The proceedings of a general court-martial, held at Cambridge, on Tuesday the twentieth of January; and continued by several adjournments to Wednesday the 25th of February, 1778: upon the trial of Colonel David Henley.

PROCEEDINGS OF A GENERAL COURT-MARTIAL, HELD AT CAMBRIDGE On TUESDAY the Twentieth of JANUARY; And continued by several ADJOURNMENTS to WEDNESDAY the 25th of FEBRUARY, 1778: UPON THE TRIAL OF COLONEL DAVID HENLEY.

BOSTON: PRINTED BY J. GILL, IN COURT-STREET. M.DCC.LXXVIII.

GENERAL ORDERS, FOR HOLDING A GENERAL COURT-MARTIAL FOR THE TRIAL OF COLONEL DAVID HENLEY.

HEAD-QUARTERS, BOSTON, January 18, 1778.

THE Court whereof Brigadier General GLOVER was president, appointed by the orders of the 10th inst. to inquire into the grounds of a com|plaint exhibited by Lieutenant-General BUR|GOYNE, against Col. HENLEY, late command|ing-officer of the American troops at Cambridge, after mature consideration, are of opinion, "That from the evidence offered on the side of General BURGOYNE, against Col. HENLEY, it will be most for the honor of Col. HEN|LEY, as well as for the satisfaction of all interested, that the judgment of a Court-Martial should be taken on his conduct, during his command at Cambridge."

The General approving the opinion of the Court, orders that a special General Court-Martial set on Tuesday next, at ten o'clock A. M. at the Court-House in Cambridge, for the trial of Col. DAVID HENLEY, late commanding-officer at that post, accused by Lieutenant-General Burgoyne, "of a general tenor of language and conduct heinously criminal as an officer, and unbecoming a man, of the most indecent, vio|lent, vindictive severity against unarmed men, and of inten|tional murder."

• Brigadier-General GLOVER, President.
• Col. Wesson,
• Col. M. Jackson,
• Col. Lee,
• Col. H. Jackson,
• Lieut. Col. Colman,
• Lieut. Col. Badlem,
• Lieut. Col. Popkins,
• Major Curtis,
• Capt. Randall,
• Capt. Langdon,
• Capt. Sewall,
• Capt. Hastings,

MEMBERS.

Lieutenant-Colonel TUDOR is directed to act as Judge-Advocate.

All evidences and persons concerned, to attend the Court.

A true copy of General Orders, J. KEITH, D. A. G.

At a General Court-Martial held at Cambridge, on Tuesday the 20th day of January, 1778, and continued by seve|ral adjournments to Wednesday the 25th February follow|ing, by virtue of the orders of Major-General HEATH, dated the 18th day of January.

• Brigadier-General GLOVER, President.
• Col. M. Jackson,
• Col. Wesson,
• Col. Lee,
• Col. H. Jackson,
• Lieut. Col. Popkins,
• Lieut. Col. Badlem,
• Major Curtis.
• Capt. Allen,
• Capt. Randall,
• Capt. Langdon,
• Capt. Sewall,
• Capt Hastings.
• WILLIAM TUDOR, Judge Advocate.

The members being met and duly sworn, the Judge Ad|vocate being also sworn, a letter from Lieut. Gen. BUR|GOYNE to Major-General HEATH, of the 9th of January, was read as follows, viz.

Cambridge, January 9, 1778.

SIR,

A Report has been made to me of a disturbance that hap|pened at the barracks on Wednesday afternoon, for which I am much concerned; and though the provocations from your people which originally occasioned it, were of the most atrocious nature, I was willing the offender on our part should be properly punished.—But Col. Henley, not content with that, made prisoners eighteen innocent men, and sent them on board a guard-ship, as alledged by your order. It is not only a duty to my situation to demand the immediate discharge of these men, together with a satisfactory apology; but I also mean it as an attention to you, Sir that I give you an immediate opportunity to disavow so unjustifiable a pro|ceeding as committing men to the worst of prisons upon vague report, caprice and passion.

Insults and provocations at which the most placid disposi|tions would revolt, are daily given to the officers and sol|diers of this army.—Regular, decent complaints are received by your officers, sometimes with haughtiness, sometimes with derision, but always without redress.—These evils flow, Sir, from the general tenor of language and conduct held by Col. Henley, which encourages his inferiors and seems calculated to excite them to the most bloody purposes.

For want of sufficient information and not bringing my|self to believe it possible, facts as related by common re|port could be true, I have hitherto declined taking public notice of this man; but upon positive ground, I now, and hereby, formally accuse Col. Henley of behaviour heinous|ly criminal as an officer, and unbecoming a man—of the most indecent, violent, vindictive severity, against unarmed men, and of intentional murder.—I demand prompt and satisfactory justice, and will not doubt your readiness to give it. Whenever you will inform me that a proper tribunal is appointed, I will take care that undeniable evidence shall be produced to support these charges.

I am, Sir, your most obedient servant, J. BURGOYNE.

To Major-General HEATH.

Col. David Henley came prisoner before the Court, and the following charge was exhibited against him, viz.

"LIEUTENANT-General Burgoyne accuses Colonel Henley, of a general tenor of language and conduct heinously criminal as an officer; and unbecoming a man; of the most indecent, violent, vindictive severity against unarmed men; and of intentional murder."

To which accusations Col. Henley answer'd he was not guilty.

Observations of Gen. Burgoyne upon his letter of com|plaint to Gen. Heath, and the order for the Court-Martial consequent thereupon, being read by the Judge-Advocate:

Lieut. Gen. Burgoyne arose and took occasion to observe a distinction between the charge as stated in his letter, and in Gen. Heath's orders. In the letter, the general tenor of Col. Henley's language and conduct, "Encouraging his inferiors, and seeming calculated to excite them to bloody purposes," was matter of suspicion, belief and reasoning, upon the plain principle that it was more candid to suppose one instigator of such evils, than a general voluntary bad disposition among the American troops—that the direct mat|ters of charge which Gen. Burgoyne pledged himself for|mally and officially to support, was contained in the words "Behaviour heinously criminal as an officer, and unbecom|ing a man, of the most indecent, violent, vindictive severity against unarmed men, and of intentional murder."

Gen. Burgoyne having stated this observation, as a security against censure of inconsistency on his part, for not going at large, and in matters of inferior moment into the general tenor of language and conduct of Col. Henley; declared he should confine his evidence to the transactions of the nine|teenth of December, and eighth of January, except in cases where the behaviour of Col. Henley at other times, served to elucidate the principles and designs upon which he acted on those particular days; and Gen. Burgoyne admitted the words should stand in the order, without remonstrance or trouble to the Court, upon the persuasion that even as he has now limitted the time, a sufficiency of evidence would ap|pear to make good the whole.—And then addressed the Court in substance as follows.

Mr. President and Gentlemen of the Court,

I Present myself as prosecutor before you in charges of a heinous nature against Col. Henley—and before I begin to adduce the evidence in support of them, I think it a duty to my station, and a part of propriety towards the Court, to declare the principles upon which I act.

If the reports in my hand, and which will presently be brought to test upon oath, do not deceive me, public faith has been shaken, wanton barbarities have been committed, and a general massacre of the troops under my command ap|parently threatened.

In objects of this magnitude, where not only the rights of a single nation, but the interests of human nature are con|cerned, the effort of vindication falls indispensably:—How|ever disagreeable the office, and unequal the talent of the person, to him who has the supreme trust of his country upon the spot.

A second inducement to appear here, is that of private ho|nor.—I have undertaken to accuse Col. Henley in a de|gree that ought to effect the feelings of a soldier nearer than life.—It is fit that I stand forth in person to maintain my ac|cusation, and if it fails in point of proof, to make him the fullest attonement in my power.

I acknowledge a third impulsion upon my mind equally irresistable—gratitude, esteem, affection to that meritorious, respectable part of my country, the brave and honest Bri|tish soldiers.

A private man defenceless, because unarmed; ignorant of your laws; unqualified to make good his cause in a court of justice,— has no where to look for redress of injury, but to his own officers.—I confess I am too selfish to resign to any brother officer the pride and gratification of standing in the front, for the defence of men—faithful comrades of honor and misfortune—who have fought under my orders, who have bled in my presence, and who are suffering oppres|sion & persecution by the abuse of a treaty signed by my hand.

Thus much I thought proper to premise, least any man should suppose me actuated by so mean and paltry a motive as vindictive personal resentment, against a gentleman too of whom before these transactions, I could know no harm, and towards whom if I had any prejudice, I seriously declare it

was from his general deportment a favourable one:—Perso|nal resentment!—no gentlemen—I stand upon broader and upon firmer ground, the ground of natural right—personal protection—and public honor—and I appeal to the great principles and land-marks by which human societies hold and are directed, and which, whether in times of amity or hostility, are held equally sacred by the universal concurrence of civi|lized man.

And this leads me to a momentary reflection upon the order under which you sit, originating from the report of the Court of Inquiry. It states, "After mature consideration, are of opinion, that from the evidence offered on the side of Gen. Burgoyne, against Col. Henley, it will be most for the honor of Col. Henley, as well as for the satisfaction of all interested, that the judgment of a Court-Martial should be taken on his conduct during his command at Cambridge."

"The General approving of the opinion of the Court, orders," &c. &c. &c.

I confess I expected Gen. Heath would have joined issue with the prosecutor in this instance, and placed the court-martial upon a more enlarged basis than the honor of an individual, however respectable he may be, or the satisfac|tion of the mere complainant—but be it as it may, my pur|pose is answered—a court-martial is obtained; the members are sworn, and you are bound to decide. I know you will feel with me the difference between this and common courts: Such a state of the minutes as would suffice for your internal conviction after hearing the evidence, or as would be merely explanatory to the person who is to confirm the sentence, will not be thought sufficient here.

You well know the whole of this matter will be publish|ed, translated, considered, commented upon by every nation in the world; and not only reality but perspicuity of justice must appear upon the face of these proceedings.—You are trustees for the honor of an infant state, and therefore evasion, subterfuge and law-craft, was any man hardy enough to offer such to your tribunal, would be of no avail; nay, were it possible any member could be warped unintentionally by personal favour, or the prejudices of civil contest: Good minds are sometimes prone to such illusions—yet here a mo|ment's reflection upon the reputation of his country, would interfere, and what his prejudice inclined him to adopt, his policy would prompt him to reject.

Upon the full confidence therefore of the necessary as well as willing justice of the Court, I shall proceed to call the evidence. I have neither inclination nor powers to heighten the facts by a previous narrative: Let them strike the view, as truth shall shew them in all the simplicity of their horrors—a monstrous spectacle! from which the eye and the mind will turn aside with detestation.

The following witnesses were called in, and being parti|cularly cautioned, were sworn:

Corporal Buchannan, 9th regiment.

Q. Was you present at the barracks on prospect-hill on the 19th December last?

A. I was.

Q. Did you see Col, Henley there?

A. Col. Henley came down and ordered a number of the British soldier's who were prisoners, out of the guard-house: Col. Henley addressed himself to Corporal Reeves, with the rest of the prisoners, inquiring what he was confined for? Reeves said that he had affronted one of the Provincial offi|cers, not knowing him to be an officer, and he was sorry for it. Col. Henley reply'd, Sir, if you had served me so, I would have run you thro' the body, and I believe you to be a great rascal. Reeves made answer, Sir, I am no rascal, but a good soldier, and my officers know it. Col. Henley then demanded silence. On this, Reeves repeated I am no rascal, but a good soldier, and I hope soon to be under the com|mand of Gen. Howe, to carry arms, and to fight for my king and country. Col. Henley said, damn your king and coun|try—when you had arms you were willing to lay them down. Reeves said he was not willing to lay them down. Col. Hen|ley then ordered silence; Reeves not obeying his orders, but re|peating the same words, Col. Henley ordered one of the guard to run him thro' the body: the man not obeying him, Col. Henley immediately dismounted from his horse, and seizing a firelock with a fixed bayonet from one of the guard, stabb'd Reeves in the left breast; while the bayonet was at Reeves's breast, Col. Henley told him if he said another word, he would have it thro' his body. Reeves said he did not care, he would stand for his king and country 'till he died. Col. Henley then made another push at him, when I threw up my hand and turned the bayonet over Reeves's shoulder.

I told Col. Henley the man was a prisoner, and said don't take his life; as he is now in your custody, you can take other means with him: Col. Henley then return'd the fire|lock to the man of the guard he took it from▪ and then or|dered Reeves and myself into the guard-room, and dismissed the rest of the prisoners.

Q By Gen. Burgoyne—When Col. Henley made the second pass at Reeves, where would it have struck him had you not thrown the bayonet up with your hand?

A. Much about the same place in the left breast.

Q When Col. Henley demanded silence, did he direct himself particularly to Reeves?

A. I can't tell, as there was ten or a dozen prisoners who were making their excuses together.

Q. Was there not much noise made by the prisoners?

A. There was, as they were all speaking together.

Q By the President.—What kind of noise was it?

A. It was excusing themselves to one another, so that Col Henley might hear them; that they had been confined there for some nights, and they should take care not to come there again.

Q. By the President.—Was there any other sort of noise or laughing?

A. No.

Q By the Court—Was there any muttering or grumb|ling, or insolent looks directed to Col. Henley?

A. No, but quite the reverse; the men seemed pleased at being released.

Alexander Thompson, 29th regiment.

Q. Was you present at or near the barracks on Prospect-Hill on the 19th of December?

A. I was, and saw Col. Henley there—Col. Henley coming up, ordered the prisoners out of the guard-house, of whom I was one—the prisoners were drawn up before the guard-room window, the guard in their front—Col. Henley pulling a paper out of his pocket▪ began to read the crimes at the right of the line of the prisoners—Col. Henley said, now soldiers I am come to release you, and hope you will behave better for the future—Col. Henley directing him|self to corporal Reeves, told him he was confined for abu|sing an officer of the Continental service; and asked him what was the reason of his abuse? Reeves replied he did

not know the reason of the abuse as he was in liquor at the time, but said he was very sorry for it, not knowing him to be an officer: Col. Henley then said had it been me, I would have certainly run you thro' the body, and added, I believe you to be a rascal. Reeves said he was no rascal, but was a good soldier, and his officers knew it: Col. Henley demand|ed silence and Reeves again said that he was a good soldier, and hoped in a short time to fight under Gen. Howe for his king and country: Col. Henley then said, damn your king and country, when you had arms you were willing to lay them down. Corporal Reeves made answer that he was not willing to lay them down, and had he then arms, he would do his ut|most to fight for his king and country; Col. Henley then order'd one of his guard to run the rascal thro'. The man not obeying, he immediately dismounted his horse, seized a firelock with a fix'd bayonet from one of the guard, ex|tended his arm above his head, with his hand on the butt of the fire-lock, and made a pass at corporal Reeves and prick'd him near the nipple of the leaft breast; he then drew back the fire-lock and made another pass at him; I then seized hold of the socket of the bayonet and begg'd of Col. Henley not to take his life, that he might use other means of satis|faction, and begg'd he would send him into the guard-room again; Col. Henley then order'd Reeves into the guard-room, the guard committed him, and Col. Henley went on to speak to the rest of the prisoners. Reeves put his head out of the guard-house window and said something, but the deponent does not know what. Col. Henley then released the rest of the prisoners, except Buchannan, who was orde|red into the guard-house.

Q. By the President.—Was there noting said by Reeves between the first and second pass of Col. Henley?

A. To the best of my recollection there was not.

Q. Did not Col. Henley frequently command silence be|fore he stabb'd Reeves?

A. I believe he did more than once or twice.

Q. Did not Col. Henley direct himself to Reeves when he demanded silence?

A. He look'd first at Reeves, and then along the line of prisoners.

Q Was not Reeves more talkative than any of the other prisoners?

A. He was.

Q. Was there any thing said about King Hancock?

A. I heard nothing.

The same question was put to Buchannan.

A. Not 'till after Reeves was returned to the guard-room, and the other prisoners dismissed; Reeves then said to me (Buchannan) this is a poor pass I am come to, to be taken out of the guard-house and stabb'd, and my king and country damn'd—damn King Hancock and the Congress. Whether Col. Henley heard it or not I can't say; he might have heard it: This discourse was between Reeves and my|self as we stood near the guard-house window.

Q. To Thompson.—Did any one assist you in warding off the second pass made by Col. Henley at Reeves?

A. Yes; Corporal Buchannan had hold of the firelock at the same time.

Q. Did not Col. Henley address the prisoners when they were first paraded, in a mild and civil manner?

A. He did.

Dr. Bowen, acting surgeon to the 9th regiment.

Q. Did you see corporal Reeves after he was wounded by Col. Henley?

A. I did a few hours after; the wound appeared to be made by a bayonet, it penetrated the breast a little above the left nipple; the wound was not so bad as to require imme|diate dressing; the wound was slight, it did not penetrate deep enough to be of any consequence, it might have drawn a drop or two of blood.

Q. By Gen. Burgoyne—What further depth would have put his life in danger?

A. An inch farther might have rendered the wound ha|zardous.

Q. By Gen. Burgoyne.—Was the direction of the wound towards the heart, or a mortal part?

A. It was not towards the heart, but towards a mortal part.

The Court adjourns to Wednesday 21st January, at ten o'clock.

WEDNESDAY, 21st January. The Court met according to adjournment.

Robert Steel, serjeant 62d regiment.]

Q. WAS you at the barracks on prospect-hill on the 19th December?

A. I was.

Q. Did you see Col. Henley there?

A. I did; Col. Henley came down to release some Bri|tish soldiers, prisoners in the guard-house there; the priso|ners were ordered out and paraded in the front of the guard-house; Col. Henley asked the prisoners their names, and what crimes they were confined for? corporal Reeves told him that he was confin'd for abusing a Provincial officer in Cambridge, and said he did not know him to be an officer, if he had he would not have abused him, was very sorry for it, and ready to ask his pardon; Col. Henley made answer that if it had been him he had abused, he would certainly have run him thro', and told him he believed him to be a damn'd rascal. Reeves reply'd I am no rascal, Sir, but a good soldier, and my officers know it; and I hope in a short time to join Gen. Howe, and fight for my king and coun|try. Col. Henley reply'd, damn your king and country, what do we care for your king and country; when you had arms you laid them down very willingly. No, Sir, Reeves reply'd, we did not, we were willing to fight. Upon this, Col. Hen|ley order'd one of the guard to run him thro', his order not being comply'd with, Col. Henley dismounted from his horse, seiz'd one of the guard's fire-lock and stabb'd Reeves in the breast; Reeves demanded the reason of his stabbing him? Col. Henley cry'd silence, Sir, and made another pass at him, two of the prisoners who stood nearest Reeves, seiz'd the fire-lock, and desired Col. Henley not to take his life, as he was a prisoner, and his life was in his hands: Col. Henley then told him he would send him on board a guard-ship, and ordered him into the guard-room; he releas'd the rest of the prisoners, excepting Reeves and corporal Buchan|nan.

