by Logan Beirne
From a prosperous family of British-sympathizers, Smith was a lawyer of relatively low abilities yet high self-regard.31 He was described as a “timorous, prying, bustling sort of character” who wanted to “have a hand in weighty affairs” and who tried, in particular, to stay “on good terms with whomsoever was uppermost.”32 Since the British still appeared to be winning, it was unsurprising that Smith himself was suspected of sympathizing with them.33 He was rather homely with his sleepy eyes above a prominent nose and somewhat wild gray hair, but his small, feminine mouth would come in handy as part of a transvestite disguise.
Smith lived with his wife and children in a stately two-story home. Located about eighteen miles south of West Point, on the main route “where all communications passed from the eastern and southern states,” this house was ideally situated for Arnold’s purposes.34 From its elevated position, it offered a sweeping view of the ships passing on the Hudson. So the Smith home became the central location for Arnold’s plot.
Arnold and Smith had grown close during the time since the traitor’s transfer to West Point. A social climber who was eager to cultivate a relationship with someone of Arnold’s power, Smith had frequently entertained Benedict and Peggy with elaborate meals.35 While the Arnolds appeared to enjoy the friendship, the other Americans did not take as kindly to Smith. In fact, one of Arnold’s aides called him “a damned rascal, a scoundrel, and a spy.”36 In late September 1780, Arnold approached this scoundrel to arrange his meeting with André.
Adhering to strict orders from Arnold, Smith and his servants rowed under the cover of darkness, in a “silent manner,” to rendezvous with Arnold’s British contact.37 Their oars were muffled so as not to alert the American boats guarding the shores of the river. With the sky dimly lit by the bright stars, the crew cruised along the tranquil river, the waters of which were “unruffled except by the gentle current.”38 Although “[t]he night was serene and the tide favourable,” Smith was apprehensive about the clandestine mission.39
They approached a small British sloop-of-war called the Vulture .40 Smith presented a letter from Arnold to André, uncreatively code-named “John Anderson,” and together they returned to shore at approximately one o’clock that night. Arnold was waiting on the western shore of the river, hiding among the fir trees near the foot of Long Clove Mountain.41 There, in the pitch-black woods, Peggy’s dear old friend and her current husband finally met. Arnold did not extend him a warm welcome. Instead, they went right to work.
With only their discreet lanterns to shed light as they schemed, Arnold and André plotted the final preparations for the surrender of West Point. They orchestrated the moves of the attacking British forces and determined what orders Arnold would give to his American troops so he would appear loyal to the United States but nevertheless quickly surrender with minimal British bloodshed.42
The rendezvous lasted through the night, ending only when Smith interrupted to warn of the approaching dawn. Arnold handed André the fortification plans along with other intelligence, which the young man hid in his boots. They hurried back to the river, but it was too late to return André to the Vulture “without being discovered from either shore by the inhabitants, whose eyes were constantly watching the movements on the river, not only from the forts, but the surrounding shores.”43 As the sun’s first rays lit the sky, nearby American troops fired on the Vulture. Set partially ablaze in the rude awakening, the wounded boat limped downriver as flashes of fire pierced through the billowing smoke. The plan was botched. With his ship gone, André was trapped deep within hostile American territory. Arnold reluctantly decided to fall back to Smith’s house three miles away.
Back at Smith’s house that morning, Arnold, ever the astute tactician, quickly adapted his plan. He ordered André to remove his British officer uniform and put on a civilian coat provided by Smith, who was approximately the same size. Nervous about being caught as a disguised spy, “André, who had been undesignedly brought within [American] posts in the first instance, remonstrated warmly against this new and dangerous expedient.”44 Arnold insisted, and André had little choice but to go along.
