Proceedings of a General Court Martial held at the City Hall in New York in the Province of New York, from Friday the 3d May to Saturday the 22d June 1782 for the Tryal of Captain Richard Lippincott.
By His Excellency Sir Henry Clinton, Knight of the most Honourable Order of the Bath, General and Commander in Chief of all His Majesty's Forces within the Colonies laying on the Atlantic Ocean from Nova Scotia to West Florida inclusive, &c; &c; &c
To Major General James Paterson
By virtue of the Power and authority to me given and granted by His Majesty, I do hereby constitute and appoint you to be President of a General Court Martial to be held on Friday Morning at ten o'Clock being the third day of May 1782 at the City Hall in New York in the Province of New York. And the said Court Martial is hereby authorized and required to hear and examine by oath or otherwise, all such Matters and informations as shall be brought before them, touching the misbehaviour of any Officer, Soldier, or any other person under my Command, and to proceed in the Trial of such Offenders and to give Judgment and Sentence thereupon; pursuant to an Act of Parliament now in force, entitled "an act for punishing Mutiny and Desertion, and for the better payment of the Army and their Quarters" and for so doing, this shall be to you and all concerned a sufficient warrant and authority.
Given under my Hand and Seal at
the second Day of May 1782
(Signed) H. Clinton (LS)
By His Excellency's Command
(signed) John Smith
At a General Court Martial held at the City Hall in New York in the Province of New York on Friday the third day of May 1782 and continued by Adjournment to Saturday June the twenty-second, by Virtue of a Warrant from His Excellency Sir Henry Clinton, Knight of the most honourable Order of the Bath, General and Commander in Chief of all His Majesty's Forces within the Colonies laying on the Atlantic Ocean from Nova Scotia to West Florida, inclusive, &c; &c; &c; bearing date May 2d 1782.
Major General James Paterson President
Brigad. General James Bruce
Brig. Gen. Robert Abercrombie
Brig. Genl. Cortlandt Skinner
Col. Gabriel Ludlow 3d Battt. Delancey's
Colonel Beverly Robinson, Loyl. Amns.
Lt. Col. James Marsh, 43d Regt.
Lt. Col. Honble. Henry Fox, 38th Regt.
Lt. Col. Richard Hewlett 3d Batt. Delancey's
Lt. Col. George Turnbull, N. York Vols.
Lt. Col. Wm. Allan, Pensylva. Loyalists
Lt. Col. Gabriel DeWeber, P.W. Am. Vols.
Major Charles Graham, 42d Regimt.
Major Stephen Bromfield, 40th Regt.
Major Thoms. Barclay, Loyl. Americans
Stephen Payne Adye, Esquire, Deputy Judge Advocate, and Lieutenant Richard Porter, Assistant Deputy Judge Advocate.
The President, Members, Deputy Judge Advocate, and Assistant Deputy Judge Advocate being duly sworn.
Captain Richard Lippincott, of the aforesaid Loyalists, was brought Prisoner before the Court, accused of the Murder of Joshua Huddy, a Prisoner of War to the Associated Loyalists1, by hanging, or causing him to be hanged by the Neck until he was dead. He (Lippincott) having received said Huddy into his Custody, for the purpose of Exchanging him for another Prisoner of War by Virtue of an Order from the Honorable Board of Directors of Associated Loyalists dated April 8th 1782.
Upon the question of Guilty or not Guilty being put to the Prisoner he informed the Court that not being prepared to plead to said question or indictment, requested that they adjourn till the next day. The Court having taken this Request of the Prisoner into consideration, were pleased to grant him still longer time than he asked for and Adjourned till Monday Morning at 10 o'Clock.
Monday May the 6th, 1782
The President and twelve of the Members who had been Sworn in on Friday the 3d Instant, met pursuant to Adjournment, but Brigadier General Bruce, having during the Adjournment of the Court quitted His Majesty's Service, and Brigadier General Abercrombie being employed on another duty, two other Members were appointed to supply their places. Vizt. Lieut. Colonel Small and Major Weymes; this change constituting a New Court and rendering it necessary to proceed ab initeo, the Court, after taking their places in the following Order, were duly Sworn.
Major General James Paterson President
Brig. Genl. James Marsh
Brig. Gen.Cortlandt Skinner
Conel. Gabriel Ludlow, 3d Batt. Delancey's
Colonel Beverly Robinson, Loyl. Americans
Col. Honble. Henry Fox, 38th Regt.
Lt. Col. John Small, 84th Regiment
Col. Chas. Graham, 42d Regiment
Lt. Col. Richard Hewlett 3d Batt. Delancey's
Col. George Turnbull, N. York Vols.
Lt. Col. Wm. Allen, Pensylva. Loyalists
Col. Gabriel DeWeber, P.W. Am. Regt.
Major James Weymes, 63d Regiment
Major Stephen Bromfield, 40th Regt.
Major Thos. Barclay, Loyl. Americans
Stephen Payne Adye Esq. Deputy Judge Advocate and Lieutenant Richard Porter, Assistant Deputy Judge Advocate
Upon the Prisoner Captain Richard Lippincott being arraigned upon the Accusation already recited and standing on the face of the Proceedings, he produced the following Objections to the Jurisdiction of the Court, and desired that they might be read previous to his answering to the general issue of Guilty or Not Guilty.
I, Richard Lippincott having been brought, under Military arrest, before this Honourable Court Martial on the third day of this instant May, to answer to a Charge exhibited against me by His Majesty's Deputy Judge Advocate for the wilful Murder of Joshua Huddy, a Prisoner to the Associated Loyalists, by hanging him or causing him to be hanged by the Neck until he was Dead; and having been indulged with time to consider the nature of such Charge and the Plea that might be necessary to make thereto, and impressed equally with a Sense of this indulgence and the individual respect that is due to the Members of the Court, beg leave, without giving Offence to represent, that I am advised to decline the Juridsiction of this Court as being incompetent to try or Adjudge the supposed offence charged against me and to tender a Plea accordingly.
When I contemplate the Nature and penal tendency of this charge, I am relieved from any fear that the Court will Misinterpret my motives for declining their Jurisdiction into any Distrust of their impartiality or high sense of Military honour, but on the contrary, I am encouraged to hope that their humanity will excite them rather to consider this objection to their competency as a principal of self preservation which is inseperably linked with our Natures, and which a Man could not neglect without being accused to his own conscience.
In full profession of this Hope, I beg leave to Subjoin that a Question of Jurisdiction, is a Question of greater importance than any other that can possibly come in contemplation before a Court, and that it is more correspondent to the finer feelings to decline a doubtful or contestable authority than it is to hazard a sentence against those greater Maxims of the British Constitution, which form the firmest Barriers of it. Impressed with the Idea, I take the liberty of tendering to the Court the following Plea.
Be it remembered, that on this sixth day of May one thousand seven hundred and eighty two, Richard Lippincott of the City and Province of New York, Gentleman, being charged by His Majesty's Deputy Judge Advocate with the Murder of Joshua Huddy, a Prisoner of War to the Associated Loyalists, and being brought before this General Court Martial to be tried and Adjudged upon the said Charge, he the said Richard Lippincott, here in his own proper person, and under Military Arrest, saith that he is not bound by the Laws of that part of Great Britain called England, nor by the Laws of this Province of New York, to make issuable Defence against the supposed Crime charged as aforesaid against him for the following reasons
Because the said Richard Lippincott is not an enlisted Soldier, nor paid nor Mustered as a Soldier, nor is he an Officer in pay and with Rank, and therefore he saith, that he is not liable by any Court Martial for the said supposed Crime.
Also because the said Richard Lippincott is an Inhabitant and Citizen of New York aforesaid, a part of his Majesty's American Dominion, where civil Government is by Law established; and that he being now and having ever been, a liege Subject of his said Majesty, and his Royal Predecessor, is intitled to all and singular the rights and privileges of a Subject of that part of Great Britain called England, and to all and singular the Rights and privileges that his Majesty's Subjects ever had, or ought to have, in this said Province of New York; that a trial according to the Ordinary course of common Law proceedings being one of those essential Rights and Privileges, and he being a Citizen as aforesaid, he is legally held to Answer for the said supposed offence, before a Court of common Law cognizance, and not elsewhere.
Also because it is expressly stipulated in the articles of Association, to which the said Richard Lippincott became a Party by subscribing his Name thereto, that the associators should not be Viewed in the light of enlisted Soldiers, which said Articles had been previously sanctioned and consented to by his Excellency Sir Henry Clinton, Knight of the Most Honorable Order of the Bath, then General and Commander in Chief of all his Majesty's Forces, &c, &c, &c.
Wherefore he, the said Richard Lippincott, doth hereby decline the Jurisdiction of this Court Martial, as being altogether incompetent by law to hold him to answer to this aforesaid charge.
But if the said Plea to the Jurisdiction of this Court Martial should be over ruled, and they sustain their Jurisdiction over the said supposed Crime, as a Court competent to try the same, he, the said Richard Lippincott, doth hereby declare and Aver, that any Plea that he may hereafter make thereto, other than this present one, will be the result of the Alternative imposed upon him, either of Answering over, or of suffering the consequences of making no Defence at all.
This Plea to the Jurisdiction of the Court being accordingly read and the Court cleared, they took the same into consideration, as also the Commission
hereunto annexed, granted by the Commander in Chief, and accepted of by the Prisoner, together with the Instructions given to the Board of Associated Loyalists uinder whose immediate Orders the Prisoner Acted and came to the following resolution and Opinion
That an Act of Parliament having passed on the 24th of March, 1781, entitled an Act for punishing Inciting and Desertion, and for the better payment of the Army and their Quarters, &c, which Act is by the 85th clause thereof declared to be and to continue in force, within the Island of Minorca, and Garrison of Gibralter, and in His Majesty's other Dominions beyond the Seas, until the 25th day of March, 1783, by which Act his Majesty is impowered to make Articles of War and constitute Courts Martial, and His Majesty having by Virtue and Authority of this said Act, been pleased amongst other Articles to constitute and form one Vizt. the 2nd Article of the 20th Section wherein it is declared that "Notwithstanding its being directed in the Eleventh Section of these our rules and Articles, that every Commanding Officer is required to deliver up to the Civil Magistrate all such Persons under his Command who shall be accused of any Crimes which are punishable by the known Laws of the Land. Yet in our Garrison of Gibralter and Island of Minorca, where our Forces now are, or in any other place beyond the Seas, to which any of our Troops are or may be hereafter commanded, and where there is no form of our Civil Judicature in force, the Generals or Governors, or Commanders respectively, are to appoint General Courts-Martial to be held, who are to try all persons guilty of Wilful Murder, Theft, Robbery, Rapes, Coining or Clipping the Coin of Great Britain, or of any foreign Coin Current in the Country or Garrison, and all other Capital Crimes, or other offences, and punish Offenders with death or otherwise, as the Nature of their Crimes shall deserve."
The Court being clearly of opinion that Captain Lippincott, circumstanced as he is, came under their Jurisdiction, they therefore authorized the Deputy Judge Advocate to communicate this Opinion, and to call on him to plead to the general issue of Guilty or Not Guilty.
The Prisoner being again brought into Court, and informed of their opinion, he requested that the Court would indulge him with some little further time to consider whether he should make any other or further Plea, and upon what grounds to rest his Defence; In consequence hereof, the Court Adjourned 'till ten o'Clock the Next Morning, previously informing the Prisoner, thro' the Judge Advocate, that they should then expect an explicit answer to the plea of Guilty or Not Guilty, and proceed on the tryal Accordingly.
But other public Services intervening which called for the attendance of some of the Members, the Court was occasionally adjourned 'till Thursday the 23d Instant.
Thursday, May 23d 1782
The Court Assembled pursuant to an Order of the following Tenor and Date issued by His Excellency Sir Guy Carleton, K.B. Commander in Chief, &c, &c, &c.
"Head Quarters New York 17th May 1782.
"The meeting of the General Court Martial of which Major General Paterson is President, is put off 'till Thursday the 23d Instant, on which day it will assemble at the City Hall in New York at 10 o'Clock in the morning."
But the Court in consequence of the following Letter from Lieut. Colonel DeLancey, Adjutant General, to Major General Paterson President, again adjourned sine die
New York 22d May 1782.
I am directed by the Commander in Chief to inform You the Board of Directors of Associated Loyalists as well as the Prisoner Captain Lippincott who was to be tried have objected to the Competency of the General Court Martial of which you are President for such purpose. His Excellency has laid their objections before his Majesty's Attorney General for his Opinion, and in the mean time he directs that all proceedings in the trial of Captain Lippincott may be suspended 'till he has made his report."
Major General Paterson
I have the Honor to be
Sir, Your Most Obedient humble Servant
(Signed) Ol. DeLancey
Thursday, June 13th 1782.
The President and Members (Brigadier General Skinner and Colonel Beverly Robinson excepted) reassembled, in consequence of the following public Order, issued by His Excellency the Commander in Chief
"The Proceedings of the General Court Martial of which Major General Paterson is President having been suspended in consequence of the Prisoner Captain Richard Lippincott pleading against the legality of the Court; the Commander in Chief after the most mature consultation and Deliberation, finding that there is no other method of obtaining Justice, has thought proper to Order that the said Court shall assemble on Thursday the 13th instant at 10 o'Clock in the Morning at the City Hall in New York and proceed in the Tryal of the said Captain Richard Lippincott."
General Orders 5th June, 1782.
Colonel Beverly Robinson having in a Letter to the Deputy Judge Advocate which was laid before the Court, declared his inability to attend from a fit of illness, the Court came to a Resolution to proceed without him, there being still a sufficiency of Members to constitute a Court, but not knowing how to account for the Non attendance of Brigadier General Skinner, and unwilling to proceed 'till it was known whether he would be able to take his place as a Member, the Court Adjourned 'till next Morning at 10 o'Clock.
Friday, June the 14th 1782.
The Court (including Brigadier General Skinner who had been prevented by other public Duty from attending the day before) being met pursuant to adjournment, the Deputy Judge Advocate laid before them the following Letter from the Adjutant General, together with the Enclosure containing the case stated to the Chief Justice and Attorney General of the Province of New York together with their Opinion, which are as follows. Vizt.
"Head Quarters June 19th 1782.
I am directed by the Commander in Chief to inform you, that in consequence of the Prisoner Captain Richard Lippincott having pleaded against the Competency of the General Court Martial, by which he was to be tried; His Excellency had thought proper to suspend the Proceedings, untill he had taken the opinion of his Majesty's Law Officers on the Subject, for which purpose they were immediately furnished with the Papers put into his hands in behalf of the Prisoner, and after time sufficient for considering a Case of that importance the Matter was debated before the Commander in Chief, the Admiral, the Governor of this Province, the Governor of New Jersey, and some principal Persons; a Case was in Consequence thereof stated and their Opinion desired to be put into Writing, that the Court Martial might be informed of it in their own words, which case and their Answers I have the honor to enclose to You Sir, with the Commander in Chief's direction that they may be entered in the Proceedings of the Court, which is to go on, in the trial of the said Captain Richard Lippincott.