Q. Before Col. Henley stabb'd Reeves, did he not or|der him more than once to be silent?

A. Not that I know of.

Q. Did not the Colonel command silence among the priso|ners before he stabb'd Reeves?

A. After he stabb'd him he did, I don't know that he did before.

Q. Did you not hear Reeves say King Hancock was an impudent fellow for coming to see their General?

A. I did not indeed.

Q. Is what you have now related the whole of what you heard and saw pass between Col. Henley and Reeves?

A. It is.

Q. Was your situation such that you might have seen and heard every thing that passed between Reeves and Col. Henley?

A. It was; but I did not attend to all that passed.

Q. By the President.—After Col. Henley stabbed Reeves, before he made the second pass at him, did he not command silence?

A. He did; but Reeves said he would not be silent, or words to that purpose, he would stick up to his king and country.

Q. Did not Reeves strike his fists, and use a menacing ex|pression?

A. I did not observe.

Q. By Col. Henley.—When I first came down to release the prisoners, did I not appear in good humour towards the prisoners?

A. You did.

Page 24th regiment.]

Q. Was you at or near the barracks on prospect-hill on the 8th January?

A. I was, and saw a guard of Continental soldiers about eleven o'clock, A. M. coming up from Winter-hill; when they came near the British guard-house, a number of us were standing to see them march by, I happen'd to tread on one of my comrade's toes, and he cry'd out God damn my soul, when a serjeant (as I took him to be as he was out of the ranks) turn'd about, steped back two or three paces, and stabb'd him in the right breast, then drew out his bayonet from the man's breast, and said to the man damn you, you rascal do you damn me? the soldier made answer no; I like|wise said that he did not speak to him; he then made another push at him, and prick'd him the second time, and then

clubb'd his firelock and cut him on his right temple; a Provincial officer, came from the rear of the party and damn'd us for rascals, and told us we all deserv'd it.

Q. Did you see Col. Henley at or near the party during this transaction?

A. I did not.

Q. What number of British soldiers were together when the party pass'd them?

A. There might be fifty or sixty.

Q. By Gen. Burgoyne.—What number did the Provin|cial guard consist of?

A. I guess about one hundred and fifty.

Q. Did you see any insult by word or gesture pass'd from the British soldiers towards the guard?

A. I did not.

Q. By General Burgoyne.—Did you hear any Provin|cial officer or soldier complain of any affront offer'd?

A. I did not except what passed as before related.

Q. By the President.—Did the British soldiers give the party full room to march in the same open order after they came up to them as before?

A. There was full room where I stood for the party to pass.

Thomas Lee, 24th regiment.]

Q. Was you at the barracks on prospect-hill on the 8th of January?

A. I was.—The witness confirms the whole of Page's testimony, both in the narrative and the answers to the same questions.

Q. What brought the British soldiers together at the guard-house? And did they laugh at or insult the guard?

A. Curiosity to see the guard; and there was no laughing or insult on the side of the British soldiers.

John George, 24th regiment—Was present at the same time and place with Page, and confirms the whole of his testimony, except that he thinks there might be one hundred and thirty or forty British soldiers, and the Provincial guard upwards of one hundred.

Q. Do you know any rescue of a prisoner at this time?

A. I do not.

Mr. Walker, surgeon's mate to the 47th regiment.]

Q. Do you know of a British soldier being wounded on the 8th of January?

A. I dress'd a British soldier about eleven o'clock on the same day, who had just before been wounded, his name was Traggot, there were two orifices just above the right breast, which the man told me had been done by two different stabs of a bayonet; from the free communication of the two ori|fices I should have thought it had been only one wound; the wound was not dangerous, I have dress'd it several times since, and at present it is in a fair way of a cu••; I saw no other wound nor saw any marks of beating about the man.

Q. Are you satisfied that the wound was made by one stabb of the bayonet, or more?

A. I am of opinion from the nature of the wound it was done by one push.

Q. Did the man complain of any other wound?

A. He did not.

Major Foster 21st regiment.]

Q. Was you present at the time Traggot was wounded, and did you see any insult on the part of the British soldiers offer'd to the guard?

A. I was distant about thirty yards, and neither saw or heard any provocation on the part of the British soldiers to the Continental guard; I was attentively counting the files of the guard as they passed; when the rear of the guard came near the British guard-room, I observ'd a scuffle, the guard passed on; I went up and found Traggot, a British soldier, had been wounded by one of the guard as I was told, and the blood was then running down the side of his face. I order'd the men to disperse and they went off immediately.

Q. Was there a free passage for the Continental troops to march, or was there any dispute upon that subject?

A. There was a free passage and no dispute that I heard of or saw.

Q. Was you looking at the British soldiers the whole time the guard was passing?

A. I was looking at both, and could not see one party without the other, of those on the right of the guard.

Q. Did you see Col. Henley there?

A. I did not.

Q. Was your situation such, that had any insult or pro|vocation been offered by a British soldier to the guards, you could have seen or heard it?

A. I think it was.

Q. What was the number of British soldiers collected?

A. Including the British barrack-guard of twenty-four, the whole was about sixty or seventy; the Continental guard was about one hundred.

Q. While you was counting the files of the Continental guard, might not many transactions have escaped your notice?

A. I think not, because the Provincial guard and the British soldiers were both in my sight.

Lieutenant Smith, royal artillery, was standing by Major Foster at the time mentioned, and confirms the whole of his testimony, except with respect to the last question.

Mr. Clartey, surgeon's mate of 24th regiment.]

Q. Do you know any thing of a wound Thomas Trag|get receiv'd on the head?

A. I saw him the day after he receiv'd it, about the 9th of January; he had receiv'd a blow on the right side of his head, there was some clotted blood, it was swell'd, I order|ed the man to wash it, and did not hear any thing more about it; with respect to the wound in the breast, I confirm Mr. Walker's testimony.

Corporal Kidley, 9th regiment.]

Q. Was you at the barracks on prospect-hill, on the fore|noon of 8th January?

A. I was about eleven o'clock standing at the upper end of the barracks, near the flag-staff, talking with six or seven British soldiers, and one of them call'd to Willson of the 9th regiment to take care of himself, I turned round to see what was the matter, and saw Willson parrying the point of a bayonet, with which a Provincial soldier was stabbing at him; another Provincial soldier who was standing at the distance of ten yards, charg'd his bayonet, ran up and stabb'd Willson in the left side.

Q. Did you not see corporal Buchannan, a British soldi|er, in the custody of two Provincial soldiers, a little before this?

A. About two minutes before this, I did, but what be|came of him I can't tell.

Q. How was you employ'd between the time of seeing Buchannan in custody, and the time that Willson was stabb'd?

A. I was talking with some British soldiers.

Q. How many British soldiers were present at the time Willson was stabb'd?

A. Within the compass of about fifty yards, there might be forty or fifty British soldiers.

Q Do you known of Buchannan's escaping from the centries before Willson was stabb'd?

A. I do not; I heard afterwards in the barracks that Buchannan had ran away from the centries.

Q. Was Col. Henley near when this transaction took place?

A. He was about thirty yards distant within the works, in the rear of the Provincial guard-house.

Q. Was Col. Henley near enough to have prevented Willson from being stabb'd?

A. He was near enough to have given any orders he plea|sed; but I did not hear him speak.

Q. What was Col. Henley doing at this time?

A. Looking over the works towards the place where Willson stood.

Q. After Willson was wounded, did you hear Col. Hen|ley take any notice of the man who had done it?

A. I did not, for I went immediately off the ground.

Q. Was it in the power of Col. Henley to have preven|ted the action?

A. I do not think it was, it was done so suddenly.

John Keith, 9th regiment.

Q. Was you at the barracks on prospect-hill on the 8th January?

A. I was standing near Willson, and had just come up to the crowd of British soldiers, when a Provincial soldier came up with a fix'd bayonet, making a push thro' the croud—Willson parry'd it, another Provincial soldier immediately ran up and stabb'd Willson in the side.

Q. Do you know of a British soldier being rescued, or running away from the Provincial guard at this time?

A. I do not; after I returned to the barracks I heard of Buchannan's running away from the Provincial guard.

Q. By Gen. Burgoyne.—If Buchannan had ran towards the place where Willson stood, should you not have seen him?

A. I certainly should, for I was standing close by Will|son; I did not see Buchannan 'till afternoon, and then he was in his barracks.

Q. Did you see Col. Henley there or near?

A. I did not.

Q. What number of British soldiers were in the crowd when Willson was stabb'd?

A. Sixty or seventy.

Q. Did the Provincial soldiers run up into the croud and push among them with their bayonets without provocation?

A. I saw no provocation, nor heard the Provincials give any reason for acting such a part.

Q. Was Willson doing any thing to impede the progress of the men who stabb'd him?

A. I did not see him do any except warding off the pass of the bayonet.

Q. Where did the soldier who stabb'd Willson go after|wards?

A. He returned towards the Provincial guard-house.

The Court adjourns 'till to-morrow at ten o'clock, A. M.

THURSDAY, January 22d, 1778. The Court met according to adjournment.

Arthur Lesslie, corporal royal artillery.]

Q WAS you at the barracks on prospect-hill on the forenoon of the 8th January last?

A. I was in my barrack-room between 11 and 12 o'clock that forenoon, and hearing that there was a party of Ameri|can soldiers drawn up in the rear of the artillery-barracks, I got up and went to the place, and found a party drawn up with Col. Henley in the front of them; and then heard Col. Henley say to the British soldiers go off and clear the parade—the British soldiers turned about and moved off as 〈◊〉〈◊〉 as they could, being much crowded, and the road being very dirty; Col. Henley turned and went a little to the right of his party, turned about again, and addressing the British soldiers, said, damn ye, I'll make you make more haste, and came up to corporal Hadley and push'd his sword into his left side and bent his sword, turn'd himself about

straightning his sword as he went along to the right of his party; I saw no more, as I went immediately to my bar|rack-room.

Q. By Gen. Burgoyne.—Did you hear any words pass, or see any insult offer'd by corporal Hadley, or any other British soldier at the time?

A. I heard nor saw none.

Q. Was you so near that if any had pass'd you would probably have seen it?

A. I was.

Q. Did the British soldiers surround Col. Henley's party?

A. They were mostly in the front, some straggling ones in the flank and in the rear.

Q. What number was there of British soldiers on the parade at that time?

A. About sixty or seventy in the front of the party.

Q. How long was it between Col. Henley's ordering the soldiers to disperse, and his stabbing Hadley?

A. Two or three minutes.

Q Did the British soldiers crowd Col. Henley's party?

A. They did not; most of them were two or three yards distant, when the orders was given to disperse; when Had|ley was stabb'd, he was walking off at the distance of three or four yards from the party.

Q. By Col. Henley —Did you not hear me more than once give orders to the British soldiers to disperse?

A. I did not.

Q. Was you present when I was with the party in the fort?

A. I was not.

Q. Did you see me draw up twelve men of the party in single rank, and order them to lead?

A. I saw no such thing.

Q. Did you not hear me tell the British soldiers that I had lost one prisoner, and if they attempted to rescue ano|ther, I would order the party to fire on them?

A I did not.

Q. Did you not think there were more British soldiers on the 〈◊〉〈◊〉 than there were of Col. Henley's party?

A I don't think there were.

Q By Col Henley.—Was you not present when I or|der'd 〈◊〉〈◊〉 thirty or forty men from the left of the party, and gave them to the command of an officer, to take charge of the British prisoners?

A. I did not see it.

Q What was the distance between the front of Col. Henley's party and the rear of the barracks?

A. Six or seven yards to the best of my knowledge.

Q How long was you on the parade?

A. To the best of my judgment not ten minutes.

John Upwood, royal artillery.]

Q Was you at the barracks on Prospect-hill on the fore|noon of the 8th January?

A. I was in my barrack-room, and hearing a drum and fife, went out of my barrack-room to see what occasioned it, and found a party of Provincial soldiers drawn up in the rear of our barracks, with Col. Henley in the front of them; he came up to the left of his party, where some British sol|diers were standing, and desir'd them to disperse and go to their barracks, which they instantly seemed to comply with, but not so fast as I imagined he expected, he pass'd one or two British soldiers that were between him and Hadley, and made a pass at Hadley, wounded him in the left side, and then walked before his party straightning his sword, which was bent in the thrust; I then returned to my barrack-room.

Q. By General Burgoyne.—Was Col. Henley's sword drawn when you first saw him on the parade?

A. It was.

Q. Was Col. Henley making any flourishes or menacing motions with it?

A. No otherwise than a commanding-officer at the head of a party of soldiers.

Q. What number of British soldiers were there in all upon the parade?

A. About sixty or seventy.

Q. Did not the British soldiers surround Col. Henley's party?

A. The greatest part stood on the left of the party, there might be a few stragling ones in the rear.

Q. Did Col. Henley order the British soldiers to dis|perse more than once before he stabb'd Hadley?

A. I did not hear him.

Q. How long was it between the order to disperse and Col. Henley's stabbing Hadley?

A. Col. Henley almost instantly on giving the orders, stabb'd Hadley.

Q. Do you really think the British soldiers moved off when order'd, as fast as they might have done?

A. They did; some of them in moving fell into the ditch.

Q. By Col Henley—Was the falling into the ditch be|fore or after Hadley was wounded?

A. Both before and after.

Q. By Col. Henley.—Was you not present when I or|der'd off thirty or forty men from the left of the party, and gave them to the command of an officer to take charge of the British prisoners?

A. I was, and they went into the fort.

Q. At that time when I had weakened my party, did not the British soldiers crowd upon me to hear the orders I was giving to my officers?

A. I did not observe it.

Q. How long was you on the parade?

A. About ten or twelve minutes, and then left it; all the British soldiers had not left it.

Q. Was Hadley wounded before or after Col. Henley had detached a party into the fort?

A. After.

The witness confirms the answers of Lesslie to the 2d and 3d questions put to Lesslie.

Corporal John Davis, 9th regiment.

Q. Was you at the barracks on prospect-hill on the 8th January?

A I was in the forenoon of the 8th; Col. Henley came up with a party of Provincials and marched them very near the flag-staff on the hill, there halted them and sent off a party to take care of some prisoners, the remainder he formed in two divisions; a number of British soldiers came up to see what was the matter, and Col. Henley desir'd them to disperse, upon that the British soldiers immediately moved off at a moderate pace, when Col. Henley made a push with his sword, but I don't know he hurt any body▪ he afterwards walked a few paces, turned about and stabb'd Corporal Hadley thro' his left arm into his left side: Winks of the 9th regiment, being the last moving off the parade, Col. Hen|ley followed him with his sword drawn, and told him if he did not move faster he would run him thro' the body, or ask'd him if he wanted to be run through the body, I am

not sure which, and a Provincial soldier push'd Winks into the ditch; I went off.—I was on the parade from the time of Col. Henley's coming up with the party 'till he march'd them off, which might be half an hour or three quarters.

Q. Was there not a greater number of British soldiers round the party than the party consisted of?

A. I do not think there was.

Q. Was there any abuse of any kind offer'd by the Bri|tish soldiers to Col. Henley or his party?

A. I heard nor saw none.

Q. Did not Col. Henley repeatedly order the British sol|diers to leave the parade before he stabb'd Hadley?

A. I heard him only once.

Q. After Col Henley made the first pass at the British soldiers, did he not order them to disperse before he wound|ed Hadley?

A. He did not.

Q. How far did Col. Henley follow Winks with his drawn sword?

A. Four or five yards.

Q. Did not the Colonel declare to the British soldiers that he had had a prisoner rescued, and if another was res|cued he would fire upon them?

A. Col. Henley swore before he would have a prisoner rescued from him, he would send every British soldier on board the guard-ships.

Q. Did you observe Col. Henley's motions after wound|ing Hadley?

A. Col. Henley turned about and straightned his sword on his knee, which had been bent by the violence of the thrust.

John Winks, 9th regiment.]

Q. Was you on the parade near the flag-staff on prospect-hill, on 8th January?

A. I was there when Col. Henley with a party came up; he form'd his party in two columns, and ordered all that were not loaded to load directly; after they were loaded and shouldered, he told his own men that the first man who res|cued a prisoner out of his hand, he would blow his brains out; he then turned about with his sword in his hand, and ordered the British soldiers to leave the parade immediately; they moved off directly; Col. Henley finding the men did

not go off so fast as he expected, he went up to Hadley who was in the rear of the British soldiers, and stabb'd him, draw|ing his sword back which was much bent; he came up to me after he had straightened it on his knee, as I was going off as fast as I could walk, followed me ten paces and damn'd me for a rascal, and told me if I did not go off the parade he would run me thro' the body; I was getting off and one of the Provincial serjeants knock'd me into the ditch; I got up and went to my barracks.

Q Did not the British soldiers crowd on Col. Henley's party?

A. They did not.

Q. Was there no abuse offer'd to Col. Henley or the par|ty by the British soldiers?

A. There was not of any kind that I saw.

Q. Did not the British soldiers surround Col. Henley's party?

A. They were chiefly hemm'd in between the party and the barracks in the front of the party.

Q. By General Burgoyne.—Was you so near that if any insult had been offer'd to Col. Henley's party, you must have seen it?

A. I was.

William Anderson, serjeant-major 20th regiment.]

Q. Was you on the parade near the flag-staff on prospect hill on 8th January?

A. I was between 11 and 12 in the forenoon; coming out of my barracks I saw a number of British soldiers going up towards the flag-staff, I went up to know the occasion of it, when I got up I saw a number of British soldiers standing in front of a Provincial guard, and Col. Henley at the head of them, with his sword drawn in his hand; Col. Henley desired the British soldiers to move back, which they imme|diately complied with, they not moving so quick as I sup|pose Col. Henley could wish, I saw Col. Henley move up quick towards the crowd, and make a pass at Corporal Had|ley, of the 9th regiment, which wounded him thro' the left arm into the left side and bent his sword with the force of the pass; Hadley went off immediately to his barrack, not using any words either before or after, as I heard; Col. Henley walked towards his party straightning his sword with his left hand; I went away and saw nothing more.

