Blood of Tyrants: George Washington & the Forging of the Presidency (32 page)
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Authors: Logan Beirne
Tags: #American Revolution, #Founding Fathers, #George Washington, #18th Century
BOOK: Blood of Tyrants: George Washington & the Forging of the Presidency
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Washington did not know whom he could trust. But despite his fear, he kept a cool head as he tried to gauge the extent of the treason. First, though, he had to defend West Point from the impending attack. He ordered up more troops to reinforce the fort. An American regiment, receiving the call at 1:00 A.M., marched sixteen miles through driving rain to secure West Point by sunrise.
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Then Washington turned to the matter of exacting justice. And he was out for blood.
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Then Washington turned to the matter of exacting justice. And he was out for blood.
At midnight on Monday, September 25, Joshua Smith lay in bed with his wife. He was exhausted, having gotten little rest since he had become embroiled in Arnold’s plot a few days earlier: he had been up all night keeping a lookout while Arnold and André conspired, and then shared a bed with the restless British officer as they traveled. But after he parted ways with his young charge, Smith returned to the confines of his stately home for some much-needed recuperation. As he lay surrounded by the comforts of his British fineries, his bedroom door was violently opened and the room filled with American soldiers.
The adrenaline-fueled young men immediately drove Smith out of bed by fixed bayonet and angrily ordered him to dress. His disorientation exceeded only by his terror, Smith obeyed. The household was “thrown into great confusion; the female part especially were in the deepest distress.”
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Once he was dressed, Smith was forced out the door without any explanation and marched for eighteen miles through the warm night. As dawn’s first rays shone on the horizon, the party arrived at a wealthy Tory’s home that Washington had commandeered. Smith was thrown into the guarded back room where irate soldiers questioned him intensely. For hours, Smith adamantly denied aiding the British. After a rough night and morning, he was hungry and exhausted. The soldiers placed him in a room with biscuits, but warned him—rather inhospitably—that he would be shot if he touched them.
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Once he was dressed, Smith was forced out the door without any explanation and marched for eighteen miles through the warm night. As dawn’s first rays shone on the horizon, the party arrived at a wealthy Tory’s home that Washington had commandeered. Smith was thrown into the guarded back room where irate soldiers questioned him intensely. For hours, Smith adamantly denied aiding the British. After a rough night and morning, he was hungry and exhausted. The soldiers placed him in a room with biscuits, but warned him—rather inhospitably—that he would be shot if he touched them.
Washington then entered to interrogate Smith regarding his involvement in the conspiracy. He demanded answers and coldly threatened to hang Smith if he did not open up. Smith was terrified by this enraged demigod fuming before him. Cowering in his chair, he contended that he was ignorant of the scheme to betray the American cause and was merely helping General Arnold on diplomatic business.
Washington did not believe him. The commander declared that he had evidence against Smith that was sufficient to impose a death sentence.
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Whether this was a bluff or merely his rage speaking is unclear, but on further reflection he decided to remand Smith to a court-martial proceeding. For although Washington was incensed, he was not one to act rashly. Since Smith was an American, Washington deferred to Congress’s authority in deciding how he should be brought to justice. As will be further discussed in Part V, American citizens were under the civil authorities’ control.
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But those politicians were not always forgiving—while he had escaped the gallows for the time being, Smith still faced a trial for his life.
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Whether this was a bluff or merely his rage speaking is unclear, but on further reflection he decided to remand Smith to a court-martial proceeding. For although Washington was incensed, he was not one to act rashly. Since Smith was an American, Washington deferred to Congress’s authority in deciding how he should be brought to justice. As will be further discussed in Part V, American citizens were under the civil authorities’ control.
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But those politicians were not always forgiving—while he had escaped the gallows for the time being, Smith still faced a trial for his life.
Under the Articles of War passed in 1775, Congress made no provisions for trying spies.
