Finally, the Attorney General said, “I have no further questions of the witness, my Lord.”
“Mr. Hobhouse, I assume you have questions,” the Chief Justice said.
“I do, my Lord, but I function under a burden. This witness is a complete surprise, and he is testifying about conversations with my client of which I have no knowledge. I therefore respectfully request a brief adjournment so that I may have the opportunity to consult with General Washington about the veracity of Mr. Arnold’s testimony.”
Hobhouse noticed that his use of mister in place of General had caused Arnold to scowl.
“I think we can improve upon your situation,” the Chief Justice said. “I have not failed to notice that Washington is in effect instructing you and that you have no actual solicitor in this matter. If the prisoner can restrain himself, I will permit him to sit on the solicitor’s bench behind you so that you may more easily consult with him.”
“That would be most appreciated, my Lord.”
The Attorney General rose. “I object, my Lord. This is most unusual. The prisoner could be a physical threat to all of us.”
The Chief Justice raised his eyebrows. “He will continue to be guarded by the soldiers who have guarded him so far. Your objection is overruled. And, Mr. Hobhouse, you may take a few moments after the prisoner is moved to consult with him with regard to your cross-examination. The court will be in recess while you do that.”
“Thank you, my Lord,” Hobhouse said. “I will be prepared to cross-examine the witness when the court returns.”
56
Hobhouse’s conversation with Washington took a while, as Washington told him about Arnold’s history in the American army as well as the plot to turn over West Point to the British. They had just finished as they heard the clerk calling everyone back to order. Washington told Hobhouse, “I would avoid belittling him. He takes offence easily and it will likely be more effective to get him to admit what he did and let it speak for itself.”
“I might want to belittle him and get him to explode.”
“Ah, I see. Well, I leave it to you, then.”
“Did he describe his meetings with you accurately?”
“What he said about our meetings had the ring of truth because we did meet when he says we did. But I am quite certain I did not mention the King. My effort was and is to defeat the British Army. I have never thought the King was truly our personal enemy.”
“Yet you were leading a war against the King.”
“Yes, of course. He is the sovereign who must be defeated if we are to be free.”
“I want to show that Arnold is a turncoat and not to be trusted. I want the jury to dislike him and disregard what he says, be it true or false.”
“A turncoat and a traitor, most certainly. Indeed, the rumour was that he was planning to turn over not only West Point to the British, but me as well, in some sort of trap.”
When, a short while later, all had reassembled, with the judges back on the bench and Arnold in the witness box, Hobhouse rose and said, “Mr. Arnold, what was your rank in the rebel army, as you have called it?”
He saw Arnold stiffen, presumably because he had addressed him as mister. He felt Washington tap him on the shoulder.
“Concede him his title, Mr. Hobhouse,” he whispered. “He is no longer a general in our army, but he is in theirs. And he was once a great one. Civility will profit us here.”
Hobhouse resumed. “Pardon me, sir. General Washington has instructed me to address you as General.” He could feel the tension drain out of the courtroom. “General Arnold, what was your rank in the rebel army?”
“I was a general.”
“What rank of general?”
“I was a major general.”
“And in the British Army?”
“I am a brigadier general.”
“A demotion?”
“I would not put it that way. The British Army is much larger, so there are more people ahead of me in seniority than there were...previously.”
“Would it be fair to say you switched sides?”
His mouth twitched. “I might put it differently.”
Hobhouse had been taught never to give a witness an opening to talk at length. Only to answer yes or no questions. But he decided to risk it.
“How would you put it, General?”
“I would say I recognized who was the true sovereign of our country and came back to him, with regrets that I had strayed.”
“But before you came back you were, just months ago, waging war against that very king to secure the independence of the colonies, were you not?”
“Yes, but no longer. Now I am waging war to preserve His Majesty’s kingdom against a rebellion.”
“You came back here, crossing an entire ocean, solely to testify against General Washington, did you not?”
“I would not put it that way. I was leading troops in the colonies when I was recalled here. I didn’t know the purpose.”
“But now you do, don’t you?”
There was no answer, and Hobhouse chose to press the question differently.
“While you’ve been here, have you been assigned any task other than testifying in this trial, General?”
“Not yet.”
“Have you been ordered to return to America when this trial is over?”
“Yes.”
“Thank you. Now let’s talk about something else. How long were you a general in the rebel army?”
“I don’t recall exactly.”
“Would it have been from 1776 to September 1780?”
“That sounds correct. Before I resumed a path of loyalty.”
“Other than the rank of brigadier general, did you receive anything else when you chose what you call the path of loyalty?”
“I’m not sure I understand the question.”
“Did you receive any money?”
“I received a pension.”
“For how much?”
The Attorney General rose. “My Lord, I object to this line of questioning. It has become wholly irrelevant to what I asked this witness, which was about his meetings with Washington and what Washington said in those meetings.”
