Pompton 13th January 1783
It is painfull to me to Reflect that I should be under the necessity of addressing your Excellency on a matter so Delicate and of so much Importance to a Corps of officers, as must be the Subject of this letter.
We beg leave to Sollicit not a favour but common Justice, we claim a Right to be heared on matters which so nearly reguards us, and which the nature of them we cannot redress ourselves for it is Impossible for any individual among us by any act of Personal Bravery, to convince the army our friends or the world at large, that we have not Robed and Cheated the Soldiers of the Stipulated price of their own Blood and wantonly Emberressed and wasted public property—which we stand amongst other things Publickly Charged with on Record. and which unless we can wipe off by Some public hearing must be left as a Legacy to Posterity. we do not mean or wish any court to interfere with matters that fall within the Compass of mortals to Redress themselves we Conceive that a part of the present Injuries Complain[ed] of is totally beyond our reach in any such point of view.
I beg to suggest to your Excellency the appointing a Board of Genl officers or others, to hear the Complaint in the memorial as far as Regards Major Reid and only let the Board assertain what is and what is not legal testimony—and point out some few general rules for the Conduct of Courts martial. and then leave it once more in the option of Major Reid to prosecute us on the Charges which he has Publicly impeached us with or abide a prosecution himself.
I could not with propriety make [ ] in the memorial altho I have therein taken up matters on a Larger Scale than I otherwise should have done had it not been to shew the necessity of adopting by authority, Some general Rules for the government of Courts martial in other cases as well as ours—which I hope will atone for the length of the Memorial and for this letter on the Subject. I have Honr to be Dear General Your most obedt and most Devoted Humle Servant
P.S. Whatever may be the fate of Major Reids present Trial. I have to Request that he may not be indulged with leave of absence untill those other matters are settled.
DLC: Papers of George Washington.
At Vanduzers near Camp Janry 10th 1783.
Having been appointed by the Officers of the Regiment to attend the trial of Major Reid in order to produce the necessary evidence to the Court which we did accordingly on thursday the 2nd Instant. Major Reid was arraigned on the charges and afterwards told by the President that if he meant to object to the defence being brought against him now was his time. Major Reid said he did object to its being brought against him and read a paper which he said contained some cases of common law, he also gave some other reasons to support his objections—we begged leave to have ’till Monday to refute his objections which was granted, the Judge Advocate plead in favour of having it thrown out and said it was a new matter that he had no precedent for. During the Adjournment we procured every law Authority which he had quoted and found he had taken nothing but what answered his purpose when if he had taken the whole sense every one of his quotations made against himself upon which we drew up an instrument of writing wherein we thought we obviated his objections by stating fully his extracts and many other cases of Common law and also other reasons in which we offered to prove a preceedent as the Judge Advocate held out to the Court its being new and without Preceedent. When the Court met we gave it to the Judge Advocate who read part of our quotations of common law which he spoke against after the manner of an attorney for his client and suppressed our other reasons which he did not communicate to the Court exept one Short paragraph after which the Court was cleared and they determind the defence should not be brought in against Major Reid: There reasons were entered on the proceedings which we find directly opposite to the Opinion of another Court on the same matter whereon Mr Edwards also officiated as Judge Advocate.
The Court also threw out two other subsequent specifications of Ungentleman and UnOfficer like behaivour which the Judge Advocate did not insist on in behalf of the United States.
On the charge of fraud &c. we produced an Affidavit taken before William Henry Esqr. which when taken we offered to prove to the Court that Major Reid had notice to attend (agreeable to a resolve of Congress of the 24th December 1779) which we also produced who said he had nothing to do with the man and did not attend, the Judge Advocate objected to its being given in as evidence and it was thrown out of Court.
We also produced the procedings of a Court of enquiry wherein was the Affidavit of Capt. Duncan tending to prove the charge of fraud &c. and admitted in the hand writing of Major Reid to be brought as evidence against him on his ensuing trial—this the Judge Advocate did not insist on being evidence and it was not admitted by the Court, they said it was the proceedings of a Court of enquiry which as they had not admitted some others (that tended to criminate Major Reid) they would not admit this.
Major Reid admitted many things in part which we wanted to prove in full and which if we had been permitted to have done we think would have supported the charge—the Court said his admission was sufficient.
