, did not
desire me to keep it a secret. Upon the boat com-
ing alongside the vessel the tide was flood, and we
17*
198 AMERICAN TRIALS.
were all three upon our legs, keeping the boat from
the side of the vessel, and one on board said, " come
on board," upon which Mr. Smith went. I did not
hear Mr. Smith inquire for any person upon his
going on board, but lost sight of him immediately, as
he was upon deck. After we got out from the ship,
Mr. Smith told me to row ashore to Long Clove.
He steered the boat himself. The time we arrived
at the Long Clove I do not know ; but it was about
daybreak when we got to Crom Island, and when we
got to Mr. Smith's house it was after daylight. We
were not hailed on our way down, but by the ship ;
neither were we on our way returning. When we
came to Mr. Smith's house, after our return from the
ship, to the best of my knowledge I saw General
Arnold come out of Mr. Smith's house and go into
the necessary house. He walked lame, and had on
a blue coat and white breeches. I am sure he was
the same man who I saw before I went on board the
vessel, who was called General Arnold, as well as I
can judge from my knowledge of men. Mr. Smith
gave me a sheep-skin, when I left his house, and car-
ried it down to the boat, and he and myself muffled
my oar with it, and my brother muffled the other,
and after we returned to Crorn's Island, Mr. Smith
told us to take the sheep-skin off from the oars, and
throw the oars upon the grass ; one of the sheep-skins
was taken off.
Colonel James Livingston. ' I supposed there
1 Colonel Livingston was himself, at one time, almost suspected of
being acquainted with Arnold's plans. He commanded at Vcrplanck's
Point, and from the proximity of his post to the enemy, and several
JOSHUA H. SMITH. 199
was an intimacy between Mr. Smith and Benedict
Arnold, from the passes the former had from General
Arnold. Mr. Smith was at my quarters two or three
times, within a fortnight and three weeks ago, and
previous to General Arnold's going off to the enemy.
His stay was very short, and he produced me a pass
from General Arnold, to pass by the guards at all
times ; he also had an order from General Arnold for
a light boat, on the quarter-master, at King's Ferry,
and General Arnold requested me to see that the
quarter-master furnished him with a light boat, if
there was one to be had. Mr. Smith then informed
me, that he was upon a plan, in conjunction with
General Arnold, to gain intelligence of the utmost
importance, and that he expected to meet a gentle-
man for that purpose near Dobb's Ferry, but did not
mention the time when he expected to meet him.
He then agreed with the lieutenant of my guard-
concurring circumstances, might be very fairly presumed to have been
either directly or indirectly concerned in Arnold's manoBUvres. By a
very laconic letter, Washington ordered that officer to come to him
immediately. Livingston expected, at least, a severe scrutiny into his
conduct, being fully aware, though conscious of his innocence, that cir-
cumstances were unfavorable. But Washington made no inquiries into
the past, nor uttered a syllable that implied distrust. He told Colonel
Livingston, that he had sent for him to give him very special orders, to
impress upon him the danger of his post and the necessity of vigilance,
and to communicate other particulars, which could only be done in a
personal interview. In conclusion he said it was a source of gratifica-
tion to him, that the post was in the hands of an officer, whose courage
and devotedness to the cause of his country, afforded a pledge of a faith-
ful and honorable discharge of duty. Let the reader imagine the grate-
ful emotions of Colonel Livingston, his increased esteem for his com-
mander, and the alacrity with which, under such an impulse, he went
back to his station of high trust and danger. Sparks's Life of Arnold,
p. 252.
200 AMERICAN TRIALS.
boats to have a watch-word, so that the lieutenant
might let him pass at any time, by day or night, by
the boats, without his being detained. I neither
heard nor saw anything of Mr. Smith until last Fri-
day night week, just before dark. He stopped at
my marquee for a few minutes. I asked him where
he was going. He said up towards General Ar-
nold's, or that route, and I gave him one letter to be
delivered to General Arnold, and another to Governor
Clinton, as he had informed me it was likely he
would go that route. I then urged him to stay
awhile and take supper or a drink of grog. He
informed me that there was a gentleman waiting for
him, who had just rode on, and was in a hurry to get
off. He informed me his business was very urgent,
and I did not insist on his staying any longer. He
then rode off and I did not see the person who
was with him, it being dark and he having rode for-
ward.
" Do you know of Mr. Smith having made use of
the guard-boat or watch- word ? "
" I do not know."
" Did Mr. Smith inform you, before the time you
have mentioned, that he was employed by General
Arnold to get intelligence ? "
" Mr. Smith never was more than two or three
times at my quarters, and mentioned it the different
times he was there."
" When Mr. Smith was at your quarters, and
mentioned that there was a person with him, did
you not desire him to request the gentleman to walk
JOSHUA H. SMITH. 201
" I did, and he informed me the gentleman had
rode on slowly, and he was in a hurry to go after
him."
Colonel Harrison was next produced on the part of
the prosecution and sworn.
Mr. Smith objected to Colonel Harrison, and also
to Lieutenant Colonel Hamilton, being admitted to
give evidence respecting any confession that he might
have made in their presence. The court, however,
upon consideration, decided that these officers should
be admitted to give evidence upon this point.
Colonel Harrison. 1 I was at Robinson's house
on Tuesday or Wednesday last, to the best of my
recollection, and was requested by one of the gentle-
men of his Excellency's family, or some officer who
was there, to go into a room to hear the examination
of Mr. Joshua Smith, the prisoner, who I understood
had been apprehended the preceding night, and
brought there by Colonel Gouvion, in consequence
of orders from General Washington. When I went
into the room, I found the General, the Marquis de
la Fayette, General Knox, Colonel Hamilton, and
Mr. Smith. In a little time after, to the best of my
recollection, the general mentioned to Mr. Smith,
that he must be apprized of what had happened, and
told him that he thought, or advised him, I don't
recollect which, that he had better make a candid
confession of all he knew with respect to the matters
1 Harrison's testimony, says Smith, in his narrative, was imperfect on
the most material points, as he detailed those parts that militated
against me in support of the charge, and excluded those that favored my
afe. p. 133.
202 AMERICAN TRIALS.
that had been carrying on, I think by General Ar-
nold, and added again that it might be better for him
to act with openness and candor. Mr. Smith upon
this made the most solemn protestations of his inno-
cence, and of his ignorance that General Arnold had
been carrying on any matters injurious to the states ;
professed himself to be a warm friend, and that his
person and property, or his purse, I don't recollect
which, had been devoted to their service. Mr. Smith
continued to repeat his innocence of the matters then
under consideration ; and, to the best of my recol-
lection, made an appeal to the Almighty, who, he
said, could witness the integrity of his heart. After
having made these asseverations, the general observed
to Mr. Smith that he was in possession of facts and
evidence, that would place his conduct in a very
different point of view with respect to the matter in
question. Till this period Mr. Smith appeared to
support himself with firmness and consistency. He
then proceeded to tell the general that he would
relate all he knew, and on being asked to inform
whether an officer, or the adjutant general of the
British army, I don't recollect which, under the as-
sumed name of John Anderson, had not been brought
on shore by him from the Vulture ship of war, he
said that he had. Mr. Smith said he had been pre-
vailed on, on the night of the preceding Thursday,
to go on board that vessel by General Arnold, to
carry a letter or a message, I don't remember which,
to Colonel Beverly Robinson, and whom he expected to
bring with him when he came back in the first instance,
for the purpose of an interview with General Arnold,
JOSHUA H. SMITH. 203
for intelligence or on business, I don't recollect pre-
cisely the expression, of importance to the states.
That as soon as he was on board of the vessel, it
was concluded that an officer, who, Mr. Smith said,
he only knew by the name of John Anderson, should
return with him instead of Robinson. That the inter-
view took place at the shore between Arnold and this
officer. That Arnold and the person or officer whom
he had brought on shore, were at his house after-
wards the same night that he furnished this person
under the assumed name of John Anderson, with a coat
to disguise himself, and that he had taken the uniform
coat, which he, John Anderson, had on before, and
retained it. That he, Mr. Smith, crossed the ferry
at Stony Point, on Friday evening, in order to con-
duct Mr. Anderson to the White Plains, on his way
to New York, and was stopped, I think he said, to
the best of my recollection, that night, at Crom pond,
or near it. Mr. Smith, in the course of the examina-
tion, invariably declared that his object was to obtain
intelligence for us, and assigned, upon its being ob-
served by the general or some gentleman who was
present, that the mode he had adopted appeared illy
calculated for that end, as he was to procure it on
board one of the enemy's ships of war, that he
thought it probable Colonel Robinson might be dis-
posed to give such as would be beneficial to us, or
serviceable, from a wish to have some favor, or I
think, countenance shown with respect to his estate,
which was in our hands. It was observed to Mr.
Smith, that supposing it possible to conceive that he
was really serious in the matter with respect to Rob-
204 AMERICAN TRIALS.
inson, that these motives could not exist in the case
of Mr. Anderson, who had no property amongst us.
Mr. Smith appeared much embarrassed, and an-
swered that he could only say that Anderson was
sent on shore instead of Robinson. As it appeared
mysterious to the gentlemen who attended the exam-
ination, why this officer, under the name of John
Anderson, was not returned on board of the ship
after finishing his business, by Mr. Smith, some of
the company were induced to ask the reasons. Mr.
Smith replied that it was because he, meaning him-
self, had the fever and ague so bad that he could not
go on board, though he had confessed, but a little
before, that he meant to proceed with him as far as
the White Plains by land, or somewhere in the
county in the vicinity of that place. The examina-
tion of Mr. Smith, as well as I recollect, ended here,
and he was remanded under guard. In a little time
after, it was observed by some of the gentlemen, that
it would be essential to gain possession of this uniform
coat I have mentioned, when I was requested by the
general to pursue such measures for the purpose, as
appeared to be necessary. I had previously under-
stood that Captain Cearns, of Lee's Light Horse,
was at Mr. Thomas Smith's, brother of Mr. Joshua
Smith, and I meant to write him an order to get the
coat, in consequence of the request from the general.
I wished, from motives of policy as well as humanity,
to make as little noise about the matter as the case
would admit, and applied to Mr. Joshua Smith, the
prisoner, to know whether he himself would not give
an order that Captain Cearns might get the coat.
JOSHUA H. SMITH. 205
Mr. Smith accordingly wrote a letter addressed to
his brother, Thomas Smith, to deliver to Captain
Cearns, of Lee's Light Horse, a uniform or regimental
coat, I don't recollect which, which he would find up
stairs in the drawers, at his, meaning Joshua Smith's
house, and which coat, I understood, was the uniform
coat which trie person under the name of John An-
derson had left with Mr. Smith. Mr. Smith deliv-
ered the letter to me, which I transmitted to Captain
Cearns. The matter ended here, and I had no con-
versation with Mr. Smith afterwards. Mr. Smith did
not acknowledge the officer who came on shore with
him from the Vulture, under any other name that I
recollect than that of Anderson.
" Did Mr. Smith mention that this person under
the name of John Anderson, and General Arnold,
were at his house the Thursday night after he had
brought him on shore from the Vulture ? "
" To the best of my knowledge he did, but whether
he did mention it explicitly I will not undertake posi-
tively to say ; but from the whole tenor of Mr.
Smith's confession, I had not a doubt but that the
person under the character of John Anderson and
General Arnold, were at his house."
The Court. Did Mr. Smith mention that he
lodged with the person under the name of John An-
derson,, at Crom pond ?
" I don't recollect that he mentioned that he
lodged there. I think, to the best of my knowledge,
that Mr. Smith mentioned that when they were
stopped at Crom pond, or when they stopped, I can't
precisely charge my memory with the expressions,
VOL. II. 18
206 AMERICAN TRIALS.
they were told, that if they proceeded, they would
run the risk of being taken up, as there were parties
of militia below, or of cow-boys, which I understood
were parties from the enemy, who would be equally
dangerous, as it was in the night."
" Did Mr. Smith mention how long General Ar-
nold and this person under the name of John Ander-
son, continued at his house ? "
" I don't recollect that the time of their being
together there was mentioned."
" You are positive that Mr. Smith mentioned that
this person under the name of John Anderson, and
General Arnold, had an interview at his house ? "
" I am positive Mr. Smith said they had an inter-
view at the landing, and from the whole tenor of
Smith's confession, I had not a doubt in my mind,
at the time, that they were at his house ; but I am
not certain that Mr. Smith explicitly declared they
were, though I verily believe he mentioned it."
The Prisoner. After the time you say you thought
me firm, and previous to my proceeding in this con-
fession, did not his Excellency desire me to give an
account of my conduct for the last ten days past,
and whether I did not know General Arnold was
gone off?
" I recollect that you, whether by request of the
general or of your own accord, undertook to give an
account of your conduct for some days preceding.
It is possible and even probable, that the general
might have asked such a question respecting General
Arnold, but I don't recollect it precisely."
" Did not General Washington first mention that
JOSHUA H. SMITH. 207
this man I brought on shore was the adjutant of the
British army ? "
" I believe General Washington, when he asked
you if you had not brought a person from on board
the Vulture, called him an officer, or the adjutant
general of the British army."
" From this account I gave, did I not say that
General Arnold assured me that Robinson was to
give intelligence ? "
" You mentioned, that in the first instance you
expected that Colonel Robinson was to come on
shore from the Vulture with you, to meet General
Arnold. You said repeatedly and constantly, that
your object was to gain intelligence which would
be important and beneficial to the states. I don't
recollect that you mentioned that General Arnold
assured you that Robinson was to give intelligence,
but you might have said so."
" When I mentioned that Anderson and not Rob-
inson came on shore, did you not hear me say that I
conceived that Anderson was to do Robinson's busi-
ness, and give his communications to General Ar-
nold ? "
" You said that you imagined that matters were so
arranged, on board the vessel, that Anderson was to
answer the same purposes."
" Was I not particularly interrogated by some of
the gentlemen present, with respect to Anderson's
dress, when I first saw him on board the ship ? "
" You were questioned about his dress, and to the
best of my recollection, said that he had on a uniform
coat, and a blue surtout or a great coat over it."
208 AMERICAN TRIALS.
" Did I assign no other reason but that of being
unwell, for not returning Anderson on board the
ship ? "
" To the best of my knowledge you said you
could not do it, as you had the fever and ague.
When it was observed that it was strange that a man
was in such a situation as not to be able to go a few
miles by water, and could go a long journey, or a
considerable distance by land, you might have added
some other reasons, but if you did, I do not recollect
them."
Lieutenant Colonel Alexander Hamilton. 1 I was
present when Mr. Smith, the prisoner, made his con-
fession before the gentlemen already mentioned by
Colonel Harrison, which was substantially as fol-
lows : That he had been employed by Major Gen-
erals Howe and Arnold, for the purpose of procuring
intelligence from the enemy ; that General Arnold
informed him of an interview he was to have with
Colonel Robinson, of the British army, in which he
assured him he expected to derive information of
importance, and wished to engage Mr. Smith to go
on board the Vulture sloop of war, then lying in the
North river, to bring Colonel Robinson on shore for
the purpose of that interview ; that he gave Mr.
Smith an order for a boat to execute this commis-
1 " General Knox and Colonel Hamilton came, in testimony, more
pointed to the exact truth of what I had declared, especially the latter,
whose evidence was perfectly correct, by which was anticipated what
must have been otherwise extracted in cross-examination ; yet Hamil-
ton artfully threw in a chain of reasoning, tending to prove my being in
full knowledge of General Arnold's intentions." Smith's Narrative,
p. 133.
JOSHUA H. SMITH. 209
sion ; that he went secretly and in the night on board
the Vulture, to the best of my recollection, with a
note from General Arnold to Colonel Robinson ; that
his being on board was known not only to Colonel
Robinson, but to the officers of the vessel ; that
instead of Colonel Robinson, a person under the
name of John Anderson, came on shore with him ;
that General Arnold and Anderson were that night
and the next day at his (Mr. Smith, the prisoner's)
house ; that he was an absolute stranger to the busi-
ness they transacted ; that he was not able to return
with Mr. Anderson in the same manner he had
brought him to the interview, on account of his hav-
ing the fever and ague ; that he therefore took a
different mode, and proceeded with him by King's
Ferry towards the White Plains ; that he left him on
the road, I do not exactly recollect at what place, and
returned himself ; that either previous to his setting
out, or in the course of the journey, he assisted Mr.
Anderson to exchange the clothes he had for others,
which Mr. Smith furnished, I believe he said, at the
desire of General Arnold ; that he understood from
General Arnold, before he undertook the commission,
that his (General Arnold's) hopes of procuring intel-
ligence from Colonel Robinson were founded on
Robinson's desire to make terms for the safety of his
estate. Mr. Smith, in the course of his examination,
asserted his innocence of the transactions between
General Arnold and Mr. Anderson, with very solemn
protestations and appeals to heaven. On being
pressed as to the possibility of his having given this
interpretation to the business he was concerned in,
18*
210 AMERICAN TRIALS.
from the circumstances of Colonel Robinson having
come up in a king's vessel, which must necessarily
have been with the privity of Sir Henry Clinton,
having deputed a third person to represent him in a
matter which would have been to all intents and
purposes treason, the giving intelligence to an en-
emy, as pretended by General Arnold, and of his
having been received, and a third person sent, in
presence of the officers of the ship, all which denoted
that the object of the interview must have had the
sanction of Sir Henry Clinton, as before intimated,
and consequently must have been for promoting the
interests of the enemy. Mr. Smith appeared at first
a good deal embarrassed, but finally replied that he
acted from the perfect confidence he had in General
Arnold, whose rank and services to the country would
not suffer him to entertain the least suspicion of his
being capable of entering into a treasonable combi-
nation with the enemy. Mr. Smith, on being ques-
tioned if the person he brought on shore was dressed
in a uniform, answered that he could not perfectly
distinguish whether he wore a uniform or not, but
that he had on a red coat, with a blue surtout. Mr.
Smith also acknowledged, in the course of his exami-
nation, to the best of my memory, that he had carried
a pass on board the Vulture for John Anderson,
from General Arnold. From the subsequent cir-
cumstances, this John Anderson proves to be Major
Andre, adjutant general to the British army, who has
recently suffered death.
The Court. Did Mr. Smith mention his hav-
ing been on board the Vulture before he brought
JOSHUA H. SMITH. 211
this person, under the name of John Anderson, on
shore ?
" Not to my knowledge. I was not present at the
whole of the confession."
The Prisoner. Was not my reason given for
going on board of the ship in the night, and was it
not that General Arnold told me he did not wish the
source of his intelligence as yet to be known to every-
body ?
" I have a faint recollection that it was."
" Don't you recollect that I said I was very roughly
used by the officers of the watch on board the
ship ? "
" I think I do, on your first arrival, or rather on
your approach."
" How then could it be with the officers' privity
that I came on board ? "
" I did not suppose that the officers of the ship
had a previous knowledge of your intention to come
on board, but in the roughness of sea manners, gave
you the kind of reception you mentioned to have
met with, as you complained of no rude treatment by
the other officers after you were once known, and
acknowledged that they were acquainted with your
communication with Colonel Robinson. By commu-
nications I mean that you came on board on business
with Colonel Robinson. You acknowledged the
officers of the ship were also acquainted with the
person, John Anderson, having been sent on shore
with you."
" Do you mean that I declared my ignorance as to
General Arnold's designs, as they were then discov-
212 AMERICAN TRIALS.
ered, or of General Arnold's intentions in sending
me on board the vessel ? "
" You declared your ignorance of any criminal in-
tention whatsoever in General Arnold."
" Don't you recollect my saying that General Ar-
nold, when he applied to me for a coat for Anderson,
said he was only a merchant, and from pride had
borrowed a coat from an officer in New York ? "
" I do not."
" Don't you recollect my appealing to you, before
the gentlemen present, at the time of the examina-
tion, with respect to my political character, as far as
you knew it, and whether a charge of that kind could
be laid against me, without the highest proof of my
being knowing to Arnold's design ? "
" I recollect you appealed to me respecting your
political character, and that my answer was that in
the early part of this contest, you had exhibited
appearances of an intemperate zeal for the cause of
America."
" What do you mean by an intemperate zeal ? "
" An excessive warmth."
" Was not my character in New York always es-
teemed as a warm friend to the cause of America,
before we quit the city, as far as came to your knowl-
" Many persons esteemed you as a zealot on the
popular side, though intimations of doubt have been
made to me of the sincerity of your pretensions, I
believe from a suspicion of your family."
" Was it from any suspicions against me, or from any
part of my political conduct, that you could learn ? "
JOSHUA H. SMITH. 213
" Not from any part of your own political con-
duct."
" Do you recollect my conduct in New York on
the 6th of March, 1775?"
" Not precisely on that day, but on the preceding
evening I do recollect it. You then appeared active
to promote the interest of the whig party, and I be-
lieve at that time you were sincere."
" Before I gave a detail to General Washington,
at Robinson's house, of my transactions with General
Arnold, was I not requested to do it, the general
limiting me to the last ten days ? "
" You were asked to give an account of everything
you knew of General Arnold's transactions within a
short time past. I do not remember the precise
period."
" Was it in consequence of threats from General
Washington, that I gave that account ? "
" Colonel Harrison has already given a just idea of
what passed from the general to you on that occa-
sion. The general expressed himself with some
warmth."
" Did you not hear his Excellency tell me that
General Arnold was gone off to the enemy ? "
" I believe I did."
" Did I not confess that I was ignorant of his going
off, upon the general's informing me of it ? "
" I believe you did."
" Don't you recollect that General Washington
mentioned to me, that this man whom I brought on
shore by the name of John Anderson, was the adju-
tant general to the British army ? "
214 AMERICAN TRIALS.
" I think I do."
" Did I not appear very much surprised at hearing
it?"
"I do not exactly recollect your appearance at
this time."
Question by the prisoner to Colonel Harrison.
Did you not see surprise in my conduct, on being
informed that the person whom I brought on shore
was adjutant general to the British army ?
Harrison. As I observed before, you in the com-
mencement of your examination behaved with great
firmness and great consistency, but on matters being
disclosed to you, and the general's telling you it
would be better to make a candid and open confes-
sion, you discovered a good deal of surprise ; and
here I would observe, that it was only the afternoon
of the preceding day that General Washington him-
self had received an account of the capture of Mr.
John Anderson, who afterwards proved to be Major
John Andre, adjutant general to the British army,
and of the escape of General Arnold to the enemy ;
supposing your examination was on Tuesday, it was
on the preceding day that General Washington had
received an account of the capture of Major Andre,
the adjutant general to the British army, and of Gen-
eral Arnold's having gone off to the enemy ; and
that you had been seized, the night of General Ar-
nold's escape, by Colonel Gouvion, and brought down
to Robinson's house in the Highlands, and probably
had not had the means of knowing these events, un-
til the period of your being informed of them by the
general. As to the motives of your surprise, I can-
JOSHUA H. SMITH. 215
not undertake to say what they were. I recollect
that Mr. Smith mentioned, in the course of his exam-
ination, that when he approached or was near the
Vulture, the precise expressions I do not recollect, he
was hailed, and received some rough language, but I
did not understand, after he was on board the vessel,
that he received any incivilities or rough treatment
from the officers of the ship. I also recollect, that
upon questions being asked Colonel Hamilton, about
the mode of Mr. Anderson's going to Mr. Smith's
house, it appeared to me that Mr. Smith left Arnold
and Anderson together at the place of landing, and
that he himself proceeded in the boat with the two
persons to some upper landing, and that there had
occurred some difficulties about going on board the
vessel again.
Question by the prisoner to Lieutenant Colonel
Hamilton. Don't you recollect that when I said
that I had brought one Anderson on shore, I said
that I understood that Anderson was to negotiate
Robinson's business with General Arnold ?
Hamilton. You did profess that supposition.
Question by the court to Samuel Cahoon. Do
you know who wrote the letter you carried to Gen-
eral Arnold ?
Cahoon. I don't know, I got it from Mr. Smith ;
I don't know whether the letter was sealed or not ;
it was night when I got it, and had it not out of my
pocket until I got to the general's.
" Had you particular directions not to deliver that
letter to any person but the general ? "
" To the best of my recollection I had not."
216 AMERICAN TRIALS.
Cornelius Lambert. The prisoner passed King's
Ferry betwixt daylight and dark, in company with
another gentleman and a negro with him ; the negro
I took to be Mr. Smith's waiter, but the day of the
week, or day of the month I can't recollect ; it was
last month, and as near as I can tell it was the week
before last, and was near about the time of the firing
at one of the enemy's vessels, in the North river, but
whether before or after I can't tell ; Mr. Smith
seemed to hurry us a good deal, and told us he
would give us something to revive our spirits ; this
was upon the water as we were going over ; I do
not recollect the person's name who crossed with Mr.
Smith ; it was between daylight and dark, and as
near as I can tell, he had on a large coat, dark-co-
lored, either brown, blue, or black, and had on a
round hat and boots ; Mr. Smith and this person
crossed from Stony Point to Verplank's Point.
" Have you seen the person since, that crossed
with Mr. Smith ? "
" Not to know him."
" Did you hear any conversation between Mr.
Smith and this person, while in the boat crossing ? "
" Mr. Smith got in the bow of the boat, and this
man on the side of the boat ; and as we were cross-
ing, Mr. Smith walked up to the man, and whispered
a word or two to him, which I did not hear."
" Did Mr. Smith, when he told you he would give
you something to revive yourself, when you were
crossing, tell you how far he had to ride that night,
or the way he was going, or did he give you anything
when you landed ? "
JOSHUA H. SMITH. 217
" I did not hear him say which way he was going,
or how far he was to ride ; when we landed he called
the cockswain of the boat into the house."
Henry Lambert. Mr. Smith crossed King's Ferry
the week before last, in company with another gen-
tleman ; it was in the dusk of the evening ; I do not
recollect the day of the week or day of the month he
crossed ; it was after firing on the enemy's ship in
the North River, but I do not know how long ; I do
not know the person's name, neither do I recollect
his dress. I steered the boat ; they had horses with
them ; Mr. Smith seemed to be in a hurry to cross,
and on the water, as we were crossing, told us he
would give us something to revive our spirits, if we
would row across soon ; Mr. Smith had also a negro
man along with him ; I did not take notice of the
horse the gentleman rode who was with Mr. Smith ;
Mr. Smith and the person crossed from Stony Point
to Verplank's Point.
" Have you seen the person since who crossed the
ferry with Mr. Smith ? "
" If I have seen him I have not known him."
" Did Mr. Smith give you anything after you had
crossed the ferry ? "
" Yes ; after we crossed the ferry, Mr. Smith
called for the coxswain of the boat, and went into
Welsh's hut, upon which I went, and he gave me an
eight dollar bill."
" Where was the other gentleman at this time ? "
" I don't know."
" Did Mr. Smith tell you the reason of his hurry-
VOL. II. 19
218 AMERICAN TRIALS.
ing you was, that he wanted to gain some distant
place that night ? "
" He did not. Neither did he mention what his
business was."
" Did you hear any conversation between the per-
son and Mr. Smith in the boat ? "
" I did not ; but when Mr. Smith was coming
down to the ferry, he called out to Captain Cooley,
and told him in three weeks' time we would be in
New York. Captain Cooley answered, < I don't
know ; ' Mr. Smith then said, ' well, let it be three
months ; ' Mr. Smith seemed to be very lively, and
in a joking humor, when he said it. Mr. Smith and
the person who crossed with him were both on
horseback at the time ; the other person said nothing.
When Mr. Smith said the words aforementioned to
Captain Cooley, he called for some liquor, drank it,
and pushed down to the ferry, and asked for the
ferry-men."
Lambert Lambert. Mr. Smith crossed King's
Ferry in company with another person in the even-
ing, but the day of the week or day of the month I
do not recollect. I cannot tell how long it was ago ;
I know not the person's name who crossed with him ;
neither have I seen the person since to know him.
I don't recollect any conversation between Mr. Smith
and the man in the boat, but Mr. Smith was joking a
good deal with the ferry-man as he crossed ; Mr.
Smith did not mention where he was going to, or what
his business was ; it was the week before last ; Mr.
Smith and the person crossed from Stony Point to
Verplank's Point.
JOSHUA H. SMITH. 219
u Did Mr. Smith cross the ferry in your boat at
any time within a week, before he crossed the even-
ing you have mentioned ? "
" I don't remember that he did."
[Mr. Smith here admitted that he crossed King's
Ferry on Friday evening, the twenty-second day
of September last, from Stony Point to Verplank's
Point.]
William Van Veart. Mr. Smith crossed King's
Ferry from Stony Point to Verplank's Point in the
evening of a day in the week before last, in com-
pany with another man, and a negro boy was with
him ; each of them had a horse ; the day of the month
J do not recollect ; I have not seen the person since to
know him ; he had a black, blue, or brown great-coat
on, a round hat, and a pair of boots ; I did not hear
any conversation pass between Mr. Smith and the
person in the boat ; neither did I hear Mr. Smith say
which way he was going; Mr. Smith seemed to
hurry us a good deal ; Cornelius Lambert, Henry
Lambert and Lambert Lambert were boatmen and
along with me.
Benjamin Acker. Mr. Smith crossed just in the
dusk of the evening King's Ferry from Stony Point to
Verplank's Point, but I don't recollect the day of the
month or the day of the week ; it was after the firing
upon one of the enemy's ships in the North River,
but I don't know how long ; there was a person
with Mr. Smith, but I don't know his name ; I have
not seen that person since to know him ; the person
had a pretty big round hat on, and a great coat,
which I took to be blue, and boots ; they had horses
220 AMERICAN TRIALS.
with them ; I did not hear any conversation pass
between Mr. Smith and the person while they were
in the boat.
William Jameson. On Friday evening, just as it
was getting dusk, the twenty-second day of last
month, Mr. Smith came to my tent, at King's Ferry,
on Stony Point side, after sun down, with a gentle-
man in company and a waiter ; the gentleman rode
a little past the tent, who was in company with Mr.
Smith, and Mr. Smith made a halt. There were
some gentlemen sitting in the tent, who handed him
a bowl of liquor which they had been drinking out
of, upon which Mr. Smith dismounted his horse and
handed the bowl to me, and desired I would fill it,
which I did. As I handed him the liquor again, Mr.
Smith spoke to Mr. Cooley, and said, in three weeks
time we should be all in New York. Mr. Cooley
made answer, " sir, I don't know," upon which Mr.
Smith said, " let it be three months." Mr. Smith,
upon this, took his horse and went off down to the
ferry stairs. The person with Mr. Smith had on a
flopped hat and a great-coat, the color I cannot re-
collect ; the person rode a little past when Mr. Smith
halted, made a little halt, and he was on the ferry
stairs when Mr. Smith got down. Mr. Smith, at my
tent, took one drink out of the bowl, handed it about,
and then went down to the ferry stairs ; I did not
know the person's name ; neither have I seen him
since to know him.
" Did the gentlemen who were drinking desire Mr.
Smith to call his friend, or did any of them ask Mr.
Smith who it was that was with him ? "
JOSHUA H. SMITH. 221
" Not that I recollect."
" Did Mr. Smith appear to be in a hurry, or say
which way he was going ? "
" He appeared to be in a hurry and hurried the
ferry -men down, some of whom were at the tent ;
he did not say where he was going."
" Did you hear Mr. Smith mention the person's
name who was with him ? "
" There were no names mentioned to my know-
The Prisoner. Did the conversation with Captain
Cooley appear to be in a joke or in earnest ?
" You were in a joking humor when you came
into the tent, and I supposed that you were joking
with him."
William Cooley. Three persons, one of whom
was Mr. Smith, came riding down to King's Ferry,
on the Stony Point side, on Friday, the twenty-second
day of last month, about dark ; there were some of
Colonel Livingston's officers with me in the tent.
Mr. Smith came riding along, and when he came
opposite the tent, the officers hailed him and put out
the bowl to him, and asked him if he would not
drink ; he said, yes ; the other persons kept riding
along ; there was nothing in the bowl ; Mr. Smith
got off his horse and called for a nip of grog and
drank. They were a joking together, and Mr. Smith
said to me, " What do you think, Daddy Cooley, or
Captain Cooley, or something to that purpose, of
being in New York in three weeks time ? " Upon
that the gentlemen officers laughed a little. I said,
" not, I am afraid Master Joseph," or something to that
19"
222 AMERICAN TRIALS.
purpose. " Well," said he, " let it be three months,
then." I just drank, the officers being then joking
and laughing together, and Mr. Smith went off. I
did not see the persons who went down, to know
them, nor heard their names mentioned ; neither did
any person ask about their names ; no person, that I
heard, asked Mr. Smith where he was going, or what
his business was ; neither did he mention it.