“It’s entirely relevant, my Lord,” Hobhouse said. “It goes to this man’s character and his reputation for truthfulness, which this jury is certainly entitled to consider as it weighs his testimony.”
“Your objection is overruled, Mr. Attorney General,” the Chief Justice said.
“I believe the question pending, General Arnold, was the amount of the pension you received for changing sides,” Hobhouse said.
“It wasn’t for changing sides. It was for information.”
“Fine. How much for the information?”
“I was promised an annual income of several hundred pounds and an annual pension of 360 pounds.”
“I noticed you walk with a cane. Is that from a war injury while you were serving on the rebel army side?”
“Yes, I was wounded.”
“At the battle of Saratoga?”
“Yes.”
“Was General Washington involved in that battle?”
“Yes, although he wasn’t personally present.”
“He was the Commander-in-Chief, is that correct?”
“Yes.”
“And you were a general there?”
“Yes.”
“So you collaborated with him on overall plans for that part of the war, even though he wasn’t personally there?”
There was a pause, as Arnold considered the question, clearly wondering if the unusual wording was somehow a trap.
The Attorney General started to rise.
“Please sit down, Mr. Attorney General,” the Chief Justice said.
Hobhouse knew—and assumed t
hat the judge and every other lawyer in the room knew—that if Arnold and Washington were collaborators, Arnold’s testimony would require another witness to corroborate his story in order for it to be used as proof of treason. The Attorney General had presumably planned to find a way, via an objection, to let Arnold know that.
Finally, Arnold said, “Yes. We were.”
Washington whispered something in Hobhouse’s ear. Hobhouse nodded and said, “General Arnold, when you were serving in what you now call the rebel army, was that what you called it?”
“No.”
“What did you call it?”
Arnold paused, not answering.
“I would remind you, General, that you are under oath.”
He heard someone in the audience mutter, “Not that his oath matters much,” followed by laughter. Hobhouse glanced over to see if the jury was laughing. One was. The rest were not.
Finally, Arnold, ignoring the tittering, said, “Sometimes we called it the Army of the Continental States of America. Sometimes we called it the Army of the United States of America.”
“Did you ever just call it the American army?”
“Occasionally, yes.”
“In 1778 did you stand up in public and swear an oath of loyalty to the states, swearing to do everything in your power to protect them from King George III and to support their independence?”
“Yes. But even then I had my doubts about the rebellion, about the way Loyalists were being treated by the so-called Patriots, which was poorly and unfairly.”
“You took the oath with reservations, then?”
“You could say that.”
“Did you take your oath today with any reservations?”
“No, because it was to our king, the true sovereign.”
“One final thing, General. You planned, did you not, to hand over the plans for the defence of West Point to the British Army?”
“Yes.”
“Did you also plan to find a way to hand over General Washington himself to the British?”
“No, I did not.”
“It was only one act of treason you meant to carry out, and not two?”
“I will not answer that.”
“I didn’t think you would. I have no further use for this witness, my Lord.”
The Chief Justice looked down at the Attorney General. “Do you have any questions of the witness?”
“Yes. General Arnold, you mentioned poor treatment of Loyalists. To what did you refer?”
“Loyalists, even if they had done nothing but refuse to sign an oath to the rebellion, were beaten, tarred and feathered, forced from their homes, had their property confiscated and sometimes hanged. Amongst other terrors visited upon them.”
“Thank you. I have no further questions.”
“Nor do I,” Hobhouse said.
“You may be excused, General,” the Chief Justice said.
As Arnold walked past the Attorney General’s table, Hobhouse heard him say, quite distinctly, “I told you this was a poor idea.” Hobhouse looked over to the jury to see if they’d heard it. But if they had, they gave no sign of it.
Actually, Hobhouse thought, it was a truly stupid idea. They must be desperate because no other officer could be found to testify. He began to wonder what it would be like to win.
57
The Crown’s next witness was a gentleman named Joseph Pickles, who had been a common soldier in the British Army, now retired to the town of Chester, north of London by, he testified, “about three days’ journey if the weather be good.”
He served in America and claimed to have seen Washington on a white horse, leading his “rebel troops” in battle against Pickles’s British infantry unit “somewhere in New Jersey” late in 1778, which would have put the action well within the three-year statute of limitations. To prepare to cross-examine him, Hobhouse reminded himself what he had been taught about cross-examination in his first year as a pupil in Fletcher Chambers—question the witness’s ability to perceive, question the quality of his recollection and try to show his bias. Fortunately, Mr. Pickles, however he had appeared earlier in his life, by then looked old and doddering, which should, Hobhouse thought, make for a fine, if delicate, cross-examination.
“It is your witness, Mr. Hobhouse,” the Chief Justice said.