I have the Honor to be
Your most obedt. Humble Servat,
(Signed) Ol. DeLancey
Capt. Adye D.J.A.
"Richard Lippincott having been charged with the Murder of Huddy, within the Province of New Jersey, a Court Martial was Constituted to try and Adjudge the fact. But the said Richard Lippincott having alleged that he is not subject to Martial Law, it is therefore referred by the Commander in Chief to the Honbl. William Smith, Chief Justice of this Province, and to John Tabor Kempe, His Majesty's Attorney General, to consider and report, if the said Richard Lippincott can be tried within the Island of New York for the alleged offence in any civil Court now Subsisting within the said Island upon the Strict Rules of Law, and with that effect, which a Crime contrary both to the first principles of Civil Society and the Law of Arms necessarily demands; and if not, whether a Court Martial ought not to proceed, and try and Adjudge the said Richard Lippincott, upon such principles of Substantial Justice, as the nature of the Case seems to require.
"Upon the Case as above Stated in the Paper received Yesterday, and independent of any other facts than it communicates, We report with great Submission and Respect to His Excellency the Commander in Chief.
"That by the Non Revival of the Exercise of the Civil Authority of the Crown in this Province, the recovered counties still remain under the Government of Military Discipline, with the King's Courts of Justice all shut up. And we are of Opinion that if they were opened, they would only be competent for our own internal Jurisdiction, and that they could not take Cognizance of such a Felony, as the Case supposes to have been Committed in the Province of New Jersey."
"That such offences in the Plantations in general can be tried according to the Course of the Common Law, only in the Province, and by a Jury of the County where it was perpetrated, unless a provision be made for that purpose by some future Act of Parliament or by a Law of the Colony.
"That Antecedent to the Statute of 3d of King Charles I, Commonly called the Petition of Rights, there had been trials in England by the Law Martial, and that it seems to be the better Opinion since the passing of that Statute, that Necessity so impelling, Offences may still be punished by the indulged proceeding Stiled Martial Law, in times of War, Rebellion and Invasion, when the Courts are shut and the regular Administration of Justice cannot be carried on.
"But as it would be a question of Fact, whether the Necessity that would Authorize a Tribunal for the Trial and punishment here, of Murder committed in New Jersey now exists, subject as the British Provinces are to a double Legislature as above alluded to, and unacquainted as we must be supposed to be, with all those great and profound considerations of policy upon which it turns, it becomes us to be Silent.
"Upon every Question of Law, with which it may be connected, and on every Occasion in which our services can be made useful to the Crown We are cheerfully disposed to contribute all the Aid in our power.
(Signed) Wm. Smith
J. T. Kempe
City of New York 9th June 1782.
Captain Richard Lippincott being then arraigned upon the charge of having been guilty of the Murder of Joshua Huddy, a Prisoner of War to the Associated Loyalists, by hanging or causing him to be hanged by the Neck until he was dead. He (Lippincott) having received the said Huddy into his Custody, for the purpose of Exhanging him for another Prisoner of War by Virtue of an Order from the Honorable Board of Directors of Associated Loyalists dated April 8th 1782, and he having pleaded Not Guilty, the Deputy Judge Advocate addressed the Court as follows
Mr. President and Gentlemen,
Was the matter now before You intirely of a Military Nature, I should not presume before so very respectable a Military Court to offer any preface to the examination of the Witnesses, conscious of my own inability to give further inlight into what might be deemed Military Crimes and the punishment adequate thereto, than the Members in general must have acquired from their long Services, but in the Case now submitted to Your Consideration and Decision, Gentlemen, tho' there are many facts to be learned Collateral (as I have reason to believe will appear in Evidence) which tend to a breach of that good Order and Discipline, necessary to an Army, yet the main point to be determined by You is, how far the Prisoner at Your bar has been guilty of Murder, a Crime but seldom coming under the Cognizance of a Court Martial; this leads me to lay before You what our glorious and envied Constitution deems Murder, and I am further induced thereto upon this principle, that when the exigency of the Case obliges Courts Martial to extend their Jurisdiction to crimes not immediately coming under the denomination of Military, tho' under certain Circumstances within the Purview thereof, it is natural to Suppose (what is founded upon Justice and reason) that they will proceed as far as Circumstances will admit, upon the principles established for the guidance of those Courts, before whom such Matters are usually decided.
Murder, as defined by that Oracle of the Law, Sir Edward Coke, is when a Man of sound memory and of the age of discretion, unlawfully killeth within any County of the realm any reasonable creature, in rerum natura, under the King's Peace, with Malice aforethought, either expressed by the Party or implied by Law, so as the party wounded or hurt, &c, die of the Wound or hurt, &c, within a Year and a day after the same.
Permit me then to offer to Your consideration the several branches of this Definition
First, it must be committed by a person of sound Memory and discretion, for idiots, lunatics and infants are incapable of committing a Crime.
Secondly, a person of such sound discretion must unlawfully kill. The unlawfulness arises from killing without Warrant or excuse.
Thirdly, the person killed must be a reasonable Creature, in rerum Natura, and under the King's peace at the time of Killing. Therefore, to kill an Alien, a Jew or an outlaw, who are all under King's Peace or protection, is as much Murder as to kill the Most regular born Englishman, except he is an Alien Enemy, in time of War. I should not be supposed to quote partially, and therefore I include the exception, but I am sure that I need not point out to the Court that this exception can only extend to Alien enemies when absolutely immediately and unequivocally engaged in the Field of Battle.
Fourthly, the killing must be committed with Malice aforethought, and this Malice prepense is not so properly spite or Malevolence to the deceased in particular as any wit design or in general, the dictate of a Wicked, depraved and Malignant heart, and it may be either express or implied. Express Malice is when one with a Sedate deliberate Mind and formed design, doth kill another which formed design is evidenced by external Circumstances discovering that inward intention, as lying in Wait, Antecedent Menaces, former grudges, and concerted Schemes to do him some bodily harm. From hence we may draw this general Rule, that all homicide is malicious and of course amounts to Murder, unless where justified by the Command and permission of the Law, excused on a principle of Accident or Self preservation, or alleviated into Manslaughter by being either the involuntary Consequence of some Act, not strictly lawful or (if Voluntary) Occasioned by some sudden or sufficiently violent provocation. All these circumstances of Justification, excuse, or alleviation it is incumbent upon the Prisoner to make out to the satisfaction of the Court who are to judge whether the circumstances alledged be proved to have actually existed and how far they extend to take away or mitigate the guilt. For all homicide is presumed to be Malicious until the contrary appeareth upon evidence.
Not having been professionally bred to the practice of the Law, it is with the utmost diffidence I have undertaken this task. It is no small alleviation and Comfort to me to see amongst the Members of this Court a Gentleman who long filled a very respectable Post under Government in the Law department but has been induced by his loyalty to reverse the Adage of Cedunt Arma Loga If I have errred in Stating the law of Murder to You, I hope and flatter myself, that he will have the goodness to put you and me right.
It may perhaps be thought that this explanation of the point of Law in question might have been better timed after the Witnesses had been examined. I will give the Court my reasons for doing it now I mean not hereby to Anticipate the evidence, and to attempt previously to prejudice the Minds of the Members, is dissonant to my Nature; nay, were I even thus inclined when I survey the present Court, I am more and more convinced how Daring and at the same time how fruitless such an attempt would prove. My intention, Gentlemen, in addressing you at present is, that every Member being thoroughly Master of what the Law deems Murder may in the Course of the examination, ask such questions of the several Witnesses, as may enable him to Judge and preponderate in his mind, how far the concurring circumstances adduced in evidence will come under that denomination. I shall now proceed to call such Witnesses as I have been able to procure, and then close the prosecution on the part of the Crown, with reserving to myself the legal right of summing up the whole of the Evidence when gone through on both sides, and offering to the Consideration of the Court such Observations thereon as may occur to me, as well as on any new matter, that may be contained in the Prisoner's Defence.
The following Witnesses were called upon, in support of the Accusation, Vizt,
Serjeant William Forster, Deputy Provost Martial, being duly sworn, was examined
Q Did he know Joshua Huddy by sight?
Q Was he (Joshua Huddy) lodged in the Provost Goal as a Prisoner of War?
A He was, by a Mr. Challoner, Commissary of Prisoners to the Associated Loyalists.
Q Did he remember Mr. Challoner, Commissary of Prisoners, coming to the Provost Goal, with the Prisoner Captain Lippincott and others, and taking Joshua Huddy from thence?
A Yes, he opened the door and delivered Captain Huddy and two other prisoners to Mr. Challoner.
Q From any conversation he (the Deponent) had with Mr. Challoner, Captain Lippincott, or the others who took away Captain Huddy, could he draw any inference of the intended fate of Huddy; and if he (the Deponent) had any conversation relative thererto, with whom did he hold such a conversation?
A Mr. Challoner was the person with whom he had any conversation. As soon as he delivered the three prisoners to Mr. Challoner, he asked Mr. Challoner what he was going to do with those Prisoners. Mr. Challoner answered and said if Captain Huddy knew what was intended against him or what his fate was to be, or words to that effect, "he (Capt. Huddy) would not go out so joyfully as he did."
Q Did Mr. Challoner or any other person explain to him (the Deponent) what his (Captain Huddy's) fate was to be?
A Mr. Challoner told him that if a certain person, whose Name he cannot recollect, was not sent in (meaning into the King's Lines) he (Mr. Challoner) really thought the Refugees would execute Captain Huddy.
Q Does he (the Deponent) recollect the Prisoner Captain Lippincott speaking on that Occasion?
A He had not the least Conversation with Capt. Lippincott on the Subject, nor with any other of the Party, excepting Mr. Challoner.
Q Did Mr. Challoner bring him any written order from the Commander in Chief, the Commandant, or any other officer in Authority, for delivering up those Prisoners?
A He did not; his Orders from Captain Cunningham, Provost Marshall, were to receive all Prisoners brought as Prisoners to the Associated Loyalists, from Mr. Challoner or his Order, without any Order in Writing, and to deliver them up again without any Written Order to Mr. Challoner or his Order.
Sampson Salter Blowers Esquire, Secretary to the Honorable Board of Directors of the Associated Loyalists, being duly Sworn was examined.
A Copy of an Order, dated 8th April, 1782, from the Board of Associated Loyalists (Vide appendix No. 3) being presented in Court and shown him (the Deponent) he was questioned if that was a true Copy of such Order and answered it was.
Q Is that Copy the usual form, used by the Board on Similar Occasions?
A Yes, but Varied on certain Circumstances, as for instance when a particular exchange is proposed, the Order is given for the exchange of such particular person, but the Order in question is such a one as is generally given.
Q As Secretary to the Board, did he (the Deponent) know that the Appplication for the Exchange of those Prisoners came thro' Captain Lippincott?
A Yes, Captain Lippincott came to the Board room on the Morning of the Eighth of April last past, Mr. Cox then sitting as President pro tempore; there were also two other Members, Mr. Alexander and Mr. Lutwyche as he thinks. He (Capt. Lippincott) told them that Clayton Tilton was made Prisoner at Monmouth and that he was afraid they would take his (Capt. Tilton's) life, unless he could have some Prisoners here to hold for his (Capt. Tilton's) security or words nearly to that effect. He (Captain Lippincott) then proposed to the Board to have Joshua Huddy delivered to him, who he said, was a Man respected in that part of the Country; and also two others, naming Randolph and Flemming as the persons he would wish to have; that he wished to take those three Men to the Hook and to offer Huddy for the exchange of Clayton Tilton and if that offer would not answer to give all the three to procure his Exchange; but if the first offer should be Accepted of them to give those two, Randolph and Flemming, for the exchange of two other Loyalists.
Mr. Cox (President) then directed him (the Deponent) to give him (Lippincott) an Order directing Commissary Challoner to deliver to him those three Men; upon his (the Deponent) asking for who the other two were to be exchanged, as no Names were mentioned, Mr. Alexander reply'd "that would depend on Circumstances"; on which he (the Deponent) Copyed and Signed as Secretary. Soon after the Order was Signed and laying on the Table Governor Franklin came in, and after enquiring into Capt. Lippincott's Applications, who was then in the room, he (the Deponent) told Governor Franklin 'twas made out and gave it into his hands; he (Governor Franklin) then gave the Order to Captain Lippincott and Lippincott soon after went out with it.
Walter Challoner, Esquire, Commissary of Prisoners for the Associated Loyalists, being duly Sworn was examined.
A Copy of an Order from the Board of Associated Loyalists, dated 8th April 1782 (vide appendix No. 3) being shown him (the Deponent) he was questioned if that was a true Copy of the Order he received and answered it was a true Copy.
Q Did he in consequence of that Order deliver Joshua Huddy and two other Prisoners to Captain Lippincott?
A He did.
Q Was he authorized to give any Order to Capt. Lippincott how to dispose of Huddy?
A He was not; he was only Ordered to give the prisoners to Captain Lippincott, which he did, and gave him (Capt. Lippincott) no kind of Orders.
Captain Richard Morris, Comanding His Majesty's Armed Ship Britannia
, being duly sworn was examined.
Q What does he know of Joshua Huddy being brought to the Guard Ship on or about the eleventh of April last, being then lodged as a Prisoner, and what conversation had he with Captain Lippincott relative to that transaction?
A Lieutenant Forbes had the Watch on Deck at the time the Prisoner came on board, and informed him (the Deponent) that one Captain Lippincott wanted to lodge three Prisoners there for Security, which Prisoners he (Capt. Lippincott) had brought from the Provost. He deisred the Lieutenant would send Captain Lippincott down to him, who came down to the Cabbin(sic); he (the Deponent) asked him who he was; he replyed Captain Lippincott of the Refugee Corps, and told him he had brought down three Prisoners from the Provost under his Charge by order of the Board of Refugees, that he had no place to confine them in, and requested he (the Deponent) would suffer them to lodge on board the Guard Ship in confinement; he asked for how long a time, he reply'd for two or three days; he told him he could not Victual those Men as he nad no orders for that purpose, but he would order them to be confined on Board and delivered when he (Captain Lippincott) might come or send for them again. He sent for Lieutenant Forbes in presence of the Prisoner (Captain Lippincott) and gave him orders, that whenever he (Capt. Lippincott) should come or send for the Men that they might be delivered to him; he saw no more of the prisoner for that day; within a day or two after, early in the Morning, the Gunner who was the officer of the Watch, came to him (the Deponent) and told him an officer wanted one of the Men (meaning the Prisoners) who came on board the day before; he desired this Person might be sent down to him; Captain Lippincott then came down to him; he asked him what he wanted, he replyed "One of the three Men which came on Board" to take him with him; he asked him (Capt. Lippincott) what he was going to do with him, he answered to put the orders he had received from the Refugee Board in execution "which was to hang him," and then produced two papers, he cannot ascertain what the Papers contained, but in one of them he particularly recollects the words, "Up goes Huddy for White," to the best of his recollection he thinks that Paper was Signed; that he did not particularly attend to the Name, not doubting that he (Captain Lippincott) had proper Authority; Captain Lippincott then told him "he should take away the others in a day or two's time, but that if Mr. Tilton who had been taken, was Shot, hanged, or made away with by the Rebels, he believed one of those two would also suffer."