The Prisoner. What was my political character
in New York ; please to inform the court all that
came to your knowledge about it ?
" I always looked upon you as a good and faithful
subject to America ; I have seen you strip and fight
several times in New York, and once with the mate
of the Asia man-of-war, about America. I have seen
you wrangle with many men who opposed the Amer-
ican cause, in New York."
" Be pleased to inform the court what you have
thought of my political character since we have left
New York."
" I have always thought you a hearty man for
America, and never looked upon you in any other
light until this very time, and how it is now, I know
not. I believe the whole neighborhood at Haver-
straw, where you live, look upon you as a hearty
friend to America, but we do not look upon the rest
of your brothers to be anything to the cause of
America."
Captain Ebenezer Boyd. Last Friday, a week
ago, I think it was the twenty-second of September
last, between eight and nine o'clock, as near as I can
recollect, at night, the sentry stopped Mr. Smith, the
JOSHUA H. SMITH. 223
prisoner, another person, and a negro with him.
When the sentry hailed them, they answered, his
friends. The sentry ordered one to dismount ; Mr.
Smith readily dismounted, and spoke to the person
who was with him to hold his horse, and Mr. Smith
advanced till he came near the sentry. Mr. Smith
asked who commanded the party ; the sentry said
Captain Boyd ; upon that I was called for. What
passed between Mr. Smith and the sentry I heard, as
I have related, being close by the sentry. Mr. Smith
came to me, upon my calling for him. I asked him
who he was ; he told me his name was Joshua Smith,
and that he had a pass from General Arnold to pass
all guards. I asked him where he lived, or where
he belonged ; he told me he lived in the white house
on the other side of King's Ferry. I asked him
what time he crossed the ferry ; he said about the
dusk of the same evening. I asked him how far he
was bound for, and where to ? He told me he in-
tended to go that night as far as Major Strang's. I
told him Major Strang was not at home, and he
spoke something of going to old Colonel Gil Drake's,
as he was an old acquaintance of his. I told him he
did not live where he was used to, but had moved to
Salem. I told him about his saying he was going to
Major Strang's, that his lady might be in bed, and it
would incommode her much, likewise I desired to
see Mr. Smith's pass, and went into a little house
close by there, and got a light ; I found that he had
a pass from General Arnold ; to " pass all guards to
the White Plains, and return, being on business of
importance," I think were the words of the pass, if I
224 AMERICAN TRIALS.
recollect right ; after I had read the pass, we came
out, and Mr. Smith and myself talked alone privately.
Then I desired him to let me know something of his
business ; he made answer that he had no objection
to my knowing it. He told me that he was a brother
of William Smith, in New York, though very differ-
ent in principle, and that he was employed by Gen-
eral Arnold to go with that gentleman, meaning the
person who was with him, to get intelligence from
the enemy, that they expected to meet a gentleman
at or near the White Plains, for the same purpose.
If I recollect right, I think Mr. Smith told me he was
not so positive as that he should go himself as far as
the White Plains or not. On this I advised Mr.
Smith to put up there, at one Andreas Miller's, close
by where we were, and so start as soon as it was
light ; the reasons I gave Mr. Smith were, that the
riding in the night would be dangerous when they
got below Croton river, from the cow-boys. Mr.
Smith made answer that he would speak to his part-
ner ; whereupon Mr. Smith went to him ; I was
pretty close by them ; and when they conversed
together, they spoke low. Mr. Smith told him he
thought it would be rather best to put up, and said
he thought they might be interrupted ; upon that
they concluded to turn back to this house, to put up.
I concluded in my mind their speaking low was occa-
sioned by what Mr. Smith had said to me before,
which was, he did not want every one to know what
business they were on. Mr. Smith then asked my
opinion about the roads, which would be the safest
to the White Plains, and not fall into the hands of
JOSHUA H. SMITH. 225
these cow-boys or refugees. Putting confidence in
what they were upon, I gave him my opinion as to
the safest road ; that the safest road would be to go
by North Castle church, and by Wright's mills, by
reason if they went the Tarrytown road, they would
fall into the lower party's hands these cow-boys.
I likewise advised him to call upon Captain Delavan
next morning, pretty early. Mr. Smith asked me if
I thought that Captain Delavan would assist them
with an escort of two or three horse. I told him I
did not doubt but that he might when he came to
understand what his business was. They then went
back towards Andreas Miller's, which was the last I
saw of them that night. I was a little at a stand about
Mr. Smith's name being Joshua, as he was called by
the name of Jo Smith, but his pass was in the name
of Joshua. What made me put more confidence in
what Mr. Smith told me, was, I had heard it fre-
quently mentioned that General Howe used to em-
ploy Mr. Smith in getting intelligence.
" Was the person's name who was with Mr. Smith
mentioned that night ? "
" I think I asked Mr. Smith what gentleman it
was who was with him. Mr. Smith said he was a
gentleman that General Arnold had in his employ,
and told me his name was John Anderson."
" Was John Anderson's name included in the pass
Mr. Smith showed you from General Arnold ? "
" I think it was."
1 The cow-boys were a set of people, mostly if not wholly refugees,
belonging to the British side, and engaged in plundering cattle near the
lines, and driving them to New York.
226 AMERICAN TRIALS.
" Did Mr. Smith mention any particular informa-
tion they were going for ? "
" Not any particular information, but in general.
Mr. Smith said they expected to get some of the
best intelligence from the British army, that had been
got for some time."
" How was this person, called by the name of John
Anderson, dressed ? "
" He had a large overcoat on. It appeared to be
blue or black in the night. He did not go into the
house with Mr. Smith and myself. The person
under the name of John Anderson had a round hat
on the size I did not take particular notice of. I
did not speak to the person."
" Are the cow-boys, or plundering parties, from
New York ? "
" Yes, of Delancy's corps."
" Did you inquire of Mr. Smith where this John
Anderson belonged, or where his abode was ? "
" I did not."
" The person whom you saw that night with Mr.
Smith, who he said was called John Anderson, have
you seen since to know him ? "
" I have not."
" Did Mr. Smith appear anxious to proceed that
night ? "
" No. He appeared anxious to put up ; more than
his partner did ; and Mr. Smith seemed very ready
to comply with my advice, as soon as I mentioned it
to him."
" How far is it from the place you saw Mr. Smith
and the person he called John Anderson, to Ver-
plank's Point ? "
JOSHUA H. SMITH. 227
" About eight miles, and about four to Peekskill,
on the east side of the North river."
" Did Mr. Smith appear to you to be alarmed after
he came up to you, on being stopped ? "
" I did not perceive that he was."
" Did you understand from Mr. Smith, that either
himself, or the person he called John Anderson, in-
tended to go to New York ? "
" I did not."
[Two permits were shown to Captain Boyd, one
dated Head Quarters, Robinson's House, September
20, 1780, and the other dated Head Quarters, Rob-
inson's House, September 22, 1780, signed B. Ar-
nold, M. General, neither of which, Captain Boyd
thought was the pass Mr. Smith showed him. Mr.
Smith acknowledged that the permit dated Sep-
tember 22d, 1780, was the one he showed Captain
Boyd. The other not being proved or acknowledged,
was withdrawn.]
" Was the pass Mr. Smith showed you wrote and
signed in one hand writing ? "
" It appeared to me it was."
" How far is it from the place you saw Mr. Smith
and the person he called John Anderson, to the
White Plains ? "
" I judge it to be about twenty-four miles."
The Prisoner. What political character does
Major Strang bear in that country ?
" He is allowed to be as good a man as any we
have there, in his attachment to America."
" What political character did Mr. Gil Drake bear,
who lived formerly near Crom pond ? "
228 AMERICAN TRIALS.
" His former character was that of a very warm
whig."
" Did I not appear pleased with your proposal of
going to Captain Delavan's ? "
" You made no objections against going there to
me, and told me you would call upon him the next
morning, which I expected you would, from what you
said."
" Don't you recollect your mentioning to me that
Captain Delavan was a warm friend to the coun-
try ? "
I do."
" Did you not see me return the next morning ? "
" I did not."
" Is it not reputed by the neighborhood about
Crom pond, to be dangerous to go on the south side
of Pine's bridge ? "
" The friends of the country in that neighborhood
think it so."
" Did you not hear that a day or two before there
was a party seen, about thirty, near Pine's bridge ? "
" There was an alarm on Wednesday, the twen-
tieth of September last, of a party being near Sing
Sing, who were coming up, it was said, by the new
bridge, and in consequence of it, I ordered my com-
pany out ; it proved to be a false alarm."
" Don't the inhabitants who live near Pine's bridge,
live in great dread with respect to their cattle and
themselves, from parties coming out ? "
" There are not many inhabitants there that are
considered to be well affected."
" How far do you suppose Hunt's house to be
JOSHUA H. SMITH. 229
from the parting of the two roads leading to Pine's
bridge ? "
" About a mile to the northward. Hunt is one
of Delavan's corps of horse, and is called well af-
fected."
Question to Jameson, Do you know of any par-
ticular intimacy being between Benedict Arnold, late
major general in our service, and the prisoner, Mr.
Smith, a short time before his, Arnold's, going off to
the enemy ?
" I have seen General Arnold come down to King's
Ferry, on the Stony Point side, and frequently go
from the ferry, but where to I don't know. I have
seen Mr. Smith return to the ferry with him ; the
number of times I do not recollect ; it was about a
week or two before General Arnold went off to the
enemy, and the week he did go off to the enemy. I
can't recollect whether I saw General Arnold and
Mr. Smith together, the week General Arnold went
off to the enemy, more than once or twice ; I
saw General Arnold come to King's Ferry, on the
Stony Point side, on Tuesday or Wednesday ; it was
the beginning of the week ; he went up the river
towards Robinson's house, and returned on Thurs-
day, in the evening, to the ferry on Stony Point side,
before dark ; General Arnold's barge went up the
river, and returned to King's Ferry, that evening,
with a boat, and I saw General Arnold go up towards
Robinson's house, on Friday morning, about nine or
ten o'clock ; Mr. Smith came down to the ferry with
him, and returned, and that evening Mr. Smith came
down to the ferry with a gentleman, as I have men-
VOL. ii. 20
230 AMERICAN TRIALS.
tioned before in my evidence. I do not recollect of
seeing General Arnold at Mr. Smith's house."
Major Burroughs. Last Friday, a week ago,
being the twenty-second day of September last, be-
tween sundown and dark, I was overtaken on the
road, about three quarters of a mile from Stony Point,
by Mr. Smith, the prisoner, and another gentleman.
Mr. Smith's servant, a negro boy, was with him. Mr.
Smith, as he passed by, spoke and said, " how do
you do, Captain Livingston ? " I told him he was mis-
taken ; on that he stopped, and said, " how do you
do, Major Burroughs ? " and turned about his horse,
and talked to me, for about a minute, in which time
I rode up between the gentleman who was with Mr.
Smith, and which gentleman is the same man who
has been proved since to have been the adjutant
general of the British army. Mr. Smith, while he
stopped, told me he was going for Mrs. Smith and the
ladies, to West Point, and should be happy to see me
at tea the next afternoon. Mr. Smith then turned
about his horse, and rode off pretty fast ; I told him
I thought it rather late, and he said he had business.
" How was the gentleman dressed ? "
" He had a round hat on, and a blue coat or cloak,
the cape of which was buttoned up tight round his
neck, and the other part was also buttoned ? "
" Did Mr. Smith mention to you the person's
name ? "
" No."
" After Mr. Smith left you did the gentleman who
was with him join company and ride off? "
" The gentleman halted when Mr. Smith did, and
they rode off together."
JOSHUA H. SMITH. 231
" Did you see Major Andre, who lately suffered
death, as being adjutant general to the British army ? "
" I saw him when he crossed the North River,
which was last Wednesday, and which was after he
was taken, and I am sure he was the same man whom
I saw with Mr. Smith, as I have before mentioned."
" Had this person the same coat on that the gen-
tleman had whom you saw with Mr. Smith ? "
" He had a coat or cloak of the same color, which
appeared to me to be the same, and I am sure he
had the same hat on."
" Did you hear him converse with Mr. Smith ? "
I did not."
" Did you see Major Andre, adjutant general to
the British army, since the time you have mentioned
to have seen him after he was taken, and had crossed
the North River ? "
" I saw him last Friday, when he was going before
the board of general officers, and I am certain he
was the same person I saw with Mr. Smith at the
time I have before mentioned."
The Prisoner. Do you recollect no other conver-
sation that passed between us when I stopped, with
this person on the road ; don't you recollect some-
thing about a horse ?
" I recollect about your telling me that you had
good pasture, and that I should be very welcome
to the pasture for my two horses, rather than let
them run about at the point where the pasture was
poor."
" Did you see any appearance in me of a desire
to avoid you as I came along ? "
" Not in the least."
232 AMERICAN TRIALS.
" Did your guard, at the lower end of Haverstraw,
report to you of their meeting some gentlemen, the
night before, on the road ? "
" They did not."
John Paulding. Myself, Isaac Van Veart, and
David Williams were lying by the side of the *oad,
about a half a mile above Tarrytown, and about fif-
teen miles from King's bridge, on Saturday morning,
between nine and ten o'clock, the 23d September
last. We had lain there about an hour and a half,
as near as I can recollect, and saw several persons
we were acquainted with, whom we let pass. Pre-
sently, one of the young men who were with me said,
" there comes a gentlemanlike looking man, who
appears to be well-dressed, and has boots on, whom
you had better step out and stop, if you don't know
him." On that I got up and presented my firelock
at the breast of the person, and told him to stand,
and then I asked him which way he was going.
Says he, " Gentlemen, I hope you belong to our
party." I asked him what party ; he said, " the
lower party." Upon that I told him I did. Then
he said, " I am a British officer out of the country,
on particular business, and I hope you won't detain
me a minute ; " and to show that he was a British
officer he pulled out his watch ; upon which I told
him to dismount. Upon that he said, " My God, I
must do anything to get along ; " seemed to make a
kind of a laugh of it, and pulled out General Arnold's
pass, which was to John Anderson to pass all guards
to the White Plains, and further. Upon that he dis-
mounted, and says he, " Gentlemen you had best lot
me go, or you will bring yourselves in trouble 3 for by
JOSHUA H. SMITH. 233
your stopping of me you will detain the general's
business," and said he was to go to Dobb's Ferry, to
meet a person there on the general's business. Upon
that I told him I hoped he would not be offended,
and told him we did not mean to take anything
from him ; that there were many bad people going
along the road, and I did not know but perhaps he
might be one ; and I asked him if he had any letters
about him. He made answer, " No." Upon that,
myself, or one of my comrades, though I think my-
self, told him to pull off his clothes, which he did.
We searched his clothes, but could find nothing, and
I told him to pull off his boots ; he rather seemed
backward of pulling them off; however, he pulled
off one of them, and I felt at his foot, where I felt
the papers in his stocking, under his foot. Then I
told him to pull off the other boot, and when the
other boot was off I found other papers in his stock-
ing, under his foot. Then I looked on the back of
the papers, and I saw what the contents of them
were, and I said to the young fellows who were with
me, " this is a spy." One of the young fellows who
were with me asked him if he would give us his
horse, saddle, and bridle, and watch, and a hundred
guineas, if he would let him go. He made answer,
" Yes, and whatever sum of money you will mention,
or quantity of dry goods." And then I made an-
swer, " No, by God, if you would give us ten thou-
sand guineas, you should not stir a step." One of
the young fellows winked to me, who had a mind to
find out a little more, and I made answer to the lads
who were with me to come along, for I would have
20*
234 AMERICAN TRIALS.
nothing more to say to him. We asked him some
questions as we were going along the road, and he
begged we would ask him none till he came to some
officers, and then he would reveal the whole. We
carried him to Colonel Jameson, and there he took
him into his custody, and I have not seen him from
that time until I saw him the other day.
" Did he tell you his name was John Anderson
before he produced the pass ? "
" I asked him his name, and he told me it was, I
think, John Anderson."
Sundry papers of the following import were pro-
duced to the court, and shown to the witness, to wit,
a paper containing artillery orders at West Point,
September 5th, 1780 a paper containing an esti-
mate of the force at West Point and its dependencies,
September 13, 1780 a paper containing an esti-
mate of men to man the works at West Point, and in
the vicinity, September 1780 a paper containing
a return of ordnance at West Point and its dependen-
cies, September 5, 1780 a paper containing re-
marks on works at West Point, indorsed, " a copy td be
transmitted to his Excellency, General Washington,"
September 1780, and a paper containing a state of
matters laid before a council of war, held in Camp
Bergen county, September 6, 1780: present, the
commander-in-chief indorsed " copy of a council of
war, held September 6, 1780." The witness being
asked if he found these papers on the person he took,
as he had mentioned, under the name of John Ander-
son, said
To the best of my knowledge the papers now
JOSHUA H. SMITH. 235
shown me are the papers I found on that person
when I took him."
" How was this person, whom you took under the
name of John Anderson, dressed ? "
" He had a kind of a purple claret-colored coat
on, the button-holes of which were laced. He had
nankeen breeches and waistcoat on, and a flannel
waistcoat under his waistcoat, and had a round hat
on ; he also had on a blue-colored overcoat."
" Was this person whom you took under the name
of John Anderson, the same person who suffered
death on Monday last, as being the adjutant general
of the British army ? "
" I think he was ; to the best of my knowledge he
looked as much like him as any person could."
" When he pulled out the watch, did he offer it to
you as a present, or pull it out as a signal ? "
" As a signal that he was a British officer, as I
then thought."
" When pulling out his pass from General Arnold,
what was the reason you did not let him go ? "
" Because he said before he was a British officer.
Had he pulled out General Arnold's pass first, I should
have let him go."
" How long did the person under the name of John
Anderson say he had been out from New York ? "
" Four days, and had not been above Pine's bridge,
and that a man brought the letters and papers to him
there, but he did not know him."
David Williams. Myself, Isaac Van Veart, and
John Paulding, were lying in the bushes, in the
morning, about nine or ten o'clock, on Saturday, the
236 AMERICAN TRIALS.
23d of September last, as near as I can recollect,
about a half a mile, as near as I can recollect, above
Tarrytown, on the east side of the North River. Sev-
eral persons came along whom we knew and let pass,
and presently came along a person whom we told Mr.
Paulding to stop ; he was a gentlemanlike man and
had boots on. Mr. Paulding stepped out, and pre-
sented his piece to his breast, and bid him stand,
which he did. The person said, " Gentlemen, I hope
you belong to our party." Mr. Paulding made
answer, " What party ? " he said " the lower party,"
which Mr. Paulding told him we did. The person
said, " I am glad to see you," and said, " I am an
officer in the British service, and have now been on
particular business in the country, and I hope you
will not detain me ; " and for a token to let us know
that he was a gentleman, he pulled out his watch.
Mr. Paulding told him to dismount, on which the
person found out we belonged to the upper party :
He said, " my God, I must do anything to get along ; "
on which he pulled out General Arnold's pass, and
gave it to Mr. Paulding, who read it, on which Mr.
Paulding told him to dismount ; and the person said
he was to pass down as far as Dobb's Ferry, and was
to meet another gentleman there, and was to get
intelligence for General Arnold ; he told us we would
bring ourselves in trouble if we did not let him go.
We told him there were many bad fellows travelling
the road, and we did not know but he was one of
them, on which we took him in the bushes and
ordered him to pull off his clothes, which he did ;
but on searching him narrowly, we could not find any
JOSHUA H. SMITH. 237
sort of writing. We told him to pull off his boots,
which he seemed to be indifferent about, but we got
one boot off; and searched in that boot, but could
find nothing, and we found there were some papers
in the bottom of his stocking next to his foot, on
which we made him pull his stocking off, and found
three papers wrapped up. Mr. Paulding looked at
the contents, and said he was a spy upon which
we made him pull off his other boot, and there we
found three more papers at the bottom of his foot
within his stocking, upon which we made him dress
himself, and I asked him what he would give us to
let him go ; he said he would give us any sum of
money. I asked him whether he would give us his
horse, saddle, bridle, watch and one hundred guineas,
upon which he said yes, and told us he would direct
it to any place, even if it was that very spot, so that
we could get it. I asked him whether he would not
give us more ; he said he would give us any quantity
of dry goods, or any sum of money, and bring it to
any place that we might pitch upon, so that we might
get it ; upon which Mr. Paulding answered, " No, by
God, if you would give us ten thousand guineas you
shall not stir one step ; " on which I asked the person
who had called himself John Anderson if he would
not get away if it lay in his power, on which he
answered me yes, he would. I told him I did not
intend he should, and carrying him along, we asked
him a few questions, and we stopped under a shade ;
he begged us not to ask him any questions, and said
when he came to any commander he would reveal
all. We carried him on and delivered him to Colo-
238 AMEKICAN TRIALS.
nel Jameson, and I never saw him from that time
until when he was executed here, that I remember ;
and I think the man, to the best of my knowledge, if
I recollect right, who was executed on Monday last,
as being adjutant general to the British army, was
the very man whom the persons I have mentioned
and myself took, as I have mentioned before.
" How do you know that his name was John
Anderson ? "
" He told us his name was John Anderson, when
he pulled out his pass to show us."
" How was the person you took, who called him-
self John Anderson, dressed ? "
" He had a blue overcoat on, and a tight body
coat that was a kind of a claret-color, though rather
a deeper red than claret the button-holes were
laced with gold tinsel, and the buttons drawn over
with the same kind of lace a round hat and nan-
keen waistcoat and breeches, and under his waistcoat
was a flannel waistcoat, and under his breeches was
a pair of flannel drawers he had a pair of boots
and thread stockings on."
"Is the lower party considered as the enemy's
party ? "
" Yes."
The papers shown to Mr. Paulding were shown to
Mr. Williams ; he said that the paper containing an
estimate of men to man the works at West Point
and in the vicinity, September, 1780, and the paper
containing a return of ordnance at West Point and
its dependencies, September 5, 1780, were two of the
papers which he and the persons who were with him
JOSHUA H. SMITH. 239
found on the person whom they took, as before men-
tioned, under the name of John Anderson, as he saw
Mr. Paulding open them ; the others he did not
recollect to have taken notice of.
" How many papers were taken on the person
whom you took under the name of John Anderson ? "
" There were three under each foot."
" Did this person, who called himself John Ander-
son, tell you where he lodged the night before ? "
" He did not ; but said he had received the papers
and the horse at Pine's bridge, from a gentleman
who brought them there to him, as near as I remem-
ber."
Colonel Tilghman was produced on the part of
the prosecution. The papers that were shown to
Mr. John Paulding were shown to Colonel Tilghman,
and he was asked whether, from the knowledge he
had of Benedict Arnold's writing, he believed these
papers were written by him ?
" The pass was certainly written by Benedict Ar-
nold, late major general in our service. The body
of the paper indorsed ' Artillery orders, September 5,
1780,' containing artillery orders at West Point, and
the indorsements were certainly written by him. The
name at the bottom I am not certain of, though he
appears to have endeavored to have written like
Major Bowman, as people often do, when they are
copying. The paper, being an estimate of the force
at West Point, and its dependencies, was written by
General Arnold, as well as the indorsement ; the
paper being an estimate of men to man the works at
West Point, and in the vicinity ; with another in-
240 AMERICAN TRIALS.
dorsement was also written by him. The paper con-
taining a return of ordnance at West Point and its
dependencies, was also written by him ; the paper
containing remarks on works at West Point, was also
written by him ; the paper indorsed " Copy of council
of war, held September 6, 1780," containing a state
of matters laid before a council of war, September 6,
1780, by his Excellency General Washington, was
also written by him ; the paper containing the names
of sundry persons was written by him. 1
The Marquis de la Fayette* When Mr. Smith
was put in the room at Robinson's house, it was in
the morning, the day after Arnold had escaped to the
enemy ; there were present General Washing-
ton, General Knox, Lieutenant Colonel Hamilton,
Colonel Harrison and myself; he began by making
strong assurances of his candor, and other assurances,
which were not necessary to the relation of what had
passed, and what was asked from him, at that time ;
but being pleased to go on with his story, he said
1 See the Appendix for papers relating to this trial.
2 The prisoner seems to have been very much annoyed at the testi-
mony of La Fayette, and speaks of him with great bitterness. " He
delivered his evidence," says Smith, in his narrative, " with acrimonious
severity, and malignant bitterness : he asserted as part of my declaration
to General Washington matters that I could not have mentioned ; and
had my life, or that of a hundred others, depended on his credibility
before an ignorant court-martial, all would have been forfeited. I had
paid particular attention to the testimony of General Kuox and Colonel
Hamilton, in my notes taken on their evidence ; and in my cross-exami-
nation of the marquis, I applied their answers and remarks to his recol-
lection, which did not a little embarrass him I could plainly perceive
the court-martial were sensible that he was mistaken ; and I most
sincerely hope he erred from ignorance of the true import of the English
language."
JOSHUA H. SMITH. 241
that lie had been sent by General Arnold on board
the Vulture, British man of war, with a flag in the
night, in order to bring on shore Colonel Robinson ;
that being on board the Vulture he was roughly used
by the crew of that ship, that instead of Robinson,
one Mr. Anderson, whom, as far as I remember, he
said he did not know before, came with him in the
boat, and on being arrived on shore they met on the
beach General Arnold ; that General Arnold, Ander-
son and himself, came to Mr. Smith's house ; that
Anderson was to return, on board the Vulture, but it
was designed afterwards, between them, that he
should stop in the house, where he was kept in a
private room, and that Mr. Smith sent up to him his
breakfast and dinner ; that towards the evening Mr.
Smith, in order to disguise Anderson, who had, until
then, been in a British uniform, gave him one of his
own coats, and crossed with him King's Ferry, and
accompanied him some distance a pretty great
distance ; I do not recollect the place where he said
he accompanied him, on the east side of the North
River. The question being put to Mr. Smith, why he
had undertook that business, he said he thought he was
serving his country, as he was led to believe that
General Arnold had opened very important corres-
pondence with Colonel Robinson ; he was then asked
if he thought that it was a good way to serve his
country to go on board a British ship to get intelli-
gence, to which he answered that he did not believe
that Arnold was a traitor ; being asked if he thought
himself under the sanction of a flag in the darkness
of the night, he answered yes. The question being
VOL. n. 21
242 AMERICAN TRIALS.
put to him why he did not return by water on board
of the Vulture, he said it was on account of his bad
state of health ; and upon our observing that the ill
state of his health had not prevented his riding many
miles, he attributed that land journey to another rea-
son, and said that the boatman were tired or unwilling
to return ; being asked why he took so much pains
to disguise Mr. Anderson, he said that he thought
such a secret ought not to be known by the people, and
repeated his assurances that he had no other idea,
but that of rendering an important service to his
country ; and being pressed to discover the truth, as
the only way of saving himself, he said he had
nothing else to relate.
" Did Mr. Smith mention the day of the week, or
day of the month he was on board of the Vulture ? "
" He did ; and it corresponded with the time we
had heard, but the day I do not recollect."
" Did Mr. Smith say that Anderson had on a
British uniform at the time he came to his house ? "
" He said, I think, that he had something over
him, in coming from the Vulture, but on telling him
that he had given him another coat to disguise him-
self, I think he did acknowledge that he had a British
uniform on in his house."
i " Did Mr. Smith say that he went from the beach,
after landing with General Arnold and Anderson, to
his house ? "
" I think he did ; but, however, as far as I can
remember, he told that a private conference had
taken place between the general and Anderson, when
Anderson arrived on shore."
JOSHUA H. SMITH. 243
" Did he say that he was present at any conference
that had passed between Anderson and the general
at his house ? "
" He said he was not present at any of their con-
ferences, and he did not know the contents of them."
" Did Mr. Smith appear embarrassed in the course
of his examination ? "
" From the length of his protestations, before
entering into the relation of the account he gave of
his conduct, I apprehended that he was embar-
ressed."
" Do you recollect whether Mr. Smith mentioned
about returning to his house with Anderson and Ar-
nold, after he had landed Anderson, or whether he
said he returned by land or water ? "
" I do not remember exactly, but I thought he did
accompany them by land."
" Did you understand Mr. Smith that he crossed
King's Ferry with Anderson, the evening after he
had landed him from the Vulture, on an interview
with General Arnold ? "
" I did."
" Did Mr. Smith appear to keep back any of the
business he was employed in by General Arnold ? "
" He really told the whole of the story himself
freely, except the changing of the coat, and I thought
he was not candid in relating the reasons which pre-
vented his returning by water on board the Vulture.
" Did Mr. Smith say that General Arnold asked
him for a coat to disguise this Mr. Anderson ? "
" I rather think that he did, but, however, do not
recollect it clearly."
244 AMERICAN TRIALS.
" Had you any reason to think that Mr. Smith was
acquainted that General Washington was informed
with the part he had acted, until General Washington
intimated it to him himself? "
" From the manner in which Mr. Smith was taken
up, and brought to Robinson's house, I did not
believe that he could have any doubts on that matter,
but nothing appeared which could confirm or destroy
that opinion of mine."
" Do you recollect whether Mr. Smith mentioned
the time General Arnold left his house ? "
" It seems to me Mr. Smith spoke of the time that
General Arnold left his house, but I do not recollect
it."
The Prisoner. " Did I not say, when I said that
General Arnold asked me for a coat for this Mr. Ander-
son, that General Arnold said he was only a merchant,
and from false pride had borrowed a British uniform
coat?
" You may have said so, but I don't recollect it ;
it is true I was not attending during the whole time,
there being many questions asked which I do not re-
member."
" Did you not hear me expostulate with his Excel-
lency about the manner in which I was taken, and
brought down to Robinson's house ? "
" I did."
" Did you not see me the Sunday evening at Gen-
eral Scott's at Fishkill, preceding the Tuesday morn-
ing I was brought to Robinson's house ? "
" I was told by his Excellency's family, or some
other officer, that you had been there, but do not
recollect to have seen you myself."
JOSHUA H. SMITH. 245
" Did you think, from the whole of my conduct
when before General Washington, when interrogated,
I discovered a disposition to declare all I knew about
this matter ? "
" Your omitting the circumstance of the changing
of the coat, and the reasons you gave for not return-
ing on board the Vulture by water, in the same way
that you came, led me to believe that you did not
mean to be candid ; I made you that observation at
the time."
" Do you recollect, in the course of the examina-
tion, that Mr. Smith was asked how he could recon-
cile Mr. Anderson's coming on shore in the room of
Robinson, from the Vulture, to treat of matters rela-
tive to Robinson's estate ; if you do, what was Mr.
Smith's answer ? "
" I recollect the question except that part which
relates to the estate ; I don't recollect the answer."
Brigadier General Knox. I was present at Rob-
inson's house the morning of the twenty-sixth of Sep-
tember last, with his Excellency, when Mr. Smith
was brought in. The general prefaced the matter
with a short narrative of what had happened, which
was that General Arnold had gone off to the enemy,
that Major Andre, the British adjutant general was
taken, that they had had a meeting or interview at
Mr. Smith's house, and that there were strong rea-
sons to induce a belief that Mr. Smith knew the sub-
stance of the conversation, that had passed between
General Arnold and Major Andre, and he exhorted
Mr. Smith to make a full confession of all that he
knew respecting the matter. Mr. Smith made great
21*
246 AMERICAN TRIALS.
protestations of his attachment to the liberties of
America, that what he had done he conceived to be
for the public good, that he should, in a candid man-
ner, relate every circumstance that he was master of.
Mr. Smith said that he had been employed by Gen-
eral Arnold, to procure intelligence, and that he con-
ceived a design, which General Arnold informed him
of, was in pursuance of that purpose. The design
was to go on board the Vulture man-of-war, and bring
from thence a person who, General Arnold informed
him, could give very material intelligence, and put
things in such a train, that in future he should be at
no loss for intelligence of the enemy's movements ;
that the last Thursday evening, the twenty-first of
September, he with two other persons went from a
place, which Mr. Smith called, I think, Hays's creek,
in a boat on board of the Vulture, that when he came
near the Vulture he was hailed, and told to come on
board in very violent and abusive language ; that he
went on board, was ushered into the cabin where he
saw Colonel Robinson and the person whom he brought
on shore, who, he was informed, was Mr. John Ander-
son; that he had conceived that he was to have
brought Colonel Robinson on shore, but that he de-
clined coming, and assured Mr. Smith that Mr.