Q. What number of British soldiers were near the party?

A. About sixty or seventy.

Q. Was there any sort of abuse offer'd to Col. Henley or the party, by the British soldiers?

A. I saw none; and I was so situated that I must have seen it if any had been offer'd.

Q. Did the British soldiers move off on being order'd, as fast as they might have done?

A. I think they did; those in the front run, the rear could not get off so quick on account of the crowd.

Q. When Col. Henley stabb'd Hadley, did he appear in a passion?

A. He did, and as if he was much vexed at something.

Lieut. Bibby, 24th regiment.]

Q. Was you going to the barracks on Prospect-hill on the forenoon of the 8th January; relate what pass'd?

A. Between eleven and twelve beforenoon I was going to the upper barracks, and at the barrier gate there was a Provincial sentry who stop'd me and said, I could not go in there; supposing he did not know me for an officer, I told him I supposed his orders were not to stop officers, he pre|faced his answer by charging his bayonet, said he did not care who, or what I was, I should not pass there; I told him he need not be violent, I should not attempt to pass him; I 〈◊〉〈◊〉 a turned off from him, and went round into the barrack through the ditch, a very dirty path; when I got to the rear of the barracks, I saw a Provincial guard drawn up, and before I came very near them, I saw Col. Henley between the rear of a barrack and the guard, with his sword drawn, making motions with his sword on his knee, as if he was straightning of it; upon my coming quite up to the rear of the guard, I saw and heard a person who I took to be the Captain of the guard, damn his men on the right for not being more attentive, desiring them to run any man through, who attempted to come near them; I did not know at that time that Col. Henley had stabb'd any one, I walk'd off; as I passed in the rear of the guard I bow'd to Col. Hen|ley, who immediately returned the bow.

The Court adjourns 'till to-morrow at ten o'clock.

FRIDAY, January 23d. The Court met according to adjournment.

Lieut. Col. Anstruther.]

Q. DID you see Colonel Henley on the 8th of January?

A. On the 8th of January, my orderly serjeant came and inform'd me that on the night of 7th, twelve men of my re|giment had been taken out of the barracks; upon the report, I set out for the barracks, and in my way heard they were brought down to Col. Henley's quarters, I went to Col. Henley to inquire into the cause of their confinement: at Col. Henley's gate, I was deny'd admittance by two cen|tries; after some time, upon application to an officer, I got admittance to Col. Henley, and upon enquiring into the causes of my men's confinement, was referr'd to a gentleman, who I afterwards understood was Col. Gerrish of the militia, who told me the British soldiers had behaved very odd the night before, and that he had a great mind to have fir'd into the door and windows of the barracks upon them, and should have done it, had he not been afraid of killing some of his own men; upon observing this was very odd to Col. Hen|ley, Col Henley told me that the British soldiers had behaved so hadly that morning, that he was obliged to run one of them thro' the body, and that some others had been hurt by his men's bayonets: I then left Col. Henley and went down to the barracks, where on enquiry I found one of the men had been out of his barrack after nine o'clock; I order'd him confin'd; a regimental court-martial set upon him, and sen|tenced the man to be punish'd for the offence; the proceed|ings were communicated to Col. Henley, and an officer sent to know if Col. Henley would order out his men to see the punishment inflicted—Col. Henley sent me word back I might do as I pleased with the man, but he should not inter|fere, or order his men out.—The man receiv'd his punishment the next day at 12 o'clock, in the presence of the whole re|giment.

Q. Did the man who was punished for being out of his barrack belong to the same room where the twelve men were taken?

A. He did not, but to a room in a different part of the barrack.

Q. By Gen. Burgoyne.—When you went down to the barrack did you make a particular inquiry into the transacti|ons of the preceeding night?

A. As far as I was able I did; and found on an examina|tion of the non-commission'd officers that the men had be|haved peaceably, except one man who being in liquor, had been out of his barrack after nine o'clock, and who I had punished as before related.

Lieut. Velancy.]

Q. Was you present at Col. Henley's the day Col. An|struther had the conversation he has related with Col. Henley?

A. I was; and confirm Col. Anstruther's relation.

Dr. Bowen acting surgeon 9th regiment.]

Q. Did you attend corporal Hadley from the time of his being wounded?

A. I attended him except the first dressing. About one o'clock on the 8th inst. I was called to dress corporal Had|ley's wounds, and sound upon examination, the sword had pass'd thro' the left arm and entered his left side; I dress'd his wound, the instrument had penetrated the membrane under the skin that lies over the muscle.

Q. Was the wound, so deep in the side as to require im|mediate dressing?

A It did.

Q. Was the wound of such a nature as to put the man's life in danger?

A. It was not.

Q. What part of the arm did the sword pass through?

A. It pass'd over the muscles on the back of the arm.

Q. What was the distance of the two orifices on the arm?

A. About half an inch or a little more.

Q. How long did you dress the wound in the side?

A. Near a week, when it was well; I dress'd the wound daily 'till it was heal'd.

Q. What is the state of the wound in the arm now?

A. It is well; I dress'd it 'till about six days ago, when it was so far heal'd as to require no further dressing.

Q. By General Burgoyne.—Supposing the sword to have miss'd the arm, would it have penetrated so far as to make the wound dangerous?

A. I imagine it would have penetrated the cavity had not a ribb interfered, and in that case it must have been dangerous.

Q Are you positive that the sword did not touch a ribb?

A. I am positive it did not.

Q. Do you think the resistance of the cloaths and the flesh of the arm sufficient to have bent the sword?

A. I make no doubt but they were.

Q. Must not the pass then have been made with consi|derable violence?

A. Certainly.

Q. By the Court.—Did it appear from the nature and direction of the wound that Col. Henley design'd to have taken the man's life.

A. From its passing so slightly thro' the arm, I imagine the sword was aim'd at the body.

Q. By the Court.—Were the wounds such as to take him off his duty?

A. They were; and he has not been return'd well 'till within these three or four days.

Lieut. Col. Lind, 20th regiment.]

Q. By General Burgoyne—Was you present at any time in December when a Provincial sentry fir'd at one or more Women?

A. I was; on or about the 22d December, being field-officer of the week, I was going upon Prospect-hill in the forenoon with Capt. Banks of the same regiment, I saw three women coming down the hill, one of which run past a Con|tinental sentry, who call'd upon her to stop, and immediately fir'd his piece before she had time to turn round, the ball from the noise, passed between the woman and myself, and near me; I order'd the woman to go back, and went up to the centry and ask'd him if he was not asham'd to fire upon a helpless woman, he reply'd he had orders for so doing; I then went to a serjeant's guard which was just by, told the serjeant what had happen'd, and desired him to confine the sentry that the affair might be inquired into; he told me he would not confine him, that they had orders to fire upon all British soldiers and women, who attempted to pass the sen|tries; I observed a number of British soldiers were collect|ing who were murmuring and clamouring at the time. I therefore, for fear of the consequences, desir'd them imme|diately

to disperse and go to their barracks, and promised them my endeavour to get them redress'd:—I then went towards the main or captain's guard, and in my way was stop'd by a Provincial sentry, who charg'd his bayonet up|one me, with the muzzle pointed at my breast, I told him I only wanted to speak to the captain of the guard, and did not want to go further, and begg'd he would call him, and re|move the muzzle of his gun from my breast; he said he would keep the muzzle there, and bid me keep off, and then call'd the serjeant of the guard, who immediately came up, who I desired would order the sentry to remove his firelock as I was an officer and commanded in the barracks, and wanted to speak to the captain of the guard upon busi|ness. The serjeant told the man to take away his gun, tel|ling me he was a young soldier and did not know better, the captain of the guard came up soon after and I pulled my hat off, which he took no notice of. I then told him the acti|on of the sentry's firing on the woman, and begged the sen|try might be confin'd 'till the affair should be inquired into; he told me that he would not, and that the sentries had par|ticular orders to fire on all women who attempted to pass the sentries, as well as soldiers. I observed it must be some mistake, he reply'd it was none of his business, they were his orders, and I must seek redress somewhere else, and we parted.

Q From the position of the sentry at the time he fired, were not passengers on the road exposed to the shot?

A. Most undoubtedly.

Q. Was any report of this transaction made to Col. Hen|ley?

A. Not that I know of.

Serjeant John Fleming, 47th regiment]

Q. Was you at the Deputy-Adjutant-General's office in the month of December last, while Col. Henley was there?

A. On or about the 16th of December I was at the door with a number of the serjeants of the office to apply for passes, I mistook Col. Henley for Mr. Keith, the Deputy-Adjutant-General, and saluting him was just going to address him, when Col. Henley extended his arm with his fist clinch'd, and exclaim'd, you rascal, I'll make damnation fly out of you, and I will myself one of these nights go the rounds, and if I hoar the least word or noise in your barrack, I'll pour shot

amongst you, and make flames of hell jump out of you, and turn your barracks inside out, ye are all a parcel of rascals: In the discourse he said if he was a sentry and a British soldier look'd sulkey at him, he would blow his brains out.

Q. Was there any thing that brought on this discourse on your parts?

A. Nothing.

Q. Did Col. Henley mention no circumstance which could account for such violent expressions?

A. After being asked by me whether any thing was amiss, he said there was, for that the last night one of his sentries had been knock'd down by some of our people; he mode|rated his passion, and very few words passed afterwards.

Serjeant Willson, 24th regiment—confirms the testimony of serjeant Fleming.

The evidence on the part of the complainant being closed —on motion from General Burgoyne to be allowed time to arrange and state the evidence in support of the charge, the Court adjourns to Tuesday 27th January, at ten o'clock.

JANUARY 27, 1778.

TWELVE of the Court met according to adjournment, but one of the members being absent, the Court ad|journs to Wednesday 28th instant, at ten o'clock.

WEDNESDAY, January 28, 1778. The Court met according to adjournment.

Judge-Advocate.]

Mr. President and Gentlemen of the Court,

GENERAL Burgoyne having claimed liberty of re|marking upon the evidence, and argumentatively supporting the charge against Col. Henley, I rise to object to his claim. In Courts-Martial, there is no prosecutor but the Judge-Advocate; there have been instances of Council allowed the prisoner, but not against him: And I call upon the Generals and Field-Officers of the British army, now

in Court, to point out a single exception to what I have ad|vanced; yet if Col. Henley has no objection, and the Court concedes to it as an indulgence, I shall acquiesce.

General Burgoyne expressed surprise at the Judge-Advo|cate's exception being made so late in the cause; he thought it more particularly extraordinary, as the General had not only stated his idea of the mode of proceeding at the first, in which the Judge-Advocate had acquiesced, but at the last meeting it had been fully discussed in open Court between them, and the Judge-Advocate had agreed to the General's right both of applying the evidence upon the charge, and also of replying to the defence, provided he, the Judge-Ad|vocate, had the closing of the whole. The General obser|ved that had the Court declared against this claim in the be|ginning, or cou'd he have expected such objection, he should have examined the witnesses in a very different manner, in order to bring several matters more fully and pointedly be|fore the Court than he thought necessary to do upon the sup|position of a future occasion to explain the reasons of his questions, and by deduction and inference to make the application.

The General nevertheless proposed that the principle upon which he spoke should lie dormant to avoid trouble to the Court, that he had his own opinion upon the right, the Judge Advocate might retain his upon the indulgence, pro|vided nothing concerning the matter was entred upon the proceedings, he should make use of the power without fur|ther question.

Col. Henley.]

Mr. President and Gentlemen of the Court,

I Have no objection to Gen. Burgoyne's making use of all the rhetorick in his power against me; I stand on such firm ground, I can safely trust my reputation in your hands, against every effort of my prosecutor to ruin me.

The Court then told the General he might proceed, and he addressed the Court as follows:

Mr. President and Gentlemen of the Court,

IT being now admitted that in closing the evidence, I may offer such arguments as to me shall seem proper, in sup|port of the charge, and reserving to myself a claim of reply|ing to the defence, I shall enter upon the first part of the very painful, tho' by no means difficult undertaking:—

Painful, because I cannot pursue the offence without setting the offender in points of view at which every benignant mind must shudder—Easy in every other respect is the task, because I venture to pronounce the evidence when arranged and adjusted, will amount to such a mass of proof as cannot be overthrown, and will authorise and call for the strongest terms I can use in my demand of public justice. And Gen|tlemen, let me be permitted to assume to myself applause rather than blame, that the evidence has not been laid be|fore you in a regular series; the reason was, that though assured by the reports made to me that the evidence would produce conviction upon the whole, I was ignorant how the testimony of the particular witnesses would ap|ply and point to the progression of the charges, be|cause I had had no previous intorcourse with them. I declare upon my solemn word of honor, that I have had no concert or communication directly or indirectly with any non-commissioned officer or soldier who has appeared at your bar, one only excepted, viz. serjeant Fleming of the 47th regiment, who has deposed to the salutation Col. Henley, gave to him at the Adjutant-General's office; that whole matter appeared to me so very improbable, that I not only sent for the serjeant to warn him of the sacredness of an oath, and of the sin of intemperate zeal, but also I thought it my duty to inquire minutely into his character; I found the man firm and uniform in averting his veracity, I found his officers unanimous in supporting his credit.

In every other instance I adhered religiously to the determination I had taken of secluding myself from the wit|nesses, not only to guard my character in this region of sus|picion and aspersion, against the supposition of unfair practi|ces; I besides had a scruple of trusting my own mind with too hasty progressions in a cause wherewith the most solemn matter of a public nature is involved the fate of a gentleman high in his military station, and to judge by the apparent signs of good wishes on this day, also high in popular esteem.

Thus unprejudiced I came into your court, I scorn to rake up the slighter matters that might be comprehended in the general words of the charge, such as personal incivility to officers expressions and actions of peevishness, haughti|ness and disgust. I mean not to press that they existed, or if they did, I am desirous they should pass as faults of temper

and deficiencies of manners incident to a man's nature, edu|cation and habitual course of life; and I shall confine my comment as it is my duty to do, to the testimonies upon your minutes, and the circumstances immediately relating to them.

Without departing from this principle, it will be necessary to take a general review of the state of things previous to the date of the grievances complained of.

We arrived at Cambridge passengers through your coun|try under the sanction of a truce. In whatever capacity we had been found in a foreign and independent state, we were intitled to personal protection by the general and most sacred laws of truth and reason; but when to the promulgated law of civilization are added the written principles—or written only upon the hearts of generous people—honor, respect for the brave, the hospitable wishes that usually press to the re|lief of the unfortunate, the stranger, and the defenceless man in your power, how will our claims multiply upon the mind? Sanguine imaginations conceived yet further motives for kindness. There were men among us so vain as to believe that notwithstanding the present separation between us, the different duties we now maintained, the prejudices of politi|cal zeal, and the animosity of civil war;—Yet still the con|flict over, it might be remembered we once were brothers, and the more especially as it was improbable by the Conven|tion of Saratoga, that the generality of us should ever oppose America in arms again.

We were led into these delusive hopes by the very honor|able treatment shewn us by General Gates, by that we re|ceived from you Mr. President when you conducted us upon the march, and from that we afterwards found from the worthy member of the Court near you, who had the imme|diate command in this district upon our arrival and to whom most happily for us the same command is now again de|volved.

The first symptom we discovered of any uncandid designs, was the mode established for correcting errors and disturban|ces in the troops of the Convention; men were taken up, imprisoned, and otherwise punished by the American troops, without any prior reference to their own officers. I very well know with how much slight and even derision my senti|ments have been treated upon this subject; but I still 〈…〉〈…〉

that after taking men up for faults, to have applied to the officers of the Convention troops in the first instance for their punishment, would have been consonant to every principle of decorum and good policy; not meaning to deny that upon any proof of partiality, or connivance, or undue lenity, it then became the proper and indispensable duty of General Heath, to take the distribution of justice into his own hands.

The contrary maxim having been established, let us exa|mine how it was carried into execution.—And the first circum|stance in point of time, tho' the last in the proceedings, is that burst of indecency, scurrility and impiety, from Col. Honley to the Quarter-Master-Serjeants at the Adjutant-General's office—it is not without difficulty I can frame my mouth to read the words as they were delivered upon oath, by that very respectable witness Serjeant Fleming, viz.— "You rascals, I'll make damnation fly out of ye, and I will myself one of these nights go the rounds, and if I hear me least word or noise in your barracks, I'll pour shot amongst ye, and make flames of hell jump out of ye, and turn your barracks inside-out."

The Court will remember that when this evidence was given, it rather excited laughter in some part of the audience, than any serious condemnation.

This day it seems to make a very different impression.— The minds of all around will follow me, while I contend that expressions so wild, so unfit, so unprecedented from the mouth of a gentleman, argue the most diabolical passions boiling in the breast, the very enthusiasm of rancour and malice.

I defy any man to divert himself of that idea, it will at|tend the mind through the whole course of these proceed|ings, and cast a shocking glare over every subsequent trans|action, of fore-thought, intention and bloody resolution.

It is very material to observe that this demonstration of Col. Henley's mind, was on or about the 16th December, and it was no longer than 'till 19th, before he confirmed by overt act the principles he had professed.

The stabbing of Corporal Reeves is proved by the evi|dence of Corporal Buchannan, Alexander Thompson and Robert Steel.

I shall quote indiscrminately from the testimony of one or other of these witnesses, because tho' some recollect a few

short passages or words more than others, there is not a sha|dow of contradiction, and I am confident there never was an instance where truth was ever laid before a Court by united evidence more perspicuously.

