Proceedings of a general court martial of the line, held at Raritan, in the state of New-Jersey, by order of His Excellency George Washington, Esq. general and commander in chief of the Army of the United States of America, for the trial of Major General Arnold, June 1, 1779. Major General Howe, president. : Published by order of Congress.
Arnold, Benedict, 1741-1801., United States. Continental Army. Court-martial (Arnold : 1779)., United States. Continental Congress.
Page  3

PROCEEDINGS OF A GENERAL COURT MARTIAL, &c.

Major general HOWE, PRESIDENT.
MEMBERS.
  • Brigadiers general SMALLWOOD,
  • KNOX,
  • WOODFORD,
  • IRVINE;
Colonels
  • MOYLAN,
  • WOOD,
  • HARRISON,
  • HALL,
  • GUNBY,
  • BUTLER;
Lieutenant colonels
  • HARMAR,
  • SIMMS,
  • POPKINS.
  • JOHN LAURANCE, JUDGE ADVOCATE.

THE court having met, the judge advocate produced his excellency the commander in chief's order, dated May 29, 1779; which being read, is as follows:

Head-Quarters, Middletown,May 29, 1779.

A GENERAL court martial of the line is to be held on Tuesday next, the first of June, at the usual place, for the trial of major general Arnold, as directed by a resolution of the honorable the congress, passed the third of April, 1779.

Major general HOWE, PRESIDENT.

Brigadiers general Smallwood, Knox, Woodford and Irvine, colonels Wood, Harrison, Hall, Gunby, Moylan and Butler; lieutenant colonels Popkins, Simms and Harmar, members.

Before the court was sworn, major general Arnold peremptorily objected to brigadier general Irvine, colonel Butler and lieutenant colonel Harmar, which objection was allowed by the court The president and members then adjourned the court until to-morrow ten o'clock.

DECEMBER 23, 1779.

The court met at Morristown, in the state of New-Jersey, composed of the following officers

Major general HOWE, PRESIDENT.
MEMBERS.
  • Brigadiers general
  • MAXWELL,
  • KNOX,
  • GIST;
Colonels
  • DAYTON,
  • BRADLEY,
  • CORTLANDT,
  • HALL,
  • SHERBURNE,
  • JACKSON,
  • SPENCER,
  • GUNBY;
Lt. col. comm.
  • WEISENFELDT.
  • JOHN LAURANCE, JUDGE ADVOCATE.

The judge advocate produced his excellency the commander in chief's orders respecting the court: which being read, are as follows

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Head-Quarters, Middlebrook,June 2, 1779.

THE meeting of the court for the trial of major general Arnold, is deferred until further orders, the exigency of the public service not permitting it to sit at this time.

Head-Quarters, Morristown,December 19, 1779.

THE general court martial appointed the 29th of May, for the trial of major general Arnold, whereof major general Howe is president, is directed to meet at this town the 20th instant, to resume the trial. The court will consist of major general Howe, president; brigadiers general Maxwell, vice Woodford, absent; Smallwood, Knox and Stark, vice Irvine, challenged; colonel Bradley, vice Ward, absent; Humpton, vice Harrison, absent; Hall, Gunby, Cortlandt, vice Moylan, absent; Hazen, vice R. Butler, challenged; Dayton, vice Popkins, absent; Sherburne, vice Harmar, challenged.

Head-Quarters, Morristown,December 21, 1779.

THE general court martial, whereof major general Howe is president, will assemble to-morrow, at Norris's tavern, in Morristown. Brigadier general Gist is appointed a member of the court, vice brigadier general Smallwood, who is obliged to be absent. General Stark being indisposed, colonel Spencer is added as a member.

AFTER ORDERS.

Head-Quarters, Morristown,December 22, 1779.

THE general court martial, whereof major general Howe is president, to sit to-morrow morning ten o'clock, at Norris's tavern. Colonel Jackson is appointed a member, vice colonel Hazen; and lieutenant colonel commandant Weisenfeldts, vice colonel Humpton, on command.

The president, members and judge advocate being sworn, agreeable to the rules and articles of war, the judge advocate produced the proceedings of the council of the state of Pennsylvania, relative to major general Arnold, dated February 3, 1779, and a resolution of the honorable the congress, dated April 3, 1779; which being read, are as follow:

In COUNCIL.

Philadelphia,February 3, 1779.

    PRESENT,
  • His excellency JOSEPH REED, esq PRESIDENT,
  • The honorable GEORGE BRYAN, esq VICE PRESIDENT.
Esquires.
  • Col. JOSEPH HART,
  • JOHN MACKY,
  • JAMES M'LENE,
  • JAMES READ,
  • JOHN HAMBRIGHT and
  • THOMAS SCOTT,

THIS board having maturely considered the general tenor and course of the military command exercised by major general Arnold in this city and state, and divers transactions which have appeared to this board during his command, do resolve unanimously,

First, That the same hath been in many respects oppressive to the faithful subjects of the state, un∣worthy of his rank and station, highly discouraging to those who have manifested their attachment to the liberties and interests of America, and disrespectful to the supreme executive authority of the state.

Wherefore, resolved unanimously,

Second, That nothing but the most urgent and pressing necessity can justify or induce this board to call forth any waggons or militia, or otherwise subject the good people of this state to the power and command of the said general Arnold within the state, should he resume it upon his return.

Third, Ordered, That the attorney general do prosecute the said general Arnold, for such illegal and oppressive conduct as is cognizable in the courts of law.

And, that this board may not be supposed capable of passing the above resolves upon mere general grounds, and more especially in the case of one who has formerly distinguished himself in public ser∣vice, they think proper to declare, that the consideration last mentioned has hitherto restrained them from taking proper notice of general Arnold, hoping that every unworthy transaction would be the Page  5last, or that a becoming sense of such improprieties would effect an alteration of conduct. But finding that tenderness has only led to insult and farther oppression, duty to the state, regard to the interest and happiness of the good people thereof, who must be affected by all abuses of power, oblige us thus to take notice thereof; and farther declare, that the said resolves are founded upon the fol∣lowing articles, in which they have sufficient ground to esteem general Arnold culpable.

First, That while in the camp of general Washington at Valley Forge, last spring, he gave per∣mission to a vessel belonging to persons then voluntarily residing in this city with the enemy, and of disaffected character, to come into a port of the united states, without the knowledge of the au∣thority of the state, or of the commander in chief, though then present.

Second, In having shut up the shops and stores on his arrival in the city, so as even to prevent officers of the army from purchasing, while he privately made considerable purchases for his own be∣nefit, as is alledged and believed.

Third, In imposing menial offices upon the sons of freeman of this state, when called forth by the defire of congress to perform militia duty; and when remonstrated to hereupon, justifying himself in writing, upon the ground of having power so to do; for that,

when a citizen assumed the character of a soldier, the former was intirely lost in the latter; and that it was the duty of the militia to obey every order of his aids (not a breach of the laws and constitution) as his (the general's) with∣out judging of the propriety of them.

Fourth, For that, when a prize was brought into this port by the Convention brig, of this state, whereon a dispute arose respecting the capture, which would otherwise in great probability have been amicably adjusted between the claimants, general Arnold interposed by an illegal and unworthy purchase of the suit, at a low and inadequate price, as has been publicly charged by a reputable citizen; to which may in some degree be ascribed the delay of justice in the courts of appeal, and the dispute in which the state may probably be involved with congress hereupon.

Fifth, The appropriating the waggons of this state, when called forth upon a special emergency last autumn, to the transportation of private property, and that of persons who voluntarily remained with the enemy last winter, and were deemed disaffected to the interest; and independence of America.

Sixth, In that, congress by a resolve of the twenty first of August last, having given to the executive powers of every state, an exclusive power to recommend persons desirous of going within the enemy's lines, to the office: there commanding, general Arnold, in order, as may reasonably be inferred, to elude the said resolve, wrote a letter, as appears by comparison of hands and the 'declaration of the intended bearer, recommendatory for the above purpose, and caused his aid de camp, major Clarkson, to sign the same. But the said device not taking effect, through the vigilance of the officers at Elizabeth∣town, general Arnold, without disclosing any of the above circumstances, applied to council for their permission, which was instantly refused, the connection, character and situation of the party being well known and deemed utterly improper to be indulged with such permission, thereby violating the resolve of congress, and usurping the authority of this board.

Seventh, This board having, upon the complaint of several inhabitants of Chester county, through the late waggon master general, requested of the said general Arnold to state the said transaction respecting the waggons, in order that they might satisfy the complainants, or explain the same without farther trouble, received in return an indecent and disrespectful refusal of any satisfaction whatsoever.

Eighth, The discouragement and neglect manifested by general Arnold, during his command, to civil, military and other characters, who have adhered to the cause of their country—with an entire different conduct towards those of another character are too notorious to need proof or illustration. And if this command has been, as is generally believed, supported at an expence of four or five thousand pounds per annum to the united states, we freely declare we shall very unwillingly pay any share of expences thus incurred.

Extract from the minutes, T. MATLACK, Secretary.

In CONGRESS.3 April, 1779.

Resolved, THAT his excellency Joseph Reed's letter to congress, of the 25th January, 1779, and general Arnold's letter of 8th and 12th February, and the resolves therein contained of the executive council of Pennsylvania, be, with the evidence which hath been collected and reported by the committee on those letters, transmitted to the commander in chief; and that he be directed to appoint a court Page  6martial on the first, second, third and fifth articles contained in the said resolves of the said executive council, the said articles only being cognizable by a court martial; and that the reference be notified to the supreme executive council, and they be requested to furnish the evidence to the court martial.

Extract from the minutes, CHARLES THOMSON, Secretary.

Major general Arnold requested that the proceedings of the council of the state of Pennsylvania, dated January 18 and 21, 1779, and his excellency president Reed's letter to the honorable the congress, dated January 25, 1779, might be produced. The judge advocate, at the desire of the court, pro∣duced them; which being read, are as follow:

In COUNCIL.

Philadelphia,January 18, 1779.

A REPRESENTATION having been made by colonel Andrew Boyd, waggon master of the county of Chester, through James Young, esq waggon master general, to this board, That Jesse Jordan, a de∣puty waggon master, was sent by colonel Boyd, with a brigade of twelve waggons, to Philadelphia, under the waggon law of this state, to convey provisions from thence to New-Windsor, in consequence of orders from him (the waggon master general) of the 27th September last; and that, when the said Jordan returned home, he informed colonel Boyd, that when he arrived in Philadelphia with his brigade, he applied to John Mitchell, esq deputy quarter master general, for loading, who sent him with his brigade to Eggharbour without loading, with orders to load merchandize there, of private property, and return with it to Philadelphia, which he did; that the loading was delivered there into private flores—On consideration,

Ordered, That mr. Mitchell be requested to state to council, in writing, the transaction relating to Jordan's brigade of waggons, sent by him to Eggharbour, ascertaining the property, or to whom the the same was delivered.

Extract from the minutes, T. MATLACK, Secretary.

Quarter master general's office, Philadelphia,January 19, 1779.

Sir,

I THIS day received an order, signed by the secretary of the honorable council of this state, requesting I would give them information respecting a brigade of waggons under the conduct of Jesse Jordan, a waggon master from Chester county, the council having been informed that I sent them to Egghar∣bour, to convey private property to this city. I shall at all times be ready to give your excellency and the honorable council every information you think necessary for the good of the public, or this state in particular, which relates to my office, or the business of the department, as I have no desire to conceal any part of my conduct as a public officer, having conducted the business under my direction with in∣tegrity, and justice to the public. The following are the state of the facts required, viz.

In the month of October last, at the time the enemy had landed some troops at Eggharbour, general Arnold desired I would furnish him with a brigade of teams, which he wanted to send to the Jersies, and that he would pay the hire of them, they being wanted to remove property which was in imminent danger of falling into the hands of the enemy. I informed him, he should have the waggon master of the fast brigade which could be spared from public service, sent to him, when he would give such orders as he pleased. Accordingly, about the 22d of October mr. Jordan was sent to the general, to receive his directions, having at that time sent forward a large supply for the army, &c. When Jordan returned, he was desired to make out his account to general Arnold, to be paid. I do not know where the loading was stored, nor whose property it was, further than what is before mentioned. A greater number of continental teams coming in than I expected, enabled me to comply with general Arnold's request, with∣out any inconvenience to the service. If there is any thing further, in which I can satisfy your excellency and the council, I will wait on you at any time with pleasure.

I have the honor to be, with great rejpect Your excelleary's mast obedient and mast humble servant, JOHN MITCHELL, D.Q.M.G.

His excellency Joseph Reed, esq President of the state of Pennsylvania. Copy. T. MATLACK, Secretary.
Page  7

In COUNCIL.

Philadelphia,January 21, 1779.

COUNCIL having received from John Mitchell, esquire, deputy quarter master general, a state of the transaction, in pursuance of the resolve of council of the 18th instant, by which it appears he acted therein in consequence of orders from major general Arnold.

Ordered, That the secretary make out a copy of said minute, with mr. Mitchell's state, and trans∣mit them to major general Arnold, requesting him to inform this board, whether the property for which the said waggons were ordered, was public or private: If the latter, to whom the same belonged; and farther to inform this board, by virtue of what resolve or congress, or other authority, public waggout of this state were sent into another state, to do business merely of a private nature.

Ordered. also, That the quarter master general be desired to order Jesse Jordan, a waggon master in his employ, to attend this board, to satisfy them with respect to the employ of the public waggons of this state, in September last.

Extract from the minutes, T. MATLACK, Secretary.

Philadelphia,January 25, 1779.

Gentlemen,

I received a letter from mr. Timothy Matluck, your secretary, of the 22d instant, inclosing an order of council of the 18th, colonel Mitchell's answer of the 19th, and a subsequent order of council of the 21st instant.

I think it very extraordinary, that after colonel Mitchell had, by his letter of the 19th, so fully and clearly answered the requisition of council in their order of the 18th, they should have patled the order of the 21st. In answer I shall only say, that I am at all times ready to answer my public conduct to congress or general Washington, to whom alone I am accountable.

I am, Gentlemen, Your most humble Servant, H. ARNOLD.

To the president and council of the state of Pennsylvania. Copy. T. MATLACK, Secretary

In COUNCIL.

Philadelphia,January 25, 1779.

Sir,

THIS board, which by its' duty and flation is hound to protect the rights and Interests of the good people of this state, having received a complaint from mr. Andrew Boyd, in behalf and others, that the public waggons of the state, when called forth under the waggon law, have been employed in the transportation of private property, requested of John Mitchell, esq d q. m. g. the reasons of such conduct. Mr. Mitchell, admitting the fact, alledged in justification, that the waggons had been so employed by the direction of general Arnold, then the military commanding officer of this state. This board having thereupon transmitted to general Arnold a copy of their proceedings, with mr. Mitchell's answer, and requested general Arnold to give us a state of the transaction, he this day returned for answer,

that he was at all times ready to answer for his public conduct to congress or general Washing∣ton, to whom alone he was accountable.

The indignity offered to us upon this occasion, as well as a due regard to the violated rights of the freemen of this state, calls upon us to resent such treatment, and in their names we shall call upon the delegates of the united states for justice, and reparation of our authority, thus wounded by one of their officers: But as we learn that gen. Arnold is about to depart this city for some time, and may thereby elude enquiry into this transaction, as well as some others under our consideration, we request he may be detained till the whole proceedings can be laid before you in form, and that he forbear exercising any further command in this city, until the changes against him are examined.

I am, Sir, Your obedient humble servant, JOS. REED, President.

Honorable John Jay, esq president of congress.

Page  8 After these papers were read, the judge advocate exhibited as charges against major general Arnold, the first, second, third, and fifth articles contained in the proceedings of the council of the state of Penn∣sylvania, to which the general pleaded NOT GUILTY.

In support of the first charge, the judge advocate produced a protection given by major general Ar∣nold, to captain Robert Shewell, jun. and others, for the schooner Charming Nancy, dated, camp, Valley Forge, June 4, 1778, which being read, is as follows:

WHEREAS capt. Robert Shewell, jun. merchant of the city of Philadelphia, in behalf of himself and company, has this day made information to me, that himself and company have a certain schooner called the Charming Nancy, New-England built, about seventy five tons burthen, now lying before the city of Philadelphia, which schooner William Moore is master, loaded with salt, linens, woollens, glass, loaf sugar, and bohea tea, nails, &c. consigned to William Shirtliff, supercargo on board; which property, they were of opinion, was not safe at Philadelphia, and as friends to their country, wished to have a pro∣tection for said vessel and cargo, that the same might be brought into some port in the united states of America.

In full confidence of their upright intentions, I do hereby grant said Robert Shewell, jun. and com∣pany, protection for said vessel and cargo. And said schooner is hereby permitted to sail into any of the ports of the united states of America, and all officers and soldiers of the continental army, and other persons, are hereby forbid to give any umbrage or molestation to the said captain Moore, or the said vessel and cargo.

Given under my hand, camp. Valley-Forge,4 June 1778.

B. ARNOLD, M. Gen.

To whom concerned.

Major general Arnold admitted that he gave the protection while in the camp of his excellency gene∣ral Washington at Valley Forge, without the knowledge of the authority of the state of Pennsylvania, or the commander in chief, though then present.

To prove the character and residence of the persons to whom the protection was given, the judge advocate produced Timothy Matlock, esq who, on his affirmation, says,

Q. Do you know the character of the person to whom general Arnold gave the permission?

A. Generally, I do.

Q. What was his character at the time?

A. Captain Robert Shewell, junior, was, at the time of that pass being given, generally reputed not to be well affected to the united states of America, as I understand. Captain Robert Shewell, junior, informed me, that he was ordered to leave general Washington's camp, in consequence of the charac∣ter that had been given of him; and upon his appearing on parade afterwards, he was ordered to leave general Washington's camp on pain of imprisonment.

Q. Did captain Robert Shewell, junior, reside in Philadeiphia at that time?

A. He informed me he did voluntarily reside there at the time.

Q. court. Do you know whether general Arnold knew captain Robert Shewell, junior's, general cha∣racter at the time he gave the permission?

A. I do not.

Q. court. Do you know whether general Arnold knew of captain Shewell's being ordered to leave the camp of general Washington, previous to his having given him the permit?

A. I had no opportunity of being acquainted with the circumstances of the case.

Q. Do you know the persons who were concerned in the vessel with captain Shewell at that time?

A. It was supposed mr. Shirtliff was concerned, and several others, whose characters I know nothing of and cannot give; and it was supposed that general Arnold was concerned in the vessel or cargo.

Q. Do you know mr. Shirtliff's character?

A. So little as not to be able to give his character generally.

General Arnold's question. What conversation introduced captain Shewell's mentioning to you, his being ordered from the camp of general Washington? and did he tell you the reason of it?

A. I believe the conversation took its rise from mr. Shewell's mentioning to me, that he was likely to be treated ill, upon a charge of his having ill treated mr. Paul Fooks at the coffee house in Philadelphia, while the enemy had possession of the city. The reason he assigned to me, for his being ordered to leave general Washington's camp, was, he supposed he had been represented to general Washington as being untriendly to America.

Page  9 General Arnold's question. Have you understood, that upon several alarms captain Shewell turned out with the militia, and did duty with them?

A. I know nothing of that matter.

Q. Did you consider captain Robert Shewell, junior, at the time the protection was given, to be un∣friendly to the united states of America?

A. I did.

The court adjourned until to-morrow eleven o'clock.

DECEMBBER 24.

The court met, according to adjournment.

Timothy Matlack, esq on his affirmation, says, That some time during the enemy's having possession of the city of Philadelphia, information was given to the board of war, that property belonging to captain Robert Shewell, junior, was arrived in Virginia, part of a vessel and cargo in which the Wykoffs, one or more of that family, was concerned. Upon the representation being made, an order was issued for their being seized, as belonging to captain Robert Shewell, junior, who was deemed unfriendly to the united states of America. They were seized on that order, and were detained: the length of time the cannot ascertain; neither does he know of their being delivered up to this day. This information he re∣ceived from mr. Shewell and from mr. lsaac Wykoff.

Q. court. Was this order issued by the board of war before captain Robert Shewell, junior, obtained the permission of general Arnold?

A. Most probably several months.

Q. Do you know whether general Arnold knew of the board of war having issued the order respecting the seizure of captain Shewell's property?

A. I know of no circumstance that should afford me an opportunity to judge concerning that.

Q. court. Where did the board of war sit at the time?

A. I suppose at Yorktown.

Q. court. Do you know where general Arnold was at that time?

A. I do not, further than it was a general knowledge that he was with the army at the northward.

In support of the second charge, the judge advocate produced his excellency general Washington's in∣structions to major general Arnold, dated June 18, 1778, a resolution of the honorable the congress, dated June 5, 1778, and a copy of a proclamation issued by major general Arnold, dated June 19, 1778; which being read, are as follow:

To major general ARNOLD.

Sir,

YOU are immediately to proceed to Philadelphia, and take the command of the troops there. You will find the objects of your command specified in the enclosed copy of a resolution of congress of the 5th instant. The means of executing the powers vested in you, I leave to your own judgment, not doubting that you will exercise them in the manner which shall be found most effectual, and at the same time, most consistent with the rights of the citizens.

I have directed the quarter master general, commissary general and clothier general to send proper persons in their respective departments into the city, to take possession, for the use of the army, of all public stores lest in the city by the enemy, which may not properly fall under the description of the enclosed resolve. In the execution of this duty, they will act under your directions and with your assistance.

Given at bead-quarter,this 18th day of June, 1778.

G. WASHINGTON

In CONGRESS.June 5, 1778.

RESOLVED, That, should the city of Philadelphia be evacuated by the enemy, it will be expe∣dient and proper for the commander in chief to take effectual care that no insult, plunder or injury of kind may be offered to the inhabitants of the said city;—That, in order to prevent public or private in∣jury, from the operations of ill disposed persons, the general be directed to take early and proper care to prevent the removal, transfer or sale of any goods, wares of merchandize in possession of the inhabitants of the said city, until the property of the same shall be ascertained by a joint committee, consisting of persons appointed by congress, and of persons appointed by the supreme executive council of the state of Page  10Pennsylvania; to wit, so far as to determine whether any, or what part thereof, may belong to the king of Great-Britain, or to any of his subjects.

Extract from the minutes, CHARLES THOMSON, Secretary.

By the honorable major general ARNOLD, commander in chief of the forces of the united states of America, in the city of Philadelphia, &c. A PROCLAMATION.

IN order to protect the persons and property of the inhabitants of this city from insult and injury, to secure the public and private stores which the enemy may have left in the city, and to prevent the disorder and confusion naturally arising from want of government,

His excellency general Washington, in compliance with the following resolution of congress, has thought proper to establish military law in this city and suburbs, until the civil authority of the state can resume the government thereof.

In CONGRESS. June 5, 1778.

[Here the above resolution was recited.]