Anderson would answer all the purposes ; that they
came on shore to a place a little below Haverstraw
landing, where he met General Arnold, who was
upon the beach ; that he left Mr Anderson and Gen-
eral Arnold together, and with the two men carried
the boat into the creek from which he had taken it,
and that by the time he got into the creek with the
JOSHUA H. SMITH. 247
boat, day began to appear ; that upon his return to
his house he found General Arnold and Mr. Anderson
there ; that Mr. Anderson staid there the whole of
the twenty-second of September, and that on the
evening of that day he went with him across King's
Ferry, as far as Crom pond, where they lodged, and
in the morning proceeded with him about a mile be-
yond that place, where he left him, and that he came
to General Arnold's that day, at Robinson's house,
and dined with him. Mr. Smith, on being asked how
the person he brought on shore was dressed, said that
he had on a blue over-coat, and that he did not see
his under clothes, but that, when he saw him in his
house afterwards, he found that he had on the uniform
of a British officer. On being asked whether Mr.
Anderson was public in the house, and seen by the
servants, he said no, that he was in an upper apart-
ment, and that he himself, Mr. Smith, had carried
him his breakfast and dinner. On being asked where
Mr. Anderson had changed his clothes, he answered
at his house, and that he had lent him one of his own
coats. On being asked, whether he knew Mr. Ander-
son's rank and connection with the British army, or
the conversation that passed between General Arnold
and him, he declared he did not ; but that he thought
it was intelligence that General Arnold was receiving,
of the greatest importance for the good of America.
This was the idea, which Mr. Smith constantly held
up, and declared that nothing should have induced
him to have been acting in the matter, but a perfect
conviction of its being a matter of the greatest import-
ance to the good of his country. Mr. Smith was
248 AMERICAN TRIALS.
asked, whether he did not advert to the impropriety
of going on board a king's ship to obtain intelligence ?
He replied he did not at the time. He was strongly
exhorted by the general, and other persons present,
to make an ample confession of all the circumstances
that he knew, which he declared he had done, and I
do not recollect anything of importance more passing.
There were present at this examination his Excellency,
the Marquis de la Fayette, Colonel Harrison and
Lieutenant Colonel Hamilton, and myself. 1
" When his Excellency informed Mr. Smith that
Major Andre, adjutant general of the British army
was taken, did Mr. Smith say that he knew such a
person ? "
1 Smith's account of this interview is characteristic : " After as much
time had elapsed as I supposed was thought necessary to give me rest
from my march, I was conducted into a room, where were standing Gen-
eral Washington in the centre, and on each side General Knox and the
Marquis de la Fayette, with Washington's two aids-de-camp, Colonels
Harrison and Hamilton. Provoked at the usage I received, I addressed
General Washington, and demanded to know for what cause I was
brought before him in so ignominious a manner ? The general answered
sternly, that I stood before him charged with the blackest treason against
the citizens of the United States ; that he was authorized, from the evi-
dence in his possession, and from the authority vested in him by con-
gress, to hang me immediately as a traitor, and that nothing could save
me but a candid confession who in the army, or among the citizens at
large, were my accomplices in the horrid and nefarious designs I had
meditated, for the last ten days past. I answered, that no part of my
conduct could justify the charge, as General Arnold, if present, would
prove ; that what I had done of a public nature was by the direction of that
general, and, if wrong, he was amenable ; not me, for acting agreeably to
his orders. He immediately replied, ' Sir, do you know that General
Arnold has fled, and that Mr. Anderson, whom you have piloted'tbrough
our lines, proves to be Major John Andre, the adjutant general of the
Britsh army, now our prisoner ? I expect him here, under a guard of
one hundred horse, to meet his fate as a spy, and, unless you confess
who were your accomplices, I shall suspend you both, on yonder tree,'
pointing to a tree before the door. He then ordered the guards to take
me away." Narrative, p. 51 53.
JOSHUA H. SMITH. 249
Mr. Smith answered he did not."
" Did he discover any marks of surprise, when he
was informed that John Anderson, whom he brought
on shore from the Vulture, was adjutant general of the
British army ? "
" I did not discover any marks or change in his
features or complexion."
" Do you recollect, in the course of the examina-
tion, that Mr. Smith was asked how he could recon-
cile Mr. Anderson's coming on shore in the room of
Robinson, from the Vulture, to treat of matters rela-
tive to Robinson's estate ; if you do, what was Mr.
Smith's answer ? "
" I do not, for I conceived that Mr. Smith thought
the intention of Robinson coming on shore, was to
give intelligence as well as Anderson."
" Did Mr. Smith say that he gave Mr. Anderson a
coat of his own to change his dress, at the instance of
General Arnold ? "
" I do not recollect, that it was at the instance of
General Arnold, but that it appeared a matter of evi-
dent propriety to conceal him from the country peo-
ple, who, Mr. Smith observed, ought not to be ac-
quainted with these things ; by these things he meant
the mode of obtaining intelligence."
" Did Mr. Smith mention where Mr. Anderson
was going at the time he left him ? "
" Mr. Smith conveyed the idea to us, that he fully
understood Mr. Anderson, when he left him, was go-
ing to New York, for which purpose he had General
Arnold's pass."
" Did Mr. Smith mention any information that
250 AMERICAN TRIALS.
General Arnold had received from this Mr. Anderson,
or that General Arnold told him that he had received
from him ? "
" Not a word. He said the conversation was to-
tally unknown to him. I don't remember that the
question was asked him, whether General Arnold had
informed him of the intelligence he had received."
" Whether Mr. Smith said General Arnold gave
him the character of this person as being a private
person, or acting in a public capacity ? "
" I don't remember that Mr. Smith said that Gen-
eral Arnold gave him a description of the person ;
but that General Arnold said the person would give
him, General Arnold, material intelligence."
" Was this confession from Mr. Smith easily ob-
tained from him, or did he discover a backwardness
to make any ? "
" I think easily, as to the general matter ; the par-
ticulars of the coat, the carrying the breakfast and
dinner, the being obliged to lodge at Crom pond,
were drawn from him by questions ; the answers to
these questions were readily made."
" Had Mr. Smith gone through his account of his
conduct in this affair on the general matter, previous
to these questions being asked ? "
" I think he had."
" Did General Washington, or either of the gen-
tlemen who were present at Mr. Smith's examination,
inform Mr. Smith that they were acquainted with his
conduct, before he had an opportunity of giving this
relation ? "
Yes."
JOSHUA H. SMITH. 251
" Did he appear to be much embarrassed when his
Excellency, or one of the gentlemen present, ac-
quainted him that he was acquainted with his con-
duct ? "
" There was an embarrassment, but I knew not to
what cause to attribute it." ,
" Did Mr. Smith, previous to his entering on his
confession, make solemn protestations and appeals to
heaven of his innocence and ignorance of General
Arnold's criminal designs or intentions ? "
" In the course of Mr. Smith's examination he
made very solemn protestations, that he believed
General Arnold was acting for the good of the coun-
try, or he should not have assisted him."
" Can you inform the court the time General Ar-
nold went off to the enemy, and the time Mr. Smith
was taken up ? "
" General Arnold went off to the enemy about ten
o'clock in the morning of Monday, the 25th of Sep-
tember last, but General Washington did not know
it until four o'clock in the afternoon of that day.
Colonel Gouvion was sent from Robinson's house to
Fishkill, where it was understood Mr. Smith was,
about ten o'clock that evening, to apprehend Mr.
Smith ; Colonel Gouvion returned before day, and
Mr. Smith arrived between seven and eight o'clock
on Tuesday morning under guard."
The Prisoner. Did you see me at Fishkill the
Sunday evening preceding the Tuesday I was brought
to Robinson's house ?
" I saw you there that evening at General Scott's
house, in company with Colonel Hawk Hay ; Gen-
252 AMERICAN TRIALS.
eral "Washington was in company no part of the time
I was with you, though he was in the house."
" Did my behavior that evening indicate a know-
ledge of any transaction that was injurious to my
country ? "
" No you related a circumstance of the Vul-
ture's being removed by some of our artillery firing
on her, and that General Arnold was at your house,
and was looking out of the window at that time,
which circumstance, combined with others, was the
cause of your being apprehended afterwards. The
firing, it appeared, was just at day-light of the 22d
of September last, the morning succeeding the night
you were on board the Vulture."
The Court. Did Mr. Smith mention the names
of the persons who carried him on board ?
" He did not the question I believe was not
asked him, as it was expected that the names would
have been found by the person superintending the
boatmen at the ferry, as it was known that an order
had been given by General Arnold to that person to
supply Mr. Smith with a boat at any time he should
call for it."
" Was General Washington at Fishkill when he
heard of General Arnold's going off to the enemy ? "
" No he was at Robinson's house, and the mat-
ter was not generally divulged until the evening."
Colonel Hay, at whose house the prisoner was
arrested, testified as to a conversation he had with
Smith upon the subject of his arrest. The latter
protested solemnly, that the only views he had in
JOSHUA H. SMITH. 253
going on board the Vulture, and bringing Anderson
on shore, was to gain intelligence of importance and
serve his country. The judge advocate here laid
before the court certain papers which the prisoner
admitted he once had in his possession, and the case
on the part of the prosecution was closed. The
prisoner then called and examined several witnesses
in his defence.
Jonathan Lawrence, the first witness produced by
the prisoner,, on being asked whether he recollected
Smith's general conduct in New York, previous to
his leaving there, replied :
" I know but little of your political conduct while
in New York, but it appeared to me your general
character was in favor of the country."
" What has been my general conduct in the coun-
try since leaving New York ? "
" At Dobb's Ferry I remember seeing you pass
and repass as one of the convention of the state of
New York. The convention was then sitting at
Harlem. I was one who then guarded the ferry to
examine passengers, and on examining you, you pro-
duced your credentials of being one of the conven-
tion."
" What has been my general character in the coun-
try since leaving New York ? "
" Your general character was that you were a friend
to the country, and from several conversations I have
had with you within this twelve months you appeared
to me to be so."
VOL. ii. 22
254 AMERICAN TRIALS.
Jonathan Holcomb. Mr. Smith having desired
me to purchase him two cattle in New England ; on
my return with the cattle, which was on Friday, the
22d September last, about four or five o'clock in the
afternoon, I called upon Mr. Smith at his house and
told him I had, in the droves back, his beeves coming
on, and desired him to go into the road and see
them. He told me that I might turn them into the
pasture, that he would take them as I had purchased
them, and not look at them. I insisted that he should
go and look at them, and that if he was not pleased
with them I would drive them on and receipt them.
Mr. Smith declined going with me, and gave me for
reasons, that he had been up the last night with a
gentleman from New York at General Arnold's de-
sire, to endeavor to procure a line of communication
from New York to General Arnold, as we had had
no news from there for some time, and the gentleman
was then in his house, and Mr. Smith told me he
expected the next morning to go with him to Gen-
eral Arnold's, and from there, if he went with him,
for he appeared not determined to go, to Fishkill to
his wife. The reason of his going to Fishkill was to
get the keys from his wife, to get money to pay me '
for the beef.
The Court. Did Mr. Smith tell you by what
means that gentleman came to his house ?
" He did not."
The Prisoner. Did I make a secret of having a
gentleman from New York at my house ?
" You did not you spoke of it frankly to me."
The Court. Did Mr. Smith inform you that Gen-
JOSHUA H. SMITH. 255
eral Arnold had had an interview with this gentleman
at his house ?
" They had an interview there the night before, as
I understood Mr. Smith."
The Prisoner. Do you recollect my calling to
my servant to get up my horse ?
" I do."
The Court. Did you understand from Mr. Smith
that he was present at the interview of General Ar-
nold with the gentleman from New York ?
" From what he said, I understood he was present,
and that they had been in council together to pro-
cure a line of intelligence."
The Prisoner. Did I tell you I was present at
the interview ?
" No but from what you said I conjectured
so."
" Was what I informed you of, unasked by you ? "
" I do not recollect asking you a single question
about it."
The Prisoner to Colonel Hay. Do you remem-
ber asking me, on the road from Fishkill to Robin-
son's house, if I had ever wrote any treasonable
letters to New York ?
" I did ask you if you had wrote any treasonable
or any other letters privately to New York you
said you had not."
" What was your reason for asking me this ? "
" Colonel Gouvion informing me that there were
persons taken up, that would prove you held a traitor-
ous correspondence with the enemy."
" Did I not, on the road, complain much of my be-
256 AMERICAN TRIALS.
ing taken in such a manner as I was, as I was con-
scious of no evil design against the country ? "
" You did complain of the manner of your being
taken and carried down, and said you thought your-
self exceedingly ill used, after all your services to the
country, and thanked God you were conscious of
having done nothing that could deserve such treat-
ment, and when you got to head quarters, said you
would be very high about your treatment."
" Is it not double the distance from the point of the
long Clove to Curn's Island, that it is from the point
of the Clove to Taller's Point, in the North River ? "
" I think it is nearly double the distance."
" Could you collect from my conduct, when first
apprehended at Fishkill, any behavior in me, which
conveyed to you an idea of my having done anything
of a criminal nature ? "
" I did not, for you ordered your boy to follow you
with a horse down to Robinson's, for you said you
expected to return the next morning."
" Were you present at a conversation which passed
between Colonel Hamilton and myself at Robinson's
house, after my examination before General Wash-
ington ? "
" I was present at a conversation between you and
Colonel Hamilton, but I do not know whether before
or after your examination before General Washing-
ton."
" Don't you recollect my telling Colonel Hamilton,
when pressed by him to inform of all I knew of Ar-
nold's designs, that I had already told General Wash-
ington all I knew ? "
JOSHUA H. SMITH. 257
" I do recollect you was pressed by Colonel Ham-
ilton to tell all that you knew, and you said you had
already told all that you knew, but I do not recollect
you said, to General Washington. Colonel Hamilton,
to induce you to tell all you knew, and to bring out
the accomplices, promised to make use of his in-
fluence to get you a discharge, but said he was
unauthorized to make such a promise, but he did it
of his own accord."
" Do you think, from the confidential manner in
which I related my transactions with General Arnold
to you on the road, in order to obtain your opinion,
that if there had been anything more in the compass
of my knowledge, as far as my agency in this busi-
ness extended, I should not have informed you of it,
in order to obtain your advice ? "
" I must confess I had some doubts about me that
you had not told me the whole affairs, but after I was
permitted to see you in Robinson's house, my begging
of you for God's sake, for your wife's sake, and
children's sake, to accept of Colonel Hamilton's pro-
mise, and divulge the whole secret, by your solemn
appeals to the Almighty that you had told all you
knew, and knew no more I then believed that you
had told the whole, and if you had known anything
else I certainly should have got it out of you then."
" Do you recollect my telling Governor Clinton,
that Sir George Rodney had detached six ships of
the line, as a reinforcement to Admiral Greaves ? '
" I do, and also recollect your mentioning it at Dr.
McKnight's, the night we supped in company with
22*
258 AMERICAN TRIALS.
General Knox. This circumstance I forgot in my
former examination."
" Please to relate to the court all you know of my
political conduct in New York before our leaving it,
and since, to this time, and what offices I filled in the
state."
" Your character at New York stood very high as
a whig. I have often heard you blamed for being
too warm, and your running yourself into many im-
prudences, by your intemperate zeal. I remember,
on the 6th of March, 1775, when the whigs and
tories turned out, that you was extremely active on
the whig side, and was the first person that introduced
the bludgeons to the whigs, to knock the tories in the
head, when they opposed a measure the whigs wanted
to prosecute. Ever since your living in the country,
you have been active in the American cause, and I
had never reason to doubt your attachment. I al-
ways found you willing to turn out with the militia,
and do everything in your power to promote the pub-
lic good. You have been a member of the sub-com-
mittee of the county, and member of the provincial
convention at the time independence was declared.
In July, 1776, two ships and three tenders came up
to Haverstraw, and attempted to land some men to
carry off some stores. They came so much on a sur-
prise, that the militia could not be collected. Only
thirteen, you being one of the thirteen, went down
to the landing, and notwithstanding the three tenders
kept a continual firing, the thirteen men beat off five
or six boats, crowded with men, and saved the
stores."
JOSHUA H. SMITH. 259
Major Kierce. On the 21st of September last,
General Arnold told me, when his barge returned
from the continental village, with a barge that he sent
for, to send it into Haverstraw creek, and to let him
or Mr. Smith know by express by land, that the
barge was sent into Haverstraw creek. I wrote
a line to General Arnold, informing him that the
barge was sent into the creek, and my express met
the boy from General Arnold to me, and gave him
my note, which was the reason I did not receive
General Arnold's note to me.
" Were you informed for what purpose the barge
was sent into the creek ? "
" General Arnold informed me it was for Mr. Smith
to go down the river, to get some intelligence in favor
of America."
The Prisoner. Did you ever apply to me for
money for the public use, and what station did you
act in at the time ?
" I applied to you last summer for money, being
in great want of it to forward public despatches to
and from the eastward, and you let me have one thou-
sand dollars, and told me you could not let me have
any more that time, and you should not want it be-
fore the fall, when you should want it to purchase
some salt. I acted as quarter master at King's Ferry
at the time. Mr. Henry, who had acted as quarter
master at that place, also informed me you had let
him have money for the public use.
" Did I not always discover to you a desire to
advance the interest of the country, and promote the
general cause of America ? "
260 AMERICAN TRIALS.
" You did, and bore with us the character of a
warm friend to America."
The Court. Did Mr. Smith inform you that he
had used the boat ?
" No. I did not see Mr. Smith afterwards until
he was coming from Fishkill after he was taken
up."
The Prisoner. Did you hear Colonel Robinson
was on board the Vulture ?
" It was a common report at King's Ferry that he
was on board."
The Court. Do you know whether Mr. Smith
was employed by General Howe and General Arnold
to get intelligence ?
" General Arnold informed me, the afternoon of
the night the boat was sent into the creek, that Mr.
Smith had furnished General Howe with very good
intelligence, and that he, Mr. Smith, was going down
the river to procure intelligence for him, and desired
me not to delay the boat a minute, but, as soon as it
arrived, to send it into the creek."
Colonel John Lamb was next produced by the
prisoner, who asked him the following questions.
" Do you know whether General Arnold received
any letters from Colonel Beverly Robinson, by a flag,
from on board the Vulture, and who informed you of
it?"
" I was at the table at dinner (there were a number
of other gentlemen present) with him at the time
letters were brought in, and he said they came by a
flag from Colonel Beverly Robinson ; there was one
he said for him, and another he said for General Put-
JOSHUA H. SMITH. 261
nam ; he opened the one he said was for him, just
looked at it, and put it up in his pocket."
" Do you know of General Arnold's receiving any
more letters from Colonel Robinson ? "
" I never heard of his receiving any more."
" Did he ever tell you, or read to you the contents
of that letter ? "
" He did not read the letter to me ; he told me
that Beverly Robinson had proposed an interview
with him, and asked my advice on the subject. I
advised him, as he was then going down to meet his
Excellency, to show the letters from Beverly Robin-
son to him ; and told him, as the proposal was of a
very extraordinary nature, I could not conceive what
views Beverly Robinson could have, in proposing
such an interview. If anything he had to commu-
nicate was of importance to this country, he might
do it by letter, but that if it was a matter that re-
spected his own private concerns, his business would
be with the governor of the state, not with the gen-
eral commanding in the department, but that I sup-
posed the latter was the case that it was a matter
of private concern respecting his estate ; but I could
not suppose what could be the motive, and told him
the proposal was of such a nature, that it would
induce a suspicion of an improper correspondence
between him and Beverly Robinson, if there was an
interview between them. I told him, that as he was
going down to meet his Excellency at King's Ferry,
I would advise him to show the letters to his Excel-
lency, and take his advice how he should act. After
he had an interview with his Excellency, I put the
262 AMERICAN TRIALS.
question to him, to know if he had shown these letters
to the general. He told me that he had, and that
his Excellency's opinion respecting the matter exactly
coincided with my own. I afterwards asked his
Excellency if he had shewn him these letters, and he
said that he had."
The Court. Did General Arnold mention to you
the purpose of the interview ?
" He did not."
The Prisoner. Did he not afterwards show you
another letter from Robinson, in which Robinson
promised to communicate to him intelligence of the
utmost importance to America, if he might be restored
to the re-possession of his estate.
" He did not, nor ever mentioned any such cir-
cumstance of such a proposal to me."
" Was that all the conversation, that you have
mentioned, that passed between you respecting the
letters Arnold had received ? "
" It was."
" Did you know whether flags frequently passed
between Arnold and the ship Vulture ? "
" I never heard of a flag passing between him and
the ship Vulture, until Arnold was gone off to the
enemy."
" Were you stationed at the garrison at West Point,
at the time Arnold told you of the interview proposed
by Robinson."
I was."
Major General Howe and several other American
officers were examined by the prisoner, and testified
JOSHUA H. SMITH. 263
that he had been in the habit of furnishing intelli-
gence to the Americans of the enemy ; and that he al-
ways appeared to be a strong friend of liberty, although
he was at one time regarded with suspicion on ac-
c ount of his family.
At this stage of the proceedings, all the evidence
on both sides having been produced, the prisoner
requested time to prepare his defence, and several
days were allowed him for that purpose. 1 When the
court assembled again, he read a long defence, which
occupied a quire of paper. He again denied the juris-
diction of the court, contending that the resolve of con-
gress, on which the charge against him was founded,
could not abolish a fundamental principle established
in any of the civil constitutions of the states in the
union ; that the exercise of the power, vested by this
resolve, deprived the subject of the right of trial by
jury, the great bulwark of individual freedom. He
then urged, that General Arnold was actually a major
general in the American service, at the very time he
was engaged in the combination specified in the
charge, and that he could not have had any agency,
without the sanction and direction of Arnold ; and
the evidence clearly showed, that the whole proceed-
ings of the prisoner were in obedience to the instruc-
tions of General Arnold. He also insisted, that the
charge against him was in effect a charge of treason
i " Without any one as my counsel," says Smith, in his narrative, " I
was compelled to enter on my defence, which I did with the more cheer-
fulness, from the candid and impartial manner in which the trial was
conducted by the judge advocate, and the court-martial in general, but
more particularly the president, Colonel Henry Jackson, of the town of
Boston, in the Massachusetts state."
264 AMERICAN TRIALS.
against the United States, requiring the strongest
proof, and the testimony of two witnesses to each
overt act. The prisoner then entered into a careful
examination of the testimony in the case, and con-
cluded with a solemn asseveration, that what he had
declared to General Washington was strictly true ;
that he had no knowledge whatever of Arnold's real
plans, but had acted throughout in good faith.
When the prisoner concluded his address, the court
adjourned, and after holding one session for consider-
ation, pronounced the following sentence : " The evi-
dence produced on the trial and the prisoner's defence
being fully and maturely considered by the court,
they are of opinion, that notwithstanding it appears
to them, that the said Joshua H. Smith did aid and
assist Benedict Arnold, late major general in our ser-
vice, who had entered into a combination with the
enemy for the purposes which the charge mentions,
yet they are of opinion, that the evidence is not suffi-
cient to convict the said Joshua H. Smith of his
being privy to, or having a knowledge of the said
Benedict Arnold's criminal, traitorous and base de-
signs. They are, therefore, of opinion, that the said
Joshua H. Smith is not guilty of the charge exhibited
against him, and do acquit him of it."
This decision of the court seems in accordance
with the testimony. But the real connection of Smith
with Arnold has never been satisfactorily explained.
It is impossible to believe, that a man of his intelli-
gence did not suspect something wrong in the pro-
ceedings ; and his narrative, written many years after-
wards, serves to strengthen the impression that he
JOSHUA H. SMITH. 265
was not acting in entire good faith. The troubles of
Smith did not end with the trial. Indeed, he avers
in his narrative, that he was not informed of the de-
cision of the court martial until long after it was given,
but was kept in constant suspense as to his fate, for
many months. The papers were transmitted by
Washington to the government of New York, that
Smith might be tried by a civil process under the law
of the state of New York, should such a course be
deemed advisable. He was subsequently taken into
custody by the civil authority of the state, but after
being confined in jail several months, he found means
to escape, by the assistance of his wife, and after vari-
ous adventures, sometimes disguised in a woman's
dress, he reached the city of New York, then in pos-
session of the British. At the close of the war he
went to England.
23
PROCEEDINGS
GENERAL ASSEMBLY OF RHODE ISLAND,
AGAINST THE
JUDGES OF THE SUPERIOR COURT OF JUDICATURE,
FOR THEIR JUDGMENT IN THE CASE OF TREVETT
AGAINST WHEEDEN, ON INFORMATION AND COM-
PLAINT FOR REFUSING PAPER BILLS FOR
BUTCHER'S MEAT.
RHODE ISLAND, 1786.
The case of Trevett v. Wheeden and the proceedings of the gen-
eral assembly against the judges, involved important principles, and
deeply agitated the state of Rhode Island. The arguments of James
M. Varnum, who was of counsel for the judges, were regarded as most
able and eloquent productions, and he was induced to prepare them for
the press, together with a succinct account of the whole controversy,
soon after it took place. The arguments, as written out, are not equal to
their reputation, but are nevertheless worthy of preservation in these
pages. The title of General Varnum's work was as follows: "The
Case of Trevett against Wheeden, on information and complaint, for
refusing paper bills in payment for butcher's meat, in market, at par with
specie. Tried before the honorable superior court, in the county of
Newport, September term, 1786. Also, the Case of the judges of said
court, before the honorable general assembly, at Providence, October
session, 1786, on citation, for dismissing said complaint. Wherein the
rights of the people to trial by jury, &c., are stated and maintained, and
the legislative, judiciary and executive powers of government examined
and defined. By James M. Varnum, Esq., major general of the state
of Rhode Island, &c., counsellor at law, and member of congress for said
state. Providence : printed by John Carter, 1786." In addition to
this work, there are many interesting facts relating to the case, in the
Memoirs of the Rhode Island Bar, by Wilkins Updike.
THE RHODE ISLAND JUDGES.
THE period immediately succeeding the American
revolution was the most gloomy in our history. The
country was exhausted by a protracted contest of
seven years, and, on the restoration of peace, there
were found to be causes of discontent in many of
the states, which threatened to embroil the citizens
in sanguinary domestic dissensions. The army, un-
paid and discontented, had returned to their homes,
amongst a population as impoverished as themselves,
and the whole people were subjected to burdensome
taxes to meet a mass of debt, which had been accu-
mulated in the course of the war. The restlessness
produced by the uneasy situation of individuals, con-
nected with lax notions concerning public and private
faith, and erroneous opinions which confound liberty
with an exemption from legal control, produced a
state of things, which alarmed all reflecting men,
especially as a division of property was more than
23*
270 AMERICAN TRIALS.
hinted at, on the ground that what had been pro-
tected by the joint exertions of all, ought to be com-
mon to all. 1
Moreover, the usual consequences of war were
conspicuous in the emulation which prevailed in the
maritime towns, among men of fortune, to exceed
each other in the display of their riches, and in the
utter neglect of those principles of diligence and
economy, which are essential to the stability of a free
government ; whilst the discipline and manners of
the army had vitiated the taste, and relaxed the in-
dustry of the whole people. Of this disposition in
the citizens for luxuries, the merchants naturally took
advantage, and large importations of foreign manu-
factures drained the country of the precious metals,
thus " furnishing reluctant debtors with an apology
for withholding their dues, both from individuals
and the public." The discontent, attendant upon
such a state of things, was peculiarly active in New
England, because their fisheries had become unpro-
ductive, and soon became manifest, first, in unli-
censed conventions, which arrayed themselves against
the legislature, denouncing the heavy taxes and the
administration of the laws, and, at length, in open
resistance to the constituted authorities.
1 The state debt of Massachusetts, when consolidated, amounted to
upwards of thirteen hundred thousand pounds, besides two hundred and
fifty thousand pounds due to the officers and soldiers of their line of the
army. Their proportion of the federal debt, was not less, by a moderate
computation, than one million and a half of the same money. And, in
addition to this, every town was embarrassed, by advances which they
had made to comply with the repeated requisitions for men and supplies
to support the army, and which had been done upon their own particular
credit. Minot's History of the Insurrection, 5.
THE RHODE ISLAND JUDGES. 271
In August, 1786, a convention of delegates from
fifty-one towns in the county of Hampshire, in Mas-
sachusetts, met at Hatfield, and voted a great num-
ber of articles as grievances and " unnecessary bur-
dens now lying on the people ;" and gave directions
for transmitting these proceedings to the convention
of Worcester, and to the county of Berkshire. Very
soon after, a number of insurgents, supposed to be
nearly fifteen hundred, assembled under arms at
Northampton ; took possession of the court house ;
and effectually prevented the sitting of the courts of
common pleas and general sessions of the peace.
The governor issued a proclamation, calling on the
officers and citizens of the commonwealth to sup-
press such treasonable proceedings ; but it had little
effect. The counties of Worcester, Middlesex, Bristol
and Berkshire, were set in a flame. In the week suc-
ceeding the proclamation, a body of more than three
hundred insurgents posted themselves at the court
house in Worcester, and obliged the courts of com-
mon pleas and general sessions to adjourn. Insur-
gents in Middlesex county prevented the courts from
sitting at Concord. In the county of Bristol, the
malecontents assembled to prevent the sitting of the
courts at Taunton ; but the people, to the number of
three hundred, appearing in arms under Major Gen-
eral Cobb, counteracted their designs.
On the 23d of November, a convention of dele-
gates from several towns in the county of Worcester
sent out an address to the people. An attempt was
at length made to prevent the sitting of the supreme
judicial court, by a number of insurgents headed by
272 AMERICAN TRIALS.
Daniel Shays, who had been a captain in the conti-
nental army, but had resigned his commission. The
general court, at this distressing period, passed three
laws for easing the burdens of the people : an act for
collecting the back taxes in specific articles ; an act
for making real and personal estate a tender in dis-
charge of executions and actions commenced at law ;
and an act for rendering law processes less expensive.
They provided for the apprehending and trial of
dangerous persons ; but at the same time tendered
pardon to all the insurgents. These lenient mea-
sures of government were ascribed, not to clemency,
but to weakness or timidity. The judicial courts be-
ing adjourned by the legislature to the 26th of De-
cember, to sit at Springfield, Shays with about
three hundred malecontents marched into that town
to oppose the administration of justice, and took
possession of the court house. A committee was
appointed to wait on the court, with an order, couched
in the humble form of a petition, requiring them not
to proceed on business ; and both parties retired.
The disposition to insurgency was not confined to
Massachusetts. On the 20th of September, about
two hundred men, armed in different modes, sur-
rounded the general assembly of New Hampshire,
convened at Exeter, and held the whole body prison-
ers several hours ; but the citizens, appearing in
arms, crushed the insurrection there in its infancy.
The object of the insurgents was, to force the legis-
lature into a paper money system, agreeably to a
petition, which had been previously preferred by a
convention of delegates from about thirty towns in
THE RHODE ISLAND JUDGES. 273
that state. The president, in a cool and deliberate
speech, explained to the insurgents the reasons for
which the assembly had rejected the petition ; ex-
posed the weakness and injustice of their request ;
said, if it were ever so proper, and the whole body of
the people were in favor of it, yet the legislature
ought not to comply with it, while surrounded by an
armed force ; and declared, that no consideration of
personal danger would ever compel the legislature to
violate the rights of their constituents. When his
speech was finished, the drum beat to arms ; as many
as had guns were ordered to load them with balls ;
sentries were placed at the doors; and death was
threatened to any person who should attempt to
escape until their demands were granted. This in-
sult to the legislature was beheld in silence until the
dusk of the evening, when some of the inhabitants of
Exeter beat a drum at a distance, and others cried,
" Huzza for government ! Bring up the artillery."
The sound of these words struck the mob with an
instant panic, and they scattered in every direction.
They collected the next day ; but the president,
having called out the force of the state, soon dis-
persed them. Some were taken prisoners. Eight
were arraigned at the superior court on an indict-
ment for treason ; but no one suffered capital pun-
ishment. 1
In Rhode Island these restless spirits seem to have
obtained possession of the government, and they pro-
ceeded to make some of the most extraordinary laws
1 Holmes's American Annals, ii. 353, 359.
274 AMERICAN TRIALS.
ever known in a civilized community. The distress
attendant upon the exportation of the precious rnetals
was charged upon the merchants, who were regarded
with the greatest acrimony by a large majority of
the people. An idea became prevalent, that paper
money might be forced, by legislative authority, to
take the place of gold, and measures were adopted
to carry out this policy to the utmost extent by the
strong arm of the law it being supposed that the
merchants were the only class that would be inju-
riously affected thereby, or that would make any
strenuous opposition.
