Head Quarters Feby 8th 1783.
I have this Evening reviewed the Paper of the 29th ulto containing the Charges & the Specification thereof from B. Genl Hazen in behalf of himself and twenty four Officers of his Regiment against Lieutenant Thomas Edwards Judge Advocate of the Army; And find that the Complainants impeach Mr Edwards in three genl Charges, Vizt
|1.||“Want of Abilities and a regular judicious System in the Office and Duties of a Judge Advocate.”|
|2.||With “Want of Candour and Impartiality in conductg Prosecutions as Judge Advocate in Courts Martial.”|
|3rd||With “Neglect of duty in the Office of Judge Advocate.”|
As the Specification of the Charges are too prolix for Recapitulation in this place, I shall by Leave to refer to them & take the Liberty of making some Observations on such as require that notice.
1st General Head.
1. Article. I only observe that this Charge, if true, ought possibly to have had due Weight & Consideration in the original Appointment of Mr Edwards to the Office with which he is honored; but cannot at this day be a Subject of Prosecution before a military Court. As to the 2nd Article of Charge I am lead to observe generally, that it was wrong in any Court Martial, in a legal point of View, to admit any Matter to be offered in Evidence which was not mediately or immediately pertinent to the Charges before the Court, either on the part of the Prosecution or Defence; And it was equally so to admit of any Inferences or Observations which do not naturally and necessarily arise from the Tenor of the Evidence offered in the Prosecution or Defence of such Charges: But supposing it to be a fact that at a Court Martial wherein Mr Edwards sat as Dy Judge Advocate, certain Aspersions had been admitted by the Court & countenanced by him in a prisoners Defence which afterwards were judged to be erroneous; Yet whether Mr Edwards as Judge Advocate in Chief stands now amenable to the public for any injudicous or Total Want of regular System in that Department, when he was only a subordinate Officer; Or for an Error in Judgmt or a Wrong Decission of his own at that Time will hardly bear a Question; and there remains no doubt that he is not to be held accountable for a Wrong Decission of the Court, who, upon no principle whatever are bound by his Advice, Opinion or Direction; And from Mr Edwards’s, then rank and standing in the Army, It is not probable, as General Hazen does presume that the Court were wholly influenced by his Ideas of Propriety or Impropriety & decreed accordingly, in the Admission of extraneous Matters in Major Reids then Defence.
It is certain that Mr Edwards’s Ideas (if wrong before) appear to have been perfectly correct & consonant to the Rules of Legal Propriety, in refusing to admit a Charge in this Court founded on supposed Aspersions in a Paper called Major Reids Defence in a former Court Martial; which supposed Aspersions, if really such & not warranted from the Course of the Evidence admitted to be given on that Trial, that Court ought to have expunged from their Proceedings & put an End to further Litigation.
It is equally certain that the Admission of that Defence in Evidence against Major Reid would have been wholly improper unless the whole proceedings with the Orders therein could have been brought before this Court, that they might determine from the face thereof whether every Matter, supposed to be and charged as Aspersions, were not strictly warranted from the nature of the Case or the Evidence offered either on the part of the Prosecution or Defence is whether a proper Punishment had not been already inflicted for the same Offence. It is a Maxim in that Standard of Justice, the Common Law of the Land, that no man shall be punished a second Time for the same Default.
It is beyond a doubt that a Court Martial cannot be appointed to review & correct the proceedg of another Court, which has already had the Confirmation of the Genl in Chief & is carried into full Effect; who alone has the Controul of the Proceedings of such Court & will most probably reprobate the Errors of that Court & censure any undue Liberties which the too great Indulgence of the Judges has admitted to Defendants.
As to the 3rd Point. How far Mr Edwards handed to the Court, at the Instance of Major Reid, any erronious Quotations of Common Law Cases cannot be asscertained from the Proceedings & must therefore rest in the Testimony of Bye Standers uninterested in the Events of the Prosecution, in Which View neither B. Genl Hazen or any of the 24. Officers in whose behalf he interests himself can be considered; If Mr Edwards unfairly stated Cases to answer Mr Reids purposes it was uncandid & in that View criminal.