Furnishing André with a passport, Arnold sent him to take a land route through American territory back to British-occupied New York City. Smith provided André with a horse and agreed to accompany him through the first and most dangerous part of the passage. This stretch in Westchester, New York, was a treacherous civil war zone fraught with “plunder, outrage, inhuman barbarity, and even murder” as patriots and Loyalists clashed.45 Many on both sides seized the lawlessness of war as an opportunity to exact revenge for old insults or merely to indulge in looting. This was not a safe neighborhood, to put it mildly.
With trepidation, Smith and André rode side by side along the dirt pathways. Soon into their journey, they were stopped and questioned by American patrols searching for enemy spies. Smith took the lead, and, presenting the passports that Arnold had provided, he explained to their inquisitors “that they were on the public services, on business of the highest import” to the American cause.46 Smith then had the nerve to threaten these interrogators that they “would be answerable for [André’s] detention one moment.”47 His brashness paid off. In fact, Smith was so successful in assuaging the Americans’ suspicions that one American colonel invited them to dine at his house. Unsurprisingly, André “seemed desirous to decline,” and they did.48
After days of riding and partaking in friendly conversation about books, music, and their desire to see an end to the war, Smith and André arrived at Pines Bridge. Smith expected that André would encounter fewer American forces past this point. As they ate breakfast porridge at a wayside cottage, Smith provided André with directions for the remainder of his journey back to Clinton’s post in New York City. Smith jovially paid the bill and they parted amicably, unaware that they would soon see each other again in far less cheerful circumstances—as prisoners at West Point.
24
Commissions & Courts-Martial
At nine o’clock on the morning of Saturday, September 23, John André was riding down a wooded path towards safety behind British lines. At a narrowing in the road in Tarrytown, New York, just six miles from where he parted ways with Smith, three American militiamen suddenly leapt from the woods and seized his horse’s bridle.1 The three men had been playing cards by the road, hoping for such an opportunity to ride by. “The law of the state gave to the captors of any British subject, all his property,” according to Joshua Hett Smith’s account, “and of course, his horse, saddle, and bridle, were in the first instance a temptation to stop him on the least ground of suspicion, while he being alone, they were the more bold against an unarmed man.”2
André panicked. Since his captors were not in proper uniforms—they were a ragged bunch, with one wearing a faded Hessian jacket likely “borrowed” from a dead man—he did not know whether they were Loyalists or patriots. “At this critical moment, his presence of mind forsook him” and instead of producing his papers from Arnold and pretending to be an American on official military business, he asked the men whose side they were on. The wily men lied, stating that they were Loyalists.3 Fooled, André then divulged his true identity as a British officer and demanded that he be freed. This is precisely what the militiamen wanted to hear. They dragged him into the bushes.
André tried bribing the men with his gold watch and promises of cash, but this only made them more suspicious.4 The Americans stripped and searched him. In his stockings they found “a plan of the fortifications of West Point; a memorial from the engineer on the attack and defense of the place, returns of the garrison, cannon and stores; [and a] copy of the minutes of a council of war held by General Washington a few weeks before.”5 Only one of the men was literate, but they quickly surmised that they had stumbled upon something big. What they did not realize was just how far-reaching the conspiracy was. Even though the documents were in Arnold’s handwriting and pointed directly to his complicity, Arnold’s involvement
in such treachery was so unfathomable that the commander of the New York militia stupidly reported André’s capture right back to the treasonous mastermind.
