Head-Quarters White Plains Friday Septr 4th 1778.
At a General Court Martial of the Line of which Coll Hazen was President—Captain Norwood of the 4th Maryland Regiment appeared before the Court charg’d with—1st—Publickly declaring and implying that he did not regard the Censure of the Commander in Chief, because the Facts set forth on his trial, to Him, were mis-stated—2ndly—With Conduct unbecoming an Officer and Gentleman in suggesting publickly that the Facts were mis-represented; which has an implied tendency to reflect on His Excellency, on the Court Martial, on General Smallwood or on the whole.1
3rdly—With declaring that General Smallwood has been guilty of partiality in his Case—That the General was no Gentleman and that he would make it his business to declare publickly [“]that General Smallwood was a partial Man and no Gentleman”—plead not guilty of the first and second charges—Captain Norwood requested the Court not to proceed on an examination of the third charge exhibited against him unless he was permitted to lay before them those facts which had occasioned the Expressions he had used relative to the Character of General Smallwood in this Case—he said he could justify them.
As such an Enquiry would lead to the trial of General Smallwood, which the Court do not think themselves authorized to enter on—and as passing sentence on Captain Norwood for Expressions he has made use of without hearing his reasons for those Expressions might do injustice to that Gentleman; The Court are unanimously of Opinion that they cannot with Propriety, enter into an Enquiry of said charge exhibited against Captain Norwood.
At the particular request of General Smallwood the Court deferred hearing the Witnesses on the 1st & 2nd charges exhibited against Captain Norwood ’till they should be empowered to try him for the 3rd likewise—The Court adjour[n]s ’till tomorrow 9 oClock.
Moses Hazen Colonel President.
Head Quarters August 22nd 1778.
Sirs—I have read and considered the proceedings of the Court Martial in the Case of Captain Norwood.
If our military constitution does not authorise the Court to investigate the 3rd charge exhibited against him, and to determine upon the same, and on the defence he offers, no Power can be derived from Me for the purpose—However I am of opinion that they have a Jurisdiction in the Case, and that tho’ a trial before such a Court, may in it’s consequences and operation bring in question the Character of a General Officer, yet that this Circumstance will not supercede their power of Enquiry as to the matters in charge, as they are not to pass sentence against the General Officer.
This I deliver as mere matter of opinion and without the least design or wish to influence the Court to proceed in the Case of Captain Norwood, if their sentiments are still the same respecting the Incompetency of their Power. I am Sir your most obedient Servant
Coll Moses Hazen President of the Court Martial now sitting—
Saturday August 22nd 1778
The Court of which Coll Hazen is President met after intermediate Adjournments.
A letter from His Excellency General Washington to the President respecting a former determination of the Court Martial, that they could not with Propriety enter into an investigation of the third Article in charge exhibited by General Smallwood against Captain Norwood, was laid before the Court.
They reconsidered their former decision & still remained of Opinion that it was founded on Military Principles & that they could not depart from it.
Captain Norwood observed to the Court that he had been arraigned before them, that he had plead to that part of his charge which they tho’t themselves competent to proceed on and that he now insisted on being tried on those Articles of the Charge exhibited against him, to which he had already plead.
The Court were of opinion that as Captain Norwood had plead to his charge, he had a right to insist on his trial and determined that they would proceed to an Investigation of the two first Articles of the Charge exhibited against Captn Norwood—The Court adjourns ’till Monday morning next 9 ôClock.
The Court having met on Monday the 24th adjourn’d ’till the day following and then proceeded to an investigation of the two first Charges exhibited against Captain Norwood as before recited.
General Smallwood made an objection to the Court’s proceeding on the two first Articles of the charge exhibited against Captain Norwood, unless they would include the whole of the charge, in which Case he was willing to give Captain Norwood the fullest Power of justifying those Expressions with which he was charged. The Court after considering the objection made by General Smallwood to their proceeding farther in the Case of Captain Norwood, were of opinion that it was inadmissible, since stoping their proceedings in consequence of this objection, would be supposing they had no right to continue them and consequently that any officer who has arrested another possesses the power of preventing the Supreme Military Court in the American Army from examining into the Merits of the Charge—The Court then proceeded to hear the Witnesses on the two first Charges and came to the following determination.