We Therefore have every reason as persons injured to say we have not had justice done us by the seeming partiality of the Judge Advocate for as the Court had determined they knew no prosecutor but the Judge Advocate and even silenced us when we spoke aloud to him every thing that he thought proper not to make known for the Court to Judge of was not mentioned to them; and in behalf of the Officers whom we have been appointed to act for think it our duty to represent our grievances to you and beg you will be pleased to lay the matter before his Excellency the Commander in Chief praying Major Reid may be tried on the charges of UnGentleman and Officer like Conduct and behaivour which as the present Court did not take Cognizance of we think still exists. I am Sir with due respect your most obt. Humble Servant, for Capt. White & myself
Richard Lloyd Captn
Pompton January 13, 1783
The Memorial of Brigadier-General Moses Hazen, in Behalf of himself and a large Majority of the Officers of his Regiment, humbly sheweth, That the Want of System or some general established Rules in the Proceedings of Courts Martial has in some Cases been injurious to Innocence, and in others tended to exculpate the guilty: To prove which, your Excellency’s Memorial—he begs leave to cite sundry Instances that have fallen within the Compass of his own Knowledge; in some of which, your Memorialist and a Number of worthy [Char]acters, Officers in his Regiment, have been greatly injured, who beg leave now through this Channel to seek Redress.
Your Excellency’s Memorialist has had the Misfortune to be brought to the Tribunal of a General Court-Martial three different Times, charged with [enor]mous Offences, and prosecuted by powerful Adversaries; in all which he [bel]ieves he has been honourably acquitted, tho’ not particularly mentioned by the [ ]ment of the Court in his last Trial at the Instance of Major Reid.
The first Trial herein refer’d to was at the Instance of the then Brigr Genl Arnold, who attended the Court, adduced the Evidence on the Part of the Prosecution—Stated the Questions to the Evidences—was allowed to argue on the Propriety of the Proceedings of the Court—and even to file a Protest against them, which was received and read.
That in August 1780, your Memorialist was arrested by the Honourable Major General Baron Stuben, for Charges that might have affected his Life. Mr Lawrence, the then Judge-Advocate General, attended the Prosecution of Baron Stuben: Some Difficulties arose respecting Form; Matters of Opinion were suggested by Baron Stuben to the Evidence, and taken by the Judge, which made a Part of the Proceedings of the Prosecution, and of course the Defence.
That after the Defence was opened, read and received in Court, Baron Stuben was allowed to argue on the Impropriety of it, and even to produce a written Instrument for his own Justification in reply, which Mr Lawrence, the Judge-Advocate, insisted on being received and made a Part of the Proceedings of the Court; and further that the written Defence of your Memorialist, which had been accepted, should be corrected; Arguments were multiplied; the Prisoner, your Excellency’s Memorialist, insisted that he had said nothing in his Defence but what was pertinent to the Case, and which he should in the cause of the Evidence carry fully into Proof, otherwise he was sensible of the Consequences, and that it must in that Case operate most strongly against himself on the Charge of un-officer and un-gentleman-like Conduct and Behaviour in which the Court over-ruled the Judge Advocate’s Opinion, and the Defence stood uncorrected. Your Memorialist was acquitted with Honour, and of course presumed every Part of the Defence was supported by Testimony.
For the Trial of your Memorialist in November 1780, at the Instance of Major Reid, a respectable Court of Field Officers were appointed, with a Brigadier-General as their President. Mr Strang acted as Judge Advocate. Your Memorialist was arrested on Complaint of Major Reid, on the following Charges, viz.
“1st Disobedience of Orders and unmilitary Conduct.
“2ndly Defrauding the United States or the Regiment, or a Part of the Regiment, in which he holds a Public Office and embezzeling or misapplying Public Property.
“3rdly Unofficer and ungentlemanlike Conduct or Behaviour.”
Previous to the setting of the Court, Mr Strang, the Deputy Judge Advocate, called on Major Reid for a Specification of the Charges exhibited by him aga[inst] your Memorialist, which he neglected to give. As soon as the Court was formed, [he] repeated his Application, which Major Reid refused to comply with: The Mat[ter] was then urged by the Prisoner, your Memorialist, to no purpose, alledging at the same Time that he could not proceed to Trial without a manifest Injury to his self unless the Charges were particularized. Arguments ensued on both Sides. Major Reid was allowed to speak on the Part of the Prosecution; the Court was cleared, and finally ordered that Major Reid should be allowed to prosecute the Charges as they stood, notwithstanding the Judge Advocate, who was the proper Person to regulate the Proceedings, had officially demanded a Specification. Major Reid was also allowed the Privilege of Argument in the Court in Point of Form, as well as to state the Questions to the Evidence, and even make his own Remarks on the Testimony; he introduced Subjects and examined Evidences foreign to the Charges; and was allowed to bring in two new Charges at the Time the Prosecution was nearly brought to a Close: In fact, he had the Field to himself; for in the whole Course of the Trial there was not a single Witness called or a Question asked by Way of Cross-Examination on the Part of the Prisoner, your Excellency’s Memorialist.