The subject of the currency, one of the most diffi-
cult and embarrassing in the whole science of politi-
cal economy, is more exposed to the assaults of
ignorance and the arts of the demagogue than any
other ; and experience shows, that in all free gov-
ernments, the greatest errors are sometimes embraced
by the people, and a course of policy persisted in,
which must inevitably result in disaster and ruin. In
Rhode Island, at the period referred to, the distresses
of the people were seized upon by unprincipled men,
who, by artful appeals to the distressed of every
class, roused them to frenzy against the merchants,
and induced them to entertain the false and delusive
hope, of being able to change their condition by
simple acts of legislation. The state was distracted
by two parties, calling themselves the hard and paper
money parties. In 1786, the latter obtained an
overwhelming majority in the state, and in May of
that year, the general assembly proceeded to make
THE RHODE ISLAND JUDGES. 275
certain laws, which were at once indicative of fraud,
ignorance and folly.
The first act on this subject, after reciting that,
from a variety of causes, political and mercantile, the
currency of the state had become altogether insuffi-
cient in point of quantity for the purposes of trade
and commerce, and for paying the just debts of the
inhabitants, provided for the emission of one hundred
thousand pounds in bills of paper, for the period of
fourteen years, to be lent on the credit of clear land-
ed real estates, at the rate of four per centum per
annum. Committees were appointed throughout the
state, to sign and distribute these bills to the towns,
in proportion to their population. Persons receiving
them were to pay the interest into the general trea-
sury of the state, annually, for seven years ; but the
last seven years no interest was to be paid ; and one
seventh part of the sum so issued was to be paid into
the office of a general committee in seven equal an-
nual payments during the last seven years, " to be
consumed by fire." J The bills were to be issued in
a convenient form, not more than three pounds in
value, nor less than sixpence. This money was to be
a lawful tender for all debts, and in case any person
refused to receive it as such, his debt was to be forever
barred upon proper proceedings had by the debtor.
No time was fixed for the redemption of these bills,
> The form of these bills was as follows ; State of Rhode Island,
&c. This bill is equal to in lawful silver money, and shall be
received in all payments within this state, agreeable to an act passed bjr
the general assembly of said state, at their May session, holden at the
city of Newport, A. D. 1786. Death to counterfeit.
276 AMERICAN TRIALS.
nor was their ultimate payment charged upon any
fund. Indeed, it was not designated how they were
to be paid, and it is hardly necessary to say, that
they fell into immediate discredit.
At the next June session, the assembly passed
another act on the subject. The preamble set forth
that " whereas it is highly necessary, and of the last
and most important consequence to the government
of all states, that the proceedings of the legislature
be held in high estimation, and the most sacred re-
gard ; and that the law when promulgated be strictly
adhered to, and punctually and most religiously
obeyed. And whereas it is of the greatest moment,
that the aforesaid emission of one hundred thousand
pounds, which will have the greatest tendency of
anything within the wisdom of this legislature to
quiet the minds and to alleviate the distressed situa-
tion and circumstances of the good citizens of this
state, should be kept in good credit ; and that the
same should be a currency equal in value to coined
gold and silver : And whereas various attempts have
been made by a certain class of men, who, from mis-
taken principles, suppose the said currency to be
injurious to their interest, and from an inclination to
render invalid such laws and regulations of this as-
sembly, as may not quadrate with their interest, judg-
ment and opinion of things, and for many other
causes, which, if permitted to exist, will support a
power in this state counter to the authority chosen
and appointed by the suffrages of the free people
thereof, and subversive of those laws and principles
upon which the happiness, welfare and safety, of the
THE RHODE ISLAND JUDGES. 277
people depend." It then provided that any person
who should refuse to take these bills of credit in ex-
change for any articles which he might have for sale,
according to the amount expressed on the face of
such bills, or make any difference in the prices be-
tween silver and paper money in any sale or ex-
change, or direct the same to be done ; or in any
manner whatever tend or attempt to depreciate or
discourage the passing of such bills, of the price of
the face thereof, or do any act to invalidate or
weaken the act emitting such bills, for the first
offence should forfeit and pay the sum of one hun-
dred pounds, and be rendered incapable of being
elected to any office of honor, trust, or profit within
the state.
This measure met with no better success than the
other ; but its failure did not convince a majority of
the people, that legislative enactments could not
transmute paper into gold, and they were more than
ever determined to create, by the mere force of law,
a confidence in a worthless paper currency. Ac-
cordingly, at a session of the general assembly,
specially convened by the governor, in August fol-
lowing, one of the most extraordinary laws ever im-
posed on a free people, was passed by the general
assembly. The preamble set forth, "that it is an
established maxim of legislation, and ought to be
strictly and punctually adhered to in all wise govern-
ments, that process upon the breach of penal laws
should be immediate, and the penalty inflicted or
exacted directly consequent upon conviction. And
VOL. ii. 24
278 AMERICAN TRIALS.
that the usual and stated times of holding courts
within this state, are impracticable, inconvenient and
inapplicable to the true intent and meaning of said
act ; and altogether insufficient to carry into effect
the good purposes of this legislature, touching the
same." It was then enacted that if any person re-
fused to receive such bills as coin, according to pre-
vious laws, the complainant should apply to either of
the judges of the superior court of judicature or
inferior court of common pleas, and citation should
be issued to the refusing party, to appear before a
special court within three days, and there stand his
trial, without a jury, according to the laws of the
land, before such court. And the judgment of the
court, upon the conviction of the accused, was to be
forthwith executed, and the offender immediately to
pay the penalty, or stand committed to juil until sen-
tence should be performed ; which judgment was to
be final and conclusive, and without appeal. No
delay, protection, privilege or injunction should, in
any case, be prayed for, allowed or granted.
At the same session, a bill passed the house of
representatives, which was sent out to be submitted
to the freemen, at their town meetings. This bill
contained a criminal provision for refusing to take
the bills at par with gold and silver, and also a test,
whereby all the freemen of the state and others, were
required to swear or affirm, that they would use their
endeavors to give the paper money a currency equal
to gold and silver, and that they would sell their
vendible articles for the same prices for the one as
THE RHODE ISLAND JUDGES. 279
the other. In case of failure, the delinquent was to
be punished as for wilful and corrupt perjury. 1
But the proceedings of the general assembly re-
ceived a sudden and effective check, in the firmness
of the judiciary, who refused to cooperate in these
insane measures. In September, 1786, one John
Trevett, of Newport, having purchased in the market
some meat of John Wheeden, a butcher, tendered
him in payment bills of the emission of May pre-
ceding. The butcher refused them, whereupon a
complaint was filed in accordance with the laws,
before Paul Mumford, chief justice of the superior
court, at his chambers, who caused a special court to
be convened, but as the information was filed during
the term, it was referred to the regular sittings of the
court, for determination under the provisions of the
paper money laws.
The defendant appeared in court, and pleaded,
" that it appears by the act of the general assembly,
wherein said information was founded, that the act
had expired, and hath no force. Also, for that by
said act the matters of complaint are made triable
before special courts, uncontrollable by the supreme
judiciary court of the state. Also, for that the said
court is not, by said act, authorized and empowered
to empanel a jury, to try the facts charged in the
information, and so the same is unconstitutional and
void."
1 Upon the publication of this bill, the citizens of Providence, in town
meeting, unanimously instructed their representatives to vote against it.
An able report was drawn up, which exerted a favorable influence on
the public mind. Updike, 175.
280 AMERICAN TRIALS.
The case came on for a hearing at the September
term of the superior court of judicature for the county
of Newport, 1786, before Paul Mumford, chief jus-
tice, Joseph Hazaid, Thomas Tillinghast and David
Hovvell, associate justices. James Mitchell Varnum
and Henry Marchant, 1 the most eminent counsellors
in Rhode Island, were retained for the defendant.
Varnum was regarded as the ablest lawyer of that
day, and had great influence with the friends of law
and order throughout the state. Early in the revolu-
tionary struggle, he was chosen a brigadier general
by congress, and was in active service more than a
year, when he resigned his commission, but was
elected a major general of the militia of the state,
and held that rank during the remainder of his life.
He was also chosen a member of the continental
congress, in 1780. After the war, he resumed the
practice of his profession, in which he met with great
success. In appearing on the present occasion, Var-
num acted as much in accordance with his own
desires, as the welfare of his client. His argument,
although not wanting in strength, is clothed in an
ungraceful style, and is deficient in good taste and
sound discrimination. It by no means justifies the
praise it received at that day, and, to the modern
1 Henry Marchant was a native of Martha's Vineyard. He was born
in 1741, and studied law with Judge Trowbridge, in Cambridge. He
established himself in Newport, Rhode Island. In 1770 he became
attorney general of the colony. In 1777 he was a delegate to the con-
tinental congress, and continued there three years, when he declined
serving longer. On the organization of the government under the
constitution, he was appointed by Washington judge of the district court
for Rhode Island, and remained in that office until his death, in 1796.
THE RHODE ISLAND JUDGES. 281
reader, adds nothing to the reputation of this distin-
guished lawyer. Perhaps the explanation of this
may be found in the fact, that the argument was
reduced to writing, after the excitement which pro-
duced it had died away ; and it is still more proba-
ble, that the emphatic success of the advocate, on the
occasion referred to, lent a charm to his address,
which time could not preserve. At any rate, it is
worthy of preservation in these pages, as connected
with one of the most interesting points in our do-
mestic history. 1
ADDRESS OF JAMES M. VARNUM.
I do not appear, may it please the honorable court,
upon the present occasion, so much in the line of rny
profession, as in the character of a citizen, deeply
interested in the constitutional laws of a free, sove-
reign, independent state. And, indeed, whenever
the rights of all the citizens appear to be essentially
connected with a controverted question, conscious of
the dignity of man, we exercise our legal talents only
as means, conducive to the great end of political so-
ciety, general happiness. In this arduous, though
pleasing pursuit, should my efforts appear too feeble
1 General Varnum was bora in Dracut, in 1749. He was graduated
at the Rhode Island College, now Brown University, in 1769, and, hav-
ing studied law with Oliver Arnold, of Providence, established himself
in East Greenwich. He entered the army at the age of twenty-seven,
but resigned his commission at the age of thirty-one, and was elected to
congress. In 1787 he was appointed a judge of the superior court of the
Northwestern Territory, and was induced to leave his family and friends
to become a pioneer in the West, but his health had become enfeebled,
and he died at Marietta, on January 10, 1789.
282 AMERICAN TRIALS.
to support the attempt, I shall derive a consolation
in reflecting, that the learned and honorable gentle-
man at my right is with me in the defence.
Well may a profound silence mark the attention
of this numerous and respectable assembly ! Well
may anxiety be displayed in every countenance !
Well may the dignity of the bench condescend to
our solicitude, for a most candid and serious atten-
tion, seeing that, from the first settlement of this
country until the present moment, a question of such
magnitude as that upon which the judgment of the
court is now prayed, has not been judicially agitated !
Happy am I, may it please your honors, in making
my warmest acknowledgments to the court, for per-
mitting the information and the plea to be considered
by them, in their supreme judiciary capacity. By
this indulgent concession, we feel ourselves at liberty
to animadvert freely upon the illegality of the new-
fangled jurisdictions, erected by the general assembly,
in the act more immediately in contemplation. The
embarrassments naturally accompanying a plea to
the jurisdiction, by removing the cause from the
special court into this court, are totally removed ;
and, with them, the painful necessity of considering
your honors as individually composing so dangerous
a tribunal. The idea of that necessity is truly alarm-
ing, and we cannot do justice to our own feelings,
without expressing a fervent wish, that it may here-
after be ever banished from the human breast.
In discussing the several points stated in the plea,
we must necessarily call in question the validity of
the legislative act, upon which the information is
THE RHODE ISLAND JUDGES. 283
grounded. We shall attempt most clearly to evince,
that it is contrary to the fundamental laws of the
state, and therefore, as the civilians express it, a mere
nullity, and void, ab initio. We shall treat, with
decent firmness, upon the nature, limits and extent,
of the legislative powers ; and deduce, from a variety
of observations and authorities, that the legislature
may err, do err ; and that this act, if we confine our-
selves to the subject matter of it, can only be consid-
ered as an act of usurpation ; but having been enact-
ed by legislators, of whose integrity and virtue we
have the clearest conviction, and of whose good
intentions we have not a doubt, it will be viewed as
an hasty resolution, inconsiderately adopted, and
subject to legal reprehension.
The parties named in the process are of no further
consequence, than as the one represents the almost
forlorn hopes of an hitherto disappointed circle ; the
other as a victim ; the first destined to the fury of
their intemperate zeal and political frenzy. Why
should the abettors of this salutary act, as many are
pleased to call it, retire behind the curtain, in the
day of trial, unless something within them declares
that all is not right? Or, dare they not appear in
the character of informers ? Why should their artil-
lery be levelled against an unfortunate man, who, not
three weeks since, was an object of charity in the
streets of Newport ; and now, " poor pensioner upon
the bounties of an hour," is called upon to answer,
criminally, for refusing beef at fourpence the pound,
when it cost him sixpence upon the hoof, although
purchased of some of the most influential promoters
284 AMERICAN TRIALS.
of the present measures ? Were they dubious of the
event, or did they feel a reluctance in attacking gen-
tlemen of business, character and fortune, who daily
and openly trample upon this favorite idol ? Were
they not acquainted with a Gibbs, and are they not
intimately connected with a Cooke ?
Incomparable was the sentiment of a fine writer,
" that in a democratical government, the customs and
manners control the laws." And whenever an at-
tempt is made, to force upon the people a system
repugnant to their principles, and at which every
sentiment of integrity must reluct, the authors them-
selves, however sanguine in their hopes, will ever
betray an instability in the execution, that generally
forebodes disappointment and chagrin. To your
honors, however, it is submitted to determine, how far
the observation will apply to the cause on trial. The
peace, the honor, the safety of the state, depend
upon, and the fate of unborn millions may be affect-
ed by it.
The first point to which we solicit the attention of
the honorable court is, that the act of the legislature,
upon which the information is founded, hath expired.
In the preamble to this act it is stated, " that the
usual and stated methods and times of holding courts
within this state are impracticable, inexpedient, and
inapplicable to the true intent and meaning of the
said act (the act inflicting the hundred pounds penal-
ty) and altogether insufficient to carry into effect the
good purposes of this legislature, touching the same."
Then follows : " Be it enacted, that the mode of
procedure, and the method of law process, against
THE RHODE ISLAND JUDGES. 285
any person or persons who shall be guilty of a breach
of the aforesaid act, &c., shall be as followeth."
Hence, it is evident, that the principal aim in this
act, is so to modify and vary the process, as to en-
force the sanctions of the former ; lessening, how-
ever, the fine, to render prosecutions more familiar
and practicable. Examine the act with the most
critical exactness ; there is not a clause in it which
creates a crime, or defines or qualifies an action, so
as to infer the idea of criminality. Observe therefore
a subsequent clause, which enacts, " that the legal
mode of carrying the afore-recited act into execution
shall be in force fully and completely, for every
purpose therein mentioned and contained, until all
offences, which have been committed and com-
plained of, and which may be committed and com-
plained of, until the expiration of ten days after the
rising of this assembly, may be fully heard, tried
and determined; anything in this act to the con-
trary in anywise notwithstanding." What then hath
become of the legal mode, pointed out in the act,
since the expiration of the ten days therein men-
tioned ? What other legal mode, than that in ques-
tion, is taken notice of? That is the only antecedent
to the limiting clause ; at least, it is the last antece-
dent ; and so grammatically, as well as legally, is
intended to continue in force the said space of ten
days. " The legal mode " " shall be in force " " un-
til the expiration of ten days ;" consequently, at the
expiration of ten days there was an end of it.
For penal statutes are to be construed strictly ; not
only with regard to the crime and the penalty, but
286 AMERICAN TRIALS.
also with respect to the process ; more especially,
when the manner of trial is repugnant to the com-
mon law. I am sensible that statutes, made pro
publico bono, (not malo, as in the present instance,)
claim a liberal construction. Of that kind may be
deemed, in legal contemplation, the emitting act,
whereby it may be supposed that the means of com-
merce and other business are enlarged ; but this act
and the former penal act becoming one, are alto-
gether penal. They are not directed to the public
good, nor are they so formed as to be entitled to
liberal construction.
Should it be objected, that this construction would
manifestly oppose and frustrate the general intent of
the legislature ; I answer, the courts of law will en-
deavor to establish the actual meaning of the legisla-
ture, if not opposed by a plain, legal construction ;
but as they are sworn to judge according to law, they
cannot depart from this rule of decision.
But, may it please your honors, we do not place
our principal reliance upon this objection, although
in legal propriety we might safely meet the conse-
quences. The whole frame of the act is so replete
with blunders, contradictions and absurdities, that
not a trace of law-learning can be discovered in it.
And to the honor of those of the professional gentle-
men, who prefer the good of their country to the
paltry gains of business, they had not anything to
do with it ; nor any one else who understood, or, if
he understood, duly considered what he was about.
We now proceed to the second point stated in the
plea, " that by the act of the legislature, special trials
THE RHODE ISLAND JUDGES. 287
are instituted, incontrollable by the supreme judiciary
court of the state." There are, in all free govern-
ments, three distinct sources of power, the legislative,
the judiciary and executive. The judiciary power is
more or less perfect, as the formation of the courts of
law tends to produce certainty and uniformity in legal
determinations. And, indeed, without certainty and
uniformity in the judicial tribunals, the best possible
system of laws will prove entirely inadequate to
the security of the people. For law itself is but a
rule of action ; and consequently its very existence
is destroyed, when contradictory decisions are admit-
ted upon the same point. From hence may clearly
be inferred the necessity of a supreme judiciary court,
to whose judgments, as the only conclusive evidence
in law questions, all subordinate jurisdictions must
conform. Such is the court before which I now
have the honor of appearing. Into the nature and
extent of whose jurisdiction, permit me, with humble
deference, to inquire.
In the charter, granted by king Charles the Second,
it is granted, to the governor and company, when
convened, in their legislative capacity, "to appoint,
order and direct, erect and settle, such places and
courts of jurisdiction, for the hearing and determining
of all actions, matters and things, within the said
colony and plantation, and which shall be in dispute,
and depending there, as they shall think fit; and
also to distinguish and set forth the several names
and titles, duties, powers and limits, of each court,
office and officer, superior and inferior." In conse-
quence whereof, the general assembly, in the year
288 AMERICAN TRIALS.
1729, established this court in its present form, "a
superior court of judicature, court of assize, and gen-
eral gaol-delivery, over the whole colony, for the
regular hearing and trying all pleas, real, personal
and mixed, and all pleas of the crown." That they
shall have " the same power and authority, in all
matters and things in this colony, as the court of
common pleas, king's bench, or exchequer, have, or
ought to have, in that part of Great Britain hereto-
fore called England, and be empowered to give judg-
ment in all matters and things before them cogniza-
ble, and to award execution thereon."
This establishment has never been varied, nor the
jurisdiction of the court diminished. The powers
annexed to it were derived from the charter, from
our original constitution ; and, by an uninterrupted
exercise, have become matters of common right. In
point of antiquity, we find them existing, in full
vigor, in the earliest periods of which we have any
regular traces of the English constitution. It is un-
necessary, however, to look any further back than to
the Norman reigns, when justice was exercised in
one court, called the " aula regis ;" " out of this
court, the courts of common pleas and exchequer
seem to have been derived, some time before the
making of the statute of MagnaCharta ; the former of
whicli courts properly determines pleas merely civil,
and the latter those relating to the revenue of the
crown. And after the erection of these courts, the
supreme court seems, by degrees, to have obtained the
name of the court of king's bench, and hath always
retained a supreme jurisdiction in all criminal mat-
ters."
THE RHODE ISLAND JUDGES. 289
The extent of these powers is well defined by the
author last referred to, as well as by most of the
writers upon the subject. " There is no doubt but
that this court, being the highest court of common
law, hath not only power to reverse erroneous judg-
ments, given by inferior courts, but also to. punish
all inferior magistrates, and all officers of justice, for
all wilful and corrupt abuses of their authority."
It commands, prohibits and restrains, all inferior
jurisdictions, whenever they attempt to exceed their
authority, or refuse to exercise it for the public good,
or upon the application of individuals. There are
many instances, I must confess, in which no appeal
is allowed from other courts to this court ; and in
such cases it will not interpose its supreme control,
unless the other courts exceed their authority, or
otherwise, as before mentioned.
Let us illustrate the subject by reflecting, for a
moment, upon the establishment of our courts of
general sessions of the peace. They are five in
number, corresponding to the five counties of the
state. They have cognizance of all crimes not cap-
ital, arising within their respective districts, and their
jurisdictions are perfectly equal. Suppose them ex-
ercising their legal judgments upon the same law ;
and that this law is of a complicated nature, admit-
ting of different constructions, both in the definition
of the crime, and the mode of punishment : May we
not, must we not, conclude, that the same law would
have different operations in the different counties ?
Hence arises the necessity of a supreme control, of a
common standard, to which the opinions of these five
VOL. ii. 25
290 AMERICAN TRIALS.
judicatories shall be conformable. The citizens are
entitled not only to liberty, arising from the security
which the laws afford, but they are equally entitled,
and entitled to equal liberty. They must, therefore,
they will apply to one tribunal, as to a focal point,
where the knowledge of the law is concentred, and
from whence its voice will be heard with irresistible
conviction, confirming the principles of universal
equality.
Had the cognizance of informations been confined
to the courts of sessions only, the evil might have
been remedied, without appeal, by writs of certiorari,
prohibition, mandamus and procedendo ; but by an
unheard of arrangement in the special jurisdictions,
the judges of this court are precisely upon a level
with those of the sessions. Their jurisdiction is con-
current, cumulative and equal. Consequently there
would not be a propriety in applying to this court, in
their supreme judicial capacity, to correct the errors
and restrain the excesses that might arise from op-
pressive determinations. For in the second, they
might counteract their first deliberations, or refuse to
grant redress : but by their first decisions, as a spe-
cial court, a legal prejudice would naturally be formed
in the minds of the judges individually, which might
totally obstruct the avenues to justice. The pride of
opinion is more or less prevalent in all men, however
exalted their stations ; and however conformably the
intention may be to the principles of rectitude, the
judgment will be biased by preexisting opinions.
Making every possible concession for the sake of
the argument, the supreme judiciary court could only
THE RHODE ISLAND JUDGES. 291
correct the errors of its own judges, determining in
the special court ; and therefore the extravagancies
that might accompany the proceedings of the other
five courts, could not, in any possible case, be repre-
hended.
May it please your honors,
As all the glory of the solar system is reflected
from yonder refulgent luminary, so the irradiations
of the inferior jurisdictions are derived from the
resplendent control of this primum mobile in the
civil administration. Under its genial influence,
therefore, we beg liberty to consider the last point
submitted to the judgment of the court, " that by
the act of the legislature the court is not authorized
or empowered to empanel a jury for trying the facts
complained of in the information."
The proposition cannot be controverted : The ex-
pressions in the act, "that the majority of the judges
present shall proceed to hear, &c. without any jury,"
do not require a comment. Should it be objected
that this clause of the act only empowers the judges
to try the fact, when the parties will agree to waive
the trial by jury, it will be sufficient to answer, that
the general assembly intended directly the contrary.
It is well known by all present, that on one day this
clause was rejected, but on the day following (in
consequence of a nocturnal imperium in imperio, or
convention of part of the members) a motion was
made for receding, and they did recede accordingly.
The general tenor of the act was so repugnant to the
honest feelings of the people, when excited by sober
reflection, that the junto out of doors, and possibly
292 AMERICAN TRIALS.
some leading men within, were apprehensive that
convictions would not take place in the usual mode
of trial. They aimed therefore at a summary pro-
cess, flattering themselves that the judges, being
elected by the legislators, would blindly submit to
their sovereign will and pleasure. But, happy for
the state, our courts in general are not intimidated
by the dread, nor influenced by the debauch of
power !
This part of the subject, and which is by far the
most important, will require a more ample discussion
than the preceding. I must therefore beg the atten-
tion of the honorable court to the following consid-
erations ; that the trial by jury is a fundamental
right, a part of our legal constitution ; that the legis-
lature cannot deprive the citizens of this right ; and
that your honors can, and we trust will, so determine.
By the Great Charter of Liberties, 1 which was ob-
tained sword in hand from King John ; and after-
wards, with some alterations, confirmed in parliament
by King Henry the Third, his son, which charter
contained very few new grants ; but, as Sir Edward
Coke observes, was for the most part declaratory of
the principal grounds of the fundamental laws of
England. Afterwards, by the statute called Con-
firmatio Cartarum, whereby the Great Charter is
directed to be allowed as the common law, all judg-
ments contrary to it are declared void ; copies of it
are ordered to be sent to all cathedral churches, and
read twice a year to the people ; and sentence of
1 Blackstone's Commentaries on the Laws of England, i. 127, 128.
THE RHODE ISLAND JUDGES. 293
excommunication is directed to be constantly de-
nounced against all those that by word, deed or
counsel, act contrary thereto, or in any degree in-
fringe it. Next by a multitude of subsequent cor-
roborating statutes (Sir Edward Coke, I think, reck-
ons thirty-two) from the First Edward to Henry the
Fourth. Then, after a long interval, by the petition
of right; which was a parliamentary declaration of
the liberties of the people, assented to by King
Charles the First in the beginning of his reign.
Which was closely followed by the still more ample
concessions made by that unhappy prince to his par-
liament, before the fatal rupture between them ; and
by the many salutary laws, particularly the habeas
corpus act, passed under Charles the Second. To
these succeeded the bill of rights, or declaration de-
livered by the lords and commons to the prince and
princess of Orange, February 13, 1688 ; and after-
wards enacted in parliament, when they became
king and queen : which declaration concludes in
these remarkable words : " And they do claim, de-
mand, and insist, upon all and singular the premises,
as their undoubted rights and liberties." And the
act of parliament itself recognises " all and singular
the rights and liberties, asserted and claimed in the
said declaration, to be the true, ancient and indubita-
ble rights of the people of this kingdom." Lastly,
these liberties were again asserted, at the commence-
ment of the present century, in the act of settlement,
whereby the crown was limited to his present majes-
ty's illustrious house, and some new provisions were
added at the same fortunate era, for better securing
25*
294 AMERICAN TRIALS.
our religion, laws, and liberties ; which the statute
declares to be " the birthright of the people of Eng-
land ;" according to the ancient doctrine of the com-
mon law. The same elegant writer, who appears
to possess the highest degree of information in legal
history, observes, when speaking of this palladium of
liberty, that " it is a trial that hath been used time
out of mind in this nation, and seems to have been
coeval with the first civil government thereof. Some
authors have endeavored to trace the original of juries
up as high as the Britons themselves, the first inhab-
itants of our island ; but certain it is, that they were
in use among the earliest Saxon colonies, their insti-
tution being ascribed by Bishop Nicholson to Woden
himself, their great legislator and captain. Hence it
is, that we may find traces of juries in the laws of all
those nations which adopted the feudal system, as in
Germany, France, and Italy ; who had all of them a
tribunal composed of twelve good men and true,
' boni homines,' usually the vassals or tenants of the
lord, being the equals or peers of the parties litigant :
and, as the lord's vassals, judged each other in the
lord's courts ; so the king's vassals, or the lords them-
selves, judged each other in the king's court. In Eng-
land we find actual mention of them so early as the
laws of King Ethelred, and that not as a new invention.
Stiernhook ascribes the invention of the jury, which
in the Teutonic language is denominated nembda, to
Regner, king of Sweden and Denmark, who was co-
temporary with our king Egbert : just as we are apt to
impute the invention of this, and some other pieces
of juridical polity, to the superior genius of Alfred the
THE RHODE ISLAND JUDGES. 295
Great ; to whom, on account of his having done
much, it is usual to attribute everything : and as the
tradition of ancient Greece placed to the account of
their one Hercules whatever achievement was per-
formed superior to the ordinary prowess of mankind.
Whereas the truth seerns to be, that this tribunal was
universally established among all the northern na-
tions, and so interwoven in their very constitution,
that the earliest accounts of the one give us also
some traces of the other. Its establishment however
and use, in this island, of what date soever it be,
though for a time greatly impaired and shaken by
the introduction of the Norman trial by battel, was
always so highly esteemed and valued by the people,
that no conquest, no change of government, could
ever prevail to abolish it. In Magna Charta it is
more than once insisted on as the principal bulwark
of our liberties : but especially, by cap. 29, that no
freeman shall be hurt, in either his person or property,
' nisi per legale judicium parium suorum vel per
legem terrae.' A privilege which is couched in al-
most the same words with that of the emperor Con-
rad, two hundred years before : ' Nemo beneficium
suum perdat, nisi secundum consuetudinem anteces-
sorum nostrorum, et per judicium parium suorum.'
And it was ever esteemed, in all countries, a privilege
of the highest and most beneficial nature."
From these passages in Judge Blackstone's Com-
mentaries, from the variety of authorities to which he
refers, and from many others of the greatest reputa-
tion, it most clearly appears, that the trial by jury
was ever esteemed a first, a fundamental, and a most
296 AMERICAN TRIALS.
essential principle, in the English constitution. From
England this sacred right was transferred to this
country, and hath continued, through all the changes
in our government, the firm basis of our liberty, the
fairest inheritance transmitted by our ancestors.
The settlers in this country, from whom we are
descended, were Englishmen : they gloried in their
rights as such : but being persecuted in matters of
religion, over which no earthly tribunal can have the
control, they bravely determined to quit their native
soil, to bid a final adieu to the alluring charms of
their situation, and commit their future existence to
that Almighty Power, whose authority they dared
not infringe, but in whose protection they could
safely confide. They tempted the foaming billows,
they braved, they conquered the boisterous Atlantic,
and rested in a howling wilderness, amidst the horrid
caverns of the untamed beasts, and the more dan-
gerous haunts of savage men. They retained their
virtue, their religion, and their inviolable attachment
to the constitutional rights of their former country.
They did not withdraw or wish to withdraw them-
selves from their allegiance to the crown, but emi-
grated under a solemn assurance of receiving protec-
tion, so far as their situation might require, and other
circumstances render practicable.
The laws of the realm, being the birthright of all
the subjects, followed these pious adventurers to
their new habitations, where, increasing in numbers,
amidst innumerable difficulties, they were formed into
colonies by royal charters, in the nature of solemn
compacts, confirming and enlarging their privileges.
THE RHODE ISLAND JUDGES. 297
In the charter granted to our forefathers, the fol-
lowing paragraph claims our particular attention :
" That all and every the subjects of us, our heirs and
successors, which are already planted and settled
within our said colony of Providence Plantations,
which shall hereafter go to inhabit within the said
colony, and all and every of their children, which
have been born there, or on the sea going thither,
or returning from thence, shall have and enjoy all
liberties and immunities of free and natural subjects,
within any of the dominions of us, our heirs or suc-
cessors, to all intents, constructions and purposes
whatsoever, as if they, and every of them, were born
within the realm of England."
This concession was declaratory of, and fully con-
firmed to the people the Magna Charta, and other
fundamental laws of England. And accordingly, in
the very first meeting of the general assembly, after
receiving the charter, in the year one thousand six
hundred and sixty-three, they made and passed an
act, " declaring the rights and privileges of his
majesty's subjects within this colony," whereby it
is enacted, " that no freeman shall be taken or
imprisoned, or be deprived of his freehold or lib-
erty, or free customs, or be outlawed, or exiled, or
otherwise destroyed, nor shall be passed upon, judged
or condemned, but by the lawful judgment of his
peers, or by the laws of this colony : and that no
man, of what estate or condition soever, shall be put
out of his lands and tenements, nor taken, nor im-
prisoned, nor disinherited, nor banished, nor any
ways destroyed, nor molested, without for it being
298 AMERICAN TRIALS.
brought to answer by due course of law. And that
all rights and privileges, granted to this colony by his
majesty's charter, be entirely kept and preserved to
all his majesty's subjects, residing in or belonging to
the same."
This act, may it please the honorable court, was
not creative of a new law, but declaratory of the
rights of all the people, as derived through the char-
ter from their progenitors, time out of mind. It
exhibited the most valuable part of their political
constitution, and formed a sacred stipulation that it
should never be violated. It would be a pleasing,
and perhaps a useful employment, to trace and
point out the numerous instances, wherein the gen-
eral assembly have reasserted these solemn rights ;
but time will not admit of a minute detail. I can-
not, however, be entirely silent upon this head.
