53
The clerk stood and read in a loud voice:
“Gentlemen of the jury, the indictment preferred against George Washington by the Grand Jurors for our Lord the King, sitting in the City of London, upon their oath, present...”
What Hobhouse heard as the clerk read on was nearly identical to the words in the draft indictment Lord North had given him to read in the library at 10 Downing. And also identical to the copy that had originally been served on Washington in the Tower. Except for two things, both of which he had noticed when Washington, just a few days earlier, had been presented with a revised indictment. They were important changes, which he would use to move to dismiss the case as soon as the clerk stopped reading.
When the clerk finished, Hobhouse rose and said, “My Lords, I move to dismiss the indictment against the prisoner on two grounds.”
Hobhouse thought the Chief Justice looked annoyed, but he nevertheless said in an even voice, “What are they, Mr. Hobhouse?”
“Thank you, my Lord. First, the original indictment spoke only of the allegation that General Washington had taken up arms against the King on July 3 in the year of our Lord 1775. The statute of limitations for high treason is three years from the date of the alleged treasonous act, and the act alleged took place five years ago.”
“You are bringing a motion to dismiss on that ground?”
“Yes.”
“And yet, Mr. Hobhouse, the superseding indictment, as revised, adds to the phrase ‘rebellion against the King with force and arms’ and the new phrase ‘and continuing to the present day,’ does it not?”
“Yes, my Lord, but that is not sufficient. It must specify with particularity the acts that are claimed to continue.”
The Chief Justice looked down at the Attorney General and said, “What says the Crown to that, Mr. Attorney General?”
“The Crown contends that the addition of the phrase ‘continuing acts’ is enough so long as actual evidence of continuing acts is presented during the trial itself. The Crown will present copious evidence of such continuing acts. The original indictment was drafted in haste and by lawyers for the Crown less skilled than those currently here.”
The Chief Justice raised his eyebrows, presumably, Hobhouse thought, at the rare admission of error by counsel for the Crown.
The Chief Justice said, “The motion is denied, without prejudice, Mr. Hobhouse, to your renewing it later if the Crown fails to prove up sufficient additional acts that took place within three years past of the date of the indictment.”
“Thank you, my Lord,” Hobhouse said.
“You have a second motion, I believe you said?”
“Yes. As your Lordship is no doubt aware, an indictment for high treason requires two witnesses to the alleged acts of treason, and the witnesses must be named. The original indictment named no person at all, and this revised one names only one witness, someone named William Alwick. In addition, the revised indictment says nothing about who Mr. Alwick is or where he might be found, and neither I nor General Washington know who Mr. Alwick is.”
“Have you made enquiry?”
“Yes, diligent enquiry, including of counsel for the Crown, who has, as of this hour, not responded.”
“Mr. Attorney General, what say you to that?”
“First, the case law, as it has evolved to give detailed meaning to the spare words of the treason statute, whose most recent enactment is now almost eighty years behind us, provides that it is sufficient to name the witnesses to the treason during the presentation of evidence. Which is what the Crown will do.”
“I think, Mr. Hobhouse, that he is correct about that,” the Chief Justice said. “Nor need the Crown provide you any information about witnesses before they testify. You are, of course, free to enquire of a witness’s background when the man is in the witness box.”
“Thank you, my Lord,” Hobhouse said.
Then the Chief Justice gave Hobhouse a small gift. “Now that we have disposed of the law here, Mr. Attorney General, the court would like to know why you have refused to give the prisoner and his counsel any information about this man Alwick, who is named in the superseding indictment. It seems at best somewhat rude.”
Clearly taken aback for the second time that day, the Attorney General started to say something that Hobhouse was not able to hear because he mumbled his words. Then he began again and said simply, “Although Mr. Alwick is named in the indictment, we have only within the last day or two gathered sufficient facts from him and about him to allow us to put him on as a witness. I will be glad, before he testifies, to inform Mr. Hobhouse of what we have learned.”
“Is he your first witness?” the Chief Justice asked.
“Yes.”
“Mr. Hobhouse, how would you like to proceed?”
Hobhouse had not expected to win either motion. Rather he had brought them so the jury could begin to see how unfair the proceeding was. For reasons he had never understood, the jury was not excluded from the courtroom while the lawyers made their legal arguments to the judge. He always tried to use the opportunity to begin to argue his case to the jury.
Hobhouse sighed audibly, looked over at the jury as if to say, “See what I have to put up with?” and said, “To save the time of the jury and the court, my Lord, I will instead question the witness about his background while he is on the witness stand.”
“Very well,” the Chief Justice said. “Mr. Attorney General, please call your first witness.”
“I would like to be able to make an opening statement, my Lord.”
“I think not. Permitting opening and closing statements is discretionary with the court. This is a simple case, with a clearly stated indictment. Let us just go forward. Please call your witness.”
“With all due respect, my Lord, I am not aware of a case in which the Crown has not been permitted to make an opening statement. A prisoner, perhaps, has been denied that opportunity. But I represent the King and Sovereign.”