When Arnold received the news at West Point, he bounded into action. Desperate to escape before word of his involvement reached the garrison, he immediately ordered his horse to be saddled and a boat readied. Telling his wide-eyed wife Peggy that he “must fly to save his life without having time to explain,” Arnold bolted from the house and leapt onto his horse. Four of his light horsemen, unaware of what was transpiring, met him outside. They announced to their hurried superior that Washington, who had received intelligence of André’s capture, was approaching. Washington’s forces closing in, Arnold ordered the soldiers to stable their horses in order to slow their pursuit of him once they received word of his treachery. He then took a risky shortcut down to his boat, where, like a wild man, he threw his pistols onto the deck, jumped aboard, and commanded the boatmen to set off.6
He had not yet escaped Washington’s tightening noose. His boat was quickly stopped by an armed boat that Washington had dispatched. In the confusion, the ship’s crew had yet to receive their orders to detain Arnold, however. He told them to “go up to the house to get refreshment,” and when Washington arrived, to say that he would return before dinner. They fell for the ploy. Arnold got away from the wharf, but soon the armed vessel was in pursuit.7 With the Americans closing in on his small, unarmed boat, Arnold turned to his crew and promised them two gallons of rum if they hurried. The bewildered men raced to the Vulture. Once safely on the British gunboat, Arnold took his own boatmen prisoner. His daring flight had succeeded. America’s greatest traitor had escaped.
General Washington “was thrown into the greatest distress from the failure of so well concerted a plan, so near ending the rebellion, as it would have given [the British] all of the forts, half the army, and cut off all communication with the Southern and Eastern Provinces as also the French.”8 He was so shaken that he began to question who else from among his trusted officers might be involved. As he was pondering his next move, Washington was duped by Arnold’s cunning wife.
Peggy was in grave danger on account of her knowledge about the conspiracy, so she relied on her feminine wiles. When Washington’s men found her in the house, she put on a “most affecting scene,” masterfully acting as though Arnold’s treachery were such a shock that it had thrown her into a state of delirium.9 Not above showing some skin, Peggy opened her dress in feigned hysterics. She wailed and convulsed as she held her baby to her bosom. “One moment she raved, another she melted into tears,” lamenting Arnold’s supposed deception. “All the sweetness of beauty, all the loveliness of innocence, all the tenderness of a wife and all the fondness of a mother” worked to hoodwink Washington and his officers.10 The chivalrous general could not believe that such a beautiful, well-bred woman could be complicit in so nefarious a plot. Besides, her seemingly fragile mind made her appear to be an unlikely accomplice in so complicated a conspiracy.
Washington did not know whom he could trust. But despite his fear, he kept a cool head as he tried to gauge the extent of the treason. First, though, he had to defend West Point from the impending attack. He ordered up more troops to reinforce the fort. An American regiment, receiving the call at 1:00 A.M., marched sixteen miles through driving rain to secure West Point by sunrise.11 Then Washington turned to the matter of exacting justice. And he was out for blood.
At midnight on Monday, September 25, Joshua Smith lay in bed with his wife. He was exhausted, having gotten little rest since he had become embroiled in Arnold’s plot a few days earlier: he had been up all night keeping a lookout while Arnold and André conspired, and then shared a bed with the restless British officer as they traveled. But after he parted ways with his young charge, Smith returned to the confines of his stately home for some much-needed recuperation. As he lay surrounded by the comforts of his British fineries, his bedroom door was violently opened and the room filled with American soldiers.
The adrenaline-fueled young men immediately drove Smith out of bed by fixed bayonet and angrily ordered him to dress. His disorientation exceeded only by his terror, Smith obeyed. The household was “thrown into great confusion; the female part especially were in the deepest distress.”12 Once he was dressed, Smith was forced out the door without any explanation and marched for eighteen miles through the warm night. As dawn’s first rays shone on the horizon, the party arrived at a wealthy Tory’s home that Washington had commandeered. Smith was thrown into the guarded back room where irate soldiers questioned him intensely. For hours, Smith adamantly denied aiding the British. After a rough night and morning, he was hungry and exhausted. The soldiers placed him in a room with biscuits, but warned him—rather inhospitably—that he would be shot if he touched them.
Washington then entered to interrogate Smith regarding his involvement in the conspiracy. He demanded answers and coldly threatened to hang Smith if he did not open up. Smith was terrified by this enraged demigod fuming before him. Cowering in his chair, he contended that he was ignorant of the scheme to betray the American cause and was merely helping General Arnold on diplomatic business.