Q Did Captain Lippincott return again to the Guard Ship after he had taken Huddy away?
A He does not recollect to have seen him afterwards.
Q When Captain Lippincott first brought the Prisoners on Board, did he mention to him what he intended to do with them?
A He does not remember he did.
Q Was any Application made to him, from Captain Lippincott, for a Rope to hang the Man with?
A Yes; and he was told if he would apply to the Officer he would get one.
Timothy Brooks, by Trade a Taylor, a Refugee from Bucks County, in the Province of Pennsylvania, being duly Sworn was Examined.
Q How far was he Witness to Captain Lippincott's executing, or causing to be executed Joshua Huddy, by hanging him by the Neck 'till he was dead?
A On the twelfth of April last, as near as he recollects, he saw Joshua Huddy hanged, on the Jersey Shore opposite to the Hook.
Q Who commanded the party that attended on the execution of Huddy?
A He expected Captain Lippincott commanded the party, as he (the Deponent) drew his Arms and Ammunition from Captain Lippincott.
Q Was Captain Lippincott on the Spot at the time of the Execution?
Q Who executed the Man (Huddy)?
A A Negroe.
Q Did he hear any Orders from Captain Lippincott, or any other person present given to that Negroe?
A He did not.
Q Did he hear or see Captain Lippincott, who he says was on the Spot, endeavor to prevent the execution of Huddy?
A He did not; Captain Lippincott shook hands with him (Huddy) as he (Huddy) was standing on a Barrell by his (Huddy's) request.
Q Did not he look upon himself and the rest of the party to be under the Command of Capt. Lippincott and Consequently bound to obey his Orders?
A He did for his part, he went by that Order.
Q Did Captain Lippincott or any other of the party present at the execution of Huddy, produce any Order for execution?
A Not that he knows of; Captain Lippincott and another person had a paper betwixt them, but that Paper was not publickly read.
Q When Captain Lippincott shook hands with Huddy on the Barrell did he hear any Conversation betwixt him (Capt. Lippincott) and Huddy?
A There was a Conversation passed between them, but he (the Deponent) was not near enough to hear what that Conversation was.
Q When did he (the Deponent) first hear Huddy was to be hanged, and from Whom did he hear Huddy was to be hanged?
A He heard Huddy was to be hanged the day he (Huddy) was taken out of the Provost, the Ninth day of April as near as he recollects and was told by a Samuel Taylor, one of the party, it was by the order of Governor Franklin.
Q What Number of Officers and Men did the party consist of?
A When the party went on Board it consisted of twenty-three, with Captain Lippincott, exclusive of the Prisoners; there was a Mr. Tilton amongst the Number who some said was an Officer.
Q Did he hear Captain Lippincott give Orders to the Negroe to execute Huddy
A He did not.
Ezekiel Tilton, by trade a Carpenter, Inhabitant of the City of New York, being duly Sworn, was Examined.
Q Was not he (the Deponent) one of the party who went with Captain Lippincott to Sandy Hook on or about the 9th of April last?
A He was; he was a sailor on Board the Sloop that carried the party down.
Q Was Joshua Huddy carried down in the Sloop at that time?
A He was.
Q Did he not look upon Captain Lippincott to command that party?
A He did not know who was Officer; they all commanded him.
Q Did not he see the Boat put off from the Sloop with Captain Lippincott and the party as also Joshua Huddy with it?
A He did.
Q Previous to the Boat's leaving the Sloop, did he hear Captain Lippincott or any of the party say, what they were going to do with Huddy?
A Yes he heard some one Say, they were going to hang him, but who the person was he does not know.
Q When the party returned on Board the Sloop, did he hear Captain Lippincott or any of the Party say what they had done with Huddy?
A He did not; they said they had left him (Huddy) on the Shore.
Q Can he name any of the party who were in the Boat at the time the Boat put off from the Sloop?
A Captain Lippincott was one of the party, but they were all strangers to him (the Deponent).
Captain William Cunningham, Provost Marshall, being duly Sworn was examined.
Q Has not the Prisoner (Captain Lippincott) been for some time past in his (the Deponent's) Custody?
A He has.
Q Has he not had frequent Conversations with the Prisoner (Captain Lippincott) relative to the execution of Joshua Huddy?
A They (meaning himself and Captain Lippincott) have often talked together on that Subject.
Q Has any thing said by the Prisoner (Capt. Lippincott) in the course of these Conversations, been drawn from him either by threatenings or promises?
Q On the Contrary, was not every thing said by Captain Lippincott declared Voluntarily and of his own Accord?
A That question he cannot exactly answer to, as he has often told him (Captain Lippincott) he would be a fool to hang himself to save any other person.
Q Did not Captain Lippincott desire, or at least thank him (the Deponent) for recording what he had said, and also request him to bear testimony of it, should he be called upon?
A He did not desire it, but thanked him for making such Minutes as he did, and said that he might call upon him to give testimony in his favor; that he had told him such things for fear some of his Witnesses might be out of the Way at the time of trial.
Q In any of those conversations, did he (the Deponent) hear Captain Lippincott acknowledge that he commanded the party and was present at the execution of Joshua Huddy?
A He heard him say he commanded the party, but did not hear him say he was present at the time of the Execution of Joshua Huddy.
Q Did he, by the word party, made use of by Captain Lippincott, understand that He meant the party which was present at the execution of Huddy?
A He did.
The Deputy Judge Advocate having closed the Prosecution on the part of the Crown with reserving to himself the right of a Reply should he find it necessary, the prisoner requested that a reasonable time might be allowed him for digesting the Evidence already given, and that he might be Admitted to the privilege of cross-examining the Several Witnesses already examined; the Court, in Consequence of this request, adjourned 'till Monday Morning at 10 o'Clock.
Monday, June the 17th 1782.
The Court being met pursuant to Adjournment.
The Prisoner Opened his Defence in the following Address to the Court.
Mr. President and Gentlemen of the Court;
Any shew of indifference in respect to my present situation, would be a presumptive proof of that hardened & unfeeling heart, which falls within the description of the Crime now charged against me. When I consider who are my Judges, Gentlemen of Honor & Sensibility, I cannot but think it Superfluous particularly to describe all those anxieties of Mind that are naturally incident to such a Situation. The generous Sympathies of Your own breasts will tell you what they are, beyond any utterance of mine.
I profess myself to be a liege Subject of His Majsety, & an unalterable friend to his Government. Very early after the Commencement of the Rebellion that still subsists in the Country, I left my Estate, my Family & connections in New Jersey, from the disinterested Zeal & affection which I bore towards that Sovereign & towards that Constitution. My Loyalty has not been of the passive kind, for I have often hazarded my Life; and that too in support of Principles that were apparently opposite to every expectation of personal benefit or Advantage. To Speak with that Sincerity & plainness, which I know You cannot but approve, I have been connected with a Service that has, in a great variety of instances, been humiliating in an extreme Degree, to Suffering Loyalty, and which would, under all its Discouragements, have damped the Vigour of any Virtue, but that of Attachment to British Government & dissolve the Tye of any Obligations, except those indissoluble Ones of Allegiance. I have long since been proscribned and attainted by the Rebels of New Jersey; My Estate has been made Subject to their illegal Confiscations; and I have all along, without pay & without Rank, opposed myself to His Majesty's Enemies on unequal Conditions. The Rebels when they happened to fall into our hands, have generally been exchanged; while those who early staked their all on the final Success of the Royal cause, & chose a kind of exile from their Estates, Families and Connections in preference to the guilt of Rebellion, have seldom been considered by them as Prisoners of War, but many of them have been arraigned for Treason before Treasonable Tribunals, & made to suffer cruel & ignominious Deaths, for practicing the very leading Virtue of the human heart, that of loyalty to a rightful Sovereign. Not a few have fallen sacrifices to their treasonable Malice without even the Shew or Semblance of a Trial. In short, although loyalty has been bleeding at every Vein, & is now bleeding in New Jersey, nothing has yet been done to raise the condition of Loyalists in those respects to the common level of Rebels. This I beg may not be considered as a meditated Censure on Measures, but as a proof of the perilous and unequal Situation of that description of Subjects of which I am one.
These general remarks I have made as a preface to what I am now to disclose in respect to the nature of my Defence. I stand before you charged with the Wilfull Murder of Joshua Huddy; and as every Homicide, to constitute that crime must be committed either with express or implied Mallice(sic), whether expressed or implied, "is not so properly Spite or Malevolence to the deceased in particular, as the Dictate of a Wicked, depraved & Malignant heart. I presume, & am confident in the hope, that this Court who are now exercising a concurrent Jurisdiction with the Common law Courts, will not finally adjudge any thing to be Murder here that is not so at common Law. It gave me pleasure to hear the Judge Advocate's Sentiments on this part of the Subject, & to find them so perfectly coincident with my own.
To clear myself therefore from every imputation of Malignity, either towards Society in general, or any individual of it, & to bring into Contemplation before you Motives for my Conduct totally opposite to those the Law so highly Censures, I beg leave to produce my Witnesses, & to direct my proofs to the following Objects.
First, I mean to prove that several of His Majesty's liege Subjects, particularly my friends and Neighbours, who were formerly Inhabitants of Monmouth County in New Jersey, & have afterwards been taken by the Rebels, have not been allowed the common privilege of being considered as Prisoners of War, even according to the Laws of Nations, but have some of them been tried by Rebels as Rebels to their usurped form of Government, while others have been executed in cold blood, without the plausible shew of any Trial, & under Various Circumstances of Aggravation and insult; that application has been made to the late Commander in Chief to afford some remedy in restraint of such Cruel excesses, but no such remedy has as yet been applied; that the Rebels have through every period of this unhappy Contest, hardened their hearts against all proposals of reciprocal offices of humanity, & have carried their Savage triumph over its Laws so far, as not to recognize what loyalty has ever submitted to allow the privilege of private political Sentiment.
Secondly, that the Lives of some persons, Rebels to His Majesty, have been taken by way of Retaliation for such cruel Executions, & that a Milder Conduct towards the Loyalists has been the result of such Retaliation; that those instances of retaliative Justice have been generally known within His Majesty's Lines & I believe to the higher departments of the Garrison without meeting with any Censure, or even intimations of dislike from them.
Thirdly, that the Execution of Huddy was the Result, not of any particular enmity towards him as a Man, & to effect a private end, but that his life was taken for the recent Murder of Philip White, to effect the public end of humanity by preventing a repititition(sic) of the like barbarities; that Huddy being represented as a Man who had himself executed several Loyalists in Monmouth County, was therefore Considered, on the great Scale of humanity, as the fittest object for Retaliation.
Fourthly, that I, as an Associated Loyalist, was Subject to be ordered on Such Service as the honorable Board of Directors should be pleased from time to time to enjoin, & to act implicitly in obedience to such Orders; that I received Huddy from the Provost in Virtue of an Order from that Board, & disposed of him afterwards according to the meaning of my Order as explained by several of the Members of the Board.
Fifthly, I mean to prove that antecedent to the Rebellion, I have Supported the Character of a peaceable and useful Member of Society in the opinion of the good & Virtuous; of a Man not destitute of principle nor professing a Malignity of Spirit at variance with the good of Mankind in general.
From the establishment of such proofs, it may clearly be inferred, that since my first coming within the Lines, my Situation has been perilous & unequal. If I took a Rebel prisoner, he was subject to be exchanged According to the Laws of War & of Nations; if I should happen to have fallen into the hands of Rebels, my life was Subject to be taken, as a Rebel to a Rebel State. The Laws of War and of Nations have been Wrested from the protection of Subjects of an established Empire & held Sacred to those who have no national Character, & who are consequently not proper Objects of the protection of those Laws. This Situation has been complained of, but the Severity of it has not been attempted to be abated by any public Act. I have never heard of any direct official Representation being made to Government from hence, in respect to the hard Conditions of this description of Subjects, here. The principle of Self preservation has, indeed, prompted to retaliation on several Occasions, without particular Order, & no public or private Censure has followed the Measure.
While, therefore, on the one hand, these Evils were Multiplying fast on Loyalists, to which no adequate remedy has been applied by the higher Departments of His Majesty's Garrison, nor in prospect of being applied; & on the other hand retaliation has been practised with some degree of Success, I cannot but wonder that my Conduct should be ascribed to the horrid motives of a Murderer, when Motives of a more favorable aspect could naturally be inferr'd. If extreme political necessity can justify a Creation, or even an extension of Jurisdiction by those who are to exercixe it, or by any of the executive Trustees, stronger Arguments suggest themselves in excuse of a Conduct to which I was impelled by the extreme necessity of the Case, even had it been Accompanied by no Order at all.
After the proofs which I may produce in support of the several Matters before alleged have been gone through, I will diligently improve such space of time as you may judge Necessary to Assign, in making my further and more particular Defence.
The following Witnesses were examined in Support of the Defence
Sampson Salter Blowers, Secretary to the Honorable Board of Directors of Associated Loyalists, already sworn, was again examined.
Q By the Prisoner. On his examination of last Friday, he (the Deponent) said that the Prisoner, on the Application he (the Deponent) referred to, proposed the exchange of Joshua Huddy for Clayton Tilton, and that Huddy was a Man much respected in the Rebel Country; is he (the Deponent) sure that Huddy was the identical person, and not a Mr. Randolph that he (the prisoner) proposed for the exchange of Tilton, and that he (the Prisoner) represented Huddy respected as aforesaid?
A He so understood it.
Q Did he (the Deponent) on the eighth day of April last past, or at any other and what time see him (the Prisoner) in the Board Room, and did he then and there see him deliver a Paper, purporting the intended death of Huddy, to any and to which of the Members of the Board; did any and which of the Members read the same; did he hear the same read or spoken of at that time by any body and by Whom. Let him (the Deponent) declare all he knows or has been informed of together with the Means of his Information as nearly as he can recollect?