It has been sworn "That on the morning of the 19th of December, Col. Henley went to the barracks on Prospect-Hill, to release some British soldiers who were prisoners; that having had them paraded, he read over their crimes, and coming to Reeves told him he was confin'd for insulting a Provincial officer; Reeves made answer be was very sorry for it, that he was in liquor, and would not have acted so had he known him to have been an officer."—I pause here to apply to the feelings of the Court, whether a more decent, proper, satisfactory excuse could have been conceiv|ed; what did it draw from the Colonel?—"Had it been me you had served so, I would have run you thro' the body you rascal"—Continue the comparison between the language of the Colonel and the Corporal—Sir, I am no rascal, but a good soldier, and my officers know it, and I hope soon to be with Gen. Howe and fight for my king and country—what did this produce from the Colonel?—"Damn your king and country," and an order to the guard "to run him through the body,"—not a hand nor a heart could be found for the butchery; the Colonel enraged at the virtuous disobedience of his men, leaps from his horse, seizes a firelock with a fix'd bayonet, and strikes at the man's heart. I call upon the gentleman of a learned profession near me to inform the Court when he sums up the evidence at the close of the trial, whether this act would not constitute malice propense in law. I mean that admitting for the sake of the argument, that there had been such provocation given as would have justified a man having an offensive weapon to make use of it instantly, which would have been only manslaughter; the intermediate act of dismounting his horse and taking a firelock from the other, implying time for recollection, would have made the act wil|ful murder, had the man died. Consider now gentlemen what followed.— The brave Corporal in the instant expec|tation his words would cost him his life, persevered—I don't care, I will stand by my king and country 'till I die. The action would have charmed a brave man; it would have been a spell upon his arm, and kept the stroke suspended beyond the power of witchcraft—What effect had it upon the Colonel

—to provoke a second stab, which was only diverted by the intervention of the man next him, who caught hold of the bayonet and threw it up.

Gentlemen, when I say the perseverance of the corpo|ral ought rather to have pleased than provoked. I speak not vaguely or romantically, I feel conscious proof of the truth— and when I consider the actions of a Washington—when I meet in the field a Gates, an Arnold, a General Glover— and see them bravely facing death in support of their princi|ples, though I would shed my last blood upon a different conviction, I cannot withhold from the enemy the respect due to the soldier, and the immediate conflict over, he robs me of my anger and seizes my good will.

Gentlemen, in the different parts of the examination up|on this fact, many questions have been asked by the prisoner, by the Judge-Advocate, and by the Court respecting the appearance of the prisoner's temper—was he not in a mild mood?—Did he not seem good humour'd? Mild murder! Good humour'd murder!—are phrases I fancy will not convey any clear meaning, 'till men change their ideas of that crime.—We hear 'tis true sometimes as a sort of proverb to mark the utmost malignity and treachery of a man smiling in your face while he cuts your throat, but I believe it never was produced as an excuse or extenuation of guilt.—These questions therefore, as I conceive can have no tendency but to insinuate that Col. Henley's passion was entirely raised by the immediate provocation he received; I am ready to join issue upon this argument, and if the Gentleman will rest his cause upon it, I will relinquish the proof esta|blished of Reeve's decency and consistency, and give him latitude for all the provocation he can suppose, short of per|sonal assault, and the necessity of self-defence, which I am sure will not be pretended.—I will transpose if he pleases the time when Reeves is proved to have talked about King Hancock, and bring it back to the instant where it was at|tempted to be introduced, as a substantial matter of provoca|tion—he shall add insolence of gesture to abusive terms, and under all these fictitious circumstances I will take the judg|ment of the Court, whether Col. Henley with full power to imprison and to punish by regular, decent, legal proceed|ing, has a shadow of justification 〈◊〉〈◊〉 making himself in his own person, party, judge and executioner.

From the 19th December, the hands of Col. Henley were unembrued in blood 'till the 8th of January, but it evidently appears upon your proceedings that the influence of his ex|ample and the encouragement of his precepts failed not to operate, as the first proof of it. I request the attention of the Court to the testimony of Col. Lind; the position of the sentry which was such as must necessarily effect every passen|ger upon the public road whenever he fired, and at the same time a readiness to do mischief so marked that he took wo|men for his objects, and would not give them time to turn round; he had orders so to do. Let the behavior of the next sentry to whom Col. Lind applied, the ungentleman-like behavior of the officer, with his confirmation of the whole proceeding, being according to order, be combined and compared, and it must universally strike common sense, that these were several parts of one determined plan to dif|fuse the seeds of discord and fury, in order afterwards to countenance a general havock.

But it may be said the orders under which the Continen|tal troops acted were not those of Col. Henley, but of a superior—will that be pleaded? was the position of the sentries to kill or wound three or four passengers at a shot, the firing upon innocent women, the refusal of redress to Col. Lind, with all the indecent manner and language attend|ing; will these circumstances be alledged to have proceeded from superior orders? If so, the excuse becomes indeed more alarming to us.—It is my part at this time to drop a consideration that would lead so far.—I shall only remark how little the excuse would benefit Col. Henley, who would still remain a cruel agent of (I will use no improper term) I will only say a cruel agent of a too hasty principal.

Col. Henley has asked whether complaint was made to him of the transactions of the 22d—I believe they were not—but I dare say he will recollect the reasons—other grievances of the most atrocious nature, abuse of offi|cers, and assaults upon their lives, were preparing to lay before General Heath. They were in number and in time to have filled up much more of the interval between the 19th December and 8th January; but not brought before this Court because I understood it to be the intention of Gen. Heath they should be seperately enquired into. Enough has appeared to shew how the system of persecution was pre|served, and I come now to the transactions of the 8th of January.

Upon a general view of that black day, I am at a loss where first to carry your observation.—The field was ex|tensive, the scenes seperate and successive, but evidently gui|ded by one uniform design — In one place a party on the march are stabbing and knocking out the brains of inoffen|sive spectators—at another men under pretence of a prisoner's escape, are glutting the same bloody purposes upon men not pretended to be concerned—in athird Col. Henley in person (the British officers at the same time being deni|ed admittance, as appears by the evidence of Lieut. Bibby) is running men through the body with his sword.

The first of these complicated horrors in point of time, was the attack upon Traggett, first with the bayonet and af|terwards with the butt of the firelock.—I will read the evi|dence without a comment. (Vide the evidence in the pro|ceedings.) And I have only now to remark (it is not an unfa|vorable idea to the Continental troops) that such malicious treatment could not be upon a general sentiment—no body of people are so barbarous unless instigated—and now is the time to call upon the learned Gentleman near me for ano|ther duty of his office, to expound to the Court the princi|ples of law respecting accessaries and accomplices, and to say whether a man by order, advice, example, or any other en|couragement, influencing another to do a mischievous act, is not particeps criminis at an hundred miles distance, as much as if present upon the spot.

The stabbing of Wilson follows in the course of the evi|dence; (vide proceedings) and it appears as little comment is necessary upon this as upon the former action, further than to remark that in this case Col. Henley is found to be acces|sary not upon circumstantial, presumptive and argumentative, but upon positive proof; for it is sworn the action was done within his sight; that he made no attempt to prevent it; and though it should be alledged and admitted that he was at too great a distance, yet his giving no reprimand nor check to the soldiers upon seeing the act committed, carries as direct con|viction of approbation and encouragement, as if he had given open applause.

The last act to mark the thirst of blood, was the stabbing of Corporal Hadley, and following Winks with threats of the same fate.— It would be superfluous to expatiate upon the strength of the proofs, the concurrence of witnesses that

there was no provocation, the deliberation and the wanton|ness of the barbarity.—The intention is so clear in my opini|on against the probability of doubt, that I should not touch a moment upon it, were it not that a very grave application was made to the Court, by the most respectable authori|ty in it, to consider the nature of wounds as matters of the greatest importance, and question upon question was put to the surgeon in every case, to find whether they were dange|rous or not. Is it possible that any gentleman can mean to measure the degree of the crime by the depth of the wound, and to argue that a man may thrust a weapon into another's breast with impunity, provided he does not touch a mortal part? If this doctrine holds good, you ought to establish schools of anatomy for the education of young officers, this science of desection should be added to the skill of the fen|cing master, to train the pupils in that nicety of touch that can feel to a hair's breadth between death and life—a sort of fiddlestick dexterity— that can run divisions upon veins and ar|teries, and stop short in tune and time to the thousandth part of a second. Really Gentlemen, I am not willingly ludicrous upon this subject, but it is impossible to treat such an argu|ment gravely.—I dismiss it to my learned neighbour with one more injunction, to shew the Court in law that where a man passes a sword with violence at another's breast, whether the wound is a mere puncture or goes to the hilt, the intentional guilt is the same. I have only one matter further to ob|serve upon the cross questioning the witnesses —It has per|haps been wished to insinuate, that at the time of these violent proceedings there was cause of apprehension the armed troops might be surrounded and overcome.—The troops themselves will hardly thank their friends for this idea—what shall it be alledged that the militia of America, who animated by their cause, have been self-taught the use of arms? that body where every man is supposed to be in himself an host; shall such soldiers be apprehensive of dan|ger from half their number of unarmed, mercenary, ministerial slaves—for such you know they think us—No Gentlemen I reject with you so injurious a supposition—I give credit to the spirit and the force of the militia—I do it seriously and upon experience—and it is upon that credit I found this proposition that it being impossible the officers or soldiers should be induced to acts of violence by any apprehension

of resistance;—it follows by the fairest deduction, that ei|ther there was more prevalent malignity than ever appeared before in the human heart, or that the whole proceeded from direction, order, and systematical plan.

Little more I imagine need be remarked to apply the evidence to the several distinct terms I have used in the charge—That the whole tenor of Col Henley's conduct was heinously criminal as an officer, will hardly be disputed in a country where the principles of liberty have been so deeply studied.—An army is not to be borne in a free state, but upon the principle of defence against an outward enemy, or the protection of the laws.—The officer who makes him|self the arbiter of the law is guilty of the most shameful perversion of moral duty, and his impunity would scarcely be thought a very comfortable presage of the growing li|berties of his country.

I have also said the Colonel's behaviour was unbecom|ing a man.—I will not trifle with the time or understand|ing of the Court to enter into difinitions upon this term; nor will I shock the ears of officers nor even of the unfor|tunate person under trial, with so gross a term as the world in general apply to the act of assaulting a woman, a priest, or an unarmed man, for they are all exactly in the same predicament.

The sword drawn for such a purpose is no longer the badge and distinction of a Gentleman; it is degraded with the implements of the assassin and hangman, and contracts a stain that can never be wiped away.

Gentlemen, I have now gone through the material parts of the proceedings, whether the offences are resolved into vindictive resentment, or more deep designs, or both, it must still appear wonderful, that general massacre did not ensue—by the patience and discipline of the British soldiers those horrors have been avoided—but whatever the escape may have been on our part, it is ten-fold more material on your's—we might perhaps for the struggles of the des|perate are hard—but perhaps we might have been sacrifi|ced to the last man, we should thus have paid a soldiers debt, which we have often risked, our fall would have been revenged, and our memories attended with pity and with honor—but for America, the transaction would have re|mained a foul and indeliable blot in the first page of her

new history; nor would any series of disavowable penitence, nor ages of rectitude in government, purity in manners, in|flexible faith, or the whole catalogue of public virtues, have redeemed her in the opinion of mankind.

Now Gentlemen, consider the words of the order un|der which you sit; reform the opinion of the Court of In|quiry; and say whether it is the honor of Col. Henley or the honor of America, with which your minds ought to be impressed when they proceed to judgment in this cause.— I close with that consideration, as far as I can impress it on your breasts—I trust they are replete and pregnant with justice, honor, duty to your profession; and above all with that glorious whig principle, the words of which are become almost a general motto in this country, and the genuine substantial practice of which I shall ever revere in any country, "A due sense of the general rights of mankind." I trust you have all these qualities, and in that persuasion I cannot doubt what will be the issue of this cause.

Judge-Advocate.]

I SHALL not now trouble the Court with any observati|ons on the evidence, because at this stage of the trial they must necessarily be partial. After the examination of the witnesses on the side of Col. Henley is finished, I shall endeavor to lay before the Court a true state of facts, from a general and aggregate view of the whole evidence; and at the same time submit to your consideration those remarks which may conduce to elucidate and confirm them.

At present I only renew my objection to Gen. Burgoyne's observing upon the evidence in defence. It is true I did not until this morning, directly oppose the General's claim, which is therefore called an agreement to it; if it was such, it must have been an agreement subject to the opinion of the Court. It was not made a point of, and so passed off sub silentio. The precedent, if it becomes one in this cause may hereafter be considered an important one; my duty there|fore requires me to take the judgment of the Court upon the right now set up. I do not press the General upon a discussion of the question to day. Any hour previous to closing the evidence may do as well.

General Burgoyne.]

I do not just now recollect any precedent of the kind which have been enquired for by the Judge-Advocate; but I believe there have been many. Between this and the time mentioned by the Judge-Advocate I will endeavo•• to satis|fy the Court that my claim of being admitted a prosecutor is not unprecedented.

Col. Henley being called upon to make his defence, told the Court he should not then enter into a detail of his con|duct as connected with the charge, but only beg that the witnesses whose names he would hand to the Judge-Advo|cate, might be sworn; if any observations in vindication of himself should be necessary, he would afterwards submit them to the Court's opinion.

Major Swasey was called in and sworn.]

Q. Was you present with Col. Henley at the guard-house on Prospect-Hill 19th December last?

A. I was present the day that the Colonel wounded Cor|poral Reeves at the guard-house; the day of the month I do not remember. On the forenoon of the day I attended Col. Henley to the guard-house, with a design of enquiring into the offences of a number of British soldiers confined there. Previous to this step I had acquainted Col. Henley with General Heath's orders, which were to release those prisoners whose crimes were trifling: those who had insul|ted any inhabitant and refused making any atonement for the affront were to be sent on board a guard-ship. When we came to the guard-house the prisoners were ordered out and paraded. I examined the charges of each, and finding Buchannan and Reeves, who stood together, were confined (Buchannan for insulting and striking an inhabitant, Reeves for insulting an officer;) we passed these two over as not subjects of releasement After learning the other prisoners offences, Reeves was called upon to relate how he got into confinement. He mentioned the circumstances, and closed his narrative by repeating a low and very abusive expression, which he had made use of to the officer who confined him; on which I told him he was an impertinent rascal for treat|ing any person with such language: He reply'd he was no more a rascal than I was, that he was a good soldier. On this I order'd silence, and threatened if he did not stop his impertinence I would lay him over the head with my whip.

He kept on his talk and Col. Henley dismounted his horse, after bidding the fellow be silent to no purpose, tock a fire|lock with a bayonet from one of the guard, and told Reeves if he said another word he would run him through; Reeves replied he might do it if he pleased; upon this Col. Henley made a lunge at him and prick'd him in the breast. Reeves continuing his insolent language, Col. Henley step'd back and made a motion to cock the firelock, and told him if he was not silent he would blow his brains out. One of the British soldiers finding Reeves was not to be silenced, begged of the Colonel to return him to the guard-house. Buchannan and the other British soldiers begged the Colo|nel not to take notice of the affair for Reeves was drunk; on this Reeves damn'd them and said he was not drunk He was ordered into the guard-house. I do not remember that much swearing passed, nor can I recollect the words of inso|lence used by Reeves. After Col. Henley had prick'd him, Reeves said he was a good soldier and he would fight for his king and country as long as he had breath and hoped that he should soon be with Gen. Howe that he might seek revenge.

Q. Did it appear to you that Col. Henley's intention in making the pass at Reeves was to injure or to frighten him into silence?

A. Only to silence him; for had the Colonel extended his arm he might have run him through with the bayonet.

Q. By Gen. Burgoyne.—Did you hear Col. Henley or|der any of the guard to run Reeves through the body before he dismounted from his horse?

A. I did not; but he might have done it.

Q In what position was Col. Henley when he made the pass?

A. He had his right hand on the butt of the firelock, and the left grasping the stock.

Q. Did you hear Reeves apologize to Col. Henley for insulting the officer?

A. He said he did not know him to be an officer.

Q. Did you not think Reeves's insolence of language as much directed to yourself as to Col. Henley?

A. It was before the Colonel prick'd him

Q. By what rule do you judge of insolence of language when you do not remember the words?

A. By the manner.

Q. Did Reeves throw out ony reflections upon America, or the persons concerned in the cause of it?

A. He did not that I heard.

Q. Did you consider Reeves's saying he would fight for his king and country as part of the insolence you mention?

A. I did not; Col. Henley in reply damn'd Gen. Howe or his king and country, and told him no body blamed him for fighting in the cause he had engaged in.

Q. Did you see any resistance made, or any mark of dis|obedience on the part of Reeves to the Colonel's orders, ex|cept his not being silent?

A. There was no other order given; Reeves made no open resistance.

Q. In going down to the guard house did Col. Henley express satisfaction at having it in his power to release the British prisoners?

A. He did.

The Court adjourns 'till to-morrow at ten o'clock.

THURSDAY, January 29, 1778. The Court met pursuant to adjournment.

Capt. Silas Wild of the militia.]

Q. DID you see Colonel Henley at the guard-house on prospect-hill 19th December last?

A. I did; I had the command of the guard that day. Col. Henley and Major Swasey came to the guard-house and enquired what number of prisoners I had in custody, and ordered them paraded; they were accordingly drawn up in a single line, Reeves was on the right and Buchannan next to him. The Colonel mildly asked the prisoners why they would get into difficulties? I handed the charges against them to Major Swasey, and as he read over their names and offences, the Colonel spoke to each one upon the subject of his confinement. When he came to Reeves he observed to him that he was the lad who abused the officer down in town; Reeves said he did not know him to be an officer at the time. Major Swasey told him that if he had been the officer, he

should have taken his satisfaction on the spot. Col. Henley then told Reeves he was a rascal; Reeves replied I am no rascal but a tree Briton, and by God I will stand up for my king and country 'till I die. The Colonel told him he was a good fellow to stand up for his king and country, that he did not blame him, but he must be silent. Reeves kept on talking; the Colonel ordered silence, and turned to Buchannan. The Major went on to read his crime, and Buchannan was making an excuse for his conduct; Reeves continued talking and swearing, and turned round to Buchannan and said damn you why don't you stand up for your king and country; Buchannan desired him to be qui|et; Reeves answered God damn them all, I'll stand up for my king and country while I have life; if I had my arms I would soon be with Gen. Howe, and be revenged on them. Upon this Col. Henley got from his horse and took a gun from one of the guard with a fixed bayonet, and brought it up towards Reeves's breast, and made a push at him, and said you rascal if you don't hold your tongue I will run the bayonet through you; Reeves stepped one foot back, and said he would stand up for his king and country, and if you have a mind to kill me you may. The Colonel brought up the piece again, and Reeves repeating the same words, the Colonel exclaim'd God damn your king and country, if you do not hold your tongue I will run you through the body: Buchannan then took hold of the mus|quet, and Col. Henley bid him keep his distance. Finding Reeves was not to be quieted, I desired the Colonel to re|commit him, and he was remanded to the guard-house. Af|ter he was in the guard-house, he looked out of the window and kept talking and swearing while Col. Henley was ad|dressing the other prisoners.