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This was remedied on August 21, 1776, when Congress resolved:
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This was remedied on August 21, 1776, when Congress resolved:
All persons, not members of, nor owing allegiance to any of the United States of America . . . who shall be found lurking as spies in or about the fortifications or encampments of the armies of the United States . . . shall suffer death, according to the law and usage of nations . . . by sentence of a court-martial, or such other punishment as such court-martial shall direct.
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This resolution directed Washington to try foreign spies according to the rules of courts-martial.
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Congress followed this up with a resolution aimed at Loyalists, “authorizing the commander in chief of the army, to hear and try by courtmartial, any of the citizens of the United States who should harbour or [abet] any of the subjects or soldiers of the King of Great Britain.”
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Congress followed this up with a resolution aimed at Loyalists, “authorizing the commander in chief of the army, to hear and try by courtmartial, any of the citizens of the United States who should harbour or [abet] any of the subjects or soldiers of the King of Great Britain.”
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The court-martial was a type of military court with origins dating back to thirteenth-century England, where King Edward I was striving to restore royal authority over the feudal barons. As part of this effort, he issued a royal prerogative asserting the power of the Crown to regulate and discipline the army. Military courts called courts-martial emerged to enable the military to carry out justice when soldiers violated the monarch’s orders. The republican Americans inherited this tradition but substituted congressional resolution for royal edict. In the new United States, court-martial trials were a legislative enactment governed by Congress.
The American courts-martial provided the accused person with “due process,” which is the legal term for the principles of fundamental fairness and justice used in hearing a prisoner’s case. Courts-martial sought to respect the rights of the defendant since these courts were meant to determine justice rather than merely dole out swift punishment.
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In order to provide due process, Congress employed certain procedures to promote a fair trial.
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In order to provide due process, Congress employed certain procedures to promote a fair trial.
First, Congress required that court-martial proceedings be conducted before a panel of thirteen commissioned officers, to decrease the likelihood of a skewed sample of biased jurors that may occur with a smaller group. Second, Congress placed special limitations on the panel’s composition based on the ranking of the accused. This was to ensure that jurors had the necessary seniority and insight to judge the defendant properly. Third, in order to promote impartiality, Congress forbade the officer convening the court-martial—in Smith’s case, General Washington—from sitting on the panel of jurors as president.
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This twist from the traditional British system helped to prevent the commander in chief from influencing the other officers to convict the accused. Finally, the members of the court typically swore an oath to “duly administer justice . . . without partiality, favor, or affection,” and to use their “conscience, the best of [their] understanding, and the custom of war in like cases.”
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This twist from the traditional British system helped to prevent the commander in chief from influencing the other officers to convict the accused. Finally, the members of the court typically swore an oath to “duly administer justice . . . without partiality, favor, or affection,” and to use their “conscience, the best of [their] understanding, and the custom of war in like cases.”
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Although courts-martial historically granted no right to counsel,
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they often involved thorough inquiries with many witnesses called, and provided the accused with opportunity to defend himself. When a man fell within the realm of court-martial proceedings, he was tried according to Congress’s rules and the accompanying guarantees of a fair trial. He had a fighting chance of acquittal. This was not always the case for those unfortunate enough to be brought instead before so-called “military commissions.”
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they often involved thorough inquiries with many witnesses called, and provided the accused with opportunity to defend himself. When a man fell within the realm of court-martial proceedings, he was tried according to Congress’s rules and the accompanying guarantees of a fair trial. He had a fighting chance of acquittal. This was not always the case for those unfortunate enough to be brought instead before so-called “military commissions.”
A military commission was similar to a court-martial in the sense that it was likewise a military proceeding to dispense punishment for offenses. But while these commissions often mimicked some of the procedures of courts-martial, they did not need to provide the accused with the same protections for a fair trial.
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A military commission traditionally served as a “quick and dirty” way to eliminate the due process protections used in courts-martial and criminal trials.
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According to a nineteenth-century treatise, “Its proceedings are not a trial, nor, is its opinion, (when it expresses one,) a judgment.”
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Indeed, such war courts were more summary in their proceedings and they would not be deemed illegal even if they left out details required by courts-martial.
