The Trial and Execution of the Traitor George Washington

by Charles Rosenberg

  The Crown rested its case, and the Chief Justice said, “Mr. Hobhouse, I assume you have motions you want to make before you put on your own witnesses.”

  “I do, my Lord.”

  “Let us hear them.”

  58

  Hobhouse rose from his seat.

  “My Lord, the prisoner, General Washington, moves to dismiss the charge of treason lodged against him by the Crown on the grounds that the Crown’s evidence does not prove the elements of the crime of treason, as stated in the Treason Act of 1695, 7 and 8 William 3, chapter 3, as amended in 1708, 7 Ann, chapter 21. Each and every element of the crime must be proved by the Crown in order for the jury to find the prisoner guilty, and the Crown has not done so.”

  “All right, please let us hear your argument.”

  “First, the jury should be instructed to entirely disregard the testimony of Mr. Alwick because the alleged events he described—General Washington supposedly taking command of the American army—took place, by Mr. Alwick’s own testimony, in 1775, well over three years ago. That is outside the three-year statute of limitations for treason.”

  “What about the indictment’s assertion of continuing acts, Mr. Hobhouse?”

  “Ah, yes, the Crown has cleverly inserted the words acts of continuing treason in the indictment to try to get around the problem of evidence that is too old. But there is nothing in the statute or the cases to suggest that an act that took place more than three years ago can for some reason be considered just because there are other acts brought up that are within three years.”

  “All right, Mr. Hobhouse,” the Chief Justice said. “But what about the other four witnesses we have heard, all of whom testified to events that are less than three years in the past?”

  “The first of those, General Arnold, was by his own testimony quite clearly a collaborator of General Washington. Under the clear law of treason, there must be a second witness to corroborate his testimony if the collaborator’s testimony is to serve as the basis of a conviction.”

  “Wasn’t it corroborated by the testimony of the three retired soldiers?”

  “No, my Lord, the prisoner contends the General’s testimony was not corroborated because those three witnesses testified to having observed different acts than General Arnold did. It is the prisoner’s contention that the corroborating testimony must be to the exact same act as the one that General Arnold allegedly observed. They contend they saw something different.”

  The Chief Justice said, “Even if the prisoner’s arguments in this regard are persuasive—and I am not saying they are—what of the act the three retired soldiers witnessed? They all testified, it would seem to us, to the same exact act—the General on his horse, leading a battle. All within the last three years.”

  “Their testimony was from two hundred yards away. Who can identify someone on a horse at that distance? We contend their insistence on the cooks’ near-miraculous eyesight was testimony purchased by the Crown through bribes given to the witnesses in the guise of expenses. The prisoner urges the court to instruct the jury to ignore entirely the testimony of those witnesses.”

  Hobhouse paused, turned to look at Washington, who was sitting behind him and, seeing no sign that Washington wished him to make any further argument, said, “Those are the prisoner’s arguments to dismiss, my Lord.”

  “Thank you, Mr. Hobhouse. Mr. Attorney General, do you have any arguments in response?”

  “I would, my Lord, add three considerations to those the court has already so ably noted. First, there is at least one case, Bradley v. Bomler, in which a court held that the statute of limitations could be extended backwards to permit the jury to consider testimony about acts of treason which took place prior to three years before the indictment—so long as at least one of the other treasonous acts alleged in the indictment was less than three years old and part of a pattern of conduct.”

  “What year was that case decided, Mr. Attorney General?”

  “1710, my Lord.”

  “Seventy years ago?”

  “Yes.”

  “All right, please go on.”

  “I would add, my Lord, that there is nothing in the law of treason to suggest that the testimony of an alleged accomplice can only be corroborated by the testimony of someone else who observed the exact same treasonous act. Testimony about activities fitting into a pattern of treasonous conduct will do.”

  “What about Mr. Hobhouse’s argument on behalf of the prisoner that the testimony of the three retired soldiers should be entirely disregarded?”

  “We could all see that Mr. Hobhouse enjoyed trying to bring down those three old men who had so ably served their country. The decision as to whether to believe them or not is entirely up to the jury.”

  “We will now retire briefly to deliberate,” the Chief Justice said.

  Hobhouse did not anticipate a victory. But the motions had been worth making because the jury got to hear them.

  Very quickly, the Chief Justice and his colleagues filed in and resumed their seats.

  The Chief Justice, reading from notes, said, “On the motion to exclude the testimony of Mr. Alwick, we grant the motion on the ground that the alleged act of treason testified to by him was in 1775, clearly beyond the three-year statute. Nor can the Crown bring that alleged act within the statute of limitations by citing other acts that took place later, especially if they did not include the same set of actions.”

  He paused and continued, “We next turn to the motion to exclude the testimony of General Arnold. We conclude that General Arnold was a collaborator and further conclude that collaborating testimony must be to the same act. There was no such testimony. The jury will accordingly be instructed to disregard the testimony of both Mr. Alwick and General Arnold.”

