Editorial Note
Editorial Note
Maj. Gen. Benedict Arnold recruited Joshua Hett Smith—who came from a family with significant Loyalist connections but had served as a spy for the Continental army—to assist with the consummation of his
Fig. 3. The Beverly Robinson House, on the east bank of the Hudson and just downriver from West Point, played a key role in the Arnold conspiracy (see map 5). (Appleton’s Cyclopædia of American Biography [E176 .A659 1888 v.1], Special Collections, University of Virginia, Charlottesville, Va.)
Arnold wrote a pass for Smith at Beverly Robinson’s house on 21 Sept.: “Permission is granted to Joshua Smith Esqr. to go to Dobbs’s ferry with three Men and a Boy in a Boat with a Flag to carry some Letters of a Private Nature for Gentlemen in New York and to Return immediately. … N.B. He has permission to go at Such hours & times as the tide and his buisness Sutes.”2 Smith’s task as liaison changed when the British sloop Vulture, with Maj. John André aboard, anchored in lower Haverstraw Bay. With considerable difficulty, Smith secured rowers for a boat, gathered André from the Vulture in the early hours of 22 Sept., and landed the British officer “about two miles below Haverstraw” for discussion with Arnold, who excluded an annoyed Smith from the meeting. The coming dawn prevented a trip back to the Vulture. Arnold ordered Smith to take the boat to a nearby creek, while he and André rode horses a short distance to the home of Smith’s brother Thomas.3
Cannon firing from the shore around daybreak drove the Vulture downriver into the Tappan Zee and apparently persuaded Arnold and Smith to abandon the plan to return André to that ship for passage to British headquarters in New York.4 Joining Arnold and André at his brother’s house, Smith provided a civilian coat when Arnold convinced a dismayed André that he should disguise his uniform. Later that morning, Arnold left the pair after writing a pass for Smith dated 22 Sept. that facilitated the subsequent journey across King’s Ferry, N.Y., and south through Continental outposts into a contested area where irregulars operated beyond the control of either contending army: “Joshua Smith Esqr. has permission to pass the Guards to the White Plains, & to return being on public business by my Direction.”5 Smith and André (whom the former reputedly knew only by the name John Anderson) departed shortly before sunset on 22 Sept. and lodged overnight in a private cottage. Smith accompanied André from early morning on 23 Sept. until parting shortly after breakfast some distance from Pine’s Bridge over the Croton River. Smith then saw Arnold at Robinson’s house and proceeded to Fishkill, N.Y., where he greeted his wife, Elizabeth, at the home of his brother-in-law Ann Hawkes Hay. Tired from his exertions over the previous two days, Smith immediately went to bed.6
Smith dined in Fishkill on Sunday, 24 Sept., with GW’s retinue returning from the Hartford Conference.7 He conducted business in a neighboring town on Monday, 25 Sept., but was back in Fishkill late that evening. Massachusetts militia in Continental service forced entry into Hay’s house around midnight and arrested Smith while he was in bed with his wife. Lieutenant Colonel Gouvion led the detachment, which then escorted an indignant Smith to Robinson’s house, where they arrived on Tuesday, 26 Sept., shortly after daybreak.8
Smith was allowed a brief period to rest before GW, Major General Lafayette, Brig. Gen. Henry Knox, GW’s aide-de-camp Alexander Hamilton, and GW’s secretary Robert Hanson Harrison interrogated him. The intense session frustrated the questioners, who heard inconsistencies in Smith’s answers and suspected that he was withholding information. Fear rose in Smith, which the arrival of André under a heavy guard did nothing to lessen.9 Smith then was asked to write his brother Thomas and misdated the letter 25 Sept.: “I am here a Prisoner, and am therefore unable to attend in Person—I would be oblidged to you if you would deliver to Captain Carns of Lee’s Dragoons—a british Uniform Coat which you will find in one of the Drawers in the Room above Stairs I would be happy to see you Remember me to Your family.” Smith endured another interrogation late on 26 Sept. that centered on correspondence he had held with Arnold. William Duer, a New York official responsible for ferreting out conspiracies, went to Haverstraw to view letters in a locked drawer in the Smith house.10