IN order the more effectually to carry into execution the above resolve, all persons having European, East or West-India goods, iron, leather, shoes, wines and provisions of every kind, beyond the ne∣cessary use of a private family, are ordered to make return of the same to the town major, by twelve o'clock to-morrow, specifying the quantity, and, as nearly as they can judge, the amount of the same, in order that the quarter master, commissary and clothier generals may contract for such goods as are wanted for the use of the army, and until permission is given by the general, there be no removal, transfer or sale of any goods, as it will be deemed a breach of the above resolution of congress, and such goods will be seized and confiscated for the publc use.

All persons having in their hands public stores or effects the property of the subjects of the king of Great-Britain or their adherents, who have departed with them, are to make a like report by Monday noon next, under penalty of the confiscation of their own effects; and any persons discovering such concealed stores or effects, will be suitably rewarded.

Any persons harbouring or concealing any officer, soldier or other person belonging to the enemy, or any deserter from the continental army, will be severely punished, unless they make immediate dis∣covery to some officer of the said army.

Given at head-quarters, in the city Philadelphia,June 19, 1778.

B. ARNOLD, Major Gen.

By his honor's command, DAVID S. FRANKS, Secretary.

Major general Arnold admitted, that on his arrival in Philadelphia, the shops were shut by his or∣ders, and the officers of the army in consequence of them, prevented from purchasing.

The judge advocate then produced the deposition of colonel John Fitzgerald, dated May 7. 1779. which being read, is as follows:

ON the seventh day of May, A.D. 1779, before me, Plunket Fleeson, esq one of the justices, &c. for the city of Philadelphia, comes colonel John Fitzgerald, late aid de camp to his excellency general Washington, and being duly sworn according to law, deposeth and saith, That on the evening of the day on which the British forces lest Philadelphia, he and major David S. Franks, aid de camp to major general Arnold, went to the house of miss Brackenberry, and lodged there that night; that the next morning, major Franks having gone down stairs, the deponent going into the front room of the said house, to view colonel Jackson's regiment then marching into the city, saw lying in the window two open papers; that on casting his eye on one of them, he was surprized to find it contained in∣structions to the said major Franks to purchase European and East-India goods in the city of Philadelphia, to any amount, for the payment of which the writer would furnish major Franks with the money, and the same paper contained also a strict charge to the said Franks not to make known to his most intimate acquain∣tance, that the writer was concerned in the proposed purchase; that these instructions were not signed, but appeared to the deponent to be in the hand writing of major general Arnold, whether or not there was a date to it the deponent doth not recollect; that the other paper contained in∣structions Page  11signed by major general Arnold, directing major Franks to purchase for the said general Arnold, some necessaries for the use of his table; that the deponent compared the writing of the two papers, and verily believes they were both written by major general Arnold's own hand; that soon afterward major Franks came into the room and took the papers away, as the deponent supposes. And further the deponent saith not.

JOHN FITZGERALD.

Sworn before me the date aforesaid, PLUN. FLEESON.

Question by general Arnold to Timothy Matlack, esq Is the deposition of colonel Fitzgerald, in your hand writing?

A. Yes; it was dictated to me by colonel John Fitzgerald, and while in the rough by him altered and amended, and afterwards copied fair. The next day he called at my house, and informed me he had seen you, in consequence of your request; that there was one or two alterations he wished to make, in consequence of the conversation with you, which alterations are interlined, and written precisely in the words he dictated, having I believe written them on a piece of paper, before me. Colonel Fitzge∣rald was a perfect stranger to me, having to the best of my knowledge never seen him before to know him.

The judge advocate produced major Franks, aid de camp to major general Arnold, who was sworn.

Q. On general Arnold's arrival in Philadelphia, do you know whether himself or any person on his account, made any considerable purchases of goods?

A. I do not.

Q. At or before general Arnold's arrival in Philadelphia, did you receive orders from general Arnold to purchase goods, or do you know of general Arnold's having given orders to any other person to make purchases of goods?

A. I did receive from general Arnold, that paper which colonel Fitzgerald has mentioned in his depo∣sition. There are circumstances leading to it which I must explain. I had, by being in the army, injured my private affairs very considerably, and meant to leave it, if a proper opportunity of entering into business should happen. I had several conversations on the subject with general Arnold, who promised me all the assistance in his power; he was to participate in the profits of the business I was to enter into. At that time, previous to our going into Philadelphia, I had several particular conversations with him, and thought that the period, in which I might leave the army with honour, and enter into business, I received at that time, or about that time, I think several days before the enemy evacuated the city, the paper mentioned in colonel Fitgerald's deposition that was not signed, as well as the other. Upon our coming into town we had variety of military business to do. I did not purchase any goods, neither did I leave the army. The paper was entirely neglected, neither did I think any thing concerning it, until I heard of colonel Fitgerald's deposition. General Arnold has told me since, which is since I came from Carolina sometime in August last, on speaking about the paper, that the reason for his not supporting me in business was, supposing that I had left the army, it was incompatible with his excellency's in∣structions and the resolution of congress.

Q. court. Did general Arnold ask you upon his coming into Phiadelphia, or at any time after, why you had not executed the contents of the paper?

A. He did not.

Q. court. What day did you arrive in Philadelphia?

A. The 18th day of June, in the evening, the day the enemy left Philadelphia.

Q. court. Are you certain that the order for purchasing the goods was given to you several days before you went into Philadelphia?

A. I cannot be particular as to the time; it might have been three, four, five, or twenty days; but it was some time before.

Q. Previous to the enemy evacuating the city of Philadelphia, did you understand from general Arnold that be was to have the command in the city, on the evacuation taking place?

A. I did; but it was a short time before, I believe a day or two. The general, on his return from head-quarters, mentioned it was hinted to him at general Washington's, that he should, when the ene∣my evacuated Philadelphia, have the command, and desired me not to mention it.

Q. Were the instructions to purchase goods given to you before the general mentioned this matter to you?

A. I believe they were, though I am not certain.

Page  12 General Arnold's question. Were not my minute and invoice books always open to your inspec∣tion?

A. They were.

Q. by do. Had you any reason to suppose that any purchases were made directly or indirectly by my orders or on my account, previous to the opening of the stores?

A. No.

Q. by do. Did you not suppose my showing you the instructions from general Washington to me, previous to your going into the city, a sufficient countermand of the order I had given you to pur∣chase goods?

A. I did not form any supposition on the subject.

Q. by do. For what purpose were you sent into the city before me?

A. To procure quarters, and to provide necessaries for the family.

In support of the third charge the judge advocate produced Timothy Matlack, esquire's letter to major general Arnold, dated October 5.; the general's answer, dated October 6.; Mr. Matlack's letter dated October 10.; and the general's answer of the 12th of October 1778; which were read, and are as follows:

Philadelphia,October 5. 1778.

Sir,

THE militia serjeant who attended at your quarters on Sunday, complains that major Franks, one of your aids, had given him orders to call his barber, which order was obeyed; that on the barber not appearing the order was repeated, and the serjeant, though hurt both by the order itself, and the manner of it, again obeyed; he also informs me, that he has, this morning, made you ac∣quainted with this complaint, and that you had been pleased to say, that every order given by you or your aids, is to be obeyed. This, I suppose, must intend every proper order.

The militia of the several states have, occasionally, rendered the great cause in which we are en∣gaged such services, as must convince every man that it is of very great importance to treat those who are necessarily called out, in such manner as to make the duty as agreeable to them as is con∣sistent with the service to which they are called: For it is upon their will, more than upon the force of any law, that we are to depend for their assistance in the time of need. The severity of mili∣tary discipline in such a case as that above mentioned, where no important end is to be answered by it, must make every freeman feel. At a time when you were one of the militia of the state of which you are a citizen, what would have been your feelings, had an aid of your commanding officer ordered you to call his barber? From your feelings in such a case, it will be easy to judge of that of other men. Freemen will be hardly brought to submit to such indignities; and if it is intended to have any of the respectable citizens of a state, in service in the militia, military discipline in such in∣stances must be relaxed; but if it is an object to render the militia in the several states contemptible and useless, the continuance of such treatment will probably effect it. Military duty of every kind is rather disagreeable; and perhaps, to freemen, garrison duty more disagreeable than any other. The serjeant above mentioned entered the service to discharge his duty, and as an example to other young men of the city, and not from necessity, in any sense of the word.

It appears to me a duty which I owe to the public, to represent this matter to you in a respectful manner, in expectation that, from attachment to the public interest, you will give such orders as will prevent any farther complaints of this kind, which is all the satisfaction sought after, either by the serjeant, who is my son, or,

Sir, your most obedient humble servant, T. MATLACK.

Major general Arnold.

Philadelphia,Oct. 6. 1778.

Sir,

I AM to acknowledge the receipt of your letter of yesterday, respecting the militia serjeant who complains of being ill treated. No man has a higher sense of the rights of a citizen and freeman than myself: they are dear to me, as I have sought and bled for them, and as it is my highest ambi∣tion and most ardent wish to resume the character of a free citizen, whenever the service of my country will permit. At the same time I beg leave to observe, that whenever necessity obliges the citizen to assume the character of a soldier, the former is intirely lost in the latter, and the re∣spect due to a citizen is by no means to be paid to the soldier, any farther than his rank in∣titles Page  13him to it. This is evident from the necessity of military discipline, the basis of which is im∣plicit obedience, and however the feelings of a citizen may be hurt, he has this consolation, that it is a sacrifice he pays to the safety of his country.

You are pleased to ask, "What my feelings would have been on a similar occasion." They have been tried; I have served a whole campaign under the command of a gentleman, who was not known as a soldier until after I had been some time a brigadier: My feelings were hurt not only as a citizen, but more so as a soldier; they were however sacrificed to the interest of my country. The event proved unfortunate to me; but I have the satisfaction to think I rendered some service to my country.

I wish to make the duty as agreeable to the militia as is consistent with the good of the service, for which purpose military discipline has been greatly relaxed; was it executed with strictness, most of the militia, from their inattention, would feel the effects of it.

I cannot think (as you seem to imagine) any indignity is offered to the citizen, when he is called upon to do the duty of a soldier in the station he is in, which was the case of the serjeant; who though he may be a more respectable character as a citizen, yet, as an orderly serjeant, it is his duty to obey every order of my aids, not a breach of the laws or principles of the constitution, as mine, without judging of the propriety of them; neither can I have any idea from the militia's being put on the same footing as the standing army, they will refuse their assistance, as self preservation is the first principle of human nature, theirs will ever induce them to turn out and defend their pro∣perty.

These, Sir, are the sentiments of a soldier, a citizen, and of, Sir,

Your obedient humble servant, B. ARNOLD.

Sir,

I RECEIVED your letter of the 6th instant; and it gives me real and great pleasure to be in∣formed of your patriotic behaviour in the case you mention. Such conduct is the effect of genuine spirit and true greatness of mind; but it is very different from the case I stated. You obeyed, because the effential interest of your country was concerned, and a regard to your own same required it; but the same principles, which induced this conduct, would have induced you to spurn at commands dictated by pride and insolence.

I cannot bring myself to believe, that the respect due to the citizen is entirely lost when he takes upon himself the character of a soldier: I entertain a higher sense of the rights of citizens and freemen.

If, on the one hand, soldiers are bound implicitly to obey military orders, so, on the other hand, are officers accountable for the orders which they give; and their propriety or impropriety often de∣pend entirely on time and circumstance. Occasions may occur in which an officer may justify com∣mand which expose a citizen to certain death; but I know of none which would justify a command to a citizen serving in the militla to clean his officers shoes. The necessity of implicit obedience on the part of the citizen, when in military service, is so far from being ground, on which to justify every command which may be given, that it is the strongest possible reason, why an officer should be very cautious and circumspect in his orders; and it also lays the citizen under a necessity of call∣ing officers to a strict account for the orders which they give. I will venture to say, that, in a free government, implicit obedience will not be submitted to much longer than commanders use their au∣thority with great prudence and discretion, and, if it be really necessary, commanders, who destroy it, by degrading and unnecessary orders, they will be accountable for the consequences, You say it is the duty of an orderly serjeant

to obey every order of your aids (not a breach of the laws or prin∣ciples of the constitution) as yours, without judging of the propriety of them.
This sentiment must have dropt from your pen in a moment of haste; as it appears to me to be a sentiment impro∣per to be entertained either by the citizen or soldier: For even common soldiers retain some right to judge of the propriety of the orders which they have obeyed; and to demand satisfaction in cases where improper or unnecessary orders have been given: And freemen will judge for themselves and speak for themselves with decency and firmness when the occasion requires it. The calling of major Franks's barber to dress his hair, was the office of a menial servant, not the duty of a soldier; and I still think it an indignity to a free citizen to be ordered to go on such an errand. Such commands cannot be mistaken for and obeyed as the orders of a wise and prudent general.

My letter to you was written for the single purpose of preventing orders being madvertently given, which would offend a militia who have suffered greatly many ways; and I had a hope, that you would have thought it proper to have given some assurance that attention would have been paid to this, as Page  14it appears to me, necessary precaution; but I am not a little mortified to find the order, of which I complained, so fully justified and supported by you. If it is your intention, as commanding officer, to countenance orders of this kind, it is my duty, as a father, to withdraw my son from a service in which commands are to be given him which to obey would lessen him in the esteem of the world; and I shall consider it as a duty which I owe to myself to acquaint my fellow citizens of my reason for so doing.

I am, with sentiments of great respect, Sir, Your most obedient and very humble servant, T. MATLACK.

Philadelphia,October 10, 1778.

Major general Arnold.

Sir,

BY your letter of the 10th, I perceive that my sentiments are not clearly understood; but it is needless to discuss a subject which will perhaps be determined more by the feelings than the reason of men. If the declaration, that you will withdraw your son from the service, and publish the reasons, is intended as a threat, you have mistaken your object. I am not to be intimidated by a newspaper. To vindicate the rights of citizens, I became a soldier, and bear the marks upon me. I hope your candour will acquit me of the inconsistency of invading what I have fought and bled to defend. As I am earnestly desirous of closing this correspondence. I shall confine myself to what occasioned it. "An improper order," as you conceive,

given by major Franks, my aid de camp, to the orderly serjeant, your son.
Without examining into the propriety or impropriety of the order, about which we may differ, I perfectly agree with you, that the delivering of it in a haughty, imperious or insolent manner, is blameable; and if the serjeant had so represented it to me at the time, he would have had justice. The affair is now out of my hands, and lies between the serjeant and the major. If the latter hath behaved amiss, it is his duty to make reparation. I trust I never shall countenance pride or insolence to inferiors in him, or any other officer under my command. Let me add, that disputes, as to the rights of citizens and soldiers, in conjunctures like the present, may be fatal to both.

I am, Sir, Your most obedient humble servant, B. ARNOLD.

Philadelphia,October 12, 1779.

Timothy Matlack, esq

After the reading of these letters, the judge advocate produced Mr. William Matlack, who, having affirmed, says,

Q. Did you attend at general Arnold's quarters in Philadelphia as an orderly serjeant from the militia?

A. I did.

Q. Did you receive an order from major Franks, aid de camp to major general Arnold, while you attended in that station, to fetch a barber?

A. I received my first order from a servant girl, who came and asked me if I was an orderly serjeant? I told her I was. She said major Franks' orders were, that I should fetch his barber; which order I obeyed, as supposing it to come from him. Soon after my return, major Franks came to where I was stationed, and asked me if I had been for his barber? I told him I had, but he was not at home, and that I had left the orders that were necessary for his coming up, as soon as he should come home. Major Franks then said, he did not believe he would come, and then went away. Some considerable time after, he came again, and said he did not believe he would come, and he believed I had better go again; to which I made no reply, but walking back in the entry, after a few minutes, I asked a Negro man if it was customary to give such orders to the orderly serjeants? He said it was. I then replied, that major Franks ought to consider, that the militia could not be expected to do such duty, or words to that purport. Major Franks then came out of a back room, and said, serjeant, I thought I had ordered you to go for my barber. I told him I had received no such order. He then asked me why I did not go? I told him I waited his orders. He then told me to go, and I told him, with his orders I would go, and did go. Major Franks, on my return, asked me if I had been? I told him I had, and left the same orders as before. In the morning I made a complaint to the general, nearly in them words; and he informed me it was customary for serjeants to do such duty; and gave to me understand, not in an abrupt manner, that if I did not like such duty. I should not have come there. Page  15The general said, at the time, that if major Franks had insulted me at the time be gave me the order, it was wrong, and he did not approve of that.

General Arnold's question. Was any menial office imposed upon you, or upon any orderly serjeant, to your knowledge?

A. I conceived the office that was imposed on me as menial; and the orderly serjeant who stood at the same time with me, belonging to the continental troops, complained of major Franks giving him a small bundle of paper in his hand, bidding him follow him, which he did; and upon his coming to a house a small distance off, bid him give him the bundle of papers and return; which the man com∣plained of to me, when he returned, as an insult.

The court adjourned till Monday, eleven o'clock.

DECEMBBER 27.

The court met, according to adjournment, and adjourned till to-morrow eleven o'clock.

DECEMBER 28.

The court met, according to adjournment.

In support of the last charge, the judge advocate produced letters from Messrs. Chaloner and White, and John Mitchell, esq to the waggon master of the state of Pennsylvania, dated September 25, 26, and October 1st, 1778, which being read, are as follow:

(COPY.)

Sir,

Philadelphia,September 25, 1779.

WE have received orders from head-quarters, to lay in at New-Windsor a magazine of 10,000 barrels of flour. It is of the utmost importance to the support of our army and the French fleet, that this order be immediately executed. We have requested of the quarter master general to call on you for 200 waggons. For this purpose, permit us to suggest to you the propriety of their being called from the counties adjacent to York, as they are all to be loaded by Mr. John McCallister, at York-town, to whom we beg you would direct your deputies to order the waggon master to apply. We wish not to urge more on your department than it can comply with; but the many difficulties that will occur by delay in executing this order, oblige us to request of you to inform us how soon you can answer our drafts for the necessary waggons to complete it, and what number at a draft will be most convenient.

We are, with respect, Your humble servants, CHALONER and WHITE, A. C. of P.

To James Young, esq waggon master general of the state of Pennsylvania. Copy examined, T. MATLACK, Secretary.

(COPY.)

Philadelphia,Sept. 25, 1778.

Sir,

WE are called on by his excellency and also by the commissary general for two hundred wag∣gons immediately, to transport flour from York town and Carlisle to New Windsor—must therefore request and desire you will order two hundred good waggons to be furnished by the western coun∣ties, to transport the flour, &c. cross the country. As it is of the utmost consequence to have this requisition complied without delay, hope you will exert all your influence and authority to procure the above number. A considerable number will also be wanted to forward provisions from Lancaster county and this city to the North river, at least four hundred.

I am, Sir, Your most humble servant, JOHN MITCHELL, D. Q. M. G.

To James Young, esq waggon master general, Philadelphia. Copy examined, T. MATLACK, Secretary.
Page  16

(COPY.)

Sir,

Philadelphia,26 September, 1778.

YOUR favour of this day I have duly received, and have sent your letters to Lancaster, York and Carlisle by express. I am doubtful all the teams in York and Carlisle will be wanted to go to Pittsburgh; therefore Lancaster must send the number to those places. Two hundred teams will be immediately wanted to convey the provisions from Lancaster, Lebanon and Rhemes-town, and four hundred to convey the provisions from this city to New Windsor. It is absolutely necessary they should be furnished without the least delay, as the consequences may be of the worst kind; the fleet and army depend on it, as the provisions provided for the army have been sent to the fleet.

If you cannot procure the teams immediately, please to inform us, that other steps may be taken.

I am, Sir, Your most humble servant, JOHN MITCHELL, D. Q. M. G.

To James Young, esq waggon master general, Philadelphia. Copy examined T. MATLACK, Secretary.

(COPY.)

Sir,

Philadelphia,October 1, 1778.

THERE is the most pressing necessity for flour at camp. We assert, and from undoubted autho∣rity, that there is plenty at Trenton and Morristown. We therefore call on you for teams to trans∣port the same. One hundred and fifty teams may be immediately loaded at each place, and as many may be constantly kept in employ from those places to camp, loading per week.

We are, Sir, Your humble servants, CHALONER and WHITE, A. C. of P.

N. B. Apply at Morristown, to Joseph Lewis; at Trenton, to Alexander Fleeb.

(COPY.)

Sir,

THE above is a copy of a letter received this day: We are therefore obliged to call on you for a further supply of teams. The number required will be 300, exclusive of those already ordered. Must request you will furnish them as quick as possible. You will please to let us have you answer in writing.

I am, Sir, Your humble servant. JOHN MITCHELL, D. Q. M. G.

To James Young, esq W. M. G. P. Present. Copy examined. T. MATLACK, Secretary.

The judge advocate also produced a remonstrance from the state of Pennsylvania, against the enormous waggon service, dated October 1. 1778.; which being read, is as follows:

In COUNCIL.

Philadelphia,October 1. 1778.

THE council resumed the consideration of the demand made by the quarter master general of eight hundred waggons, besides what are now employed for the united states, and observed with astonish∣ment, that is but a few weeks since a like demand was made for eight hundred waggons, which were impressed with great severity and irregularity, and the whole waggon service to the westward falls on this state, at a time when the country is drained of horses, and our waggons very generally dis∣abled, destroyed, or carried off by the enemy, and considering also, that the waggons of this state are taken into other states at a great distance; thereupon,

Ordered, That the delegates of Pennsylvania be instructed to remonstrate to congress against the Page  17drawing out so great a number of our waggons and horses, and thereby throwing so great an over-proportion of this heavy and distressing service on Pennsylvania.

Extract from the minutes, T. MATLACK, Secretary.

The judge produced an order from David S. Franks, aid de camp to major general Arnold, to Jesse Jordan, waggon master; depositions of Jesse Jordan, David Cochran, John Boyd and Stephen Collins; which being read, are as follow:

(COPY.)

YOU will proceed immediately with your teams to Eggharbour or the Forks, take the orders and directions of captain Moore, whom you will obey in every particular.

By order of general Arnold, DAVID S. FRANKS, Aid de Camp.

To Jesse Jordan, waggon master. Copy. T. MATLACK, Secretary.

(COPY.)

City of Philadelphia, ss.