A On the eighth of April last, the day he mentioned before, nothing passed that he recollects, but what he has before related. On the Ninth of April Captain Lippincott came to the Board, Governor Franklin then sitting as President; Mr. Cox, Mr. Stewart and Mr. Alexander were there; Mr. Lutwyche came in some time after. Captain Lippincott then proposed to make an expidition(sic) to the Jersies, with a View to force a Goal in Monmouth County with a party of about thirty Loyalists, and to rescue Clayton Tilton, or if that was found impracticable, to make an Attempt to seize on a General Forman in that Country, that he might by one or other of these Means procure the enlargement of Clayton Tilton; and he requested the Board would make a requisition to Head Quarters for the Approbation of His Excellency the Commander in Chief, and that the party might be furnished with Ammunition and Provisions for that Expedition. This proposal was agreed to by the Board and Mr. Alexander was requested to state the object of the Expedition in a Letter to the Adjutant General as is usual in such Occasions, and to request the party might be furnished with Ammunition and provisions. The Letter was accordingly wrote, signed by the President and forwarded, and then a form of some Articles of Instruction for the conduct of Captain Lippincott was drawn up, copied and signed by the President, and given to Captain Lippincott; while these Instructions were copying by him (the Deponent) Captain Lippincott came forward from his Seat, took a paper from his pocket, and going towards Governor Franklin, with a paper in his hand, said "this is the paper we mean to take down with us," or words to that effect, and gave the paper either to the Governor or to Mr. Stewart. Governor Franklin just looked on the paper, and Mr. Stewart discovering an inclination to look over his (Governor Franklin's) Shoulder or take it from him, Mr. Cox hastily said "We have nothing to do with that Paper, Captain Lippincott keep your paper to your self, the Board do not wish to see them or have them read," or words to that purpose; the paper was then directly given back to Captain Lippincott by Mr. Stewart, as he thinks, but he does not know the paper was read by any one in the room; he further says after Captain Lippincott went out of the Room, Mr. Stewart said something concerning the Paper to Mr. Cox, what he does not recollect; Mr. Cox immediately answered "Mr. Stewart we can have nothing to do with that paper, I wish you would not speak of it."
Q When he (the Prisoner) handed the Paper (he the Deponent referred to) to Governor Franklin, did he suppose from any and what circumstances or appearances, that the subject Matter of the same, had been previously known to Governor Franklin or any other Member of the Board?
A With respect to the paper, he had no reason to suppose any of the Members had been previously Acquainted with the Contents of it.
Q Did he then know the Contents of the said Paper, or has the same since come to his (the Deponent's) knowledge and how?
A He had not at that time the most distant suspicion of what the Paper contained; some days after Capt. Lippincott returned, a paper, as he thinks, was shown by him (Capt. Lippincott) to some of the Members as a Copy of the Label fixed on Joshua Huddy's breast when he was executed; but whether that Paper was the same that had been before shewn, he (the Deponent) does not know.
Q Has he (the Deponent) at any time seen a paper purporting particular Articles of Association and Subscribed by the prisoner, whereby the Prisoner obliged himself to obey the individual Orders of His Excellency Governor Franklin; is he (the Deponent) in possession of such paper, or does he know where the same is. Let him (the Deponent) declare all he knows touching the said Paper.
A The Practice at the Board is for all those persons who wish to be Officers of the Associated Loyalists, to sign one of the Association papers called Articles, which is kept in the Office; in which Governor Franklin is named as Commanding Officer. This set of Articles Captain Lippincott signed before he received his Warrant to raise a Company.
Walter Challoner, Esquire, Commissary of Prisoners for the Associated Loyalists already Sworn was examined.
Q At or about the time he (the Deponent) delivered Joshua Huddy to the Prisoner in pursuance of an Order from the Honorable Board of Directors, did he know that Huddy was to be executed for Philip White, who was already killed by the Rebels; how came the same to his knowledge and how were the two other P:risoners to be disposed of. Let him declare all he (the Deponent) knows respecting the then intended disposal of those three Prisoners, and how he knew of it. (meaning such disposal)?
A He never knew any thing of Joshua Huddy's being to be delivered to him (Captain Lippincott) 'till he (Captain Lippincott) brought the Order. In going from his (the Deponent's) house to the Provost with Captain Lippincott, Captain Lippincott told him, that the three prisoners (whom that Order concerned) were intended to be exchanged for a Philip White, Captain Tilton and another White, as he thinks. In their conversation on going to the Provost, Captain Lippincott told him (the Deponent) that if White was murdered (as had been reported) they intended to execute Huddy for him (White).
Captain William Cunningham, Provost Marshall, already Sworn was again examined.
Q On his (the Deponent's) examination on Friday last, he mentioned several things, as the confession of the Prisoner, and referred to a certain paper in his (the Deponent's) hands respecting the Matter of Huddy's execution; Where is that Paper and has he the same now to produce?
A Copy of a Deposition being shewn him (the Deponent) (vide Appendix No. 4
), he was asked if that was a true Copy of such Deposition, and answered it was a true Copy.
Q Has he (Captain Lippincott) been consistent from first to last in his Story respecting his having Verbal Orders for what he did, or not?
A He has been very consistent; he has kept constantly on one Story from the first to the last; one expression he constatnly made was of, Vizt., when he came before the Court he would put the Saddle on the right horse.
Q Has not he (the Prisoner) been cautioned to speak the truth, and not to accuse any person wrongfully?
A He (the Deponent) has always cautioned him to speak the truth from the first to the last; he has been mostly always present when any one went to Visit him (the Prisoner), and he has frequently heard Mr. Aplin and Mr. Harrison give him the same Caution by saying "the truth would always bear the sway."
Q Did he (the Deponent) ever hear Joshua Huddy, when a Prisoner in the Provost, boast of his having hanged one Edwards, and in what manner did he (Huddy) speak of that transaction?
A Shortly after Huddy came to the Provost as prisoner to the Associated Loyalists, he (the Deponent) had heard he (Huddy) had hanged a Refugee in the Jersies on a large Oak near the Court House at Monmouth; on his (the Deponent's) asking Huddy concerning such report, Huddy avowed it by saying "By God he did," and that he (meaning himself) slushed (meaning greased) the Rope Well, and that a Colonel Forman2 assisted in pulling the Rope hand over hand, that was the very expression Huddy made use of.
William Courlies, Husbandman from the province of New Jersey, and now one of the Associated Loyalists under the Board of Directors being duly sworn was examined.
Q What does he (the Deponent) know respecting the death of one Edwards, the Character of that Gentleman, and what was his real offence, together with all the circumstances of that transaction as far as he was able to collect them?
A He (the Deponent), at the time of Mr. Edwards death, resided at Shrewsbury in the County of Monmouth; that he (Edwards) was taken out of bed at his own house; that he was carried to a place called Freehold, to the best of his (the Deponent's) remembrance about three years since; the following day he was brought to some kind of trial, and the day following was executed; the Offence alledged against him was said to be his having some Papers found in his Pockets; from every thing he (the Deponent) heard respecting Mr. Edwards he bore an exceeding good Character.
Q by the Court Was any complaint made to General Washington on the death of Edwards, and what was the Consequence?
A He heard there was a complaint made to Genl. Washington or the Governor, but to the best of his remembrance he thinks to General Washington, but he cannot say what was the consequence of that Complaint, or what the Complaint was.
Q Was he present at, or does he know the names of the Judges or any of the Members that sat on the Tryal of Mr. Edwards as he has already related?
A He was not present; General Forman was one; Joshua Huddy was also one; he had that information from Joshua Huddy's own Mouth; he does not recollect who the rest were.
Q Was he present at the Execution of Edwards?
A He was not, but was at his Burial.
Q from the Prisoner Was Edwards tried for Treason against the Rebel State of New Jersey, or for any and what other Crime?
A He understood he was tried for Treason in consequence of those papers already mentioned.
Q What does he know respecting the Trials of John Wood and Thomas Emans, Loyalists in Monmouth County, the Crimes of which they were Accused, and the circumstances of that Transaction?
A He knows nothing of the Circumstances respecting Wood and Emans but by hearsay.
Q What does he (the Deponent) know respecting the Trial and Execution of Farnhan, Burge and Paterson, the Crimes of which they were Accused and the circumstances of that whole Affair.
A He furnished a Man with a Horse to prevent the Execution of those persons, but knows nothing of particulars only by Report.
Q What was the report of the County respecting these Matters?
A The general report was that those persons were carried to Monmouth and executed for being Loyalists and guilty of Treason against the State.
Q What has been the usual mode of proceeding against the Loyalists in that part of the Country, and what pretences do they generally make use of for their Cruelties against them?
A The general mode of proceeding has been that when any of the Persons alluded to were taken prisoners, they were considered as State prisoners, not prisoners of War, and were tried and executed by order of sometimes Civil Courts, sometimes Courts Martial, and sometimes without any Trial.
Q Did not the Rebel General Forman generally pass by the name of Black David, on account of his barbarous treatment of Loyalists in New Jersey?
A Yes; and for that reason, Vizt., Barbaritie, acquired that appellation.
Q What does he know respecting the deaths of Stephen West, Stephen Emans and Ezekiel Williams; the information he received respecting them and from whom and in the Manner in which their dead bodies were exposed and treated?
A He (the Deponent) was carried Prisoner to Monmouth in January 1779, on the night of the 24th of that Month; he saw a Captain Dennis3 of the Rebel Service bring to Freehold Court House three dead bodies; that Captain Dennis being a Neighbour of his (the Deponents) he asked where those Men were killed; he replyed they were killed on the Shore, where they were coming to join their Regiments; two of them, he said, belonged to Colonel Morris's Corps of General Skinner's Brigade; the other had been enlisted in their Service by those two belonging to Colonel Morris's Corps; he said also he (Capt. Dennis) had employed a Man to assist them in making their escape, at a place where he (Dennis) was to meet with them on the Shore, at which place he did meet them; that on coming to the Spot he (Dennis) surrounded them with his party; that the Men attempted to Fire, and not being able to discharge their pieces begged for quarter, and claimed the benefit of being prisoners of War; he ordered them to be fired on, and one of them by the Name of Williams fell; that they were all Bayonetted by the Party and brought to Monmouth, and that he (Dennis) received a sum of Money for that Action, either from the Governor or General Washington, which of the two he does not recollect.
Q from the Court. Does he (the Deponent) know, or has he heard of any person or persons under the denomination of Loyalists, put to death without trial after being taken Prisoner and Confined?
A Yes; one person by the Name of Pew.
The Court Adjourned 'till tomorrow morning 10 o'Clock.
Tuesday, June the 18th 1782.
The Court being met pursuant to Adjournment.
Henry Stevenson, Surgeon to the British Legion, being duly Sworn was examined.
Q Does he (the Deponent) recollect a Conversation between himself and several other Gentlemen at Mr. Rivington's (soon after the Confinement of the P:risoner for the Crime now charged against him) respecting a Paper that was sent to the Prisoner by some one of the Honorable Board of Directors, to be Signed by the Prisoner, assigning reasons for the execution of the said Joshua Huddy; and was he (the Deponent) then censuring a part of the said paper, which part expressed the execution of Huddy to be without the knowledge of the Board. During the said Conversation did Messrs. Stewart and Alexander (both Members of the Board) come into Mr. Rivingtons, and what further conversation passed on the Subject?
A Yes; he recollects a Conversation. He was at Mr. Rivingtons one evening some little time after he (the Prisoner) was confined in the Provost, and was mentioning to some Gentlemen that a Report had prevailed in Town, that the Board of Directors had drawn up an Instrument in Writing (which they wished Captain Lippincott to sign) purporting "that Captain Huddy was executed without their knowledge or consent"; just at the time they were talking on this subject, Mr. Alexander and Mr. Anthony Stewart (two of the Board of Directors) came in; and after Mentioning the above report, he (the Deponent) put the following questions to them, first, "Did you, Gentlemen, send such an Instrument in Writing to Captain Lippincott to Sign or not" they replied there had been a paper sent to him, but that he (Captain Lippincott) might alter it as he thought proper, or Words to that effect; Mr. Alexander particularly mentioned that he had objected to the Words "Without their knowledgge or Consent" being inserted. The second question was, "Tho' Huddy was executed, was it not done by your knowledge and Consent or Approbation"; they Assented and said it was.
Q Is he (the Deponent) acquainted with the hand Writing of Messrs. Stewart and Alexander (Members of the Board of Directors) and is the paper Writing now shown him, the proper hand Writing of Mr. Stewart or Alexander, and of which to the best of his (the Deponents) knowledge?
On a Paper being produced and Shewn him (the Deponent) vide appendix No. 5
he made answer he had often seen Mr. Alexander Write, and to the best of his Judgment, believed the Paper in question to be in his (Mr. Alexander's) hand Writing; he further answered he was no judge of Mr. Stewart's hand Writing.
Captain Thomas Crowell, a Refugee from Monmouth in New Jersey, now an Inhabitant of York, being duly Sworn was examined.
Q. Had he (the Deponent) any concern in an affair similar to the one now before the Court, and what orders and Direction had he from the Board or any of them, relative to the execution of any Prisoners?
A In consequence of several Loyalists being executed in Monmouth County, he (the Deponent) obtained from the Commandant thru' Governor Franklin, orders to the Provost Marshall to receive three Prisoners and follow such directions as he (the Deponent) might give with respect to their Confinement; that it was proposed to have executed one of them by way of retaliation, the Board of Directors having promised the Deponent that Orders should be given for the purpose, but dispute intervening amongst the Loyalists who had taken those prisoners, the Order was not given, nor did the execution take place; but he (the Deponent) in consequence of the Declaration made by the Board of Directors, dated 28th December 1780, should have thought himself justifiable in executing one of those Prisoners even had he received only a Verbal Order from the Board, having never seen any prohibition against the Declaration alluded to.
Pew, Widow, a Refugee from New Jersey, now an Inhabitant of New York, being duly Sworn, was examined.
Q What does she (the Deponent) know respecting the Murder of James Pew her late husband, the information She received on that Subject, and the Circumstances that attended it?
A Her husband, on the tenth of November three years since, on a friday(sic), was taken Prisoner and confined in Goal; that the Wednesday following he was Murdered by one James Tilley who was Sentry over the deceased at the time; the Coroner's Inquest brought him (Tilley) in guilty of Wilfull Murder; that he was confined in consequence thereof, but was released within three or four days afterwards, and is now at large.
Captain Jeremiah Pemberton, of the Refugees, being duly sworn was examined.
Q Does he (the Deponent) know any thing of a person Shot by the Rebel Guard in the Country after he was taken prisoner and Committed to Confinement in a house?
A In the Year 1778, he (the Deponent) was with a [blank - perhaps "party"] in the Country; that one Gibson belonging to the same party, after being taken prisoner, pinioned and Confined, was Shot by a person of the Name of Dalton; that Dalton was commended for this Act and promised a pension.
Samuel Taylor, Husbandman, a Refugee from New Jersey, being duly Sworn was examined.
Q Was he ever with, or did he (the Deponent) ever see Governor Franklin or any other Member of the Board upon an Application made by him (the Deponent) to him (Governor Franklin) for Joshua Huddy and what Coversation passed between him and the Governor or any other of the Board?