Q. Do you suppose Col. Henley in the pass he made at Reeves intended to wound or only to silence him?

A. Only to silence him; the Colonel spake very mild|ly 'till Reeves said "God damn them all."

Q. Did Col. Henley dismiss the rest of the prisoners with a mild reproof?

A. He did.

Q. Did Col. Henley do all he could to satisfy the pri|soners before he dismissed them?

A. Yes; he mildly cautioned them, and told Buchannan he would release him after he had wrote to the inhabitant who bad been abused.

Q. If Reeves had not stept back do you think the bayo|net would have gone into his body?

A. I do not think it would.

Q. By General Burgoyne.—Is it usual in the American service to silence men by the sword and bayonet?

A. No, it is not; but when the temper is raised a man will do that which at another time he would not.

Q. Did you hear Col Henley order any of the guard to run Reeves through the body, before he got from his horse?

A. I did not hear him; he might possibly have ordered it, but I was very near to him.

Corporal John Deane of the militia]

Q. Was you at the guard-house on 19th of December last?

A. I was. The witness confirms the testimony of Capt. Wild, as to the prisoners being paraded, and says that when Col. Henley asked Reeves what he was confined for, Reeves replied he was confined for talking saucy to a Lieutenant, but did not at the time know him to be an officer. Col. Henley inquired what the abuse was; Reeves answered that if he must tell, he must—"That he was walking along with a comrade, who told him that King Hancock was come to town, upon which I said don't you think him an impudent fellow for coming so near Gen. Burgoyne. A Continental officer asked me what it was I said, I replied if you want any thing of me here is my pass. The officer told me I had better not talk so saucy, and I bid him kiss my arse." Upon hearing this account, Major Swasey told Reeves that if he had given him such a reply he would have settled it with him on the spot, and not sent for a file of men—Col. Henley added so would I you rascal Reeves answered he was no rascal; the Colonel told him he was one; Reeves then said if I am a rascal, you are a damn'd rascal. Upon this Col. Henley got off his horse, took a firelock from one of the guard, and bid Reeves be silent, and came up to him with the fixed bayonet—Reeves bared his breast and told the Colonel that his life was at stake, and he might take it. Upon this the Colonel prick'd him with the bayo|net,

but I saw no blood run; and then ordered him into the guard-house without making another pass at him that I saw.

Q. Was the whole of Reeves's conduct insolent and saucy?

A. It was; and had I been Col. Henley I should have thought so.

Q. Did the words "damnd rascal" pass from Reeves before the Colonel got off his horse?

A. They did.

Q. How near was you to Reeves when he made use of those words?

A. About two rods.

Q. Was you looking at Corporal Reeves at the time he made use of those words?

A. I was looking at the Colonel and Reeves at the same time and I am positive it was Reeves who used the words.

Q. Was Major Swasey nearer Col. Henley and Reeves than yourself?

A. I don't know; there were some persons nearer, but I don't know who; some were British soldiers.

Q. Did you see Corporal Buchannan, or any other Bri|tish soldier take hold of the firelock in Col. Henley's hands?

A. I did not.

Q. Did you hear Capt. Wild advise Col. Henley to send Reeves to the guard-house?

A. I did not.

Q. How long after Col. Henley prick'd Reeves before he ordered him into the guard-house?

A. It was five or six minutes.

Q. What pass'd in that time?

A. I know of nothing.

Q. Did Col. Henley return the firelock to the man from whom he took it before he ordered Reeves into the guard-house?

A. He did.

Q. Did Corporal Reeves step back when Col. Henley made the pass at him?

A. I did not see him.

Q. Was the position of Col. Henley such that he could easily have run Reeves through the body, had he tried to have done it?

A. It was.

The Court adjourns to Friday 30th instant at ten o'clock.

FRIDAY, January 30, 1778. The Court met according to adjournment.

Elijah Horton.]

Q. WAS you at the guard-house 19th December, when Col. Henley was there?

A. I was present, being one of the guard; Col. Henley and Major Swasey came down and after inquiring into the number of prisoners, ordered them out. The witness con|firms the testimony of Corporal Deane, and says that upon Col. Henley's calling Reeves a rascal, Reeves replied if I am a rascal, you are a damn'd rascal; and that this was before Col. Henley got off his horse.

Q Did you hear Col. Henley order one of the guard to run Reeves through before he got off his horse?

A. I did not; and my situation was such that if Col. Henley had given such an order I must have heard it, be|ing about three yards distance.

Q. How often did Col. Henley bid Reeves be silent be|fore he prick'd him?

A. I heard him two or three times.

Q. When Col. Henley made a pass at Reeves did it ap|pear to you that Col. Henley intended rather to silence him than to punish him by wounding him?

A. It did appear so; for Col. Henley might easily have wounded or killed him, had he been disposed so to do; the Colonel push'd moderately, Reeves drew back his body. The push was not sufficient to have forced the bayonet through a thick woolen cloth.

Q. By Gen. Burgoyne. —Did you see Corporal Buchan|nan or any British soldier take hold of the firelock to prevent Col. Henley's making a second pass?

A. I did not.

Q. Did you hear Col. Henley reply to Reevss, damn your king and country?

A. I did not; and if he had said it I think I was so near I must have heard it.

Q. How near was Major Swasey to Col. Henley when he stabb'd Reeves?

A. Col. Henley's horse was between him and Major Swasey, who was on horse-back.

Silas Morse confirms the substance of Corporal Deane's testimony, as to his narration.

Q. Did Reeves step back when Col. Henley made the pass at him?

A. He moved one foot back.

Q. By the Court.—It Reeves had not step'd back, wou'd Col. Henley have wounded him deeply?

A. No; for Col. Henley did not instantly push at him on his stepping back.

Q. Did Col. Henley draw back the bayonet on finding it touch Reeves?

A. I believe he did.

Q. Did you hear Col. Henley say to Reeves damn your king and country?

A. I did not; and was so near him at the time he got off his horse I should have heard him had he said so.

Q. Did you see Corporal Buchannan or any other Bri|tish soldier take hold of the firelock in Col. Henley's hands?

A. I did not.

Q. Did you hear Major Swasey or any body else, advise Col. Henley to send Reeves to the guard-room?

A. I did not.

James Brazier confirms the testimony of Horton and Morse, both in the narrative and in the answers to the same questions.

Wadsworth Horton confirms the narrative of Brazier, word for word; and adds that Col. Henley first call'd Reeves a rascal, Reeves reply'd God damn you, don't call me a rascal.

John Barry confirms the testimony of Horton and Morse, and of Wadsworth Horton, except that he did not hear Reeves say to Col. Henley God damn you, don't call me a rascal.

The Court adjourns to Tuesday the third of February.

TUESDAY, February 3^d. The Court met pursuant to adjournment.

John Kittle, serjeant in the militia.]

Q. WAS you one of the detachment ordered to Pros|pect hill on the forenoon of the 8th January?

A. I was; we marched from the North side of Winter|hill up to Prospect-hill. When we were going up Pros|pect-hill the British soldiers crowded much upon us; the serjeants were obliged to fall into the ranks and exert them|selves to keep the British soldiers off, they would not tho' repeatedly ordered, move out of the way; I thought they deserved stabbing, as they would not go out of the way when they were ordered. I saw one of our serjeants with his gun and fixed bayonet over his arm make a push at a British soldier, and I believe stabb'd him, and then said to the British soldier do you damn me? and then turn'd his firelock and struck him with the butt of it; we kept on marching and I saw no more of it.

Q. Did the British soldiers insult the party as they march'd along?

A. We were insulted by their crowding on us, laughing and sneering at the guard.

Q. Was there any other object to excite their attention?

A. No, not that I know, of; and their looks in general were directed to the guard.

Q. Was it your own opinion that you, had a right to stab the British soldiers who did not get out of your way, or was you told so by any other person?

A. It was my own opinion intirely.

Q. Did you see any British soldier with a club, stone, or other weapon in his hand, or any attack or assault made up|on the guard, or other insult offered except that of laughing?

A. No; except that of crowding on us.

Q. What was the number of British soldiers that crowd|ed round you?

A. Three hundred at least in my opinion; I saw no British officer near.

Thomas Duckenfield of the militia.

Q. Was you one of the detachment ordered to Prospect-hill on the 8th January.

A. I was; as we marched along towards the fort on Prospect-hill, the British soldiers crowded much upon us, so as not to give us elbow-room; it was very muddy; our serjeant spoke to the British soldiers and desired them to give way for us to pass, but they crowded close upon us; a British soldier then desired them to move back, upon which one of the British soldiers said damn the yankies; upon that our serjeant asked him what he said, and he repeated damn the yankies; with that the serjeant made a push at him, whether he wounded him or not I can't say, but the man cried out. The serjeant then clubb'd his firelock, and the British soldiers crowding in, he made a stroke at the same man, but did not strike him I am certain, I was quite close to him all the time; we marched on.

Q. Were you interrupted or impeded by the British soldiers?

A. We were; for they crowded so upon us as to break our ranks several times.

Q. Were you insulted by the British soldiers?

A. They crowded so upon us that they forced us into the mud and water, and would not give way?

Q. Did they laugh at or hoot at the guard?

A. They did laugh at us.

Q. How many British soldiers were round you?

A Four or five hundred.

Q. Did you see any British soldier with a club or other weapon in his hand?

A. I did not.

John Anderson of the militia.

Q. Was you one of the detachment sent to Prospect hill on the 8th January?

A. I was. The witness confirms the evidence of Duck|ingfield, except that he did not hear the British soldiers say damn the yankies. They made use of the words damn, but who they damn'd he can't tell; he was within three feet of the serjeant when he made the pass at the British soldier. The witness gives the same answer in substance to the questions put to the last witness, except that there were in his opinion between two and three hundred British soldiers around the party.

Captain Dodge of the militia.]

Q. Was you Captain of the detachment that was order|ed to Prospect-hill on the 8th January?

A. On the 8th January an order came for Col. Gerrish to furnish a detachment of 100 men from his regiment, which was made, and the command given to me, with verbal orders to reinforce the main guard on Prospect-hill. We marched on, myself at the head of the party, and during the march I saw no insult, I looked directly forward. When we came a-breast of the barracks, the British soldiers turn|ed out generally. As we marched on they followed. In the front I saw no insult offered by the British soldiers; how it was in the rear I cannot say, but I had no report of any at the time of the march. Just before I came up to the barracks, I halted the men, in order to close and cover properly; and then gave orders that they gave no insult nor received any?

The Court adjourns 'till to-morrow at ten o'clock.

WEDNESDAY, February 4. The Court met according to adjournment.

Asa Peirce of the militia.]

Q. WAS you one of the guard who had a British soldier in custody, carrying him to the guard-house on the 8th January?

A. I was; in the forenoon orders came to the serjeant of our guard to furnish a file of men and a corporal to take charge of a British soldier, of which I was one; we took him at the bridge just below the provision house. Col. Henley when we took charge of the prisoner was by, and gave us orders if any man attempted to rescue him, to fire upon them. We marched on with him, (his name was Buchannan) he told us he had done nothing more than hav|ing a pass that was not his own, that he should not be pun|ished, and that one of us wou'd be sufficient to guard him. Just as we got within the works behind the barracks, where there was a considerable number of British soldiers collect|ed; a British soldier came up to us upon the run▪ I told him to keep off, he muttered something and told me if I did not mind he would take my firelock from me. Our cor|poral told him if he did not mind how he talked he would

take care of him. On this he stepped aside and walked along with us talking with Buchannan upon the subject of his con|finement; as we went along we came up to a crowd of British soldiers, I should think three or four hundred of them; our corporal ordered them to make way, which they refused to do, and stood so thick together that we could hardly tell which the prisoner was. The prisoner step'd out and another British soldier step'd in, took hold of Bu|channan's arm, and placed himself between me & Buchannan who went off with the crowd; our corporal turning round and seeing Buchannan gone step'd in among the British sol|diers to recover Buchannan; the same British soldier who had taken hold of Buchannan's arm, took hold of the cor|poral and stop'd him; upon this I brought my piece down and prick'd the soldier who had hold of the corporal be|tween the hip and the ribbs. The soldier then let go the Corporal's arm, and we marched on to the main-guard without our prisoner.

Q. Did the British soldiers refuse by words or actions to make way for the guard to pass?

A. By actions; I mean they did not move out of the way; they talked, but I don't recollect what they said.

Q. After Buchannan had escaped from the guard did the British soldiers shew any marks of triumph?

A. Yes; they laugh'd and huzza'd a good deal.

Q. Do you know the name of the person whom you pricked?

A. I do not

Q. Do you think you run the British soldier into the body?

A. I imagine I did, for I push'd with a good will, and he cried out God damn you.

Thomas Lewis of the militia.

Q. Was you one of the guard who had the custody of a British soldier on the 8th January?

A. I was. The witness confirms the substance of Peirce's testimony, except that he did not see a British sol|dier take hold of Buchannan nor the corporal

Q. Might a British soldier have taken hold of Buchan|nan or the corporal, and you not see it?

A. Yes; for upon Buchannan's stepping out I turned round to keep the British soldiers off on the other side of us,

and hearing a British soldier cry out I turned back and saw Peirce pulling back his bayonet from the side of a British soldier.

Q. Did it appear to you that the prisoner (Buchannan) was forced away by the British soldiers, or that he run away himself?

A. I can't say, for it was done very quick; Buchannan started before I turned round.

Q. After Buchannan had got away did the British soldi|ers shew marks of triumph?

A. They shouted and huzza'd.

Q. Did you see Col. Henley at any time during this transaction?

A. I saw an officer who I think was Col. Henley on the fort, his head above the breast-work, at about five rods dis|tance.

It is conceded by Gen. Burgoyne that on the evening of the 7th of January, a provincial sentry was knock'd down on his post by a British soldier; that he was much beat, and his gun taken from him.

Col. Gerrish of the militia.]

Q. Do you know any thing of a Provincial sentry being knocked down on his post on the evening of 7th January, and what transactions ensued?

A. In the evening of 7th of January, a messenger came to me at Winter-hill, where my regiment is posted, and ac|quainted me that a sentry had been knocked down on his post, and his gun taken from him. In consequence of this report, I ordered the regiment out and detached 200 men, with two Captains as a reinforcement to the guard at the French lines on Prospect-hill, with orders to march silently and surround the first row of barracks, where I supposed the gun was car|ried in. I accompanied the detachment. The party was in two divisions, one under Capt. Huse, the other under Capt. Kimbal. I left the party under Capt. Huse in front of the first row of barracks, and then ordered Capt. Kimbal (who had mistaken my first orders and got to a wrong situation) to join Capt, Huse; while Capt Kimbal marched to make the junction, I was left a little behind in front of the second row of barracks, a British soldier came out and said to me, damn you what do you come here for, we have done you no hurt in these barracks: We have got arms and we will

shoot you. I then thought the sentry's gun might be in that barrack, and called for a serjeant and a dozen men; they came up, then the British soldiers came to the door of the barrack and presented a weapon out (I thought it had been a musket, tho' I afterwards found it had only been a club) and said God damn you we'll shoot ye. I then ordered my small party to fire upon them, but upon the party's cocking I re-called the order, as the British soldiers in the room might not all be guilty, and some of my own men might be endangered who were in the rear of the barrack. We then approached close to the door and found that they were not guns which the soldiers in the room had in their hands. One of them as we approached made a stroke at us with a stick, but did not hit either of us; as he was making another pass I struck him down, and we entered the barrack and took five or six of those in the room and sent them off to the main-guard. I then got a candle and search'd the room, found no arms, but a number of hickery-sticks, shorter and stouter than walking sticks. When the search was over, one of the British soldiers catched at the candle and put it out and followed us to the other barrack, where he was insolent and saucy, and I thought proper to send him to the guard-house. I then gave orders to the British soldiers that they should not leave the barracks 'till the barracks were searched, telling them they should not be molested by my men. I then search'd the barracks where I supposed the gun was carried in; they were loth the barracks should be searched, and refused giving me any direct answers; they were inso|lent and kept damning of us, several of them called us damn'd rebels and yankies several times; this gave me strong reasons of suspicion that the gun was secreted among them, and I therefore thought proper to send the greater part of those in that room to the main-guard. I then went on and searched several rooms in the same row of barracks, and met with no opposition or insult. Finding the search fruitless, I returned with my detachment to Winter-hill, ex|cept a party I left to reinforce the guard at the French lines.

Q. By Col. Henley.—Did you receive any orders from me whatever, that evening?

A. No; I made report of the transaction to you next morning.

Q. By Gen. Burgoyne.—Was you distinguished from the men by any mark that could designate you to be an offi|cer of rank?

A. I had on a blanket-coat and sword slung over it, with a firelock in my hand, and it was dark.

The Court adjourns 'till to-morrow at ten o'clock.

THURSDAY, February 5. The Court met according to adjournment.

GENERAL Burgoyne informs the Court, That ex|traordinary business requires his attendance at his own house to-day, and begs that Gen. Phillips might be allowed to assist in the examination of the witnesses.

The Court consents to Gen. Phillips's assisting in the examination.

Jsaac Howard.]

Q. Was you with Col. Gerrish on the evening of 7th January, when the barracks on Prospect-hill were searched by him?

A. After the detachment had got down to the barracks as hath been related, Col. Gerrish gave orders to a corpo|ral and four men to go in and search the rooms: I was one of the four. We searched several rooms in the most northerly row of the barracks, and met with no resistance from the British soldiers. We then went to the barracks in the row below. When we came to the door of the room intended to be searched, some one in the room called out to the rest to fire; a weapon was presented out of the door, whether it was a gun or a stick I can't say; the British soldiers said they would defend their own room. On this Col. Gerrish ordered Lieut. Searle to fire upon them, but presently re|called the word: Four or five of us then rushed in among them, they were armed with clubs, we turned them out of the room, and one of them made a stroke at Lieut. Searle, which he parry'd with his gun, Lieut. Searle then knocked three or four of them down with his gun: We had then or|ders to take five of them to the guard-house, one without

his breeches. The British soldiers were insolent and said to us damn your bloods, you shall not come in; and the first that does we'll knock him down. I did not hear any ex|pressions of yankies or rebels. In another room into which I went with a Lieutenant, as soon as we entered the door a British soldier blew out the light they had in the room; the Lieut. seized the man by the collar who blew out the candle, and brought him out of the room with some difficulty, and asked him for the candle, which he denied to have seen or touched, an officer of ours put his hand into his pocket and took it out, and then the Captain struck him, then the Ad|jutant, and then the Colonel, who call'd him rascal for de|nying his having the candle, and ordered him under guard. We went to several other rooms, where the British soldiers held the light for us, and assisted us in searching the room; the search was fruitless, for we could not find the gun.