BEFORE Plunket Fleeson, esquire, one of the justices of the peace in and for the same city, comes Jesse Jordan; who, being duly sworn, deposeth and saith, That he, the deponent, on the sixteenth of October last, and for some time before and after, was one of the waggon masters for Chester county, in this state; that upon that day he received orders from Andrew Boyd, waggon master general for Chester county, to proceed to Philadelphia with a brigade of waggons, twelve in number, and there take orders from the quarter master in Philadelphia, and proceed in pursuance of such orders as he should further direct, on the public service; that the brigade was called out to perform their tour of duty, under the waggon law of this state; that he accordingly proceeded with the brigade to Philadelphia, drawing forage and rations on the way, on the written order of Andrew Boyd for that purpose; that in Philadelphia, this deponent applied to colonel John Mitchell, deputy quarter master general, for orders; that colonel John Mitchell ordered him to proceed to Mr. Rees∣burgh's office in Market-street, for orders to get a loading; that mr. Reesburgh's orders were to go down to one Coleman's to get a load of flour and bread, and proceed towards camp; that deponent proceeded to Coleman's, and bad him prepare the loading, and deponent returned to his brigade and got it in readiness to receive the loading; that soon after one mr. Rusk or Lusk told the brigade they must go to Eggharbour, and deponent came down Chesnut-street, and stopt the waggons before co∣lonel Mitchell's door, and deponent enquired of him where they must go, whether towards camp or to Eggharbour. Colonel Mitchell told them they might go to Eggharbour, and to go to general Arnold and receive orders from him; that he went accordingly to general Arnold, and soon after received the orders from his aid de camp in writing, signed David S. Franks, aid de camp; that in obedi∣ence to those orders, he proceeded with the brigade of waggons empty to the forks of Eggharbour; that until they arrived within about twenty or twenty five miles of the forks, the deponent was con∣fident they were employed in the public service of the continent, and expected they were to take in a loading of public stores, and the first cause of his doubting it was, that they were denied provisi∣ons by the commissary of issues there, who took copies of general Arnold's and mr. Boyd's orders, and said he was sure it was private property they were going for; that if deponent had known they were going for private property, he would not willingly have gone, for that he was offered £ 4, a day, and to be found, or £ 6 : 5, and find himself, before he left home, to go to Indian river, but chose rather to go his tour of duty in the public employ; that he proceeded with the brigade to the forks of Eggharbour, drawing provisions and forage as before, after copies had been taken of the two or∣ders before mentioned; that they loaded there with sugar, tea, coffee, six swivel guns, casks of nails, broad cloths, linens, chests, sail cloth, and some other articles, and brought them up to Philadel∣phia; that they crossed the river loaded, and delivered part of their loading on this side the ferry, and the remainder at Stephen Collins's in Second-street, by order of captain Moore, at the forks, to whom he was referred by the written orders of general Arnold, and who accompanied them up; that de∣ponent gave no receipt for goods, nor took any on their delivery, captain Moore superintending the Page  18delivery in person; for that he refused a receipt because he was not informed of any public store at which to deliver them, and because the goods were so mixed and jumbled together; that he has re∣ceived no pay, but that on Saturday last he applied to colonel Mitchell with his pay roll, in the u∣sual form signed by Mr. Boyd, who gave him the order; that colonel Mitchell told him he would have nothing to do with it, deponent must apply to general Arnold, that he accordingly went to ge∣neral Arnold, and gave him his pay roll, in which was charged 55s. a day, being the usual charge in public service; that general Arnold looked at it, and told him to call again in the evening, and then either he would pay it, or colonel Mitchel would; that deponent returned to colonel Mitchell and informed him of this; colonel Mitchell asked him how much forage he had drawn, that he (Mitchell) had got an account of his drawing one days forage from Mr. Smith the forage master, deponent told him to the best of his knowledge he had drawn from Smith for eight days; that colonel Mitchel sent up and got the account of eight days forage, and then bad deponent go and get his pay roll again from general Arnold, and alter it; that deponent told him he had drawn forage for the whole fourteen days he was out from home; that colonel Mitchel told him then, there must be a new pay roll made out; that deponent thereupon went to general Arnold's, and brought back the first pay roll, and made out a new pay roll, and was ordered by colonel Mitchell to charge 75s. a day, and go to ge∣neral Arnold and receive it, and then go to the forage master colonel Biddle, (he would shew him where when he returned) and pay him 20s. a day for the forage; that deponent carried the new pay roll to general Arnold's, but he was gone out; that deponent returned to colonel Mitchell's, who was also gone out, and told his clerk of this; that in making out his pay roll at colonel Mitchell's, before he went this time to general Arnold's, colonel Mitchell said he should not charge or have pay for more than twelve days, (omitting two days of the fourteen) for that they were too slow in com∣ing from Chester, although in fact deponents brigade were in town the day before others, who set off a day before them; that hereupon deponent took up his papers and was going away, and said he would not settle then; colonel Mitchell said he should make it out and settle it before he went away, or he (colonel Mitchell) would make a prisoner of him, whereupon deponent complied through ter∣ror; that since the notice above mentioned to colonel Mitchell's clerk, deponent has made no far∣ther application for his money; that when deponent returned the second time from general Arnold's he brought back the first pay roll to colonel Mitchell, with a note wrapped round it, importing that general Arnold thought he ought only to pay from the day that the waggons left Philadelphia, till they returned thither, and that colonel Mitchel might pay the remainder, and colonel Mitchel wrote a note which he sent by his boy to general Arnold (as he said) informing him that he (general Arnold) must pay the whole; that the teams of deponents brigade were appraised before they left home, and some of the horses got lamed in the journey; that deponent came to town this time, not being sent for, in order to settle his account, expecting to be paid, as usual, by the public, for that he never heard from any person, before last Saturday, that he was to be paid any other way; that some time since he received a letter from mr. Boyd that justice Young, the waggon master general wanted to see him about this affair, and desiring him to come to Philadelphia; but that when he left home he set off for the head of Elk, not intending or thinking to come to Philadelphia, and after he was at the head of Elk, determined to come here for the sake of getting his money; that colonel Mitchell told him the executive council wanted to see him; that he had no other reason to think the public were to pay him, but that he was ordered out in his tour of duty by mr. Boyd.

JESSE JORDAN.

Sworn 1st Feb. 1779, before me, PLUN. FLEESON

copy examined, T. MATLACK, Secretary.

Philadelphia, ss.

DAVID COCHRAN, being duly sworn, maketh oath, That his team was one of those belonging to Jesse Jordan's brigade, above-mentioned; that he drove it himself; that they were twelve teams in num∣ber; that they came out in consequence of orders from colonel Andrew Boyed, under the waggon law of this state, to perform their tour of duty; that the deponent ever thought they were in the public employ, until they were near Egg-harbour, when the circumstance of their being denied provisions was told to them by Jesse Jordan; that deponent would not have come out willingly, if he had known that he was to be employed about private business; that deponent's waggon was loaded with fails and furniture of a vessel, and chessts, at the forks of Egg-harbour, by order of captain Moore, and that he unloaded by order also o captain Moor at Stephen Collins's in Second-street; that after returning home, his team was ordered out again in about eight Page  19days, to finish his tour of duty, and proceeded as far as Pompton plains, towards the North river; that he has hitherto received no pay for his journey to Egg-harbour, or for any part of the time he was first out; that he was present and heard colonel Mitchell tell Jesse Jordan to go to general Arnold, and he would get his orders, the day they set off for Eggharbour; that he was ordered out the second time to finish his tour of duty, having been from home the time they went to Eggharbour only fourteen days, and was out to Pomp∣ton twenty-nine days, or thereabouts, being upon a journey; that he has applied to nobody for pay, ex∣cepting to their waggon master Jesse Jordan; that deponent drew forage and provisions all the time from leav∣ing home, till he returned the first time of his being out under Jesse Jordan, when they went to Eggharbour.

DAVID COCHRAN.

Sworn the first February, 1779, before me, PLUN. FLEESON.

Copy examined, T. MATLACK, Sec'ry.

Philadelphia, ss.

JOHN BOYD, being sworn, saith, That he was out with his team, in the brigade of Jesse Jordan above mentioned, in consequence of orders from colonel Thomas Boyd, to perform his tour of duty; that he thought they were in public employ till the time of taking in his load at one Saltar's, near Egg-harbour, when Jesse Jordan told him, he apprehended they were bringing private property; that he would not willingly have gone if he had known this in time; that he was loaded with loaf sugar and tea, by order of one Clark (he thinks his name was) who accompanied them along with captain Moore from Philadelphia, and unloaded by the orders of the same in Second-street, where the rest did; has seen the house this morning, and they call it Ste∣phen Collins's; that deponent was present, and heard colonel Mitchell order Jesse Jordan to go to general Ar∣nold for orders, the day they set off for Eggharbour; that he drew provisions and forage from the time he left home till he returned; that he has received no pay, nor has applied for any, depending on the waggon-master to do that business; that one of deponent's horses was lamed in the journey, which he thinks prevented his go∣ing again to finish his tour when David Cochran did, and that otherwise he should have gone; that he was not ordered out by colonel Boyd this second time, he having been with Jesse Jordan at colonel Boyd's, and inform∣ed the colonel of his horse's being lame, and the brigade was filled without him.

JOHN BOYD.

Sworn the 1st February, 1779, before me, PLUN. FLEESON.

Copy examined, T. MATLACK, Sec'ry.

Philadelphia, ss.

THIS 29th May, 1779, before Plunket Fleeson, esq personally appeared STEPHEN COLLINS, of the city aforesaid, and being duly affirmed according to law, doth say and declare, That some time about the latter end of October, during the time of the enemy's being at Eggharbour, or thereabouts, several waggons came to this affirmant's house, in Second-street, under the charge and care of a man of the name of Clark, he thinks his christian name was Thomas; that the waggons contained several casks, (he thinks five or six) with loaf sugar, three chests, and three others somewhat broken, of tea, seventeen pieces of coarse woollens, fifty or sixty pieces of coarse linen, five or six boxes of glass, four or five casks of nails, the sails of a schooner, about half a dozen swivel guns; that these are all the articles he at present recollects; that this affirmant sold all these articles upon commission, at the request of — Seagrove; that he was sporken to at different times about the goods by Robert Shewell, — Constable, and that after the sales, he paid the money agreeable to the directions of the three last mentioned persons, about one half to general Arnold, and the remainder among the same three persons; that this affirmant understood, that the above goods were the property of general Arnold, and the others above-mentioned, from the above circumstances, and also, for that general Arnold spoke to this affirmant about paying him, (general Arnold) his part of the money.

STEPH. COLLINS.

Affirmed before me, PLUN. FLEESON.

The judge advocate produced colonel John Mitchell's minute book, to shew that the original entry, the 22d of October, 1778, of Jesse Jordan's waggons, was altered, and the entry of their return from Egghar∣bour, the 30th of October, 1778, was totally obliterated, and called on Timothy Matlack, esq to give evi∣dence respecting these matters.

Page  20 Q. To mr. Matlack, Do you know any thing respecting the erazures and obliteration made in colonel Mit∣chell's minute-book?

A. Having had some business with mr. Mitchell, which remained unfinished, he called to me when I passed by his door, while this matter was altercation, informed me, that the business that was depending between us, was now settled in such a manner, that he could pay the money, and that his clerk would pay it; and re∣quested me to step into a back room, as he wanted to say something to me upon the subject of the certificate of the entry of the waggons, said to be employed by general Arnold, for transporting private goods; he endea∣voured to induce me to believe, that the council of Pennsylvania had, without a foundation, suspected that he had detained some certificates they had requested of him respecting these waggons: he declared, that there was no entry of the discharge of Jesse Jordan contained in his books, nor no other entry, but the entry that he had furnished them with. The only entry that he had furnished to the council was in these words: "1778, Oct. 22, Jesse Jordan w.m. 12 teams, Chester county, went to Egg-harbour, by the direction of general Arnold." This declaration surprised me, as I knew it otherwise, by such kind of evidence as I could not doubt. The evi∣dence that I mean to allude to, is a conversation with Jesse Jordan, who could have no knowledge of any use that could be made of it at that time, who declared, that he saw and read in mr. Mitchell's memorandum-book, an entry of his discharge from the public service, which was after he returned from Egghabour; and as Jordan was a man of reputation, I could not doubt the fact. I told mr. Mitchell, that I had some reason to su∣spect, that the copy he sent to the council was not a genuine one. He declared it was. The acquaintance I had with the fact, induced some surprise at the declaration, and I hesitated some time before I made him any re∣ply. I told him, I should take it as a favour, if he would shew me the book, in order that it might remove the suspicions that were in my mind with respect to the fact. He expressed some difficulty, on account of his not being able to lay his hand on the book at that time, and some reasons of that kind, which appeared to me to be trifling; and I so told him. He ordered his clerk upon that to bring that book, and looked over the book in such a manner, as if he sound some difficulty in recurring to the entry. I mentioned, it was made the twenty-second of October, and he would find it, if he turned to that date. He opened the book at the date, and read the entry. We were sitting close together at the time, face to face, when he read the entry. I knew it con∣tained the words of the certificate he had given; and he then laid the book upon the further end of the table, a∣bout four feet from us. Upon his laying down the book, I observed the alteration, and asked him to hand me the book, that I might look at it. With some hesitation, he handed it. Upon looking at it, I told him, the al∣teration had been made precisely in the manner I was informed it was made. He then declared that the altera∣tion was nothing material, and it was made by his order. As the book lay open, the obliteration struck my eye; and such a one as I had never seen in a book before, according to my recollection: It struck me, that that obli∣teration was on the thirtieth of October, the last entry made that day, the day the waggons arrived from Egg-habour, which had crossed after sunset. After considering the matter some time, I determined to mention what I had seen to the council of Pennsylvania, and mentioned it accordingly. Mr. Mitchell was sent for, and requested to bring the book of entries. He appeared and produced the book, and after he was examined, and much having been said on the subject, he acknowledged, that the entry on the twenty-second of October had been altered by his direction; that the note on the margin originally stood, Gone to Egg-harbour, by order. The word gone being altered to the word went, and the word order, to the word direction, abbreviated. Whe∣ther he acknowledged, that the words, of general Arnold, were added or not, I cannot ascertain. And he ac∣knowledged, that the obliteration of the thirtieth of October, in his book, was ordered to be made by him, and intended to conceal and destroy an entry of the discharge of Jesse Jordan, and his brigade, from public service.

Q Did mr. Mitchell acknowledge, that the words, of general Arnold, stood in the entry, previous to the al∣teration being made?

A. I cannot recollect. At that day there appeared to be some difference in the ink, and I thought the words, of general Arnold, appeared to be added.

Q. court. Did mr. Mitchell say, or intimate, that the alteration of the entry of the twenty-second of Octo∣ber, or the obliteration of the thirtieth of October, was made by the knowledge or advice of general Arnold.

A. I know of no circumstance that should induce a suspicion, that he had made the alteration either with the advice or knowledge of general Arnold.

Q. court. Did you enquire of mr. Mitchell what his motives were for making the alterations and obliteration!

A. Much was said upon the subject, and he put it off in this manner, that he wished not to have it known that such an entry had been made, as he thought the entry was an improper one.

Q. Did he assign any reason why he thought the entry an improper one?

A. I do not recollect that he ever assigned any clear, explicit reason on that subject. It appeared to me, that he was fearful, that if the waggons should be considered as being in public service, he should be blamed for the manner they were employed.

Page  21 Q. by general Arnold. What were the reasons mr. Mitchell assigned to council for his making the alterati∣ons and obliteration in the book?

A. After the acknowledgment of the alterations and obliteration, I believe there were not many questions put to him on that head; to those that were, he answered evasively. The answers, precisely, I cannot recol∣lect.

Q. by ditto. Did mr. Mitchell inform the president and council, that the reason of the alterations being made, was, that the first entry was an improper one, and made by one of his clerks without his knowledge?

A. I am uncertain, whether he gave that as a reason to the council, but I am certain he gave that to me as a reason, and added, that it was a memorandum-book that lay in his office, and the entries were made in it by his clerk, without his knowledge, business being done in his office, as in other offices, by his clerks.

Q. court. Who were to pay for these waggons, and at what price?

A. The pay-rolls were made out at the common pay allowed for waggons in the public service, and the pay∣rolls were sent to general Arnold, by order of mr. Mitchell, as I understood.

Q. by general Arnold. Did the president and council send for mr. Jordan, with respect to the pay of the waggons?

A. Not that I know of or recollect. I believe the fact was, they desired mr. John Mitchell to send for him to give evidence before the committee of congress.

Q. by do. Did Jesse Jordan complain to the president and council that he was refused payment, previous to their desiring colonel Mitchell to send for him, to give evidence before the committee of congress?

A. The general complaint respecting the employment of the waggons was made to council by An∣drew Boyd waggon master of Chester county, through James Young waggon master of the state. The council expected that Jesse Jordan would be in the city in consequence of their request to John Mitchell to send for him, and did not send for him that I know of or recollect. When Mr. Jordan came to the city, information was given to the council of his being in the city, and a reference being had to the deposition of Jordan, it will appear the manner of his coming to the city. After the de∣position was taken, application was made by him to council, to know how he was to receive his money? and he complained of the ill treatment he had received by a threat from mr. Mitchell of being confined. The council conceiving themselves bound to take care that the waggoners had their money, advanced to Jesse Jordan a sum to pay those who were in the greatest necessity, conceiving that general Arnold was bound to pay, and that a price would be received of him equal to the price of private hire, and the money so advanced stands charged accordingly.

Q. by general Arnold. Did Jesse Jordan at any time complain to the president and council that I had refused him payment of his account which he had presented to me for the hire of his waggons?

A. No otherwise that I knew of, but by his deposition which is before the court, and his applica∣tion, which I have mentioned already, how he should get it?

Q. by do. Was not the complaint respecting the waggons instituted by the desire of the president and council, or some one of them.

A. It was not, to the best of my knowledge.

Q. by do. Do you know nearly the amount which Jesse Jordan charged at first for the hire of his brigade of waggons?

A. No otherwise than what appears by the original pay rolls, which were lodged in my office by Andrew Boyd, and which I now deliver to the court.

A Pay Roll of my brigade of waggons in the service, ordered from Philadelphia to Eggharbour by general Arnold, October 16, 1778.

Page  22
John Boyd entered Oct. 18, and were 12 days in service, with his waggon and four horses,75s.£. 45
David Cochran entered Oct. 18. and were 12 days in service, with his waggon and four horses,do.45
Thomas Gibson entered 18 Oct. and were 12 days in service, with his waggon and four horses,do.45
Andrew Gibson entered Oct. and were 12 days in service, with his waggon and four horses,do.45
Samuel Gibson entered Oct. and were 12 days in service, with his waggon and four horses,do.45
Joseph Boogs entered Oct. and were 12 days in service, with his waggon and four horses,do.45
Jacob Weldon entered Oct. and were 12 days in service, with his waggon and four horses,do.45
Joseph Kile entered Oct. and were twelve days in service, with his waggon and four horses,do.45
Samuel Parke entered Oct. and were 12 days in service, with his waggon and four horses,do.45
Carried over 405
Brought over 445
Eleazer Hamet entered Oct. and were 12 days in service, with his waggon and four horses,do.45
James Steen entered October, and were 12 days in service, with his waggon and four horses,do.45
Jesse Jordan entered Oct. 18. and were 12 days in service, with his waggon and four horses,do.45
Jesse Jordan, a waggon master, at 12s6 per day, 7 10
To the hire of my horse, 5s. per day, and 3
Forage for my horse at 5s. per day, 3
  £ 553 10

The above is copy of an original delivered into my office by Jesse Jordan.

T. MATLACK, Secretary.

A Pay Roll of my brigade of waggons in the continental service, the united states October 16, 1778. ending the 29th of the same, both days included.Dr. D. 14 at £215 per day.
John Boyd entered Nov. 16, and were fourteen days in the service, with his waggon and four horses,3810
David Cochran entered November 16, and were fourteen days in the service, with his waggon and four horses,3810
Thomas Gibson entered Nov. 16, and were fourteen days in the service, with his waggon and four horses,3810
Andrew Gibson entered Nov. 16, and were fourteen days in the service, with his waggon and four horses,3810
Samuel Gibson entered Nov. 16, and were fourteen days in the service, with his waggon and four horses,3810
Joseph Boogs, entered Nov. 16, and were fourteen days in the service, with his waggon and four horses,3810
Jacob Wildon entered Nov. 16, and were fourteen days in the service, with his waggon and four horses,3810
Joseph Kite entered Nov. 16, and were fourteen days in the service, with his waggon and four horses,3810
Samuel Parke entered Nov. 16, and were fourteen days in the service, with his waggon and four horses,3810
Eliezer Hamet entered Nov. 16, and were fourteen days in the service, with his waggon and four horses,3810
James Steen entered Nov. 16, and were fourteen days in the service, with his waggon and four horses,3810
Jesse Jordan entered Nov. 16, and were fourteen days in the service, with his waggon and four horses,3810
Jesse Jordan attending and sede waggon, fourteen days, and finding my 〈◊〉 horse, at £ 1 : 0 : 0 per day,14

17th November 1778. The above account is just and right. ANDREW BOYD, W. M. G. C. C.

The above is copy of an original pay roll delivered into my office by Jesse Jordan; the word "October" having been written in the third line over an erasure, which appears to have been the word November. T. MATLACK, Secretary.

Q. by ditto. Did not the president and council advise mr. Jordan to charge eighty pounds for the hire of each waggon, and to send the account to the attorney-general to prosecute?

A. To answer the question generally, I say, not that I know; but, in particular, I believe they advised him to commence an action for the recovery of the pay, which was allowed for waggons in private service, and I myself told him, that ten pounds a day was the price paid in New-Jersey for that kind of service.

Q. by ditto. Did the president and council write an official letter to mr. Jesse Jordan, with these words: We make no doubt but you will be allowed eighty pounds for the hire of each waggon; and ordering, or advising him to send the account to the attorney-general to prosecute?

A. As I had no expectation of being questioned concerning a matter of that nature, and having none of the papers present, it is impossible I should give a precise answer with respect to the words of a letter written so Page  23long ago; but it was very probable something of that kind was written, as I recollect to have heard senti∣ments of that kind expressed by members of the council of Pennsylvania.

The court adjourned until to-morrow, eleven o'clock.

DECEMBER 29.

THE court met according to adjournment.

Major general Arnold acknowledged, that captain Moore, to whom Jesse Jordan was ordered to apply for orders at Eggharbour, is the same captain Moore, who is named in the protection, as commanding the schooner Charming Nancy.

The judge advocate having produced his evidence with respect to the several charges exhibited against ge∣neral Arnold, the general was desired to proceed in his defence; who called on Timothy Matlack. esq and asked the three following questions:

Q. Did not captain Shewell take the oath of allegiance to the state of Pennsylvania, agreeable to law, by the first day of June, 1778?

A. I do not know.

Q. Did he not inform you that he had?

A. Not that I recollect.

Q. Did captain Shewell produce to the president and council of the state of Pennsylvania, a certificate of his having taken the oath of allegiance to the state, as required by law?