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Military commissions involved a relatively superficial inquiry, which usually resulted in a swift hanging of the accused.
23
A military commission traditionally served as a “quick and dirty” way to eliminate the due process protections used in courts-martial and criminal trials.
24
According to a nineteenth-century treatise, “Its proceedings are not a trial, nor, is its opinion, (when it expresses one,) a judgment.”
25
Indeed, such war courts were more summary in their proceedings and they would not be deemed illegal even if they left out details required by courts-martial.
26
Military commissions involved a relatively superficial inquiry, which usually resulted in a swift hanging of the accused.
While courts-martial were held under rules passed by Congress, military commissions were held according to the commander in chief ’s discretion and did not necessarily provide the accused with any protections whatsoever.
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These tribunals were often more like investigative bodies than formal courts, with procedures largely left to the whims of the commander. They were not bound by Congress’s court-martial rules since the commander made up his own, adapting them to the occasion. And his decision was final.
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These tribunals were often more like investigative bodies than formal courts, with procedures largely left to the whims of the commander. They were not bound by Congress’s court-martial rules since the commander made up his own, adapting them to the occasion. And his decision was final.
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Washington’s actions in the fall of 1780 suggest that whether the commander was obligated to try a prisoner by a congressional court-martial or had the option to convene a special military commission depended on whether the accused was American or British. Nationality could thus mean the difference between life and death.
From the beginning of the war, Washington ordered that prisoners’ cases be examined to determine “who of them were subject to Military Jurisdiction and who came properly under the cognizance of civil power.”
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He was in the awkward position of having to juggle congressional and state laws as well as international customs, since the relatively new national legislature did not yet possess the legal foundation to trump laws derived from other sources.
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So while he took care to respect civilian control over military tribunals where appropriate, Washington admitted that he was operating in a confused state of affairs. The process of examining individual cases, he confessed, was “somewhat irregular, and out of the common order to things” due to the chaos of war. He recognized, and Congress agreed, that “the distinction between Civilian and Military power” could not, in the circumstances, be maintained “with that exactness which every friend to Society must wish.”
31
Nevertheless, Washington conscientiously did his best to protect the rights of his fellow Americans. As Hamilton wrote, “His Excellency desires to avoid nothing more, than . . . the least Encroachment either upon the rights of the Citizens, or of the Magistrate.”
32
29
He was in the awkward position of having to juggle congressional and state laws as well as international customs, since the relatively new national legislature did not yet possess the legal foundation to trump laws derived from other sources.
30
So while he took care to respect civilian control over military tribunals where appropriate, Washington admitted that he was operating in a confused state of affairs. The process of examining individual cases, he confessed, was “somewhat irregular, and out of the common order to things” due to the chaos of war. He recognized, and Congress agreed, that “the distinction between Civilian and Military power” could not, in the circumstances, be maintained “with that exactness which every friend to Society must wish.”
31
Nevertheless, Washington conscientiously did his best to protect the rights of his fellow Americans. As Hamilton wrote, “His Excellency desires to avoid nothing more, than . . . the least Encroachment either upon the rights of the Citizens, or of the Magistrate.”
32
“His Excellency” was unique among the great revolutionary leaders of history in that he never declared martial law. He demonstrated that “a republican government could fight effectively in the face of overwhelming odds without resorting to the suspension of civil liberties.”
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Martial law, dating back as far as the fourteenth century in England, was in reality “not a law, but something rather indulged than allowed as a law,” and only in times of crisis.
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Basically, martial law enabled the military to create its own expedient rules, suppressing any legal rights so chosen. It was “not necessarily consistent with the law of the land, but rather provided for a rough, summary justice . . . on the grounds that ‘neither the time nor place suffer the tariance of pleading.’”
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But even while he was losing the war on various fronts, Washington was so committed to defending the rights of Americans that he made time for “the tariance of pleading.”
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Martial law, dating back as far as the fourteenth century in England, was in reality “not a law, but something rather indulged than allowed as a law,” and only in times of crisis.
