by Logan Beirne
Unsurprisingly, counterfeiting was somewhat common. But as the war sparked inflation, the patriots made a concerted effort to capture the “unpatriotic” counterfeiting rings. The authorities kept a watchful eye out for people asking the wrong questions or passing inordinate quantities of bills. The not-so-bright Hickey drew such attention.14 He was caught passing counterfeit bills and thrown into jail. For this relatively minor offense, he would likely have received only a mild punishment, but Hickey’s wretched fate would be sealed by his big mouth.
While in prison, Hickey bragged to another inmate about his involvement in the Loyalist conspiracy. He boasted of the plot against Washington and additional plans to have moles within American forces turn their guns against their compatriots in the middle of battle.15 Upon overhearing this, a fellow prisoner ran to the authorities in hopes of securing his own release. Hickey was interrogated at once and the plot unraveled. The conspirators swiftly divulged the names of others in the ring as well as incriminating details. One conspirator swore he had received 100 British pounds towards the plot from Mathews.16 This information corroborated the patriots’ other intelligence and set in motion the events that led to Washington’s late-night raid.
That night, Washington rounded up Mathews and Hickey’s other co-conspirators from both inside and outside the army’s ranks. Next he turned to exacting justice. But he trod carefully, since he was dealing with American citizens. While he held great authority to decide the fate of foreigners, Americans were a different story. Here, he deferred to the civil authorities’ mandates, which instructed him to deal with the conspirators differently based upon whether they were soldiers or not.
Congress had provided for the military to deal with its own men through the congressionally authorized procedures of courts-martial. And so with congressional backing, Washington put Hickey on trial in front of his fellow soldiers, on charges of “exciting and joining in a mutiny and sedition, and of treacherously corresponding with, inlisting among, and receiving pay from the enemies of the United American Colonies.”17 He was prosecuted not merely for being a Loyalist, but for violating his obligations as a soldier.
In his own defense, the rascal argued that he merely pretended to be part of the plot in order to collect the money. But the American soldiers deciding his fate were unconvinced, to say the least. After hearing multiple witnesses condemn him, they found him guilty of treason.
Washington and the patriots were intent on making an example of this treacherous scoundrel with a public hanging. Thus, they quickly sentenced Hickey to death and Washington ordered that every brigade witness his fate as “a warning to every soldier in the army.”18 Hickey walked unrepentantly to the gallows and refused any clergy “on the grounds that all of them were cut-throats.”19 In addition to the army, virtually all of New York City, around 20,000 people, turned out to watch the spectacle in an open field in southern Manhattan at eleven in the morning on June 28, 1776.20 For many people, this was prime—if morbid—entertainment.
Hickey attempted to remain stoic and not give the heckling crowds much of a show. But as the scratching noose tightened around his trembling neck, he momentarily lost his nerve and a “torrent of tears flowed over his face.”21 Then he promptly regained his composure and his defiant bearing.
A dour Washington strangely seized this occasion to give a moral lecture to his troops, telling them, “in order to avoid these crimes, the most certain method is to keep out of the temptation of them and particularly to avoid lewd women who, by the dying breath of the poor criminal, first led him into practices which ended in an untimely and ignominious death.”22 Whether New York City’s prostitutes led to Hickey’s money problems or a more general degradation of character is unclear. In any case, Hickey had become the first American to be hanged in the name of the Revolution.23
His nonmilitary co-conspirators met with a happier fate. As commander in chief, Washington did not see himself as having the right to punish private citizens. Instead, he left the fates of the civilian conspirators largely to the discretion of the civil authorities.24
While Tryon sat smugly aboard a British ship just outside the Americans’ grasp, his underlings did not enjoy the benefits of Britain’s naval supremacy. After Washington arrested David Mathews by order of a committee of the New York Provincial Congress, he then scoured the mayor’s house for evidence. Washington did not ransack the American’s property by virtue of his broad military powers, but rather as a servant of the civilian who was executing the Provincial Congress’s order. This was important to Washington because he firmly believed that the military lacked the right to molest Americans or their property. He was fighting for the American citizens’ liberty, and he was not about to allow the military to trample it. Citizens had rights, which should be stripped only by the civil authorities. Those authorities threw Mathews in jail.
As a civilian American, Mathews was a problem for the patriots, however. While the early congressional resolution had deemed it appropriate for Washington to drag the soldier, Hickey, before a court-martial and hang him for violating his duties as a soldier, the Americans were still grappling over the appropriate treatment of someone such as Mathews. He was not a soldier and could therefore not be tried for violating military duties as Hickey was.
News of the plot—in its various incarnations—helped to rally public opinion against the Loyalists. No longer would the patriots merely preclude Loyalists from trade or confiscate their guns. In June 1776, Congress passed a resolution that would transform disaffection from the patriot cause into treason. Recommending that the colonial legislatures pass measures against treason, Congress resolved:That all persons residing within any of the United Colonies, and deriving protection from the laws of the same, owe allegiance to the said laws . . . .