At their September session, in the year one thou-
sand seven hundred and sixty-five, " the general as-
sembly, taking into the most serious consideration an
act, passed by the British parliament at their last ses-
sion, for levying stamp duties, and other internal
duties, in North America, resolved, that the first
adventurers, settlers of this his majesty's colony and
dominion of Rhode Island and Providence Planta-
tions, brought with them, and transmitted to their
posterity, and all other his majesty's subjects, since
inhabiting in this his majesty's colony, all the privi-
leges and immunities that have at any time been
held, enjoyed and possessed, by the people of Great
Britain."
Afterwards, at the October session, in the year one
THE RHODE ISLAND JUDGES. 299
thousand seven hundred and sixty-nine, they unani-
mously passed the following resolution : " That all
trials for treason, misprision of treason, or for any
felony or crime whatsoever, committed and done in
his majesty's said colony and dominion, by any per-
son or persons residing therein, ought of right to be
had and conducted in and before his majesty's courts
held within the said colony, according to the fixed
and known course of proceeding ; and that the
seizing of any person or persons, residing in this
colony, suspected of any crime whatsoever, commit-
ted therein, and sending such person or persons to
places beyond the sea to be tried, is highly deroga-
tory to the rights of British subjects ; as thereby the
inestimable privilege of being tried by a jury from
the vicinage, as well as the liberty of summoning and
producing witnesses on such trial, will be taken away
from the party accused."
The attempts of the British parliament to deprive
us of this mode of trial, were among the principal
causes that united the colonies in a defensive war,
and finally effected the glorious revolution. This
is evident from the declaration of rights made by
the first congress, in October, in the year one thou-
sand seven hundred and seventy-four ; the preamble
states, " that the inhabitants of the English colonies,
in North America, by the immutable laws of nature,
the principles of the English constitution, and the
several charters and compacts, have the following
rights," the fifth of which is, " that the respective
colonies are entitled to the common law of England,
and more especially to the great and inestimable
300 AMERICAN TRIALS.
privilege of being tried by their peers of the vicinage,
according to the course of that law."
At the same time they enumerated the several
acts of the British parliament to which they declared
they could not submit, particularly "12 Geo. III.
chap. 24, intituled, ' an act for the better securing
his majesty's dock-yards, magazines, ships, ammuni-
tion and stores,' which declares a new offence
in America, and deprives the American subject of
a constitutional trial by jury of the vicinage, by
authorizing the trial of any person, charged with the
committing of any offence described in the act, out
of the realm, to be indicted and tried for the same in
any shire or county within the realm."
In pursuance of the same principle, upon the ever
memorable fourth of July, in the year one thousand
seven hundred and seventy-six, when the rights of
the United States were exhibited in a new blaze of
glory ; when, to support them, the fathers of their
country, " with a firm reliance on the protection of
Divine Providence, mutually pledged to each other
their lives, their fortunes, and their sacred honor ;"
when they submitted "to a candid world" the cat-
alogue of their complaints against the king of Great
Britain, they charged him with " depriving us, in
many instances, of the benefits of trial by jury."
Here let us pause. If the first act of the English
parliament now upon record, containing the great
charter of the privileges of the subjects ; if the exer-
cise of those privileges for ages ; if the settlement of
a new world to preserve them ; if the first solemn
compact of the people of this state ; if the sacred
THE RHODE ISLAND JUDGES. 301
declarations of the legislature at different periods,
and upon the most important occasions ; if the
solemn appeal to heaven of the United States; in
short, if the torrents of blood that have been shed in
defence of our invaded rights, are proofs, then have
we triumphed in the cause of humanity, then have
we shown that the trial by jury is the birthright of the
people.
Astonished am I, may it please the honorable
court, that a doubt should have arisen in the mind
of any, respecting the legal construction of our Magna
Charta, our declaration of rights. Some of our warm-
est politicians, whose heads are undoubtedly wrong,
and it 'is greatly to be feared their hearts are not
right, have boldly asserted, that the clause which
declares " that no freeman, &c. shall be tried, &c.
but by the lawful judgment of his peers, or by the
laws of the colony," &c. clearly authorizes any other
mode of trial than that by jury, should the legislature
frame a law for that purpose. That their act would
become the law of the land, and so the special juris-
dictions are perfectly conformable to the letter and
spirit of our constitution.
Is it possible that these pretenders to the knowl-
edge of law should be serious, when they avow so
dangerous an opinion? If they are, let them be
informed that they contradict the wisdom and the
practice of ages. That whenever a statute makes
mention of " the law of the land," it refers either to
a particular preexisting law, to the system of laws in
general, or to the mode of legal process.
Lord Coke, in his readings upon the statute, has
VOL. ii. 26
302 AMERICAN TRIALS.
fully demonstrated that the clause " or by the law of
the land," regards the process only. That the parti-
cle or is to be construed conjunctively. And so the
sentence will read, " by the lawful judgment of his
peers, by, or according to, the law of the land," or,
" and by the law of the land ;" that is to say, by bill,
plaint, information, or in any other legal manner.
There are many instances in the books of a similar
construction. I shall produce only one, the case of
Barker against Suretees. 1 " On a special verdict in
ejectment, the question turned upon these words in a
will, viz. I give the said premises to my grandson,
his heirs and assigns ; but in case he dies before
he attains the age of twenty-one years, or marriage,
and without issue, then, and in such case, he de-
vised the same to the defendant. The fact was, the
grandson attained twenty-one, and died, having never
been married. And it was insisted, that the attain-
ing twenty-one was a performance of the condition,
and vested the estate absolutely in the grandson,
under whom the lessor of the plaintiff claimed. And
judgment was .accordingly given in the county Pala-
tine of Durham, whereof error was brought in banco
regis. And, after several arguments, the court
affirmed the judgment, upon the authority of Price
against Hunt in Pollexf. 645, where the word or
was construed conjunctively. And they said they
would read this without the word or, as if it ran,
' and if he dies before twenty-one, unmarried and
without issue ;' which he did not do, for one of the
1 Barker v. Suretees, (2 Strange, 1175.)
THE RHODE ISLAND JUDGES. 303
circumstances failed. And all put together are but
in the nature of one contingency ; and it was con-
sidered, that this was not a condition precedent,
but to destroy an estate devised by the former words
in fee."
I recollect in an excellent treatise of law in gen-
eral, subjoined to the memoirs of the House of Bran-
denburg, written by that great legislator, the illustrious
Frederick, when speaking of the laws of England, he
quotes the heads of Magna Charta ; and when speak-
ing of this part in particular, his words are, " that
nobody shall be imprisoned, or deprived either of life
or estate, without being judged by his peers, and
according to the laws of the kingdom."
The framers of this act, however, and the sup-
porters of the present measure, are not without a
precedent ; and so cannot engross all the honor to
themselves. And lest they should endeavor -to palm
themselves upon the deluded as originals, we will
produce them an instance from the reign of Henry
VII. as similar to the present, as the image in the
mirror is to the substance.
That great oracle of the law, Lord Coke, records
it in the following manner ; J " Against this ancient
and fundamental law, (trial by jury) and in the face
thereof, I find an act of parliament made, that as
well justices of assize, as justices of peace (without
any finding or presentment of twelve men) upon a
bare information for the king before them made,
should have full power and authority, by their dis-
1 Institutes, ii. 50, 51.
304 AMERICAN TRIALS.
cretion, to hear and determine all offences and con-
tempts, committed or done by any persons or persons,
against the form, ordinance and effect, of any statute
made and not repealed, &c. By color of which act,
shaking this fundamental law, it is not credible what
horrid oppression and exactions, to the undoing of
infinite numbers of people, were committed by Sir
Richard Empson and Edmund Dudley, being justices
of peace through England. And upon this unjust
and injurious act (as commonly in like cases it falleth
out) a new office was erected, and they made mas-
ters of the king's forfeitures. But at the parliament
holden in the first year of Henry VIII. this act of
the eleventh of Henry VII. is recited and made
void ; for that by force of said act it was manifestly
known, that many sinister and crafty, feigned and
forged informations had been pursued against divers
of the king's subjects, to their great damage and
wrongful vexation. And the ill success hereof, and
the fearful end of those two oppressors, should deter
others from doing the like, and should admonish
parliaments, that instead of this precious trial by
jury, they bring not in absolute and partial trials by
discretion."
Well may the countenances of certain gentlemen
be changed. Well may their trembling limbs de-
note 'the perturbation of their minds. Well may
" their hearts quake within them." For all others,
who, like Empson and Dudley, violate the constitu-
tional laws of their country, deserve, and, if they
persist in their career, will probably meet their fate.
But we shall proceed, with the permission of your
THE RHODE ISLAND JUDGES. 305
honors, to inquire, whether the legislature can de-
prive the citizens of their constitutional right, the
trial by jury.
When mankind entered into a state of civil so-
ciety, they surrendered a part of their natural rights
into the> hands of the community, that they might
enjoy the remainder with greater security. The ag-
gregate of this surrender forms the power of govern-
ment ; the first and greatest exercise of which con-
stitutes legislation, or the power of making laws.
Consequently the legislature cannot intermeddle with
the retained rights of the people.
In the infant state of society, when the community
consisted of but few members, when their wants and
desires were circumscribed within narrow bounds,
the power of making laws was exercised by all the
people assembled for that purpose, or at least by the
heads of families, who derived from nature a tempo-
rary authority over their offspring. Whatever was
necessary for the good or safety of the whole was
agreed to, and each individual engaged to abide by
the opinion of the majority. Such was the situa-
tion of our ancestors, when they first settled in this
country.
As society increased in numbers and wealth, as
their settlements were extended, and their views
enlarged, it became necessary to delegate the powers
of legislation, and vest them in one person, in a few,
or in many, as the community deemed most condu-
cive to their common advantage. Such was the situa-
tion of our ancestors, when they petitioned to King
Charles II. to be incorporated into a company, with
26
306 AMERICAN TRIALS.
the power of governing themselves. First, by the
making of laws in a general assembly, to be con-
vened twice in each year, composed of magistrates
elected annually by the freemen at large, and of
deputies chosen semi-annually from the respective
towns as their representatives. And secondly, by
carrying those laws into execution, by judiciary
establishments.
The powers of legislation, in every possible in-
stance, are derived from the people at large, are
altogether fiduciary, and subordinate to the associa-
tion by which they are formed. Were there no
bounds to limit and circumscribe the legislature ;
were they to be actuated by their own will, inde-
pendent of the fundamental rules of the community,
the government would be a government of men, and
not of laws. And whenever the legislators depart
from their original engagements, and attempt to make
laws derogatory to the general principles they were
bound to support, they become tyrants. " For since
it can never be supposed," as Mr. Locke well ob-
serves, " to be the will of the society, that the legis-
lative should have a power to destroy that which
every one designs to secure, by entering into society,
and for which the people submitted themselves to
legislators of their own making, whenever the legisla-
tors endeavor to take away and destroy the property
of the people, or to reduce them to slavery under
arbitrary power, they put themselves into a state of
war with the people." l And again, " when the legis-
1 Locke on Government, 392.
THE RHODE ISLAND JUDGES. 307
lators act contrary to the end for which they were
constituted, those who are guilty, are guilty of rebel-
lion."
The powers of our legislature are so clearly defined
in the charter, which is conclusive evidence of the
compact of the people, as well as of the royal inten-
tion, that a recurrence to them will greatly assist us
in the present question. Let us attend, therefore, to
the following passage : " And that they (the general
assembly) or the greatest part of them then present,
whereof the governor or deputy governor, and six of
the assistants, at least to be seven, shall have, and
have hereby, given and granted unto them, full
power and authority, from time to time, and at all
times hereafter, to make, ordain, constitute, or repeal
such laws, statutes, orders and ordinances, forms and
ceremonies of government and magistracy, as to them
shall seem meet, for the good and welfare of the said
company, and for the government and ordering the
lands and hereditaments hereinafter mentioned to be
granted, and of the people that do, or at any time
hereafter shall, inhabit or be within the same ; so as
such laws, ordinances and constitutions, so made, be
not contrary and repugnant unto, but, as near as may
be, agreeable to the laws of this our realm of England,
considering the nature and constitution of the place
and people there."
This grant, which was obtained in consequence of
an association of all the people for that purpose, ex-
pressly limits the legislative powers ; and by invaria-
ble custom and usage they are still so confined, that
they cannot make any laws repugnant to the general
308 AMERICAN TRIALS.
system of laws which governed the realm of England
at the time of the grant. The revolution has made
no change in this respect, so as to abridge the people
of the means of securing their lives, liberty and prop-
erty ; to preserve which % they have ever considered
the trial by jury the most effectual.
There are certain general principles that are
equally binding in all governments, more especially
those which define the nature and extent of legisla-
tion. I do not recollect of having ever observed
them so clearly and elegantly described, as in a trea-
tise written by M. de Vattel, upon the laws of na-
tions and of nature. I shall introduce him, therefore,
as he is translated, in his own words.
" In the act of association, in virtue of which a
multitude of men form together a state or nation,
each individual has entered into engagements with
all, to procure the common welfare ; and all have
entered into engagements with each individual to
facilitate for him the means of supplying his necessi-
ties, and to protect and defend him. It is manifest
that these reciprocal engagements can no otherwise
be fulfilled, than by maintaining the political associa-
tion. The entire nation is then obliged to maintain
that association ; and as in its duration the preserva-
tion of the nation consists, it follows from thence
that every nation is obliged to perform the duty of
self-preservation."
" The constitution and its laws are the basis of the
public tranquillity, the firmest support of the public
authority, and pledge of the liberty of the citizens.
But this constitution is a vain phantom, and the best
THE RHODE ISLAND JUDGES. 309
laws are useless, if they are not religiously observed.
The nation ought then to watch very attentively, in
order to render them equally respected by those who
govern, and by the people destined to obey. To
attack the constitution of the state, and to violate its
laws, is a capital crime against society ; and if those
guilty of it are invested with authority, they add to
this crime a perfidious abuse of the power with which
they are intrusted. The nation ought constantly to
suppress these abuses with its utmost vigor and vigi-
lance, as the importance of the case requires. It is
very uncommon to see the laws and constitution of a
state openly and boldly opposed ; it is against silent
and slow attacks that a nation ought to be particu-
larly on its guard."
But here, the attack is open and bold ; it comes
with violence ; it moves with huge gigantic strides,
and threatens slavery or death.
" A very important question here presents itself.
It essentially belongs to the society to make laws,
both in relation to the manner in which it desires to
be governed, and to the conduct of the citizens.
This is called the legislative power. The nation may
entrust the exercise of it to the prince, or to an as-
sembly ; or to that assembly and the prince jointly ;
who have then a right of making new, and abrogating
old laws. It is here demanded, whether, if their
power extends so far as to the fundamental laws, they
may change the constitution of the state ? The prin-
ciples we have laid down lead us to decide this point
with certainty, that the authority of these legislators
does not extend so far ; and that they ought to con-
310 AMERICAN TRIALS.
sider the fundamental laws as sacred, if the nation
has not, in very express terms, given them the power
to change them. For the constitution of the state
ought to be fixed ; and since that was first estab-
lished by the nation, which afterwards trusted certain
persons with the legislative power, the fundamental
laws are excepted from their commission. It appears
that the society had only resolved to make provision
for the state's being always furnished with laws suited
to particular conjunctures ; and gave the legislature,
for that purpose, the power of abrogating the ancient
civil and political laws that were not fundamental,
and of making new ones ; but nothing leads us to
think, that it was willing to submit the constitution
itself to their pleasure. In short, these legislators
derive their power from the constitution ; how then
can they change it, without destroying the foundation
of their authority ? " l
Have the citizens of this state ever entrusted their
legislator with the power of altering their constitu-
tion ? If they have, when and where was the solemn
meeting of all the people for that purpose ? By what
public instrument have they declared it, or in what
part of their conduct . have they betrayed such ex-
travagance and folly? For what have they con-
tended through a long, painful and bloody war, but
to secure inviolate, and transmit unsullied to pos-
terity, the inestimable privileges they received from
their forefathers ? Will they suffer the glorious price
of all their toils to be wrested from them, and lost
1 Vattel, Law of Nations, 12, 17, 18.
THE RHODE ISLAND JUDGES. 311
forever, by men of their . own creating ? They who
have snatched their liberty from the jaws of the Brit-
ish lion, amidst the thunders of contending nations,
will they basely surrender it to the administration of
a year ? As soon may the great Michael kick the
beam, and Lucifer riot in the spoils of angels !
Constitution ! we have none ; who dares to say
that ? None but a British emissary, or a traitor to
his country. Are there any such amongst us ? The
language has been heard, and God forbid that they
should continue ! If we have not a constitution, by
what authority do our general assembly convene to
make laws, and levy taxes? Their appointment by
the freemen of the towns, excluding the idea of a
preexisting social compact, cannot separately give
them power to make laws compulsory upon the other
towns. They could only meet, in that case, to form
a social compact between the people of the towns.
But they do meet by the appointment of their re-
spective towns, at such times and places, and in such
numbers, as they have been accustomed to do from
the beginning. When met, they make laws and levy
taxes, and their constituents obey those laws, and
pay their taxes. Consequently they meet, deliberate
and enact, in virtue of a constitution, which, if they
attempt to destroy, or in any manner infringe, they
violate the trust reposed in them, and so their acts
are not to be considered as laws, or binding upon
the people.
But as the legislative is the supreme power in
government, who is to judge whether they have vio-
lated the constitutional rights of the people ? I an-
312 AMERICAN TRIALS.
swer, their supremacy (consisting in the power of
making laws, agreeably to their appointment) is de-
rived from the constitution, is subordinate to it, and
therefore, whenever they attempt to enslave the peo-
ple, and carry their attempts into execution, the
people themselves will judge, as the only resort in
the last stages of oppression. But when they pro-
ceed no farther than merely to enact what they may
call laws, and refer those to the judiciary courts for
determination, then, (in discharge of the great trust
reposed in them, and to prevent the horrors of a civil
war, as in the present case,) the judges can, and we
trust your honors will, decide upon them.
In despotic countries, where the sovereign man-
date issues from the throne, surrounded by servile
flatterers, sycophants and knaves, the judge has no-
thing more to do than execute. His office is alto-
gether ministerial, being the passive tool of that law-
less domination by which he was appointed. Properly
speaking, the judiciary power cannot exist where
political freedom is banished from the administration.
For without a system of laws, defining and protecting
the rights of the people, there can be no fixed princi-
ples or rules of decision. Hence it is, that wherever
the distinct powers of government are united in one
head, whether that head consists of one, or of many,
the subjects groan under perpetual servitude.
I say of one or of many : for it is very immaterial
by whom scourges, chains and tortures, are inflicted,
provided we must submit to them. The studied and
unheard of cruelties of a Dionysius, who violated
every right of humanity in his tyranny over the Syra-
THE RHODE ISLAND JUDGES. 313
cusians during the space of thirty-eight years, were
not more horrid and execrable than the united bar-
barities of the Council of Thirty, established at Athens,
who caused more citizens to be murdered in eight
months of peace, than their enemies had destroyed in
a thirty years war !
Nor am I capable of distinguishing between an
established tyranny, and that government where the
legislature makes the law, and dictates to the judges
their adjudication. For in that case, were they to
enact tyrannical laws, they would be sure to have
them executed in a tyrannical manner. The servility
of the courts would render them totally subservient
to the will of their masters, and the people must be
enslaved, or fly to arms.
In civil as well as moral agency, there is a freedom
of the will necessarily exerted in forming the judg-
ment. Without the exercise of this, we cannot be
said to determine at all, but our actions are wholly
passive ; and so, in a moral sense, we could not be
accountable, and in a civil point of view we should
be deprived of all liberty. Every being naturally
endeavors its own preservation ; and the more con-
formably its actions are to its nature, the nearer it
approaches to perfection : but when its actions are
impelled by external force, it is deprived of the
means both of preservation and of perfection.
A nation may be considered as a moral being,
whose health and strength consist in the due propor-
tion, nice adjustment and equal preservation, of all
its parts : and when one branch of the government
steps into the place of another, and usurps its func-
VOL. ii. 27
314 AMERICAN TRIALS. t; ,
tions, the health and the strength of the nation are
impaired : and should the evil be continued, so as
that the one be destroyed by the other, the nation
itself would be in danger of dissolution.
Have the judges a power to repeal, to amend, to
alter laws, or to make new laws ? God forbid ! In
that case they would become legislators. Have the
legislators power to direct the judges how they shall
determine upon the laws already made ? God for-
bid ! In that case they would become judges. The
true distinction lies in this, that the legislature have
the incontrollable power of making laws not repug-
nant to the constitution : the judiciary have the sole
power of judging of those laws, and are bound to
execute them ; but cannot admit any act of the legis-
lature as law, which is against the constitution.
The judges are sworn "truly and impartially to
execute the laws that now are or shall hereafter be
made, according to the best of their skill and under-
standing." They are also sworn " to bear true alle-
giance and fidelity to this state of Rhode Island and
Providence Plantations, as a free, sovereign and inde-
pendent state." But this became a state in order to
support its fundamental, constitutional laws, against
the encroachments of Great Britain. The trial by
jury, as has been fully shown, is a fundamental, a
constitutional law ; and therefore is binding upon
the judges by a double tie, the oath of allegiance, and
the oath of office. It is a rule in ethics, " that if two
duties or obligations, both of which cannot be per
formed, urge us at the same time, we must omit the
lesser, and embrace the greater."
THE RHODE ISLAND JUDGES. 315
Let the question then fairly be stated. The gen-
eral assembly have made a law, and directed the
judges to execute it by a mode of trial repugnant to
the constitution. What are the judges to resolve?
Did the nature of their jurisdiction admit of such a
mode of trial at the times of their appointment and
taking the oath of office ? Surely it did not. The
act of assembly then erects a new office, the exercise
of which, other things equal, they may undertake, or
refuse, at their own option. There is no duty, no
obligation in the way. In refusing, they incur no
penalty ; nor can their so doing work a forfeiture of
their offices as judges of the supreme judiciary court.
But when it is considered that the exercise of this
office would be acting contrary to their oath of alle-
giance, and the oath of office, they are bound to
reject it, unless the general assembly have power to
absolve them from these oaths, and compel them to
accept of any appointment they may be pleased to
make.
I have heard some gentlemen speak of the laws of
the general assembly. I know of no such laws, dis-
tinct from the laws of the state. The idea is dan-
gerous ; it borders upon treason ! " 'tis rank it
smells to heaven !"
Laws are made by the general assembly under the
powers they derive from the constitution, but when
made they become the laws of the land, and as such
the court is sworn to execute them. But if the gen-
eral assembly attempt to make laws contrary here-
unto, the court cannot receive them as laws ; they
cannot submit to them. If they should, let me
316 AMERICAN TRIALS.
speak it with reverence, they would incur the guilt
of a double perjury.
The life, liberty and property of the citizens are
secured by the general law of the state. We will
then suppose (as the very nature of the argument
allows us to view the argument in every possible
light) that the general assembly should pass an act,
directing that no citizen should leave his house, nor
suffer any of his family to move out of the same, for
the space of six months, upon the pain of death.
This would be contrary to the laws of nature. Sup-
pose they should enact that every parent should
destroy his first born child. This would be contrary
to the laws of God. But, upon the common princi-
ples, the court would be as much bound to execute
these acts as any others. For if they can deter-
mine upon any act, that it is not law, and so
reject it, they must necessarily have the power of
determining what acts are laws, and so on the con-
trary. There is no middle line. The legislature
has power to go all lengths, or not to overleap the
bounds of its appointment at all. So it is with the
judiciary ; it must reject all acts of the legislature that
are contrary to the trust reposed in them by the peo-
ple, or it must adopt all.
But the judges, and all others, are bound by the
laws of nature in preference to any human laws, be-
cause they were ordained by God himself anterior to
any civil or political institutions. They are bound,
in like manner, by the principles of the constitu-
tion in preference to any acts of the general as-
sembly, because they were ordained by the people
THE RHODE ISLAND JUDGES. 317
anterior to, and created the powers of, the general
assembly.
This mode of reasoning will equally apply in law
as in philosophy. For wherever there is a given
force applied to put a body in motion, that motion
will continue until the body is opposed by an equal
or greater force. And the judges being sworn to
execute the fundamental laws, they must continue to
execute them until they shall be controlled by laws
of a superior nature. But that can never happen,
until all the people assemble for the purpose of
making a new constitution. And indeed I very
much doubt if the citizens of any one state have
power to adopt such a kind of government, as to
exclude the trial by jury, consistently with the prin-
ciples of the confederation.
It having been shown that this court possesses all
the powers in this state, that the courts of king's
bench, common pleas, and exchequer, possess in
England, let us turn to the authorities, and observe
the adjudications of those courts in similar cases.
Blackstone informs us, that " acts of parliament that
are impossible to be performed ; and if there arise
out of them collaterally any absurd consequences,
manifestly contradictory to common reason, they are,
with regard to those collateral consequences, void."
The same author having previously observed, that
" the judges are the depository of the laws ; the
iving oracles, who must decide in all cases of doubt,
and who are bound by oath to decide according to
the law of the land." In Bacon's Abridgment we
27
318 AMERICAN TRIALS.
read, " if a statute be against common right or rea-
son, or repugnant, or impossible to be performed, the
common law shall control it, and adjudge it to be
void." Here permit me, may it please your honors,
to apply the authority to the act, and see how exactly
it corresponds.
Is it consistent with common right or reason, that
any man shall be compelled to receive paper, when
he has contracted to receive silver ? That for bread
he shall receive a stone, or for fish a serpent ? Is it
consistent with common right or reason, that he shall
receive the paper, dollar for dollar with silver, when
it is fully known that the discount in general is from
three to four for one, among those who receive the
paper at all, and that there are very many who totally
refuse it ? That he should be called from his busi-
ness, and subjected to a fine for his refusal, when
there is not a man in the state, but upon principles
of justice to himself and family would have done the
same ? Is it right or reasonable, that for such refusal
he should be called to trial in a summary manner, in
three days, and that no essoin, protection, privilege
or injunction, shall be in anywise prayed, granted or
allowed ? Suppose him to be confined to his bed by
sickness, is he to be passed upon ex parte 1 No
man is to be injured by the act of God, or by the act
of the law. Suppose his witnesses are sick or ab-
sent, and cannot be procured by the time, he is not
allowed even to pray for an indulgence ; or if he
should pray ever so fervently, he cannot be heard.
Suppose him to be summoned to attend at two, or at
THE RHODE ISLAND JUDGES. 319
all the counties at the same time, upon different in-
formations, he is still to be condemned unheard.
Even suppose him to stand in need of professional
assistance, but that he cannot obtain at the moment,
the gentlemen of the law being all necessarily attend-
ing upon a special session of the general assembly, is
he to be deprived of counsel ?
" Repugnant, or impossible to be performed." Is
not the act repugnant, when it authorizes the judges
to " proceed to trial without any jury, according to
the laws of the land ?" The laws of the land con-
stitute the jurors the triers of facts, and the judges
the triers of law only, according to the known max-
im, " ad questionem juris respondent judices, ad
questionem facti respondent juratores." How is it
possible, then, that the judges should try, without
jury, and they are directed as well as authorized so
to do, " the said court shall proceed," and at the
same time according to the laws of the land, when
those laws direct " that no man, of what estate and
condition soever, shall be molested, without being,
for it, brought to answer by due course of law, nor
passed upon nor condemned, but by the lawful judg-
ment of his peers ?" Can contraries exist, and be
executed at the same time ? This act, therefore, is
impossible to be executed.
Here is a new office indeed ; and were your
honors to suffer the special jurisdictions to attempt
to carry the act into effect, what inconceivable mis-
chiefs would ensue ? Is there a member of the ad-
ministration, or any other, that will sell his beef, his
pork, his corn, or his cheese, so as to enable the re-
320 AMERICAN TRIALS.
tailers and huxters to sell those articles again for
paper, at the same rate they could be afforded for
silver or gold ? There is not. What is the conse-
quence ? Every evil-minded person in the state is
invited by law to turn informer (a most despicable
office) and more than five hundred prosecutions
would take place in the course of a week ! Horrible
reflection. The idle, the profligate, the abandoned
of every character, would appear in the group of
prosecutors or witnesses, urged and pushed on by
petty conventions and designing juntos, till perjury
would run down our streets like a stream, and vio-
lence like a mighty river. The judges themselves
might be tempted, by the perquisites of office, to
encourage informations, until every man of industry,
of business, and of property, must quit the state,
retire from business, give up his property, or join in
an opposition of force. The temptation is great, and
seriously alarming. For to secure the judges indi-
vidually, and. their personal influence, the very emit
ting act directs that they shall receive all moneys
tendered and refused for past contracts, and at the
expiration of three months deposit them in the gen-
eral treasury. What room for peculation, what in-
ducement to corruption, what incentives to depre-
ciate the currency !
Oh ! it is an abominable act! Yet some there are,
and, to our shame be it spoken, too many, who tend
it, who nurse it, who hug it to their bosom as a dar-
ling child. But let me tell them it is a furious
offspring, conceived by an unlawful convention, and
brought forth by at an unguarded hour. 'Tis
THE RHODE ISLAND JUDGES. 321
a monster, and, as the immortal Pope expresses it
upon another occasion,
It is a monster of so frightful mien,
As to be hated, needs but to be seen ;
Vet seen too oft, familiar with her face,
We first endure, then pity, then embrace !
Let us see it therefore but once ! Let us consign
it, O ye judges, to its fate ! Death is in its constitu-
tion, and die it must !
But to return, for I must confess the digression is
not particularly directed to the point more imme-
diately in question : we again read in Bacon's Abridg-
ment, 1 that " the power of construing a statute is in
the judges ; for they have authority over all laws,
more especially over statutes, to mould them accord-
ing to reason and convenience to the best and truest
use." Here the author refers to Hobart, Plowden,
and Lord Coke, who fully justify the doctrine he ad-
vances. They are upon the table, and will be pro-
duced, if your honors require it ; but we presume it
would be only trespassing upon your patience, too
much exhausted already, by a tedious discussion.
The satisfaction you are pleased to express upon
this head, enables us to pursue the subject in another
point of view. Perhaps there is not a civilized coun-
try on earth, where so small a portion of natural lib-
erty is given into the stock of political society, as by
the people of this state. There is a certain period in
every year when the powers of government seem to
expire ; for the authority of the old officers ceases
1 Vol. 4, 643.
322 AMERICAN TRIALS.
with the appointment of the new, and these cannot
act until they are commissioned and sworn. The
legislative of one house being composed of new
members, or members newly elected twice in the
year, feels and carries into effect the sentiments of
the people, founded upon the extremes of liberty.
The electors in the respective towns have generally
some point to obtain ; or, which is more unfriendly
to public liberty, they are divided by parties, and so
the members elected become the advocates of local,
interested measures, without comparing them with
the more extensive objects of the community. The
sessions seldom exceed the limits of a week : new
laws are proposed, acted upon and adopted, accord-
ing to the first or the preconcerted impressions of
passion, without time for deliberation or reflection.
The upper house, it is true, hath a negative upon
the house of deputies ; but they never persist in ex-
ercising it without endangering their next election.
The appointment of the judges, justices of the peace,
and other officers of government, being made by the
members of both houses in a grand committee, is
very often the result of political arrangements ; and
more attention is paid to the carrying of certain
points, than to the qualification of the candidates ;
so that the people feel no great restraint from this
quarter.
What is there then, in the nature of our govern-
ment, to prevent anarchy and confusion on the one
hand, or tyranny and oppression on the other ? Be-
fore the revolution, the king, as supreme executive,
formed the balance; but since, the executive power
THE RHODE ISLAND JUDGES. 323
hath become blended with the legislative, and we have
not, like the other states in the union, adopted any
substitute for this defect.
The moment, therefore, that this court feels itself
dependent upon the legislature, in the exercise of its
judiciary powers, there will be an end of political
liberty : for there is not an individual of mankind
but wishes, if possible, to be exempt from the com-
pacts that bind others. And there may be con-
junctures in which the love of natural liberty will
bid defiance to the restraints of law, if the legislature
are blindly guided by the general impulse. Or should
these attachments be more strongly fixed to the in-
terests of a few designing men than to the public
wish, tyranny would spring out of anarchy. In either
case, the interposition of the judiciary may save the
constitution, at least for a time ; and, by averting the
immediate evil, will give scope for reflection, and so
prevent a dissolution of government.
It is extremely to be regretted, that this court is
not as independent in the tenure by which the judges
hold their commissions, as they are in the exercise of
their judicial proceedings. The frequent changes
that arise from annual appointments may have an
influence upon legal decisions, and so destroy that
uniformity which is essentially requisite to the se-
curity of individuals. But from these considerations
we have nothing to fear upon the present occasion :
for the knowledge, the integrity, the firmness of the
bench, will rise superior to every obstacle ; and the
dignity of their determinations will display a lustre
awful even to tyranny itself.