In the evening of this eventful day, Washington moved Smith under guard to West Point for security purposes. Smith was placed in a cell in the provost. At GW’s direction, Presbyterian minister John Mason questioned Smith, who added nothing to his previous answers.11 Obviously distraught, Smith asked to see his brothers John and Thomas. GW denied Smith’s request and instead ordered Smith and André taken to the army’s camp. Two barges arrived on Thursday morning, 28 Sept., to transport the prisoners down the Hudson River. Maj. Benjamin Tallmadge commanded the guards. Landing at Stony Point, the prisoners mounted horses and rode to Tappan. Upon arrival at their destination, Smith was separated from André and housed in a room in the Dutch Reformed Church, which faced the town green.12
Lt. Col. Henry Dearborn wrote in his journal entry for 30 Sept.: “a Genl Court Martial sits to day for the Tryal of Smith.”13 GW’s orders for Smith’s trial on that date, sent to Judge Advocate Gen. John Laurance, read: “You will prosecute before the Court Martial now sitting, Joshua H. Smith, Esquire, an inhabitant of the State of New York, on the following charges:—
“First.—For going on board the Vulture sloop of war, belonging to the enemy, the night of the 21st of this month in a private manner, and bringing on shore from the said vessel, Major André, Adjutant General to the British Army.
“Secondly.—For secreting the said Major André in his house near our post at Stoney Point; for furnishing him with clothes to disguise himself; and for passing with him by our posts at Stoney and Verplanck’s Points, so disguised, and under a feigned name. Also for conducting him in his way to New York in a disguised habit, and under a feigned name, with intelligence for the enemy.
“Thirdly.—For acting as a spy in procuring intelligence for the enemy.
“Fourthly.—For aiding and assisting Benedict Arnold, late a Major General in our service, in a combination with the enemy, to take, kill, and seize such of the loyal citizens or soldiers of these United States, as were in garrison at West Point and its dependencies.”14
Thirteen officers, with Col. Henry Jackson as president, sat in attendance at Smith’s court-martial. Laurance prosecuted the case against Smith, who was given no choice but to provide his own defense. Smith challenged the military court’s jurisdiction over a civilian and succeeded in having the first three charges dropped. Now subject only to the fourth charge, he watched as a parade of witnesses testified regarding his involvement with Arnold. Smith cross-examined selected witnesses (notably Harrison, Hamilton, Lafayette, and Knox) and strove to undercut implications that his actions showed complicity with Arnold’s scheme. Ill health and unremitting emotional strain taxed Smith throughout the proceedings, which continued with brief breaks until 6 Oct., after which the court did not convene while the army relocated to Totowa.15
Smith’s “indisposition” prevented the trial from resuming at Totowa on 11 Oct., and it began again the next day when Laurance rested the prosecution’s case after calling twenty-one witnesses. Smith then commenced his defense, which consisted primarily of his own parade of witnesses to vouch for his patriotism and innocence, the most important being his brother-in-law Ann Hawkes Hay. GW intervened to secure the presence of colonels John Lamb and James Livingston and Maj. Edward William Kiers, quartermaster at King’s Ferry, at the court-martial. Lamb, who testified on Friday, 20 Oct., was Smith’s last witness.16
Smith delivered the summation of his defense on 24 October. He subsequently recalled: “As my life was at stake, and the interests of all that were dear to me were involved in my fate, my family then consisting of a tender wife and two young children, my energies were exerted to the utmost, and in the space of forty-eight hours I presented a defence to the court-martial, which filled a quire of paper, closely written; I read it to them, and a large part of the army, in the presence of a great concourse of the inhabitants.”17 Smith’s argument revolved around several “general principles:—
“1st. That General Arnold was actually a major-general in the American service at the very time I was engaged in the combination specified in the charge, and that I could not have had any agency without his sanction and direction. …
“The testimony of the two Colquhouns proved that General Arnold himself gave the instructions for us to go on board the Vulture; that he furnished the boat, directed the muffling the oars, offered the reward for their labour, and, in case of non-compliance, threatened the punishment he was authorised to inflict.