I must here observe that it is easy to admit Manuscript Quotations of Common Law Cases on any Occasion; It is wholly inadmissible in Common Law Courts, upon this just & prudent principle, that it is not the highest Evidence which the nature of the Case was capable of; And the Books from which such Cases were transcribed on the Spur of the Occasion, were certainly within the Reach of either Party & ought to have been adduced to the Court. Whatever may have been the Conduct of Mr Edwards on this Occasion it can only affect him personally & not the Decission of the Court on this point, as it appears to have been proper. The Remainder of this Specification is noticed under the second Head.
on the 4th Point I conceive the Judge Advocate acted Right & has acted with Propriety as Chief in receding from the supposed Error in Judgment & practice, which was imputed to him as a Subordinate Officer. On the 5th Point. Altho the Truth of it is questioned I conceive the Charge to be trifling & to reflect on the Judgment of the Accusers, in mistaking a matter of Delicacy for Want of Abilities & a regular judicious System.
I now come to the Specification under the second General Head, And on the first Article I only mention, that I have so fully noticed it in the second Article of the first General Head, that it would be waste of Time & paper to add more, than that it appears Mr Edwards has acted properly in departing from a Wrong Precedent, which took place at a Time when he was a Subordinate Officer & less versed in the Duties of his Office. 2ndly Whether Mr Edwards has been guilty of this Charge remains to be investigated as I mentd under the 3rd Article of the preceding Genl Head. As also whether he was guilty of neglect or Disingenuity respecting the Law Cases adduced.
I must here again notice, that Mr Edwards is held to be responsible for a supposed Criminality in determining not to profer to the Court, Cases which he thought inapplicable & in great Measure for the Decission of the Court, who appear to have judged for themselves on the State of Facts before them. But if Mr Edwards designedly neglected or suppressed any such Matters as were pertinent to the Issue to be tried & necessary for the Information of the Court he was criminal as a Man of Candour & Impartiallity; but whether or not this will affect the proceedings of that Court, where the Law Cases were Acts of Supererrogation is before noticed.
There are also charges against Mr Edwards for refusing the written ex parte Testimony of One Andw Luckey upon a Charge of fraud; which does not appear to have been the Act of Mr Edwards but the Decission of the Court, against its Propriety as it was not taken under the Sanction of competent Authority & agreeable to the mode prescribed.
The written Testimony of Captn Duncan was also refused with Propriety; because Captn Duncan was in Court & the Law prefers the highest Evidence possible, where the Court, from seeing the Witness in his Manner might judge of the probable truth of his Declarations upon both & the Parties might moreover cross examine him. And written Testimony is never admitted in Courts of Common Law, but in peculiar Circumstances where the Benefit of the Witness is Viva voce or living Testimony cannot be had on the day of Trial; This is rare & in those Cases it is done by an Order of the Court pendg the Suit & the Parties notified to attend.
the third Charge is neglect of duty, in suppressg the Testimony of Witnesses who were called upon to prove certain Acts of Major Reid which were imputed as Frauds & which acts were admitted by him, but their Criminallity denied & accounted for by Major Reid in his defence, So that all that Chain of Witnesses on that Point were unnecessary & for that Reason refused to be examined, Which Propriety of Conduct in Mr Edwards is censured by his Account.
The Remainder of the Charges under this last General Head are comprised in my Observation on the 2nd Article of the 1st Genl Head. And [secrecy] only to be dressed in different Language suited to paint the supposed Criminality of the Charges against Mr Edwards & his participation in the Crimes of Major Reid. And then I closed with a Repetition of the whole.
Thus I have committed to paper such Remarks as I thought pertinent in the State of the Charges exhibited against Major Reid; And find on a Comparison of the Memorial with the Charges that Complainants have not thought proper to avail themselves of every material Charge suggested in the Memorial. I have the Honor to be very respectfully Your Excellencys Obedt Servt
DLC: Papers of George Washington.