A Some time in April last he (the Deponent) Waited on Governor Franklin and informed him that the Rebels had taken Captain Tilton and Philip White and had Murdered the latter in a cruel Manner, and requested he (the Governor) would give an Order for the delivery of Joshua Huddy and one Randolph (who they looked upon as a Man of some consequence in that County) in order to exchange the latter for Tilton and to execute the former, Huddy, in retaliation for White; that the Governor expressed his displeasure at these Prisoners being confined in the Sugar House as Prisoners of War, and said as soon as they were removed to the Provost they would be under his directions, and he would then give the Necessary Orders if he thought the Deponent would execute him (Huddy) to which he replyed, he need not fear that. Upon his (the Deponents) waiting on Governor Franklin after the prisoners had been removed to the Provost, Governor Franklin told him that he would give the Orders he (the Deponent) desired, and (as he (the Deponent) was Ordered on another Service) asked what Officer he thought should Command the Party to go out and execute Huddy; the Deponent answered he thought Captain Lippincott a proper person and he (the Deponent) believed he would undertake it; the Governor then told him he wished Captain Lippincott would call at the Board Room at 2 o'Clock the following day; and in consequence of his (the Deponents) telling this to Captain Lippincott he Accordingly Attended at the appointed time at the Board Room, but the Directors would not give Captain Lippincott the Order unless he (the Deponent) was present, upon which the Deponent was sent for to the Board; that when he asked for the Order to be given to Captain Lippincott, a Member, whose person he knows but not his Name, said he need not trouble himself for that they should have the Order; that in the Course of Conversation he (the Deponent) had with Governor Franklin, the Governor told him that they were not only to hang Huddy, but that if the Rebels hanged any other in retaliation for him, they (the Loyalists) should continue Retaliating by hanging Man for Man, and if necessary, he would give up all those taken Prisoners at Tom's River for this purpose.
Q Has he (the Deponent) ever had any Conversation with Governor Franklin since the transaction alluded to?
A He has not.
Q from the Court - Was he (the Deponent) present at the taking of Huddy?
A He was.
Q Did he imagine the reason he was not employed at the Execution of Huddy was his being present at the Capture of him?
A He did not.
Q From the Prisoner. What was the general Opinion of the Associated Loyalists as to Governor Franklin's power, did they or did they not look upon him as their Commanding Officer, and did they generally look upon themselves bound to obey his Orders, whether Written or Verbal, as implicitly, as if the same were given by a full Board?
A They did.
Q from the Court - Are there any Articles of agreement, that point out the extent of Governor Franklin's Command?
A Yes; the Articles of Association.
Q Is not that obedience to Governor Granklin's Orders confined to lawful Orders?
A Yes; he expected (meaning Supposed) it was.
Q from the Prisoner. Did he conceive Governor Franklin's Orders for executing Huddy in retaliation to have been lawful Orders and such as he (the Deponent) ought to have obeyed, and if he was not Supposed Answerable by a Court Martial under the Board for breaking such Orders?
A He should have looked upon them as lawful Orders, and should also have thought himself Answerable for disobeying them.
Q from the Court - As he was present at the taking of Huddy can he inform the Court the time and place, and particularly whether he (Huddy) was in Arms?
A He cannot recollect the particular time; the place was Tom's River in Monmouth County; he was taken in Arms after a Considerable Skirmish.
Q from the Prisoner - Did he ever hear Governor Franklin say that they should not have Huddy unless they would execute him?
A On asking for Huddy, Governor Franklin said to him (the Deponent) "will you execute him when you take him out," he reply'd he would, or else he would not have made application for the Orders, and Governor Franklin added "then you shall have him."
Q from the Court - When he said he would execute him if he was delivered to him, would he have done it wihout an Order in Writing?
A He should have thought himself justifiable in doing it but nevertheless should have expected a written Order.
Q from the Prisoner Does he know under What Commission Huddy acted when he was taken Prisoner?
A He Stated himself a Lieutenant of twelve Months Men; he had a Warrant but does not recollect who 'twas Signed by.
Sampson Salter Blowers, Secretary to the Honorable Board of Associated Loyalists, being called before the Court again was further examined.
A Paper being shewn him (vide appendix No. 5) was questioned if he knows the Paper and the hand writing of its Content, and Answered he knew the paper to be in Mr. Alexander's hand Writing; he saw him (Mr. Alexander) write the greater part of it.
Q from the Court. As the paper has neither Signature or Address, by whom was it to be Signed, and to whom Addres'd.
A He understood from Conversations at the Board, that the Paper in question was a Copy of an unfinished report intended to have been made to the Board of Directors by Captain Lippincott, but he never saw the paper in Captain Lippincott's possession, or heard him (Captain Lippincott) say any thing respecting it.
Q Were not a number of Papers relative to this business sent by the Board to Sir Henry Clinton some time in April last and was this Paper now in question, or a Copy of it, amongst them?
A A number of Papers were sent by the Board to Sir Henry Clinton which he (the Deponent) carried; and a Copy of the Original of that paper, was amongst them.
Q Does he remember a Paper amongst those, wherein the Board of Directors, assigned as a Reason for that paper being sent in that unfinished State, "that Captain Lippincott was taken into Custody before he had time to Compleat it?
A There were several Communications between the late Commander in Chief and the Board respecting that business; in the first of which the Board informed the Commander in Chief they were not able to send Captain Lippincott's report because he had been taken up and Confined before he could compleat it. Afterwards when the Commander in Chief required a circumstantial Detail of all the Board knew respecting Captain Lippincott's proceedings at the Hook, they then sent a Copy of that paper amongst a Number of others, as a Report intended to have been made respecting that business, but did not say by whom.
Q from the Prisoner. Did he compare this paper with the Original he speaks of so as to know whether the same is an Accurate or Literal Copy?
A He never did; he has read both the Original and Copy but without correctly comparing them.
The Prisoner here informed the Court that he had many more Witnesses to prove Acts of barbarity committed by the Rebels, similar to those already proved and that he could particularly prove the taking some of Captain Lippincott's Men from Sandy Hook, their being tried and executed, and also the Murder of Philip White, which with the others led to the execution of Joshua Huddy, if the Court chose to hear it, but submitted to decline the further examination of Witnesses to those points, if the Court judged it unnecessary, and pray that his offer might be entered on the Minutes of the Court.
The Court being cleared and having considered the matter came to the following resolution and opinion, which was communicated to the Prisoner upon the Court being again opened, Vizt.
The Court do not think it necessary to go into any further examination of Acts of barbarity committed by the Rebels, except the Murder of Philip White, this being said to have more particularly led to the execution of Joshua Huddy; the Court will hear such Witnesses as the Prisoner may have to Speak to this fact and consent to his offer being entered on their Minutes, and it is entered Accordingly.
The Court Adjourned 'till tomorrow morning 10 o'Clock.
Wednesday, June 19th 1782.
The Court being met pursuant to Adjournment.
Aaron White, by trade a Carpenter, Inhabitant of the City of New York, being duly Sworn was Examined.
Q Has he (the Deponent) lately been a Prisoner with the Rebels?
Q At what time and place was he taken?
A At a place caled Long branch on or about the first of April last.
Q Did not one of the Rebels that took him and what was his name, tell him if they did not take Philip White, that they would put him to death?
A Yes one George Brindley told him so.
Q Was not Philip White soon after taken Prisoner?
Q Did he not hear one of the Rebels and what was his name, Swear by God, that Philip White should not go alive to Freehold, or words to that effect?
A He heard George Brindley say so.
Q Did not the Rebels stop at Colts-neck and there change the Guard that had charge of him and Philip White?
Q Did not Philip White frequently declare to him at Colts-Neck, that the Rebels would Murder him before they got to Freehold?
A He (Philip White) said he was afraid of it.
Q Did the Rebels when they moved him and Philip White from Colts Neck seperate them by sending him a head and keeping Philip White in the rear? or in What Manner did they move them?
A Yes. He (the Deponent) was carried forward, and Philip White was kept behind, as he (the Deponent) was told, when he was in Freehold Goal, under the charge of three Men.
Q What are the Names of the Guard that took charge of Philip White at Colts Neck, and what are their Characters?
A John Russell, John North, and one Burden; they are called three of as bad persecuting fellows as any in the Country.
Q Was it not his (the Deponent's ) opinion at that time, and is it not still his Opinion that the Rebels from their frequent threats, from their changing the Guard, from their Seperating him and Philip White, and from their keeping Philip White so far in the Rear, intended Murdering him (Philip White)?
A Yes it is now, and was always his Opinion.
Q Is it not his Opinion that if Philip White had not been taken, the Rebels would have Murdered him?
A Yes, Brindley told him they would Murder him.
Q What distance is it from the place Philip White was taken at, to the place where he was put to death, as near as he can recollect?
A Between fourteen and Eighteen Miles.
Q Did not the Serjeant of the Guard that had charge of him and Philip White as far as Colts Neck, inform him during his Confinement in Freehold Goal, that if Philip White had not been removed from his Charge, he would not have suffered him to have been killed, or words to that effect?
A The Serjeant did inform him so.
Q Did not General David Forman come to him (the Deponent) when in Goal, bring a Lawyer with him, and want him to make an Affidavit, that Philip White was endeavoring to make his Escape when put to death, and what Answer did he make him?
A He was carried from the Goal to the Lawyer's Office, and when General Forman proposed the Matter, he Answered he would die before he made such Affidavit.
Q After he (the Deponent) escaped from Freehold Goal, did not he see a number of his friends, and did they not unanimously inform him that Philip White was most cruelly and inhumanly Murdered, or what information did they give him of that Transaction?
A His friends all gave it as their Opinion that the matter was so.
Q from the Court - Did he ever make any Affidavit while he was Prisoner in the Jersies?
A Yes, he made one before General Forman.
Q What was the purport of that Affidavit?
A He took an Affidavit to the Circumstances of his leaving New York, the Skirmish, and the Circumstances of a Light Horseman leaping over a Fence, and that the people of Freehold told him (the Deponent) Philip White was killed fairly; he further says, if General Forman sent in another Affidavit it must have been forged.
John Tilton, by trade a Carpenter, a Refugee from Monmouth County, being duly Sworn was examined.
Q Was he (the Deponent) ever with Governor Franklin on the Subject of executing Joshua Huddy?
A He was.
Q Did he (Governor Franklin) or did he not then say that Joshua Huddy was to be executed for Philip White, or what did he then say?
A He said Joshua Huddy must be executed, or they (meaning the Loyalists) would all be hanged.
Q Did Joshua Huddy boast of his having Murdered Edwards, and when did he so boast, and how did he Speak of that Transaction?
A When the party was putting Joshua Huddy in Irons on board the Sloop he Was present, and he asked Huddy if he thought it was good Usage to Iron him; Huddy replyed that he did not think it was but as he was going to be exchanged in a day or two he did not mind being in Irons; and also said he expected to have the killing of him (the Deponent) and many more Yet, he (the Deponent) then asked him (Huddy) if he expected to hang him as he had done poor Stephen Edwards; he replyed he did not hang Stephen Edwards, he only tied the knot and greased the Rope that it might Slip easily.
Q What was Huddy's general Character?
A He only knows his Character by report.
Moffatt Taylor, a Refugee from New Jersey, being duly Sworn was examined.
Q Was he (the Deponent) ever with Governor Franklin on the Subject of executing Joshua Huddy?
Q Did he (Governor Franklin) or did he not then say Joshua Huddy was to be executed for Philip White or what did he then say?
A Yes; and Governor Franklin said that Randolph and Flemming were to be kept as hostages to be exchanged for Captain Tilton and Aaron White, who were then Prisoners in the hands of the Rebels, and that Joshua Huddy was to be executed for Philip White who had been murdered, and if he was not executed he had better be left, as one by the name of Smock was taken out to be executed but was not, which Occurrence gave cause to the Rebels to think they (the Loyalists ) were afraid of them and dared not hurt them. He (Governor Franklin) said Colonel De Lancey had had many of his people hanged and Murdered and put into the Mines, and his (Governor Franklin's) advice to him was, to hang them in return, which he (Colonel De Lancey) did, and soon put a Stop to their Murdering his people; that the Rebels had wrote to him (Colonel de Lancey) to exchange their Prisoners, which he did and they were got into a good line of Exchange; and that if they (the Loyalists) took the same Methods of retaliation Colonel de Lancey did, they would bring them into the same line of desiring an Exchange; he (the Deponent) told Governor Franklin he had no Commission; Governor Franklin said Capatain Lippincott had a Commission from the Board, and told him (the Deponent) to go to him and he dared Say he (Captain Lippincott) would be fond of going; He (the Deponent) went to Captain Lippincott, told him Governor Franklin had appointed him to go and asked him if he was willing to go; he (Captain Lippincott) replyed he had nothing to say against it, he was very willing to go; after that Captain Lippincott went to Governor Franklin and he (the Deponent) had nothing further to do with it.
Q from the Court - Did he ever see or know of any written order or Warrant being given by Governor Franklin or the Board of Directors to Captain Lippincott for the execution of Joshua Huddy?
A He did not.
John Wardell, Esquire, formerly one of the Judges of the inferior Court in the County of Monmouth being duly Sworn was examined.
Q Is he acquainted with and how long has he known the Prisoner, what has been his general Character previous to the present Rebellion as well as since?
A He has been acquainted with him more than ten Years; that he (the Prisoner) was his Neighbour, and was always looked upon as a peaceable, inoffensive, honest Man.
Reverend Samuel Cook, Clerk, Deputy Chaplain to the Brigade of Guards, being duly sworn was examined.
Q Is he acquainted with, and how long has he (the Deponent) known the Prisoner; what has been his general Character previous to the present Rebellion as well as since?
A He did not know him before the Rebellion, but has been acquainted wih him upwards of three Years, since he (the Prisoner) has been within His Majesty's Lines; that he has been particularly Acquainted with him, and has every reason to think his Character stood as fair as that of any Refugee within His Majesty's Lines.
Colonel John Morris, late of the 2d Battalion of the Brigade of New Jersey Volunteers, being duly Sworn, was examined.
Q Is he (the Deponent) acquainted with, and how long has he known the Prisoner; what has been his general Character previous to the present Rebellion as well as Since?
A He has known the Prisoner many Years; he always supported a uniform good character ever since he (the Deponent) has known him, and he always endeavored to serve Government all in his power, and that with propriety; he has never known him guilty of plundering or any Action of that kind.
The Court Adjourned 'till Saturday Morning 10 o'Clock.
Saturday, June 22d 1782.
The Court being met pursuant to Adjournment.
The Prisoner closed his Defence with the following Address to the Court
"Mr. President and Gentlemen of the Court.