“2dly. That the charge, in the present instance, was a charge of treason against the United States; treason being a crime of the highest magnitude known in the law, the law demanded that it should be supported by the strongest testimony.
“Under this head I proved that the constitution of the State of New York had confirmed all the acts of parliament, that had been in use by the colony of New York under the ancient government, previous to the declaration of independence in July, 1776, and, consequently, the act of parliament respecting treason, passed in the reign of Edward the Third, as it had heretofore been used and considered, was in full force, and applicable to the case in question.
“This statute enacts, that each and every separate overt-act of treason shall be supported by the testimony of two witnesses. …
“In contradiction of this statute, I proved that the whole of the evidence that had been offered, could amount to no more than presumptive evidence.
“3dly. I urged as an established maxim, that in every charge or indictment for high crimes and misdemeanors, the knowledge of the party, charged with having committed the criminality, should be so stated in the charge or indictment, and made out by the most clear and conclusive testimony.
“I demonstrated, from the particulars in the charge, that this was not the case, and that not one of the witnesses had suggested the idea. …
“4thly. I averred, that in all courts of justice in particular, every man, however accused, was always presumed innocent until he was proved guilty; and that the most wise and rigid administrators of justice upon the bench, and otherwise, had invariably determined, that where the cause was doubtful, the scale of justice should preponderate in favour of the accused, upon the principle already established,—that it was better that ninety-nine criminals should pass unpunished, than that one innocent man should unjustly suffer.
“5thly[.] I proved, from the authority and usage of all courts of justice, that where the party’s declaration or confession is brought as evidence against himself, that the whole must be taken together, and not abstractedly; as, if otherwise, through the art of the accuser, the most innocent man might be made to contradict and condemn himself; and—
“6thly. And lastly, I corroborated these general principles by authorities founded in reason and in law; and the concurrent usage of civil policy in all Christian and enlightened nations.
“After establishing these positions, I entered upon a critical examination of the whole evidence that had been offered, and clearly proved, that not one of the positions supported the charge exhibited against me, upon the slightest grounds of reason or equity. …
“But, lest any misconception should arise in a case wherein I was so deeply interested I recapitulated the whole evidence,—with this solemn appeal—That what I had declared to General Washington was strictly true—what I had mentioned to my confidential friend, Colonel Hay—what I then declared to the court-martial—what I should continue to declare, through every period of my life—and in that solemn day, when an omniscient God should scrutinise my conduct!”18
The court examined the evidence on 25 Oct. and resumed the following day to pronounce its verdict: “The Charge against Joshua H. Smith, Esq., the evidence produced on the trial, and his Defence being fully and maturely considered by the Court, they are of opinion that notwithstanding it appears to them, that the said Joshua H. Smith did aid and assist Benedict Arnold, late Major-General in our service, who had entered into a combination with the enemy for the purposes which the Charge mentions, yet they are of opinion, that the evidence is not sufficient to convict the said Joshua H. Smith, of his being privy to, or having knowledge of, the said Benedict Arnold’s criminal, traitorous, and base designs. They are, therefore, of opinion, that the said Joshua H. Smith is Not Guilty of the Charge exhibited against him, and do acquit him of it.” The court then adjourned.19
Acquittal by the court-martial did not free Smith. He next faced legal proceedings in New York courts. GW ordered Smith’s return to West Point while he awaited a reply regarding the prisoner’s handling from New York governor George Clinton. Smith arrived at West Point on 2 Nov., where he remained until New York authorities ordered him transferred to the Orange County jail in Goshen. Smith left for his new place of confinement on 11 Nov. and arrived the next evening.20 Smith remained at Goshen unsure of his fate until family and friends assisted his escape on 20 May 1781. He reached New York City on 4 June and put himself under the protection of the British. New York authorities promptly branded him a Loyalist and set the stage for his decision to leave the state for England when the British evacuated in November 1783.21
