The Trial and Execution of the Traitor George Washington

by Charles Rosenberg

  “A jury takes such testimony less seriously?”

  “Yes, Excellency, in my experience that is the case.”

  “Mr. Hobhouse, it would be foolish for me to deny that I have been for more than five years, and still am, the Commander-in-Chief of our army. Were I to say otherwise, sworn or unsworn, it would be immediately apparent to the whole world that I have uttered a bald-faced lie. The lie would dishonour not only me but the army and the people I serve.”

  “I understand your position.”

  “If I decide not to testify, will I still have the opportunity elsewhere in the trial to state my reasons for leading the armed forces of our Revolution?”

  “Yes. If you are convicted, you will, at your sentencing, be able to speak your mind about why you have done what you have done.”

  “Good. I will prepare something. Although I must say, Mr. Hobhouse—” he smiled his usual tight-lipped smile “—I have been so impressed with your insights and skills that I will not be shocked if I am acquitted.”

  “To be candid, I will be so shocked I am likely to fall over,” Hobhouse said. “Acquittals in felonies are not unheard of. In treason trials, they are rare as hen’s teeth.”

  “Wasn’t Lord Gordon acquitted of high treason in his trial in February?”

  “Yes, but on a technicality that doesn’t apply to you.”

  “Have you been able to learn who the government’s witnesses against me might be?” Washington asked.

  “No, and they are not required to disclose them in advance. Their peculiar reasoning is that more truth will arrive if we are surprised by the witnesses.”

  “Perhaps they will be able to find some British officers who fought against me who are willing to testify. Despite what was said by the ones who came to visit me.”

  “I recall that you mentioned their visits. Do you think they will come to the trial to show their support, even if they do not testify?”

  “I asked them. They will not. But I am sure they will not testify against me. They gave me their word. And whatever else officers of the British Army might be, they are, in my experience, men of their word.”

  As he was about to leave, Hobhouse said, “Ah, Excellency, there is one other piece of news I had meant to convey to you. Do you recall our discussing, many weeks ago now, that in mid-January, your American troops had defeated British troops in a major battle at a place in South Carolina called Cowpens?”

  “Yes, I recall it. Led by that excellent soldier General Morgan.”

  “One of the morning papers reports that the British general who forwarded the report of the battle to the government had neglected to mention something.”

  “What was that?”

  “That each time the British attacked the American line, the American troops shouted your name.”

  Washington smiled his usual close-lipped smile. “That is flattering to hear, Mr. Hobhouse. Which paper reported that?”

  “The Daily Advertiser.”

  “Which is an anti-North paper, according to what I am told.”

  “Yes.”

  “Well, even if we assume that story to be true, it was our troops who won the battle. They are so much better trained now than they were at the beginning, when raw courage was what drove their success. So I must assume they would have won that victory even without my name to inspire them. If that is truly what really happened.”

  “You doubt it?”

  “It sounds like the type of story that circulates in armies and, over time, is expanded beyond all recognition. As will no doubt happen with the facts of my trial, no matter what the outcome.”

  PART III

  April 16, 1781

  51

  Hobhouse walked into the Old Bailey courtroom in which Washington was to be tried and looked around. It was a familiar place, one he had first set eyes on the day after his twentieth birthday. Back then he had been only a pupil and had watched and learned as others from Fletcher Chambers tried cases.

  When he got his own cases, they had been simple misdemeanours for charity clients. Later, after he had been formally admitted to the bar, he had moved on to trying high-value civil cases and felonies for wealthy merchants or aristocrats who could afford what Fletcher Chambers charged. Very few had been charged with capital crimes.

  But then there was the client who had been so charged, and had been convicted and promptly executed under the “bloody code,” the draconian law that sentenced so many to death for so many crimes. Samuel Fletcher had insisted that Hobhouse attend the man’s execution, saying, “You attend the parties that celebrate the acquittals. Now you must also go to this. We represent our clients unto the grave.”

  With that one exception, Hobhouse’s cases had played to a largely empty room. Today, by contrast, the courtroom was abuzz with spectators talking and laughing. Every seat in the public galleries, which rose up in rows at the back and on the sides, was filled, including a small section set aside for reporters for British, German and even a few enterprising American newspapers, who had found the trial so important that they had hired British subjects to send them reports, day by day, ship by ship. And, of course, the daily British papers would be transported to America every day on the very same ships.

  The judges’ seats were as yet unoccupied. But instead of the usual three chairs, there were four. Because this was a treason trial, the fourth would be occupied by the Lord Chief Justice, William Murray, the Earl of Mansfield. A former Attorney General, he had a reputation as a legal reformer. Indeed, nine years earlier, in Somerset’s case he had effectively abolished slavery in England by holding that it had no basis in English law. And only two months earlier, he had presided over Lord Gordon’s acquittal. His presence on the bench gave Hobhouse hope.