The Court having considered the Charges and the Evidence are of Opinion that Captain Norwood did say that he did not regard, or did not mind the Censure of the Commander in Chief, because the Facts stated to Him on his (Captain Norwood’s) trial were mis-represented, and are farther of opinion that this Expression had a tendency (tho’ Captain Norwood could not mean it) to reflect on His Excellency as well as on General Smallwood—The Court find Captain Norwood guilty of breaches of the 5th Article of 18th Section and of the 2nd Article of 2nd Section of the Articles of War & do sentence him to be reprimanded in general Orders.2
The Court acquit Captain Norwood of unofficer- and ungentleman-like behaviour and of reflecting on the Court-Martial.
Moses Hazen President.
The Commander in Chief finds himself under the disagreeable necessity of disapproving the proceedings of the Court because they have not tried all the charges exhibited before them—On each Fact agreeable to Precedent and common usage they ought to have given either a sentence of Acquittal or Condemnation; To this end their power & Jurisdiction seem to have been fully competent. The third Charge from it’s very nature implied a right of Justification in the prisoner and could not be discriminated in Point of reason from either of the preceding ones or any other—The matter in question between the Parties in this instance was the Character and conduct of one of them—the Prisoner by the strongest Implication acknowledges he had made the charge as stated and if permitted would justify it.
General Smallwood on the other hand consented and declared himself willing that he should have the fullest Power of doing it—This circumstance supposing there had been room for doubt before respecting the Court’s authority to try the matter was sufficient to remove every objection—Captain Norwood still remains in Arrest and is to be tried on the several charges exhibited against him.
At the same Court Joseph Askins a soldier of the 5th Pennsylvania Regiment was tried for desertion twice—2ndly for making his escape from a Guard and endeavoring to desert to the Enemy found guilty of the charges exhibited against him & sentenced to receive one hundred lashes.3
Also Peter Wood of the 1st New-York Regiment was tried for Robbery and Desertion—acquitted of the charge of Robbery but found guilty of desertion & sentenced to receive one hundred lashes.4 The Commander in Chief approves the sentences and orders them to be put in Execution tomorrow morning at the head of the Regiments to which said Askins and Wood belong.
Varick transcript, DLC:GW.
The orders for this date in the orderly book of the artillery brigade begin: “Returns of Blankets actually wanted in the Sevl Regts & Corps to be made immediately & given in at the Orderly Office” (NHi; see also Maj. Gen. Benjamin Lincoln’s orderly book, MHi: Lincoln Papers).
2. Article 2 of section 2 authorized punishment of “Any officer or soldier who shall behave himself with contempt or disrespect towards the general, or other commander in chief … or shall speak words tending to his hurt or dishonor.” Article 5 of section 18 authorized punishment for “disorders and neglects … to the prejudice of good order and military discipline” not mentioned in the other articles ( JCC description begins Worthington Chauncey Ford et al., eds. Journals of the Continental Congress, 1774-1789. 34 vols. Washington, D.C., 1904–37. description ends , 5:789, 807; Smallwood, Trials description begins Proceedings of Several General Courts-Martial, Held, By order of Brigadier-general Smallwood, on the Trials of Col. J. Carvil Hall, and Capt. Edward Norwood. Annapolis, 1779. description ends , 33–37).
3. Joseph Orskin was a private in Capt. William Oldham’s company of the 5th Pennsylvania Regiment. He deserted again in December 1778, rejoined the regiment in May 1779, and deserted in July 1779.
4. Peter Wood, who enlisted for three years’ service as a private in the 1st New York Regiment on 1 Feb. 1778, deserted on 15 April. He returned to the regiment in August but deserted again in October.