“This is not the first time, Mr. Attorney General, that I have denied an opening statement to the Crown. Please call your witness.”
“Very well, my Lord.”
54
“The Crown calls Mr. William Alwick,” the Attorney General said.
Hobhouse watched an elderly-looking gentleman—almost bald, not very tall and with a distinctly crooked nose—rise from one of the benches near the front of the courtroom and walk unsteadily to the witness box, relying on a cane. He stood, kept upright only by leaning on his cane, and the clerk administered the oath.
Hobhouse had never set eyes on the man before. He looked over to Washington, still standing ramrod straight in the dock, who just shrugged.
When the clerk had finished with the oath, the Chief Justice said, “Mr. Alwick, would you prefer to sit on the bench that is there in the box? We ask witnesses to stand so that all may hear easily, but you look uneasy on your feet.”
“Yes, my Lord. I would be pleased to sit down, if it would not offend your Lordship.”
“Please do so, then.”
“Thank you, my Lord.”
“Where do you live, Mr. Alwick?” the Attorney General asked.
“I live at number 22 Berners Street.”
“Have you always lived there?”
“No. Until three years ago—1777, if I recall right—I lived in the city of Cambridge, in His Majesty’s Colony of Massachusetts Bay. In that same year I came here, to London.”
“Why did you move?”
“Many years ago my daughter moved here with her husband, who is in business here. When the Revolution—I mean, the rebellion—broke out, she insisted I come to London. She said it was much too dangerous to stay in Cambridge.” He smiled. “There was a hell of a lot of shooting around there, you know.”
The audience tittered and someone said, not so
sotto voce, “Still a hell of a lot.”
Hobhouse glanced up at the Chief Justice to see if he was going to take umbrage at the use of profanity in his courtroom by the witness, but he said nothing. Age excused many things.
“Were you still living in Cambridge in 1775?”
“Yes. And I saw...”
“Just a moment, Mr. Alwick, until I ask you another question. Do you remember any excitement in July of 1775?”
“Well, no. The excitement was way back in April of that year. That’s when the redcoats—I mean, the British troops—got into trouble on their way to Lexington.”
“Yes, of course. But try to think whether anything exciting happened in July.”
“Oh, yes, there was something all right. General Washington took the oath to take command of the army started by the Continental Congress.”
“Did you see that event?”
“Yes. You see, I lived on a street right near the Commons. And one day I heard a crowd, and I went out and there he was, big as life.”
“Who?”
“Why, General Washington, of course.”
“Do you see him in this courtroom?”
“Yes, the prisoner in the dock over there.” Alwick pointed at Washington.
“Are you sure it’s the same man?”
“Very sure.”
“Did you hear what he said when he took the oath?”
Alwick scrunched up his face. “I think so.”
“What did he say?”
“He raised his right hand and swore allegiance to the American states. I think he called them the United States or the Continental States. I’m not sure.”
“Did he say anything else?”
“That they were independent. And sovereign. Or words like that.”
“Anything else?”
Alwick looked around the courtroom, almost as if looking for guidance, and said, “I do not wish to speak ill of our king.”
“You may say it here in court without fear, Mr. Alwick.”
“All right. He said the states were no longer to follow George III and instead oppose him. Or words like that.”
“Did he say what he was doing there?”
“Oh, yes. He said he was taking command of the army.”
“Did he say which army?”
“Yes, the army our Continental Congress had chartered.”
“Thank you, Mr. Alwick. I do not have any more questions.”
Alwick started to leave the box when the Chief Justice said, “Please wait one moment, Mr. Alwick. Mr. Hobhouse might have questions for you.”
Hobhouse glanced at Washington, saw no expression on his face that would have instructed him one way or the other and said, “I have no questions of the witness, my Lord. Thank you for coming today, Mr. Alwick.”
As he spoke, Hobhouse heard a slight stir in the courtroom, as if the audience had expected him to attack Alwick’s clearly coached memory. But he had seen no benefit in doing it. Alwick had described a true event, and Hobhouse’s strategy was to show that the Crown could not produce two witnesses to the same treasonous event. He would then argue that the law ought to require there be two.
There was a pause as almost all in the courtroom turned and watched Alwick hobble out of the room. When the door had closed behind him, the Chief Justice said, “Mr. Attorney General, please call your next witness.”
Hobhouse spoke before the Attorney General could respond and said, “My Lords, before the next witness appears, I move that Mr. Alwick’s testimony be excluded from consideration by the jury. The alleged act to which he testified took place six and a half years ago, and the three-year statute of limitations for high treason has long ago expired.”
“My Lord, the act testified to by Mr. Alwick is the start of a continuing series of actions leading down to the present,” the Attorney General said. “And we will show that.”
“The motion is denied for the moment,” the Chief Justice said. “Mr. Hobhouse, you are welcome to bring it again, if you choose, at the close of the Crown’s evidence. Let us now have the next witness.”
55
“The Crown calls General Benedict Arnold.”