The Errors that had crept into the Proceedings of this Court, (as your Memoralist then conceived) induced him to file a Bill of Exceptions to them, stating the Injuries that might accrue to the Prisoner by prosecuting Charges in gross—introducing Subjects and taking Evidence foreign to the Charges on which the Prisoner was tried—the admitting of hearsay Evidence, and Matters of Opinion in the Witnesses, &c. Which Bill of Exceptions, tho’ received by the Court, was quashed, and never appeared in the Proceedings; all which Mr Strang, the then Deputy Judge Advocate, will prove if required.
The Court determined in the following Words, as near as your Memorialist can recollect, viz.: The Court having maturely considered the Evidence on the Prosecution, and heard the Defence, are of Opinion that Col. Hazen is not guilty of any or either of the Charges, and therefore do acquit him.
Why the Court did not add the Words with Honour in its Opinion has not transpired. Your Excellency’s Memorialist conceives it unnecessary further to remark [o]n those Proceedings as they will speak of themselves: In the Camp of which, Major Reid opened up such a Scene of Mal-practices, in which he proved himself guilty of the very Charges which he had exhibited against your Memorialist, that your Memorialist found himself constrained to prosecute him, and he was accordingly arrested on the identical Charges on which your Memorialist had been tried.
The Court was formed for the Trial of Major Reid; it assembled on the 21st of December 1780. Mr Thomas Edwards, the present Judge Advocate, acted as such in that Court. The Judge Advocate called for a Specification of the Charges; the Prisoner, Major Reid, urged it; your Excellency’s Memorialist refused to comply with the Request of the Judge-Advocate unless directed by the Court, pleading the Precedent of his own Trial a few Days before, where Major Reid was allowed to prosecute in gross on the very Charges exhibited against him. The Court over-ruled the Objections, and directed a Specification of the Charges, which was complied with. Here your Excellency’s Memorialist begs leave to observe, there was a most material Difference between two very respectable Courts in Point of Form, held at the same Place, and within one Month of each other. The Court proceeded to Trial, and two of the three Charges were proved as appears by the Judgment of the Court.
It becomes now necessary to observe, That the whole Proceedings of my Trial in November 1780 was brought into Court against Major Reid on his Trial in December the same Year, and received by the Judge Advocate, Mr Edwards, as legal Testimony on the Charge of un-officer and ungentleman-like Conduct and Behaviour, which had its proper Effect. Major Reid, in the Cause of his Defence, wandered away from the Charges on which he was prosecuted; he bent his whole Force in criminating your Excellency’s Memorialist and a large Majority of worthy creditable Officers of his Regiment, of Capital Offences, from whence arises the Subject Matter of this Memorial.
On Major Reid’s reading his Manuscript which he called his Defence, your Excellency’s Memorialist arose and interrupted him, by addressing himself to the Court and begging that Major Reid might not be allowed to criminate innocent Men in Matters that could not tend to justify him under the Charges on which he was tried; and dwelt long on the Impropriety and Cruelty of such Conduct. Major [Reid] on the other Hand, insisted on his Defence being read and received as he had wrote it, alledging that all it contained was literally true and that he could prove it; he likewise plead the Precedent of your Memorialist’s Defence on his Trial at the Instance of the Honourable Major-General Baron Stuben, alledging at the same Time that he was responsible for his own Acts, and that he must not be interrupted. Mr Edwards, the Judge Advocate instead of opposing, sided with him, and said that great Latitudes had and ought to be given to Prisoners on their Defence: That every Officer was the Guardian of his own Honour: That if Major Reid impeached any Officer he must have Recourse to his own feeling, which Impeachment would of Course be a Subject Matter of a new Trial of Major Reid; which Opinion, the Court adopted, and Major Reid was allowed to proceed.
It was then moved in Court by your Excellency’s Memorialist, "that such Parts of Major Reid’s Defence be expunged as relates to the Characters of Individuals, not tending to acquit himself of the Charges exhibited against him, or that Major Reid’s Conduct in this Respect be taken up and considered by the Court as one Instance of Conduct coming under the third Charge against him, viz.: Unofficer and un-gentleman-like Conduct or Behaviour." On which the Court gave the following Opinion, viz.