Several observers felt that Smith deserved death for his role in Arnold’s treachery. GW’s aide-de-camp Tench Tilghman wrote Lt. Col. John Laurens, then at Philadelphia, from Orangetown on 27 Sept. 1780: “Surely providence has had a hand in the timely discovery of the hellish plot, of which you have heard the report—the particulars I will give you, and the mode of discovery, as far as they have come to my knowledge … Jo: Smith (who married in Charlestown and lived near King’s ferry) decamped the instant the thing took wind. He has been overtaken—is clearly a partner in the guilt, and has been by this time, or will be, hanged with André. There are doubtless more accomplices, who I hope will come out. His Excellency is still at West point endeavouring to sift the plot.”22 Col. Israel Shreve wrote his wife, Mary, from Tappan on 28 Sept. that André “has been through our camp with one Joshua Smith who pretended great Whigism. Smith is since taken and [is] to grace the gallows with Mr. Andre. If this hellish plot had succeeded, it would have given our cause a dreadful wound. But thanks to God, Arnold the Traitors hopes is blasted and the providential hand appeared on our side.”23 Virginia delegate Theodorick Bland wrote his friend St. George Tucker from Philadelphia on 8 or 9 Oct. to report the hanging of André and his suspicion that Smith—“one of Arnolds Accomplices and the Underworker of his Villainous plot”—might meet the same end.24
Smith pondered Arnold’s treason and André’s demise for the remainder of his life and eventually published an account from his perspective. Smith recalled his mood while at West Point following his acquittal: “Thus languishing under the various impressions of hope and fear, I seriously wished a termination to an existence that had become a burthen to me;—my days were imbittered by the thoughts of my afflicted family.—Even at this distance of time, my heart recoils at the recollection of those scenes of horror that tortured my imagination. It was conjectured by some, that General Washington had transmitted my case to congress for ultimate direction; by others, that, as I had appealed to the civil authority, he applied to the executive power of the state to which I belonged. I was lost in conjecture,—when, on the morning of the 10th of November, I was roused from my stupor by an officer of the horse, who delivered a note to the officer of the guard, under whose custody I was, and then, turning to me, desired me to follow him immediately; I most cheerfully obeyed, for any situation was better than the miserable state of suspense which I had so long endured.”25 The many complexities surrounding Arnold’s treachery have attracted perennial attention because the sources lack definitiveness. Without doubt, however, Smith’s involvement with Arnold put his life on a dramatically different course, with tragic dimensions.
1. See The Discovery of Major General Benedict Arnold’s Treachery, 25 Sept.–24 Nov., editorial note, and Smith to GW, 28 June. For Smith’s interactions with Arnold in late summer 1780, see , 15–22.
The failure to call Smith’s black servant at the subsequent court-martial drew a remark from the editor of that record: “It will be noticed that this negro, who accompanied his master and Major Andre on their eventful journey, was not placed on the stand; nor was his knowledge appealed to, by either the Prosecution or the Defence” (, 35).
2. , 77.
Smith later recounted how Arnold and André’s “original interview” was intended to take place at Dobbs Ferry, N.Y. (, 180–82).
3. , 2:150–52, quote on 151. For testimony from two brothers, Samuel and Joseph Colquhoun (Cahoon), who rowed Smith to the Vulture, see , 6–16, 33–34; see also , 136–38.
4. See Document I, n.2, with Major John André’s Capture and Execution, 23 Sept.–7 Oct., editorial note.
5. , 91. Arnold also provided a pass for André with the false name John Anderson (see Document VIII, n.4, with Major John André’s Capture and Execution, 23 Sept.–7 Oct., editorial note). For the contested area, or “Neutral Ground,” see , 2:185.
6. See , 2:155–56, 186–87; see also , 34–52.
8. Smith later recalled his arrival at Robinson’s house: “I was paraded before the front door, under a guard. General Washington soon afterwards came into a piazza, and looked sternly and with much indignation at me. … On his retiring, I was ordered into a back room, and two centinels placed at the door” (, 51). The fullest account of Smith’s engagement with Arnold, interactions with André, and movements until his own arrest is , 43–106; see also , 23–50. Lt. Col. Henry Dearborn wrote in his journal entry for 26 Sept.: “one Joshua Smith was taken up on suspicion of being an accomplice of Arnolds” (, 206; see also Col. Israel Angell’s diary entries for 27–29 Sept. in , 125–26).