Q. Was there any fire-arms in any of the rooms you searched?

A. There was not; in one room they had clubs, I mean hickery sticks, three or four feet long, and near as thick as my wrist.

Q. When you rush'd into the room did the British sol|diers strike at you with their clubs; and how many British soldiers were in the room?

A. There were about 16 or 18 soldiers in the room, and they did not strike at us when we went into the room.

Q. Was there time for the man who was without his breeches to have put them on if he chose it before he was carried off by the guard?

A. There was; several of the others went in and put on their stockings. This man was sulkey, and I suppose he meant to knock some of us down before he put his breeches on, as he came out of the room with his club.

Col. Eleazer Brooks.]

Q. Did you make any report to Col. Henley on the morning of the 8th January?

A. I did to the best of my remembrance in the following words:—"Sir, before I make my report as an officer of the day, (yesterday) I thought it my duty to inform you that one of your sentries was last night knock'd down, and his gun taken from him; that Col Gerrish in attempting to re|cover the gun was resisted with clubs, &c. That about 20

of the British soldiers were confined for this affair. I am this moment informed that two of our men were killed last night, whether it be true or not I can't say."

Q. By Col. Henley.—Had you orders to get your regi|ment under arms?

A. The regiment were, I believe, got under arms imme|diately, and soon after dismissed; but I was not with them.

Col. Gerrish.—I was at Col. Henley's on the morning of the 8th January, and as I came along I saw Col. Brooks's regiment upon the common under arms; I was told that a hundred men had been ordered from my regiment, I ask'd the reason, 'twas answered—there were two of our men kil|led, I reply'd I believe it is a false report, for I had been on the Hill that morning and had heard nothing of it; upon that Col. Brooks's regiment was dismissed. Col Henley immediately went to Prospect-hill—soon after I went to the Hill myself, as I was officer of the day.—When I entered the fort on Prospect-hill I saw Col. Henley with the rein|forcement from my regiment; Col. Henley told me the British soldiers had rescued a prisoner from our guard; I then went in front of the detachment from my regiment with Col. Henley, I saw about a hundred British soldiers front of the detachment, between it and the barracks, the distance was so small between the detachment and barracks, that 'twas difficult passing without interruption on account of their being in front; I apprehend about 200 more British soldi|diers were dispersed about, particularly in the rear of the detachment. I think I told Col. Henley if I had the com|mand I should order them to disperse, as I did not look on the guard safe; I thought they might disarm his guard if they should rush upon them. I went immediately into the citadel, and saw nothing further. When I came out of the citadel into the fort again, I saw Col. Henley marching off the Hill with the detachment and the prisoners; as they were marching off, a number of British soldiers standing to|gether said, I wonder what the damn'd Yankies are going to do now.

Q. When Col. Henley conversed with you, did any of the British soldiers come close up and listen to what was said?

A. They did; We moved a little farther and they fol|lowed us with a view, as I thought, of hearing the conversa|tion. I don't recollect Col. Henley's saying any thing to them about it.

Q. By General Phillips.— How long was you with Col. Henley in the front of the detachment?

A. About four or five minutes.

Q. Did the British soldiers crowd so much upon the de|tachment as to prevent the execution of any orders which Col. Henley might give?

A. They did; and it would have been impossible for the detachment to have formed a manoeuvre without the British soldier's removing.

Q. During the time you stood with Col. Henley by the detachment, was there any words or actions on the part of the British soldiers that menaced any assault on Col. Henley or the detachment?

A. I heard no words except a laughing and talking among them; I saw no appearance of an assault on the guard ex|cept their crowding upon the guard.

Q. Did you see any weapons whatever in the hands of the British soldiers?

A. I did not.

Capt. Caleb Brooks.]

Q. Did you see Col. Henley on Prospect-hill on the forenoon of the 8th January?

A. I did; I was the Captain of the guard on the Hill that day, and had in custody twenty-nine British soldiers. About 11 o'clock Col. Henley and Major Swasey came up to the guard-house, and after some inquiries, and my reporting that every thing was very quiet, Col Henley told me that a reinforcement was coming up, and he thought it would be best to take the prisoners out of the guard-house, and send them to Cambridge, where an enquiry could best be made into their crimes. We went into the guard-house to|gether, and presently the detachment came into the citadel, and formed about four rods from the guard-house. At this time I saw a large number of British soldiers collecting near a corner of the guard house. I went with Col. Henley's orders to bid them disperse and retire to their barracks, he ordered them two or three times, finding they would not obey him, he called twelve men from the detachment. After some time the twelve men moved from the party, up|on which the British soldiers gave a shout and dispersed, going off towards their barracks. Immediately on this, a man came up and told Col. Henley that a prisoner had been

rescued from him by the British soldiers. Col. Henley on this said he would take the command himself; and then marched the detachment out of the citadel and paraded them in the rear of the barracks in the fort. I know of no trans|actions while the detachment were in the fort, for as Cap|tain of the main-guard I could not quit my post at such a time.

Q. What was the number of British soldiers who were assembled near the corner of the guard-house?

A. I believe near three hundred, and more were col|lecting when they dispersed.

Q. Was there any insult offered to Col. Henley by the British soldiers?

A. Not personally to Col. Henley; but they were laughing and jeering at the guard; some of them cried out Yankies, but I can't be particular in their expressions.

Q. By Gen. Burgoyne.—Was there any appearance of an assault on the part of the British soldiers?

A. No; they appeared to me rather with a view of in|sulting than assaulting the guard; they pointed at and laugh|ed at the guard; they were talking but I did not hear their expressions; there was a breast-work between the British soldiers and the detachment, over which they were looking at the detachment

Q. Had the British soldiers any weapons in their hands?

A. Not that I saw.

The Court adjourns 'till to-morrow at ten o'clock.

FRIDAY, February 6, 1778. The Court met according to adjournment.

Major Swasey]

Q. DO you know any thing of corporal Buchannan a British soldier, being taken into custody on the 8th January, and his being rescued from the guard who had charge of him?

A. On the morning of the 8th January I was accompa|nying Col. Henley to Prospect-hill. At the bridge on the

road to Prospect-hill the sentry was examining a pass shewed hint by corporal Buchannan; Col. Henley suspecting the pass might be forged, ordered Buchannan to shew it to him, with much reluctance be gave it to Col. Henley; the name of another man inserted in it; in consequence of this disco|very Col. Henley ordered a file of men to take charge of him: As there had been frequent rescues before, Col. Hen|ley ordered the guard in case any British soldiers should at|tempt to rescue him out of their hands to fire upon them. I then went on with Col. Henley to the guard-house on Prospect-hill Soon after we got upon the hill a detachment which had been ordered up to take charge of some prisoners in the main-guard arrived; after the detachment had paraded near the guard-house, a large body of British soldiers appeared near the breast-work who were ordered to their barrack by an officer, and then by Col. Henley; they appeared to move slowly off At this time I step'd up to the breast-work, and observed Buchannan coming up with the guard; the guard had got into a crowd of British soldiers, and I obser|ved a British soldier hold of the skirts of the coat of one of the guard, and heard some amongst the crowd cry out, run damn you run, and saw Buchannan running through the crowd of the British soldiers: one of the guard pursuing him with a charg'd bayonet, was intercepted by the crowd, and I saw no more of Buchannan. Immediately on this Col. Henley ordered the whole of the detachment to march out of the fort, and we went out of the fort together, and Col. Henley asked me what measures he should take to recover Buchannan? I observed to him the best way would be to ac|quaint the British commanding-officer of the day of it, and did not doubt he would give Buchannan up. Col. Henley then desired me to wait on the commanding-officer and ac|quaint him with the matter; I accordingly weired on Major Foster of the 21st regiment, and on acquainting him with the matter, the Major told me he would send for the Ad|jutant of the regiment and order him confined, and report the matter to the Brigadier. In six or seven minutes I re|turned to Col. Henley and reported Major Foster's answer, with which he seemed perfectly satisfied.

Q What number of British soldiers were assembled at the time Buchannan was rescued?

A. I imagine one hundred and fifty, within a circle of one hundred yards.

Mr. James Hartwell.]

Q. Did you see Col. Henley with a detachment of sol|diers on Prospect-hill, on the 8th January last?

A. I was at the guard-house on Prospect-hill, on the forenoon of the 8th January, when Col. Henley and Ma|jor Swasey rode up, and soon after a detachment came up and were paraded near the guard house; at this time a number of British soldiers made their appearance out-side the breast-work, near the guard-house; orders were repeatedly given to them by the Captain of the guard and by Col. Henley to disperse, which they paid little regard to. There were about one hundred at the bread-work,and more were coming up; at this time I saw two or three of our men armed, coming through the British soldiers; Col. Henley called out for a dozen men, upon which the British soldiers gave a shout and moved towards the barracks, and on their way rushed between the two or three armed men before-mentioned, and there was a scuffle among them as they cleared away; I sup|pose a British soldier by his clapping his hand near his hip, was wounded. Col. Henley soon marched out with the de|tachment, and paraded them in the rear of the barracks; I followed and stood in the rear of the guard near the centre. As soon as the detachment halted the British soldiers ga|thered round in front and rear of the detachment, to the amount of upwards of two hundred. On this Col. Henley ordered twelve men on the right to prime and load, and then wheeled them to the left so as to form an angle. Col. Hen|ley then turned towards the British soldiers and said that he had had one prisoner rescued, and if they offered to rescue any more he would order his guard to fire upon them. Col. Henley asked for Major Swasey, and seeing Col. Gerrish on horse-back, he stepped up to him, two or three British sol|diers followed him and stood at two or three yards distance listening (to appearance) to what was said by Col. Henley and Col. Gerrish. Col. Henley then ordered a division from the left of the detachment to go into the citadel and bring out some prisoners; they marched off accordingly, and were about one fourth of the whole detachment. Col. Henley then disposed his men to receive the prisoners which might be brought; by this time the British soldiers had collected in such numbers, that the Colonel had hardly room to pass in front of his guard; Col. Henley then addressed the British

soldiers, and ordered them to disperse and go their barracks, some few turned round, Col. Henley repeated his orders and said begone to your barracks every one of you; some others then turned round and moved slowly, Col. Henley on their moving slowly, cry'd God damn you why don't you move, and made a lunge with his sword at a British soldier, which I imagine struck him, as I observed the sword was bent, and saw the Colonel endeavor to straighten it. They then moved off, and the men returned from the guard-house with the British prisoners, and the whole detachment march|ed off the hill with them.

Q. Did you hear any British soldier say any thing to Col. Henley during any of the time you have spoken of?

A. I did not; there was a buzzing amongst them, but I can't repeat any expression they used.

Q. Had any of the British soldiers any weapons in their hands?

A. Not that I saw.

Q. Did you observe any circumstance to prevent Col. Henley from taking any of the British soldiers prisoners had he thought proper?

A. He might have taken the man prisoner whom he struck at with the sword.

Q. Might he not have taken any other man prisoner?

A. He might have taken a single man; it might have been dangerous taking more.

Q. Was the man Col. Henley made the lunge at moving off at the time?

A. I think he was not; he stood with his face towards the guard, at the distance of a yard or two.

Q. What did Col. Henley do after making the lunge you have mentioned?

A. He turned round and walked in the front of his guard towards the right, and spoke to a British soldier who was walking very slowly in front of the guard, and bid him go along immediately, he repeated the order, the soldier did not in the least quicken his pace; Col. Henley followed him a little way and then turned round; the British soldi|er attempted to pass the serjeant who stood on the right of the guard, the serjeant push'd him off the bank.

Q. Did you see Col. Henley make a pass at this last sol|dier you have mentioned?

A. I did not.

Q. Did you hear him make use of any other words be|sides what you have related?

A. I do not recollect any other.

Serjeant Samuel Humphreys.]

Q. Was you on the detachment on Prospect-hill on the 8th January, when Col. Henley was present?

A. I was; after the detachment got into the citadel and were paraded I observed a number of British soldiers look|ing over the breast-work; Col. Henley ordered them to disperse, they did not seem to move, he ordered them a second time, they did not move, Col. Henley turned round and ordered twelve men to advance, I was one of the twelve, we advanced out to the sally-port, Col. Henley or|dered us to go on, the British soldiers seeing us advance scattered slowly; soon after Col. Henley came up and ad|vanced with us to the rear of the barrack, we were there paraded with the rest of the detachment; Col. Henley or|dered twelve men to load, he then said he had had one pri|soner rescused, and determined not to have another, and ordered the British soldiers to disperse, they moved very slowly, he walked along the guard and back again, and said to two of the British soldiers damn you do you want to be run through, and bid them be gone, and turned round, one of the British said he'd be damn'd if he was in any hurry, I don't know that the Colonel heard him; the two soldiers went on slowly, and when they came to the right of the detachment, they attempted to crowd by the serjeant who push'd them both over the bank, they got up and damn'd the serjeant, and look'd black and sour as the devil at him; I did not see Col. Henley stab a British soldier, I stood so far on the right that I could not see all that passed; the British soldiers did not crowd on the right of the guard, they were pretty thick on the left; I imagine upon the whole parade there might be three or four hundred Bri|tish soldiers.

Capt. Dodge]

Q. Was you a Captain of the detachment on the 8th January ordered to Prospect-hill, and what took place on the arrival of the detachment within the citadel?

A. After we arrived in the citadel I paraded the de|tachment on the south cast side; I saw Col. Henley and

Capt. Brooks going towards the North-west part, where a number of British soldiers were assembled; Col. Henley had his sword in his hand and drawn, he repeatedly ordered them to disperse and immediately ordered a serjeant and twelve men from my detachment; soon after the twelve men had marched as I suppose out of the citadel, Col. Henley came and took the command of the detachment and march|ed them out of the citadel, the serjeant and twelve men mar|ched as a van-guard, so far as to have room to parade; the twelve men formed a rank intire, and formed ah angle on the right; Col. Henley then walked up and down the front of the detachment, and immediately addressing himself to the British soldiers, said, you have rescued one prisoner, but you shall not rescue another, Col. Henley at this time had is sword drawn, but I am uncertain when he drew it, as he walked to the right where there was not so many Bri|tish soldiers as on the left, he asked one or two of them a question, what it was I cannot tell, but think it imply'd do you want me to force you off; with that they went off slowly, three of them than attempted to get 〈◊〉〈◊〉 the serjeant on the right, which one of them did, the serjeant immedi|ately pushed the other two off the bank; about one half of the detachment there, were ordered off to bring the prison|ers from the guard-house, the detachment was formed into an oblong square, with the prisoners in the middle; during this time there were about eighty British soldiers in the front, and about two hundred in the rear.

Henry Hamson, serjeant in the militia.]

Q. Was you on the detachment paraded by Col. Henley in the rear of the barracks on Prospect-hill on the 8th January last?

A. I was; after we were drawn up in the rear of the barracks, Col. Henley sent off a party from the left of the detachment to bring out some prisoners from the guard-house in the citadel, and as Col. Henley was walking up and down the parade, the British troops came up thick in the front of us, Col. Henley ordered them to disperse and go to their barracks, they made no movement at this order; Col. Henley then moved to the left 80 or a 100 paces and looking round, found they had not moved, came back again and ordered them to go off; on this they turned and began moving very slowly, Col. Henley pushed his sword at

them, but whether he wounded any one I can't say, one of the British soldiers turned to the left and came down in the rear of me and said, damn your eyes you buggers, you shall pay for this one of these days, and went off.

Q. What number of British soldiers were round the de|tachment at the time you mention?

A. Upwards of three hundred.

Q. Did you see any insult either in action, word or gesture, on the parts of the British soldiers, before Col. Henley made a pass at the man?

A. They look'd sulkey and malicious; they were in front and rear of the detachment.

The Court adjourns 'till to-morrow at ten o'clock.

SATURDAY, February 7, 1778.

A VIOLENT snow-storm preventing the Court from assembling, a majority of the members being present, the Court was adjourned to Monday at ten o'clock.

MONDAY, February 9, 1778.

TWO members being absent, the Court is adjourned 'till to-morrow at ten o'clock.

TUESDAY, February 10, 1778. The Court met pursuant to adjournment.

Daniel Mason, corporal in the militia.]

Q. DO you know that a militia sentinel was insulted and knocked down on his post on the evening of 15th December?

A. The 15th December I was one of the provision guard near Prospect-hill, and about eight o'clock in the evening hearing a gun fired step'd out of the guard-house

to enquire of the sentinel where the gun was fired; finding the sentinel surrounded by five or six British soldiers, and hearing them demand of the sentinel if his gun was loaded, I thought it necessary to order them to disperse, on this or|der they seized the sentinel's firelock; I took hold of the firelock to wrest it from them, they knock'd the sentinel down with their fist, and then knock'd me down and kick'd me several times in the face, and one said God damn him, fire him through, one of them had the gun in his hand at this time, and snapped the gun within four feet of my breast; a file of our men coming up, they all went off except the one who had the gun, the corporal ordered him to lay down the firelock, which be refused, they then seized him, wrested the gun from him, and carried him prisoner to the guard-house; the sentinel was much bruised in the face; they closed one of my eyes by a kick, so that I could not see out of it for two or three days.

Samuel Stearns, Lieutenant in the militia.]