  Hobhouse was stunned. He had argued many motions of dismissal in his career, but had won only one. His victories had always been given to him by juries. This victory was against the Crown, which rarely lost such motions. It could turn out to be a hollow victory because the three retired soldier-cooks had testified to Washington’s having carried out a clear act of making war against the King. But because he had no legal arguments to exclude their testimony, it would all come down to whether the jury believed they were at least trying to tell the truth, that they remembered the year correctly and that at a distance of two hundred yards, they would really have been able to positively identify Washington.

  He was brought back to reality by the Chief Justice saying, “Mr. Hobhouse, does the prisoner have witnesses to present?”

  Hobhouse twisted around so that he could see Washington. “We are still agreed that you will not testify?”

  “Correct.”

  He turned back to the Court. “The prisoner has no witnesses to present, my Lord.”

  “Very well.”

  The Attorney General rose and said, “I am prepared for closing argument, my Lord.”

  “One moment, Mr. Attorney General.” The Chief Justice bent his head to confer with his colleagues, first on one side then the other. Turning back to the courtroom, he said, “We have decided to dispense with closing arguments. The case is simple and straightforward, and through their motions, with the jury listening, counsel has made, we believe, the same arguments they would make in a closing.”

  “Thank you, my Lord,” the Attorney General said and sat back down, showing no emotion. Hobhouse assumed that he was in fact quite angry. He had no doubt looked forward to condemning Washington in ringing terms and seeing it written up in the newspapers. As for Hobhouse, he thought the Chief Justice was right. The jury had already heard all of the arguments.

  The Chief Justice addressed the jury. “Gentlemen, I shall now instruct you on the law and sum up the facts. The law of treason is not complicated. To take up arms against His Majesty, the King, or to lead others in doing so is high treason. Attacking His
Majesty’s Army is as much high treason as attacking the King himself.”

  He looked down at the jury as if trying to discern if they had understood. Not that Hobhouse had ever seen a judge actually ask the members of a jury if they had truly understood the instructions.

  Seemingly satisfied, the Chief Justice continued. “The facts here are also quite simple. First I instruct you not to consider the testimony of Mr. Alwick or General Arnold, or anything concerning papers allegedly written by George Washington. No persuasive proof was brought forward that he wrote them. Thus, you may only consider the testimony of the three retired soldiers. To convict the prisoner, our treason law requires that you believe the testimony of at least two of them.

  “Each of the three testified, in remarkably similar words, that they saw the prisoner on a white horse, leading troops in battle against British forces—in the same battle. If you find their testimony persuasive, the prisoner is guilty of high treason.

  “To be persuaded of that you must believe both that they were actually at the battle and, if so, in a position to see that the man on the horse was the prisoner. The prisoner contends none of the three could see well enough to tell because they were two hundred yards away.”

  Hobhouse felt his heart beat faster. He had never before heard a judge, in summing up the facts for the jury, remind them of the main argument made by the prisoner’s lawyer.

  The Chief Justice finished up. “You must of course have some standard by which to decide. I would put it to you this way. If the scale should hang doubtful in your mind, and you are not fully satisfied that the prisoner is guilty, you ought to lean on the favourable side and acquit him. But if you are fully satisfied in your conscience that the witnesses told the truth about who they saw on the horse, then you should convict.”

  Hobhouse was pleased with that instruction. It emphasized, much more than those given by most judges, the need for conscience to play a role. That at least hinted to the jury to consider matters beyond the evidence. Such as how they felt about the rebellion.

  “Gentlemen of the jury, I now send you to deliberate,” the Chief Justice said. “The clerk will hand you a form in which you are to fill in a unanimous verdict of guilty or not guilty. If, after deliberating in all seriousness, you are unable to reach a unanimous verdict, you should tell the Sheriff and he will notify me. The Sheriff will now escort you to a room for your deliberations. Let no one interfere.”

  Everyone watched as the jury filed out.

  Hobhouse turned to Washington and said, “Excellency, there is little point in leaving the courtroom. Your guards would go with us, and then, likely, bring us back very soon thereafter. These deliberations do not usually take very long.”

  “How long is not very long, Mr. Hobhouse?”

  “For felony cases, it is often no more than a quarter of an hour. Treason might take a little longer.”

  “What is your sense of the case?”

  “I think there is a possibility of an acquittal, but it is a small possibility.”

  “I think there is no possibility at all,” Washington said.

  The jury was out for almost an hour. After they were led back in by the Sheriff, the judges returned to the bench, and the Chief Justice asked the man whom the jury had selected as its foreman if they had reached a verdict.

  “We have, my Lord,” he said.

  “Please give the paper on which you have written your verdict to the clerk, who will read it.”

  All eyes in the courtroom watched the transfer of the paper to the clerk, who read it to himself and handed it to the Chief Justice, who read it, handed it back to the clerk and said, “Mr. Clerk, please read the verdict.”

  The clerk read, “‘We the jury, in the charge of high treason against George Washington of His Majesty’s colony of Virginia, for taking up arms against His Majesty, said sovereign Lord George III by the grace of God of Great Britain, France and Ireland, King, defender of the faith, find George Washington guilty as charged.’”

