by Logan Beirne
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.27 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.28
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.”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.”33 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.’”35 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.36 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.”37
For most crimes, Americans were to be tried in civilian courts, with fair trials and representation as decided by Congress and the states.38 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.41
25
American Military Justice
Joshua 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.”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.”4
After deliberation, the court-martial ultimately rejected this argument. Refusing him a civilian trial, they stated that Smith would be tried by the resolve of Congress, “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 secret any of the subjects or soldiers of the King of Great Britain . . . .” Over Smith’s objection that they were establishing “a precedent dangerous to the liberties” of Americans, the court-martial began with hearing testimony.5
In what turned out to be a rather thorough inquiry lasting six weeks,6 Smith had a chance to question the many witnesses called by the court.7 He did his best to discredit them, but their evidence against him seemed damning. Some of the Continental Army’s top brass provided their accounts of the events surrounding Smith’s arrest and described him as a knowledgeable conspirator in Arnold’s plot. One such officer presented his evidence “with acrimonious severity, and malignant bitterness.” 8 The odds were stacked against Smith. Like Washington, these officers dearly wanted a conviction—not only for the sake of justice but also to dissuade future American traitors. Despite their desires, however, Smith was given the opportunity to rebut their accusations. He maintained that he was ignorant of the broader plot and believed he was aiding the American cause by following Arnold’s orders.
Testifying subsequently to the top brass were the two boatmen, Samuel and Joseph Colquhoun, who had rowed Smith out to the Vulture to pick up André mere days before. They were poor, hardworking men who spoke with “plainness, perspicuity, and firmness.”9 These simple boatmen were plunged right into the middle of a sensational trial. In fact, the night before he was to testify, Samuel was purportedly “taken into a field by some of General Washington’s officers,” who offered him a purse of gold if he would testify against Smith. He allegedly replied that “although he was a poor man, he could not swear falsely for money . . . and, if made rich by such means, . . . that he should be miserable for life.”10
Both Samuel and Joseph testified to all they knew and nothing more: that they had rowed Smith out to the Vulture, returned to shore with André, and then were unable to bring André back to the Vulture due to the approaching dawn and their own fatigue. They explained that they understood the mission to be “irregular and hazardous” but were assured it was well known to the American side.1
1 Their testimony did not further condemn Smith, but it did not exonerate him either. Washington’s strong case against him remained on track.
The prosecution next sought to refute Smith’s contention that he was ignorant of the plot. The court introduced witnesses who had observed him interacting with André as they traveled back towards New York City. These witnesses testified to what “appeared to them an intimacy between Major André and [Smith], that was of a very long standing.”12 This was damning to Smith since it suggested that he had long been in cahoots with André and Arnold, rather than being a pawn who unwittingly aided in one small task. To further demonstrate the absurdity of Smith’s plea of ignorance, the prosecution finally brought forth the coat that he had lent André to cover his British uniform. However Smith tried to argue it, this coat showed that he had helped disguise an enemy officer. In all, this case against Smith was a formidable one.
Smith, mustering his modest lawyering skills, presented his own defense for forty-eight hours. Standing alone in the small, dusty chamber, he reiterated that he was merely a private citizen obeying the commands of an American military leader, Arnold. He adamantly contended that he never knew he was partaking in any treachery. In the face of testimony against him by top military officials and other witnesses, as well as physical evidence implicating him, Smith argued that no one could definitively prove that he knew of Arnold’s plot. However, “[t]he reasons he assigned were improbable and his attempts at an explanation only drew a deeper shade over his candor.”13
Desperate to place a high burden of proof on the prosecution, he next argued that he should be presumed innocent until proven guilty, for “it was better ninety-nine criminals should pass unpunished, than that one innocent man should unjustly suffer.”14
Seemingly, the court-martial agreed with his contention that “the law demanded” his conviction to be “supported by the strongest testimony.” 15 After a fortnight of deliberation, the court-martial determined that the evidence presented was not enough to prove definitively that Smith knew of Arnold’s treacherous plot.16 Even though Washington had “anxiously meditated [his] destruction,” Smith was “favoured by the Law.”17
To the shock of many, Smith was acquitted. But he was not released. He was taken into custody by civil authorities on additional charges of aiding Loyalists. He did not remain behind bars for long, however. A slippery character, he soon escaped from prison disguised as a woman—perhaps the ugliest ever to walk the streets of New York—and fled to Manhattan, where he was protected by the Loyalist population. 18 Smith’s co-conspirator did not enjoy such a colorful ending to the saga. André, though accused in the same plot, was not afforded such a thorough inquiry because he was a foreigner. And so he met with a far less fortunate fate.
Days after André’s capture, Washington wrote, “Major André was taken under such circumstances as would have justified the most summary proceedings against him. I determined however to refer his case to the examination and decision of a Board of General Officers.”19 Despite the congressional resolution calling for spies to be tried by court-martial, Washington viewed it as his prerogative instead to try a foreign enemy combatant without “the formality of a regular trial.”20 André was accused in the very same plot as Smith, but Washington felt no obligation to provide him with any of the same legal protections. Although Washington’s thirst for vengeance was foiled by Smith’s court-martial, he need not worry about due process or such a high level of proof in his case against André, and “the general was determined to hang him.”21
Major André’s military commission was worlds apart from Smith’s court-martial. Whereas Smith enjoyed a systematic inquiry, the format of André’s commission and the rights allotted to him were left to Washington’s whim.22 His “board of inquiry” was not sworn to administer justice, but was simply meant to “examine and inquire.”23 Always meticulous about proper procedure, Washington charged the board with reviewing the evidence of André’s conspiracy with Arnold and his subsequent capture within American lines “in a disguised habit, with a pass under a feigned name.”24 He appointed a board of fourteen military officers to dictate the young man’s fate.