Hay testified for the prosecution at Smith’s court-martial on 6 Oct. and was asked: “Did any conversation pass between you and the Prisoner, Mr. Smith, respecting a person under the name of John Anderson? If any did, please to inform the Court of it, and the time and place.
“A. A little after Mr. Smith was apprehended at my house at Fishkill—he was apprehended between twelve and one o’clock in the night on Monday [25 Sept.]—I got Colonel Govion to consent to Mr. Smith’s coming out of the cold room, and set in the common room, where we had a fire. At the fire-side, I sat next to Mr. Smith; and in a low voice, Mr. Smith told me what he imagined was the cause of his being apprehended, and begged my opinion on the affair. He told me he had been on board of the Vulture, sloop-of-war, at the earnest solicitation of General Arnold, to procure an interview with Colonel Robinson, who Arnold told him wanted to see him, Arnold, and that he had some terms to propose for the advantage of the States, but as far as Arnold could learn, Robinson came out with an intention to know from Arnold, that if he, Robinson, quitted the British service and returned to his allegiance to the State of New York, if he could obtain a pardon and his estate be restored to him. On these considerations, Mr. Smith consented to go on board.”
After Hay detailed Smith’s account of his movements with Anderson, the court asked Hay whether Smith, while in custody, had spoken to him about Anderson. Hay replied that “in going down from Fishkill to Robinson’s House,” Smith had “related the same story to me that I have before mentioned, and asked my opinion again of it. With that, I told him it all depended on the honor of Arnold, for says I, perhaps that John Anderson is taken, and he has told that you were on board the man-of-war; on that Mr. Smith said, ‘I hope he is not taken,’ and immediately said, however, he depended so much upon Arnold’s honor, who he was sure would set the matter in its true light, and that it was by his desire he went on board, to bring this Anderson on shore, and return him as far as the White Plains; and protested, most solemnly, before the Almighty God, that the only views he had in going on board and bringing Anderson on shore, was to gain intelligence of importance and serve his country.”
The prosecutor continued: “Had you any reason to suppose that Mr. Smith knew that Arnold was gone off to the enemy, before he arrived at Robinson’s House?
“A. I had not, for I did not know it myself until I got within a quarter of a mile of Robinson’s House, where I was informed of it by a soldier’s boy.”
The prosecutor then asked a final question: “Had you any reason to suppose, from what Mr. Smith said, that he knew this John Anderson to be Major Andre, Adjutant-general of the British Army, or a British officer?
“A. I had none. Mr. Smith has all along told me, from the night of his being apprehended to the last night when I had a conversation with him, that Arnold told him he was a citizen” (, 74–77).
The court then questioned Hay: “When Mr. Smith said he hoped Anderson was not taken, did you understand that he meant by our party?
“A. I did.”
A related question followed: “Did Mr. Smith give you the reasons for his saying he hoped that John Anderson was not taken?
“A. He did not.”
The court then followed the same line: “In the course of the conversation, Mr. Smith had with you, did he appear then to be suspicious that General Arnold and this Mr. John Anderson had been concerting something that was bad?
“A. No. He did not appear so to me, for until Mr. Smith and myself had that conversation, I was an entire stranger to the cause of his being apprehended; and could not imagine what he could be apprehended for. Then I suspected this to be the cause.”
The court’s final question again asked why Smith “hoped that John Anderson was not taken” and received the same negative reply from Hay (, 77–79).
Smith’s cross-examination of Hay sought to clarify that the defendant had no “knowledge of any designs which might be injurious to the country” (, 79–82, quote on 79). The presiding officers interrupted the cross-examination to ask Hay whether Smith, before his apprehension, had mentioned “any particular intelligence he had received from the enemy, or of any movements he expected would be made by them?
“A. He did not. He was asked by his wife, what kept him away so long: he said that he had been transacting a piece of important business for Arnold. She asked him what it was; he said it was not for women to know, or some such expression” (, 81; see also , 138–39).
9. See , 111–17. Smith later recalled his interrogation: “I was conducted into a room, where were standing General Washington in the centre, and on each side General Knox and the Marquis de la Fayette, with Washington’s two aids-de-camp, Colonels Harrison and Hamilton.