Q. Do you know of a British soldier being rescued from your guard on or about the tenth of December?

A. The tenth of December I was on duty on the main-guard on Prospect-hill; on hearing from one of our men that a sentry had fired on some British soldiers, I went our to enquire into it; upon coming up to the sentry, I found fifteen or eighteen British soldiers round the sentinel; the British soldiers were reprimanding the sentinel in high terms for firing on one of their men, I addressed myself to the chief spokesman and desired him to go off to his barracks, he turn|ed upon me and said, "What business have you here you God damn clown, with a sword under your arm. I'll have you to know we are not prisoners, but I will do as I have a mind;" I again ordered him to go to his barrack peaceably, and I would take no notice of his abuse to me; he on this turned about and cry'd out, God damn you, kiss my arse, and repeated it three or four times; I then ordered the sentry to take him into custody, he then striking his fists together, swore he'd kill the man who should offer to take him; the other soldier who stood by said he should not be carried to the guard-house, they would turn out the regiment upon me first: On these threats I call'd for a serjeant of the guard; he not coming immediately. I ordered two of our guard who were coming down the hill to take the man who

had so grosly insulted me into custody and carry him to the guard-house; I went with the guard half way up the hill, and returning to the sentinel looking back, saw a number of British soldiers round the two men who had the custody of the British soldier above-mentioned, I saw a British soldier running up the hill, and heard the British soldiers cry out we have got him, on which a loud huzza was raised by the British soldiers in front of the barracks where the man run into; some little time after this I saw the man who I had taken into custody as above related, walking before the barrack with a number of other British soldiers, I ordered a serjeant with a file of men to go and take him, the ser|jeant went, the soldier seeing him coming set out and run, and the serjeant after him, the British soldiers seiz'd their comrade, pull'd him into the barrack, and push'd the ser|jeant back as he was entering the barrack and set up a loud huzza. All these transactions I afterwards reported to Major Gage our officer of the day, who advised me to make application to the British officers, I accordingly went down and finding some of them, Major Gage related the circum|stances of insult and rescue before-mentioned. The British officer told us the men were to be paraded presently, and if I could point out the man he should be confined. After the men were paraded I pointed out the fellow and he was ordered off the parade under guard. The next day accor|ding to notice, I attended a British regimental court-marti|al, with the witnesses to support the chare against him; the man was arraigned, and I gave the court the necessary in|formation and withdrew. The next day I had a line from Lieut. Col. Lind informing me with the proceedings of the court-martial, the criminal was sentenced to receive fifty lashes, the messenger told me that the punisment was to be inflicted the next day at ten o'clock, and desired me to attend; the next day according to the hour appointed I at|tended, and after waiting some time, was told that the pu|nishment was deferred 'till two o'clock afternoon. I staid 'till two o'clock and then saw the serjeant-major of the regiment, who told me the punishment was remitted, and the men set at liberty. Thus ended the matter, and I ne|ver received any sort of satisfaction. The whole of this transaction was reported to Col. Henley.

Serjeant Jepthah Crane of the militia.]

Q. Do you know any thing of the rescue of a British soldier from a militia guard the beginning of December last?

A. One day the beginning of December, I came up to Cambridge with a patrole party, and was returning to the main-guard with a British soldier in custody, (who I had taken up for being found without a pass) carrying him to the guard-house, when my party, which consisted of six men, came opposite the barracks of the British soldiers, near a hundred of them rush'd upon us, seized hold of the pri|soner and carried him off, huzzaing. I reported the trans|action to the officer, but the man was not recovered that I ever knew of.

Philemon Warren, of the militia]

Q. Do you know of a militia sentinel being insulted and knock'd down on his post, on the evening of 15th December?

A. I do; I was the man. The witness confirms the whole of the narrative of corporal Mason, and adds that he was blind a day or two from a blow he received on the occasion.

Benjamin Crane of the militia.]

Q. Do you know of a militia sentinels being insulted and disarmed on his post, on the 6th January last?

A. On the 6th January last I was posted as a sentinel at the door of the provision store, at the foot of Prospect-hill, and Mr. Davis, one of the Deputy-Commissaries, delivered to my charge a British soldier whom he accused of stealing rice, he was in the room and stood at the door, and a large number of British soldiers came up and enquired what he was confined for, they did this several times, and presently one of them, as I held my gun and bayonet across the door, said damn the bayonet we'll have him out▪ on this I charg'd my bayonet and bid them keep off, they seiz'd my gun and took off my bayonet and run away with it: They made no other attempt to rescue the prisoner.

The following standing orders brought from the main-guard were produced and read, viz.

THE guards are to be vigilant and alert, and do their utmost to prevent disorder, and keep peace, ever attentive to the security of the camp. No officer or soldier shall be allowed to stroll from the guards. No offence to be given to any officer or soldier of Gen. Burgoyne's army, nor is

any to be received from them by the officers and soldiers of the United States of America; but they are to take up and confine any that offer the least abuse, and report them to the commanding-officer. The officer commanding the guard will give orders to the sentries, that they are to defend barracks, fences, and all property whatsoever belonging to the army, or to any of the inhabitants of the United States. When any insurrection of the prisoners shall appear to be of consequence, the commanding-officer at Cambridge, is to have due notice thereof.

Given under my hand at Cambridge, this 23d day of December, 1778.

D. HINLEY, Commanding-Officer.

The Court adjourns 'till to-morrow at ten o'clock.

WEDNESDAY, February 11, 1778. The Court met pursuant to adjournment.

GENERAL Bugoyne being unwell, and Col. Henley asking for a few days to look over the evidence, and observe upon it, the Court adjourns to Wednesday the 18th of February, at ten o'clock.

WEDNESDAY, February 18, 1778. The Court met pursuant to adjournment.

THE following witnesses were produced by Gen. Bur|goyne in invalidation of Col. Henley's, with respect to corporal Reeves.

Philip Roth, serjeant 21st regiment.]

Q. Was you present on 19th day December at the guard-house, when Col. Henly had the difference with corporal Reeves?

A. I was one of the prisoners, and present all the time, during the conversation between Col. Henley and Reeves, at about the distance of three or four yards.

Q. Did you during any part of the conversation, hear corporal Reeves call Col. Henley a rascal, or damn him?

A. I did not; and I was so situated and so attentive, that if he had I must have heard him.

Robert Maxwell, 21st regiment, gives the same an|swers to the same questions put to Roth, except that he was at the distance of two yards only from Reeves at the time the conversation happened.

A number of hickery clubs designed to play at bat and ball with, were produced from the barracks mentioned in Col. Gerrish's deposition, to shew they were not designed for any other use, and used suddenly on the occasion men|tioned by Col. Gerrish.

General Burgoyne.]

Mr. President and Gentlemen of the Court,

THE evidence in the cause being finished, I will now produce several precedents from Courts-Mar|tial held in the British army to shew that prosecutors have been admitted assistant to the Judge-Advocate. This Coun|try once allowed British precedents great weight in all their Courts. Whether the change of Government hath nullified the usages, as well as subverted the written positive institu|tions of England is left to the Court to determine. You Gentlemen, can certainly regulate your own proceedings, and there cannot, I think be any impropriety in your mak|ing use of any assistance which may contribute to discover facts or enforce truth. Capt. England, Capt. Willoe, and Lieut. Bibby, will inform the Court of the instances to my purpose.

The following are the Precedents offered.

THAT in the month of August 1774, he was member of a General Court-Martial at New-York, whereof the late Brigadier-General Nesbitt was President, that Capt. Adye of the Royal Artillery was Judge-Advocate to the Court-Martial; that the Rev. Mr. Newburgh, Chaplain to the 18th regiment, was tried by the Court-Martial for va|rious offences, and prosecuted by Capt. Chapman of the same

regiment, and in the name of the regiment; that after the witnesses against and for the prisoner were examined, the prisoner made a defence, to which Capt. Chapman the prose|cutor made a reply, in which, he commented and remarked up|on the prisoners evidences and defence, having being allowed a certain time to prepare his reply.

The above is true upon my honor, R. ENGLAND, Capt. 47th Grenadiers.

Cambridge, Feb. 18th, 1778.

LIEUTENANT Molesworth of the 52d regiment, tried by a General Court Martial, of which I was a member, at Quebec, in the year 1769. After the prisoner had made his defence, Lieut. Williamson, who prosecuted replied, and remarked upon the evidence produced by Mr. Molesworth.

The above I declare is true upon my honor. S. WILLOE, Capt. King's (or 8th) reg't.

IN the tryal of Capt. Garsten of the 17th dragoons, in Dublin, in the year 1771, Major Birch appeared as prosecutor, and it being objected at first by the prisoner, that the prosecutor should have the assistance of council, it was the opinion of the Court, that both the prisoner and prose|cutor should, if they thought proper, have council to prompt and assist them, but not to plead; the Judge-Advocate upon this trial was an attorney; Major Birch acted thro' the whole course of tryal as prosecutor. I was present at this tryal.

THOMAS BIBBY, Lieut. 24th reg't.

Judge Advocate.]

Mr. President and Gentlemen of the Court,

THIS, in common with all Courts of Record, undoubted|ly has power to direct it's own proceedings, subject to the articles of war. I do not ground my objection on any thing in those articles prohibitory of the claim I op|pose, but on the customs which prevail in the American ar|my and the supposed duty of the Judge-Advocate. Those articles constitute a Judge-Advocate, who, although enjoin|ed

to prosecute In behalf of the government; hath always been considered in our armies bound to assist the prisoner, not only in points of law, but by an impartial representation of facts. The whole evidence in the trial is taken in writ|ing, subject to the inspection of the Court. You cannot, therefore, Gentlemen, be deceived by sophistry, or misled by rhetorick. Pleadings for this reason are unnecessary, except on a point of law, for which the Judge-Advocate is presumed to be competent; and unbiassed by the tenure of his office.

I do not oppose these precedents because they are British; had they been from Portugal or Turkey, and been perti|nent and reasonable, they ought to influence your determi|nation. Although the instance mentioned by Lieut. Bibby, is rather against the General, considered in the latitude to which he aims to extend his claim. The articles of war which govern the British army are extracted from the Roman code of civil law; and ours are nearly the same with those adopted by the British mutiny act.

The trials by Courts-martial are designed to be simple, speedy and decisive. The soldiers duty is clearly prescri|bed, and the punishment for neglect of it plainly ascertain|ed, by the articles which give jurisdiction to the Court that are to inquire into, and punish delinquency. The Judge-Advocate acts in the double capacity of prosecutor and council to the prisoner, which, those who are acquainted with the proceedings of military courts, will allow not to be inconsistent duties. The office of Judge-Advocate has been considered by some in an army, the same as that of Attorney-General in the courts of criminal jurisdiction at common law, but I can safely appeal to your decision Gentlemen, if I am wrong in the duty of that officer in our army as I have laid it down.

The altercations of the bar in the Courts of common law, arise from a combination of rights in free society, which are unknown in an army. A man when he commen|ces a soldier, makes a temporary relinquishment of the pri|vileges of a citizen. If a prosecutor, (and in this case a very able one) is admitted in addition to the Judge-Advo|cate, surely it would be unreasonable to deny council in defence of the prisoner—and then consider, Gentlemen, what would be the consequence: Every man brought before

a Court-martial would be intitled to the same indulgence. All the subtleties and delays which prevail at common law would be introduced, into Courts-martial, infinitely to the public disservice, under the circumstances which armies, Durante bello especially ought to be maintained and gover|ned. I submit my objection to the opinion of the Court.

The Court was ordered to be cleared.

The Court after debate, were of opinion, that General Burgoyne should have the liberty of remarking upon the evidence offered by Col. Henley, and the Judge-Advocate was directed to acquaint the General with this determination.

The Court adjourns 'till Monday 23d February, at ten o'clock.

MONDAY, February 23, 1778.

Col. Henley being called upon to close his defence, reply'd as follows.

Mr. President and Gentlemen of the Court,

I HAVE particular reasons, and in my own apprehension very sufficient, for declining to say a single word in an|swer to the illiberal abuse thrown upon me, and the palpable dishonour done to my country, by Gen. Burgoyne, in this Court. It is Mr. President, a new thing under the sun, and taken in all its circumstances totally without example.—The Judge-Advocate will sum up the evidence wiih ability and impartiality—Such is my consciousness of having done no|thing thro' this whole affair, but what the honor and safety of my Country absolutely required, that I shall rest entirely satisfied with your decision; being at the same time fully persuaded, that the impartial public, at whose bar I stand, will join with you in acquitting me from all the injurious and illiberal charges of Gen. Burgoyne, and that they will vindicate me for that humanity, characteristic of an Ame|rican officer, and with which the officers and soldiers of Gen. Burgoyne's late army have been treated, while I was honour'd with the command of the guards.

Gen. Burgoyne then made a few remarks upon the evi|dence offered by Col. Henley; and finished his address to the Court by submitting some reasons to justify the part he had taken during the trial, and in exculpation of himself from the reflections of Col. Henley. (No notes were tak|en of this speech.)

The Court adjourned to Tuesday 24th instant, at ten o'clock.

TUESDAY, February 24, 1778. The Court met pursuant to adjournment.

The Judge-Advocate addressed the Court in substance as follows.

Mr. President and Gentlemen of the Court,

IT remains with me to close this cause which has employ|ed so much time, and been the subject of such public expectation. The mode of inquiry established in all tryals by Courts-martial, necessarily renders the process tedious. This has been particularly so, and was an apology wanting, the patience exhibited by the Court through the whole course of it, would atone for the hours spent in the investigation of the subject.

This cause, Gentlemen, has been rendered important rather from the distinguished rank and peculiar circumstan|ces of the very able prosecutor, than from the real merits of it. For however it may have been insinuated that Col. Henley was appointed commandant of the garrison at Cam|bridge, for the purpose of executing the bloody designs of an irritated, vindictive, and sanguinary people; I believe the public, as well as the Court, will consider the prisoner as alone interested in it; and that this tryal must forever stand the cleared resutation to any one hardy enough to repeat an assertion as injurious as it is false.

No sooner was the charge handed to Gen. Heath, the guardian of the public military reputation in this depart|ment, than Col. Henley was suspended from his command and an immediate inquiry ordered into his conduct.

Yet notwithstanding this prompt, this early endeavour to discover facts, and punish if criminality should be proved, a wound has been aimed at the reputation of this country.

It has been said, Gentlemen, before a respectable and crowded audience, that a general massacre of the troops of the con|vention was in contemplation, and Col. Henley fix'd upon as the black instrument of execution. There was not an American present at that time, I dare assert, who did not feel indignation beat in every pulse, while his heart reprobated the idea.

This charge, heightened with all the pomp of words which attic diction and tragic eloquence could furnish; painted in those vivid, animated colours which keen feel|ings and lively apprehensions would supply; wanted nothing but truth to have answered the design proposed. And that this was wanting, you Gentlemen, from the evidence now on your table, are, I presume, convinced. The world here|after may be satisfied.

If I thought General Burgoyne when making this asser|tion sincerely believed it to be true, tho' I should wonder at his deception, I should have a better opinion of his fairness: And while we smil'd at his panic, we might pity his timidity.

Whatever particular, personal reasons for gaining popu|larity, or securing the affections of his army; or great poli|tical motives may have actuated the prosecutor in this busi|ness, you Gentlemen who are to judge upon oath as well as upon honour, the two strangest ties that can bind you as men and as soldiers, will be swayed by nothing but the sa|cred principles of truth and justice.

It is my duty to exhibit facts as they arise from the evi|dence, stripped of the meretricious coverings which ingenui|ty and rhetoric have attempted to conceal them in.

However excusable it may be in Gen. Burgoyne to take a partial survey of the cause; by well turn'd periods to catch the attention and force the admiration of listning crowds; and by a brilliancy of expression or affected nobi|lity of sentiment attempt to dazzle, the more effectually to mislead the Court; the Judge-Advocate has a very different part to act. He ought to know no party, but undeviating|ly to follow the road marked out by truth alone.

The difficulty of keeping the mind unbiased in this cause will strike the minds of die Court. This is the tryal

a gallant and meretorious officer; of a man, whose services in camp and in the field most of you Gentlemen have been witnesses to, and whose conduct as a citizen, previous to his commencing the soldier, was ever irreproachable. I must then depend on the candour of the Court, should I err in summing up the evidence, to restore me to the path of disinterestedness. Much is due to the character of such an officer; but more to the safety of thousands, who, disarmed and in our power, are intitled by the laws of nations, of war, of humanity and of justice, to protection and security, provided no mal-conduct on their parts, works a forfeiture of these rights. Fiat justitia ruat coelum. Let us now look into the evidence; the Court will adjudge the blame to fall where it ought.

Col. Henley stands before you, Gentlemen, accused by Gen. Burgoyne &c. (The charge was here read)

The evidence in maintenance of this charge, may be re|duced to five different heads, or classed as distinct facts, in each of which the prisoner has been represented by the pro|secutor, either as principal agent, or a particeps criminis.

1st. The wounding of corporal Reeves at the guard-house on 19th December. The Colonel—a principal.

2. The stabbing Tragget by a serjeant of the militia on the morning of 8th January. The Colonel an accessary.

3. The stabbing Willson on the same morning. The Col. an accomplice.

4. Col Henley wounding corporal Hadley on the parade at Prospect-hill the 8th January.

5th. Head of evidence. To prove a general, inimical and murderous principle in the officers and soldiers of the guards, towards the British troops. In which the Colonel is involved, because he took no care to curb the malevolence and cruelty of his men,; and ought therefore to be consi|dered as an accomplice is all the violences committed.

Agreeable to this arrangement. I will read the whole evi|dence adduced in support of each seperate fact, and then contrast it by the testimony offered on the part of the defence.

The depositions of Buchannan, Thompson, Steele (and Mr. Brown as to the nature of the wound) read, and oppo|sed by those of Major Swasey, Capt. Wild, Dean, Elijah Horton, Morse, Brazier, Wadsworth Horton, and Barry. (Vide their testimonies.)

From this collective view of the evidence it appears, that Col. Henley on the 19th December in consequence of or|ders from General Heath, visited the main-guard with Major Swasey with the design of releasing a number of British sol|diers who had got into custody, for different misdemeanors. That he was calm and good humour'd, and proceeded to execute his instructions in the most suitable way, that of enquiring into the respective offences of the culprits, previ|ous to their dismission, and cautioning them against conduct which might subject them to another confinement. Reeves, in turn, being asked the cause of his commitment, with some hesitancy inform'd the Colonel. And from his own account it appeared he had so grossly affronted an Ame|rican officer that even the nerves of the candid, the placid Major Swasey grew irritated, and he was provoked enough to give Reeves a very resentful answer. Col. Henley's feelings being more keen, he called Reeves a rascal; Reeves retorted the epithet; and the Colonel after repeatedly ordering silence, in order effectually to stop a very harsh altercation, which had ensued, dismounted from his horse, seized a gun and fix'd bayonet and pricked Reeves in the breast. It ap|pears from the concurrent testimony of all the witnesses on the side of Col. Henley, that his design was rather to silence Reeves than to wound him; rather to convince him he would be obey'd than to injure him. The extreme slight|ness of the wound, which, from the surgeon's account was little more than a scratch, confirms this to have been the Colonel's intention. It would certainly have been better to have remanded him to the guard-house. And if, Gentle|men, you think the witnesses in support of the charge have told you all that really passed, you ought, at least, to think, that Col. Henley is a rash, passionate, precipitate officer, a man who considers stabbing his fellow-creatures as a very venial offence. But if full credence is given to the evidence of Dean, E. Horton, Morse, Brazier, Barry and particularly Wadsworth Horton, the Court will consider whether an offi|cer, acting in such a character as the Colonel then appeared in, so saucely and abusively reply'd to by a prisoner in Reeve's circumstances, is not pardonable, I do not say justifiable, in adopting such a mode of silencing impudence and repressing contempt.