324 AMERICAN TRIALS.
To this honorable court the warmest thanks of the
defendant, of this assembly, of every citizen, are due,
for their solicitous attention to their unalienable
rights. Their expectations, their joyous hopes, await
your determination ; and we all pray to heaven, that
before to-morrow's sun shall deck the western sky,
our hopes may wanton in complete enjoyment !
Then ev'ry gen'rous breast shall glow with purest flame
Of gratitude ; and fathers, anxious for the public good,
Relate the glorious deed to their attentive sons,
Who '11 venerate the names of those immortal five,
Who nobly dar'd to save our dying laws !
I cannot further pursue the subject, but must come
to a conclusion. We have attempted to show, that
the act, upon which the information is founded, has
expired : that by the act special jurisdictions are
erected, incontrollable by the supreme judiciary court
of the state : and that, by the act, this court is not
authorized or empowered to empanel a jury to try
the facts connected in the information : that the
trial by jury is a fundamental, a constitutional right
ever claimed as such ever ratified as such
ever held most dear and sacred ; That the legisla-
ture derives all its authority from the constitution
has no power of making laws but in subordination
to it cannot infringe or violate it ; That therefore
the act is unconstitutional and void ; That this court
has power to judge and determine what acts of the
general assembly are agreeable to the constitution ;
and, on the contrary, that this court is under the
most solemn obligations to execute the laws of the
THE RHODE ISLAND JUDGES. 325
land, and therefore cannot, will not, consider this act
as a law of the land.
Oh ! ye judges, what a godlike pleasure must you
now feel in having the power, the legal power, of
stopping the torrent of lawless sway, and securing to
the people their inestimable rights ! Rest, ye ven-
erable shades of our pious ancestors ! our inheritance
is yet secure ! Be at peace, ye blessed spirits of our
valiant countrymen, whose blood has just streamed
at our sides, to save a sinking land !
When the tear is scarcely wiped from the vir-
gin's eye, lamenting an affectionate father, a beloved
brother, or a more tender friend ; while the matron
still mourns, and the widow bewails her only hope ;
while the fathers of their country, superior to the
ills of slaughter, are completing the mighty fabric of
our freedom and independence, shall the decision of
a moment rob us of our birthright, and blast forever
our noblest prospects ? Forbid it, thou Great Legis-
lator of the Universe ! No :
The stars shall fade away, the sun himself
Grow dim with age, and nature sink in years ;
But thou [fair liberty] shall nourish in immortal youth,
Unhurt amidst the war of elements,
The wreck of matter, and the crush of worlds !
Such was the address of Mr. Varnum. Whatever
may be thought of it in point of style, it contained sound
doctrine, enforced in a clear and able manner, and it
exerted a powerful influence in favor of just principles.
The court decided, that the " information was not
326 AMERICAN TRIALS.
cognizable before them." ' Their decision was re-
ceived with equal surprise by the two political par-
ties. While the friends of a sound currency were
amazed at the independence of a tribunal, annually
elected, one member at least of which was of the
paper-money party, they hailed it as a sure sign of
returning reason, and the harbinger of better things.
But by the legislature itself the result was received
with the deepest mortification and chagrin. The
general assembly was specially convened by the gov-
ernor, and on the first day of the session a summons
was issued from both houses, requiring an immediate
attendance of the judges, to assign their reasons for
adjudging an act of the " supreme legislature of the
state unconstitutional, and so absolutely void." Two
of the judges accordingly attended, but the other two
being ill, the assembly postponed the matter two
weeks. At that time the chief justice was still too
ill to attend, but the other judges appeared and gave
notice to both houses " that they awaited their plea-
sure." They were informed that the assembly was
ready to hear them, and would proceed immediately
upon the business for which they were in attendance.
Certain ceremonies having been adjusted, and the
1 Mr. Updike, in his Memoirs of the Rhode Island Bar, states the
judgment of the court to have been " that the amended acts of the
legislature were unconstitutional and void." And the general assembly,
on their records, refer to the court as having " declared and adjudged an
act of the supreme legislature of this state to be unconstitutional, and so
absolutely void." But the judgment of the court appears to have been
simply, " that the information was not cognizable before them." See
Varnum's Report, page 1 ; and also the distinction taken by Mr. Justice
Howell in his address to the general assembly, on the next page.
THE RHODE ISLAND JUDGES. 327
records of the court produced, David Howell, the
youngest judge, addressed the general assembly in
a learned and elaborate speech of six hours. He
remarked, in the first place, that the order by which
the judges were before the house might be con-
sidered as calling upon them to assist in matters of
legislation, or to render the reasons of their judicial
determination, as being accountable to the legisla-
ture for their judgment. In the former point of
view, the court were ever ready, as constituting the
legal counsellors of the state, to render every kind of
assistance to the legislature, in framing new, or re-
pealing former laws ; but for the reasons of their
judgment upon any question judicially before them,
they were accountable only to God, and their own
consciences. He then pointed out the objectionable
parts of the act upon which the information was
founded, and argued that it was unconstitutional,
had not the force of a law, and could not be exe-
cuted.
But he denied, that the judges were accountable
to that tribunal, for the reasons of their judgment.
In the first place, the legislature had assumed a fact,
in their summons to the judges, which was not justi-
fied or warranted by the records. The plea of the
defendant, in a matter of mere surplusage, mentions
the act of the general assembly as " unconstitutional,
and so void ;" but the judgment of the court simply
is, " that the information is not cognizable before
them." Hence it appears that the plea has been
mistaken for the judgment.
Whatever might have been the opinion of the
328 AMERICAN TRIALS.
judges, they spoke by their records, which admitted
of no addition or diminution. They might have
been influenced respectively by different reasons, as
the whole act was judicially before them, of which,
it being general, they could judge by inspection,
without confining themselves to the particular points
stated in the plea. It would be out of the power,
therefore, of the general assembly to determine upon
the propriety of the court's judgment, without a par-
ticular explanation. If this could be required in one
instance, it might in all ; and so the legislature would
become the supreme judiciary. A perversion of
power totally subversive of civil liberty.
If it be conceded, that the equal distribution of
justice is as requisite to answer the purposes of gov-
ernment as the enacting of salutary laws, it is evident
that the judiciary power should be as independent as
the legislative. And consequently the judges can-
not be answerable for their opinion, unless charged
with criminality. The nature of their office obliges
them to decide upon every question that can arise in
legal process. If they are not directed by their own
understanding, uninfluenced by the opinion of others,
how can they be said to judge at all ? The very act
of judging, supposes an assent of the mind to the
truth or falsehood of a proposition. And if a deci-
sion is given contrary to this assent, the judge is
guilty of perjury, and ought to be rendered infa-
mous.
Every man is excusable for errors of the head,
provided sufficient attention has been paid to the
means of information ; but no man is excusable for
THE RHODE ISLAND JUDGES. 329
depravity or corruption of the heart. The judges may
err; for error is the lot of humanity. Perfection
cannot be required of imperfect beings. But the
very idea of being accountable to the legislature, in
matters of opinion, supposes the legislature to pos-
sess the standard of perfection. A thought highly
derogatory to the attributes of Deity !
Baron Montesquieu, in his Spirit of Laws, ob-
serves ; " There is no liberty, if the judiciary power
be not separated from the legislative and executive.
Were it joined with the legislative, the life and lib-
erty of the subject would be exposed to arbitrary
control ; for the judge would then be the legislator.
Were it joined to the executive power, the judge
might behave with violence and oppression. There
would be an end to everything, were the same man,
or the same body, whether of the nobles or of the
people, to exercise those three powers, that of enact-
ing laws, that of executing the public resolutions, and
of trying the causes of individuals."
Blackstone in his Commentaries adopted the same
ideas. Serjeant Hawkins is precise and conclusive,
" that no such judge is in any way punishable for a
mere error of judgment. And as the law has ex-
empted jurors from the danger of incurring any pun-
ishment, in respect of their verdict in criminal causes,
it has also freed the judges of all courts of record
from all prosecutions whatsoever, except in the par-
liament, for anything done by them openly in such
courts as judges ; for the authority of a government
cannot be maintained, unless the greatest credit be
AMERICAN TRIALS.
given to those, who are so highly entrusted with the
administration of public justice ; and it would be im-
possible for them to keep up in the people that ven-
eration of their persons, and submission to their judg-
ments, without which it is impossible to execute the
laws with vigor and success, if they should be con-
tinually exposed to the prosecutions of those, whose
partiality to their own causes would induce them to
think themselves injured. Yet if a judge will so far
forget the dignity and honoi of his post, as to turn
solicitor in a cause which he is to judge, and pri-
vately and extrajudicially tamper with witnesses, or
labor jurors, he has no reason to complain, if he be
dealt with according to the same capacity to which
he so basely degrades himself."
Comparing these passages together, the intention
of the author is apparent, that, in the first place, the
judges are not answerable at all for mere error of
judgment ; and in the second, they are triable only
in parliament for matters of a criminal nature. The
same point is fully asserted in Bacon : " But though
they are to judge according to the settled and estab-
lished rules and ancient customs of the nation, ap-
proved for many successions of ages, yet are they
freed from all prosecutions for anything done by them
in court, which appears to have been an error of their
judgment."
So tender and delicate is the law in this respect,
that even justices of the peace are sacredly guarded
from every kind of prosecution upon account of their
opinion. Upon the 10th of May, 1757, a motion
THE RHODE ISLAND JUDGES. 331
was made in the king's bench ' for an information
against two. justices of the peace, for arbitrarily, ob-
stinately and unreasonably refusing to grant a license
to one Henry Day, to keep an inn at Eversley ; where
it was alleged and sworn to be fit and proper, and
even necessary, that there should be an additional
one (there being one there already) and for which
occupation of keeping an inn this man was (as those
two justices themselves had allowed on a former
occasion) a proper person, they having before licensed
him to do so at another place.
Lord Mansfield, and Mr. Justice Denison, held,
that notwithstanding this was a matter left in a great
measure to the discretion of the justices, yet if it
appeared to the court, from sufficient circumstances
laid before them, that their conduct was influenced
by partial, corrupt or arbitrary views, instead of exer-
cising a fair and candid discretion, the court might
call upon them to show the reasons whereby they
guided their discretion.
" The justices thus entrusted have a right to judge
for themselves ; no man can judge for another. And
this power is entrusted to them by the constitution, by
the legislature. It may. be very dangerous to them
to be obliged to give their reasons publicly ; though
they may have very sufficient ones to satisfy their
own minds, and to direct their own judgments.
And if they are thus entrusted, why are they liable to
be called to an account by any other jurisdiction,
unless they act faultily and wilfully wrong ? Indeed,
1 Rex v. Young and Pitts, (Burroughs, 556.)
332 AMERICAN TRIALS.
if they do wilfully wrong, let them be punished ;
but where they act quite conscientiously, they are not
accountable to anybody." '
" But if it clearly appear that the justices have been
partially, maliciously or corruptly influenced in the
exercise of this discretion, and have (consequently)
abused the trust reposed in them, they are liable to
prosecution by indictment or information, or even,
possibly, by action, if the malice be very gross and
injurious."
" If their judgment is wrong, yet their heart and
intention pure, God forbid that they should be pun-
ished ! And he declared that he should always lean
towards favoring them, unless partiality, corruption,
or malice, should clearly appear."
Mr. Howell having concluded his address, Mr.
Tillinghast said, that nothing could have induced the
gentlemen of the court to accept the office to which
they were appointed, but a regard to the public good ;
that their perquisites were trifling, and their salaries
not worth mentioning. The only recompense they
expected, or could receive, was a consciousness of
rectitude, which had supported them, and he was
confident would support them, through every change
of circumstances ; melancholy indeed would be the
condition of the citizens, if the supreme judiciary of
the state was liable to reprehension, whenever the
caprice or the resentment of a few leading men
1 This paragraph is quoted by Mr. Howell as the language of the
court, but it is taken from the argument of Sir Richard Lloyd.
THE RHODE ISLAND JUDGES. 333
should direct a public inquiry. As one member of
the court, he felt himself perfectly independent, while
moving in the circle of his duty ; and however he
might be affected for the honor of the state, he was
wholly indifferent about any consequences that might
possibly respect himself. The opinion he had given
resulted from mature reflection, and the clearest con-
viction ; his conscience testified to the purity of his
intentions, and he was happy in the persuasion, that
his conduct met the approbation of his God.
Mr. Hazard then spoke as follows : My brethren
have so fully declared my sentiments upon this occa-
sion, that I have nothing to add by way of argument.
It gives me pain that the conduct of the court seems
to have met the displeasure of the administration.
But their obligations were of too sacred a nature for
them to aim at pleasing, but in the line of their duty.
It is well known, that my sentiments have fully ac-
corded with the general system of the legislature in
emitting the paper currency ; but I never did, I never
will, depart from the character of an honest man, to
support any measures, however agreeable in them-
selves. If there could have been a prepossession in
my mind, it must have been in favor of the act of
the general assembly ; but it was not possible to re-
sist the force of conviction. The opinion I gave
upon the trial was dictated by the energy of truth :
I thought it right I still think so. Be it as it
may, we derived our understanding from the Al-
mighty, and to him only are we accountable for our
judgment.
334 AMERICAN TRIALS.
The judges having thus defended themselves, an
animated debate took place among the members of
the assembly, and the question being stated, " whether
the assembly was satisfied with the reasons given by
the judges in support of their judgment ?" it was de-
cided in the negative. A motion was then made to
dismiss the judges from their office ; but before the
question was taken on this motion, the following
memorial, signed by the three judges Hazard,
Tillinghast and Howell was sent in :
To his excellency the governor, and his honor the speaker of the lower
house of assembly : To be communicated to both houses.
" The underwritten, appointed justices of the supe-
rior court, &c., at the annual election in May last,
for the term of the current year, and cited to appear
before the general assembly at their present session,
by an order therefor, passed at their last session,
specially convened in the city of Newport, " to render
the reasons of a certain judgment given by said court,
at the last term thereof in the county of Newport,"
having appeared before both houses in a grand com-
mittee, and made full communication of all the pro-
ceedings of the court, relative to the case in which
said judgment was rendered ; and having entered
into a full and free examination of the several parts
and principles of the penal law in question, and com-
pared them with the constitution, or fundamental
laws of the state, and all other laws operating there-
on, which secure to the citizens thereof their rights
and privileges ; and having established their observa-
tions thereon by many the most approved authori-
THE RHODE ISLAND JUDGES. 335
ties in law, as well as by the constitution and doings
of the federal union, and the members thereof, since
the revolution in this country ; for the advice and
assistance of the general assembly in point of legisla-
tion concluded, by utterly denying the power of
the legislature to call upon them for the particular
reasons of their judgment in that, or any other case ;
and declining to render the same alleging and
maintaining, by arguments and authorities of law,
that for the same they are " accountable only to God
(under the solemnities of their oath of office) and to
their own consciences." And while, to remove mis-
apprehensions, they disclaim and totally disavow any
the least power or authority, or the appearance there-
of, to contravene or control the constitutional laws of
the state, or acts of the general assembly they
conceive that the entire power of construing and
judging of the same, in the last resort, is vested
solely in the supreme judiciary of the state. And
whereas, in the citation aforesaid, no charge is con-
tained against the underwritten, in their aforesaid
capacity, nor had they reason to apprehend any pro-
ceedings were to be grounded thereon, to affect their
lives, liberties or property, or their estate in their
office aforesaid, or their good name and character, as
officers of this state : And whereas, from appear-
ances, there is reason to apprehend that a design is
formed, and ripening for execution, by a summary
vote of the legislature, either to dismiss them from
their aforesaid office, or to suspend them from the
power of exercising the same :
" Wherefore, they pray that they may have a hear-
336 AMERICAN TRIALS.
ing by counsel before some proper and legal tribunal,
and an opportunity to answer to certain and specific
charges, if any such can be brought against them,
before any sentence or judgment be passed, injurious
to any of their aforesaid rights and privileges. And
this they claim and demand as freemen, and officers of
this state ; and, at the same time, with deference,
utterly protest against the exercise of any power in
the legislature, by a summary vote, to deprive them
of their right to exercise the functions of their afore-
said office, without the aforesaid due process of law,
or a commencement thereof (in which latter case a
suspension only from the duties of office can take
place) before the full term for which they were ap-
pointed and engaged, under the constitution of the
state, shall be completed : and more especially, upon
a mere suggestion of a mere error of judgment."
This memorial having been received, the judges
informed the assembly, that they wished to be heard
by counsel. James Mitchell Varnum, who had so
ably argued the case upon which the court had pro-
nounced the judgment complained of, now addressed
the house in defence of the court.
In commencing his address, Mr. Varnum said, that
the necessity of exhibiting the memorial upon the
table, arose from the motion last made by one of
their honorable members, for dismissing the judges
from office, without any previous charge of criminal-
ity. A measure so novel as this motion tended to
produce, could not have been foreseen or expected ;
and, therefore, it would not be thought strange if the
counsel was not fully prepared to meet and oppose it.
THE RHODE ISLAND JUDGES. 337
What do the judges pray for ? That if they are to
be passed upon for anything respecting their duty,
they may first know for what offence they are to be
judged ; that the particular charge or charges may
be specified ; that they may have time for defence ;
that they may be heard before a tribunal legally con-
stituted ; and that they be heard by counsel.
Is there a gentleman in this assembly so inatten-
tive to the rights of his constituents, as to refuse,
upon this occasion, what the lowest peasant, nay the
vilest criminal, is entitled to receive ? I presume
there is not. And notwithstanding many of them
may suppose that the honor of the legislature is
wounded by the decision of the court, and so would
wish to restore it, even by sacrificing the judges ; yet
I am confident they will not incur the imputation of
real disgrace, by removing the barriers to personal
security, and the preservation of property. For if
they would preserve in the minds of the citizens an
attachment to their measures, and a veneration for
their laws, they certainly will not openly violate the
laws themselves.
Be pleased to recollect a paragraph in our declara-
tion of rights, our Magna Charta, wherein it is pro-
vided, " that no man, of what estate and condition
soever, shall be put out of his lands and tenements,
nor taken, nor imprisoned, nor disinherited, nor ban-
ished, nor any ways destroyed, nor molested, without
being for it brought to answer by due course of law."
If it were in the power of the general assembly to
nullify this part of our constitution (which we utterly
deny) they have not done it. The right is still
VOL. ii. 29
338 AMERICAN TRIALS.
guarded by all the solemnities of law, and therefore
the honorable remonstrants claim and demand its
benefits. This they do, from your honors, not as a
legislative, but as acting in a judicial capacity ; for
the passing of sentence is the exercising a judiciary
power, grounded upon a preexisting law. You are
bound then by that oath, to which you all submitted
as a necessary qualification, previously to your be-
coming members ; and which is in these words :
" And you do farther engage equal right and justice
to do to all persons that shall appeal unto you for
your judgment in their respective cases."
It is perfectly immaterial upon the present ar-
gument, whether the judgment of the court was
right or wrong; whether it was agreeably to law,
or against law. The only question is, whether
they can, in any respect, be brought to answer for
it, but by due course of law ? And consequently,
whether they can be passed upon and condemned,
until they be proved guilty of a crime ?
The tenure by which all commissions are held in
this state, is for the space of one year. Conse-
quently, during that term, every officer has an in-
terest, a kind of estate, inseparably annexed to his
appointment, to be divested of which, he must
either neglect, misuse, or abuse his trust, so as to
work a forfeiture. This neglect, misuse, and abuse,
include questions of fact, which must appear, either
by the confession of the party, or by proof, before
the forfeiture can be declared. But how can the
facts appear to be true or false, without an impartial
and candid examination? And how can such ex-
THE RHODE ISLAND JUDGES. 339
animation take place until the facts or charges are
particularly stated, and the party accused have an
opportunity of making defence, in such way as he
shall deem most beneficial to himself? Suppose he
should deny the facts, he must certainly be presumed
innocent till the contrary appear. How shall the
contrary appear, but by producing evidence, oral or
written ? If oral, has he not a right to cross-examine
the witnesses, to disqualify them, or produce others
to disprove their testimony, either by destroying their
credibility, or proving some other proposition totally
inconsistent with that asserted by them ? Or, if the
evidence be written, has he not a right to suggest
and establish alteration, diminution, or even forgery
itself? In short, can there exist, in contemplation of
law, the possibility of an accusation, that cannot be
controverted, and proved to be groundless ?
If the judges held their commissions during the
pleasure of the general assembly, then indeed they
might be removed without the formalities of a trial.
But, even in that case, the exercise of so high a pre-
rogative, without some kind of suggestion and proof,
would be deemed injurious and oppressive. In the
present case, however, wherein the judges cannot be
molested, but by being called to answer for some
crime, by due course of law, there is not even a sug-
gestion, that they have intentionally departed from
the line of their duty. Then are they secured in
their posts, during the term of their appointment, in
as sacred a manner as the property of any individual
is guarded against the encroachments of a rapacious
neighbor. They stand upon the firm ground of recti-
340 AMERICAN TRIALS.
tude and independence. If any man has any accusa-
tion to exhibit, let him come forth ; let him produce
the list of his charges ; they are willing to meet
him. But they will meet him only upon due and
legal process, and before a court lawfully qualified to
try them. Should no such accusation be made,
what remains but that the judges be immediately
discharged from any further attendance upon this
assembly ?
Should they be impeached, I pledge myself to
show, that they cannot be tried by this honorable
assembly. But if a contrary sentiment should pre-
vail, I must request time, till the next session, to be
prepared with arguments and authorities, to establish
a doctrine so important in its consequences. Permit
me, however, for the present, to observe, that in
England the judges are appointed by the king, as
the supreme executive. Their commissions are dur-
ing good behavior ; and therefore they are not triable
by the king, but by the parliament only, and upon
impeachment. Were they to be tried by the king,
who appoints them, their judgments might be in-
fluenced by his authority ; and so the channels of
justice would be corrupted. Besides, the king is
the party accusing, and consequently cannot be the
judge ; for the very act of complaining, presup-
poses an opinion that the party complained of is
guilty. Hence it is that the grand jurors, who make
presentment, are disqualified ultimately to decide
upon the fact.
In this state the judges are appointed by both
houses of assembly, in a grand committee. In this
THE RHODE ISLAND JUDGES. 341
respect, they resemble the king ; and therefore can-
not try the judges upon a criminal charge. In the
present instance, both houses of assembly are the
party complaining ; in this respect also, they resem-
ble the king, and so cannot be the triers. For, with
deference to the legislators present, there may be an
assembly, whose interested views might induce them
to establish systems totally subversive of the constitu-
tion, and of political as well as civil liberty. To
effect which, the supreme judiciary must be the
creatures of their power ; and such creatures they
would finally be, were the judges to be appointed,
accused, and tried by them.
Let the human heart, and, as I have the honor of
addressing myself to some who profess, and even
attempt to teach the doctrines of Christianity, the
conscience also, be consulted upon this question.
Should not the parties litigant be equally indifferent
to the judge, who is to decide upon their contro-
versy ? Why is it, that jurors may be challenged,
and removed, for favor, but that the mind should be
perfectly unbiased, and open to the reception of
truth ? Why, like Caesar's wife, should they be in-
capable of being suspected, unless that the parties
themselves might feel a perfect confidence in their
judges ? Can that confidence be placed upon this
occasion ? Has not the matter been taken up rather
in a political than a juridical point of view ? I do
not assert ; but has it not been determined, in a
convention of part of the members, to remove the
judges, and appoint others who will execute, at all
events, the penal acts ? Has not one town in par-
29*
342 AMERICAN TRIALS.
ticular proceeded so far, as to instruct its deputies to
use their utmost influence in bringing the judges to
punishment ? ' Can these members be considered as
impartial triers ? Is it possible to suppose, but that
the influence of their constituents will have some
weight in forming their opinion ? Can they be ob-
jected to, as having prejudged the cause ? If they
cannot, is there not a moral certainty of condemna-
tion ? If they can, will not the objection be so far
extended, as to prevent the possibility of a legal
decision ?
Be entreated, therefore, O ye guardians and pro-
tectors of the people, seriously to reflect upon the
magnitude of the present question, and the impor-
tant events that may result from your determination.
" The Great Judge of all the earth, can he do wrong ?"
Of beings rational, He requires the " heart." And
"as a man believeth in his conscience, so is he."
Submit then to the heavenly standard. And, as the
judges have acquitted themselves conscientiously, in
the sight of God and man, add to the general plaudit,
which shall waft their names upon the wings of im-
mortal fame, to the latest posterity.
1 This probably refers to a vote of the town of Coventry, instructing
their representatives to " use their influence in the general assembly,
that the judges of the superior court be dealt with according to the na-
ture of their offence, in giving their determination in the case John
Trevett v. John Wheeden, in which determination it was thought by the
town, that the said judges exceeded the bounds of their jurisdiction by
giving their determination that the law made by the general assembly
of this state was unconstitutional, when it was the duty of said court to
have given their judgment, whether the said John Wheeden was guilty
of a breach of the law of this state or not. "
THE RHODE ISLAND JUDGES. 343
The memorial of the judges and the address of
Varnum seem to have made a decided impression on
the house. A calm and rational debate ensued, in
which the asperities of party feeling were laid aside,
and members expressed a sincere desire to take such
a course, as should vindicate the honor of the law and
the dignity of the state. A motion was made and
agreed to, that the opinion of the attorney general be
taken, and the sentiments of the other professional
gentlemen requested, whether constitutionally, and
agreeably to law, the general assembly could suspend,
or remove from office, the judges of the supreme
judiciary court, without a previous charge and state-
ment of criminality, due process, trial, and conviction
thereon ?
William Channing, the attorney general, 1 ob-
1 William Channing was born at Newport, in 1751, and was graduated
at Nashua Hall, Princeton College, in 1769. He studied law with
Oliver Arnold, at Providence, and was called to the bar in 1771. In
1773, he was married to Lucy Ellery. a daughter of William Ellery, of
Newport, one of the signers of the declaration of independence. In
early life he filled many honorable offices in Rhode Island, and in
1777, he was elected attorney general of the state. To that office he
was annually chosen until 1 787, when he lost his election in conse-
quence of his earnest opposition to the paper money laws. In 1791,
however, he was again elected attorney general, and held that office,
together with the office of district attorney of the United States, until
his death, in 1793. He was an able advocate, and well read in the
law, especially in the science of special pleading. His manner of
speaking at the bar was rapid, vehement and impressive. His prac-
tice was extensive, and he led the bar for several years before his
death. He had eleven children, one of whom was the late eminent
William Ellery Channing, D.D., of Boston. A letter of this distin-
guished clergyman to Mr. Updike is inserted in the Memoirs of the
Rhode Island Bar, and is worthy of a place here.
" BOSTON, Dec. 18, 1841.
" My Dear Sir, I received, with great pleasure, your letter of last
344 AMERICAN TRIALS.
served, that as it was at all times his duty, so he
derived a peculiar pleasure, in rendering to the legis-
lature every legal assistance in his power. He had
month, in -which you inform me that you are preparing ' the Biography
of the Rhode Island Bar,' and request me to furnish any materials in my
power for a memoir of my father. My recollections of my father are
imperfect, as he died when I was thirteen years of age, and I had been
sent from home before that event. But the many testimonies which I
have received to his eminence as a lawyer, as well as to his private vir-
tues, make me desirous that there should he some memorial of him.
My brother, Professor E. T. Channing, who is the antiquary of the
family, has sent me, in a letter, which I enclose, such facts as he has
been able to gather ; and has also furnished me with a sketch of my
father's character, prepared by my venerable grandfather, William
Ellery. This, as you will see, is a tribute of affection ; but my grand-
father was remarkable for his honesty, which almost amounted to
bluntness ; and I am confident that his language, however strong, did
not go beyond his convictions. I cheerfully add my own reminiscences,
and a few facts.
" My father retained much attachment to Princeton College, where he
was educated, so that he thought of sending me there. He was the
classmate and friend of Samuel S Smith, afterwards distinguished as a
theologian, and as the president of that institution. In the last part of
his collegiate days he enjoyed the instructions of the celebrated Dr.
Witherspoon. His early marriage, and the rapid increase of his family,
obliged him to confine himself rigidly to his profession. He was too
busy to give much time to general reading, or even to his family. Still
I have distinct impressions of his excellence in his social relations. He
was the delight of the circle in which he moved. His mother, brothers
and sisters leaned on him as on no other. 1 well remember the be-
nignity of his countenance and voice. At the same time he was a strict
disciplinarian at home, and according to the mistaken notions of that
time, kept me at too great a distance from him. In truth, the prevalent
notions of education were much more imperfect than in our day.
"I often went into courts, but was too young to understand my father's
merits in the profession ; but I had always heard of him as standing at
its head. My brother says, that Judge Dawes used to speak of his
style and manner as ' mellifluous,' but at times he was vehement ; for I
well recollect, that I left the court house in fear, at hearing him indig-
nantly reply to, what seemed to him, unworthy language in the opposite
counsel.
" His parents were religious, and the impressions made on his young
mind were never lost. He was the main pillar of the religious society
THE RHODE ISLAND JUDGES. 345
attended the trial upon the information, without any
bias or partiality upon his mind ; and was happy in
the conviction, that the whole conduct of the judges,
to which he belonged. The house of worship had suffered much from
the occupation of Newport by the British army, so as to be unfit for
use ; and I recollect few things in my childhood more distinctly than his
zeal in restoring it to its destination, and in settling a minister. I can-
not doubt that his religious character received important aid from the
ministry and friendship of Dr. Styles, who was as eminent for piety as
learning, and under whose teachings he grew up. He had a deep, I
may say peculiar, abhorrence of the vice of profaneness ; and such was
his influence, that his large family of sons escaped this taint to a re-
markable degree, though brought up in the midst of it. 1 recollect,
with gratitude, the strong impression which he made on my own mind.
I owed it to him that, though living in the atmosphere of this vice, no
profane word ever passed my lips.
" On one subject I think of his state of mind with sorrow. His
father, like most respectable merchants of that place, possessed slaves
imported from Africa. They were the domestics of the family ; and my
father had no sensibility to the evil. I remember, however, with plea-
sure, the affectionate relation which subsisted between him and the
Africans, [most of them aged,] who continued to live with my grand-
father. These were liberated after the revolution ; but nothing could
remove them from their old home, where they rather ruled than served.
One of the females used to speak of herself as the daughter of an Afri-
can prince ; and she certainly had much of the bearing of royalty. The
dignity of her aspect and manner bespoke an uncommon woman. She
was called duchess, probably on account of the rank she had held in her
own country. I knew her only after she was free, and had an estab-
lishment of her own. Now and then she invited all the children of the
various families, to which she was connected, to a party ; and we were
liberally feasted under her hospitable roof. My father won the hearts
of all his domestics. One of the sincerest mourners at his death, was
an excellent woman, who had lived long with us, and whom he honored
for her piety.
" I recollect, distinctly, the great interest he took in the political
questions which agitated the country. Though but eight or nine years
of age, I was present when the Rhode Island convention adopted the
federal constitution ; and the enthusiasm of that moment, I can never
forget. My father entered with his whole heart into that unbounded
exultation. He was one of the most devoted members of the federal
party. At the beginning of the French revolution, he shared in the uni-
versal hope and joy which it inspired ; but I well recollect the sadness
346 AMERICAN TRIALS.
upon that interesting occasion, demonstrated the
greatest candor and uprightness ; and, according to
his private opinion, their determination was conform-
with which he talked to us one Sunday afternoon, of the execution of
Louis XVI. ; and from that moment his hopes died.
" You speak of the testimony borne to him, by the late Elisha R. Pot-
ter, Esq. My father was among the first to discover the abilities of that
remarkable man ; and I remember the kindness with which he used to
receive him. His spirit was, in truth, the kindest. He was ever ready
to see and appreciate superior talents, and to attach himself to worth.
His friendship seemed to me singularly strong, for a man so immersed
in business. Among his friends, were George Champlin, Esq , a politi-
cian of singular sagacity, and who was said to have ruled the state for
years, without forfeiting his integrity ; Dr. Isaac Senter, a physician of
extensive practice, who was thought to unite, with great experience, a
rare genius in his profession, and whose commanding figure rises before
me, at the distance of forty-five years, as a specimen of manly beauty,
worthy the chisel of a Grecian sculptor ; and the Rev. Dr. Hitchcock, of
Providence, a man of great sweetness of temper, and who deserves the
grateful remembrance of that city for his zealous efforts in the cause of
public education. My father took a great pleasure in the society of min-
isters, and always welcomed them to his hospitable dwelling.