“Provoked at the usage I received, I addressed General Washington, and demanded to know for what cause I was brought before him in so ignominious a manner?—The general answered sternly, that I stood before him charged with the blackest treason against the citizens of the United States; that he was authorized, from the evidence in his possession, and from the authority vested in him by Congress, to hang me immediately as a traitor, and that nothing could save me but a candid confession who in the army, or among the citizens at large, were my accomplices in the horrid and nefarious designs I had meditated, for the last ten days past.
“I answered, that no part of my conduct could justify the charge, as General Arnold, if present, would prove; that what I had done of a public nature was by the direction of that general, and, if wrong, he was amenable; not me, for acting agreeably to his orders.
“He immediately replied, ‘Sir, do you know that Arnold has fled, and that Mr. Anderson, whom you have piloted through our lines, proves to be Major John Andre, the Adjutant-General of the British army, now our prisoner? I expect him here, under a guard of 100 horse, to meet his fate as a spy, and, unless you confess who were your accomplices, I shall suspend you both on yonder tree,’ pointing to a tree before the door.—He then ordered the guards to take me away.
“In a short time I was remanded into the room, and urged to a confession of accomplices, with General Washington’s declaration, that the evidence he possessed of my being a party, was sufficient to take away my life.
“I answered, that as a citizen I did not conceive myself amenable to a military jurisdiction; that I well recollected when he came forward from Philadelphia to take the command of the army at the camp at Cambridge, the provincial congress of New York addressed him for the purpose of preserving the rights of citizenhip; his reply to them was, that ‘when he assumed the character of the solider, he did not forget that of the citizen; and that he looked forward with pleasure to that auspicious period, when the rights of his country being secured, he might retire to the sweets of peaceful tranquillity under the protection of the law.’ I told him I could not conceive that any simple recommendatory resolve of Congress, to which he alluded, could abrogate a fundamental clause in the constitution of the state, of which I was a member, and which had, for the benefit of the subject, established the right of trial by jury in all cases whatever; that it was a violation of that right, which congress had assigned, amongst others, for their separation from Great Britain, and which had given birth to the present war.
“Enraged with the force of this reasoning, with vehement indignation he ordered the guards to re-confine me” (, 51–55; see also GW’s address to the New York Provincial Congress, 26 June 1775).
When the prosecution presented Harrison as a witness at Smith’s court-martial on 2 Oct., the defendant objected to him and Hamilton “being admitted to give any evidence respecting any Confession that he might have made in their presence.” The presiding officers cleared the court, “considered the matter,” and decided “that they should be admitted to give evidence respecting Mr. Smith’s Confession in this case.” Harrison then testified that he had been “requested by one of the gentlemen of His Excellency’s family, or some officer who was there, to go into a room to hear the examination of Mr. Joshua Smith. … When I went into the room, I found the General, the Marquis de la Fayette, General Knox, Colonel Hamilton, and Mr. Smith. In a little time after, to the best of my recollection, the General mentioned to Mr. Smith that he must be apprised of what had happened, and told him that he thought, or advised him, I don’t recollect which, that he had better make a candid Confession of all he knew with respect to the matters that had been carrying on, I think, by General Arnold, and added again that it might be better for him to act with openness and candor. Mr. Smith, upon this, made the most solemn protestations of his innocence, and of his ignorance that General Arnold had been carrying on any matters injurious to the States; professed himself to be a warm friend; and that his person and his property, or his purse, I don’t recollect which, had been devoted to their service. Mr. Smith continued to repeat his innocence of the matters then under consideration; and to the best of my recollection, made an appeal to the Almighty, who, he said, could witness the integrity of his heart. After having made these asseverations, the General observed to Mr. Smith that he was in possession of facts and evidence that would place his conduct in a very different point of view with respect to the matter in question. ’Till this period, Mr. Smith appeared to me to support himself with firmness and consistency. He then proceeded to tell the General that he would relate all he knew; and on being asked to inform whether an officer or The Adjutant-general of the British Army, I don’t recollect which, under the assumed name of John Anderson, had not been brought on shore by him, from the Vulture, ship-of-war, he said that he had. … Mr. Smith, in the course of the examination, invariably declared that his object was to obtain intelligence for us; and assigned upon its being observed by the General, or some gentleman who was present, that the mode he had adopted appeared ill