It has been said that Reeve's behaviour was only firm, not insolent British firmness often so nearly approaches in|solence, that Europeans as well as Americans have been very apt to confound them. The Court will recollect the pains taken, in one or two instances during this tryal, to get from the British witnesses their idea of insolence. They all affected to think it impossible a Briton could look inso|lent. It was, they said, only looking up. But this os sublime, this erect countenance which they boast of, leads them to looking down upon the rest of the world, though not always with impunity. Britain is feared because she is powerful. What pity it is a nation cannot be just as well as gallant. Less pride had prevented the dismemberment of her empire, had saved the blood of thousands. And real magnanimity had e'er this arrested the hand of destruction from the heads of men, whose greatest fault (once the glo|rious fault of Britons!) is the love of freedom.

Let us now inquire, whether in this action the prisoner is guilty of the last part of the charge, viz. "Intentional mur|der."

Murder is thus defined by one of the first sages of common law.

When a person of found memory and descretion, unlawfully killeth any reasonable creature in being, and under the King's (or State's) peace, with malice afore|thought, either expressed by the party or implied by law, so as the party wounded and hurt, die of the wound or hurt within a year and a day after the same

3 Inst. 47,

The grand criterion of this crime is malice prepense, the dictate of a wicked, depraved and malignant spirit; and is either express or implied. Foster 256.

I will not trouble the Court with multiplied authorities. The above definition of Lord Coke's is so well analysed and illustrated by the able and accurate Judge Blackstone, that a few pages from his commentaries will furnish the Court with all the law necessary on this point. Vid. 4th Blackst. 195, 6, 7, 8 9, 200, 201.

From the doctrine here laid down you will consider, appying the evidence to the principles just read, whether the prisoner can be said to have acted from express or implied malice. Did Col. Henley aim at taking Reeves's life? If he did, and the provocation did not arise to the degree, which the law makes necessary to excuse, although the stroke was not

sufficient to effect the murderous design, you must be of opinion that the last article of the charge is proved. If he did not attempt Reeves's life, you ought to acquit him of the intentional guilt he is in this instance charged with.

But it is said, that admitting Reeves's behaviour to have amounted to such a degree of provocation that if the Col. had killed him in the passionate instant and while sitting on his horse, it might not have been murder, yet the dismount|ing gave him time for recollection; and had he then killed instead of wounded him, it would have been murder.

I must deny this distinction to be just. And to shew that the General was erroneous in this position, I shall read a case cited by Judge Foster from Lord Coke and Hale. Vid. Fost. 294. From this and many similar adjudications which might be produced, it is clear, if Col. Henley would not have been guilty of murder had he stabbed Reeves to the heart, while upon his horse, that his committing the ho|micide after the dismounting and seizing the bayonet, wou'd not have been evidence of that crime, because there was not time for the blood to cool.

Intentional criminality is punishable at the bar of God alone. Yet, Gentlemen, should you be convinced, that Col. Henley designed to kill Reeves at the time he made the pass at him although he fail'd; you must consider him as a very improper person to handle muskets and bayonets, for the man was so intirely in his power, that he could easi|ly have adopted any other mode of punishment. And tho' he might deserve a caning or a flagilation for his impudence and insult, he surely did not merit death.

The next transaction is the stabbing Tragget by a serjeant of the militia on the 8th January.

This is proved by Page, Lee and George, and the sur|geons Walker and Clartey swear to the nature and depth of the wound. Major Foster and Lieut. Smith to the pecea|ble behaviour of the British soldiers while the detachment was marching by. Their depositions are strongly contrasted by those of Kettle, Duckinfield, Anderson, and Capt. Dodge. (Vid. the evidence of each.)

It has not been alledged that Col. Henley was present at or knowing to this transaction. I shall not therefore here minutely enter into the circumstances attending it, but only consider whether Col. Henley can be adjudged an accessary to the stabbing of Tragget.

Accessary (particeps criminis) is where a man is guilty of a felonious offence, not principally, but by participation, as by command, advice or concealment.

A man may be an accessary either before or after the fact.

An accessary before the fact is he that being absent at the time of the felony committed doth yet procure, counsel, command or abet another to commit a felony, 1 H. P. C. 615.

Accessary after the fact is he that receives, assists, or com|forts any man that hath committed felony or murder, 1 H. P. C. 618.

Is there the least evidence to shew, that in the case of Tragget, the Colonel comes within the circumstances neces|sary by the above description, to involve him in the predica|ment contended for? There certainly is not.

It is hardly necessary to observe, that as there was no felony committed, there could be no accessary. And that if the Colonel had any thing to do in this affair, he must be considered as a principal; for in all crimes under the degree of felony there are no accessaries. 4 Blackst. 36.

So far from Col. Henley's counselling, abetting, assisting or comforting the persons concerned in this action, it does not appear that he ever heard of it, till the witnesses rela|ted the fact upon oath before the Court.

But, says General Burgoyne, Col. Henley's conduct had a great effect on his guards: He was known to be no friend of the British soldiers; he had himself wounded one, and been violent in his menaces against them all: he thus influenced his soldiers to stab and murder whom they pleased, if they belonged to the British army; and ought therefore to be considered as an accomplice in every outrage which took place. If this reasoning is conclusive, by the same logic the General himself is an accessary to all the murders perpetrated by the ferocious Bipeds, the Savages who accompanied and disgraced his army last summer. Ought it to be said that because these black attendants knew that Gen. Burgoyne did not love Americans, that therefore he would be pleased at the butchery of the nerveless old man, defenceless female, and infant prattler? Because he hated rebels, he therefore influenced the Indians to massacre that young unfortunate, the inoffending and wretched Miss McCrea!

The wounding Willson on the same morning is proved by Kidley and Keith. The evidence in justification of this act, is collected from the testimonies of Peirce, Lewis, and Major Swasey.

The incidents whieh led to this affair, appears from the evidence to be these: On the morning of 8th January, Col. Henley and Major Swasey on their way down to Prospect-hill met Buchannan, who the Court have before heard of as an offender as well as a witness, stealing up to town un|der the cover of another man's pass. Deceptions of this kind had been so often played off upon the centries, that the Colonel thought proper to send Buchannan to the guard-house for this flagrant breach of general orders. And at the same time gave orders to the corporal and file of men who had the charge of him to fire on any men daring enough to attempt rescuing him. Major Swasey (the town Major) says that rescues had become frequent. This order then was right, and necessary: Particularly as the guards, com|posed entirely of militia, had too often suffered themselves to be duped, ridiculed and insulted, and wanted spirited or|ders and support to encourage them to discharge their duty and trample on contempt. The guard proceeded with their prisoner, but before they reached the guard-house, were interrupted in their march by a large cluster of British sol|diers who by pressing upon them, and huzzaing and clamou|ring, gave Buchannan a very favourable opportunity to effect an escape, and he did not want much urging to make the most of it. Willson who was most busy in this matter after Buchannan had got husled among his comrades, seized the corporal of the guard who was endeavouring to recover his prisoner from the crowd and stopped his pursuit. This roused Peirce, who could not tamely look on and see his corporal checked in an act of duty, and he made a pass at Willson and wounded him; and very honestly tells you that he did it with a good will.

Though the witnesses to this affair militate more than in any other part of the evidence, yet it is past a doubt that a rescue or something extremely like one took place. Kidley and Keith both say, that they did not see Buchannan escape, but they heard afterwards he had. Peirce swears positively that he was forceably taken from the guard, and Lewis corroberates his evidence. Major Swasey whose candour in

every narrative he has given the Court stamps him as respect|able a witness as has been sworn, declares that he saw a British soldier take hold of one of the guard, at the same time Buchannan was pushing his way through the crowd of British soldiers who were calling out and encouraging him to run off.

Should the Court think a rescue was made and Willson principally concerned in it, they must think Peirce justified in what he did. For I assert that had he killed him upon the spot, and wounded every man who was abetting the res|cue, he would have been excusable.

I will produce only one authority to justify this opinion, Homicide (saith Lord Hale) in civil causes may be justified in some cases: As where a Sheriff attempting to make a lawful arrest in a civil action or to retake one who has been arrested and made his escape, is resisted by the party and unavoidably kills him in the affray. H. P. C. 71.

If this doctrine is true upon a civil process, a fortiori, it is on a criminal one. In this case Buchannan was an offender in custody: Whoever ventured to rescue him did it at their utmost peril. British soldiers are too well acquainted with discipline and military severity not to know they were acting egregiously ill. But such attempts had before succeeded, and why not then? The offenders had before escaped with impunity, and why not again? Willson painfully learnt that such reasoning was sometimes wrong. I wish all his bro|ther-soldiers may profit from his experience.

The Court will consider the principles before laid down under the head of accessary, and as far as they are applica|ble, allow their operation. And then determine whether any part of the charge is supported against Col. Henley in the case of Willson.

The Court adjourns 'till to-morrow at ten o'clock.

WEDNESDAY, February 25, 1778. The Court met pursuant to adjournment.

Judge Advocate.]

Mr. President and Gentlemen of the Court,

WE come now to the last and principal transaction of of the 8th January—the wounding Hadley on the parade.

It will be necessary to state the circumstances anterior to this unfortunate action. You have the fullest proof, the confession of the prosecutor, that a centinel on the evening of the 7th was knock'd down on his post, that he was beat, disarmed and his gun carried off. Col. Gerrish, like a true spirited officer, upon hearing of this daring outrage, deter|mined immediately and in person to discover the British soldiers who were concerned in it. He accordingly with a party of his regiment surrounded one of the British barracks, and after some opposition searched several rooms which ap|peared suspicious. The conduct of a number of very ob|streperous fellows, which he found in one of the rooms, strengthened his suspicion, and he thought proper, after be|ing assaulted, menaced and insulted, to send several of them to the main-guard. The transactions of this evening were reported to Col. Henley next morning with aggravation. The Colonel finding he had got so large a number of British soldiers as 29, prisoners in the main-guard which was situated so near the barracks of the British army that some difficulty might arise, adjudged it most prudent to remove all the pri|soners up to the town, where a proper inquiry could be made; the culpable punished, and the innocent dismissed. A detachment of 100 men were ordered to the main-guard for this purpose. And the Colonel with the town major set out for the Hill to see that the detachment did their du|ty. On his way down, he met Buchannan, playing off upon a sentinal the evasive trick which had now become common, with the British soldiers, that of escaping from their bar|racks under counterfeit or borrowed passes. The Colonel gave the orders (respecting Buchannan) we have before read; and proceeded on for the main-guard; not with the most agreeable feelings, if we suppose the irritation which a

variety of offensive reports and provoking considerations, must have raised in his mind, during the course of the morn|ing. Soon after he got to the main-guard, the detachment marched into the citadel and formed near the guard-house. By this time a very large body of British soldiers had assem|bled near the guard-house, Captain Brooks says, to the number of three hundred. The Colonel apprehensive that some disorders might arise, when the British prisoners should be sent off with the detachment, ordered the British soldi|ers to disperse—finding he was not likely to be obeyed—he called for a dozen men from the detachment, which pro|duced a movement among them, and they were going off; when just at this time Buchannan was rescued within sight of Col. Henley. This act of insolent triumph, determined Col. Henley to take the immediate personal command of the detachment, which he instantly marched out of the cita|del upon the parade in the rear of the barracks. He had hardly time to halt his men before he was surrounded by the British soldiers, who amounted to near two hundred men, which was double his number. I rate the number on a medium between what they were said to be, by the wit|nesses for the prosecution, and those in behalf of Col. Hen|ley. Consider now Gentlemen, what must have been Col. Henley's sensations; at the head of a party of militia, who, from being daily affronted by the British soldiers, were be|come their jest; that it had at length become absolutely necessary to convince these Britons, that there was energy enough in their guards to force obedience and curb licen|tiousness; that a tumult had arisen the night before, and that an act had just taken place which was a defiance to him|self: that he had not room to manoeuvre his men without great difficulty, owing to the British soldiers pressing in upon the party; and that these were most of them the very men who had just before been laughing at the party, while paraded in the citadel, and who, in contempt of his orders, were again collected to keep up the laugh at the expence of the detachment. I put it upon this footing, because I think it was apparent they were assembled rather to insult than to assail the party; though they were so near, that it was only stretching out their arms, and it would have been easy to have disarmed the detachment by a sudden movement; especially after the Colonel had detached a quarter of his

whole party to bring out the prisoners from the guard-house. —Under these circumstances, Gentlemen, and still more so if he was apprehensive of an attempt to disarm his men, how extremely difficult must it have been for the Colonel to have checked his resentment, or stopped the hand which had been so repeatedly and insolently defy'd. The Colo|nel had told them he had lost a prisoner, threatned to fire upon them, and given reiterated orders for them to disperse before he made the lunge at Hadley. It has been proved that the British soldiers in general were slowly moving off at the time, but not that Hadley was one of them. If you are convinced, Gentlemen, that he was going off, you will then consider how far the Colonel's impetuosity is reprehen|sible, and punish him accordingly.

It appears clearly that the British soldiers had no weapons of any kind in their hands, that they made no attempt on the guard nor struck any of them, from which it may be a question, whether had Hadley died of the wound he received from Col. Henley, the Colonel would not have been guilty of murder, because upon the principles of municipal law, words alone, however impudent or provoking, will not re|duce murder to man-slaughter, though a very slight blow first given by the person kill'd might have made the killing man-slaughter, or even a less species of homicide.

If the nice distinctions of common law are to be made the rules of conduct in military discipline, and the regulation of a garrison, Col. Henley must suffer. But I imagine Gentlemen, you will hardly admit this to be true. Because soldiers and citizens are intitled to very different privileges.

In an army, the disobedience of an order is sometimes punished with instant death, and such an action justified and applauded, which was it to take place among citizens might subject a man to a halter.

Col. Henley had stood for some time, first in the citadel, and afterwards on the parade at the head of a detachment armed, and heard the provoking epithets of yankey and rebel very liberally thrown out against his guards, by the Scotch and British loyalists who surrounded him. The word yankey, when used by these proficients in abuse, is intended to con|vey the idea of clownishness and cowardice. And to call a man yankey rebel, is considered by them as the strongest term of invective. Where is the officer in such circumstances who could suppress his indignation upon such an occasion?

If Gentlemen you should be satisfied, that Hadley at the time he was wounded, was moving off, you will consider whether Col. Henley is not very blame-worthy for making a violent lunge into a man's body, who was obeying his or|ders and getting out of his way—should you be convinced that Hadley was not removing, though such preremptory and repeated orders were given him with his comrades to re|tire to their barracks, your opinion will be different.

The witnesses under the last head of evidence are Lieut. Bibby, Lieut. Col. Lind, serjeants Fleming and Willson.

Mr. Bibby swears that on the morning of the 8th January, as he passed over the parade where the detachment was drawn up, he heard an officer who he took to be the Captain of the guard, "Damn his men for inattention and ordering them to run any man through who came near them." This speech appears to have been made soon after the wounding Hadley, while the passions were in a tumult, and the pulse beating high from what had passed. The order was rash and unjustifiable, and the Court will consider whether the ex|ample just set by Col. Henley, in stabbing Hadley, did not occasion it, and how far he is accountable for encouraging sen|timents of such a nature.

The instance mentioned by Col. Lind, of the sentry's firing on three camp women, cannot by any means affect Col. Henley, because it does not appear that he ever gave such orders, nor was any report made of it to him. For surely it would be unreasonable to make the commandant of such a garrison as this is, where the guards are made up of a young and inexperienced militia, unskill'd in military science or duty, accountable for all the mistakes and violences of such soldiers. Had a complaint been made to him of this action, and he had refused taking notice of it, it would un|doubtedly have been such an avowal of it, as to have made him responsible for all the consequences of it.

The expressions and violent menaces, which Fleming and Willson swear they heard Col. Henley throw out at the Adjutant-General's office on 16th December, carry with them, prima facie very strong marks of malice, and a heart boiling with the most vindictive and turbulent passions. But the Court will recollect that the Colonel had that morning a re|port of Mason and Crane being knock'd down and disarmed, while one of them was on his post. They were both much

beat. It does not appear what led to the conversation, but Col. Henley was relating the affair to some officer in the office when the serjeant came up and met with the salute, which has been laid before the Court. The greeting was rough to be sure, but might not the meaning only be, that the Devil had got into their barracks and possessed the occu|piers of them, and that he should turn exorcist some night or other, turn the barracks inside out, and expel him from their territory. But I mean not Gentlemen to palliate this mat|ter, the words are before you. You are the judges, and will determine how far the sentiments expressed were mali|cious, and afterwards as such, acted from by the Colonel.

I will not take up any of the Court's time by remarks on the evidence of the different rescues that took place from the beginning of December to 8th January, except of that sworn to by Lieutenant Stearns. This officer, after being insulted in the grossest manner by words and gesture; after having the fellow who gave it rescued in his sight; and after com|plaining, through tenderness, to the man's own officers; proving the complicated charge against him; to be then tri|fled with by a promise of a proper punishment being inflicted on the aggressor, and after all to have the fellow set at liber|ty unpunished; proves the necessity of exercising the right set up by Gen. Heath of punishing the offenders of the con|vention troops, who could thus commit enormities with im|punity, and shews in how contemptable a light the officers of the guards were held by the British army, and the expe|diency of convincing them that there was spirit enough to resent, injuries and energy enough to chastise offenders.

I shall now submit the cause, Gentlemen, to your decision. Many observations have been omitted, which might have been pertinent—but which have doubtless occurred to the minds of the Court, particularly with respect to the charac|ters and contradictions of the witnesses. And I doubt not your judgment will vindicate the justice of our country, and be approved by the honest and impartial wherever it shall be known.

The Court was then ordered to be cleared.

THE Court after mature consideration are of opinion that the charge against Col. Henley is not supported, and that he be discharged from his arrest.

JOHN GLOVER, PRESIDENT.

Cambridge, 25th February, 1778.