  The counsel tables were in front, below the bench. The right-hand one was already occupied by the Crown Prosecutor, who in this case was the Attorney General for England and Wales himself, James Wallace, who had been only recently appointed to the post and had been a Member of Parliament for almost fifteen years. Wallace had been in office less than nine months and Hobhouse knew very little about him except that he was rumoured to be in poor health. Next to the Attorney General were four assistant prosecutors. Hobhouse was to be the sole barrister at his own table, although he had brought along a scrivener to take notes and a barrister in training—a pupil—from Fletcher Chambers.

  Once Hobhouse had seated himself, he twisted around to look back towards the dock, the mid-courtroom raised platform on which the prisoner, unless infirm or elderly, stood during trial. To his surprise, it was empty. Usually, the prisoner was brought into the courtroom before the proceedings began.

  A moment later, the clerk announced the Lord Chief Justice, who strode in and took his seat, followed in turn by the other three judges. When all were seated, the Chief Justice said, “This court is now in session. The spectators are admonished to maintain their silence. Please bring in the prisoner.”

  Moments later, Washington, surrounded by six guards, was escorted to the dock. He had been permitted to wear his uniform, but it still had no insignia of rank or country.

  The Chief Justice said, “Mr. Washington, are you represented today by counsel?”

  Washington stood mute. The Chief Justice tried again, but still got no response.

  Hobhouse sucked in his breath, stood and said, “My Lord, the problem arises because the prisoner in the dock is a general and regrets, with all respect, that he is unable to respond when addressed as mister.”

  The Chief Justice blinked and said, “Well, this is indeed a new kind of problem. Mr. Attorney General, will the government concede the gentleman his claimed rank?”

  The Attorney General stood and said, “My Lord, the government will not so concede. The prisoner in the dock is associated with a ragtag rebel army to which the government accords no official status.”
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br />   The Chief Justice had a reputation for both eloquence and dry humour, and did not disappoint. “Would that ragtag rebel army, Mr. Attorney General, be the same one that defeated His Majesty’s Army at Saratoga?”

  The Attorney General, clearly nonplussed, said, “Yes, but that makes it no less a rebel army, whose so-called officers are not officers of any recognized sovereign, but just especially impertinent traitors.”

  The Chief Justice said, “I see. Well, isn’t the gentleman sitting there in the back—” He pointed to Abbott, who was dressed in his usual finery, although to Hobhouse’s eye, his clothing looked even finer and more flamboyant than usual. “Isn’t he the man who styles himself the Ambassador Plenipotentiary from the Congress that has appointed those very officers?”

  “Yes, so I understand.”

  “And isn’t he also the man with whom the First Minister has been negotiating an attempted end to the war being waged by those rather effective impertinent traitors?”

  “Yes,” the Attorney General said again. “But that makes Mr. Washington no more a general than the man in the moon.”

  The Chief Justice smiled. “Are you suggesting that the First Minister thinks he is negotiating with the man in the moon?”

  “No, my Lord, of course not.”

  “I will confer with my colleagues on the issue of how the prisoner in the dock is to be addressed.”

  He turned first to the two judges on his right and whispered with them, then to the judge on his left. While he conferred the buzz in the courtroom rose again.

  Finally, he looked up and said, “Silence, please,” and when the room had quieted continued, “We cannot resolve this issue right at this moment, but we in any case do not see a need to resolve it...right at this moment. Mr. Hobhouse, if you will confirm that the prisoner in the dock was born George Washington, and that you are his counsel in this trial, we can proceed without resolving the General question, which we leave for a later time.”

  “To my understanding, he was indeed born George Washington,” Hobhouse said. “And I do represent him.” He glanced back at Washington, who had a bemused smile on his face.

  The Attorney General had started to rise, clearly intending to say something, but the Chief Justice cut him off mid-rise. “Mr. Attorney General, we have resolved the issue for now. Please stay seated.”

  “Thank you, my Lord,” he said and fell back into his chair.

  “We will now proceed with jury selection,” the Chief Justice said. “Bailiff, please bring in the first twelve juror candidates from the pool and seat them in the jury box.”

  Hobhouse glanced over at the jury box, which consisted of three rows, each with four chairs. There, he thought, will soon sit the men who will determine the fate, not only of General Washington, but perhaps of the war and the entire American nation.

  Now he would be called on to decide which prospective jurors to approve and which to challenge. He would be permitted thirty-five peremptory challenges. For those, he would need provide no reason. As soon as he uttered his challenge, the man would be gone. The Crown, by contrast, needed to show cause for any challenge, although it could wait until the end of the trial.

  He watched the first twelve file in and occupy their seats.

  52

  The first juror to present himself was Edward Hults. Under questioning by the Chief Justice, he said he lived on Queen Anne Street and was a freeholder—he owned the home he lived in. That made him eligible to vote and serve. He said he was “in trade.” Hobhouse judged him to be around forty years old.

  “Does either counsel have questions for Mr. Hults?” the Chief Justice asked.

  “I do not,” the Attorney General said.

  “I do,” Hobhouse said. “Mr. Hults, do you have any sons, grandsons or nephews who have served in the army or the navy or who are serving now?”

  The Attorney General was on his feet. “Objection, my Lord. These are not proper questions.”