calculated for that end, as he was to procure it on board of one of the enemy’s ships-of-war, that he thought it probable Colonel Robinson might be disposed to give such as would be beneficial to us, or serviceable, from a wish to have some favor, or, I think, countenance shown with respect to his estate, which was in our hands—it was observed to Mr. Smith that supposing it possible to conceive that he was really serious in the matter with respect to Robinson, that these motives could not exist in the case of Mr. Anderson, who had no property amongst us. Mr. Smith appeared much embarrassed, and answered that he could only say that Anderson was sent on shore instead of Robinson. As it appeared mysterious to the gentlemen who attended the examination, why this officer, under the name of John Anderson, was not returned on board of the ship after finishing his business, by Mr. Smith, some of the company were induced to ask the reasons. Mr. Smith replied that it was because he, meaning himself, had the fever and ague so bad that he could not go on board, though he had confessed but a little before, that he meant to proceed with him as far as the White Plains, by land, or somewhere in the country in the vicinity of that place. The examination of Mr. Smith, as well as I recollect, ended here, and he was remanded under guard. … Mr. Smith did not acknowledge the officer who came on shore with him from the Vulture, under any other name, that I recollect, than that of Anderson” (, 19–23).
The court subsequently questioned Harrison (see , 23–24). Smith then cross-examined the witness: “After the time you say you thought me firm, and previous to my proceeding in this Confession, did not His Excellency desire me to give an account of my conduct for the last ten days past, and whether I did not know General Arnold was gone off?
“A. I recollect that you, whether by request of the General or of your own accord, undertook to give an account of your conduct for some days preceding. It is possible, and even probable, that the General might have asked such a question respecting General Arnold, but I don’t recollect it precisely.”
Smith asked: “Did not General Washington first mention that this man I had brought on shore was the Adjutant of the British Army?
“A. I believe that General Washington, when he asked you if you had not brought a person from on board the Vulture, called him an officer, or the Adjutant-general of the British army” (, 24–26). Smith later claimed that “Harrison’s testimony was imperfect on the most material points, as he detailed those parts that militated against me in support of the charge, and excluded those that favoured my life” (, 133).
Hamilton also testified on 2 Oct.: “I was present when Mr. Smith, the Prisoner, made his Confession before the gentlemen already mentioned by Colonel Harrison, which was substantially as follows:—That he had been employed by Major-generals Howe and Arnold, for the purpose of procuring intelligence from the enemy; that General Arnold informed him of an interview he was to have with Colonel Robinson of the British army, in which he assured him he expected to derive information of importance, and wished to engage Mr. Smith to go on board the Vulture, sloop-of-war, then lying in the North-river, to bring Colonel Robinson on shore for the purpose of that interview; that he gave Mr. Smith an order for a boat to execute this commission; that he went secretly and in the night on board the Vulture, to the best of my recollection, with a note from General Arnold to Colonel Robinson; that his being on board was known not only to Colonel Robinson, but to the officers of the vessel; that instead of Colonel Robinson, a person under the name of John Anderson came on shore with him; that General Arnold and Anderson were that night and the next day at his (Mr. Smith, the Prisoner’s) house; that he was an absolute stranger to the business they transacted; that he was not able to return with Mr. Anderson in the same manner he had brought him to the interview, on account of his having the fever and ague. … Mr. Smith, in the course of his examination, asserted his innocence of the transactions between General Arnold and Mr. Anderson, with very solemn protestations and appeals to heaven. On being pressed as to the possibility of his having given this interpretation to the business he was concerned in, from the circumstances of Colonel Robinson having come up in a King’s vessel, which must necessarily have been with the privity of Sir Henry Clinton; having deputed a third person to represent him in a matter which would have been to all intents and purposes, treason; the giving intelligence to an enemy, as pretended by General Arnold, and of his having been received, and a third person sent, in presence of the officers of the ship, all which denoted that the object of the interview must have had the sanction of Sir Henry Clinton, as before intimated, and, consequently, must have been for promoting the interests of the enemy, Mr. Smith appeared at first a good deal embarrassed, but finally replied that he acted from the perfect confidence he had in General Arnold, whose rank and services to the country would not suffer him to entertain the least suspicion of his being capable of entering into a treasonable combination with the enemy” (, 26–28). The court asked a question to Hamilton, whose answer mentioned that he “was not present at the whole of the Confession” (, 29).