Washington did not believe him. The commander declared that he had evidence against Smith that was sufficient to impose a death sentence.13 Whether this was a bluff or merely his rage speaking is unclear, but on further reflection he decided to remand Smith to a court-martial proceeding. For although Washington was incensed, he was not one to act rashly. Since Smith was an American, Washington deferred to Congress’s authority in deciding how he should be brought to justice. As will be further discussed in Part V, American citizens were under the civil authorities’ control.14 But those politicians were not always forgiving—while he had escaped the gallows for the time being, Smith still faced a trial for his life.
Under the Articles of War passed in 1775, Congress made no provisions for trying spies.15 This was remedied on August 21, 1776, when Congress resolved:All persons, not members of, nor owing allegiance to any of the United States of America . . . who shall be found lurking as spies in or about the fortifications or encampments of the armies of the United States . . . shall suffer death, according to the law and usage of nations . . . by sentence of a court-martial, or such other punishment as such court-martial shall direct.16
This resolution directed Washington to try foreign spies according to the rules of courts-martial.17 Congress followed this up with a resolution aimed at Loyalists, “authorizing the commander in chief of the army, to hear and try by courtmartial, any of the citizens of the United States who should harbour or [abet] any of the subjects or soldiers of the King of Great Britain.”18
The court-martial was a type of military court with origins dating back to thirteenth-century England, where King Edward I was striving to restore royal authority over the feudal barons. As part of this effort, he issued a royal prerogative asserting the power of the Crown to regulate and discipline the army. Military courts called courts-martial emerged to enable the military to carry out justice when soldiers violated the monarch’s orders. The republican Americans inherited this tradition but substituted congressional resolution for royal edict. In the new United States, court-martial trials were a legislative enactment governed by Congress.
The American courts-martial provided the accused person with “due process,” which is the legal term for the principles of fundamental fairness and justice used in hearing a prisoner’s case. Courts-martial sought to respect the rights of the defendant since these courts were meant to determine justice rather than merely dole out swift punishment. 19 In order to provide due process, Congress employed certain procedures to promote a fair trial.
First, Congress required that court-martial proceedings be conducted before a panel of thirteen commissioned officers, to decrease the likelihood of a skewed sample of biased jurors that may occur with a smaller group. Second, Congress placed special limitations on the panel’s composition based on the ra
nking of the accused. This was to ensure that jurors had the necessary seniority and insight to judge the defendant properly. Third, in order to promote impartiality, Congress forbade the officer convening the court-martial—in Smith’s case, General Washington—from sitting on the panel of jurors as president.20 This twist from the traditional British system helped to prevent the commander in chief from influencing the other officers to convict the accused. Finally, the members of the court typically swore an oath to “duly administer justice . . . without partiality, favor, or affection,” and to use their “conscience, the best of [their] understanding, and the custom of war in like cases.”21
Although courts-martial historically granted no right to counsel,22 they often involved thorough inquiries with many witnesses called, and provided the accused with opportunity to defend himself. When a man fell within the realm of court-martial proceedings, he was tried according to Congress’s rules and the accompanying guarantees of a fair trial. He had a fighting chance of acquittal. This was not always the case for those unfortunate enough to be brought instead before so-called “military commissions.”
A military commission was similar to a court-martial in the sense that it was likewise a military proceeding to dispense punishment for offenses. But while these commissions often mimicked some of the procedures of courts-martial, they did not need to provide the accused with the same protections for a fair trial.23 A military commission traditionally served as a “quick and dirty” way to eliminate the due process protections used in courts-martial and criminal trials.24 According to a nineteenth-century treatise, “Its proceedings are not a trial, nor, is its opinion, (when it expresses one,) a judgment.”25 Indeed, such war courts were more summary in their proceedings and they would not be deemed illegal even if they left out details required by courts-martial.26 Military commissions involved a relatively superficial inquiry, which usually resulted in a swift hanging of the accused.