"Such is the awful Nature of that Situation in which I now stand, that it would argue peculiar insensibility, not to experience every anxious emotion from it. Whatever may be the fortitude which conscious innocence will Supply, yet human Nature cannot be unmoved at being brought to a tryal on so criminal an Accusation. Your Candour and patient attention could alone enable me to Support it; and from the recent experience of those amiable qualities, I am inspired with a Confidence in their renewed exertions. Under the influence of that Sentiment, I shall therefore proceed to conclude this Enquiry and bring before the Court as soon as possible the more essential parts of my defence.
It may not perhaps be improper on this Occasion to remind you that in a former Address I have particularly delineated my Situation as a Loyal Refugee, and the unequal and perilous Condition of that Description of His Majesty's Subjects, in Terms that I am Convinced carried their own evidence in the experiences of all who were present. I shall not repeat what I then said upon the Subject, it must be fresh upon the Memorys of my Judges, tho' I cannot but lament that the Virtues of Loyalty and Attachment to the Constitution should have produced such unhappy effects upon those who possessed them.
Under Various pretences several of my friends & Neighbours and Vast numbers of my Country Men, united in one Common cause, by all the Ties of Affection and Interest, have fallen a Sacrifice to Rebel Barbarity, to produce the proof of even of a few such pretences, whould have Spun out your enquiry to a most unreasonable length, and there is not a Gentleman upon this Court who can possibly be ignorant of many more than I could have proved. Humanity recoils at enumerating the Circumstances of Savage Cruelty which have been employed upon such Occasions. The unhappy Victims have in some instances been butchered with impunity in cold blood by those were were appointed to Guard them in Confinement; whilst in other Cases the Mockery of a trial before usurped Tribunals has been made a Cover for Rebel Cruelty & the pretext for ignominous Executions. The laws of Society had been restrained from Operating against those who were in Actual Rebellion, whilst at the same time the most loyal Subjects were executed as Traitors by Rebel Judicatures, merely for maintaining their allegiance.
When such flagrant Acts of inhuman Barbarity were so often and so repeatedly perpetrated, his Majesty's loyal Subjects could not but expect that Government would at length interpose in their behalf, and resort to that power of retaliation which in such Circumstances is derived from the Law of Nations, and which alone could effectually stop the progress of so growing an evil.
It was with peculiar Satisfaction that they beheld the institution of a Board, calculated for their Protection, Commissioned by the Commander in Chief; and published under his Sanction (at least without any external Marks of his disapprobation) in their first public Act, a Solemn Declaration that they would take just Vengeance for any future barbarity the Rebels might commit.
This Declaration has been produced before the Court. It evidently holds out the promise of retaliation as an inducement to invite the Loyal Refugees to Associate under that Board, and I may safely submit to every candid Judgment, whether from the circumstances of its publication it might not be supposed to intimate not only the real powers of the Board, but the General's Sense of them. This at least is certain, that the loyal Refugees understood it in that Sense and that they entertained no doubt but the Board had powers sufficient to justify the Measure.
Indeed it was hardly possible to deduce a contrary Inference from the Transaction. How could it be imagined that a Solemn Declaration founded upon a recent Commission, could contain Clauses unwarranted by the Commission itself? Or how could it be imagined that the Commander in Chief would suffer such a Declaration to pass unnoticed if authorities were claimed by it which he did not mean to Confer? If such a Supposition could be admitted the only end of the Declaration must have been that of Public Deception, and the only effect of it, that of planting Snares in the paths of innocent and Misguided Men.
Influenced by this Declaration, and the promise of Security from the future effects of Rebel Barbarity which it held out to us, many Loyalists Associated under the Board, and among others myself, & was recommended as a proper person for a Commission; by Accepting which, I bound myself implicitly "to obey the Orders of the Board, my Commandant or other Superior Officer." These are the very expressions of my Commission, a Copy of Which is now before the Court.
What I have already said may naturally be Considered as an Introduction to the particular transaction on which the present charge is founded; but as the Circumstances of that Transaction and what more immediately led to it, are upon the proceedings of the Court, I shall not enter into a Minute and Circumstatial detail of them but content myself with Observing.
That upon an Account being received in Town of the Murder of Philip White, some of his friends applied to Governor Franklin (as President of the Board & Commandant of the Loyalists) for a retaliation in the person of Joshua Huddy, who was considered as a proper Object for that purpose, from his known Cruelty & his Savage & unmanly manner of boasting of it.
That the Governor judging it proper that a retaliation Should take place, sent for me upon the Occasion & gave me his Orders (which I supposed were Authorized by the Board) for the Execution of Huddy. That in Consequence of such Orders I received Huddy into my possession & commanded the party which disposed of him according to what we thought that the Will of our Superiors & the Nature of the Obedience we owed them required of us.
Such is the fair and Candid Account of this transaction as it appears before the Court upon all the Evidence which has been offered. It cannot have escaped Your Observation that in the few instances of contradictory evidence which have occurred during the Trial, the weight of it has constantly been decisive in my favor. To corroborate this remark, it will be sufficient to reflect that the Secretary of the Board must without doubt have misapprehended what passed respecting Tilton, for whom Randolph and not Huddy was intended to be Exchanged. Huddy was certainly not a Man of equal Weight and Consequence with Randolph, and besides the Concurrent of three Witnesses confirmed by the Confession of some Members of the Board has placed this Matter beyond the possibility of a doubt. I say not this with a design even to glance at the honour of the Gentleman but as I inspect the difference of Testimony in this respect to his Misapprehension alone, so I must observe that if my proofs had been less connected in general & more feeble in instances where they have turned out so strong, my Defence might have been Materially affected by a Mistake upon this Subject. Having cleared up this circumstance (as I trust) to the satisfaction of the Court, I shall now proceed to consider the Evidence by which it appears that I actually received Orders for the execution of Huddy.
From the nature of human Actions in general, it may frequently happen that no positive and direct proof can be obtained respecting them. Hence a Rule is established both by Law & reason that when a fact cannot be proved it will be Sufficient to prove such Circumstances as usually and Necessarily attend such facts. This rule is of the utmost importance & has even been extended to the proof of the Fact, in cases where Life is concerned, and where of course the highest evidence is required to Convict. If therefore the proof of such Circumstances as induce a violent presumption will be deemed evidence of the Fact even on a Capital Accusation, humanity, Justice & every principle of reason must forbid us to doubt of its being adequate for Defence as well as for Crimination. With a view to this rule, let me be permitted to ask whether any Circumstances can induce a Stronger or more Violent presumption of Orders than the Conversation of Governor Franklin, my being sent for to receive his Orders; my obtaining the Prisoner in consequence of what then passed; my producing to the Board the very Label that was to be placed upon Huddy's Breast; my declaring upon all Occasions that I acted by the Orders of the Board; & my conducting Myself in every respect precisely as I should Naturally have done, when I had actually received those Orders.
So many concurring Circumstances form in this respect a chain of evidence which must remove every doubt even from the most incredulous, and give the highest Authority to that evidence which appears in my behalf upon the Minutes taken by Capt. Cunningham & exhibited to the Court. Upon that subject I shall only beg leave to Mention that as the Confession of the party is the best evidence that can possibly be obtained, so that whole confession, if used is to be admitted for Truth & taken together. It would be the height of cruelty & injustice to select from the Prisoner only what operates against him, and not to pay attention to every circumstance in his favor, which he at the same time discloses. Another observation that will give weight to What I now say is that my confession(sic) have at all Times been perfectly consistent, & that there is not a Single Circumstance in the paper I refer to, but what is confirmed by other testimony or perfectly harmonizes with it. I cannot therefore doubt that this Court will pay attention to those Minutes and Consider them as carrying no Small Weight when combined with so Many striking Circumstances.
Let me here, Gentlemen, make another observation to You, the Justice of which I am sure you will acknowledge; and with unprejudiced Minds it will perhaps have greater effect than any I can mention.
Guilt, Gentlemen, ever shuns the Light & affects to hide itself in Obscurity & concealment. My whole conduct was open and undisguised. I waited upon Governor Franklin at his own desire, to receive his orders. I took them with the most unsuspicious Confidence that he spoke the Language of the Board & had power to command one. I affected no Secrecy. I carried the Label for Huddy to the Board Room. It was notorious to Many before we left New York. I disclosed my Orders to Capt. Morris of the Guard Ship. Every man of my Party (even Brooks himself) was confident that we had Governor Franklin's Orders & if I had not had them I must have been the greatest idiot in Nature to Act as I then did.
The presumption which arises upon this Occasion from so many connected circumstances affords the best evidence of which the Nature of the thing is Capable. Positive proof could not be obtained. I could not consistently with my own feelings or those of my Council reduce Gentlemen to the disagreeable Dilemma either of Criminating themselves or of swearing in their own Justification, which might in some measure lessen the Authority of their Oaths.
But several objections to the nature of my Orders having been hinted during the course of this trial, I shall now proceed to obviate them in the best manner I am able, & to shew that they do not remove the ground of my Defence or involve me in the guilt of Murder.
The first of them is founded upon a distinction taken as to lawful Orders, which alone are supposed entitled to obedience.
In considering this Objection, I must beg leave to observe that the General of an Army by the Law of Nations, as I am well informed & have always understood, has a right to retaliate in such cases as he thinks, from the cruel behavior of the Enemy, require it. Much indeed to be lamented is the sad Necessity to which he is then reduced but the great principle of humanity will, in some cases justify the Measure, & the event has generally attoned(sic) the Means; Instances have not been Wanting even in our own Annals & perhaps have subsisted even during the present Rebellion to support the position. Admitting therefore this principle & considering the Declaration of the Board as Sanctioned by the General, I could not doubt in this Case the legality of their Orders, or suppose myself culpable for executing them. The whole current of Testimony has evinced that I was not singular in my Opinion, but that it was generally received among the Associated Loyalists.
But it is further to be considered that the Board of Directors is a new Establishment, and a kind of Surprise upon the Constitution. It's(sic) powers have been lamely & uncertainly Limitted(sic), and their precise extent is by no means generally known. The Officers or private Associators who act under them cannot therefore be supposed to know their Jurisdiction perfectly, like Sherriffs(sic) or other Officers who Act under Courts whose powers have been long established & are defined by the Constitution.
For my own part, being unqualified as a Yeoman of New Jersey, for the new Disquisition of Delegated powers having Associated under the Board from a principle of Loyalty; and conceiving that they would assert no powers in their public Declaration but what were entrusted to them, I could not entertain even a doubt upon the Subject.
In the present instance, I could consider myself in no other light than as aiding in a Military Capacity under the Board of Directors & their president or my Commandant. The precise extent of Military obedience I am ill qualified to Ascertain. All that I know upon the Subject is that disobedience of a Lawful Command either in a Soldier or Officer is punishable with Death, & therefore to question the Legallity(sic) of orders in dubious Matters may be attended with most fatal Consequences; shall I add that the Sentiments of the first persons in the present Age for Military Discipline are uniform, that Subordinate Characters have no right to Judge of Orders & are bound to obey the decisions of their Superior Officers.
But it may be further objected that my Orders were merely Verbal, and therefore ought not to have been considered as legal or binding. I must confess that I am at a loss to know upon what this Objection is founded, as neither my Commission nor the Articles of Association, neither the Law for punishing Mutiny, nor any other that I am acquainted with, hold out any distinction as to the Validity of Written or Verbal Orders. True it is that the Meaning of Written Orders may be ascertained with greater precision, & that possessing internal evidence their existence may be more easily proved. But both kinds are equally binding, and instances have not been wanting, when a disobedience to verbal orders has been severely punished. Prudence however would dictate the obtaining Written Orders in many Cases, & I have already suffered not a little from an Apprehension that I might not be able to supply the Want of them by Adequate proof; but as such a variety of testimony has clearly and Substantially ascertained the Fact of Verbal Orders, and as the Law with respect to Military Matters has not made such refined distinctions; they surely will not now be adopted, when the Life of a Subject is the Stake that depends upon them. Indeed even in Civil Matters where Forms are more particularly adhered to, and where every Officer expects a Legal Warrant to produce in his Justification, this distinction does not seem to be entirely well founded. I beg leave to refer upon this Occasion to Sir Matthew Hale's History of the Pleas of the Crown, where it will appear that one [Varnum], a Sheriff of Warwickshire was fined two thousand pounds for not obeying a Verbal Order of a Judge to execute a Prisoner. Such Order was indeed founded upon a precedent Judgment, but as that Judgment only conferred Authority upon the Judge to pronounce the Sentence, so in Military Matters the Authority for a Commanding Officer must be supposed at least an equivalent, & in both cases it seems that a Verbal Order would be Sufficient to justify Obedience.
In this place it may not be improper to Observe that I ought not to be affected by the Orders which were sent to Mr. Challoner, and which have been produced to Support the latter part of the Charge against me. The Orders issued by the Board to the Commissary could never be considered as a rule by which I was to regulate my conduct, in opposition to the Orders which I myself had received. It has been fully proved by Several Witnesses, in the course of this Trial, that Huddy was given to me for the express purpose of Retaliation & that I was to have him upon no other condition. The order therefore of the Board to their Commissary could not operate against the express Orders which I received to the contrary. If the Board or any of it's(sic) Members might have had their reasons to conceal from Mr. Challoner, their Commissary, the knowledge of what was realy(sic) intended in respect to the Prisoner, surely their reserve towards him could not influence my duty, which was ascertained by Orders to which he was not a party; this may suffice with respect to Mr. Challoner's Orders, and at the same time it shews that the latter part of the Charge is totally destitute of foundation.
Perhaps however it may be insisted, that tho' the knowledge of the Board or of several of its Members has been indisputably proved, yet no evidence has been produced of any Orders except from Governor Franklin alone. But it is to be considered that Governor Franklin's Orders were doubly binding upon Me; & that he appeared not only in the light of President of the Board & therefore as Speaking the Sense of the Whole, but also as my Commandant whom I was bound to Obey both by the Terms of my Commission & the Articles I had Signed. To infer the contrary would be to Suppose that words had been inserted in such Commission, destitute of any meaning and that could only Serve to involve those who acted under them in inextricable difficulties. Even therefore if it should be conceived that My Orders Originated with Governor Franklin alone, yet as he was my Commandant, those Orders would justify me. This is one of those Self evident propositions, which are incapable of Demonstration, or of receiving by any process of reason, Additional force & Lustre. But it ought to be ever remembered that I attended the Board with the Label, which was prepared for the Occasion, and as they did not then express any disapprobation their Conduct amounted to a tacit ratification of my Orders.
Thus Gentlemen, I have endeavoured to Answer every Objection with regard to those Orders under which I expected to Justify. To your own Candour & recollections I submit the evidence of them, & am persuaded that not a doubt can remain in your breasts upon that Subject, Tho' the precise form of Words may not be determined. For my own part, I do not know that any particular Words are appropriated for Orders & I am convinced that as the Witnesses agree in Substance, their testimony will have More Weight with persons of reflection, than if they had all uniformly joined in one Studied and Set form of Expression.