"The Court on Consideration are of Opinion, that the Practice too generally gone into by Prisoners in their Defence of reflecting on Individuals is a Practice highly improper and indecent, yet they think that such Latitude is and ought to be allowed Prisoners to defend themselves against Charges which concerns their Characters in Life as would render the Precedent dangerous in a Court to undertake to expunge any Part of a Man’s Defence; they are also of Opinion that if Major Reid’s Defence their is any Thing criminal they have no Right to try [him] for that Crime, as it was committed posterior to the Commencement of the Trial and Major Reid may hereafter be made liable to answer for any Crime committed by him in the Cause of his Defence."
The Court found Major Reid guilty of two of the Charges, and sentenced him to be reprimanded in General Orders.
The same Orders that approved the Judgment of the Court sent Major Reid on Command under the Honourable Major-General the Marquis de la Fayette or at least your Excellency’s Memorialist received them together, which prevented some of the injured Officers from taking such Measures and Mode of Redress as then appeared to them justifiable: They however drew up a Remonstrance, signed by Major Torrey and fifteen other Officers of the Regiment, stating their Case and their Grievances, which was presented the Honourable Major-General Heath the then Commanding Officer with the Army at and near West-Point: Copies of which were sent to Major Reid and to your Excellency’s Memorialist—marked No. 1 positively declaring that they never would do Duty with or under Major Reid, unless he should support his Assertions at a Public Hearing.
That at the Seige of York-Town a joint Application of the Officers were made to me to arrest Major Reid, which I dissuaded them from at that Time; they however presented Major Reid with a second Remonstrance; marked No. 2 adhering to their former Resolutions, requesting him at the same Time to take such immediate Measures as might be necessary to bring on the Matter to a Public Hearing, &c. both which Remonstrance were treated with a Sovereign Contempt and Neglect.
That the Orders of Major General Lincoln at the Head of Elk on the 22nd of November 1781—the Tenor of your Excellency’s Furlough to Major Reid of the 27th of December—and your Orders of the 1st of Jany 1782, have also been evaded or disobeyed by Major Reid, consequently I was directed by your Excellency, through the Minister of War, to prosecute thereon, or at least the latter.
That the Gentlemen Complainants finding no Attempt by Major Reid to redress their Grievances; on the contrary, seeing him exercise every Art and Cunning to ingratiate himself into favour with them, and to return and join in Duty with and under those very Men whom he had impeached with Crimes of the blackest Dye, presented your Memorialist on the 6th of April 1782, with a Request to arrest Major Reid on the Charges exhibited to the Court ordered for his present Trial; a Copy of which is marked No. 3.
That in order to give Major Reid an Opportunity to justify himself under the three general Charges exhibited to him, he received a Specification of them on the 18th of Octr 1782.
That Capt. Moses White and Capt. Richard Lloyd were appointed by the Officers aggrieved, to attend the Court-Martial, and adduced the Evidences in support of the Charges, considering the Trial of Major Reid as virtually a Trial of them all—as Major Reid would have a full and ample Opportunity to justify his Assertions, his Acquital would of course confirm them; as on the other Hand his failure in support of them would tacitly acquit the Officers whom he had impeached.
That Captains White and Lloyd objected to the Judge-Advocate sitting on the Trial of Major Reid, and gave their Reasons which he had been previously apprised of as being interested in the Event; but those Reasons were over-ruled; Mr Edwards allowed to sit as Judge-Advocate, and Major Reid permitted to bring in Common Law Citations unfairly stated, to set aside his own Public Acts on Record, alledging that his Defence alluded to was under the Sanction of the Court that tried him, &c.
Captains White and Lloyd, Agents for the other Officers, objected to the Common Law Citations to be brought into a Military Court; which Objections being over-ruled they then requested a little Time to answer them, which was granted, and their Objections delivered in Writing to the Judge-Advocate, Mr Edwards, which he partially read to the Court, and suppressed the Substance of the Arguments, and pointed Precedents in favour of admitting the said Manuscript as Testimony on the present Trial: The Court determined that Major Reid was not triable for any Part of his said Defence or his former Trial, presuming as a Reason that their was nothing improper in it, or the Court would not have received or suffered it.