A. Not that I know of or recollect.

Major general Arnold produced the depositions of col. Thomas Proctor, David Beveridge, and Mr. Stephen Collins, which were read, and are as follows:

Col. THOMAS PROCTOR, maketh oath, That in January last, col. North received a let∣ter from Mr. Robert Shewell, in which he requested col. North and col. Proctor would procure him a pass to go to Virginia to settle with Stacey Hepburn; that in March, after mr. Shewell had returned from Virginia, where he had gone by permission of general Scott, he informed deponent of his intentions of coming with his family from the city to live, and that he had taken a house in Maryland to live in; that the reason of mr. Shewell's not leaving the city sooner, was, because of the indisposition of mrs. Shewell; that in May he received a letter from mr. Shewell, informing him, that he was loading a vessel for the use of the American army, and desiring him to procure a passport for that purpose, and for himself and family, for which col. Proctor did not apply for. On the 3d of June, mr. Shewell came to head-quarters, and in∣formed deponent, he had come for a protection for his vessel, that he had loaded her with a cargo suitable the army, and procured a captain to serve him, and afterwards procured a pass from general Arnold, as he understood; that he doth not know of any application being made to general Washington for a pass; that the major general of the day, and not the commander in chief, is the proper officer to make application to for passports.

THOMAS PROCTOR, Col. Artillery.

Sworn to, August 6th, 1778, coram, JOHN IMLAY.

Samuel Ingersoll, commander of the private schooner of war Xantippe, against The schooner Charming Nancy.

DAVID BEVERIDGE, of the city of Philadelphia, merchant, doth solemnly affirm in the above cause, that mr. Robert Shewell applied to the affirmant, on the supposition of the British army be∣ing about to leave Philadelphia, and some short time before they left that city, and asked him if he would be concerned in a voyage, to send a quantity of salt into some American port; that he this deponent said, he had no objection, and actually agreed to be concerned in the said schooner, and to pay two hun∣dred pounds towards purchasing a third of the vessel to load with salt, sugar, and rum, and that he this de∣ponent proposed to clear her out for Newfoundland, for such a cargo, as the most unsuspected port; that William Shirtliff, one of the partners, some time after told deponent, that he could procure a clearance for New-York, for the said schooner, and no where else, upon which affirmant told him, it would do very well; that this deponent some time after, (having heard in the interim, that mr. Shirtliff had divulged the scheme of the voyage to several persons, and spoken too publicly of it) told him he could not be concerned in the matter, and absolutely declined it, having just before this got out of jail, where he had been kept for some time, by order of general Howe; that deponent, when he engaged to be part owner of Page  24said schooner, called on governor Mc Kinley, who was lately from Wilmington, then a prisoner in Phila∣delphia, and asked him, what he thought of sending into Wilmington a cargo of salt, and that the gover∣nor said, it would be very acceptable, but in his situation, being a prisoner, on parole, he did not choose to say any thing on the subject; that deponent asked the governor, if he could not give them something like a passport, certifying the intention of the voyage, in case of accident, which the governor, for the afore∣said reason, declined; that affirmant advised the said company to load her so deep with salt, as to prevent her taking in goods on freight, the refusal of which might cause a suspicion of their intention, in case of her not being fully loaded; that the company accordingly purchased a large quantity of salt, and put it on board; that affirmant understood salt was of so little value at New-York, that no body would carry it there for nothing; that at the time of the enemy's leaving said city, very high prices were given for car∣rying of goods upon freight, and great numbers of vessels, or the owners thereof, were very desirous of having their vessels employed in that way; that he is perfectly satisfied, it would have been much to the advantage of the said company, if they had intended going to New-York, to have thrown the said salt o∣yerboard, and carried goods upon freight, as he has no doubt at all, but the money they might have receiv∣ed for freight, would have been of much greater value than the salt when arrived at New-York, and he thinks of equal value with the said vessel; that Robert Shewell and William Shirtliff, of the state of Penn∣sylvania, were the persons who consulted him on the abovementioned scheme; that they appeared to be owners of the said schooner, as they acted upon all occasions as such, both as to planning the voyage, load∣ing her with their goods, and fitting her out; that at the time of purchasing the said salt, it sold for about three shllings and nine-pence per bushel, but at New-York it was of no value, and store-room would not be given for it, and much had been given away there as he understood, and that no vessels at all carried salt to New-York when the fleet went; that he has no reason at all to suppose it was their intention to go in∣to any port in possession of the enemy; that he went on board the said vessel and viewed her, but saw no guns on board her.

DAVID BEVERIDGE.

Affirmed, August 6th, 1778, corum, JOHN IMLAY.

In the court of admiralty for the state of New-Jersey. Samuel Ingersoll, commander of privateer Xantippe, against Schooner Charming Nancy.

STEPHEN COLLINS of the city of Philadelphia merchant, a witness produced and exa∣mined in this cause on the part of the claimants, on his solemn affirmation saith, that he well knows the schooner Charming Nancy libelled in this cause; that she now is, or lately belonged to, and was the property of William Shirtliff, and co. of the state of Pennsylvania; that some time in last spring the said Shirtliff, and co. applied to this deponent for advice and assistance respecting a plan they were forming at the time the intentions of the enemy became generally known of evacuating the city of Philadelphia, to escape with their property from the enemy; that it was at first proofed to watch a favourable opportunity with a flood tide to escape with the said schooner from the enemy up the river Delaware, but this being thought too hazardous, it was finally concluded upon by the advice of this deponent, as the safest and most eligible mode of effecting the designs of the said company, as well as to serve their country, to load the said vessel with their property, consisting of such articles as were most necessary for their country, and which could not immediately occasion a suspicion of their designs, to clear out for the port of New York, to sail in company with the British fleet from the city of Philadelphia, under pretence of going to New-York, and to watch a favourable opportu∣nity of escaping into some of the creeks emptying into the river Delaware, or into such other port or inlet in the possession of the united states, as they might be able; that in order to prevent suspici∣on taking place with the enemy, this deponent advised the said company to entrust the knowledge of their designs with but few persons, and to contrive matters so as to have their vessel fully loaded with their own effects, least they might be applied to by other persons to carry goods upon freight to New York, and if they should decline so to do, they would encrease the suspicion which had already taken place with the enemy, of their intentions to escape to some port of the united states; that upon the re∣commendation of this deponent, said schooner was laden accordingly; that a large quantity of salt was purchased by the said company, and laden on board the said vessel, for the purpose aforesaid, that he cannot precisely ascertain the number of bushels thereof, but believes it to have been about 1500; that from the knowledge this deponent had of the price of salt at Philadelphia, and all accounts pub∣lic Page  25and private of the price of salt at New York, at the time of purchasing the said salt by the said company, he is satisfied the said salt, if it had safe arrived at New York, would not have sold for more than one half the sum it cost at Philadelphia; that about the time of the enemy's evacuating the said city, it was a very common practice to unload salt out of vessels, for the purpose of taking other articles upon freight, that being much more profitable; that this deponent is fully satisfied, that had it been the intention of the said Shirtliff and co. to go to New York, it would, after they had bought the salt, and put it on board, been really to their advantage to have thrown the said salt into the river, and carried goods upon freight for the people, inasmuch as the said salt would not have sold for near so much money there, as the freight of a cargo of merchandise for other people would have come to; that this deponent well knows that the said Shirtliff and co. loaded and fitted out another vessel nearly obout the time abovementioned, and upon the like plan; that she sailed as he thinks with the first division of the fleet, and it afterwards became a matter of public notoriety in the said city, that the said other vessel made her escape from the enemy into Wilmington creek; that the suspicion of the enemy had been very strong against the said Shirtliff and co. by reason of such large quantities of salt being taken on board, which suspicion encreased to such a degree after it was known in the city of the said other vessel's making her escape, that it was strongly talked of by the enemy of confining in irons the said Shirtliff who was on board the said schooner; that this deponent verily believes that the real and absolute owners of the said two vessels with their cargoes are William Shirtliff, William Constable, Robert Shewell, James Seagrove, and David Shoemaker, he having been consulted by several of them upon the above mentioned plan, having generally understood that they were the own∣ers, and having seen them exercise every act of ownership therein; that the said vessel could not have sailed before the fleet, if it had been the desire of the owners, unless in company with other British vessels; that he is totally clear, and has no kind of doubt, but that from the whole tenor of the said company's conduct, it was their intention to run into some port in the united states not in the pos∣session of the enemy; that he advised them to let some of their goods pass under the name of other persons, to prevent suspicions in case they appeared to be the sole owners; that mr. Shewell left the city of Philadelphia about three or four weeks before the evacuation, with the view of mentioning his plan to some person in authority, and to receive their countenance and assistance, and did not re∣turn till after the enemy left it; that the Charming Nancy came into Philadelphia in the month of December, and was then the property of Coffin and Anderson; that she had no guns on board of her to 〈◊〉 knowledge; that said Coffin and Anderson were followers of the British army.

STEPHEN COLLINS.

Affirmed, 6 August, 1778. coram. JOHN IMLAY.

STEPHEN COLLINS a witness produced in the cause upon his solemn affirmation saith, that he well knows Robert Shewell, William Constable, James Seagrove, and William Shirtliff, the claimants in this cause; that the said Robert Shewell now is, and for many years was, an inhabi∣tant of Pennsylvania; that William Shirtliff now is, and for seven years past and upwards was, an inhabitant of Pennsylvania; that James Seagrove was formerly an inhabitant of New-York, and for about eight months past hath resided in Philadelphia; that William Constable lived in the city of Philadelphia for eight or ten months past; that one or two weeks before the evacuation of the city enemy, the said Constable left the city and went into the country, and did not return till after the enemy left it; that to the best of his knowledge the said Shewell was in the said city at the time the enemy entered it.

STEPH. COLLINS.

Affirmed before me, 6 August 1778. JOHN IMLAY.

Pennsylvania, ss.

I ANDREW ROBESON, register of the acts, matters, causes, and business done and trans∣acted in the honourable the court of commissioners of appeal for the united states of America, do here∣by certify the aforegoing to be true and exact copies of the depositions of colonel Thomas Proctor, David Beveridge, and Stephen Collins taken in the court of admiralty in the state of New Jersey, in the same cause, Samuel Ingersoll, qui tam, &c. libellers against the schooner or vessel called the Charm∣ing Page  26Nancy, her cargo, &c. I having carefully compared the same with the respective originals thereof, contained in and transmitted with the proceedings of the said court of admiralty, to the said court of appeal, and now remaining in my office at Philadelphia.

IN TESTIMONY whereof, I have hereto set my hand and seal at Philadelphia aforesaid, the twenty sixth day of September, Anno Domini 1779.

(L. S.) ANDREW ROBESON, Cur. Ap. Reg.

Major general Arnold not having all his evidence with respect to the first charge, moved the court that he might go into his proofs relative to the second charge, and be at liberty to revert to the first charge when his evidence arrived, which was granted.

With respect to the second charge against him the general produced major Franks' and major Clark∣son's deposition, which was read, and is as follows:

WE do certify, That when the shops in this city were shut in June last, by order of major general Arnold, in consequence of a resolution of congress of the 4th June. We do not know of general Ar∣nold's making any purchases of goods of any kind, directly or indirectly; and we have every reason to be∣lieve that no such purchases were made either by general Arnold or his agents, except a few trifling ar∣ticles to furnish his table, and for his family's use, most of which were supplied him by the quarter master or commissary. General Arnold's invoices, minute and account books being always open to our inspection, confirms us in our belief as mentioned above.

M. CLARKSON, Aid de Camp, DAVID S. FRANKS, Aid de Camp.

ON the third of March, 1779, personally appeared before me, the subscriber, one of the justices of the peace of the city and county of Philadelphia, M. Clarkson and David S. Franks; and being both duly sworn, do declare the above to be true, to the best of their knowledge.

BENJAMIN PASCHALL.

Q. to major Franks. Were you present at justice Paschall's when major Clarkson made oath to the contents of the paper you have heard read?

A. I was; and that is the paper which major Clarkson signed, it having been written by him.

Q. by general Arnold to major Franks. What do you know about she shutting up the shops and stores in Philadelpia?

A. The day after I came into town, which was the day general Arnold came, general Joseph Reed, who is now president of the state of Pennsylvania, and myself met. He told me that they were selling goods in town, and advised me to send a crier round to prohibit the sale of goods. I at first agreed to it, but afterwards thought it was doing more than I had a right to. I met him again, and told him that I would put it off until general Arnold came. When general Arnold came to town, general Reed came to his quarters, and upon consulting with him, wrote a proclamation, which I think was the same that was published, with some alterations.

Q. court. Were the alterations made in it, material?

A. I believe not.

Q. Are you positive that general Reed drew up the proclamation?

A. I saw general Reed at the table drawing it up; general Arnold and mr. Boudinott were in the room at the time.

Q. by general Arnold. Do you know of my having given licences to purchase goods, though applica∣tions were made by my intimate friends for them?

A. I do not know of your intimate friends having asked for licences to purchase goods; but I know that many applications were refused, and I know of no licences being granted to any person to pur∣chase goods.

Q. by do. Do you know at what time the shops and stores were opened, and every body permitted to purchase?

A. I do not know the particular time?

Q. by do. Do you know whether general Arnold, or any person by his orders, directed any goods to be laid by for his use?

A. No; except some trifling articles from the commissary and quarter master.

Page  27 Q. by general Arnold. Do you know of any articles being laid by, except some trifling articles for my own use, the use of my family, for general Washington, and for one or two other officers?

A. No; except two pipes of wine, which were afterwards drank in the family!

Q. by general Arnold. Do you know whether the two pipes of wine were purchased or laid by previ∣ous to the shops being opened?

A. I don't recollect that they were purchased before the shops were opened.

Q. court. Do you know whether any of the articles that were laid by, were taken from the shops previous to the legal opening of them?

A. I do not.

Q. by general Arnold. Were not all the articles of clothing of consequence that were supplied me, which are mentioned to have been for general Washington and several other officers, as well as myself, supplied by the clothier general or his agent?

A. I believe they were.

Q. by do. Do you know what time Congress arrived in Philadelphia?

A. I do not. They were there the fourth of July.

Q. by do. Were not the shops open at that time?

A. They were.

Q. by the court. Do you know whether general Arnold purchased any part of the Charming Nancy or her cargo?

A. I do not of my own knowledge; but I have heard general Arnold say he did, and I have also heard Mr. Seagrove say he did.

Q. court. Was it previous or subsequent to general Arnold's granting the pass?

A. It was subsequent.

The court adjourned until to morrow eleven o'clock.

DECEMBER 30.

The court met according to adjournment.

Major general Arnold adverted to the first charge, and proceeded to produce evidence respecting it.

Q. by general Arnold to Timothy Matlack, esq Do you know whether the owners of the Charm∣ing Nancy voluntarily remained with the enemy?

A. Mr. Shewell did as I understand. I understood it from him.

Q. by do. Did Mr. Shewel assign his reason for remaining with the ememy?

A. If he assigned any reasons I do not recollect what they were?

Lieutenant colonel Hamilton being sworn,

Q. by general Arnold. Do you know Mr. Seagrove's general political character?

A. I have heard it frequently discussed, and very different opinions entertained of it. Many were of opinion that he was warmly attached to the American cause, and others that he was not. He had a com∣mercial connection of a very delicate nature with a mr. Mc Evers, reputedly a disaffected person, which was supposed by those acquainted with him to have restrained his political conduct, and made him less active in favour of America than he otherwise would have been; others considered him as a man of address, who wished to stand fair with both parties, though in reality more friendly to the opposite party than to us. I have heard several liberal men speak of his situation with a degree of compassion, as producing an opposition be∣tween his principles and his private connections. My own opinion of him was favourable, from a general idea of his integrity, and from a particular circumstance which happened as our troops were evacuating New York. I was among the last of our army that left the city; the enemy was then on our right flank, between us and the main body of our army. At about three miles from town, on our march out, mr. Sea∣grove was at a house, the name of which I forget, in company with several ladies and gentlemen, he left them, and came up to me with strong appearances of anxiety in his looks, informed me that the ene∣my had landed at Harlaam, and were pushing across the island, advised us to keep as much to the left as possible, to avoid being intercepted; the information he gave us, I believe, was not true, as to the place where he said the enemy had landed, they having in fact landed in a different place, but he could not have framed it for any bad purpose, because the advice he gave us must have been good and proper in any event, as it was known that the enemy had not landed any troops in the north river on our left, by inclining to which course we stood the best chance of avoiding that body which had landed on our right. The favourable impressions I before had of mr. Seagrove were confirmed by this incident, not so much from the nature of the transaction, as from an appearance of sincerity and concern strongly pictur∣ed Page  28in his countenance; which had the more weight as he remained in the city, and might have run some risque from what he did. At an early period of the war he entered into an independent company, but the company afterwards came to nothing.

Q. by do. Has not the political conduct of Mr. Seagrove since confirmed the favourable impressions you had before of him?

A. It has, so far as it has come to my knowledge.

Q. by ditto to major Franks. Do you know Mr. Seagrove's general political character?

A. I knew nothing of his political general character of my own knowledge, previous to your giving the protection for the Charming Nancy; but I have understood that he was considered as a whig. Since that period I have been in actual service with him.

Q. by do. Do you know the political general character of the persons who were owners of the Charm∣ing Nancy, previous to my giving the protection for her?

A. I never knew either mr. Shirtliff or mr. Constable before I went to Philadelphia, or saw them in my life before, that I remember. I knew mr. Shewell before the protection was granted, and always supposed him to be well affected to America. He was in one of the militia companies in Philadelphia, some time before the enemy got possession of it.

Q. court. Did he tell you his reasons for staying in Philadelphia?

A. He did.

Q. court. What were they?

A. The impracticability of removing at the time; his wife having been brought to bed and dangerously ill. He told me frequently that his intentions were to remove out of town.

Q. by general Arnold. Did captain Shewell inform you that he had taken the oath of allegiance to the state of Pennsylvania, previous to my granting him the pass?

A. I think he did, and said previous to the time directed by the state of Pennsylvania; and I under∣stood from him that he had taken it out of town, and had a certificate of it.

Q. by the court. Did he inform you at what place and before whom he took the oath of allegiance?

A. He did not that I remember.

Q. by general Arnold. Did you understand, at the time captain Shewell applied to me for the protec∣tion, that he produced to me a certificate of his having taken the oath of allegiance to the state of Penn∣sylvania, agreeable to law?

A. I don't know what passed at the time, but I understood from him at that time, that he had a cer∣tificate of that nature.

Q. court. Did you understand how long mr. Shewell had been out of Philadelphia before he obtained the protection from general Arnold?

A. He was time enough out to take the oath of allegiance to the state of Pennsylvania, as I under∣stood from him, which was ordered to be taken, I think, by the first of June. I know that mr. Shewell gave his vote at an election in Philadelphia, which he would not have been permitted to give, had he not produced a certificate of his having taken the oath of allegiance by the first of June.

With respect to the fifth charge, major Franks produced in behalf of the general says, That he went to colonel Mitchell's by desire of general Arnold, to know whether he could spare him some waggons to transport some goods that were in danger of falling into the enemy's hands at Eggharbour. He was told, either by colonel Mitchell or his clerk, that waggons could not be spared at that time, but that soon it might happen, as they expected a number of waggons in town; he brought that answer to general Arnold, and some days after general Arnold told him to go to the quarter master's, to enquire and see if possible the waggon master who was to conduct a brigade of waggons for him, and to order them to go to Egg∣harbour, or the forks, and there to take a captain Moore's directions, respecting what he was to do. When he got to the office he wrote a letter ordering the waggon master so to do, and signed it officially; after which the waggon master went.

Q. by general Arnold. Were not frequent applications made for the waggons before I procured them?

A. I went once myself, as I have said before, and I believe major Clarkson went once or twice, and I believe you went yourself. It appeared to me several applications had been made for them.

Q. by do. Did you not view the request made for the waggons of a private nature, and not officially?

A. I understood you were to pay for the waggons for the transportation of the goods, and that it was a matter of favour in colonel Mitchell to let you have them.

Q. de. How happened it that you signed the order to Jesse Jordan officially?

A. I had no particular directions from you so to do; that from custom I always signed aid de camp at Page  29the end of my name; I myself might have probably thought at that time, that it might have been the means of his executing the order with more alacrity, as dispatch was necessary.

Q. by gen. Arnold. Do you know of my sending to colonel Mitchell for the account of the hire of the waggons, previous to any charge or publication made against me?

A. I do; I went once or twice myself, and I believe you sent major Clarkson.

Q. by do. When I went to camp in February 1779, was not money left with major Clarkson for the purpose of paying for the waggons, and orders given to him accordingly?

A. I think, before we set out to go to camp, the waggon master brought an account against you for the hire of the waggons. You told the man to get it certified by colonel Mitchell, to come in the after∣noon with the certificate, and you would pay him. Whether he came in the afternoon or not, I cannot say; but we set out for camp, and you informed me that you had left money with major Clarkson to dis∣charge that account. Clarkson told you when you returned, that he had not paid the money, as the man had not called, or that he could not find him.

Q. court. How long was the account presented for the hire of the waggons, before you set out for camp?

A. I believe two or three days.

Q. by court. Was that the first time the account had been presented to general Arnold?

A. I think it was, as there had been frequent applications made for the account, and it could not be procured.

Q. by ditto. Did you at any time, through the course of the transaction, understand that general Ar∣nold officially employed these waggons?

A. I understood that general Arnold was to pay for the waggons; that he got them as a favour, and that they were not to transport public stores, but private property for himself and friends, and that he did not order them officially.

Q. by ditto. When you went to colonel Mitchell for the waggons, did you inform him that they were wanted to transport private property?

A. I did. I told him that the goods were in imminent danger, and told him, that the loss of so many goods would be a loss to the continent, as we wanted goods.

With respect to the last charge against the general, Mr. John Hall was produced, who was sworn.

Q. Did you make the alterations in colonel Mitchell's minute book, of the twenty-second of Octo∣ber, and the obliteration in the same book, of the thirtieth of October, respecting Jesse Jordan's wag∣gon?

A. I did.

Q. Did you make the original entry yourself with or without orders?

A. I made it myself without orders.

Q. Did you make the entry in the margin respecting the waggon?

A. I did.

Q. With or without orders?

A. Without any orders.

Q. What was the original entry?

A. As far as I can recollect, it was, Gone to Eggharbour, by order; or went, I am not certain which.

Q. Were the words, of general Arnold mentioned in the first entry in the margin?

A. They were not.

Q. When was the addition of the words, of general Arnold made, and what was the reason of it?

A. It was made in the course of one day, or two days, and it was made to assist my memory.

Q. Did you make the alteration with or without orders?

A. I made it without orders.

Q. What was the reason of your making the alteration?

A. The first reason was, I thought it was not good English, and when I came to reflect on it, I made the alteration, thinking I worded the entry improper.

Q. What was the reason of your changing the word order to direction?

A. I can give no reason for it.

Q. To whom did general Arnold make application for waggons to go to Eggharbour?

A. Major Franks or major Clarkson came to colonel Mitchell's office, where I was, and made the ap∣plication to me, in colonel Mitchell's absence.