  There was a rustle in the courtroom as all the heads, which had been facing the bench, turned in a breath to stare at Washington, who showed no reaction.

  Hobhouse felt slightly sick.

  The Chief Justice gave no indication whether the verdict had surprised him or not, or pleased him or not. He simply said, “The Sheriff will take the prisoner to a place of confinement, to be designated by the Attorney General. Sentence will be imposed at a time to be specified by the court. We will in the meantime consider whether to recommend clemency to the King.”

  The guards immediately surrounded Washington. As they began to lead him away, he turned to Hobhouse, bowed slightly and said, “Thank you for your efforts, Mr. Hobhouse. They were much appreciated.”

  59

  North had wished fervently to attend Washington’s trial in person. Unfortunately, that would have been seen as highly inappropriate. Instead, he had had to wait impatiently in the library for reports. But with the Old Bailey almost two miles down the river from 10 Downing, the trial news brought every hour by messenger was always stale.

  The report that had interested him most was about the testimony of General Arnold. The messenger reported that Arnold, in his own view and the view of others seated near him in the courtroom, had been bested by the prisoner’s lawyer and made to admit his own treason.

  “And, my Lord,” the man had said, “those around me in the gallery expressed amazement that the Crown had permitted Arnold to be called, given how easy it would be—and was!—for the prisoner’s lawyer to throw his own treachery back in his face.”

  “We had our reasons,” North said. “Thank you for your report.”

  “Thank you, my Lord, for giving me the opportunity to be of service to you.”

  Later in the day North received the news that Washington had been convicted of high treason. The verdict came as no surprise. What did surprise was that the court had delayed sentencing so that it might consider whether to recommend clemency. Clemency?

  Why would such a traitor be even considered for clemency by an English court? He could not fathom it. He sighed. Clemency, if recommended, would come formally from the King. But the decision whether to grant it would in truth be the government’s. In other words, his. But to grant it would take away all of his bargaining power with the Americans.

  Not long after, as he sat contemplating the situation, Jacob Hartleb knocked and entered. “My Lord, Colonel Black is here and wishes to see you. He apologizes for having no appointment.”

  “It must have importance. Please show him in.”

  After Hartleb left, and North and Black had exchanged greetings, Black declined an offer of something to drink and said, “I saw something in court today that I thought you should be made aware of.”

  “In the testimony? Or in the verdict?”

  “Neither. It was a man that I saw talking to General Washington.”

  “You accord Washington his title?”

  “He is deserving of it, I believe. My apologies if that offends.”

  “It does not. Washington somehow exudes that he is a great general. Who is this man you speak of?”

  “I don’t know his name, but he has a vivid scar across his cheek.”

  “Ah, yes. I met him briefly when he attended a negotiating session. I believe he is Washington’s personal physician. Forecastle, I think his name is. He arrived with the second boatload of Americans. The one that came in January, a couple of months ago, not long after Abbott arrived.”

  “I doubt he is a physician. Or at least I doubt that he is only a physician.”

  “Who is he, then?”

  “He is a senior member of Washington’s personal guard.”

  North sat bolt upright. “What?”

  “Yes. We encountered him in the woods a couple of days before we reached Washington’s headquarters. He was on horseb
ack, wearing the plumed helmet of Washington’s Commander-in-Chief Guard, leading a patrol.”

  “Are you certain? There are many men with bayonet scars from war.”

  “Quite certain. He menaced us back then, and I shall never forget him. After I saw him today in court, I left the courtroom. But I returned later for the rest of the trial in order to be absolutely certain I was not mistaken.”

  “Did he see you?”

  “I think not. I came in through a side door, and I could see the side of his face, although I doubt he could see mine. And I don’t know if he would remember me as strongly as I remember him.”

  “From the log of Washington’s visitors I have been shown—which includes a remarkable number of retired British officers, I might say—Forecastle has been to the Tower almost every day. It is surprising the two of you have not crossed paths.”

  “My Lord, I’ve visited Washington mostly in the mornings, before visitors are permitted. I check the visitor log each day at day’s end, and have never seen the name of any person to cause concern. I would have no reason to suspect an entry that said only, ‘Forecastle, physician.’”

  “I am not criticizing you, Colonel.” North got up, walked to the window and looked out for a few moments. Eventually, he turned and said, “Colonel, this explains, I think, a great deal.”

  “What does it explain, my Lord?”

  “We have been receiving reports from our agents within the Tower that they see signs of a plot afoot to rescue Washington. Visitors to Washington are appearing, as if by accident, to take the wrong exit route, almost as if they were exploring. Still other visitors talking with him in hushed tones, as if they were intent on not being overheard. But our agents have not been able to decipher the details, or deduce who the leader might be.”

  “You think Forecastle might be the one?”

  “If he is who you say he is, yes.”

  “Is there anyone else?”

  “For reasons I cannot put my finger on, the first would be Mr. Abbott, their so-called Ambassador.”