“Thank you, my Lord. Mr. Pickles, were you on the front lines during the battle you described?”
“No, my Lord. As I said earlier, I was a cook. Well behind the lines.”
“I am not a lord, Mr. Pickles. Addressing me as ‘mister’ will do quite fine.”
“All right.”
“Mr. Pickles, how far from the man on the horse were you when you say you saw General Washington astride that horse, leading troops in battle?”
“Well, he might have been two hundred yards away.”
“That is quite a long distance, would you not agree?”
“Yes, my... Mr. Hobhouse. It is. But I saw what I saw.”
“Could you see his face clearly?”
“Maybe not so clearly. But he is a big man—” he gestured at Washington “—and the man on the horse—a white horse—was very big.”
“Are there any big men in the British Army?”
“A few, yes.”
“Did you ever see any other big men in the American army?”
“Well, probably I did.”
“Did the man you saw have on the same uniform as General Washington does today?”
Pickles looked again at Washington. “I...am not sure. He was far away.” And then, realizing how he had just damaged his own testimony, said, “But not so far away I could not see who it was.”
Washington leaned over and whispered to Hobhouse, “I did lead my troops in battle like that at times. It helped inspire them. But he is no doubt remembering a battle in New Jersey in late 1776, not 1778.”
Hobhouse glanced over at the jury. They seemed attentive, and he wished there was a way to prove to them—and to the court—that the battle in question had taken place in 1776. But Hobhouse had no witness from whose mouth he could elicit that testimony. Certainly, it would not be worth having Washington testify for that point alone. There was too much risk he’d be asked whether he was at the time leading the American army there, no matter what the date. So he tried the “are you sure” approach. Once in a while it worked.
“Mr. Pickles, are you sure the battle you remember was in 1778?”
“Yes.”
“You never confuse dates?”
“Not usually.”
And then Hobhouse decided to take a risk. “Mr. Pickles, what year is it right now?”
“1780. I’m sorry—I mean 1781.”
Hobhouse glanced over at the jury. None looked impressed at Pickles mistaking the year when the old year was less than four months behind them. It was a common mistake. If only he’d said it was 1779. Hobhouse moved on.
“Mr. Pickles, how far away from London is Chester, did you say?”
“It is about a three-day trip by coach.”
“Did you pay your own way here?”
“No. The government gave me a stipend.”
“To cover the coach, meals and lodging along the way and your meals and lodging here in London?”
“Yes.”
“Do you expect to have any left over by the time you get back to Chester? And let me remind you that you have taken a solemn oath.”
“Well, yes.”
“Quite a lot?”
“Maybe not by the standards of a high-placed man like you, Mr. Hobhouse, but by mine, yes, certainly.”
“Did your wife come with you?”
“Yes.”
“I have no further questions, my Lord.”
The Attorney General asked only one question and it was, Hobhouse
thought, the only one really open to him.
“Mr. Pickles, are you certain you saw Mr. Washington on a horse leading his troops in battle in 1778?”
“He was a general, not a mister, but yes.”
After that, the Crown produced two more retired witnesses, who were also retired army cooks and who, like Mr. Pickles, purported to have seen Washington on his horse in the exact same battle, from the same distance away, but also placing it in 1778, and not 1776. Of the last witness he had asked as his final question, “Were you all cooking together?”
“Yes, sir,” the man had said. “We was all cooking up a very big pot of beans.”
“Were you not, then, looking into the pot instead of at the battle?”
That got a laugh from the jury, but the witness was clever enough to respond, “No, sir. The battle was getting close to us, and we was watching it and talking whether we should pack up and move back. That’s when we saw that man—” he pointed to Washington “—on his horse.”
In the end Hobhouse judged he had managed to cast at least some doubt on the testimony of each of the cooks. Unfortunately, it was not much. Also unfortunately, they were all old soldiers, which had made them risky to attack aggressively. In truth, he had kind of liked them himself, and that was a bad sign.
Finally, the Crown attempted to introduce a series of captured battle plans and orders, purportedly written in Washington’s own hand and dated 1779. But Hobhouse managed to show that while Major Temple, the Crown witness who proffered the documents, could say from whom he had gotten the documents (a clerk at the War Department), he could not say where the clerk first obtained them or where the documents had been in the two years since they’d been written if the dates were to be believed. Nor could the Crown produce a witness to persuasively authenticate Washington’s signature or handwriting. The court, as a result, excluded all of the orders from evidence. Of course, the jury had heard the whole thing, and when Hobhouse looked over at them, a couple of them were whispering to one another. But it was hard to tell if it meant anything. On the other hand, the exclusion of the documents by the court might mean he’d be able to win the case on legal arguments alone.
The Trial and Execution of the Traitor George Washington Page 29