Q. In what manner was the application made?

Page  30 A. The application was, that he, general Arnold, wanted a brigade of waggons, and to send the waggon master to him for directions: It was not made in writing.

Q. Did either major Franks or major Clarkson mention for what purpose the waggons were wanted?

A. Not that I remember.

Q. court. Did colonel Mitchell speak to you respecting the waggons, previous to the application?

A. He did not.

Q. court. Did he converse with you on the subject afterwards?

A. Not until some time a January.

Q. court. What passed between you then?

A. When Jordan came to town, sometime in January, and had his pay roll made out, colonel Mit∣chell told him, he must go to general Arnold, and get his pay. I then turned to the book, and saw he had been from the twenty second to the thirtieth of October. Colonel Mitchell told me, that it should not be there at all, and had no business in the book, as general Arnold was to pay the hire of the waggons, and he was angry with me on account of it, upon which I took up my pen and obliterated the entry of the thirtieth of October, determining in my own mind, that col. Mitchell should never give me a frown for it again, and that it should not appear in the book.

Q. court. Did you understand why the hire of the waggons should become a private charge to general Arnold?

A. I then understood by colonel Mitchell's mentioning what I have said to me, that they had been sent to transport property that was not the public's.

Q. Had you at any time any conversation with Jesse Jordan, or any of the waggoners employed in that affair, on the subject?

A. Not until after Jordan returned from Eggharbour: When he returned, I went and made a mark of his return, and told him to make his pay roll out: He said, he had not time to do it then, but would when he came to town again.

Q. court. What conversation passed between you and Jordan when he returned again?

A. Col. Mitchell was in the office when he produced his pay roll; he handed the pay roll to colo∣nel Mitchell, who looked at it. Colonel Mitchell turned to me, and asked, whether Jordan had receiv∣ed any orders for forage? I answered, No; and he asked Jordan himself whether he had received any forage? he said, he had got an order for forage, and on being asked by colonel Mitchell from whom, he said, from colonel Hilzeimer at the stables. The colonel sent up to mr. Hilzeimer, to know what number of days he had got. I don't recollect the number of days that he got an order for from mr. Hil∣zeimer, but colonel Mitchell mentioned, that he must make out his pay roll at the price, as if he had got no forage, and was angry at his having got forage, and that general Arnold was to pay him, and desired him to go and repay mr. Hilzeimer the amount of what forage he had received from him. Jordan, as far as I recollect, made out another pay roll.

Q. court. Had you ever any conversation with general Arnold, about the waggons?

A. No.

Q. Did general Arnold know of any of these entries being made, or the alteration of them, previous to your doing it?

A. Not to my knowledge.

Q. court. Did general Arnold ever see the book, to your knowledge?

A. Not to my knowledge; it was a book that lay on the desk in common, to make memorandums.

Q. court. Did Jesse Jordan, or any of the waggoners employed at that time, tell you whether they considered themselves in public or private employ?

A. I don't recollect that he or any of them did.

Q. court. Was the original entry in the margin the usual mode of entry?

A. I do not recollect.

Q. by general Arnold. Did I not make several applications for the waggons before they were sent?

A. I do not recollect that you did.

Q. When was the obliteration made?

A. About the latter end of January.

Q. Do you know of the council of Pennsylvania making application for a transcript of the entries?

A. I did hear colonel Mitchel say something about it, but not previous to the obliteration being made.

Q. Did colonel Mitchell or any other person direct you to make the alterations or obliterations?

Page  31 A. He did not, nor any other person.

The court, for want of evidence, adjourned until Tuesday next eleven o'clock.

JANUARY 4. 1780.

The court met according to adjournment, and adjourned for want of evidence until Friday next, eleven o'clock.

JANUARY 19.

The court did not meet agreeable to the lest adjournment, but met this day agreeable to his excellency the commander in chief's order, which is as follows:

Head-Quarters,Jan. 18, 1780.

THE court martial, whereof major general Howe is president, is to meet to morrow morning, eleven o'clock.

Major general Arnold proceeded in his defence, and with respect to the first change against him, pro∣duced an exemplification of the decree of the court of admiralty for the state of New Jersey, respecting the schooner Charming Nancy, which being read, is as follows:

In the court of admiralty of New-Jersey. Samuel Ingersoll, qui team, &c. v. Schooner Charming Nancy, &c.

IT appearing unto me, from the verdict of the jury impannelled, sworn and affirmed in this cause, upon the evidence produced to them, That the facts set forth in the claim of Robert Shewell, Wil∣liam Shirtliff, James Seagrove and William Constable, are true: I do thereupon adjudge and decree, That the schooner Charming Nancy, with her tackle, apparel, furniture and cargo, be acquitted, re∣leased and discharged from the capture made by the said Samuel Ingersoll and Joseph Cooke.

JOHN IMLAY.

September 22, 1779.

Pennsylvania, ss.

I ANDREW ROBESON, register of the acts, matters, causes and business done and trans∣acted in the court of commissioners of appeal for the united states of America, do hereby certify the above to be a true copy of the decree passed and published in the above cause, by the honorable John Imlay, esquire, judge of the admiralty of New-Jersey, and transmitted by the said court, in the re∣cord of the said cause, to the said court of appeal, and now remaining in my office at Philadelphia.

In testimony whereof I have hereto set my hand and seal, at Philadelphia, the thirty-first day of December, Anne Domini 1779.

ANDREW ROBESON, Reg. R.

The general, with respect to the second charge, produced a deposition of Elias Boudinot, which being read, in as follows:

Mr. Boudinot's state of facts, relative to general Arnold's shutting up the shops in Philadelphia, in 1778, as far as he can recollect, given at general Arnold's request.

IT will be necessary to premise, that the transactions referred to happened eighteen months ago; since which I have been afflicted with a severe indisposition for ten months: therefore cannot but speak with great dissidence as to particular circumstances.

Being at Philadelphia when general Arnold took possession of the city, I called on him several times, and found him in a state of health, which I thought rendered him unequal to the fatigue of his then station. He was much crowded with business, and I ventured to warn him of the ill consequences of so much attention to it, and advised to several regulations I thought necessary. He shewed me certain resolutions of congress relative to the goods, that should be found in the city, until the arrival of joint committees of congress and the executive council, and the public officers who were to purchase for the army, or something to this effect.

I advised the general to the issuing of public orders, to prevent the selling of goods until the arrival of the committees aforesaid, and also to nominate a number of the citizens of established character, to superintend and regulate the little affairs of the citizens in the mean while, so as to prevent his being perplexed with the civil as well as military department; and I mentioned several gentlemen, whose political characters I thought he might depend on. While we were talking, mr. Joseph Reed, (now his excellency the president of the state) then also a member of congress, came in and told the general he had been making a few memorandums of some little matters which he (mr. Reed) thought Page  32necessary for his attention, and which otherwise might escape the general's notice. Mr. Reed then read them from a paper he produced, and I immediately told him they were very similar to what I had just been recommending to the general, and repeated to him what I had been saying. He re∣plied, that he had the substance of it down, except one or two points, which one of us immediately added to the paper he had. The general then begged, that we would draw up what we thought necessary, and he would have it printed. Mr. Reed then sat down and drew up a draught of what he thought proper, and I believe I corrected it, but am not certain. I cannot with certainty ascer∣tain the particulars of this draught, but and clear in my own mind, that it contained the amount of what we both advised the general to, and particularly to the prevention of the sale of goods, until the orders of congress were complied with. And my reason for this is, that I well remember to have advised several friends to be careful not to sell the next day, as such a public prohibition had gone to the press.

ELIAS BOUDINOT.

Bostenridge,January 3, 1780.

Sworn in the presence of general Arnold, and at his request, the 8th day of January, 1780. Before JOHN LAURENCE, Judge advocate.

With respect to the last charge, the general produced colonel Mitchel, d. q. m. g. who being sworn, says, About the middle of October last, general Arnold sent for me; on my waiting on him, he informed me he wanted ten or twelve waggons to go to Eggharbour to bring some goods, which were in danger of fall∣ing into the enemy's hands, and that he would pay the expence. I informed him, I had none at that time could be spared from public service; but when there was, I would send the waggon master to him. He asked me, if there was not waggons sent to Eggharbour with forage and provisions, and if they could not bring a load back for him. I answered, yes, there were several sent, but I believed they were now re∣turning, that if I had occasion to send any more with either provision or forage, and there was no public storm to bring up, they might load for him, and it would save the public half the expence, as he must pay the hire back; this he seemed pleased with, but not having occasion to send any of the articles above-mentioned, the general sent to me several times to know, if I could let him have the waggons; my an∣swer was, he should have the first could be spared without injury to the public service. On the 22d of October, Jesse Jordan, a waggon master from Chaster county, came to town with twelve towns; a me∣morandum 〈◊〉 which was part in the memorandum book. A considerable quantity of stores being for∣warded to 〈◊〉 river, and some continental terms coming in, which were not expected, and the gene∣ral being desirous to have the waggons sent, to save the property at Eggharbour from falling into the hands of the enemy, I desired mr. Jordan to go to general Arnold, who wanted him to go to Egghar∣bour, and that he would pay him, and give him his directions. Mr. Jordan accordingly want from me, and, I believe, called on the general. From that time I heard nothing farther on the subject, till mr. Jordan had returned, when he was told to call on general Arnold for his pay; in answer to which he said he would not stay at that time to make out a pay roll, but would return and get his pay, or words to that effect. And after he was gone home some time, I asked one of the clerks if he heard whether Jordan was paid by general Arnold. I think he said he did not know. I afterwards saw the general, who told me the waggon master had not called on him for his pay, and desired when I saw him I would let him know, or words to that purpose. I desired my clerk to be careful that mr. Jordan's hire was not paid in my office, and to pay no rolls without my approbation. From this time, about the beginning of November, I heard nothing of the matter that I can recollect, till the secretary of the executive council wrotes me for what information I could give them respecting the waggons sent by general Arnold to Eggharbour, to which request I gave the following answer, dated the 19th January.

Philadelphia,19th January, 1779.

Sir,

I THIS day received an order signed by the secretary of the honourable council of this state, requesting I would give them information respecting a brigade of waggons under the conduct of Jesse Jordan, waggon master from Chester county; the council having been informed that I sent them to Eggharbour to convey private property to this city. I shall at all times be ready to give your excellency and the honourable council every information you think necessary for the good of the public, or this state in particular, which relates to my office, or the business of the department; as I have no desire to conceal any part of my conduct as a public officer, having conducted the business under my direction with integrity and justice to the public. The following are the state of the facts required, viz. In the month of October last, at Page  33the time the enemy had landed some troops at Eggharbour, general Arnold desired I would furnish him with a brigade of 〈◊〉 which he wanted to send to the Jerseys, and that he would pay the hire of them, they being wanted to remove property, which was in imminent danger of falling into the enemy's hands. I informed him he should have the waggon master of the first brigade, which could be spared from the public service, sent to him, when he would give him such orders as he pleased. Accordingly, about the 22d of October mr. Jordan was sent to the general to receive his directions, having at that time sent forward a large supply for the army, &c. When Jordan returned, he was desired to make out his account to general Arnold, to be paid. I do not know where the loading was stored, nor whose property it was, further than what is before mentioned. A greater number of continental teams corning in than I expect∣ed, enabled me to comply with general Arnold's request without any inconvenience to the service. If there is any thing further in which I can satisfy your excellency and the council, I will wait on you at any time with pleasure.

I have the honour to be, &c. J. M.

His excellency Joseph Reed, esq

Which I afterwards learned they sent a copy of to general Arnold. His excellency the president and coun∣cil requested general Greene to direct that mr. Jordan, a waggon master in his service might be sent for; on which I sent two expresses to enquire if he was in the quarter master's department, and if so, to send him up to wait on the president and council; but they returned with information that he was not in the service. This I informed his excellency of, who, if I can recollect, and to the best of my memory and recollection, said the council had laid the matter before congress, and therefore it was not necessary to send again for him. I offered to send any orders of his, by express or otherwise, as he thought proper. The next I heard of this affair was on the 30th of January, when mr. Jordan came to town, and called at my office. I told him to go to general Arnold for his pay, that I had nothing to do with it, and asked him why he did not call for it long before that time. He answered he had been sick, and could not come to town, and I think said he was sick when he returned from Eggharbour. I told him he must wait on the president and council before he left town; that they had sent for him, and it was necessary he should call on them. I also asked him if he had made any complaints to colonel Boyd, and for what reason he did make such complaints. He said, he had made none, nor had he seen colonel Boyd since his return from Eggharbour; but he believed some of the waggoners had made some complaints which he had never seen. On this he went from me, as I believe, to general Arnold, and returned with a note from him to me, as follows, viz.

THE waggons were sent to me the 22d, and discharged the 29th, and were employed eight days each, is 96 days, at

N. B. If colonel Mitchell will make out the account, I will pay it, as the waggons were not sent in on purpose for me, I think it will be right to pay only for the time they were employed.

(Signed) B. ARNOLD.

Saturday.

To which I answered immediately,

SIR,

MR. Jordan is entitled to pay from the day he left home, and as he was not employed in public ser∣vice, but sent to you on his arrival, it is but just he should be paid by the person who employed him; but if you order I should pay him any part of the time due him for hire of his teams, I will obey your order.

I have the honour to be, with respect, Sir, your most obedient, humble servant, J. MITCHELL.

January 30, 1779.
Hon. major general Arnold.

This answer was sent directly to the general. Whether mr. Jordan went to him then or not, I do not recollect; but on producing his pay roll, I found he had charged as if he received forage, which surprized me much, not having been informed or known he had drawn any forage for more than one day; on which I sent to the forage master to know the truth of it, who returned me an account that he had drawn forage. I then desired he would make out his pay roll as if he had not forage, and to pay the amount of the forage to Owen Biddle, Esq agent for the com. gen. of forage. Mr. Jordan had made Page  34an account out for two days more than he was entitled to. I told him of it, and the mode established for payment of teams, and that it was agreeable to the waggon law, and the opinion of the late waggon mas∣ter general, James Young, esq He seemed not contented with this deduction of two days at first, but on my assuring him it was the usual and customary time, and offering to shew him several pay rolls settled agreeable to the law, and what I then said, and that I insisted on the matter being settled before he left town, as I wished to be clear of any further trouble with it, and desiring him not to neglect to call on the president of this state, and informing him where he lived, he asked for paper, pen, and ink, and liberty to make out his pay roll in the office, all which were granted him, he seemed to me perfectly satisfied, con∣tented, and in good humour. I assisted him in bringing out the amount, and I believe the clerk cast it up for him. He left me in this disposition, and went to general Arnold to receive his money, but soon return∣ed and said, the general was out. I told him to call on him again, and let me know if he refused to pay him. From that time I never saw mr. Jordan, but once at some distance. General Arnold called on me on the Monday, Tuesday, or Wednesday following, I cannot recollect which, and asked me if I heard anything of mr. Jordan; that he wanted to pay him; that he was going out of town; that he would leave the money with major Clarkson, and requested I would send mr. Jordan to him to receive his mo∣ney; but if he would not come, begged I would send for major Clarkson, who would bring the money. I have omitted to mention in the proper place, that on mr. Jordan's return, he was told to call on general Arnold for his pay; in answer to which he said, he would not stay at that time to make out his pay roll, but would return and get his pay, or words to that purpose. On looking at a memorandum book in the office, kept to assist my memory and my clerks only, I saw the words, "Gone to Eggharbour, by order of general Arnold," opposite to the word Jesse Jordan, w. m. 12 teams, Chester county, as here put down. I told the clerk, general Arnold did not give me orders to send him, and therefore it should be, "Went to Egghar∣bour by directions of general Arnold," which he immediately altered; and on observing on the other side, 30th, Jesse Jordan returned from Eggharbour, I told the clerk, as I did not think I had any concern with the waggons after they had been sent to general Arnold, that those words were unnecessary, and desired he would strike it out, which he did immediately. This happened the week after Jordan was at my office last. On general Arnold's return, he sent to let me know, he wanted a certificate of what passed respect∣ing the waggons and the payment. As I wished to avoid any further concern in this matter, I did not go to wait on him, till he sent several times. When I waited on him, He was in his chamber; he told me what he sent for me was, to give him a certificate of what I knew respecting the waggons he sent to Egg∣harbour, and what I knew respecting his desire to pay them, as the council had charged him with refusing to pay them. I answered, I was very desirous to have no further concern in the affair; that I had in∣formed the president and council what I knew of it, a copy of which I believed he had, and that I had also given a committee of congress what information I could; that I would freely go before any authority that had right to enquire into it, and give my testimony, but I could not give any certificate, or have my name in the public papers, which might subject me to disagreeable answers, as the papers were full of vindictive and abuse on many respectable characters. He said, it was very cruel and hard to be refused a true state of the matter, and shewed me a paper he had wrote, I believe read it, I also read it, when he ask∣ed me, if it was the true state of the matter. I answered, it might be near it, but if I signed any I would write it myself; that the words were not expressed as I would do, if I gave any, but still requested he would not insist on it, and wished he would excuse me; and also said, I would relate the matter, if he would not publish it; but his answer was, that would not do, as he wanted the facts to publish. I endeavoured to excuse myself, but he earnestly requested, as a gentleman, I would give him a state of the matter, and requested I would take the paper home, and send him a certificate. I told him, I would consider of it, and let him know. On full consideration, I was still desirous of avoiding any thing that was to be pub∣lished with my name; but on his sending to me several times for a certificate, I wrote one, which, on consulting a friend, whose opinion I esteemed, he thought an improper one, on which I was deter∣mined to give a copy of my letter to his excellency, of the 19th January, which is before recited; but from the words, on Saturday, the 30th January, as recited in the former part of this narrative, was added as what passed respecting the payments. This I sent to the general, who returned it the next morn∣ing, desiring I would send him a certificate. I told the gentleman who brought it, I could give no other than that. He said he believed it would not do. I answered I would do no more. After∣wards the paper he gave me, was sent for, (as I kept no copy, do not recollect the contents) which I returned. The general afterwards called on me, and requested I would give him a certificate. I assured him I could give no other, and wished he would excuse me. He seemed displeased at my Page  35answer, and said another gentleman's influence, naming him, was greater than his. I assured him I was not influenced by any one, and only wanted to avoid any publication, but that he might have the let∣ter I wrote him. He took it, and left me, as I thought displeased. And thus this matter ended, having had no conversation with the general on the subject since.

On the 18th of February, I received a letter from colonel Pettit, a. q. m. gen. enclosing a letter from the secretary of council, desiring a certificate of the entry of the waggons sent to Eggharbour, of the fer∣ries they crossed, and of their return; to which gave the following answer:

Philadelphia,18th February, 1779.

Dear Sir,

IN answer to your's of this morning, I have to inform you, that I have no other entry of Jesse Jordan, w. m. than a memorandum of his coming to my office, on the 22d October last, when he was desired to call on general Arnold, who wanted him to go to Eggharbour, that he would pay him, and give him di∣rections. From that time I conceived mr. Jordan's waggons to be totally discharged from being under my directions. I therefore neither gave him orders to go to any ferry, or any kind of instructions, but what is mentioned above. I do not know at what ferry he passed, either going or returning. I shall at all times most cheerfully give the president and council every information and satisfaction, on this or any other transaction in my department, which they may require. All that I know of the matter, I have communicated to them.

I am with sincere esteem, dear sir, your's, &c. J. M.

On the 23d or 24th of February, colonel Pettit called on me for a certificate of the entry; as it was esteemed by the council to be one, I gave him one immediately. The 22d I received another letter from colonel Pettit, requesting I would give a certificate of an entry of discharge of the waggons, or that there was none. To this I gave the following answer, vis.

Dear Sir,

I RECEIVED your note of this morning. Am sorry to find the honourable president and council should think any information was with-held from them by me, or any gentleman in the department. I am conscious, I have never refused or delayed giving them any information that was required. My letter to you of the 18th, was as full, and conveyed every intelligence I could give you. There is no entry of discharge, or of mr. Jordan's teams, or any other entry whatever, save the one I gave you the 20th instant, which was fully contained in mine of the 18th. The reason was there fully explained.

I am, dear sir, your's, &c. J. M.

Colonel Charles Pettit, a. q. m. gen.

On the 23d of February, colonel Pettit called on me to ask me for the memorandum book, to shew to the council. I told, he should have any book I had, with pleasure, from this time to the 25th, when I was directed to appear before council, by their order of the 24th.

Q. by general Arnold. After the waggons had been employed, and previous to any charge made a∣gainst me for the same, did I not several times send to you for the account, or to direct the waggon master to call on me, that I might pay him?

A. You did.

Q. by ditto. Did mr. Jordan ever inform you that I had refused payment?

A. Jordan did not tell me that you had refused to pay him, but had refused to pay the pay roll, as it was made out, and I understood from you, that you wanted to know what you had to pay him.

Q. by ditto. Do you know whether Jesse Jordan saw me, after his pay roll was properly made out?

A. I do not; but he told me he called, and you were not at home.

Q. by ditto. Do you know the reason why he did not see me after his pay roll was made out, to get his money?

A. I do not know, having no conversation with him after the answer before given.

Q. by ditto. When you gave Jesse Jordan orders to call on me for instructions, did you think he un∣derstood that he was discharged from the public service?

A. I am not certain that he understood it so, but that was my meaning, as I was busy at the time, and did not explain myself more particularly. I had usually given written instructions, but did not give Jor∣dan any, and for this reason I thought he understood he was discharged from the public service.

Q. Were these waggons drawn from the state of Pennsylvania for the public service?

Page  36 A. Yes.

Q. Was not a great demand made on the state of Pennsylvania by you, about that time, or a short time previous to it, for waggons for the public service?

A. Yes, for a considerable number, but the number I do not recollect, in consequence of applications made from different departments to me for that purpose.

Q. Were these waggons part of the number that were demanded?

A. I believe they were.

Q. Did general Arnold know of there having been a great demand made on the state for waggons, when he applied to you for a number of them?

A. I believe he did.

Q. Did you consider general Arnold's application to you for waggons as a request, or an official order?

A. General Arnold being commanding officer in the state, he made that request to me, and I conceiv∣ed it as my duty to oblige him as my superior officer in every thing in my power, which I would not have done to any others officer in the united states, who was then present. General Arnold having made that request to me, and telling me the reason, that it was to remove property that was likely to fall into the hands of the enemy, I complied with it, thinking it was my duty to do so, he paying all the expence.

Q. Were not general Arnold's orders during his command in Philadelphia generally couched in terms of request or desire?

A. They were generally polite, and such as one gentleman would write to another.

Q. Did you conceive that you would have been accountable officially to general Arnold for your con∣duct, had you refused a compliance with his request for the waggons?