That all persons, members of, or owing allegiance to any of the United Colonies, as before described, who shall levy war against any of the said colonies within the same, or be adherent to the king of Great Britain, or other enemies of the said colonies, or any of them, within the same, giving to him or them aid and comfort, are guilty of treason against such colony.25
As the colonies followed up with their own legislation, it became a crime for civilians to resist the Revolution. Although Congress would make exceptions later in the war for spies such as Joshua Hett Smith, as discussed in Part IV, civilians were generally referred to civilian trials.26
The Americans had to sort this all out before they could properly deal with Mathews. As a civilian citizen, he deserved a high burden of proof. But since Washington found nothing incriminating in his house, the Americans lacked direct evidence of his complicity. Doubting that the witnesses alone would be enough to condemn Mathews, as in the case of Hickey, the cautious American authorities held him in jail while they mulled their next step. But the wily Mathews would not rot for too long.
Mathews spent his months in prison complaining about his treatment and plotting his escape. Not about to leave his fate to the American “Insurgents,” he bribed his Connecticut guards with 150 pounds sterling. They let him go, and he raced back to British-occupied New York City.27 He was frustratingly outside the patriots’ grasp, but they took some solace when the New York Provincial Congress labeled him a traitor and seized his two homes and 26,000 acres of land.
This episode is illustrative of Washington’s approach to American lives and property: he did what he was told by the civil authorities. While he possessed authority over war tactics, the treatment of foreign prisoners, and even foreigners’ trials, the same was not true for American citizens. He served as their protector and, as such, he would not deprive them of due process or seize property without the consent of civil authorities. The legislatures and civil courts referred their fellow Americans to courts-martial, confiscated their property, executed them, and did a host of other nasty things to them. But Washington let the civilian leaders make those decisions.
Neither Mathews nor Tryon was ever captured, and both lived out the
rest of their lives in Britain. The accounts of their plot mutated as the stories spread throughout the colonies. Some believed that there were no poisoned peas and that the Loyalists wanted instead to take Washington alive. This kidnapping rumor was bolstered by Mathews’s later admission that he had “formed a Plan for the taking Mr Washington & his Guard Prisoners.”28 Other gossips denied that there was ever a plot against Washington at all, pointing to the fact that the plot was not included in Hickey’s official trial documentation. But still others saw this absence merely as proof of a patriot cover-up meant to prevent widespread alarm.29 There was much debate about the specifics as the tales of treachery swirled through America’s camps and towns. While the true facts about the peas or the kidnapping were never definitively known, the talk was more crucial than the specifics. Whatever form the rumors took, they helped to harden the patriots’ resolve against their Loyalist neighbors.
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America’s Defender
American courts were soon flooded with prosecutions for treason as hundreds of Loyalists were indicted for the new crime. They were imprisoned or forcibly relocated and stripped of their property.1 The British denounced these actions asArbitrary Imprisonments, Confiscation of Property, Persecution and Torture, unprecedented in the Inquisitions of the Romish Church . . . inflicted by Assemblies and Committees, who dare to profess themselves Friends of Liberty, upon the most quiet Subject without Distinction of Age or Sex, for the sole Crime, often the sole Suspicion, of having adhered in Principle to the [British] Government under which they were born, and to which, by every Tie divine and human, they owe Allegiance.2
The Loyalists who were tried in civil courts generally fared better than those left to the whims of mobs, however, since they escaped with their lives—usually.
Following the liberation of Philadelphia in 1778, for example, mobs exacted revenge upon those who had supported the brutal occupation of their capital city. Among these Loyalists, 490 were formally prosecuted in court. Nearly all of their property was confiscated and several were hanged for aiding the British.3 But this ratio is telling: relatively few Loyalists throughout the colonies were executed under official sentence. The revolutionaries generally kept their bloodlust in check and reserved the ultimate punishment for the most egregious cases. Court-ordered executions were the exception rather than the rule.4
The American courts took “great pains to observe procedural safeguards once the formal machinery of justice was called into play.”5 While treasonous, the Loyalists were often viewed as citizens, after all. Thus many patriots adopted the philosophy that the “Law should be strictly adhered to, severity exercised, but the doors of mercy should never be shut.”6 As a result, convictions were somewhat rare and pardons for those few convicted were surprisingly common. Rather than serve time or face the gallows, many Loyalists were given the option of joining Washington’s army—a sentence which Washington did not particularly care for due to its obvious impact on morale and discipline.7 But when it came to his fellow Americans, he abided by the politicians’ and judges’ directives, however irksome they might be.
Punishing Americans was the civil authorities’ prerogative, as Congress made very clear. At the outset of the war, they resolved that “no man in these colonies, charged with being a tory, or unfriendly to the cause of American liberty, be injured in his person or property, or in any manner whatever disturbed,” except by authorization from civilian politicians.8 While the civil authorities could sanction Loyalists and strip them of rights, Washington did not see himself as having the power to do so. As in the cases of Joshua Hett Smith, David Mathews, and Thomas Hickey, he referred Americans to the civil courts whenever possible and tried citizens by congressionally defined courts-martial when explicitly authorized to do so. Throughout the war, he repeatedly said that he “would rather have them punished agreeable to the Civil than by military law.”9 This included all Americans—even the traitorous ones.
