Boston May 1781
I have been honoured with your Excellencys letter of the 6th of April containing a refusal to grant me a new Trial and the reasons of such refusals.
I may be thought perhaps extremely pressing in continuing my applications to your Excellency on the subject of my affairs—That I am pressing I readily confess, but at the same time hope, that I am not more so than my distressed situation demands. Your Excellency will be pleased to remember, that I now stand convicted of no less a crime, than that of defrauding my brother soldiers of their bread—This is but another name for Stealing, and Stealing is a crime, that not only damns my character as an officer, but in civil life must denominate me a felon. Conscious of my own innocence should I fail to make use of every exertion to acquit myself of this crime I should be guilty of another of a deeper dye, than even that of stealing bread from the faithful soldiers. This failure would at once render me an accessary to the murder of my own reputation. The object of my applications to your Excellency is every thing, that can make life eligible. A good name is too sacredly valuable not to be most religiously defended.
That the proceedings of the court "were fair and regular" I will not pretend to deny: I am happy to believe them so, especially as such belief is correspondent to your Excellency’s opinion, “were well supported by the "evidence adduced on the tryall" I am as little disposed to deny or even entertain a doubt. Otherwise the gentlemen, who composed it must have been guilty of a crime, blacker than that of perjury—a crime which could arise but from a bosom devoid of every sentiment of honor or humanity. They must be doubly happy—They must not only possess a consciousness of a rectitude of conduct; but have met with the approbation of your Excellency.
Your Excellency observes, that you "have perused the proceedings of the Court together with whatever papers might throw light upon the subject" but still are of opinion, that a new trial cannot be granted; not because "no further light is thrown upon the subject" but for certain other reasons, which with your Excellencys indulgence I shall attempt to answer.
True it is "when called upon by the Court and asked whether I had any further evidence I answered explicitly No; and did not at that time, in the whole course of the tryal or in my written defence give the most distant hints, that I lacked any essential witness." I was so unfortunate as to be exceedingly misunderstood, If I was supposed to suggest, that no other evidence could at any time be produced of my innocence. Unhappily for me at that time I had no more. A tryal was ordered—when the evidence could have been procured, which I since have been able to obtain was at that period a matter of uncertainty. Besides I felt myself injured—my character wounded—I urged a tryal confiding not so much on witnesses to the innocency of my intentions and the uprightness of my conduct for defence, as on a consciousness of their existence. A knowledge of ones own integrity ever gives such confidence to the accused, as frequently to occasion a want of exertion to procure the evidences of it, that are necessary to convince the minds of others, and this leads to dangerous security. This was my situation at the beginning and through the whole course of the tryal.
Feeling no lack of innocence, till after judgment "I never gave the most distant hint that I lacked any evidence of it." If I since have been able to obtain evidences of the groundlessness of the charges exhibited, shall a new tryal be ordered that the integrity of an unfortunate man may appear?
I am answered by your Excellency in the negative "because it is impossible to convene the same Court again, and because no determination can ever be final, if months after the sentence is passed and approved a cashiered officer under the plea of fresh evidence, which in the whole course of the tryal was never hinted at can by demanding a new tryal take the chance of a second decision by a Court composed of officers different from the first; for if this is granted in one instance it can be refused in none. And because "A practice of this kind would not only involve the officers of the Army in unnecessary and irksome duty, but the public in great unnecessary and probably very frequent expences; for a cashiered Officer having nothing worse to fear and a chance of gaining will not be very saving of public expence. And it is impossible to judge of the force of his evidence by the ex parte depositions, that may be brought to favour his request."
The depositions I presented with my petition for a new tryal I flatter myself will not be viewed in the light of ex parte evidence, since your Excellency has the proceedings of the Court and can compare the evidence with them. And it is to be supposed that my prosecutors adduced all their evidence to support the charges exhibited against me. Every presumption will surely be made in favour of innocence. If then evidence can be brought to prove the falsity of these charges, and explain the evidence adduced to support them, which could not or at least was not had at the tryal, it can I conceive no more be denominated ex parte evidence, in the appropriate sense of the words, than all other evidence brought to prove a persons innocence.
If then the evidence is not to be considered of the ex parte kind, but as fair and impartial, I wish to know whether it be sufficient to prove my innocency. I conceive that it is so in the opinion of your Excellency, for every reason given for not granting the prayer of my petition is founded on the inconveniency of the measure merely, without a single suggestion of a want of sufficient evidence to refute the charges. The protection not the ruin of an innocent man, seems to be the object of social life. If this cannot be effected without bring a greater degree of trouble and distress upon society, than will be occasioned by the ruin of one of its honest members, perhaps a Government might be justified in making him a sacrifice to the general good. This is a hard and painful situation. And is it is necessary that this should be mine? Your Excellency will forgive me when I say, I conceive it cannot. It is true "The same Court cannot be convened again." And is it necessary? If the cause was to be tried again without adducing new evidence then most undoubtedly their ought to be the same Court, otherwise one Court might impeach the doings of another, and thus introduce jars discords, and confusions, but it quite otherwise when new facts are to be disclosed, for here the judgment of a latter Court can be no impeachment of that of a former: therefore no inconveniences I conceive will arise from appointing members on a second Court, other than those on the first.
Your Excellency observes "that no determination can be final" if the prayer of my petition is granted" for if a new tryal is granted in one instance it can be refused in none." The granting a new tryal, at least in the present case lies with your Excellency and you are to judge whether the reasons offered, why a new one should be granted are sufficient. It may be enquired then whether there can be any instance where such such sufficient reason may be offered "after a sentence is passed and approved?" Give me leave to state an instance to your Excellency—Suppose a complaint is exhibited against an Officer for malfeasance. Every witness to support the complaint perjures himself—The Court sentences the officer to be cashiered. Your Excellency approves the sentence. The perjury is afterwards proved and the innocency of the cashiered officer made abundantly to appear—He petitions for a new tryal—Surely in this instance it would be extremely hard, that an innocent officer and perhaps a faithful servant of his Country should be disgraced and beggared by the abominable business of his enemies, when it might be in the power of your Excellency to restore him to the confidence and wished for service of his Country. And I cannot conceive that it would follow, though this detection be made "some months after the Sentence be passed and approved" that because a new tryal might be granted in this instance, "that it could be refused in none." If a judgment is erroneous and can be proved soon a new tryal; and your Excellency is convinced of this evidence produced when the petition for a rehearing is offered, should your Excellency grant the prayer of the petition in this instance, I cannot conceive, that you can be held to grant the similar request of all, if no such sufficient evidence is offered to convince you of your petitioners innocence. If then your Excellency should be of opinion from the evidence I have offered you, that the judgment is erroneous tho "well supported by the evidence adduced on the tryal" should a new tryal be granted me, I cannot conceive that any inconveniences will arise from the measure.
Should these observations which I have taken the liberty to make to your Excellency be considered as just, the last reason for denying my request is already answered. If it does not follow that by granting my request for a new tryal your Excellency will be obliged to grant one on every application, then there may be a sufficient check to a "practice of this kind" which I readily agree "would not only" involve the officers of the army in unnecessary and irksome duty, but the public in great unnecessary and probably very frequent expences."
Your Excellency will pardon I hope the liberty I have taken in answering Your letter—To the justice of your Excellency I chearfully submit the matter With the most profound respect I am Sir Your most obedient and most humble Servant
DLC: Papers of George Washington.