A. I did not consider that matter at the time the request was made.

Q. Did you conceive yourself at liberty either to comply with the request or refuse it?

A. From the request being frequently repeated, I conceived that I would not refuse it without incurring his displeasure, as commanding officer.

Q. Had you thought the request official, would you not have complied with it without a repetition?

A. Had it been communicated to me in writing, I should have complied with it immediately.

Q. court. Did you think the refusal of the request would or could have been treated as a disobedience of orders?

A. I did not think of it in that point of view at all. General Arnold having requested of me waggons to bring off property them in danger of falling into the hands of the enemy, I conceived it my duty to let him have them, as soon as it could be done without injury to the public service, be paying the whole expence.

Q. Did you put these waggons into general Arnold's hands in the usual course of your official business?

A. General Arnold having requested of me waggons to bring off property then in danger of falling into the hands of the enemy, I conceived it my duty to let him have them, as soon as it could be done, without injury to the public service, he paying the whole expence.

Q. Did not the waggon master of the state of Pennsylvania, in his letters, tell you, the waggons could not go out of the state, and remonstrate against the great call?

A. There was a hundred and fifty waggons called for from the quarter master of the state of Jersey; the time I do not recollect, but believe it to be some weeks before Jordan's waggons were sent to Egg∣harbour. Upon that request being made to furnish them the waggon master general of the state of Penn∣sylvania remonstrated against the great call for waggons, and gave as a reason that no waggons were to be sent to the state of Jersey, to carry stores from thence to the army, in consequence of which, none were sent to my knowledge.

Q. Do you know whether general Arnold knew of this remonstrance?

A. I believe he did, but cannot be certain of it.

Q. What reasons had you to suppose the general knew of the remonstrance?

A. No other than that the general was usually acquainted with every transaction I was, in the de∣partment, of that nature, and this matter was much talked of, not in his presence that I recollect; and I believe some of the delegates of the state of Pennsylvania had a meeting with the waggon master general on that subject.

Q. by general Arnold. Don't you recollect when I applied for the waggons, that I requested the favour of you, if they could not be spared from the public service, to let your people hire me private waggons?

A. At one time when you spoke to me upon the subject, you mentioned the words than you have now mentioned, and I told you it was impossible it could be done, or I would do it with pleasure. You then said, as soon as they could be spared from public service, you would be glad to have them.

Page  37 Q. When you sent the waggon master Jordan to general Arnold, did you inform general Arnold that he was in public service with the waggons?

A. I sent no notice to general Arnold at all; only told the waggon master to call on him for his instruc∣tions, and that he would send him to the Jerseys and pay him.

Q. Had Jordan refused a compliance with your orders to go to general Arnold, would you have es∣teemed him accountable to you for his refusal?

A. I would not.

Q. court. Did you on reading general Arnold's note of the 30th of January, conceive that it was ge∣neral Arnold's intention that the public should pay any part of the hire of Jordan's waggons?

A. I conceived from general Arnold's note, that he thought he only ought to pay for the time the waggoners were sent to him until the day they returned; but my opinion was, that he should pay from the time the waggons were called out into public service until they returned home. But I did not conceive that general Arnold meant by that, that the public should pay any part, but that it was a mistake in the man∣ner of calculating the pay.

Q. If you conceived that general Arnold did not expect that the public should pay for any part of the hire of Jordan's teams, what was the reason of your mentioning in your's of the 30th of January, 1779, that if he ordered you should pay any part of the time due Jordan for the hire of his teams, you would obey be order?

A. Because, as commander in chief, I should have considered his written order for that purpose, as a sufficient voucher to produce to the public.

Q. court. Did general Arnold know any thing of the entries made in your memorandum book, or of the alterations or obliteration made afterwards?

A. Not to my knowledge.

Q. court. Were these alterations or obliterations mode in the book previous to an inquiry being made into the general's conduct, or subsequent?

A. The alterations was made immediately after the entry; the obliteration within a few days after the 30th of January, but the particular day I cannot recollect.

Q. Do you know the political general characters of mr. James Seagrove, or captain Robert Shewell, junior?

A. I know very little of either of them, but I have heard and thought before we got into Philadelphia that they were disaffected persons. Captain Robert Shewell, junior, was always thought to be a dis∣affected person. Mr. Seagrove, at New York, paid particular respect to general Washington, and I con∣sidered him at that time as a good whig, but his coming into Philadelphia, while the enemy were there in∣duced me to alter my opinion of him.

The court adjourned until to morrow eleven o'clock.

JANUARY 20.

The court met agreeable to adjournment.

Q. to colonel Mitchell. What time was Jordan's brigade of waggons to continue in the public service, whom they were ordered out?

A. I think the law of the state, to the best of my remembrance, says thirty days.

Q. Did Jordan's brigade of waggons or any part of them continue in the public service, after their re∣turn from Eggharbour?

Not one of them, to my knowledge. I was afterwards told, some of them came out in another bri∣gade, but I did not know them as such.

Q. Was the time they were employed by general Arnold considered by you, or the waggon master of the state, as part of their tour of duty?

A. It was not considered by me, otherwise I should have detained them until it was over; but as they were sent to general Arnold, I did not consider I had any charge of them, not considering them to be in public service. I do not know how the waggon master considered the time they were employed, hav∣ing had no conversation with him upon the subject, to the best of my recollection.

Q. In what manner were waggons usually discharged from the public service, after they had com∣pleted their tour of duty?

A. By paying them for the time they served, and letting them go home. No written discharge being given.

Page  38 Q. How long had mr. Jordan been in town with the waggons under his care, before he was ordered by you to go to general Arnold for instructions?

A. To the best of my recollection, he was ordered to go to general Arnold for instructions the morning I knew of his arrival, but the hour of the day I do not recollect.

Q. Did you not order Jordan to proceed with his waggons to one of the public stores, on his arrival in town, to take a load of stores for camp?

A. To the best of my recollection or knowledge, I did not.

Q. by general Arnold. When I applied for the waggons, did not you tell me, that there were fre∣quently public waggons lying idle in town, when provisions did not arrive to load them, as expected, in which case, they could be spared and it would be a saving to the public, as they were obliged to pay for the hire of the waggons when called out, whether they were employed or not?

A. I do not recollect my telling you so, but the circumstances have happened. At that time there were no more waggons called for from the state, but what could be employed; but a number of conti∣nental teams coming in, which I did not expect, enabled me to let you have the waggons at that time.

With respect to the last charge, dr. Gardiner was produced by the judge advocate, and sworn, upon his being desired to give the court what information he was possessed of concerning it: he said as follows;

That upon the return of Jordan's brigade of waggons from Eggharbour to Philadelphia, he then being in the city, upon public business, was called upon by some persons belonging to the brigade, to visit a sick wag∣goner; be went with them to the continental yard, where the waggons were standing, and finding the man very ill, in the first stage of a nervous fever, he proposed giving him some medicines, and at the same time advised them to send him home, as he, the deponent, supposed his disorder would be tedious. Some diffi∣culties arising with respect to the method of sending him, they at length agreed to try, if the whole brigade could obtain a temporary discharge, upon their promising to return again in a short time, and perform the remainder of their tour. They told him, they did apply, and were accordingly discharged or permitted to return, upon the aforesaid condition. Sometime afterwards, a complaint was made by col. Young, waggon master general of the state of Pennsylvania, to some members of the general assembly, then sitting, with re∣spect to some abuses of the waggons, called out under the law for public service, being employed in private service, and particularly with respect to the misapplication of Jordan's brigade, in removing private proper∣ty from Eggharbour, and at the same time drawing forage and rations from the public magazines. The mem∣bers seemed disposed to have taken up the matter, but being about to rise in a short time, and thinking that the matter might be taken up in another channel, some of the members advised colonel Young to lay the case before the executive authority of the state, which he, the deponent, afterwards heard he did. He then heard but little more of the matter, 'till, he thinks, in the latter end of January, or the beginning of Febru∣ary, when Jordan called at his house in Philadelphia, and told him, that he had considerable delays in receiv∣ing pay for the service of his brigade last fall, and requesting his advice as a friend, what steps would be most adviseable for him to take, to have the matter settled. He, the deponent, asked him for his papers; he shew∣ed him two pay rolls, or one altered pay roll; one charged to the united states, and the other charged to ge∣neral Arnold. The latter, or the alteration, Jordan told him he made in consequence of colonel Mitchell's directions. He likewise shewed him, (the deponent) his orders from general Arnold, signed by a mr. Franks as one of his aides. He asked Jordan what reason general Arnold gave for not discharging the debt. He answered, that general Arnold was not willing to pay for more than six or seven days service, which was the time he was performing his journey from Philadelphia to Eggharbour and back again. He advised Jordan to apply to the executive authority of the state, and accordingly went with him to mr. Bryan's, who was then vice president of the state. He likewise accompanied the vice president, and mr. Clingan, one of the dele∣gates of the state of Pennsylvania, and Jordan, to the president's.

Q. Had you any other information that Jordan's brigade of waggons was discharged from the public service, or permitted to return, upon their promising to return again in a short time and perform their tour of duty, but what you had from the waggoners?

A. None.

Q. court. Do you know to whom they applied for permission to return home?

A. I do not; but I was present when they made the agreement to apply, and they agreed to apply to colonel Mitchell.

Q. court. Do you know whether Jordan's brigade returned to complete their tour of duty?

A. Not as Jordan's brigade. One of the waggoners being sick, and Jordan's quitting the service at that time, several of the waggoners came out under another waggon master; but I cannot say whether they came out to complete their former tour of duty or not.

Page  39 Q. by general Arnold. Did Jesse Jordan inform you that I had refused him payment for the hire of his waggons?

A. Jesse Jordan informed me that he went to colonel Mitchell to get his pay, having his pay roll drawn in its usual form; that colonel Mitchell informed him that the pay roll was wrong, that the united states were charged, but you ought only to be charged; that agreeable to colonel Mitchell's orders he altered the pay roll or drew a new one, I cannot tell which, in which he charged you instead of the united states; that after the pay roll was made out in that manner, colonel Mitchell gave him a note to you, and desired him to call on you, which he said he delivered to you, and when be called, you refused paying him for the number of days charged in the pay roll, which were twelve or thirteen, and made some difficulties as to paying him for six or seven days; that he then returned to colonel Mitchell with a note or message from you, with respect to the number of days he was in service; that when he came to colonel Mitchell he again sent him back to you; not finding you at home, he returned to colonel Mitchell's, and after telling him of it, Jordan said he would give over any attempts to get the money in that manner; that he was employed by Mr. Boyd, and would apply to him about it; upon which colonel Mitchell told him he must not attempt to go away without settling it, or he would put him in the guard house; he further told me, he put his papers quiet∣ly in his pocket and slipped off, being fearful that he should be put in the guard house, and he told me he did not make any other attempt to get payment at that time.

Q. by general Arnold. Did you not understand that there was some intimation given by some of the council to colonel Boyd, colonel Young, or Jordan, or some other person, to make a complaint respect∣ing the waggons; or was the complaint made without the knowledge or desire of the council or some member of it?

A. No member of the council, to my knowledge, influenced any person to make the complaint.

Q. by do. Do you know whether Jesse Jordan called on the president and council voluntarily, or was sent for when he was paid a sum of money for the hire of his waggons?

A. I believe he came voluntarily.

Q. by do. Do you know whether the president or any member of the council advised or wrote a letter to Jordan desiring him to make out his account, and charge eighty pounds for each waggon, and to apply to the attorney general to commence an action for the money?

A. I do not.

The judge advocate, in addition to the other evidence before the court, desired permission to produce a certificate of the speaker of the house of assembly of the state of Pennsylvania, to shew how the com∣plaint by the executive council of the state of Pennsylvania against major general Arnold, for employing Jesse Jordan's brigade of waggons, originated, which was granted. The certificate was produced, and authenticated by dr. Gardner. On being read, it is as follows:

THIS is to certify, that some time in the fall of the year 1778, during the sitting of the house of as∣sembly, and near the close thereof, James Young, esq waggon master general of the state, applied to me as speaker of the house, informing, that he had proof of a brigade of waggons, called out under the law of the state, being employed for private purposes; at the same time requesting that a supplement might be made to the law, to prevent like abuses in future. But as the house was greatly hurried with other important business, and were anxious to rise, I mentioned the matter to his excellency the president, and some other members of the council, who thought it would be best for the waggon master to lay the affair before council in writing; in consequence of which, some weeks after, information was given to council.

JOHN BAYARD.

Philadelphia,Jan. 11, 1780.

The court adjourned until to morrow eleven o'clock.

JANUARY 21.

The court met agreeable to adjournment.

Mr. Nicholson was produced by the judge advocate relative to the second charge against the general and sworn. After he was examined, the judge advocate moved that the matters he mentioned be not insert∣ed in the proceedings of the court, as not applying to the charge against the general. The court having considered them were of opinion, that they did not apply to the charge against the general, and should not be inserted in the proceedings.

The evidence being closed, major general Arnold addressed the court, as follows:

Page  40

Mr. president, and gentlemen of this honourable court,

I APPEAR before you, to answer charges brought against me by the late supreme executive coun∣cil of the commonwealth of Pennsylvania. It is disagreeable to be accused; but when an accusation is made, I feel it a great source of consolation, to have an opportunity of being tried by gentlemen, whose delicate and refined sensations of honour, will lead them to entertain similar sentiments concerning those who accuse unjustly, and those who are justly accused. In the former case, your feelings revolt a∣gainst the conduct of the prosecutors; in the latter, against those who are deserved objects of a prosecution. Whether those feelings will be directed against me, or against those, whose charges have brought me be∣fore you, will be known by your just and impartial determination of this cause.

When the present necessary war against Great Britain commenced, I was in easy circumstances, and enjoyed a fair prospect of improving them. I was happy in domestic connections, and blessed with a ris∣ing family, who claimed my care and attention. The liberties of my country were in danger. The voice of my country called upon all her faithful sons to join in her defence. With cheerfulness I obeyed the call. I sacrificed domestic case and happiness to the service of my country, and in her service have I sacrificed a great part of a handsome fortune. I was one of the first that appeared in the field; and from that time, to the present hour, have not abandoned her service.

When one is charged with practices, which his soul abhors, and which conscious innocence tells him, he has never committed, an honest indignation will draw from him expressions in his own favour, which on other occasions, might be ascribed to an ostentatious turn of mind. The part which I have acted in the American cause, has been acknowledged by our friends, and by our enemies, to have been far from an indifferent one. My time, my fortune, and my person have been devoted to my country, in this war; and, if the sentiments of those who are supreme in the united states, in civil and military affairs, are al∣lowed to have any weight, my time, my fortune, and my person have not been devoted in vain. You will indulge me, gentlemen, while I lay before you some honourable testimonies, which congress, and the commander in chief of the armies of the united states, have been pleased to give of my conduct. The place where I now stand justifies me in producing them.

Valley Forge,7th May, 1778.

Dear sir,

A GENTLEMAN of France having very obligingly sent me three sets of epaulets and sword knots, two of which, professedly, to be disposed of to any friend I should choose; I take the liberty of presenting them to you and general Lincoln, as a testimony of my sincere regard and approbation of your conduct.

I have been informed by a brigade major of general Huntington, of your intention of repairing to camp shortly; but notwithstanding my wish to see you, I must beg that you will run no hazard by com∣ing out too soon.

I am sincerely and affectionately, Your obedient, G. WASHINGTON.

Head quarters, Morris Town,May 8th, 1777.

Dear sir,

I AM happy to find, that a late resolve of congress, of the 2d instant, has restored you to the conti∣nental army.

The importance of the post at Peek's Kill, and its apendages, has become so great, that it is now ne∣cessary to have a major general appointed to the command of it.

You will therefore immediately repair to that post, and take charge of it, 'till a general arrangement of the army can be affected, and the proper province of every officer assigned.

I am, sir, Your most obedient servant, G. WASHINGTON.

In CONGRESS, 11th July, 1777.

Ordered,

THAT an extract of general Washington's letter of the 10th, so far as it relates to general Arnold, Page  41be sent to him; and that he be directed to repair immediately to head quarters, and follow the orders of general Washington.

Extract from the minutes, CHARLES THOMSON, secretary.

Extract of a letter from general Washington to congress, dated Morris Town, July 10th, 1777.

"IF the event mentioned by general Schuyler should not have happened, we cannot doubt, but gene∣ral Burgoyne has come up the lake, determined, if possible, to carry his point, I mean, to possess himself of our posts in that quarter, and to push his arms further. Supposing this not to have happened, as our continental levies are so deficient in their number, our security and safety will require, that aids from the militia should be called forth, in cases of emergency. If it has, there is now as absolute necessity for their turning out to check general Burgoyne's progress, or the most disagreeable consequences may be appre∣hended. Upon this occasion, I would take the liberty to suggest to congress, the propriety of sending an active, spirited officer to conduct and lead them on. If general Arnold has settled his affairs, and can be spared from Philadelphia, I would recommend him for this business, and that he should immediately set out for the northern department. He is active, judicious and brave, and an officer in whom the militia will repose great confidence. Besides this, he is well acquainted with that country, and with the routs and most important passes and defiles in it. I do not think he can render more signal ser∣vices, or be more usefully employed at this time, than in this way. I am persuaded his presence and activity will animate the militia greatly, and spur them on to a becoming conduct. I could wish him to be engaged in a more agreeable service, to be with better troops; but circumstances call for his exertions in this way, and I have no doubt of his adding much to the honour he has already acquired."

Examined with the original.

GEO. BOND, dep. sec. of congress.

In CONGRESS, May 20, 1777.

Resolved, That the quarter master general, be directed to procure a horse, and present the same pro∣perly caparisoned, to major general Arnold, in the name of this congress, as a token of their approbation of his gallant conduct, in the action against the enemy, in their late enterprize to Danbury, in which ge∣neral Arnold had one horse killed under him, and another wounded.

In CONGRESS, November 4th, 1777.

Resolved, That the thanks of congress, in their own name, and in behalf of the inhabitants of the thir∣teen united states be presented to major general Gates, commander in chief of the northern department, and to majors general Lincoln and Arnold, and the rest of the officers and troops under his command, for their brave and successful efforts, in support of the independence of their country, whereby an army of the enemy of ten thousand men, have been totally defeated; one large detachment of it, strongly posted and entrenched, having been conquered at Bennington; another repulsed with loss and disgrace from sort Schuyler; and the main army of six thousand men, under lieutenant general Burgoyne, after being beaten in different actions, and driven from a formidable post and strong entrenchments, reduced to the necessity of surrendering themselves upon terms honorable and advantageous to these states, on the 17th day of October last, to major general Gates.

If these testimonies have any foundation in truth (and I believe the authority of those who gave them will be thought at least equal to that of those who have spoke, and wrote, and published concerning me in a very different manner) is it probable that after having acquired some little reputation, and after having gained the favourable opinion of those, whose favourable opinion it is an honour to gain, I should all at once sink into a course of conduct equally unworthy of the patriot and soldier? No pains have been spared, no ar∣tifice has been left untried to persuade the public that this has been the case. Uncommon assiduity has been employed in propagating suspicions, invectives, and slanders to the prejudice of my character. The presses of Philadelphia have groaned under libels against me, charges have been published, and officially transmit∣ted to the different states, (and to many parts of Europe, as I am informed) before they were regularly ex∣hibited, and long before I could have an opportunity of refuting them; and indeed every method that men ingeniously wicked could invent, has been practised to blast and destroy my character. Such a vile pro∣stitution of power, and such instances of glaring tyranny and injustice, I believe are unprecedented in the Page  42annals of any free people. I have long and impatiently wished for an opportunity of vindicating my re∣putation, and have frequently applied for it; but the situation of affairs at the beginning and during the continuance of the campaign, necessarily, and against the general's inclination, prevented it, until now. But now it is happily arrived, and I have the most sanguine hopes of being able to avail myself of it, by satisfying you, and, through your sentence, by satisfying the world, that my conduct and character have been most unwarrantably traduced, and that the charges brought against me are, false, malicious, and scandalous.

The first charge is, Granting a protection, &c. &c.

In answer, The permission was given on the fourth day of June 1778, when, though I had no formal instructions from the general to take the command in Philadelphia, I had intimations given me that I should be found upon for that appointment. The gentleman who applied for the protection in behalf of himself and company, was not them residing in the city with the enemy; he had taken the oath of allegiance to the state of Pennsylvania, required by its laws, as appeared by a certificate which he produced to me. What his political character, and those of the others, in whose behalf he applied to me, were, I pretend not to ascertain; nor do I mean to become their advocate, any further than the justice due to an injured character requires. I think it has been clearly proved by the testimony of several gentlemen (not parties in this matter) that the general character of those gentlemen was unexceptionable, some of them had taken an active part in favour of these states; and the tenor of their conduct since, will I presume justify a fa∣vourable opinion of them. It is enough for me to shew that their intentions with regard to this vessel and cargo seemed to be upright, and that the design of saving them for the use of the citizens of the united states, appeared to be laudable, instead of being reprehensible. This appears evident from the depositions of mr. Collins, mr. Beveridge, and colonel Proctor.

Why the protection is viewed as an indignity to the authority of the state of Pennsylvania, I own I cannot discover. This president and council of that state were then in Lancaster; the pass to the vessel was to "sail into any of the ports of the united states of America." To sail into the port of Philadelphia was not the object, the vessel was there already. If there was an encroachment upon the authority of any state, it must have been some other than the state of Pennsylvania. The vessel sailed into one of the ports of New Jersey; the government of that state, though far from being insensible to its ho∣nour, has never complained of the indignity offered to it by my protection; a jury of that state acquitted the vessel by their verdict; and the judge of admiralty of that states confirmed the verdict by his decree, which is in evidence before this honourable court.

It is part of this charge that the permission was granted without the knowledge of the commander in chief, though then present. I think it peculiarly unfortunate that the armies of the united states have a gentleman at their hand, who knows so little about his own honour, or regards it so little, as to say the president and council of Pennsylvania under the necessity of stepping forth in its defence, perhaps it may be of use to hint,

Non tali auxili aget, nc defenseribus istis.

The general is invested with power, and he possesses spirit to check and to punish every instance of dis∣respect shown to his authority; but he will not prostitute his power by exerting it upon a trifling occasion; far less will be pervert it when no occasion is given at all.