At the mention of the name, there was a tremendous stir in the courtroom, until finally the Chief Justice, with a sharp tone, silenced everyone. The Attorney General, in an act of showmanship Hobhouse assumed he had thought out well in advance, nodded to one of his men, who was standing by the rear door of the courtroom.
The man opened the door, and General Arnold stepped through, wearing the standard blood-red coat of a British officer, with the single star and crown of a brigadier general on the epaulettes. He struck Hobhouse as slightly shorter than average height and somewhat stout. He was dark-skinned, with a rather prominent nose and a florid complexion. His hair was black, powdered, but without either wig or hat. Yet he didn’t cut an athletic figure, as Washington did, and despite walking assisted by a cane, he nonetheless walked with supreme confidence, greeting people left and right as he made his way to the witness box, almost as if he were a war hero. Which perhaps he now was to some in Britain.
Hobhouse looked over to Washington, who had Arnold fixed in a hard stare, but otherwise showed no emotion. Arnold, he noticed, avoided looking directly at Washington as he moved forward, although he seemed to cast an occasional glance at the man in the dock out of the corner of his eye.
How had Arnold got here? The last Hobhouse had read, months ago, he was leading British troops somewhere in the colonies. Creating time to get him back to London must have been the real reason North had several times delayed the trial. It had not been, as he had claimed, to give the negotiations still more time.
Hobhouse felt duped. But maybe there was advantage in it. No one liked a traitor.
After Arnold was sworn, the Attorney General said to his witness, “What is your profession?”
“I am a professional soldier. A brigadier general in His Majesty’s Army.”
“Have you always been a soldier in His Majesty’s Army?”
“No. I was for a time a soldier in the rebel army in America.”
“How did it come to be that you transitioned from one to the other?”
“I had always felt an allegiance to His Majesty, a pull, if you will, of loyalty, and I finally realized that that was where I belonged.” He paused. “And that was where my true liberties would be best protected.”
The Attorney General had, as Hobhouse and his fellow barristers liked to say, pulled the sting on his witness, bringing out the bad things himself so that Hobhouse couldn’t do it later.
Hobhouse looked over to Washington. His face was red and his lips were compressed in a hard line. It was perhaps a good thing that the General was being guarded by soldiers. The look on his face suggested he might otherwise leap out of the dock and throttle the witness with his bare hands. It was the only time Hobhouse had ever seen the General come close to losing his composure.
Arnold was continuing to testify. “...and in terms of liberties, I came to realize that although, while living in America, I had no direct vote for members of Parliament, and in fact Parliament represented all of us, whether we were living here or in the colonies. Like a father looking after all of his children.”
Hobhouse stifled a laugh. The Attorney General was putting the government’s political arguments into the mouth of his witness. In a normal case, Hobhouse might have objected to the testimony as being far from relevant to the proceeding. But he would let it go and see if he might make use of it in the cross-examination.
“General Arnold, did you spend time with George Washington during the years 1778, 1779 and 1780?” the Attorney General asked.
“Yes.”
“Do you recall any specific times?”
“Yes. In late May of 1778, I met with Washington in a Pennsylvania town call
ed Valley Forge. It was not long after the Americans had won a battle against the British, and Washington was joyous.”
“Do you recall anything in particular he said to you?”
“Yes. But to repeat it, Mr. Attorney General, I feel I must seek leave, for it was vulgar.” He glanced up at the bench.
The Chief Justice, without waiting for the Attorney General to respond, said, “You are under oath, General. You must truly state what he said, and we will forgive any vulgarity you repeat.”
“Thank you, my Lord,” Arnold said. “Washington said to me, ‘We have struck a blow against the bloody King. When we finish this war, let us hope he will no longer even retain his throne.’”
Hobhouse glanced at the jury. They did not look especially shocked at the use of the vulgarity. Probably, he thought, many of them used it not infrequently themselves. But in private. To use it publicly about the King might well get you whipped.
Washington, however, was not able to contain himself. “That is a damnable lie,” he said. “He has made it up.”
The Chief Justice looked at Washington. “The prisoner is not to speak unless the court calls upon him to do so.”
“My apologies, my Lord,” Washington said.
The Attorney General resumed his questioning. “General Arnold, do you recall any other instances in which you met with Washington in person in those years?”
“There were dozens of meetings. Another I recall well was upon assuming command of the rebel forces in Philadelphia in May of 1778. Shortly after, I met with Washington to discuss the defences of the city.”
“Do you recall any of your conversation from that meeting?”
“Yes. I recall that he said, ‘The King’s men have run away from here, and with God’s help we will run them from every one of our cities.’”
When Hobhouse looked over to Washington, he was shaking his head back and forth and clearly having difficulty complying with the Chief Justice’s instruction to remain quiet.
The Attorney General went on to elicit from Arnold several more supposed meetings with Washington in which he had allegedly said things suggesting that he was at war, not just with Parliament and its policies, but with the King himself.
The Trial and Execution of the Traitor George Washington Page 28