" I remember his tastes with pleasure. He had two gardens, one of
them quite large, and as he sought to have everything which he culti-
vated of the best kind, our table, otherwise simple, was, in this respect,
luxurious. He was not satisfied with what contented his neighbors, but
introduced new varieties of vegetables into the town. He also took
great interest in sacred music. On Sunday evenings the choir of the
congregation, which included most of the younger members, and other
amateurs, met in his office for practice in singing. The apartment,
somewhat spacious, was filled ; and the animation of the meeting, to
which his zeal contributed not a little, made the occasion one of my
weekly pleasures.
" As far as I can trust my recollections of my father's person, it must
have been very prepossessing ; but to me, his appearance, at the time,
was more venerable than beautiful. His head was bald ; and his
cocked hat, and the other parts of his dress, which according to the
fashions of the day, differed much from the costume of the young, made
him seem from the first, an old man. He prospered in life, but without
being able to leave a competence for his large family. His labors were
great, but I have no recollection of seeing him depressed. I should
place him among the happy. He was taken away in the midst of use-
fulness and hope. The disease of which he died, was not understood.
THE RHODE ISLAND JUDGES. 347
able to the principles of constitutional law. But, be
their judgment agreeably to law or not, confident he
was, that there would be a fatal interruption, if not
annihilation to government, if they could be sus-
pended, or removed from office, for a mere matter of
opinion, without a charge of criminality. How that
charge should be preferred and conducted, he did
not presume to decide, as it might possibly be the
subject matter of an after question, and was not con-
tained in the present order.
Mr. Bradford then informed the house, that he
was not present at the trial in Newport, nor had he
attended to the proceedings of the legislature re-
specting the judges, excepting so far as related to the
citation, and the memorial upon the table ; till then,
he never doubted but the general assembly were
vested with constitutional authority, to try and re-
move any officer by them appointed, for any mal-
I remember that he used to complain of feelings which we now should
consider as dyspepsy ; but that disease was little thought of then, and
the name never heard.
" These are very scanty reminiscences ; but as I hardly saw my
father after reaching my twelfth year, and as nearly fifty years have
passed since that time, it is not to be wondered at that I can recall no
more of his calm, uniform life. The career of a professional man, occu-
pied with the support of a large family, offers no great events. But you
may select a few hints from what I have now written, and I beg you to
suppress everything which may seem to you unimportant. I little
thought, when I began, of writing so much ; but the pleasure which all
men take in the virtues of parents, has led me on insensibly.
" My father died before I could requite him for his toils for my sup-
port, and his interest in my moral well-being ; and I feel as if, in this
present instance, I was discharging some part, though a very small one,
of my great debt. I owed him much, and it is not my smallest obliga-
tion, that his character enables me to join affectionate esteem and rever-
ence with my instinctive gratitude."
348 AMERICAN TRIALS.
practices in his office ; but from the observations
that had been made, he very much doubted the pro-
priety of his former opinion ; one point, however,
was clear and certain, that as the judges were com-
missioned and sworn for the term of a year, they
could not be deprived of their powers during that
term, but by regular impeachment, in which the
charges against them must be particularly stated ; a
trial, in which they would have an undoubted right
for time to prepare their defence, and to be heard by
counsel ; and condemnation, upon full proofs of the
charges. In the proceedings now before the house,
there was not a charge, or the appearance of one,
against the court, to which they could, in any man-
ner, be held to answer. He was really astonished,
that so much time should be taken up in needless
inquiries, and fruitless altercations. He had been
honored with a seat, in one or other of the houses of
the assembly, for upwards of thirty years, and could
not recollect a period, in which harmony and una-
nimity were more essentially wanting, than at the
present time. The people of this state had been
well governed ; they had been a happy people, and
might still be as happy as any on earth, if all party
contentions could be laid aside, and every one strive
to soothe the cares, and heal the wounds, of his neigh-
bors. He besought, he entreated the members to
embrace the present moment, in which there seemed
to be a spirit of conciliation, to put an end to all
further contentions among themselves, but what might
arise for the sake of information. And, as they re-
garded the honor, the peace, and the safety of the
THE RHODE ISLAND JUDGES. 349
state, that they would discharge the judges from any
further attendance, and apply themselves in earnest,
and with one mind, to such measures as would
render them happy at home, and respectable abroad.
Mr. Helme remarked, that the subject was new,
and he was not fully prepared to give an opinion.
But at present, he inclined to think, that there was
no constitutional law by which the question could be
solved. It must, therefore, be in the breast of the
general assembly to point out the mode of trial by an
act for that purpose, should a trial be thought neces-
sary. If they should proceed to try the judges, either
by themselves, or a court to be specially appointed
for that purpose, they must cause them first to be
impeached, and state the facts particularly upon
which the impeachment is founded. The common
law would direct the manner of process ; and should
they be found guilty, they could not be removed from
their office, but by a bill, in nature of a bill of at-
tainder, which must pass both houses, and be enacted
into a law.
Mr. Goodwin fully acquiesced in the opinions
already given, that no sentence could be passed
against the judges, but by regular process, in which
a specification of the charges was essentially re-
quisite.
The matter was further discussed by Henry Mar-
chant and Benjamin Bourne, 1 who defended the po-
sitions taken by the attorney general. It was then
1 Benjamin Bourne was the first representative to congress under the
constitution. He was afterwards a circuit judge of the United States
court.
VOL. li. 30
350 AMERICAN TRIALS.
resolved, by a very large majority, that the three
judges, having been fully heard before the assembly,
had rendered no satisfactory reasons for their judg-
ment in the case of Trevett against Wheeden ; but
as they were not charged with criminality in giving
their judgment, it was voted that they be discharged
from any further attendance upon the assembly on
that account. The laws which had given rise to this
famous controversy were soon afterwards repealed,
and a better feeling prevailed in regard to the true
principles of government.
TRIALS OF JOHN HAUER AND OTHERS,
BEFORE THE
COURT OF OYER AND TERMINER,
FOR THE MURDER OF FRANCIS SHITZ.
PENNSYLVANIA, 1798.
Few events in Pennsylvania ever caused more excitement and alarm
amongst the German population, than the murder of Francis Shitz, in
1797. The trials of the parties, implicated in this singular transaction,
are interesting, as exhihiting the low state of public morals at that day,
in the interior of the state, especially amongst the foreign population;
and, also, as involving some legal points of great importance in criminal
law. A very full report of these trials was published at the time,
making an octavo volume of one hundred and sixty-three pages, of
which the title page was as follows : " A Correct Account of the Trials
of Charles M'Manus, John Hauer, Elizabeth Hauer, Patrick Donagan,
Francis Cox, and others, at Harrisburgh, June Oyer and Terminer, 1798,
for the Murder of Francis Shitz, on the night of the 28th December,
1797, at Heidelberg township, Dauphin county, in the Commonwealth
of Pennsylvania. Containing the whole evidence, and the substance of
all the law arguments in those celebrated Trials."
TRIALS OF JOHN HAUER AND OTHERS.
ON the night of December 28, 1797, a murder was
committed at Heidelburg township, in Pennsylvania,
under circumstances of great atrocity. A female in
the family of Francis and Peter Shitz, being awakened
by some noise in the house, was attracted by a light
in the kitchen, to which she proceeded, and saw two
men, who seemed to be in disguise, their heads being
bound up in white handkerchiefs. She immediately
returned to the room, where Francis Shitz was sleep-
ing on a bench before the stove, to inform him of
her discovery. The strangers had followed her, and
at the moment when she seized Shitz by the arm, a
pistol was fired at his head, which took immediate
effect, covering the person of the woman with blood,
and extinguishing the light which was held by one
of the murderers. One of the men deliberately
proceeded to the kitchen for another light, from
which he returned with an axe, and commenced a
30*
354 AMERICAN TRIALS.
ferocious attack on the fallen man, holding the light
in one hand and the weapon in the other. They
then rushed upon the woman and three boys who
were in the room ; but the light being again extin-
guished, the latter were enabled to escape. The men
having obtained another light, and being both armed
with axes, proceeded to the chamber of Peter Shitz,
a youth of eighteen years, whom they dragged from
his bed, giving him several wounds. The young
man made a powerful resistance, and succeeded
in escaping from the house. The neighbors being
aroused, came to the house, where they found
Francis Shitz weltering in his blood. He had been
shot in his right ear, and had four wounds on his
head by the axe. A pistol was found in the room,
which had evidently been recently discharged. The
unfortunate young man lingered in great agony until
the next morning, when he died.
This murder was not long enveloped in mystery.
It was evident that the object was not plunder, be-
cause nothing had been taken ; and the causes of
the act were to be sought in some other motive.
Who, then, had an interest in the death of these two
young men ? The question was soon solved, and
suspicion was directed to John Hauer, who had
married their sister.
Hauer was born in Pennsylvania, of German pa-
rents. A few years before the event above alluded
to, he had married the only daughter of Peter
Shitz, a wealthy German of Heidelburg township,
who died in 1795. By his will, Shitz had de-
vised to his daughter Elizabeth, the wife of Hauer,
JOHN HAUER AND OTHERS. 355
one thousand pounds, but the advancements he had
previously made to her were to be considered as a
part of that legacy. The whole residue of a very
large estate he had bequeathed to his two sons,
Francis and Peter ; with the provision, that in case
of the death of either of his sons under age, or
without issue, his share should go to the surviving
brother, paying, in such an event, five hundred
pounds to the daughter. Francis Shitz had recently
attained the age of twenty-one years; Peter Shitz
was eighteen years old. Hauer was very much
dissatisfied with the will of his father-in-law, and
entered a caveat against its probate, which he subse-
quently withdrew. He then endeavored to persuade
the young men to make an equal division of the
property, and entered into various expedients to ac-
complish this purpose ; one of which was a pretence
that the ghost of their father had appeared to him,
and would not be appeased until the sons had agreed
to set aside the will. This story failing to make the
desired impression on the young men, Hauer next
endeavored to work on their fears, by a clumsy con-
trivance to raise a ghost in their own house, in which
his agency had been exposed.
Hauer and his wife were suspected of the murder,
on the morning after it was committed, and a large
number of the neighbors proceeded to his house.
They brought himself and his wife to the room where
Francis Shitz was then lying. Mrs. Hauer fell down
at the bedside and wept bitterly. Her husband sat
down and made no remark. The maid insisted that
the young man had been shot, but the head had
356 AMERICAN TRIALS.
been so cut, that a pistol shot wound could not at
first be discovered. Hauer suggested that lie might
have been shot in the mouth. He said nothing
more, but seemed very dejected.
The pistol which was found in the room was
known to have been in the possession of Charles
M'Manus, an Irishman, and he was arrested, together
with Peter M'Donoghy, Patrick Donagan and Francis
Cox, all of whom had recently arrived in the United
Slates from Ireland. M'Manus made a confession,
in which he charged Hauer and M'Donoghy as being
present, doing the murder, at the house of Shitz,
whilst he held their horses at the end of the lane.
He represented the other prisoners as being also
engaged in the plot.
At the March term of the court of Oyer and
Terminer and General Gaol Delivery, at Harris-
burg, before Joseph John Henry, president, and John
Gloninger, his associate, an indictment was found,
in which Hauer and M'Donoghy were charged as
principals, and Donagan, Cox, Hugh M'Donough and
Elizabeth Hauer, as accessories before the fact. John
Hauer was first put upon trial, and after it had pro-
ceeded a considerable length of time, he expressed
an earnest desire to speak with the judges. The
court was then adjourned, and the judges visited the
prisoner in jail, where he made a full confession
of his own guilt, as an accessory before the fact,
insisting that the murder was actually committed by
M'Manus and M'Donoghy, and that the other prison-
ers were accessories before the fact. He persisted
in this confession in open court, on the next day,
JOHN HAUER AND OTHERS. 357
whereupon the court, on motion of the counsel for
the commonwealth, discharged the jury from a fur-
ther hearing of the case, and remanded the prisoner,
in order that a new indictment might be sent up,
according to Hauer's confession. The counsel for
the prisoner declined interfering, on the ground that
the prisoner had taken himself out of their hands, his
confession being an act of his own, without consult-
ing them.
At the next Oyer and Terminer, in June, 1798, a
new indictment was found, in which M'Manus and
M'Donoghy were charged as principals, and Hauer,
his wife, Donagan, M'Donough and Cox were charged
with being accessories before the fact. M'Manus and
M'Donoghy were first placed at the bar, and pleaded
not guilty. The trial of M'Manus commenced on
June 13. The names of the jurors were, Michael
Urich, Samuel Sturgeon, Daniel Longenecker, Henry
M'Cormick, Obed Fahnestock, John Stoner, John
Boyd, John Blattenberger, William Snodgrass, Henry
Stoner, John Gray, Samuel Finney.
The evidence against the prisoner was partly cir-
cumstantial, but seemed conclusive as to his guilt.
The pistol, found in the room where the murder was
committed, had been seen in his possession. It also
appeared, that a short time before the murder, he
had made mysterious hints as to a plot to injure the
Shitzes. On the night it was committed, he had gone
to bed in a tavern with Cox, several miles from the
scene of the murder ; but he left the house in the
night, and was absent several hours. His confes-
sions were also read to the jury. They were four
358 AMERICAN TRIALS.
in number, and were contradictory in some material
respects. In one of them he denied that he was pre-
sent at the transaction, but admitted that he held the
horses of the murderers while the deed was done,
and declared that they were to be paid eleven hun-
dred pounds for the job.
Mr. Montgomery and Mr. Patterson, who had been
assigned by the court as counsel for the prisoner, de-
clined to address the jury. They suggested, how-
ever, that the confessions should be taken together,
and from them it would appear that the prisoner was
not present at the murder, but nearly a mile distant.
Of course he could not be convicted on this indict-
ment, but ought to be considered as an accessory
before the fact.
The counsel for the commonwealth, in reply,
stated that the confessions were so contradictory, that
they could not be reconciled. In their apprehension,
the evidence was sufficient to show that the prisoner
was actually present at the murder ; but admitting
the prisoner's statement, that he was holding the
horses, it would make no difference in the result ;
for it was not necessary that he should have been the
person who fired the pistol, or struck the blows, or
even that he was an eye witness. If in any way he
was aiding the general design, although at a distance,
it was a sufficient presence to make him a principal. 1
1 Foster's Crown Law, 349. See also the case of Commonwealth v.
Knapp, tried in Massachusetts, in 1330, where it was held, that to be
present, aiding and aliening the commission of a felony, the abettor
must be in a situation where he may actually aid the perpetrator ; it is
not enough that he is at a place appointed, where the perpetrator erro-
neously supposes he might render aid. Pickering's Reports, ix. 496.
JOHN HAUER AND OTHERS. 359
The jury, after an hour's absence, returned a ver-
dict of guilty of murder in the first degree.
The court then proceeded to the trials of Hauer,
Donagan and Cox. When Hauer was arraigned he
stood mute, and his counsel moved, that he be not
required to plead, but that he be forthwith dis-
charged, in consequence of the proceedings at the
former trial. The prisoner was indicted at the last
term of the court as a principal. He was then ar-
raigned and pleaded not guilty. A jury was sworn,
testimony given in, and afterwards the jury was dis-
charged without giving a verdict. His counsel now
contended, that after such a discharge, he could
never again be put upon trial for the same offence.
The present indictment was, in fact, for the same
offence. Principal and accessory before the fact
were substantially the same ; and if one was acquit-
ted as principal, he could never be indicted again as
accessory before the fact. The counsel further con-
tended, that a jury once discharged in a capital case,
amounted to an acquittal of the prisoner, and he
could not be put a second time upon his trial for the
same offence.
This point was most elaborately argued by Mr.
Fisher, Mr. Clymer, and Mr. Duncan, for the prison-
er ; and by Mr. Hall and Mr. Smith for the com-
monwealth.
The counsel for the commonwealth insisted, that
the proceedings at the former trial were in all re-
spects according to law, and formed no bar to the
present indictment. It was in consequence of the
prisoner's own act that the jury was discharged, in
360 AMERICAN TRIALS.
order that a new indictment might be found, better
suited to the truth of the fact. It was true, that no
man should be twice put in jeopardy of life or limb.
They also admitted, that a jury ought not to be dis-
charged without the prisoner's consent, merely be-
cause there was not sufficient evidence to convict
him upon that indictment, and in order to procure
more full proof at a subsequent trial, as was done in
the case of Whitebread and Fenwick, 1 which they
hoped might never again be drawn into example.
But that the court, under no circumstances, even
when the purposes of public justice required it, and
where, without the exercise of such a discretion, the
most atrocious offender might escape, possessed such
a power, was a doctrine they could not accede to.
For where, either through the ignorance or inatten-
tion, or by the mistake of the prisoner, a bill was
sent up, charging one grade of crime, and it turned
out upon the evidence, that the prisoner was guilty
of another grade of the same crime ; there was no
case which went so far as to establish, that the jury
1 31 Car. 2, 1679. See the case of Commonwealth, v. Cook, tried at
Philadelphia, in 1822, (Sergeant and Rawle's Pennsylvania Reports, vi.
677.) See, also, the case of the United Slates v. Gibert, tried at Boston,
in 1834, (Sumner's Reports, ii. 19,) where it was held by Mr. Justice
Story, that the prohibition in the constitution of the United States," Nor
shall any person be subject, for the same offence, to be twice put in
jeopardy of life or limb," means, that no person shall be tried a second
time for the same offence, after a trial by a competent and regular jury,
upon a good indictment, whether there be a verdict of acquittal or con-
viction. Therefore, the circuit court of the United States cannot grant a
new trial in a capital case, after a verdict regularly rendered upon a
sufficient indictment. Davis J. dissenting, held that the privilege,
intended to be secured by the prohibition, might be waived by the
prisoner.
JOHN HAUER AND OTHERS. 361
should not be discharged, in order that a new bill
might be sent up, adapted to the facts and circum-
stances attending the commission of the crime. It
was true, that where a man was acquitted upon an
indictment, he might plead such acquittal in bar of
any subsequent accusation for the same crime. But,
then, he must be found not guilty on an indictment
free from error. For if his life was never in jeop-
ardy, as where he is acquitted upon an ill indict-
ment, upon which he could not have been convicted,
or if convicted could not have been punished, the
plea of autrefois acquit or convict, is no bar to
another indictment. Now, in the present case, the
first indictment was defective, and if the prisoner
had been acquitted upon that indictment, it would
not have availed him, and if he had been convicted
he never could have been punished upon it. The
defect was this, that it was not alleged that Shitz
died of the wound received. The words were, " of
which said mortal wound he the said Francis Shitz,
from the night of the said twenty-eighth December
in the year aforesaid until the twenty-ninth day of
the said month of December in the said year, at
Heidelberg township in the county aforesaid, and
within the jurisdiction of this court did languish, and
languishing did live, on which said twenty-ninth day
of December in the year aforesaid, he the said Francis
Shitz, at the place aforesaid, and within the jurisdic-
tion of this court, did die " omitting the words,
" of the mortal wound aforesaid." However absurd
this objection might appear to the grammarian, the
VOL. II. 31
362 AMERICAN TRIALS.
law required this technical precision, and that was
an end of the question.
The court overruled the motion of the prisoner's
counsel, and ordered Hauer to plead to the indict-
ment, on the ground that the indictment on which
he was first arraigned was defective, there being no
averment that Shitz died of the wounds he received.
The court rested their decision on this point alone,
considering it unnecessary to decide the other, but
they remarked, that if this were a case similar to that
of Whitebread and Fenwick, they should not hesitate
to declare, that to discharge a jury after they had
been sworn, and to postpone a trial for the sake of
getting better evidence on a second occasion, without
anything more in the case, was detestable, and ought
never to be practised. 1
The prisoner, when asked whether he was guilty
or not guilty, remained silent, and the court adjudg-
ing that he stood mute from obstinacy, ordered the
plea of not guilty to be entered on the record. The
three prisoners, Hauer, Donagan and Cox, were
then tried together. The names of the jury were,
1 The reader will perceive that the court avoid a decision upon the
propriety of their proceedings at the first trial. It does not appear that
the flaw in the indictment was then discovered, and the conduct of the
judges in visiting a prisoner in jail, while on trial for a capital offence
receiving from him a confession, and ordering the jury to be discharged
in order to enable the prosecuting officer to frame a new indictment, to
meet the particular circumstances disclosed in the confession, is surely
worthy of note, notwithstanding their pointed condemnation of the doc-
trine laid down in the case of Whitebread and Fenwick, where the court
decided that it was in their discretion, to discharge the jury without
taking a verdict, where witnesses were wanting, or where there was
any accident of the like nature.
JOHN HAUER AND OTHERS. 363
Thomas M'Elhany, Samuel Sturgeon, John Blatten-
berger, Henry M'Cormick, Samuel Cochran, William
Crane, John Wilson, Jun., John Norton, John Par-
thimer, James Johnson, Henry Fulton, John Snod-
grass.
The evidence against Hauer was in part the same
as that offered in the trial of M'Manus. In addition,
however, was his own confession, which left no doubt
as to his guilt, and the depravity of his character.
It also appeared, that he had made various attempts
on the life of the brothers of his wife, which were
not successful. On one occasion, he practised upon
the credulity of Peter Shitz, in a manner that would
appear ludicrous, if it did not display a deplorable
state of ignorance on the one hand, and hardihood
on the other. The testimony of the latter was as
follows :
Peter Shitz. Three years ago against next har-
vest, my brother Francis went to haul stones for the
new church at Shsefer's-town. When he came home
he could not unhitch his horses. He thought the
rest of us were not so sick, that we might do it ; and
he sent for us to the field, where we went to rake
oats to feed the horses, but we could not do it.
Hoffman and the girl, that is now his wife, and two
other girls, and Hoffman's son John, were in the
field. We were all so sick we vomited all the time.
Hoffman was not quite so sick as the rest of us, and
he fed the horses. The vomiting continued all that
day ; and the next day we felt very weak. Hoff-
man's wife, who was then a maid in the house,
cooked the breakfast that day; it was coffee and
364 AMERICAN TRIALS.
bread and butter. We never had been so affected
before. I don't know if any strange person had
been about the house that day. Hauer often came
there about that time ; I cannot tell how often ; but
he went about the house wherever he pleased.
" Last fall was a year I had hired myself to Jacob
Shitz, my father's brother's son, at Tulpehocken.
Hauer, with whom I then lived, had gone over to
Francis Shitz's. When he came back, I told him I
was going on Sunday to Jacob Shitz's. On Sunday
it rained, and I could not go. Hauer then told me I
should not go, that he would show me a way how I
should get a purse every morning, that would have
five doubloons in it. That he himself could not get
it, but that I could. I said to Hauer that I could not
get it. Hauer then swore unmercifully that I could ;
and he told me he must fetch drops from Lebanon.
He went on Monday up to Lebanon. When he
came back again he said one sort was wiederkornme
drops, the other I don't know what it was he called it.
He had three bottles, one was bigger than the other
two, which were but small phials. Hauer said, now
we will try something. I said I did not wish to do
it, I would rather not. Hauer told me I should try
it, he would be bail to me nothing should happen to
me. Hauer told me that Shsefer and Bomberger
[they were the executors under Peter Shitz's will,
and the guardians of young Peter] wanted to bind
me out, that they were at his house, and wanted to
get me, and told him they would have me dead or
alive. He scared me so much that I hid myself;
because he said they came every day. I told Hauev
JOHN HAUER AND OTHERS. 365
he lied. He swore again unmercifully, that he did
not. I then kept myself concealed still. Then Hauer
said, we will try to get the purse ; and he drank
some of the drops ; and I drank some of them too.
He drank out of the big bottle, which he said were
wiederkomme drops, I drank of the same. I drank
also out of the two small phials, but I don't know if
Hauer drank any out of them or not. I did not see
him do it. Then Hauer said he would not try that
night, he thought it was not worth while.
" Some time after this, we went together down to
Wolfersberger's barn. Solomon Hauer went along
with us. John Hauer said, if we would not do as he
told us he would give us an unmerciful beating ; if
we would not tie ourselves up as he told us, he would
show us some other things. He then told us that
we must tie ourselves up on the loft, with halters
round our necks, and fasten the rope to the joist ;
that then he could tie that one who was to bring
the purse in the same way. When I had tied my-
self, and fastened the rope to the joist, Solomon told
me he would hold me ; and then he gave me a push
down. The rope was round my neck ; the end fast
to the joist above. The rope was not long enough
to reach to the floor. The rope broke, and I fell
down on the threshing floor. The rope was as thick
as my little finger, and it was doubled. It had been
used for a plough line, and to tie the horse. I did
not see the man with the purse. The rope was
doubled round my neck. The joist is eleven or
twelve feet above the threshing floor. The rope
took the skin ofT my neck, but did not hurt me
31*
366 AMERICAN TRIALS.
much. Solomon said he would tie a rope round his
neck, but he did not do it. Soon as Solomon
pushed me down, he jumped down and ran off. I
went home to John Hauer's house. In about fifteen
minutes after, John Hauer and Solomon Hauer came
in together. They said they were very sorry that it
happened so that all went wrong. After that Solo-
mon asked me to go towards Bethlehem with him,
where he lived. John Hauer told me I should go
along with him, that it might not be found out that
the skin was off my neck. John Hauer often told
me I should tell nothing of it, and I promised him I
would not. When I came from Bethlehem I hired
myself to my brother Francis, and Hauer again told
me not to tell. I then lived with Francis almost a
year, till he was murdered."
The testimony against Donagan and Cox was cir-
cumstantial. They were implicated in the confes-
sion of Hauer, but this could not be used against
them at the trial. It appears to have been a part of
the plot, for each of the prisoners to sleep on the
night of the murder with some one who could testify
to an alibi. Hauer had requested a man to sleep in
his house, and in the room with him during that
night. But the witness testified that Hauer might
have been absent while he was asleep. Donagan
went several miles from the place of the murder to
sleep, and the person in whose house he staid had
no doubt that he was within doors the whole night.
Cox and M'Manus came together to the tavern of
one Geiger, several miles from the scene of the
murder, and went to bed together. In the night
JOHN HAUER AND OTHERS. 367
M'Manus was discovered leaving the house, although
he evidently wished to be unnoticed. He was ab-
sent so long as to alarm the taverner, who with his
wife made diligent search for him in the neighbor-
hood ; but his bedfellow, Cox, was not disturbed
by his absence, although it was a cold night and
M'Manus went out thinly clad. Cox got up and
assisted in the search, at the urgent request of Geiger
and his wife, but he manifested no anxiety or alarm.
M'Manus came back before morning, and made
some trifling excuse for his absence. It was proved
that he wore Cox's shoes, and some other article of
personal apparel. These circumstances were relied
on, as showing that Cox must have been cognizant of
the murderous intention of M'Manus when he went
out. There were other circumstances which made
against the prisoners, but it is not deemed necessary
to refer to them with more particularity here.
After the testimony was closed, the counsel who
had been assigned to Hauer Mr. Duncan, Mr.
Elder, Mr. Laird, Mr. Fisher and Mr. Clymer
made a statement to the court of the following pur-
port. They averred, that on this, as well as on the
former trial, they had endeavored to discharge their
duty towards him faithfully, to the extent of their
slender abilities. They believed that if Hauer, on
the former trial, had not thought proper to take his
case out of their hands, probably he would not now
have been in confinement. But as he sent for the
judges, and confessed his concern in the very foul
and barbarous murder committed on his brother-in-
law Francis Shitz, and had, when brought to the bar
368 AMERICAN TRIALS.
the next morning, publicly pronounced the truth of
that confession, and persisted in it ; and as he had,
during the proceedings, and upon his arraignment,
upon the present indictment, remained mute ; whether
obstinately, or by the visitation of God, they pretend-
ed not to say ; and further, had declined all inter-
course with his counsel ; having attended the trial,
and examined the witnesses ; they therefore, con-
sidered it their duty to be silent, and now deliver up
the prisoner to the court and to the jury, well satisfied
that the court would consider and give weight to any
favorable circumstance, that might exist in his case.
They were induced to this measure from a sense of
its propriety, from a respect to the court, and a re-
gard to their own characters. They would, how-
ever, have it understood, that they have not been
awed into it, by the dread of popular resentment and
fury, which may have been excited against them for
the part which they have taken in defence of Hauer ;
this they most heartily despised. For though he
stood at the bar covered over with the blood of his
brother, it would have been their duty to have be-
come his counsel ; and having once undertaken his
defence, not to have defended him with their best
exertions, would have been a violation of their oaths,
a base desertion of a man who had put his life in
their hands, and have rendered them unworthy mem-
bers of a very honorable profession.
The case of Donegan and Cox was then argued to
the jury, on Sunday, with great ability, by Mr. Elder,
Mr. Clymer and Mr. Hopkins, for the prisoners, and
by Mr. Hall, Mr. Smith and Mr. Henry for the com-
JOHN HAUER AND OTHERS. 369
monwealth. After which, the president of the court
charged the jury to the following effect :
Gentlemen of the jury,
The indictment upon which you are now trying
the prisoners at the bar, charges Charles M'Manus
and Peter M'Donoghy as principals ; and the prison-
ers as accessories before the fact. Charles M'Manus
has been already convicted. But whether the present
prisoners at the bar were partakers of the guilt, as
accessories before the fact, you are now called upon
to determine. The murder of Francis Shitz cer-
tainly roused the indignation of the county. Its
atrocity is unequalled by anything of the kind hith-
erto known in Pennsylvania. The execution of the
murder was as horrid, as the motives were base and
grovelling. The keenest sensations must arise in
the minds of all good men, and worthy citizens, that
in a government of laws, predicated on the ground of
freedom, where the security of our persons, and the
protection of our property, are the primary objects of
legislation, a massacre should take effect, that would
disgrace the manners and government of the most
savage people !
It is proper, gentlemen, that this sensation in the
public mind should be increased and exhilarated ; to
cause us collectively, and individually, to become
more circumspect in our observance of the conduct
of each other, and more watchful of strangers. But,
gentlemen, in the relative situations we now hold ;
called upon by the laws of our country to decide
upon the life and death of fellow men, we have a
370 AMERICAN TRIALS.
different part to act. Sitting as arbiters of the fate
of these men, we must divest ourselves of all preju-
dices we may have imbibed, from stories told out of
doors. We must disregard all apprehensions of ill-
will from particular persons, or any dangers that may
arise to us from popular rage.
Here occupying the situations of judges and jurors,
it is a sacred duty, that each of us should permit his
understanding to be ruled and guided only by the
evidence which has been laid before us; and that
evidence only, which is acknowledged and received
by the laws of our country as genuine, should have
an operation on your minds. Evidence which the
law pronounces to have no weight, though it should,
from the necessity of the occasion, come into the
view of the jury, must, when they are informed that
it is legally ineffective, be laid totally out of the
question. Nothing, indeed, should induce a convic-
tion in a case of murder, but evidence legal in itself,
fairly and openly delivered in court. Passion, preju-
dice, and the rumors of the country, should be done
away. Cool inquiry ; a deliberate examination and
comparison of the circumstances one with the other,
with a zeal for truth, ought to assume their places.
Here, I think it proper again to observe, that the
confession of one prisoner, though it names others of
the prisoners as being concerned with him in guilt,
ought not to operate as evidence to convict those
other prisoners. There is great reason in this rule
of law. A man who has himself been guilty of an
offence, ought not to be permitted to criminate an-
other, in the absence of that other ; and when the
JOHN HAUEK AND OTHERS. 371
prisoner, who makes the confession, may have aban-
doned all hope of salvation here and hereafter ; or
perhaps because he may have given himself up to a
rage against the person whom he charges.
The prisoners are arraigned before you as accesso-
ries before the fact to Charles M'Manus, who stands
convicted of the murder of Francis Shitz. The law
defines an accessory before the fact, to be " one who,
being absent at the time the crime is committed,
does yet procure it to be done ; counsels with an-
other to do it, or commands it to be done." It is
necessary to constitute this offence, that the prisoner
should have been absent at the time of the commis-
sion of the offence. For if he be present, aiding or
abetting, he is then a principal. A man may also be
an accessory before the fact, though he does not
communicate with the person who does the felony.
As where A prevails upon B to procure C to poi-
son or kill D. If C does kill D, A, though he never
spoke to C upon the subject of the intended felony,
is as much an accessory, and is as highly punishable
as B, who procured C to do the act.
As to the evidence before you, I shall recapitulate
the prominent parts of it, as it respects each of the
prisoners, as they stand in order in the indictment.