Washington “strenuously discouraged patriot groups from taking the law into their own hands and avoiding the judicial process” against the Tories.10 He had many Loyalist friends and understood that Americans could not all be forced to have the same viewpoint. Since his youth, he had maintained a close relationship with the Fairfax family, one of the most powerful British noble families in Virginia, and many of its members were ardent Loyalists. Washington exchanged “heated, although polite” letters with them, debating the patriotic cause but exhibiting his tolerance of deep political disagreement among Americans.11 Militant as he was, Washington was not one to bring a sword to a civilized debate.
In another example of his respect for Tories’ safety, Washington received a request from a Loyalist, Judge Andrew Elliot. An avowed enemy of Washington’s cause, accused of being a “rapacious, dissolute, overbearing fraud,” Elliot nevertheless had the nerve to ask that the commander check in on his daughter, herself married to a Loyalist.12 Washington graciously obliged, writing, “I shall be happy in occasions of rendering her any service which may be in my power.”13 Nonmilitant Loyalists deserved the same protection that Washington attempted to provide all Americans. He assured Elliot “that the most perfect regularity and good Order prevail in this City, and that every description of People find themselves under the protection of the Laws of the State.”14
Washington’s tolerance was particularly notable when he faced Loyalists taking up arms against him. Rather than quickly crushing them, he asked the governor of Connecticut, “Would it not be prudent to seize those tories who have been, are and we know will be active against us? Why should persons who are preying upon the vitals of their country be suffered to stalk about while we know they will do us every mischief in their power?”15 After consulting with Connecticut authorities, he ordered his men “to seize upon such persons as held commissions under the crown and were acting as . . . enemies to their country and hold them hostage.”16 This was yet another sign of restraint—he limited his arrests to royally commissioned officials. He made sure to exclude private individuals, no matter how rabidly pro-Britain they might be, since he did not see it as part of the military commander’s role to seize them. He was not a complete saint, however, for he warned, “the day is not far off when they will meet with this or a worse fate if there is not a considerable reformation in their conduct.”17 And on one occasion, Washington may have violated his own principles.
Thomas Shanks was a sticky-fingered ensign of Pennsylvania’s 10th Regiment.18 This rascal attempted to steal two pairs of shoes from his lieutenant, perhaps to protect his feet from the autumn chill of 1777.19 He proved a lousy thief, however. He was caught and promptly cashiered from the army, since Washington would brook no thievery in his ranks. But Shanks would not merely go home after his disgraceful discharge. Instead, he went over to the enemy. Unfortunately for him, he proved to be as lousy a spy as he had been a thief.
In the late spring of 1778, the British devised a plan to smuggle Shanks back inside American lines to spy on Washington. The plot quickly unraveled when a redcoat deserter informed the Americans of Shanks’s intelligence activities. This British grenadier, Sergeant William Sutherland, testified that he was meant to lead Shanks through the British lines so he could return to the American base. After they got past the British defenses and parted ways, however, Sutherland took a shortcut to beat Shanks to the Americans’ camp and informed them of the conspiracy.20 For his trouble, Washington gave Sutherland 60 pounds—blood money.21
When the obtuse spy arrived at the camp, the Americans confronted him with the grenadier’s testimony. It was apparently enough to make him crack: under intense interrogation, Shanks confessed to spying. And with that, Washington decided to “avoid the formality of a regular trial,” reasoning that it “ought to be dispensed with” in a case like this one. Instead, he would have a military commission examine Shanks, “and if his guilt is clear, his punishment will be very summary.” 22 Washington had previously reserved this kind of summary treatment for noncitizens.
Even though Washington was careful to protect Americans’ right to due process, this time he strayed. A seemingly illegal military commission was assembled to try a citizen. The panel of soldiers heard from the British grenadier as well as Shanks’s apprehenders. Taking Shanks’s own admission into account, they deemed him a spy by a vote of 10 to 4. Per Washington’s request, his officers—by a slim 8 to 6 margin—voted to make Shanks “a proper subject for an example” and ordered that he be hanged.23
On Washington’s terse instruction that Shanks “be hanged tomorrow morning at Guard mounting at some convenient Place,” the soldier was brought to the gallows the next day.24 “Muffled drums beat, fifes wailed the death march,” and excited spectators looked on as Shanks solemnly neared his wretched fate.25 He was unceremoniously hanged, and his name would fade back into obscurity.
Washington had denied due process to an American. It was quite possible that he skipped a congressionally mandated court-martial because he categorized Shanks as a mutinous soldier, or he believed that the traitor’s confession made a full trial superfluous, or perhaps Washington received undocumented authorization from Congress to employ the military commission. In any case, this was the exception rather than the rule.26 Washington generally remained a staunch defender of Americans’ right to be prosecuted according to the procedures established by civil authorities. He was careful to protect the lives and liberty of Americans, however treacherous they may have been.
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