  “Why are they not?” the Chief Justice asked.

  “Because the direction of these questions suggests that military service is a disqualification to serve as a juror. Which would be an insult to the nation.”

  “I have said no such thing,” Hobhouse said. “I have simply asked a question.”

  “I will wait until Mr. Hobhouse receives his answer and either challenges this juror or does not before I rule on your objection,” the Chief Justice said.

  While the colloquy had been going on, Hobhouse had been reflecting on an earlier conversation with General Washington on the subject of jurors with military service. They had agreed that they could not possibly exclude from jury service all those who had served in the military or had family members who had. Not counting veterans, there were currently over one hundred thousand soldiers from England and Wales in the army alone.

  “Mr. Hobhouse, please resume your questioning.”

  “My question, sir, to remind you before we were interrupted, was ‘Do you have any sons, grandsons or nephews who have served or are serving in the army?’”

  “No, I do not. Although I myself was a soldier in one of our wars in Germany, about ten years ago.”

  “Thank you for serving your country,” Hobhouse said. He glanced up at Washington, still standing in the dock, who gave a slight nod of his head.

  “My Lord,” Hobhouse said, “we have no objection to this juror.”

  Looking to Washington with each juror choice was something they had worked out in advance. Most prisoners in the dock were seen by jurors as cowed. Washington thought giving his visible consent to each juror would show him as strong and in charge, but help make the juror feel a friend.

  “Mr. Attorney General, do you have any objection to Mr. Hults?” the Chief Justice asked.

  “No, my Lord, we do not.”

  “Well, Mr. Hults, you are our first juror. Please remain in your seat while the questioning of others continues.”

  They ran with fair speed through another fifty-two prospective jurors. Twenty-five were routinely eliminated because they were not landowners, and another sixteen were dismissed when Hobhouse exercised some of his peremptory challenges. These included one man who was the fifth generation of his family to serve as an officer in the navy and one man who announced that if Washington was not a traitor, then he didn’t know what the word might mean. Of the others Hobhouse challenged, he just had a bad feeling about them. For a few of them, it was their body language. In ways he couldn’t quite articulate they seemed to walk and talk like sure guilty votes. For others, it was irrational superstition. He challenged one juror with red hair simply because he had never gotten a favourable verdict from a jury that contained one. Washington had permitted him his head on the peremptories.

  When they were down to only twelve remaining in the box, all of whom had been questioned and drawn no objection from Hobhouse, the Chief Justice said, “Mr. Attorney General, do you have objection to any of the gentlemen who remain in the box at this point?”

  “No, my Lord, the Crown has no objection to any who remain.”

  Hobhouse read the Crown’s failure to lodge a single objection as a strategy to tell the jury of the Attorney General’s supreme confidence in his case. The jurors who remained had been able to observe as juror after prospective juror was objected to only by Washington’s side. It was not a good thing, but there was nothing to be done about it. And he was satisfied with the jury they had chosen.

  “Let us take a brief respite,” the Chief Justice said. “Please return when the clerk goes out into the hallway and calls you back. The prisoner is to remain in the dock.”

  As Hobhouse turned towards the dock, intending to talk to Washington, he saw Forecastle enter the courtroom, presumably to pretend to check up on his supposed patient. Washington’s guards seemed to know the man and paid him no attention as he approached the General.

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bsp; Hobhouse had months ago concluded that whatever Forecastle was, he certainly wasn’t a physician, or at least not only a physician. He watched as Forecastle started to talk to Washington. At the same time, though, Forecastle kept glancing around the courtroom, almost as if he were studying its layout. Even more curious, another man, a British Army officer in uniform, came in, stopped dead in his tracks and stared fixedly at Forecastle for a few seconds. Almost as if he recognized him. A distressed look crossed the man’s face, and he bolted from the room.

  Hobhouse walked up to the dock, greeted Washington and then said to Forecastle, “Did you notice the British Army officer who was staring at you just now? The man in uniform?”

  “No, I didn’t,” Forecastle said. “What did he look like?”

  “Trim, dark hair, maybe in his early thirties.”

  “It does not remind me of anyone I know,” he said.

  “Excellency, did you see him?”

  “No, I did not.”

  “If I see him again, I will point him out to both of you,” Hobhouse said.

  Forecastle left shortly after that and Hobhouse said, “I think, Excellency, that we have chosen a good jury.”

  “Which doesn’t mean you believe I will be acquitted, does it?” Washington said.

  “No, Excellency, it does not, but I will try my best.”

  “You are doing a fine job, Mr. Hobhouse. Whatever happens, I am grateful. As I have no doubt the American people are.”

  “You distinguish them from the people of Great Britain?”

  “I do. We are all members of the great English-speaking peoples. But we are now separate.”

  Just then the clerk began to call people back into the courtroom. With everyone seated again, the judges took the bench.

  “We will now resume,” the Chief Justice said. “Let us swear in the jury.”

  After that was done, the Chief Justice addressed the clerk. “Please read the indictment, and please stand while you do so, so the jury might hear clearly.”