Having done this without comment, I must leave it
to you to draw your own conclusions. It is not the
duty of judges, in cases like the present, to press ar-
guments for conviction, which do not strike the mind
so forcibly, as at once to satisfy of guilt. As to
Hauer, gentlemen, when you consider the testimony
relating to his malice against the deceased, and his
372 AMERICAN TRIALS.
brother before the murder : his behavior immediately
before the death of Francis Shitz, and after, and all
this accompanied by his own confession ; you can
have no hesitation, but that against him there must
be a verdict of guilty. As to Donagan and Cox, the
evidence is merely circumstantial and presumptive.
When this kind of evidence, unaccompanied by any-
thing positive, is brought before a jury to induce a
conviction for murder, it ought to be received and
acted upon with great caution.
Though even probable presumptions, which may
be drawn from a variety of circumstances attending
a crime, will authorize a jury in any case, whether of
the highest or lowest kind of offences, to convict ;
yet as circumstances, particularly when few in num-
ber, are sometimes uncertain and fallible, it is cer-
tainly prudent for the judicious and conscientious
juror, to scrutinize all the circumstances minutely.
If, upon such scrutiny, he can fairly make the conclu-
sion of guiltiness, he ought to do it firmly, and with-
out fear of consequences. On the contrary, if hesi-
tation and doubt remain, upon contrasting all the
occurrences brought before him in evidence, the juror
should as firmly and fearlessly pronounce the prisoner
not guilty. It is an excellent sentiment of a great
lawyer and a most pious man, the famous judge
Hale, that in cases of presumptive evidence, it is
better that five guilty persons escape, than that one
innocent suffer.
The judge then went into a particular detail of all
the evidence that had been given, and committed the
case to the jury, at four o'clock on Sunday afternoon.
JOHN HAUER AND OTHERS. 373
At seven o'clock in the evening, 1 they returned a
verdict of guilty as to Hauer, and not guilty as to
Donagan and Cox.
Elizabeth Hauer and Hugh M'Donough weie then
put upon trial, but the commonwealth offered no
evidence against them, and they were acquitted.
Peter M'Donoghy was also discharged by habeas
corpus, as " it was not thought prudent to try and
acquit him, from a full persuasion of his guilt, and
with an expectation that sufficient evidence might
hereafter appear to convict him."
M 'Man us and Hauer were executed on Saturday,
July 14, 1798. The former maintained to the last
that he was not in the house, or present at the
murder ; but that he held a horse at the end of a
lane, in order to aid the escape of the perpetrators,
who were, he said, Hauer and Peter M'Donoghy.
He appeared with the same manly and even cheer-
ful resignation, which he had invariably preserved
during his trial and imprisonment ; and which, ad-
ded to his youth, had, notwithstanding the atrocity
of his crime, procured him no inconsiderable de-
gree of the public sympathy and favor. The de-
portment of Hauer was more decent and composed
than was expected from his conduct since his
trial and condemnation, during which time he was
never known to speak, although every exertion
was used which humanity could dictate or art de-
1 In the case of Respublica v. Oswald, in 1788, (Dallas's Pennsyl-
vania Reports, i. 327) Chief Justice M'Kean says ; " In criminal mat-
ters Sunday has always been deemed a legal day."
VOL. II. 32
374 AMERICAN TRIALS.
vise. He persisted in remaining in the most indeli-
cate and filthy situation, not admitting the least
covering to his nakedness, and attempting at every
opportunity to bite those who came within his reach ;
one person was badly wounded by him in this man-
ner. No question of insanity was raised at his trial,
or in any of the proceedings, and it was generally
supposed that his singular conduct was entirely
feigned, but he was at least consistent, and sustained
the concluding scene without opening his lips. It
seems probable, that he was mute at first under the
influence of a sullen obstinacy ; but it was supposed
that he at length lost the power of speech through
extreme terror, or a feeling of the hopelessness of
his situation. Nor is it impossible, that remorse for
his crime may have shrouded his mind with a spe-
cies of insanity, from which the murderer is never
entirely free.
APPENDIX.
TRIAL OF MRS. SPOONER AND OTHERS.
THE case of Mrs. Spooner and others, which stands first in this vol-
ume, involved several points of novelty and importance in criminal juris-
prudence. It is deemed proper, therefore, to insert most of the docu-
ments relating to that matter ; and transcripts of the originals, in the
state archives of Massachusetts, have accordingly been made. There
are but two papers relating to the trial amongst the records of the court,
one of which is the coroner's inquest, and the other the indictment.
The former was taken at Brookfield, on March 3, 1778, before Thomas
Gilbert, coroner, and the following jurymen, namely : Jonathan King,
Obadiah Cooley, Richard Wellin, Francis Foxcraft, Moses Dorr, Seth
Banister, Benjamin Jennings, John Waite, Elias Staples, Adoniram
Walker, James Upham, Wm. Hincher, Asa Bigelow, and Comfort Old.
They returned that the deceased, " on the evening of the first of March)
about 9 o'clock, being returning home from his neighbors, near by his
own door was feloniously assaulted by one or more ruffians, knocked
down by a club, beat and bruised, and thrown into his well with water
iii it."
INDICTMENT.
WORCESTER ss. At the Superior Court of Judicature, Court of Assize
and general Gaol delivery, begun and holden at Wor-
cester, within and for the County of Worcester, on
the Tuesday next preceding the last Tuesday of April,
in the year of our Lord seventeen hundred and ser-
enty-eight.
The Jurors for the Government and People of Massachusetts Bay, in
New England, upon their Oath present that William Brooks, resident at
376 APPENDIX.
Charlestown. in the County of Middlesex, Labourer, James Buchannon, of
the same Charlestown, Labourer, and Ezra Ross, of Ipswich, in the County
of Essex, Laborer, not having GOD before their eyes, but being moved
and seduced by the instigation of the Devil, on the first day of March last
past, with force and arms, at Brookfield aforesaid, in the County afore-
said, feloniously, wilfully and of their malice aforethought, in and upon
Joshua Spooner, of said Brookfield, then and there in the peace of GOD
and of the said Government and people being, an assault did make, and
that the aforesaid William Brooks, with his right fist the said Joshua
Spooner to and against the Ground then and there feloniously, wilfully, and
of his malice aforethought, did strike down, and the same Joshua Spooner
so on the Ground lying, he, the said William Brooks, with both his
hands and feet of him, the said William Brooks, in and upon the back,
head, stomach, sides and throat of him, the said Joshua Spooner, then
and there feloniously, wilfully, and of his malice aforethought, did strike,
beat and kick, giving to him, the said Joshua Spooner, as well by the
striking down of him, the said Joshua Spooner, to the Ground as afore-
said, as also by the striking, beating and kicking the said Joshua Spooner
in and upon the back, head, stomach, sides and throat of him, the said
Joshua Spooner as aforesaid, with both the hands and feet of him, the
said William Brooks, in manner aforesaid, several mortal bruises, of
which said several mortal bruises the said Joshua Spooner there instantly
died. And that James Buchannon aforesaid, and Ezra Ross aforesaid,
feloniously and of their malice aforethought, then and there were pres-
ent, aiding, assisting, abetting, comforting and maintaining the afore-
said William Brooks, to the felony and murder aforesaid, in form afore-
said, to be done and committed. And so the Jurors aforesaid upon their
oaths do say, that the said William Brooks, James Buchannon and Ezra
Ross, the aforesaid Joshua Spooner, at Brookfield aforesaid, in manner
and form aforesaid, feloniously, wilfully, and of their malice aforethought,
killed and numbered, against the peace of the Government and people
aforesaid. And that Bathsheba Spooner, of Brookfield, in the County
of Worcester, Widow, late Wife of the said Joshua Spooner, not having
GOD before her Eyes, but being seduced by the Instigation of the Devil,
before the felony and murder aforesaid, by the aforesaid William Brooks,
James Buchannon and Ezra Ross, in manner and form aforesaid done
and committed, that is to say, on the twenty-eighth day of February
last past, the aforesaid Bathsheba Spooner, at Brookfield aforesaid, in
the County of Worcester aforesaid, the felony and Murder aforesaid, in
manner and form aforesaid to be done and committed maliciously, wil-
fully, and of her malice aforethought did incite, move, abett, counsel
and procure, against the peace of the Government and people aforesaid.
A true bill.
R. T. PAINE, Att'y pr. State.
SAMUEL DENSY, foreman.
APPENDIX.
377
WORCESTER SUPERIOR COURT,
April Term, 1778. The said William Brooks, James Buchannon,
Ezra Koss and Bathsheba Spooner, are brought and sit to the Bar here,
by the Sheriff of Worcester County, and arraigned ; and upon their ar-
raignment they severally plead, That thereof they are not guilty, and
thereof they put themselves, for trial, on God and the Country.
All., H. SMITH, Clerk.
DEATH WARRANT.
STATE OF MASSACHUSETTS
BAY.
THE GOVERNMENT AND PEOPLE OF THE
STATE OF MASSACHUSETTS BAY.
To the Sheriff 1 of our County of Worcester,
Greeting :
Whereas, William Brooks, resident at Charlestown,
in the County of Middlesex, labourer, James Buchan-
non, of the same Charlestowu, labourer, and Ezra
Ross, of Ipswich, in the County of Essex, labourer,
Jcr. Powell, now Prisoners in our Gaol in said Worcester, were,
Artemas Ward, by the Jurors for us for the Body of our said County,
Jedidiah Preble, at the Superior Court of Judicature, Court of Assize
T. Gushing, and General Gaol delivery, held at Worcester afore-
John Wfietcomb, said, for the said County of Worcester, on the Tues-
S. Holten, day next preceding the last Tuesday of April, indicted
B. White, for that, the said William Brooks, resident at Charles-
Ben/. Austin, town, in the County of Middlesex, Labourer, James
H. Gardner, Buchannon, of the same Charlestown, Labourer, and
Moses Gill, Ezra Ross, of Ipswich, in the County of Essex, La-
D. Hopkins, bourer, not having GOD before their Eyes, but being
N. Gushing, moved and seduced by the Instigation of the Devil,
A. Fuller, on the first day of March last past, with force and
Josiah Stone, arms, at Brookfield, in the County of Worcester
Oliver Prescott. aforesaid, feloniously, Wilfully, and of their Malice
aforethought, in and upon Joshua Spooner, of said
Brookfield, then and there in the Peace of GOD, and
of the said Government and People being, an Assault
did make, and that the aforesaid William Brooks,
with his right Fist, the said Joshua Spooner to and
against the Ground, then and there feloniously, Wilful-
ly, and of his malice aforethought, did strike down, and
the same Joshua Spooner so on the Ground lying,
he, the said William Brooks, with both his Hands and
feet of him, the said William Brooks, in and upon the
back, Head, Stomach, Sides, and Throat of him, the
32*
378 APPENDIX.
said Joshua Spooner, then and there feloniously, wilfully, and of his
Malice aforethought, did strike, beat and kick, giving to him, the said
Joshua Spooner, as well by the stricking down of him, the said Joshua
Spooner, to the Ground as aforesaid, as also by the stricking. beating and
kicking the said Joshua Spooner in and upon the back, Head, and Stom-
ach, Sides, and Throat, of him, the said Joshua Spooner as aforesaid,
with both the Hands and feet of him, the said William Brooks, in man-
ner aforesaid, Several Mortal Bruizes, of which said Several mortal
Bruizes the said Joshua Spooner, there instantly died ; and that James
Buchannon aforesaid, and Ezra Ross aforesaid, feloniously, and of their
Malice aforethought, then and there were present, aiding, assisting, abet-
ting, comforting and maintaining the aforesaid William Brooks to the
felony and Murther aforesaid, in form aforesaid, to be done and Commit-
ted ; and that the said William Brooks, James Buchannon and Ezra
Ross, the aforesaid Joshua Spooner, at Brookfield aforesaid, in Manner
and form aforesaid, feloniously, Wilfully, and of their Malice afore-
thought, killed and Murthered, against the Peace of the Government
and People aforesaid, and the Law of this State in such case made and
provided. And that Bathsheha Spooner, of Brookfield, in the County of
Worcester, Widow, late Wife of the said Joshua Spooner, not having
GOD before her Eyes, but being seduced by the Instigation of the Devil,
before the Felony and Murther aforesaid, by the aforesaid William
Brooks, James Bucbannon and Ezra Ross, in manner and Form afore-
said done and committed, that is to say, on the Twenty-eighth day of
February last Past, the aforesaid Bathsheba Spooner, at Brookfield afore-
said, in the County of Worcester aforesaid, the Felony and Murther
aforesaid, in manner and form aforesaid, to be done and committed Ma-
liciously, Wilfully, and of her Malice aforethought did incite, move,
abett, counsel and procure, against the Peace of the Government and
People aforesaid. To which the said William Brooks, James Buchan-
non, Ezra Ross and Bathsheba Spooner, pleaded Not guilty, and were
by Verdict of our Jurors, for our said County of Worcester, Convict ;
and thereupon the said William Brooks, James Buchannon, Ezra Ross
and Balhsheba Spooner were, by our Justices of our said Court, adjudged
to Suffer- the Pains of Death, as to Us appears by a copy of Record of
said Court hereunto annexed, whereof Execution doth still remain to be
done.
We Command you therefore that, on Thursday, the fourth day of June
next, between the Hours of twelve and four of the Clock, in the after-
noon, You Cause the said William Brooks, James Buchannon, Ezra Ross
and Bathsheba Spooner, to be conveyed from our Gaol in Worcester
aforesaid, where they now are in your Custody, to the Usual Place of Ex-
ecution in our said County of Worcester, and there to be hanged by the
Neck until their Bodies be dead, for which this Shall be your Sufficient
Warrant ; fail not at your Peril, and make return of this Writ, with
APPENDIX. 379
your doing therein, into the Secretary's Office of said State, at Boston,
on the tenth day of June next :
Witness the Major Part of our Council, at Boston, this Eighth day of
May, In the Year of our Lord, One thousand Seven hundred and Seventy
Eight.
By their Honors' Order,
JOHN AVEBY, D'y Sec'y.
PETITION OF THE PRISONERS FOR A REPRIEVE.
To the honorable the Council far the state of Massachusetts Bay, in New
England:
The humble petition of James Buchanan, William Brooks, Ezra
Ross and Bathshua Spooner, most humbly sheweth that your poor pe-
titioners, fearfull of their unpreparedness to appear before their Maker
and judge after the perpetrating so horrid a crime, and they being in-
formed by the sherife the time of their execution would be on the fourth
day of June
Your poor petitioners do therefore most earnestly pray your honors,
that you would be pleased to grant them some longer time than the be-
fore mentioned, which, should your honors in your great goodness grant
them, they hope, and through the divine assistance and blessing upon the
means used, trust they shall improve it to the most valuable purposes, it
being a matter which concerns their everlasting salvation.
They most humbly submit to your honors' linety and goodness, and
as in duty bound they will ever pray, &c. &c. &c.
JAMES BUCHANAN,
his
WILLIAM X BROOKS,
mark.
EZRA Ross,
BATHSHUA SPOONER.
Worcester Gaol, 20th May, 1778.
Mr. Maccarty's most dutiful respects wait upon the honorable board,
begging leave humbly to represent to them, that he has had much op-
portunity to know the state of the above named prisoners ; that he has
found the men all along, and especially since their condemnation, to be
much affected with their deplorable condition ; freely acknowledging
their heinous guilt, and the righteousness of the sentence pronounced
against them. They appear to be very humble and penitent to be much
in earnest that they may make their peace with their Maker much en-
gaged in acts of devotion, and eager to embrace all opportunities, both
public and private, for religious counsels and instruction. For which
380
APPENDIX.
reasons Mr. Maccarty presumes humbly to desire, that the prayer of their
petition, as above, may be granted. And in that case he can assure your
honors on his own behalf, and on the behalf of his brethren in the min-
istry, that all suitable endeavors will be used with them, in order, if it
shall please God to succeed them, that they may be prepared for the sol-
emn scene before them. And as to the unhappy woman, he would beg
leave further to represent, that she declares, she is several months ad-
vanced in her pregnancy, for which reason she humbly desires, that her
execution may be respited till she shall have brought forth.
Worcester, May 20, 1778.
The above application is made at my most earnest request.
BATHSHUA SPOONEB.
REPRIEVE.
THE GOVERNMENT AND PEOPLE OP THE MASSACHUSETTS BAY IN
NEW ENGLAND.
^^_ A _ - ^ To the Sheriff" of our County of Worcester,
Greeting :
cS Citl. Whereas, William Brooks, resident at Charlestown,
in the County of Middlesex, Labourer, James Buchan-
- "~^ non, of the same Cbarlestown, Labourer, and Ezra
Ross, of Ipswich, in the County of Essex, Labourer,
Jer. Powell, and Bathsheba Spooner, of Brookfield, in the County
Arlemas Ward, of Worcester, Widow, now Prisoners in our Gaol in
Walter Spooner, said Worcester, in our said County of Worcester,
Jabez Fisher^ were, at our Superiour Court of Judicature, Court of
Moses Gill, Assize and General Gaol Delivery, held at Worcester,
Benj. Austin, in and for our said County of Worcester, on the Tues-
Dan. Davis, day next preceding the last Tuesday of April, con-
victed of Murder, and was thereupon adjudged to suf-
fer the Pains of Death : and a Warrant issued out by
rfmo. Danielson, the Major Part of the Council of our State aforesaid,
N. Cashing, requiring you to put the Sentence thereof in Execution
Oliver Prescott, the fourth day of June next : but it hath been repre-
A, Fuller, sented to us, that the said William Brooks, James Bu-
Josiah Stone, channon, Ezra Hoss and Bathsheba Spooner, are de-
sirous of further Time being allowed them to prepare
for Death, We, of our special Grace and favour do
hereby direct and Command you to suspend and de-
lay the Execution of the Sentence of our said Court
John PUts, until Thursday, the Second Day of July next, at
APPENDIX.
381
Sam. Baker, which Time you are to proceed to Execute the said
Oliver Wendell. Warrant in manner and form as therein is Directed.
Witness the Major Part of our Council, at Boston,
this Twenty-eighth Day of May, in the Year of our
Lord, 1778.
By their Honors' Order,
JOHN AVERT, D'y Sec'y.
DE VENTRE 1NSPICIENDO.
THE GOVERNMENT AND PEOPLE OF THE MASSACHUSETTS BAY IN
NEW ENGLAND.
^ v To the Sherif of Worcester, Greeting:
Whereas, Batbsheba Spooner, late wife of Joshua
Si ffl -. Spooner, of Brookfield, in said County of Worcester
stands attainted in due form of law before our Supe-
-v- rior Court of Judicature, Sic., held at Worcester, with-
in and for the County of Worcester, on the third Tues-
Jere. Powell, day of April, being accessory before the fact to the
Artemas Ward, murder of the said Joshua Spooner, for which she has
Walter Spooner, received sentence of Death, and a warrant has issued
Jabez Fisher, in due form of law, to have the same sentence duly
Moses GUI, executed on the fourth day of June next ; and where-
Benj. Austin, as, it has been represented to us in Council, by
Dan'l Davis, the said Bathsheba Spooner, that she is quick
Oliver Prescott, with child : And we, being desirous of knowing the
Timo. Danielson, truth of the said Representation, do command you
jV. Gushing; therefore, that, taking with you two men midwives,
John Pitts, and twelve discreet and lawful matrons of your Coun-
O'iver Wendell, ty, to be first duly sworn, you, in your proper person,
Josiah Slone, come to the said Bathsheba Spooner, and cause her
A. Fuller, diligently to be searched by the said matrons, in the
Sam'l Baiter. presence of the said men midwives, by the Breasts and
Belly, and certify the truth whether she he quick with
child or not, and if she be quick with child, how long
she has so been, under your seal, and the seals of the
said men mid wives, into the Secrertary's office of Mas-
sachusetts Bay aforesaid, at or liefore the 25th day
of June next, together with the names of the matrons
by whom you shall cause the said search and inspec-
tion to be made ; hereof fail not, and make true re-
turn of this writ, with your doings hcreon.
Witness the Major part of the Council of Massa-
382 APPENDIX.
chusetts Bay in New England, at Boston, this twenty-eighth day of
May, A. D. 1778.
By their Honors' Order,
JOHN AVEHY, D'y Sec'y.
RETURN OF THE SHERIFF.
WORCESTER es. In strict compliance with the within directions and
warrant, I have summoned two men midwives and twelve lawful ma-
trons, and caused the said matrons to be under oath, and, in my proper
person, with the said men midwives and matrons, attended on the said
Bathsheba Spooner ; they have made the searches as required in the
within writ. The verdict of the above matrons is, that the said Bath-
sheba Spooner is not quick with child.
Given under our hand and seals, this eleventh day of June, A. D. 1778.
WILLIAM GREENLEAF, Sheriff, (Seal.)
JOSIAH WILDER, Midwife, (Seal.)
ELIJAH Dix, Midwife, (Seal.)
A list of the Matrons
ELIZABETH RICE, MARGAKET BROWN,
MAKY TODMAN, MARY BRIDGE,
HANNAH PERBY, LIDIA BALL,
ZUHBILCH STOWELL, HANNAH BROOKS,
CHRISTIAN WALKER, MARY STERNES,
EzEBEL QUIGLEY, SARAH JONES.
[ENDORSED.]
Warrant for examining Bathsheba Spooner, respect'g her being quick
with child, with the return of the Sheriff of the County of Worcester
thereon ; also,jnclosing her petition not granted, (See page 49.)
June 23d, 1778.
OPINION OF MIDWIVES.
WORCESTER, June 27, 1778.
To the Honour*' Board of Councillors
for the State of Massachusetts Bay :
May it please your honors, we, the subscribers, have examined the
body of Mrs. Bathsbeba Spooner (by her desire) to find whether she is
quick with child or not ; and, altho' it was our, and the Jury of Matrons
opinion, on the examination of y 11 th Instant, that she was not quick
APPENDIX. 383
with child at that time, yet, upon this further examination, we would in-
form your Honors, that we must give it as our opinion, that we have rea-
son to think that she is now quick with child.
JOHN GB , t
Midwives.
JOHN GREEN, )
JOSIAH WILDER, >1
ELIJAH Dix, )
HANNAH MOWER,
Woman
Midwife.
WORCESTER, June 27, 1778.
To the Hon 1 * Board of Councillors
for the Stale of Massachusetts Bay:
Whereas we, the subscribers, Matrons, on the examination of Mrs.
Bathsheba Spooner, on y* llth instant, did give it as our opinion, on oath,
that she was not quick with child at that time, have again this day, at
her request, examined her present circumstances, and give it as our opin-
ion, that she is not even now quick with child.
ELIZABETH RICE,
MOLLY TATTMAW.
FINAL RETURN OF THE SHERIFF.
WORCESTER ss. In Obediance to the within Directions, I Suspended
the Execution of Wm. Brooks, James Buchannon,
Ezra Ross and Bathsheba Spooner, from the forth
June last, till July the second Day, which was on
thursday last; then Carried the Abovesaid Wm.
Brooks, James Buchannon, Ezra Ross, with Bath-
sheba Spooner, to the place of Execution, and there
hanged them Each By the Neck untill they were
Dead, between the houres of twelve and four of the
Clock in the Afternoon, as Directed by a warrant to
me from the Major Part of the Council, bearing Date
the Eighth Day of May last, in the year of our Lord
One thousand seven hundred and seventy-eight.
WILL" GREESLEAF, Sheriff".
Lancaster, July 6th, AD. 1778.
384 APPENDIX.
MAJOR ANDRE.
The death of Major Andre was, in some respects, the most affecting
event that occurred during the revolutionary war, and it is believed that
the feelings of Washington were in nothing more severely tried. The
lady to whom Andre was attached, and whose marriage with another
drove him into the army (page 108) is stated, in a recent publication, to
have been Honora Sneyd, who married Richard Lovel Edgworth, and
thus became step-mother to the celebrated Maria Edgworth. The re-
marks of three writers upon the proceedings against this unfortunate
officer are here inserted. The first is Sir Samuel Romilly, a lawyer
of great eminence in his day ; the second is Lieutenant Colonel Sim-
coe, a British officer who was in the army at the time Andre was taken,
and whose Journal, recently published, exhibits a bitter spirit against
the Americans; the third is James Fennimore Cooper, an American
author of eminence.
REMARKS OF SIR SAMUEL ROMILLY.
The Congress, to justify their generals in the severity exercised over
Major Andre, who, as he was returning from concerting measures with
Arnold, was taken and hanged, have published a very long account of that
affair, with all the letters that passed between the generals upon the oc-
casion. Major Andre's case was laid before a board consisting of four-
teen field officers, and it was their unanimous opinion that he ought to
suffer death ; but they gave no other reasons for their sentence, than that
it was conformable to the rules of war. The arguments used by Clinton
and Arnold in their letters to Washington, to prove that Andre could not
be considered as a spy, are, first, that he had with him when he was
taken, a protection of Arnold's, who was at that time acting under a
commission of the Congress, and therefore competent to give protections.
Certainly he was, to all strangers to his negotiation with Clinton, but
not to Andre, who knew him to be at that time a traitor to the Congress ;
nay, more, whose protection was granted for no other purpose but to pro-
mote and give effect to his treachery. In the second place, they say that,
at the time he was taken, he was upon neutral ground ; but then they do
not deny that he had been within the American lines in disguise. The
letters written by Andre himself, show a firm, cool intrepidity, worthy a
more glorious end. Writing to General Clinton, he requests that his
mother and sister may have the sale of his commission ; as for himself,
he says, he is " perfectly tranquil in mind, and prepared for any fate to
which an honest zeal for the king's service may have devoted " him.
There is another short note which he wrote to Washington the day be-
fore his execution ; it concludes with these words : " Let me hope, sir, if
aught in my character impresses you with esteem towards me, if aught
APPENDIX. 385
in my misfortunes marks me as the victim of policy and not of resent-
ment, I shall experience the operation of these feelings in your breast by
being informed that I am not to die on a gibbet." " But," say the Con-
gress, " the practice and usage of war were against his request, and
made the indulgence he solicited inadmissible." The fate of this un-
fortunate young man, and the manly style of his letters, have raised
more compassion here than the loss of thousands in battle, and have ex-
cited a warmer indignation against the Americans than any former act
of the Congress. When the passions of men are so deeply affected, you
will not expect them to keep within the bounds of reason. Panegyrics
on the gallant Andre are unbounded ; they call him the English Mutius,
and talk of erecting monuments to his memory ; but his situation was
by no means such as to admit of these exaggerated praises. Letter to
Rev. John Rogct, December 12, 1780. Romttly's Memoirs, i. 140.
REMARKS OF LIEUTENANT COLONEL SIMCOE.
There were no offers whatsoever made by Sir Henry Clinton ; amongst
some letters which passed on this unfortunate event, a paper was slid
in without signature, but in the handwriting of Hamilton, Washington's
secretary, saying, " that the only way to save Andre was to give up Ar-
nold." Major Andre was murdered upon private not public considera-
tions. It bore not with it the stamp of justice ; for there was not an
officer in the British army whose duty it would not have been, had any of
the American generals offered to quit the service of Congress, to have
negotiated to receive them ; so that this execution could not, by exam-
ple, have prevented the repetition of the same offence. It may appear,
that, from his change of dress, &c., he came under the description of a
spy ; but when it shall be considered " against his stipulation, intention
and knowledge," he became absolutely a prisoner, and was forced to
change his dress for self-preservation, it may safely be asserted, that no
European general would, on this pretext, have had his blood upon his
head. He fell a sacrifice to that which was expedient, not to that which
was just ; what was supposed to be useful superseded what would have
been generous ; and though, by imprudently carrying papers about him,
he gave a color to those, who endeavored to separate Great Britain from
America to press for his death, yet an open and elevated mind would
have found greater satisfaction in the obligations it might have laid on
the army of his opponents, than in carrying into execution a useless and
unnecessary vengeance. It has been said, that not only the French party
from their customary policy, but Mr. Washington's personal enemies
urged him on, contrary to his inclinations, to render him unpopular if he
executed Major Andre, or suspected if he pardoned him. The papers
which Congress published, relative to Major Andre's death, will remain
33
3(> APPENDIX.
an eternal monument to the principles of that heroic officer ; and, when
fortune shall no longer gloss over her fading panegyric, will enable pos-
terity to pass judgment on the character of Washington. Simcoe's
Journal, Appendix, 292.
REMARKS OF MR. J. F. COOPER.
The fate of Andre became an object of the keenest solicitude to both
armies. From the commencement of the struggle to the last hour of its
continuance, the American authorities had acted with a moderation and
dignity that gave it a character far more noble than that of a rebellion.
In no one instance had the war been permitted, on their part, to assume
the appearance of a struggle for personal aggrandizement. It was men
battling for the known rights of human nature. But a crisis had arrived
when it was to be seen whether they would dare to expose the defence-
less of their land, to the threatened retaliation of a powerful foe. Such
is the wayward feeling of man, that it is far less offensive to his power
to kill a general in open conflict, than to lead a subordinate deliberately
to an execution, which is sanctioned only by a disputed authority. In
the present instance, however, the offender was not only an officer of a
high and responsible situation, but he was one who had made himself
dear to the army by his amiable qualities, and eminently useful to its
commander by his attainments. I think, among men of high and honor-
able minds, there can be but one opinion concerning the merit of his en-
terprise. There is something so repugnant to every loyal sentiment in
treason, that he who is content to connect himself, ever so remotely, with
its baseness, cannot expect to escape altogether from its odium. It
is true that public opinion has, of necessity, fixed bounds which military
men may approach, without committing their characters for manliness
and honor. Without this privilege, it is plain that a general could not
arrive at the knowledge which is requisite to enable him to protect his
command against attempts, that admit of no other control than the law
of the strongest. But it is also true, that the same sentiment has said
it is dangerous to reputation to pass these very limits. Thus, while an
officer may communicate with, and employ a spy, he can scarcely with
impunity, become a spy himself. There is no doubt that the motive and
the circumstances may so far qualify, even more equivocal acts, as
to change their moral nature. Thus, Alfred, seeking to vindicate the
unquestionable rights of his country, was no less invested with the moral
majesty of a king, while wandering through the Danish camp, than
when seated on his throne ; but it may be permitted to doubt whether
the young military aspirant, who sees only his personal preferment in
the distance, has a claim to be judged with the same lenity.
Major Andre was the servantof a powerful and liberal government that
APPENDIX. 387
was known never to reward niggardly, and the war in which he served,
was waged to aggrandize its power, and not to assert any of the natural
rights of man. With doubtful incentives, and for the attainment of such
an object, did this accomplished young soldier condescend to prostitute
his high acquirements, and to tamper with treason. He did more. He
overstepped the coy and reserved distance which conscious dignity pre-
serves, even while it stoops to necessity, and entered familiarly and per-
sonally into the details of the disgusting bargain. The mere techni-
calities of posts and sentinels, though they may be important for the
establishment of rules which are to soften the horrors of war, can have
but little influence on the moral views of his conduct. The higher the
attainments of the individual, the greater must have been the flexibility
which could see only reward in an undertaking like this. As to the com-
monplace sentiment of serving king and country, every man of an honest
nature must feel that he would have done more honor to his sovereign and
himself by proving to the world, that the high trust he enjoyed was dis-
charged by a man who disdained lending his talents to the miserable
work of deception, than by degrading his office, his character, and his
name, by blending them all, in such familiar union, with treachery. In
short, while it cannot be denied that the office of a spy may be made
doubly honorable by its motives, since he who discharges the dangerous
duty may have to conquer a deep moral reluctance to its service, no less
than the fear of death, I think it must be admitted that the case of Ma-
jor Andre was one that can plead no such extraordinary exemption from
the common and creditable feeling of mankind.
*******
There is reason to think that Andre had soothed himself in the earlier
part of his captivity, with hopes that were fated to be deceived. It had
been the misfortune of the English to undervalue the Americans, and it is
quite in nature for a young man, who, it is well known, had often indulged
in bitter sarcasms against enemies he despised, to believe that a nation
he held so cheap, must have some of his own awe of a government and a
power he thought invincible. It is certain he always spoke of Sir Henry
Clinton (the English commander-in-chief,) with the affection and confi-
dence of a child, until he received his last letter, which he read in much
agitation, thrust into his pocket, and never afterwards mentioned his
general's name. He confessed his ancient prejudices, but admitted they
were all removed by the tender treatment he had received. He neither
acknowledged nor denied the justice of his sentence. It is known that,
though he experienced a momentary shock at finding that he was to
suffer on the gallows, he met his death heroically, and died amid the
tears of all present. Notions of the Americans : picked up by a Travel-
ling Bachelor, i. 217.
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