I have hitherto considered my Conduct as strictly justifiable by Orders of my Superiors which I did not Solicit and which I was bound to Obey. I come now in the last place to shew that under all the Circumstances of the case, The fact Charged against me cannot be legally considered as Murder. In order to demonstrate this, I must beg leave to recur to that description of Murder with which I introduced my Defence, & to the Observation which I then Made that you could not finally adjudge any thing to be Murder here that is not so at common Law.
Let me Observe that the crime of Murder is by no Writer upon the English Law described with greater precision and Accuracy than by the late Judge Foster. I shall therefore repeat a few Sentences from him, which will throw considerable light upon this Subject. "The Law (says he) by the term Malice meaneth that the Fact hath been attended with such Circumstances as are the Ordinary Symptoms of a Wicked, depraved, Malignant Spirit" a little after he says "the words per Malitiam &c. constantly mean an Action flowing from a Wicked and corrupt Motive. And in another place that "Most if not all the cases which in our books are ranged under the head of implied Malice, will, if carefully adverted to, be found to turn upon this hinge point, that the fact has been attended with such Circumstances as carry in them the plain indications of a heart regardless of social duty and fatally bent upon Mischief."
From all these passages it is evident that this Malice which the Law requires to be charged in every Indictment for Murder & which ought to be proved, denotes somewhat Wicked, depraved & Malignant, the plain indication of a heart regardless of Social Duty, & the Dictate of a perverse and incorrigible disposition.
The Motive then from which the Action is Criterion whereby it must be judged, and that motive is to be collected from all the circumstances by which the fact is attended.
In order therefore to Designate me as a Murderer within the legal meaning of the Term, it is necessary to forget all the Motives which led to this Transaction, & to Obliterate from Your Memorys that sense of Duty and Obedience to orders which Actuated me in it.
Even if I have mistaken the Powers by which I was governed or been incautious with respect to the Nature of My Orders. Yet Heaven can Witness, and the Whole Tenor of my proof will confirm it, that my heart was free from Corruption, & that I was induced to Act on this Occasion by Motives directly opposite to those which the Law presumes to rankle in the bloody Bosom of a Murderer. Can it then be possible that Gentlemen whose Sentiments are refined above the Vulgar prejudices can Suppose that because the Mere Act of homicide is proved, they ought to load me with a Crime at which My Nature revolts, & which every Circumstance of the transaction as my whole Character shows that I could not have in idea. That humanity, that Candour & attention which they have so long exerted forbid the apprehension and convince me that however they may tax my Imprudence, they will acquit my heart, and by their Suffrages for a time preserve a life which has long been devoted to the Service of my King and which I should Yield without repining to Serve his Cause.
Gentlemen must be convinced, that the motive in Law is essential to the Crime, from the celebrated case of Woodfall for printing the Letter of Junius to the King when the Jury found the Prisoner guilty of "printing and publishing only, but without the Criminal Motives, laid in the information; the Consequence of which was the discharge of the prisoner, and no doubt, those who, by their Oaths, are to try a Criminal Charge ought to determine upon all circumstances without which Criminality cannot exist.
Here then, Gentlemen, I shall rest my Defence but I cannot satisfy my own feelings without doing Compleat Justice to Mr. Cox, a Member of the Board, as it might possibly be inferred from an expression in Mr. Blower's testimony that he was privy to the design of executing Huddy, and as I have now reason to believe, that he was ignorant of it & then unacquainted with the Contents of the Paper mentioned by Mr. Blowers. I cannot refrain from intimating my opinion on the Occasion. One thing still remains upon my Mind. It is to Apologize for the embarrassment offered to this Court, and as I shall do it with Sincerity, I hope what I say will be received with Indulgence. They have not been the result either of guilty apprehensions or of personal dislike to my Judges. They have proceeded from the honest prejudices of an English Subject ever Attached by Trial by Jury, and from a Wish to prevent for the present an Enquiry which might lead from principles of Self preservation to Criminate those for whom I had a respect, and whom I looked upon as Sincere Friends to their King & to the British Constitution."
The Deputy Judge Advocate Addressed the Court as follows
"Mr. President and Gentlemen,
The Court having considered the Evidence for and against the Prisoner, Captain Richard Lippincott, together with what he had to offer in his Defence, and it appearing that (altho' Joshua Huddy was executed without proper Authority) What the Prisoner did in the Matter was not the Effect of Malice or Ill-will, but proceeded from a Conviction that it was his Duty to obey the Orders of the Board of Directors of Associated Loyalists, and his not doubting their having a full Authority to give such Orders, the Court is of Opinion that he, the Prisoner, Captain Richard Lippincott, is Not Guilty of the Murder laid to his Charge, and doth therefore Acquit him.
Whatever weight it may carry with it, I should think my self higly Culpable, and Wanting in Justice to the office I have the honor to hold, were I to wave(sic) my legal right of replying to the Prisoner's Defence.
Although long accustomed to Speak in public, Yet I rise with diffidence on every such Occasion to what pitch then must that diffidence arise when I consider the importance of the Subject I am now to offer my Sentiments on; nothing but the ardent desire I ever had and hope ever to retain of executing to the fullest of my ability the duties of my Station could prevent my being now Silent.
I have not only had to conduct an intricate trial, on a charge not cognizable, except under particular Circumstances before a Military Tribunal, and Consequently not within my common and ordinary Line of duty, as a Judge Advocate, but I have been obliged to do it under Many disadvantages, some of which must have already appeared to the Court, others I will in the Course of this reply explain, and in Addition to the other Passions which Agitate my Mind on this Occasion I cannot Suppress the fellings(sic) that forcibly press upon me, when I reflect that I am the Prosecutor for a Crime (the most detestable and heinous in the Eyes of all Civilized Nations) against a Man, who by the concurring testimony of many very respectable Witnesses is declared to be not only a Loyal, but an honest, inoffensive Subject. Under these Circumstances, I Must, whilst I am executing the further necessary function of my office, that of submitting to the consideration of the Court, a Summary of the evidence that has been laid before them, request their kind indulgence and Assistance, should I thro' mistake stray or Swerve from the Matter in question, for I pledge my faith and honour and every thing that is dear to me that mistake alone shall carry me out of the right road.
The candour and attention shewn by the Court throughout the Tryal, insure me Success on these points, I will therefore not trifle with their time by the Commonplace Compliments too usual on these Occasions; the greatest compliment I can now pay them is to proceed without further preface to a Stating of the several facts given in evidence, the inferrences(sic) and reasonings drawn from them in the Prisoner's defence and then with all due deferrence(sic) offer to the Court (what my duty calls for and my inclination consequently prompts me to) such remarks thereon, as may seem pertinent.
Previous to examining the Witnesses on the part of the Crown, I thought it necessary to explain to the Court what the Law deemed Murder. I have now, Gentlemen, to call to your recollection, the several Circumstances which in an Act of homicide constitute Murder, as well as the facts which have been given in Evidence on this tryal, and then leave it to you to determine how far these facts collectively taken, constitute the crime of Murder.
To establish proofs that the Prisoner at your Bar, was a person of sound Memory and discretion, and neither an idiot, lunatic or infant, that he did kill without Warrant or excuse; that the person killed was a reasonable Creature, and under the King's peace at the time of killing, altho' he was an Alien, Jew or Outlaw, and that the killing was committed with Malice aforethought, was the purposes of the Prosecution.
I have mentioned to you, Gentlemen, difficulties I had to encounter in carrying on this prosecution. Inability, particularly in respect to professional knowledge of the Law, was not amongst the least, but at the same time I must declare, it was not the only one of Magnitude. It is a consequence of War that those who may be esteemed Necessary Witnesses, cannot at the Moment of Tryal be collected, from their being empolyed on other Services, and it may be also consequential in War, where immediate execution of Justice is necessary not to delay a tryal. I do not mean to say that has been or is the Case in the present Instance, but as it appears in the Course of Evidence that there were no less than twenty three who composed Captain Lippincott's party, and (We know nothing to the Contrary) were present at the execution of Joshua Huddy, it may appear extraordinary (if not explained) that I should have produced, on the part of the prosecution, only one Witness to this most consequential and identical fact.
I am well aware that the Doctrine of Law is that the best evidence the nature of the Case will admit of, shall always be required, if possible to be had, but if not possible then the best evidence that can be had shall be allowed. I do here avow that the greatest pains were taken to procure the best evidence, the Nature of the Case would admit.
Had it been contested that Captain Lippincott did not execute or cause Joshua Huddy to be Executed, I should have found myself under the necessity of going thro' a Wide field of evidence to endeavor to prove not only the fact but the Circumstances under which it was committed; but as in the Course of the Defence, no attempt has been made to disprove (Nay, it has been confess'd by implication at least) that Captain Lippincott presided and was Chief in Command at the execution of Huddy and took no pains or measures to prevent that execution. I shall therefore say no more with respect to the absolute Commitment of the Act but proceed to make some few remarks on the circumstances offered in extenuation thereof: these, I think, may be reduced to two heads, Vizt.
1. First, that he acted under the Orders of Governor Franklin, whom he regarded as his Commanding Officer, and whom he was implicitly bound to Obey.
2. Secondly, that from the Rebels having committed many Wanton and Cruel Murders on the Loyalists, retaliation became necessary.
Implied obedience is a term grating to the Ears of an Englishman, and in the Statutes for the regulation of Military Men, amongst whom from the nature of their profession, a ready obedience to command, becomes most necessary, this obedience is softened off by being confined to lawful Orders only. It appears in Evidence that Governor Franklin and some others of the Board of Directors talked of the Necessity of Retaliation; that Governor Franklin, in speaking of Huddy said, if you will execute him, You shall have him, and that when the Order was asked for, some of the Members of the Board Answer'd never Mind that, he (Captain Lippincott) shall have the Order, but no Written Order has yet been brought forth in Evidence before this Court. Great Stress has been laid by some of the Witnesses, upon the Declaration published by the Board of Directors of Associated Loyalists in December, 1780, and a paragraph of it produced (and desired by the Prisoner to be Minuted.) in Vindication of having Obeyed a Verbal Order from Governor Franklin. But even this paragraph contains only a promise from the Directors to Omit nothing in their power to make the Enemy feel the just vengeance due to such enormities. And could it be supposed that this meant any thing more than that the Directors would be the immediate Instruments under the Commander in Chief, for executing their just Vengeance, when we peruse the Instructions and Regulations for the Board of Associated Loyalists (for he who reads one should read the other) expressly point out that they are to undertake no enterprize, nor suffer the Associated Loyalists, under their Command, without making the Commander in Chief of the Army and Navy acquainted with their intentions. Under such circumstances can such a Verbal Order as the Prisoner alledges to have received from Governor Franklin be held up as an Argument in Vindication, or can it be justified in the Eyes of God or Man for one Mortal moving in an inferior Sphere of Life cooly and deliberately to take away the life of another, upon the bare Word of a third, who tho' in rather a higher Station, was still in a Subordinate Capacity.
Could any one Suppose that Governor Franklin in his Subordinate Capacity could exercise a power greater, by the British Constitution than is possessed by Majesty itself, that of giving a Verbal Authority to execute without a tryal a Man, avowedly at the time under the protection of the King's Government.
It give me much pain to be obliged to draw these reflections; and wish most sincerely that Captain Lippincott could avail himself of the Plea of Ignorance, but unfortunately we have it from too good Authority, the great Lord Chief Justice Hale that ignorance of the Municipal Law of the kingdom, or of the penalty thereby inflicted upon Offenders, does not excuse any that are of the Age of Discretion and Compos mentis from the penalty of the Breach of it, because every person of the Age of Discretion and Compos mentis is bound to know the Law and presumed so to do.
As the second plea offered in extenuation, the necessity of Retaliation. Altho' the many cruelties committed by the Rebels on the King's Loyal Subjects, as given in evidence, must agitate the breast of every Member with horror against the one and pity towards the other, yet I am afraid that this plea can little avail the prisoner. It is too well known to those, whom I am now addressing myself to, as well as every other who hears me, in whose hands alone Retaliation is and ought to be Lodged, to require any reasoning thereon. It has been offered as an Argument in favor of retaliation that it has had a good effect on another Occasion. Were it necessary to bring them forward, I am Master of a Sufficiency of evidence that the case alluded to, was very dissimilar to the one now in question, and therefore ought not to have been quoted on this Occasion. It has also been said that application has been made to the late Commander in Chief to afford some remedy in restraint of such cruel excesses, but that no such remedy has as yet been applied. However I may reprobate the idea of Injustice or rather want of Justice in His Excellency, which is hereby implied, I shall not enter here into a Vindication or other discussion of this point, it being, in my humble Opinion, not the Matter before the Court, but as such stands upon your Minutes, I could not entirely pass it over in Silence.
I have already offered to you, Gentlemen, that to establish proofs that the prisoner at your Bar was a person of sound Memory and discretion and neither an idiot lunatic or infant; that he did kill without Warrant or cause, that the person killed was a reasonable Creature and under the King's peace at the time of killing, tho' he was an Alien, Jew or Outlaw, and the killing was committed with Malice aforethought, were the purposes of the prosecution. The object of the Prisoner has been to extenuate the Crime charged against him and thereby remove the Idea of his having been guilty of that most horrid Crime, term'd Murder, for to the glory of the British Constitution, every killing is not murder; how far he has succeeded now lays with you Gentlemen to decide.
Having performed this part of my Duty, I shall now return to another, that of recording Your Opinion with respect to the Prisoner's guilt or Innocence. And shall faithfully insert with as much pleasure, as I am convinced you will dictate it, every Syllable that may tend to favour the Prisoner.
A true Copy
Step. P. Adye
D. Judge Advocate
___ Appendix ___
By His Excellency Sir Henry Clinton, KB, General and Commander in chief of all His Majesty's Forces within the Colonies laying on the Atlantic Ocean, from Nova Scotia to West Florida, inclusive, &c &c &c;
To Richard Lippincott __ Esq.;
Reposing especial Trust and Confidence as well in the Care, diligence and Circumspection, as in the Loyalty Courage and Readiness of You to do His Majesty good and faithful Service, and in the recommendation of the Honorable Board of Directors of Associated Loyalists, Certified by the President, I do, by Virtue of the Power and Authority in me Vested, constitute and appoint you the said Richard Lippincott to be Captain of a Company of Associated Loyalists, under the said Board of Directors, in the Battalion commanded by . You are therefore to take said Company into your Care and Charge, and duly to exercise and train as well the officers as privates thereof, and to use your best endeavours to keep them in good Order and Discipline. And the said Associated Loyalists are hereby charged and commanded to Obey such Orders as they shall from time to time receive from you or such other Officer or Officers as may be appointed under you in the said Company. And you are to observe and follow the Articles of Your Association, and such Orders and directions from time to time as you shall receive from the Board of Directors of Associated Loyalists, your Commandant, or any others Your Superior Officer (Subject, however to my Controul(sic), that of the Commander in Chief for the time being, or in our Absence to the General Officer Commanding at New York; and when acting in conjunction with any detachment of his Majesty's Forces, to be Subject also to the Orders of the Officer Commanding the same) in pursuance of the Trust hereby reposed in You.