His excellency knew, and you, gentlemen, well know, it has been customary for general officers of the army to grant passes, protections for persons and property, to the inhabitants of the united states, who appeared friendly to the same. The utility of the measure, which was evident in the present case, with∣out any precedent, I conceive to be a sufficient justification. The protection was designed only to pre∣vent the soldiery from plundering the vessel and cargo, coming from the enemy, that proper authority might take cognizance of the matter. I must beg leave to mention a resolution of congress in point. I do not recollect the date. It was, however, previous to the pass. That honourable body therein promise, to all persons in the enemy's service, for their encouragement and reward, all vessels and car∣goes that they shall seize upon, in possession of the enemy, and bring into any of the united states. If such reward is given to our enemies, can it be esteemed criminal to protect the property of the citizens of these united states, when coming from the enemy. Certainly not. At the time the protection was given, I had no doubt of the right or propriety of giving it. I am now confirmed in my opinion, and that the resolution of congress I have mentioned, warrants the measure. But, it strictly considering the mat∣ter, it shall be thought that I exceeded my power, by granting the protection, I hope his excellency gene∣neral Washington, and this honourable court, will do me the justice to believe, that it was not out of any Page  43disrespect to his authority, but an error in judgment, as I was convinced at the time I had a right to grant the pass; and had I refused I should have thought myself culpable.

The second-charge consists in having shut up the shops and stores on my arrival in the city, so as even to prevent officers of the army from purchasing, while I privately made considerable purchases for my own use, as is alledged and believed.

The resolution of congress,

directs me to take early and proper care to prevent the removal, transfer, or sale of any goods, wares, or merchandize, in the possession of the inhabitants of the city, until the property of the same shall be ascertained by a joint committee, consisting of persons appointed by con∣gress, and of persons appointed by the supreme executive council of the state of Pennsylvania.
My instructions from the general mention,
that I will find the objects of my command specified in the re∣solution of congress, and that the means of executing the powers vested in me were left to my own judgment.
How could I better prevent the removal, transfer, or sale of any goods, wares and mer∣chandize, in the possession of the inhabitants of the city, "than by shutting up the shops and stores?"

If "the officers of the army were prevented from purchasing," it was because the sale of any goods was directed by congress to be prevented, in which the sale of goods to officers was necessarily included; and it was in order (as is stated in the proclamation prohibiting the removal, sale, or transfer of goods)

that the quarter master, commissary and clothier generals, might contract for such goods, as were wanted for the use of the army.

What I have already mentioned, renders it surprising that the shutting up the shops and stores should be made a charge against me by any man, or body of men: what I am going to mention, renders it peculi∣arly surprising that this charge should he made against me by the gentleman, who is now president of the state of Pennsylvania. It is in evidence before this honourable court, that this very gentleman proposed to one of my aids, that he, even before my arrival in town,

should publish an order to prevent the selling any goods or merchandize; that this very gentleman was urgent to have this done; that this very gentleman, after my arrival in town, drew up a proclamation for that purpose, which was pre∣sented to me.
The same gentleman now exhibits the same measure as an article of accusation against me.

The last part of this charge is of a serious nature instead: it is that, while I prohibited others from pur∣chasing, I privately made considerable purchases for my own benefit, "as is alledged and believed:" if this part of the charge is true, I stand confessed, in the presence of this honourable court, his vilest of men; I stand stigmatized with indelible disgrace, the disgrace of having abused an appointment of high trust and importance, to accomplish the meanest and most unworthy purposes: the blood I have spent in defence of my country, will be insufficient to obliterate the stain.

But if this part of the charge is void of truth; if it has not even the semblance of truth, what shall I say of my accusers? what epithets will characterize their conduct, the sentence of this honourable court will soon determine.

It is "ALLEDGED and BELIEVED," that I privately made considerable purchases for my own benefit. I am not conversant in the study of jurisprudence; but I have always understood, that public charges ought to have some other foundation to rest upon, than mere unsupported

allegation and belief.
Who "alledge and believe" this accusations? None, I trust, but the president and council of Pennsylvania; because, I trust, none else would alledge and believe any thing tending to ruin a character, without sufficient evidence. Where is the evidence of this accusation? I call upon any ac∣cusers to produce it: I call upon them to produce it, under the pain of being held forth to the world, and to posterity, upon the proceedings of this court, as public defamers and murderers of reputation.

They have indeed produced the evidence of a certain colonel Fitzgerald, to prove that he saw an anoni∣mous paper in the hands of major Franks, one of my adds. I shall take no notice of the paper he alludes to, as it cannot be deemed a proof, or admitted as evidence; but the manner of his procuring a sight of the paper, I cannot help taking notice of: lodging in the same house with major Franks, in his absence, colonel Fitzgerald's curiosity prompted him to examine major Franks's papers, when he stumbled upon a secret too big for him to keep. Was not this a gross violation of the confidence subsisting between gen∣tlemen? but what shall I say of the use this gentleman made of his secret? I will not say it was a disgrace to the character of a soldier and gentleman. I will leave it to the gentleman's own feeling, which (if he in not callous) will say more to him than I can possibly do on the subject. In the nature of things, it is impossible for me to prove, by positive and direct evidence, the negative side of a charge: but I have done all that in the nature of things is possible.

Page  44 On the honour of a gentleman and soldier, I declare to gentlemen and soldiers, that the charge is false.

My aids de camp were acquainted with my transactions, and had access to my papers:

My invoice, my minute and account books, were always open to their inspection.
Could I have made consider∣able purchases, without their knowledge?
and yet they did not know of my making any purchases of goods of any kind, directly or indirectly; and they had every reason to think, that no such purchases were made, either by me or my agents, except a few trifling articles to furnish my table, and for my family's use; most of which were supplied me by the quarter master, commissary and clothier generals.

If I made considerable purchases, considerable sales must have been made to me by some person in Phila∣delphia. Why are not these persons produced? Have my prosecutors so little power and influence in that city, as to be unable to furnish evidence of the truth?

With respect to the third charge of the supreme executive council of the state of Pennsylvania, I think it necessary to make some observations on it, because it is evidently calculated, by a false colouring of a trifling and innocent transaction, to subject me to the prejudice of the freemen of these states, and parti∣cularly of the militia of the state of Pennsylvania.

I am charged

with imposing menial offices upon the sons of freemen of this state, when called forth by desire of congress to perform militia duty; and when remonstrated to thereupon, justifying myself in writing, upon the ground of having power so to do.
The letters which are in evidence before this honourable court, which passed between mr. secretary Matlack and myself, will explain the sole transaction, upon which this general accusation is founded.

By what strained construction the sentiments which I have expressed, "that when a citizen assumes the character of a soldier, the former was entirely lost in the latter," should be extended to a justification of myself, on the mere principal of power, is somewhat extraordinary. My opinion in this matter is confirmed, not only by the sentiments of many of the most enlightened patrons of liberty in this and other countries, but sanctified by the militia law of several free states, both in Europe and America, particularly Switzerland and the state of New-York, where (if I am not mistaken) the militia of the latter, when called forth into continental service, are subjected to the same rules of discipline, with the troops of the united states; the character and conduct of that militia prove the policy of this principle. My ambition is to deserve the good opinion of the militia of these states, not only because I respect their character and their exertions, but because their confidence in me may (as I flatter myself it has hitherto been) prove beneficial to the general cause of America: but having no local politics to bias my voice or my conduct, I leave it to others to wriggle themselves into a temporary popularity, by assassinating the reputation of innocent persons, and endeavouring to render odious a principle, the maintenance of which is essential to the good discipline of the militia, and consequently to the safety of these states. I flatter myself the time is not far off, when, by the glorious establishment of our independence, I shall again return into the mass of citizens: 'tis a period I look forward to with anxiety; I shall then cheerfully submit as a citizen, to be governed by the same principle of subordination, which has been tortured into a wanton exertion of arbitrary power.

This insinuation comes, in my opinion, with an ill grace from the state of Pennsylvania, in whose more immediate defence I sacrificed my feelings as a soldier, when I conceived them incompatible with the duties of a citizen, and the welfare of that state.

By a resolution of congress, I found myself superseded (in consequence of a new mode of appointment of general officers) by several who were my juniors in service; those who know the feelings of an officer, (whose utmost ambition is the good opinion of his country) must judge what my sensations were at this apparent mark of neglect. I repaired to the city of Philadelphia in the month of May, 1777, in order either to attain a restoration of my rank, or a permission to resign my commission; during this interval, the van of general Howe's army advanced, by a rapid march, to Somerset court house, with a view (as was then generally supposed) to penetrate to the city of Philadelphia.

Notwithstanding I had been superseded, and my feelings as an officer wounded, yet, on finding the state was in imminent danger from the designs of the enemy. I sacrificed those feelings, and with alacrity put myself at the head of the militia, who were collected to oppose the enemy, determined to exert my∣self for the benefit of the public, although I conceived myself injured by their representatives. How far the good countenance of the militia under my command operated, in deterring general Howe from marching to the city of Philadelphia, I will not pretend to say; certain it is, he altered his route.

What returns I have met with from the state of Pennsylvania, I leave to themselves to judge, in the Page  45cool hour of reflection, which (notwithstanding the phrenzy of party, and the pains so industriously taken to support a clamour against me) must sooner or later arise.

I will conclude this subject, by reading a letter from mr. Matlack, received subsequent to the letters which have been already read, which I consider as an insult and indignity. The letter will speak for it∣self; the spirit and tendency of it are very obvious.

Philadelphia,March 17th 1779.

Sir,

IT appears to me proper to communicate to you, that I shall, on Saturday evening next, lay before a respectable number of citizens, the several letters which have passed between you and myself, relating to the orders delivered by one of your aids to my son. My intention is, to consult with them on the mea∣sures necessary to prevent effectually, a like insult being offered by you, to any other citizen of this state. I say, by you, because it is intimated in your letter, of the 12th of October, that the matter lies between your major and my son; whereas the order being your order, and my son several years under age, I conceive it to lie between yourself and me. And am, sir,

Your very humble servant, T. MATLACK.

To major general Arnold.

The fourth charge is evidently triable only in a court of common law, I should not therefore notice it at present, did it not add to the torrent of aspersion which has been poured forth against me, and which, if not checked, may leave upon the minds of fellow soldiers and citizens, disagreable impressions, even though I should be acquitted of the charges which are cognizable by the law martial. I therefore beg leave to lay before the court, a certified copy of an indictment preferred against me for this supposed of∣fence, in behalf of the commonwealth of Pennsylvania, with the jurors return.

I EDWARD BURD, prothonotary of the supreme court, and of the courts of oyer and termi∣ner, and general gaol delivery, in and of the common wealth of Pennsylvania, do hereby certify, That at a court of oyer and terminer, and general gaol delivery, held at Philadelphia, for the city and county of Philadelphia, the fifth day of April, in the year of our Lord one thousand seven hundred and seventy nine, before the honourable Thomas Mc Kean, William Augustus Atlee, and John Evans, esquires, justices of the said several courts, a bill was preferred to the grand inquest (who were then and there duly summoned, impanelled, returned, sworn, and affirmed, to inquire for the said commonwealth, and for the said city and county of Philadelphia) in the following words and figures, to wit,

Philadelphia, oyer and terminer,April sessions, 1779.

Philadelphia county, ss.

The jurors for the commonwealth of Pennsylvania, upon their oaths and affirmations, do present, That Benedict Arnold, esq late of the city of Philadelphia, in the county aforesaid, on the first day of December, in the year of our Lord one thousand seven hundred and seventy eight, with force and arms, at the city aforesaid, in the county aforesaid, did unjustly and unlawfully maintain and uphold a certain suit, which was then depending in the court of admiralty of this state, before the honourable George Ross, esq judge of the same court, and in which captain Thomas Houston, commander of the brigantine of war, the Convention, in behalf of himself, and all other persons interested or concerned in the said brigantine, was libeliant against the sloop or vessel called the Active, her tackle, apparel, furni∣ture, and cargo, and Gideon Olmsted, Artemas White, Aquila Rumsdale, and David Clark, for themselves, and also captain James Josiah, commander of the private sloop of war, the Le Gerard, in behalf of himself, and all others concerned in the said private sloop of war, or interested therein, were se∣verally claimants, on the behalf of them, the said Gideon Olmsted, Artemas White, Aquila Rumsdale, and David Clark, against the said Thomas Houston and James Josiah, to the manifest hindrance and dis∣turbance of justice, in contempt of this commonwealth, to the great damage of the said Thomas Houston and James Josiah, and against the peace and dignity of the commonwealth of Pennsylvania.

JONA. D. SERJEANT, att. gen.

Which said bill was then and there returned by the said grand inquest ignoramus; whereupon all and singular the premises being seen, and by the said justices here fully understood, it is ordered by the said justices, that the said Benedict Arnold, esq be discharged; and he was discharged accordingly.

Page  46 In testimony whereof, I have hereto set my hand, and the seal of the said supreme court, the twenty second day of November, in the year of our Lord one thousand seven hundred and seventy nine.

(L. S.) EDW. BURD, pro. sup. court.

Notwithstanding all the influence of the ruling powers of Pennsylvania, which must be well known by several of this honourable court; the unexampled method adopted by the council to prejudice the minds of the citizens against me, previous to a trial, and the daily calumnies invented and industriously circulated to prevent the popular heat from subsiding; the impartiality and good sense of a body of freemen of the city of Philadelphia, were impregnable to all the arts made use of to poison the fountain of justice. And here I cannot but congratulate my countrymen upon the glorious effects of the exertions we have made, to establish the liberties of ourselves, and posterity, upon the firm basis of equal laws. Had it not been for the grand bulwark against the tyranny of rulers, the trial by peers, it is easy to forsee, from the spirit of those who have been my accusers, what must have been my fate. When I reflect on this circumstance, I contemplate, with a grateful pleasure, the scars I have received in defence of a system of government, the excellence of which, though frequently before the subject of my speculation, is now brought home to my feelings.

It is difficult to account for the extraordinary mode pursued by the state of Pennsylvania, to damn my reputation, and for the asperity with which I was persecuted, on any other principle, than one, by which states, as well as individuals, are too often tempted to commit the most flagrant acts of injustice, I mean interest. The sloop Active, which was the object of the suit, which I was accused of unlawfully maintaining, was taken by part of the crew of the vessel, who were Americans, who rose upon the rest, and after having confined the captain and others, were bringing her into port. In this situation she was boarded by a vessel belonging to the state of Pennsylvania, and brought in, and afterwards libelled as a prize taken by themselves. The original captors, who were (some of them) born in Connecticut, my native country, with whose connections I was acquainted, applied to me for my assistance in obtain∣ing them justice. I assisted them both with my advice, my time, and my purse; and though three fourths of the vessel and cargo were, by the lower court of admiralty for the state of Pennsylvania, adjudged to the state captors, this sentence was, by an unanimous opinion of a court of appeals, reversed and adjudged to those whom I patronized, as appears by their decree, which I beg leave to read, with their report to congress, and the resolutions of congress thereupon.

In the court of commissioners of appeal for the united states of America. Thomas Houston, esq &c. app. adv. Gideon Olmsted, &c. appts.

AT a court held at the state house, in the city of Philadelphia, on the twelfth day of December, in the year of our Lord one thousand seven hundred and seventy eight, before the honourable William Henry Drayton, William Ellery, John Henry the younger, and Oliver Ellsworth, esqrs. commissioners appointed by the honourable congress, to hear, try, and determine all appeals from the courts of Admi∣ralty of the several American states to congress, came the parties, as well appellants as appellees, in the above cause, by their respective advocates; and after solemn argument, and full hearing of the said par∣ties, by their said advocates, the said court took time to consider thereof, and held the same under ad∣visement, until the fifteenth day of December aforesaid.

At which day, the said court being again met, proceeded to the publication of their definitive sen∣tence or decree, upon the said appeal; which being read and filed, is in the words following, to wit,

Appeal from the court of admiralty of the state of Pennsylvania. Thomas Houston, esq &c. app. adv. Gideon Olmsted, &c. appts. and claimants of the sloop Active, her cargo, &c.

WE the commissioners appointed by the honourable congress of the united states of America, to hear, try, and determine all appeals from the courts of admiralty of the several states aforesaid, to con∣gress, having heard and fully considered, as well all and singular the matters and things set forth and contained in the record or minute of the proceedings of the court aforesaid, in the above cause, as the arguments of the advocates of the respective parties in the above appeal, do thereupon adjudge and decree, That the judgment or sentence of the court of admiralty aforesaid, be in all its parts re∣voked, Page  47reversed and annulled. And we do further decree and adjudge, That the sloop or vessel called the Active, with the tackle, apparel and furniture, and the goods, wares and merchandizes laden and found on board her at the time of her capture, as mentioned in the claim of Gideon Olm∣sted, Artemas White, Aquila Rumsdale and David Clark, the appellants, be condemned as lawful prize to and for the use and behoof of them, the said appellants; and that process issue out of the court of admiralty aforesaid, commanding the marshal of the said court to sell the said sloop Active, and her cargo, at public vendue, for the highest price that can be gotten for the same; and after deducting the costs and charges of the trial in the said court of admiralty, and the expences attending the sale of the said sloop, &c. that he pay the residue of the monies arising from the said sale unto the appellants afore∣said, their agent or attorney; and we do further adjudge and decree, that the appellees pay unto the appellants in this cause, the sum of two hundred and eighty dollars for their costs and charges by them expended, in sustaining and supporting their said appeal.

December 15, 1778.

WM. H. DRAYTON, JOHN HENRY, WILLIAM ELLERY, O. ELLSWORTH.

(Copy)

Examined with the original, GEO. BOND, dep. sec. of congress.

In CONGRESS, March, 6 1779.

THE committee to whom was referred the report of the committee on appeals of January 19th, 1779, having, in pursuance of the instructions to them given, examined into the causes of the refusal of the judge of the court of admiralty for the state of Pennsylvania, to carry into execution the decree of the court or committee of appeals, report,

That on a libel in the court of admiralty for the state of Pennsylvania, in the case of the sloop Active, the jury found a verdict in the following words, viz. "one fourth of the net proceeds of the sloop Active and her cargo to the first claimants, three fourths of the net proceeds of the said sloop and her cargo to the libellant and the second claimant, as per agreement between them;" which verdict was confirmed by the judge of the court, and sentence passed thereon. From this sentence or judgment and verdict, an appeal was lodged with the secretary of congress and referred to the committee appointed by congress, "to bear and determine finally upon all appeals brought to congress," from the courts of admiralty of the several states:

That the said committee, after solemn argument and full hearing of the parties by their advocates, and taking time to consider thereof, proceeded to the publication of their definitive sentence or decree, there∣by reversing the sentence of the court of admiralty, making a new decree, and ordering process to issue out of the court of admiralty for the state of Pennsylvania, to carry this their decree into execution:

That the judge of the court of admiralty refused to carry into execution the decree of the said com∣mittee on appeals, and has assigned as the reason of his refusal, that an act of the legislature of the said state, had declared that the finding of a jury shall establish the facts in all trials of the courts of admiralty, without re-examination or appeal, and that an appeal is permitted only from the decree of the judge:

That having examined the said act, which is intitled "an act for establishing a court of admiralty," passed at a session which commenced the 4th of August, 1778, the committee find the following words, viz. "the finding of a jury shall establish the facts, without re-examination or appeal," and in the se∣venth section of the same act the following words, viz. "in all cases of captures an appeal from the de∣cree of the judge of admiralty of this state, shall be allowed to the continental congress or such person or persons as they may from time to time appoint for hearing and trying appeals."

That although congress, by their resolution of November 25th, 1775, recommended it to the several legislatures to erect courts for the purposes of determining concerning captures, and to provide that all trials in such cases be had by a jury, yet it is provided that in all cases an appeal shall be allowed to con∣gress or to such person or persons as they shall appoint for the trial of appeals:" whereupon

Resolved, That congress, or such person or persons as they appoint to hear and determine appeals from from the courts of admiralty, have necessarily the power to examine as well into decisions on facts as de∣cisions on the law, and to decree finally thereon, and that no finding of a jury in any court of admiralty or court for determining the legality of captures on the high seas, can or ought to destroy the right of appeals and the re-examination of the facts reserved to congress:

Page  48 That no act of any one state can or ought to destroy the right of appeals to congress in the sense above declared:

That congress is by these united states vested with the supreme sovereign power of war and peace:

That the power of executing the law of nations is essential to the sovereign supreme power of war and peace:

That the legality of all captures on the high seas must be determined by the law of nations:

That the authority ultimately and finally to decide on all matters and questions touching the law of nations, does reside, and is vested in the supreme sovereign power of war and peace:

That a controul by appeal is necessary, in order to compel a just and uniform execution of the law of nations:

That the said controul must extend as well over the decisions of juries as judges in courts for deter∣mining the legality of captures on the sea; otherwise the juries would be possessed of the ultimate supreme power of executing the law of nations in all cases of captures, and might at any time exercise the same in such manner as to prevent a possibility of being controuled; a construction which involves many in∣conveniencies and absurdities, destroys an essential part of the power of war and peace entrusted to con∣gress, and would disable the congress of the united states from giving satisfaction to foreign nations com∣plaining of a violation of neutralities, of treaties or other breaches of the law of nations, and would enable a jury in any one state to involve the united states in hostilities; a construction which for these and many other reasons is inadmissible:

That this power of controuling by appeal the several admiralty jurisdictions of the states has hitherto been exercised by congress, by the medium of a committee of their own members.

Resolved, That the committee before whom was determined the appeal from the court of admiralty for the state of Pennsylvania, in the case of the sloop Active, was duly constituted and authorised to deter∣mine the same:

On passing this resolution, the yeas and nays being required by mr. Searle,

New-Hampshire,mr. Frost,ay,ay.
Massachusetts-Bay,mr. S. Adams,ay, | ay.
 mr. Lovell,ay, ay.
 mr. Holten,ay, ay.
Rhode-Island,mr. Collins,ay, | ay.
Connecticut,mr. Dyer,ay, ay.
 mr. Root,ay, ay.
New-York,mr. Jay,ay, ay.
 mr. Floyd,ay, ay.
New-Jersey,mr. Witherspoon,no. | *
Pennsylvania,mr. Armstrong,no, no.
 mr. Shippen,no, no.
 mr. Atlee,no, no.
 mr. Searle,no, no.
 mr. Mc Clene,no, no.
Maryland,mr. Plater,ay, ay.
 mr. Carmichael,ay, ay.
 mr. Henry,ay, ay.
Virginia,mr. T. Adams,ay, ay.
 mr. M. Smith,ay, ay.
 mr. R. H. Lee,ay, ay.
North-Carolina,mr. Penn,ay, ay.
 mr. Hill,ay, ay.
 mr. Burke,ay, ay.
South-Carolina,mr. Laurens,ay, ay.
 mr. Drayton,ay, ay.
Georgia,mr. Langworthy,ay, | ay.

So it was resolved in the affirmative.

