Head quarters, Highlands, February 20. 1782.
Inclosed your Excellency will find copy of return of the two New Hampshire regiments, some time since called for. The original was forwarded to major general Lincoln, agreeable to your directions in a former letter.
Abel Whitcomb, a soldier in the Massachusetts line, was executed here the last week, for repeated desertions, changing his name & inlisting again. Two others who were sentenced to suffer death for desertion, were pardoned at the gallows. I hope this will meet your approbation.
The troops are recovering from the smallpox. I apprehend between twenty and thirty have died in the course of inoculation—but a considerable part of them by a putrid fever, supposed to be principally owing to a habit rendered almost putrid by the itch. As soon as the men are generally through, returns of the whole who have had the distemper, and the number who have died, shall be called for and transmitted to your Excellency.
Nine Hessian deserters and two English have come here within a day or two past—part of them with their arms, &c. Colonel Delancy’s horse made an excursion towards Horseneck last friday, plundered and damaged several houses, and took some cattle; but the militia turning out with spirit drove them back, retook nearly all the cattle, killed one or more of the enemy, and wounded several.
The powder and arms from the eastward, are generally come on. They unfortunately went by the way of Claverack—and colonel Hughes writes me, were on the borders of a disaffected country—Colonel Hughes expected when he wrote, to have the whole brought down in a few days.
The members appointed for the general court martial on major-general McDougall, met yesterday at Fish-Kill, when general McDougall objected to the president, and three of the members as your Excellency will observe by the inclosed papers which are just sent me. How far general McDougall has a right to object to members, and what objections are supposed to be sufficient, is not for me to determine. I submit the matter as it stands to your Excellency. I have the honor to be, With the highest respect, Your Excellency’s Most obedient servant
DLC: Papers of George Washington.
Fishkill Feby 19th 1782
Agreable to your order of the 14th the members appointed for the Court Martial for the tryal of Major General McDougall, assembled yesterday at the house of Mr Cooper in the Village of Fishkill.
When the names of the President and Members were mentioned to General McDougall, he objected to myself, Colonel Grosvenor, Major Spurr and Major Throop.
I shall not deny the right a prisoner has to make Challenges to the Officers detail’d as President or Members of his Court, and that even peremptorily and without shewing cause. But as General McDougall did proceed to shew the cause of his objections to me, it is become my duty to shew that the matters he alledg’d are not good cause of Challenge, and ought not to be admitted as such. The reasons for which a juror in a Court of Law, as well as in a Court Martial may be Challeng’d have generally been founded on the following or some of them (viz.) that the Juror hath found an Indictment against the party for the same cause. that he hath been a member of a Court of Enquiry on the matters charg’d to the party. that he hath prejudg’d the matter or given his opinion beforehand that the party is guilty—that he hath shewn evident marks of Ill will; or threatened revenge against the party. declar’d enmity between the parties. that he hath a claim to the forfeiture which shall be caus’d by the parties condition. That he shall profit by the conviction of the party. That he is infamous and hath been convicted of Treason, Felony, Perjury &c—None of these has General McDougall been pleas’d to alledge; on the contrary he declar’d he has the highest opinion of my honor and the goodness of my heart; he founded his objections to me, on the proceeding of the Court Martial for the tryal of Major General Lee, of which Court I was President, and in which there was in his opinion many capital defects, want of precision, leading questions put to Witnesses which were or ought to be inadmissable in any Court; in short that as I had been President of a Court which had proceeded so very irregularly I was unfit to preside in a Court where matters of so high importance as the in present case would be brought into question—I believe that in answer to those objections it would be sufficient to say, that such reasons were never yet admitted in any case of common Law, or Court Martial to be good cause of Challenge—But if a man be incompetent to the duty of a President or Minister of a Court Martial he must be incompetent to the holding a Commission in the Army, for it is the duty of every commission’d Officer in it, to sit at Court Martial; and this incompetency can never be admitted, untill an Officer has been legally convicted, and the record produc’d, which has not been done in the present case and therefore I conceive the cause assigned to this Chall[enge] is not good.
The Commander in Chief when he order’d me to this tour of duty, was in possession of General Lees tryal, and of all the materials General McDougall could have had access to in forming his objections; he has declar’d his sentiments by the appointment; But I must submit it to you whether, I shall proceed in forming the Court immediately or defer it untill you can have the Commander in Chiefs sentiments on the Challenge.
The rights of a Prisoner on tryal are very sacred, and should be handled with the utmost delicacy, if he makes an improper Challenge he should be made sensible of his error, as I sincerely wish General McDougall may be in this case, before I be oblidg’d to proceed in my duty—I directed the Judge Advocate to make immediate report to you of what passed at the meeting, which I doubt not he has done. I have the honor to be with great regard and Esteem Your most Obedient and very humble Servant