Given under my Hand and Seal, at Head Quarters, in New York, this Seventeenth day of February, One thousand Seven hundred and Eighty two, in the twenty second Year of the Reign of our Sovereign Lord George the third, by the Grace of God, of Great Britain, France, and Ireland; King, defender of the Faith, and so forth.
(Signed) H. Clinton
By His Excellency's Command
(Signed) John Smith
Instructions and Regulations for the Board of Associated Loyalists
To William Franklin, Esquire, Governor of New Jersey, Josiah Martin, Esquire, governor of North Carolina, Timothy Ruggles, Daniel Cox, George Duncan Ludlow, Edward Lutwyche, George Rome(sic), and George Leonard, Esquires.
You being duly Constituted and Appointed by Commission, under my Hand and Seal, bearing date herewith, a Board of Directors for Associating, embodying, ordaining, governing, and employing the Loyalists in North America for carrying on operations against his Majesty's revolted Provinces. You are for the better conduct of the business entrusted to your Management to Observe the following regulations Vizt.
1st You are to frame Articles of Association, by which such of His Majesty's faithful Subjects in North America, as are able and willing to bear Arms, and desirous to Associate themselves under your direction, may be engaged to serve during the Rebellion, or for such lesser time as you may judge expedient, or as you and they can agree; which Associators are to be duly enrolled under the Command of such Officers as shall upon the recommendation of a Majority of your Board, be Commissioned by me or the Commander in Chief of the King's forces in North America for the time being, and Subjected to Such Orders and regulations as you may judge necessary and proper. Provided the said Articles of Association, and all general Orders and regulations made by you from time to time, be no way repugnant to these or any future Instruction you may receive.
2nd You are, for the encouragement of those who may Associate as aforesaid, to assure them they shall be furnished with such Ordnances and Stores, Small Arms and Ammunition, as my be judged proper for the Service, and can be spared from the King's stores. That they shall be supplied with Rations of Provisions when they are going upon Service and during their Continuance upon it. That all Captures made by the Associates, when not acting in Conjunction with any of His Majesty's Land or Sea Forces, shall be their intire(sic) property, and distributed among them in such shares and proportions as shall be settled by Your Board. That when they join the King's Troops on Special Services, upon the requisition of the Commander in Chief, or other Commanding officers of the King's Forces, they shall during the time of such Co-operation, receive Pay and Subsistance as the King's Troops, and such share and proportion of Captures as shall be previously agreed upon. That they shall be furnished by the Commander in Chief of His Majesty's Ships on the North American Station, with such shipping as he shall Judge necessary and proper for the Service, from among the Transports or other Vessels in His Majesty's pay, not commanded by the King's Officers and which can be spared from other more important Services, to be manned by themselves, and that their Mariners shall not be impressed into any other Service during their continuance in your employment. That the Prisoners they take shall be under your direction and exchanged by you for Associated Loyalists only, except in Special Cases either assented to by yourselves, or directed by the Commander in Chief; and in the latter case, Prisoner of equal Rank from among those taken by the King's regular forces shall, if requested by you, be given in lieu of the one belonging to the said Loyalists. That sick or wounded Associated Loyalists shall be received into the King's Hospitals on your recommendation. That such Associated Loyalists as may serve with the Army as Guides, upon the requisition of the Commander in Chief, or other Commanding Offficers of the King's Forces, shall receive half a Dollar per Diem during their continuance with the Army. And that such Associator, who shall continue to Act under the Orders of the Directors during the Continuance of the Rebellion, shall receive a gratuitous grant of two hundred Acres of Land in North America, clear of all Fees or Expences of Office.
3d You are to undertake no enterprize, nor suffer the Associated Loyalists under your Command, without making the Commander in Chief of the Army and Navy, or, in their Absence, such Military and Naval Officers as they shall appoint, acquainted with your Intentions, and the Enterprize being Acquiesced in by the said Commander in Chief, or in their Absence, by the Officers they shall appoint for that purpose.
4th You are to give public Notice that all Refugees and other Loyalists within the British Lines (not in the King's Army or Navy, or in private Ships of War) are forbid to make any incursions into the enemy's country, or on their coasts, unless under the direction and Control of your Board, or with Your Assent or acquiescence, or the special order or permission of the Commander in Chief of the Army and Navy for the time being, it being intended that the exertions of the Loyalists in North America, be for the furure, under one General Direction and Regulation.
5th You may, with the acquiescence of the said Commander in Chief, form Conjunct Expeditions for distressing the Rebels, and others of the King's Enemies in any quarter, with such private Vessels of War, as may, though not owned by the Associators, be willing to Act with them.
6th You are to order the Commanding Officers of all parties and Detachments of Associators to be particularly careful, that no loyal, or quiet, inoffensive Inhabitant, residing among the Rebels, be hurt or Molested in person or property, and if thro' mistake or Necessity, the Associators should happen to take any thing from such a person, you are to endeavour to have it speedily restored, or Compensation made to the full Value. Nor are you to suffer any Excesses, Barbarities, or Irregularities to be committed contrary to the Laws of Arms as practised by Civilized Nations.
7th You are to direct the Associators to endeavour in all their Excursions to obtain every useful Intelligence respecting the Enemy, and particularly to bring off all Letters and Papers which they may find in the houses of distinguished Rebels, which intelligence you are to Communicate to the Commander in Chief for the time being.
8th You are to appoint a Secretary to keep Minutes of your proceedings, write and Sign Orders, Returns, &c, who must be a person of known Loyalty, Integrity and Ability, in whom you may place the greatest Confidence. He shall receive Shillings per diem, besides an allowance for Stationary(sic), Fuel, Candles, &c.
9th You are to hold your Meetings at such times and places as a Majority of the Board shall agree upon, or as shall be appointed on Special Occasions by Your President. The Member first in Nomination in the Commission, present at any Meeting of the Board, to Act as President. The Secretary to Summons, or give previous and Sufficient Notice to each of the Members of all Meetings. A Majority of the Members of the Board, within the British Lines of New York, to form a Quorum for business, except upon some extraordinary emergency, and when more Members cannot be collected in time, then any Number, not less than three, may proceed to Business.
New York April 8th 1782
Deliver to Captain Richard Lippincott the three following Prisoners. Lieut. Joshua Huddy, Daniel Randolph, Jacob Flemming, to take down to the Hook to procure the Exchange of Captn. Clayton Tilton, and two other Associated Loyalists.
By order of the Board of Directors
of Associated Loyalists
S. S. Blowers Secry.
Mr. Commissary Chaloner
Judge Advocate's Office
New York, the 10th May 1782
Personally appeared before me, Stephen Payne Adye, Esquire, His Majesty's Deputy Judge Advocate in North America, Captain William Cunningham, Provost Marshall to the Army, under the Command of His Excellency General Sir Henry Clinton, who being duly sworn on the Holy Evangelists of Almighty God, deposeth and saith, he heard Captain Lippincott say that Governor Franklin often said there was no way of stopping the Rebels from Massacreing the Refugees but by Retaliation, and he wanted one Mason to be the Object, Captain Lippincott answered he would be the Man who would cause it to be done, if he (the Governor) would give him an Order in Writing, so that he might stand fair in the Eyes of His Excellency the Commander in Chief, Governor Franklin replyed that he could give no written Order, but would answer the Consequences to the Commander in Chief, as it was the only way of putting a Stop to the Rebels hanging and Murdering the Loyal Refugees &c. And he further heard Captain Lippincott say that he had been told some time ago by two Refugees that the honorable Board would give up Captain Huddy and two other Prisoners, and that Huddy should be executed for Philip White, and the other two should be executed for Captain Tilton, and another for Aaron White (supposing Tilton and the other had been executed by the Rebels) if not they were to be offered in exchange for them that Captain Lippincott waited on the Honorable Board with a Label that was intended to be fixed on Huddy's breast and gave it into the hands of the Governor, and asked him if he thought that would do, or something to that effect. Mr. Cox who was present made answer and said Captain Lippincott ought to have kept that to himself, Captain Lippincott answered, he never did any thing but what was done above Board. The Governor read it, and then gave it to another of the Board to read, and when Captain Lippincott was going out, the Governor wished him Luck, or Success, or words to that effect.
He further says Captain Lippincott seemed a little affected when he (the Deponent) gave him a Copy of his Crime, and expressed a seeming surprize by saying "Ha! is this the way the Board is going to leave me," or Words to that purpose. He further saith, before Lippincott was made a Prisoner, he (Lippincott) told him the Board sent him near three Sheets of Paper, Written, the contents of which were to acquit the Board of knowing any thing of Huddy's death and that he (Lippincott) should take it entirely on him self and Sign the Paper and send it to the Board, which he believes he should have done, but the Deponent making him prisoner at the time he was copying it, had hindered him from so doing.
He (the Deponent) further saith after he had minuted down this Conversation that had happened betwixt him self and Captain Lippincott, he read it repeatedly to Captain Lippincott, and asked him if he had taken it down right, as he (the Deponent) imagined he might be called on in the course of the Tryal; Captain Lippincott answered it was perfectly right and that he would prove every thing he had told him in the course of his Tryal; that he was much Obliged to him (the Deponent) for the Trouble he had taken, as he designed on his tryal to call upon him as an Evidence in his behalf.
Sworn before me at
the time and place
(signed) Step. P. Adye
D. Judge Advocate
(Signed) Wm. Cunningham
Capt. & Provost Marshl.
In compliance with the Orders of the Humble Board of Directors we beg leave to communicate to your Excellency for their information an Account of the proceedings of the Loyalists from Monmouth on the late Expedition for the relief of Capt. Clayton Tilton ^ and two other Loyalists then
a prisoners with the Rebels in that County.
Being frustrated in the Design of bringing off Capt. Tilton by force and our ^ offers for
him Exchange rejected attempts to procure his Exchange We dreaded that he was reserved for a fate Similar to that our Associate Philip White had Suffered, who was taken at the same time with Capt. Tilton and inhumanly and Wantonly Murdered by the Guard who were carrying him to Monmouth Goal.
This recent instance of cruelty added to the Many daring Acts of the same Nature, which have been perpetrated with impunity by a Set of Vindictive Rebels well known by the Designation of Monmouth Retaliators X fired out party with an indignation only to be felt by Men who for a Series of Years have beheld many of their Friends and Neighbours butchered in cold blood under the usurped form of Law ^ and often
under without that Ceremony for no other crime than that of maintaining their allegiance to the Government under which they were born, & which the Rebels Audaciously call Treason against their States.
We thought it hgh time to convince the Rebels we would no longer tamely Submit to such glaring Acts of Barbarity, and though we lament the Necessity to which we have been driven to begin a retaliation of intollerable(sic) cruelties long continued and often repeated, yet we are convinced, that we could not have Saved the life of Capt. Tilton by any other means; We therefore pitched upon Joshua Huddy as a proper Subject for retaliation, because he was not only well known to
be ^ have been a very Active and Cruel persecutor of our friends, but had not been ashamed to boast of his having been instrumental in hanging Stephen Edwards, a Worthy Loyalist, and the first of our Brethren, who fell a Martyr to republican fury in Monmouth County. Huddy was the Man who tied the knot and put the Rope about the Neck of that inoffensive Sufferer. This fact will appear by two Affidavits which ^ we I have the Honor to inclose.
It is true in this instance we have acted without the orders ^ or Knowledge of
of the honorable Board, but we hope when they are pleased to take into their Consideration the Motives which induced us to take this Step and that Huddy was executed in the County where so many Acts of Cruelty have been committed on Refugees, they will not think our conduct reprehensible, the more especially when your Excellency peruses the following State of facts. (X)
(here insert them)
Many of the above are Ascertained by Affidavits and such as are not, are too notorious to be denied even by
David General Forman ^ himself the most persecuting Rebel in the Country, commonly called Genl. Forman or black David.
By a strange Fatality the Loyalists are the only people that have been treated as Rebels during this Unhappy War, and
they we are constrained by their our Sufferings to declare, that no efforts have been made by the Government, under whose protection we wish to live, to save our brethren from ignominious Deaths, it is our fixed determination, that should the Rebels to answer their however repugnant to our feelings (having on all occasions, treated our prisoners with tenderness, and often indulged them with Paroles which they have frequently Violated.) that should the Rebels to answer their Malignant purposes, continue to punish the Loyalists under their Usual distinction of Prisoners of State from Prisoners of War, they shall feel by a Severe retaliation, in every instance the just Vengeance due to such Enormities. Blood shall flow for Blood, or the Loyalists will perish in the Attempt.
I have the Honor to be on behalf of
the Associated & other Loyalists of
yr. Excellency's Most
Obedt. humble Servt.
Associated and headed by one General Forman (whose horrid acts of Cruelty have gained him universally the Name of Black David).
Extract from a Declaration published by order of the Board of Directors of Associated Loyalists, Dated 28th December 1780.
Signed William Franklin President, and Countersigned S. S. Blowers, Secretary.
"It will also be an Object of their immediate Care to put a Stop to those distinguished Cruelties with which the Colonial Loyalists are generally Treated, when they have the Misfortune of falling into the hands of the Rebels. Should these hereafter, to answer their Malignant purposes, endeavor to avail themselves of their usual distinction of Prisoners of State from Prisoners of War, by Which so many worthy Loyalists have already Suffered the most ignominious deaths, the Directors pledge themselves to the Associators to omit nothing in their power, to make the Enemy feel the just Vengeance due to such enormities."
1. Sir Henry Clinton, at the direction of Lord George Germaine, on 27 December 1780, approved the creation of the Board of Directors of Associated Loyalists, appointing ten members to the Board:
William Franklin, Governor of New Jersey, President
Josiah Martin, Governor of North Carolina
George Duncan Ludlow
The establishment of the Board, and its purposes, was published the following day. See Onderdonk's 'Revolutionary Incidents of Queens County,'
pp. 219-20 (#407). Jones' 'History of New York during the Revolutionary War,'
Vol. II, pp. 481-3, suggests another 15 members were subsequently added to the Board of Directors. Late in 1782, Sir Guy Carleton abolished the "Honorable Board of Directors of Associated Loyalists."
2. Probably Colonel Samuel Forman, 2nd Regiment, Monmouth. See Stryker's Official Register of the Officers and Men of New Jersey in the Revolutionary War, p. 352.
3. Probably Captain Benjamin Dennis, Monmouth; Capt. John Dennis had "died in the hands of the enemy at New York," 15 January, 1778. Ibid., p. 388.