The suppressing of this Piece of Testimony placed the whole Charge of un-officer and un-gentleman-like Conduct and Behaviour on such slender Ground, that it could not be supported under the Heads then particularized. Captains White and Lloyd moved to support the Charge in gross as it first stood, which they were refused: They then moved for leave to alter the Specification of the Charge, and be at Liberty to bring in viva voce Testimony in its Support, which they were also refused; the Judge-Advocate withdrew another Instance of un-officer and un-gentleman-like Conduct and Behaviour, and so the Charge was lost, and the Complaintants left without Redress. Captains White and Lloyd produced Evidence in Support of a Part of the Charge of Fraud, which the Judge Advocate mistakenly said was negatively and unnecessary: They produced Major Reid’s own Admission in another Instance of Fraud, in the Case of Andrew Luckey, which Major Reid thought fit to retract, and so it was disallowed; all which will more fully appear in a written Representation from under the Hands of Captains White and Lloyd marked No. 4.
Captins White and Lloyd complain of unusual and rigid Rules being established in this Court, which has prevented them from being heard by the Court or Judge-Advocate on the Trial, and which as they conceive has hindered them from giving the necessary Information in Support of the Charges against Major Reid; as also a seeming Partiality and Neglect of Duty in Mr Edwards, the Judge-Advocate.
That it will appear by the aforesaid State of Facts, that your Excellency’s Memorialist has acted officially only in the present Prosecution of Major Reid, in hopes that the mild Measures pursued by the Unanimity of the Officers of the Regiment, would finally induce Major Reid to make the necessary Apologies for the Injuries done to your Memorialist—He is now sorry to find that it has not had the desired effect, and therefore your Excellency’s Memorialist is under the disagreeable Necessity of joining with those Officers, in carrying up a Complaint to your Excellency, in Search of Redress.
In short, to sum up the Substance of the whole in a few Words, it will appear, That the Want of System or some general Rules in the Proceedings of Courts-Martial has in some Cases been injurious to Innocence and in other tended to exculpate the guilty.
That on the Trial of your Memorialist, at the Instance of Baron Stuben, he was obliged to support by Proof every Part of his Defence, or he could not have been acquitted, which Major Reid on his Trial pleaded the Precedent of, in order to croud his Manuscript, called his Defence, into Court.
That Major Reid was allowed to prosecute your Memorialist in gross, and that your Memorialist was directed to prosecute him under the Specification of Charges by detail.
That by the move made in Court on Major Reid’s Trial, it was left to his Option to expunge those Parts of his Defence which were false and reflected on individual Characters, or otherwise let it be taken up and considered by that Court as one Instance of Conduct coming under the third Charge of un-officer and un-gentleman-like Conduct and Behaviour: That Major Reid made his Election, and under every Risque of Crimination asserted that he would abide the Event—and altho’ that Court would not try him for his slanderous Performance, yet they left it open, and expressly referred it to another, before which he ought in Justice to be responsible and abide the Consequences.
That Complainants have ever been indulged to attend and assist in Prosecutions, adduce Evidence, and give Information to the Court, except on the present Instance; which Regulation falls singularly hard on the present Complainants.
That a Mans own Public Acts and Deeds is and ought to be binding on himself, more especially when they may be considered as a Recognizance taken in open Court, which is similar to the present Case, and therefore the Testimony offered is legal and ought to be admitted, more especially when a Precedent was offered full in Point in Support of it.
That the present Trial of Major Reid is virtually the Trial of Twenty-four Officers, whom he has openly and pointedly charged with infamous Crimes, such as would render them if true unworthy of the Commissions they bear in the Service of the United States, amongst which are those of robbing and cheating the Soldiers, and a wanton Embezzlement of Public Property.
That the Opinion of the present Court that Major Reid was not triable for any Part of his Defence on his former Trial, may be just in general Cases, but not in the present, for Reasons before assigned, which the Judge-Advocate ought in Duty to have stated to the Court for its Information.
That the Judge-Advocate has not prosecuted Major Reid with Vigour, but on the contrary, he has apparently suppressed sundry Pieces of Testimony, which would very materially tend to convict him under the Charges exhibited.
Wherefore your Excellency’s Memorialist [ ] himself as far and on Behalf of Twenty-four Officers of his Regiment, humbly prays that your Excellency will be pleased to set aside the present proceeding of the Court-Martial on the Trial of Major Reid, and direct an Enquiry into the Matters herein complained of; as also a fair and full Trial of Major Reid on the Charges exhibited against him, under such Limitations and Restrictions as the Nature of the Case may require, or to your Excellency may seem meet. And your Excellency’s Memorialist, as in Duty bound, will ever pray