34
Basically, martial law enabled the military to create its own expedient rules, suppressing any legal rights so chosen. It was “not necessarily consistent with the law of the land, but rather provided for a rough, summary justice . . . on the grounds that ‘neither the time nor place suffer the tariance of pleading.’”
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But even while he was losing the war on various fronts, Washington was so committed to defending the rights of Americans that he made time for “the tariance of pleading.”
Washington was intent on showing that a republican commander could effectively fight a war without trampling on civil authority.
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Rather than rule by military decree, he deferred to Congress and the state governments on civil matters. He had attained broad authority over the enemy and war tactics, but not over his fellow Americans. Although there certainly were some deplorable irregularities in the way his officers tried and even executed American civilians outside the direction of civil authorities, Washington opposed such actions, believing that the “temper of the Americans and the principles on which the present contest turns, will not countenance proceedings of this nature.”
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Rather than rule by military decree, he deferred to Congress and the state governments on civil matters. He had attained broad authority over the enemy and war tactics, but not over his fellow Americans. Although there certainly were some deplorable irregularities in the way his officers tried and even executed American civilians outside the direction of civil authorities, Washington opposed such actions, believing that the “temper of the Americans and the principles on which the present contest turns, will not countenance proceedings of this nature.”
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For most crimes, Americans were to be tried in civilian courts, with fair trials and representation as decided by Congress and the states.
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Washington supported this policy, stating that civil authorities “best know the Charge and Merit of the Case, consequently should ultimately determine it.”
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When it came to the crime of spying, Congress ordered military trials for Americans and Brits alike. Specifically, Congress ordered Washington to try the accused by a court-martial.
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Showing great deference to Congress and the states, he wrote, “it is not my desire, neither indeed is it within my power” to interfere with the determinations of the civil authority.
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Washington supported this policy, stating that civil authorities “best know the Charge and Merit of the Case, consequently should ultimately determine it.”
39
When it came to the crime of spying, Congress ordered military trials for Americans and Brits alike. Specifically, Congress ordered Washington to try the accused by a court-martial.
40
Showing great deference to Congress and the states, he wrote, “it is not my desire, neither indeed is it within my power” to interfere with the determinations of the civil authority.
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American Military Justice
J
oshua Hett Smith, being an American, fell within Congress’s purview. Therefore, despite Washington’s knee-jerk urge to hang him “on yonder tree,” Smith was afforded a trial.
1
Upon his capture, adhering to their resolution of August 21, 1776, Congress swiftly passed a specific resolution that called for Smith to be tried in a court-martial. This meant his case would receive a thorough inquiry rather than the quick summary judgment of a military commission.
2
Thus, even though he faced a military trial for his crimes, he would still receive the protections that Congress set up.
oshua Hett Smith, being an American, fell within Congress’s purview. Therefore, despite Washington’s knee-jerk urge to hang him “on yonder tree,” Smith was afforded a trial.
1
Upon his capture, adhering to their resolution of August 21, 1776, Congress swiftly passed a specific resolution that called for Smith to be tried in a court-martial. This meant his case would receive a thorough inquiry rather than the quick summary judgment of a military commission.
2
Thus, even though he faced a military trial for his crimes, he would still receive the protections that Congress set up.
Smith was soon brought before a panel of military officers. The sensational trial was held at the Old Dutch Church in the hamlet of Tappan, New York. In this dusty little room, Smith stood terrified as the court-martial commenced. He was formally charged with ten counts, which, upon his request, were consolidated into one: “You stand charged with aiding and abetting Benedict Arnold, late major general in our service, in a combination with the enemy, for the purpose of taking, seizing, and killing, such of the loyal soldiers of these United States, as were garrisoned in West Point.”
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He was in deep trouble.
3
He was in deep trouble.
During the initial proceedings, Smith was allowed to make his case for citizens being amenable only to the nonmilitary courts. He sought a civilian court because it would provide additional protections and trial by jury, thereby giving him a better chance of acquittal. He argued that Congress and General Washington, by bringing him before this court-martial, were effectively making “the military paramount to the civil authority.”
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4
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