Resolved, That the said committee had competent jurisdiction to make thereon a final decree, and therefore their decree ought to be carried into execution:

On this the yeas and nays being required by mr. Searle,

Page  46
New-Hampshire,mr. Frost,ay, | ay.
Massachusetts-Bay,mr. S. Adams,ay, ay.
 mr. Lovell,ay, ay.
 mr. Holten,ay, ay.
Rhode-Island,mr. Collins,ay, | ay.
Connecticut,mr. Dyer,ay, ay.
 mr. Root,ay, ay.
New-York,mr. Jay,ay, ay.
 mr. Floyd,ay, ay.
New-Jersey,mr. Witherspoon,ay. | *
Pennsylvania,mr. Armstrong,no, no.
 mr. Atlee,no, no.
 mr. Shippen,no, no.
 mr. Searle,no, no.
 mr. Mc Clene,no, no.
Maryland,mr. Plater,ay, ay.
 mr. Paca,ay, ay.
 mr. Carmichael,ay, ay.
 mr. Henry,ay, ay.
Virginia,mr. T. Adams,ay, ay.
 mr. M. Smith,ay, ay.
 mr. R. H. Lee,ay, ay.
North-Carolina,mr. Penn,ay, ay.
 mr. Hill,ay, ay.
 mr. Burke,ay, ay.
South-Carolina,mr. Laurens,ay, ay.
 mr. Drayton,ay, ay.
Georgia,mr. Langworthy,ay, | ay.

So it was resolved in the affirmative.

Resolved, That the general assembly of the state of Pennsylvania be requested to appoint a committee to confer with a committee of congress on the subject of the proceedings relative to the sloop Active, and the objections made to the execution of the decree of the committee on appeals, to the end that proper measures may be adopted for removing the said obstacles; and that a committee of three be appointed to hold the said conference with the committee of the general assembly of Pennsylvania;

The members chosen, mr. Paca, mr. Burke and mr. R. H. Lee.

This, gentlemen, is my cardinal guilt; hence proceeds the vengeance of an interested government a∣gainst me; hence the pain and anxiety I have suffered, in seeing the fair fabric of reputation, which I have been with so much danger and toil raising since the present war, undermined by those, whose posterity (as well as themselves) will feel the blessed effects of my efforts, in conjunction with you and others, in rescuing them from a tyranny of the most cruel and debasing nature.

With respect to the fifth charge, of appropriating the waggons of the state of Pennsylvania, when called forth upon a special emergency, last autumn, to the transportation of private property, &c. &c.

The evidence relative to that transaction, before the court, will, I doubt not, justify my conduct in their opinion. It has been clearly proved by the testimony of colonel Mitchell and major Franks, that the waggons were supplied by the deputy quarter master general upon a private request, and not consider∣ed as in the public service, when employed. Suppose application had been made to me, for waggons, during my command in the city of Philadelphia, for removing property belonging to private persons, which was in danger of falling into the hands of the enemy, and I found the same could be done without injury to the public, should I be justified in refusing the public assistance? Certainly not. Does then the criminality consist in removing the property, because I was interested in it? Had the supplies for the continental army been obstructed by this transaction, or had I endeavoured to make it a public charge, my conduct would certainly have been blame worthy; but as it evidently appears, that neither the one or the other was the case, I flatter myself, that my conduct, instead of being condemned by this honourable court, will be approved, and that an honourable acquittal will follow from the facts I have proved.

What shall I say of the conduct of the president and council of Pennsylvania, respecting the waggons? Page  50They first charge me with employing public waggons to remove private property, insinuating, that the waggon master was refused payment for the hire of his waggons, and that I intended to defraud the pub∣lic. It would have been but candid, had they informed the public, that Jesse Jordan the waggon master had not been refused payment for the hire of his waggons, but that by their influence and advice, he had been prevented calling on me for his pay, that they might have some pretence for instituting an action and this charge against me.

In the next instance, they wrote, or caused to be wrote, a letter to Jesse Jordan, directing him to make out the account of the hire of his waggons, assuring him, that if he charged eighty pounds for the hire of each waggon, (more than double the first account which he had presented to me) they did not doubt of his recovering the whole sum, and directed him to send his account to the attorney general, who had orders to commence an action against me for the same, which he accordingly did; and there is now an action a∣gainst me, depending in one of the courts of Pennsylvania, for upwards of eleven hundred pounds, for the hire of those waggons.

Is it not very extraordinary, that I should be accused and tried before this honourable court, for em∣ploying public waggons, and at the same time, and by the same persons, be prosecuted in a civil court of Pennsylvania, for employing the same waggons as private property.

As to the sixth charge, purporting, that by my recommendatory letter to general Maxwell, to grant a pass to miss Levy to go to New-York, I had violated the resolve of congress, and usurped the authority of the state of Pennsylvania. To attempt a serious refutation, would be as ridiculous as the charge itself. Let the letter wrote on this occasion speak for itself. I kept no copy of it, but well remember the pur∣port, which was nearly as follows:

Sir,

THE bearer, miss Levy, is a young woman of a good character, who has an aged parent that is blind, depending on her for support; she has money due to her from people in New-York, and wishes for a permission to go there for the purpose of collecting it, for the relief and support of her mother, who will be greatly distressed without it. I believe she will not make an ill use of a pass, if granted to her.

I am sir, Your humble servant, M. CLARKSON.

General Maxwell.

As to the seventh charge, of an indecent and disrespectful behaviour to the council of Pennsylvania.

True it is, I refused to obey an arbitrary mandate, (to render to them an account of my conduct) cal∣culated to criminate myself. They complain, that by my refusal their dignity is wounded. Had I obey∣ed, soldiers and citizens might justly have said, that I had betrayed their rights, and wounded their dignity. The very demand was an insult to common sense. I beg leave to observe, that no one has a greater respect than myself for the civil authority, and no one is more convinced of the necessity of supporting it. But when public bodies of men shew themselves actuated by the passions of anger, or envy, and apply their effects to sap the character of an individual, and to render his situation miserable, they must not think it extraordinary, if they are not treated with all the deference which they may think their due.

It is the dignity with which an office is executed, much more than the name, that can ever secure respect and obedience from a free people, and true dignity consists in exercising power with wisdom, justice and moderation. Had I experienced this, and had any unguarded expressions escaped my pen in my letters to the president and council of Pennsylvania, I would cheerfully, in a cooler hour of reflec∣tion, have made an acknowledgment; but they have thought proper to take vengeance for themselves: I shall therefore leave it to the impartial public of America to judge betwixt us.

The anathema of the supreme executive council, closes with observing, "That the discouragement and neglect manifested by general Arnold to civil, military and other characters, who have adhered to the cause of their country, with an entire different conduct to those of another character, are too notorious to need proof or illustration," &c.

I am not sensible, mr. President, of having neglected any gentlemen, either in the civil or military line, who have adhered to the cause of their country, and who have put it into my power to take notice of them; with respect to gentlemen in the civil line and army, I can appeal to the candour of congress and to the army, as scarcely a day passed but many of both were entertained by me; they are the best judges of my company and conduct.

With respect to attention to those of an opposite character, I have paid none but such, as in my situa∣tion, Page  51was justifiable on the principles of common humanity and politeness. The president and council of Pennsylvania will pardon me, if I cannot divest myself of humanity, merely out of complaisance to them.

It is enough for me, mr. president, to contend with men in the field; I have not yet learned to carry on a warfare against women, or to consider every man as disaffected to our glorious cause, who, from an opposition in sentiment to those in power in the state of Pennsylvania, may, by the clamour of party, be stiled a tory: it is well known, that this odious appellation has, in that state, been applied by some, 〈◊〉, to several of illustrious character, both in the civil and military line.

On this occasion I think I may be allowed to say, without vanity, that my conduct, from the earliest period of the war to the present time, has been steady and uniform. I have ever obeyed the calls of my country, and stepped forth in her denfence, in every hour of danger, when many were deserting her cause, which appeared desperate: I have often bled in it; the marks that I bear, are sufficient evidence of my conduct. The impartial public will judge of my services, and whether the returns that I have met with are not tinctured with the basest ingratitude. Conscious of my own innocence, and the unworthy methods taken to injure me, I can with boldness say to my persecutors in general, and to the chief of them in particular, that in the hour of danger, when the affairs of America were a gloomy aspect, when our il∣lustrious general was retreating through New Jersey, with a handful of men, I did not propose to my associates, basely to quit the general, and sacrifice the cause of my country to my personal safety, by go∣ing over to the enemy, and making my peace. I can say I never basked in the sunshine of my general's favour, and courted him to his face, when I was at the same time treating him with the greatest disre∣spect, and villifying his character when absent. This is more than a ruling member of the council of the state of Pennsylvania can say. "as is alledged and believed."

Before I conclude, I beg leave to read before this honourable court a report of a committee of enquiry of congress, on the charges published against me by the council of Pennsylvania, with several letters I did myself the honour to write to congress, and a letter from their committee in answer: I do not presume to offer these as evidence, but as they shew the anxiety I had to have my conduct investigated, and the reluctance of my accusers to bring matters to an issue, I think it incumbent on me as an officer, to lay them before you.

REPORT of the committee of congress on the charges exhibited against general Arnold by the pre∣sident and council of Pennsylvania.

The first, second, third and fifth charges, are offences, triable only in a court martial; that the fourth charge is an offence only of a civil nature, and triable only in a court of common law; that the sixth, seventh, and eighth charges are offences, not triable by a court martial, or common law court, or subject to any other punishment than the displeasure of congress and the consequences of it; that the committee are furnished with evidence, by the supreme executive council on the fifth and seventh charges, to which they beg leave to refer; that the committee of the said executive council, though repeatedly applied to, declined to give any evidence on the rest of the charges, after fruitless application for three weeks, during which time several letters passed between the said executive council and committee, in which letters, the supreme executive council even threaten the committee, and charge them with partiality.

Resolved, That as to the first and second charges, no evidence appears tending to prove the same; that the said charges are fully explained, and the appearances they carry of criminality, fully obviated by clear, unquestionable evidence. The third charge, admitted by general Arnold in one instance, to be transmitted to the commander in chief. The fourth charge, there appears no evidence to prove the same, and that it is triable only in a common law court. The fifth charge be transmitted to the commander in chief.

Resolved, That the recommendatory letter in the sixth charge, is not within the spirit of the resolve of congress, or an usurpation of authority.

Resolved, That the letter in the seventh charge, though not in terms of perfect civility, yet it is not ex∣pressed in terms of indignity; and that after the conduct of the said supreme executive council toward the said general Arnold, and the unexampled measures they took to obtain satisfaction, totally and absolutely preclude all right to concessions or acknowledment.

Resolved, on the eighth charge, that there is no evidence to prove the same.

Mr. President Reed's letter to Mr. W. Paca.

In COUNCIL.

Gentlemen,

Philadelphia,29 January, 1779.

AFTER the conference between your honourable committee and this board on Wednesday last, the Page  52propriety of our farther appearing to congress on that part of the subject, which related to the employ of our public waggons, was considered; and it now becomes my duty to acquaint you, that this council preferring the public good to all other considerations, and more especially to those in which a sense of indignity offered us, may be supposed to mingle, have concluded to give you all the information that is now in our power. In addition therefore to the papers enclosed, I would mention, that if mr. Mitchell's state of that business should appear to be defective, one Jesse Jordan, late a waggon master in the quarter master's department, can give testimony in the matter. We had sent to the quarter master to order him up, before mr. Mitchell's state was given us, but we find he has quitted the service, and we supposing that state of the matter to afford sufficient ground of complaint, have taken no measures since to bring him up for examination.

But while we thus act upon motives superior to the gratification of our own feelings, we think we should be wanting in public duty and spirit, if we concealed; and while we are deliberating upon the measures to which we are competent, for the vindication of our own honour, we must freely, 'though respectfully, declare, that, if in the execution of public duty and the resolves of congress, your officers may frustrate our good intentions, and affront us without feeling any marks of your displeasure, it will greatly discourage our prosecuting any enquiries into public abuses, and executing your resolves farther than the special exigencies and conveniencies of our state should require: for we cannot but feel great re∣luctance to commit the authority and honour of the state, and our own personal feelings, in disputes with persons who, in many cases, may, by that means, be elevated into undeserved consequence.

I am, gentlemen, with great respect, Your most obedient humble servant, (Signed) JOS. REED, president.

Philadelphia,March 17, 1779.

Sir,

I DID myself the honour of writing to you on the 12th ult. to which ask leave to refer. I am grate∣fully sensible of the attention, which congress paid to my request, in appointing a committee of their ho∣nourable body to enquire into the charges published against me by the president and council of Pennsylva∣nia; and having been informed, that the committee have finished their enquiry, and delivered in their re∣port. I pray you, sir, to recommend to congress, to examine, and decide thereon as soon as possible. I am sensible of the multiplicity of business before congress, yet I flatter myself, that they will consider the cruel situation in which I am placed by the persecution of my enemies, and relieve me by a speedy decision.

As an individual, I trust I shall ever have spirit to be the guardian of my own honour; but as the ser∣vant of congress, when attacked by a public body, I consider myself bound to make my appeal to that honourable body, in whose service I have the honour to be; and whilst my conduct and the charges against me are under their consideration, I think it my duty to wait the issue, without noticing the many abusive misrepresentations and calumnies, which are daily circulated by a set of wretches, beneath the notice of a gentleman and man of honour; yet permit me to say, that these calumniators, employed and supported by persons in power and reputable stations, whilst my cause remains undetermined before congress, con∣sider themselves secure, and industriously spread their insinuations and false assertions through these united states, to poison the minds of my virtuous countrymen and fellow citizens, and to prejudice them against a man whose life has ever been devoted to their service, and who looks on their good opinion and esteem, as the greatest reward and honour he can receive. Thus circumstanced, I cannot be charged with undue impatience for soliciting an immediate decision on the charges brought against me; and I flatter myself, that every member of that honourable body must have some idea of what I have suffered on this occasion, and that they will relieve me from a situation, the cruelty of which is beyond my power to express.

I have the honour to be with great respect and esteem, sir, Your most obdient humble servant, B. ARNOLD.

His excellency John Jay, esq

Philadelphia,April 14th, 1779.

Sir,

I FIND by a resolution of congress of the 3d instant, that they have directed his excellency general Washington to call a court martial on the 1st, 2d, 3d and 5th charges contained in the resolves of the Page  53executive council of the state of Pennsylvania, of the 3d of February, the said charges being only cog∣nizable by a court martial.

I cannot but testify my surprize, that a court martial should be ordered to try me for offences, some of which the committee of congress in their report, say,

there appears no evidence tending to prove the same, that the said charges are fully explained, and the appearances they carry of criminality fully obviated by clear unquestionable evidence.
If congress have been induced to take this measure for the public good, and to avoid a breach with this state, however hard my case may be, and however I am injured as an individual, I will suffer with pleasure, until a court martial can have an opportunity of doing me justice by acquitting me of these charges a second time.

As congress have not decided on the 6th, 7th and 8th charges, 'though their committee have acquitted me, I must now beg the favour of their decision on those charges: I ask it as a piece of justice due to a faithful and honest servant, and make no doubt of their immediately complying with my request.

I have the honour to be, sir, Your very humble servant, B. ARNOLD.

His excellency John Jay, esq

Philadelphia,April 26th, 1779.

Sir,

I DID myself the honour of writing to you on the 8th and 12th of February, and again on the 14th instant, respecting the most cruel and unjust attempt made by the president and council of this state, to injure my character, to which letters I beg leave to refer. In consequence of the two former, congress were pleased to appoint a committee to investigate the charges against me, to the end, that I might be, on their report, either acquitted or tried; and though the committee, after three weeks fruitless applica∣tion to the president and council of this state, were not able to obtain any evidence in support of the two first charges, and in their report to congress, say, "That there is no evidence tending to prove the same; that the said charges are fully explained, and the appearances they carry of criminality, fully obviated, by clear, unquestionable evidence."

Yet, I find, by a resolution of congress, of the 3d instant, they have ordered a court martial to try me for those charges, of which their committee have fully exculpated me, and have refused to decide on the report of the committee on the three last charges, which are not cognizable either in a civil law court, or court martial, and of which I still suffer under the imputation, although this committee have fully acquitted me. I must once more beg congress will do me the justice to decide on those charges. I ask for no favour, but justice, and my right; and I flatter myself, when congress consider my past services and suffering in the cause of my country, they will no longer withhold the justice from me I am entitled to, however disagreeable it may be to my cruel and implacable enemies, who, without cause, have a∣vowed their intentions to ruin me, and who, if justice is not denied me, will be held up to the public in their true clours.

Upon application to the secretary of congress, for copies of all the papers relative to the charges against me, I have been informed, that I cannot have the report of the committee of congress, or the letters which passed between them and the supreme executive council, without an order of congress, which I now request, as those papers are absolutely necessary to lay before the court martial, that the affair may appear in a proper point of light. A court martial can never, I presume, suppose congress would have ordered me tried for charges, of which their committee had acquitted me. If therefore the report of the committee, or any other papers, tending to elucidate the affair, is withheld from the court martial, it will, doubtless, operate on their minds to my disadvantage, and a fair trial can by no means be obtained. As the committee of congress have acted as a court of enquiry, I have an undoubted right (agreeable to the customs of all such courts) to the whole proceedings, and every paper relative to the matter. This, I presume, congress will not deny me. I therefore request, that they will be pleased to order copies of those letters, report, &c. delivered me as soon as possible, as the court martial is ordered to sit for my trial on the first of May.

I have the honour to be very respectfully, sir, Your most obedient servant, B. ARNOLD.

His excellency J. Jay, esq president of congress.
Page  54

Philadelphia,May 14th 1779.

Dear sir,

AS you are chairman of the committee on my letter to congress, respecting the report of the commit∣tee and letters of the president and council of this state, I must request the favour of your endeavouring to have your report made to congress as soon as possible, and of knowing when that will probably be, as my trial is positively fixed to the first day of June. If the report is not made in a few days, I shall be deprived of the benefit of those papers, which I conceive to be my right, and absolutely necessary to ob∣tain justice of the court martial.

I am, with great esteem, dear sir, Your most obedient servant, B. ARNOLD.

Honourable William Paca, esq

Dear Sir,

AS congress cannot possibly comply with your request, the committee can make no report, that will be of any service to you. You cannot have a copy of the report you refer to, nor of the letters which passed between the committees, because, on the late conference and accommodation between congress and the state of Pennsylvania, those proceedings are to cease, and not to be brought again into view or discussion. The whole of the evidence, which relates to the charges on which you are to be tried, is transmitted to general Washington, with the charges, and there is nothing kept back, which you could avail yourself of in your defence. As to the resolutions of the report acquitting you of particular charges, they were founded, you know, on ex parte hearing. The committee were obliged to finish the report, and as the executive council, from some difference between their committee and the committee of congress, would not produce the evidence in support of those charges, the committee took up the evidence offered on your part, and passed the resolutions of acquittal; but the executive council and congress having settled the misunderstandings between the committees, and congress not having decided on the report, and the said executive council having offered to produce the evidence before a court martial, the resolutions of the committee can have no operation whatever: when we therefore come to report on your late applica∣tion, we must report, that your application cannot be complied with.

I am, sir, Your obedient humble servant, W. PACA.

May 15, 1779.

This report was never acted upon by congress, the council of Pennsylvania having had sufficient influ∣ence and address to quash any proceedings upon it: my reputation thus became for some time longer a sa∣crifice to what I charitably suppose was deemed by congress a necessary state policy, to which individuals, however inconvenient, must sometimes, without repining, submit.

I have now gone through all the charges exhibited against me; and have given to each such an answer as I thought it deserved. Are they all, or are any of them supported by truth and evidence? or rather, does not each of them appear to this honourable court to be totally destitute of every semblance of a foundation in fact? and yet baseless as they themselves are, they were intended to support a fabric; with the weight of which, attempts were made to crush my reputation and fortunes: I allude to the prelimi∣nary resolution of the council, containing severe but general strictures upon my character and conduct; strictures of such a serious and important nature, that they themselves were sensible the public would not think them justified in making them, unless upon the most unquestionable grounds. Let them now be measured by their own standard. Had they unquestionable grounds to go upon? Why then, in op∣position to every principle of candour and justice, in opposition to their own ideas of candour and justice, did they make and publish resolutions, containing censures of such a high import against me?

An artful appearance of tenderness, and regard for my services, by which the council are pleased to say, I formerly distinguished myself, is held forth in the introduction to their charges. Did they mean by this to pour balsam, or to pour poison into my wounds? I leave it to this court, and to the world to judge, whether they intended it to balance the demerits, they then urged against me, by my former good conduct, as far as it would go; or whether they designed it as a sting to their charges, by persuading the public, that my demerits were so enormous, that even the greatest and most unaffected tenderness for my character, would not excuse them in continuing silent any longer.

If, in the course of my defence, I have taken up the time of the court longer than they expected, they Page  55will, I trust, impute it to the nature of the accusations against me; many of which, though not imme∣diately before you as charges, were alledged as facts, and were of such a complexion as to render it neces∣sary to make some observations upon them; because they were evidently calculated to raise a prejudice against me, not only among the people at large, but in the minds of those who were to be judges.

I have looked forward with pleasing anxiety to the present day, when, by the judgment of my fellow soldiers, I shall (I doubt not) stand honourably acquitted of all the charges brought against me, and again share with them the glory and danger of this just war.

JANUARY 22.

The court met agreeable to adjournment. The judge advocate having stated the evidence relative to the several charges exhibited against the general, the court adjourned until Wednesday eleven o'clock.

JANUARY 26.

The court met agreeable to adjournment, and having considered the several charges exhibited against general Arnold, the evidence produced on the trial, and his defence, are of opinion, with respect to the first charge, that he gave permission for a vessel to leave a port in possession of the enemy, to enter into a port in the united states, which permission, circumstanced as he was, they are clearly of opinion he had no right to give, being a breach of article 5th, section 18th of the rules and articles of war. Respecting the second charge, that although it has been fully proved, that the shops and stores were shut by general Arnold's orders on his arrival in Philadelphia, they are of opinion, that he was justifiable in the order by the reso∣lution of congress of the 5th of June, 1778, and his excellency the commander in chief's instructions of the 18th of June, 1778: and with respect to the latter part of the same charge, the making considerable purchases while the shops and stores were shut, they 〈◊〉 clearly of opinion, that it is entirely unsupport∣ed, and they do fully acquit general Arnold of it. They do acquit general Arnold of the third charge, Respecting the fourth charge, it appears to the court, that General Arnold made application to the deputy quarter master general, to supply him with waggons to receive property then in imminent danger from the enemy; that waggons were supplied him by the deputy quarter master general on this application, which had been drawn from the state of Pennsylvania for the public service; and it also appears, that ge∣neral Arnold intended this application as a private request, and that he had no design of employing the waggons otherwise than at his private expence, nor of defrauding the public, nor injuring or imp•••ing the public service; but considering the delicacy attending the high station in which the general acted, and that requests from him might operate as commands, they are of opinion, the request was imprudent and improper, and that, therefore, it ought not to have been made. The court, in consequence of their determinations respecting the first and last charges exhibited against major general Arnold, do sentence him to 〈◊〉 a reprimand from his excellency the commander in chief.

ROBERT HOWE, major general, president.

JOHN LAURANCE, judge advocate.

The court adjourned without day.