“The Board was a virtual who’s who of revolutionary figures” and news of the trial quickly found its way into headlines on both sides of the Atlantic.25 The gripping story of the villainous Arnold’s treachery and the dashing young André’s capture was disseminated widely through the cities, towns, villages, and farms, from the backwoods of America to metropolitan London. At the epicenter of the shockwaves was the hapless André, who stood before America’s top military brass inside the same stone church where Smith was tried.
In this makeshift courtroom, André’s life hung in the balance as he faced the “glowing and prosecuting enmity of General Greene.”26 Washington ordered the board “as speedily as possible, to report a precise state of his case, together with [their] opinion on the light in which he ought to be considered, and the punishment that ought to be inflicted.”27 Although “no precise charge was exhibited against him,” the investigation quickly went ahead.28
The United States’ case was based almost entirely on hearsay,29 as no witnesses were brought forward, “nor could any be brought who had the slightest knowledge of the secret part of [the Arnold] transaction.” Instead, the board relied on the written “statements of some facts” from André’s captors regarding his disguise and the documents found in his possession.30 To his dismay and frustration, André had no opportunity to confront these witnesses against him.31 He just stood, choking back his fear and resolutely believing in his own innocence.
When the board questioned him directly, André spoke passionately but was ultimately “defenseless, friendless.”32 Though he had no legal training, he was offered no assistance in defending himself. 33 He badly needed it. The only counsel he did receive was the mere suggestion that he “not hasten his replies to the interrogatories . . . and if the questions appear to him to be worded with ambiguity, to demand a fair explanation of them, which would be granted.”34
The board primarily delved into the transcripts of André’s answers to previous interrogatories during his captivity, in which he argued that he could not be treated as a spy since he had disembarked from the British gunship “in discharge of his duty, acting in obedience to his sovereign’s proclamation . . . to receive the terms and conditions of a returning rebel,” Arnold.35 He argued that once he was trapped ashore by the Vulture’s retreat downriver, he had become a “prisoner of war subject to Arnold’s orders.”36 He claimed that he merely complied with Arnold’s command to disguise his clothing because he was a prisoner attempting to escape from hostile territory.
Clinton and Arnold wrote letters on André’s behalf, pleading that he could not be considered a spy since he had come ashore “under the sanction of a passport of flag of truce” given to him by Arnold, who at the time had as much authority to extend the invitation “as General Washington himself.”37
After reviewing the evidence, such as it was, the board of officers entered into debate. The “amiable, virtuous, and humane” Baron von Steuben argued that André ought not be condemned.38 He reasoned that according to historical and contemporary writers on the subject, “an enemy, having once entered the lines of an enemy . . . under the sanction of the flag, . . . his personal safety becomes guaranteed from violation . . . .”39 The other officers were less interested in historical precedents, and less moved by “feelings of humanity, and sentiments of justice.” Steuben was overruled by a majority of the board.40
Although Washington and his officers knew that the real villain was the elusive Arnold, they sought to exact vengeance where they could.41 Within days of his capture, the board ruled that “Major John André, adjunct general of the British Army, ought to be considered as a spy from the enemy, and that, agreeably to the law and usage of nations, it is their opinion that he ought to suffer death.”42
André had little chance to mount a defense in this ad hoc sys
tem. Without a formal charge, a unanimous vote, representation, a thorough investigation of the background evidence, a right to confrontation, or even direct questioning of pertinent witnesses, he was sentenced to the gallows.43 And with that, the young officer was quickly readied for execution.
Meanwhile, André’s friends “were incessant in their efforts to rescue him from his impending fate.”44 Clinton and Arnold both wrote letters to Washington urging him to refrain from taking his rage out on André when Arnold was his real target. They implored Washington to trade André for American prisoners they held. Arnold even threatened that although “Clinton had never put to death any person for the breach of the rules of war,” he held many American prisoners whom he could execute in retaliation. Washington, however, was unwavering in his resolve. He would only trade André for Arnold.
Clinton despised the traitorous Arnold and desperately wished to save André, but he could not renege on his agreement to protect Arnold lest he discourage other American defectors and appear treacherous himself. Arnold was safe. Though the Americans hoped he would “undergo a punishment comparatively more severe” than André’s in “the permanent, increasing torment of a mental hell,” Arnold instead lived out the rest of his life after the war in England.45 André did not.
André approached his impending doom with “the manly firmness, and complacency of countenance, which spoke the serene composure of his mind.”46 He merely requested that he be shot rather than hanged, since the latter method of execution was perceived as more disgraceful. Washington, though he pitied the young man, refused this request since “the practice and usage of war . . . were against the indulgence.”47 Washington was not being cruel, but pragmatic: he needed to present a strong front against such treachery in order to win the war. He felt sorry for the young man, but had to execute him for the good of the nation. At no other time did he obey “the stern mandates of duty and policy” more reluctantly.48