In his cross-examination of Hamilton, Smith asked how his being “very roughly used by the officers of the watch” when boarding the Vulture squared with the claim that he boarded “with the officers’ privity.” Hamilton answered: “I did not suppose that the officers of the ship had a previous knowledge of your intention to come on board; but, in the roughness of sea manners, gave you the kind of reception you mentioned to have met with, as you complained of no rude treatment, by the other officers, after you were once known. …
“You declared your ignorance of any criminal intention whatsoever in General Arnold.”
Smith continued: “Don’t you recollect my appealing to you, before the gentlemen present, at the time of the examination, with respect to my political character, as far as you knew it; and whether a charge of that kind could be laid against me, without the highest proof of my being knowing to Arnold’s design?”
Hamilton answered: “I recollect you appealed to me respecting your political character; and that my answer was, that in the early part of this contest, you had exhibited appearances of an intemperate zeal for the cause of America. …
“Many persons esteemed you as a zealot on the popular side; though intimations of doubt have been made to me of the sincerity of your pretensions, I believe from a suspicion of your family.”
Smith then asked: “Before I gave a detail to General Washington, at Robinson’s house, of my transactions with General Arnold, was I not requested to do it, the General limiting me to the last ten days?
“A. You were asked to give an account of every thing you knew of General Arnold’s transactions within a short time past. I do not remember the precise period.”
Smith pressed: “Was it in consequence of threats from General Washington, that I gave that account?
“A. Colonel Harrison has already given a just idea of what passed from the General to you on that occasion. The General expressed himself with some warmth.”
Smith’s final four questions to Hamilton related to GW having apprised him of Arnold’s flight and to his surprise upon learning John Anderson’s true identity (see , 29–32). Smith later clamed that “General Knox and Colonel Hamilton came, in testimony, more pointed to the exact truth of what I had declared, especially the latter, whose evidence was perfectly correct, by which was anticipated what must have been otherwise extracted in cross-examination; yet Hamilton artfully threw in a chain of reasoning, tending to prove my being in full knowledge of General Arnold’s intentions” (, 133). For Smith’s further cross-examination of Harrison and Hamilton, see , 32–33). Hamilton also conversed individually with Smith following the interrogation in Robinson’s house (see , 55–57, and , 86)
Lafayette testified for the prosecution on 5 Oct.: “When Mr. Smith was put in the room at Robinson’s House, it was in the morning, the day after Arnold had escaped to the enemy; there were present General Washington, General Knox, Lieutenant-Colonel Hamilton, Colonel Harrison, and myself; he began by making strong assurances of his candor, and other assurances which were not necessary to the relation of what had passed and what was asked from him, at that time; but being pleased to go on with his story, he said that he had been sent by General Arnold on board the Vulture, British man-of-war, with a flag, in the night, in order to bring on shore Colonel Robinson; that being on board the Vulture, he was roughly used by the crew of that ship; that instead of Robinson, one Mr. Anderson, whom, as far as I remember, he said he did not know before, came with him in the boat, and on being arrived on shore they met, on the beach, General Arnold; that General Arnold, Anderson and himself, came to Mr. Smith’s house; that Anderson was to return, on board the Vulture, but it was designed afterwards, between them, that he should stop in the house, where he was kept in a private room, and that Mr. Smith sent up to him his breakfast and dinner; that, towards the evening, Mr. Smith, in order to disguise Anderson, who had, until then, been in a British uniform, gave him one of his own coats, and crossed with him King’s Ferry, and accompanied him some distance—a pretty great distance; I do not recollect the place where he said he accompanied him, on the east side of the North River. The question being put to Mr. Smith, why he had undertook that business; he said he thought he was serving his country, as he was led to believe that General Arnold had opened very important correspondence with Colonel Robinson. He was then asked if he thought that it was a good way to serve his country, to go on board a British ship to get intelligence; to which he answered that he did not believe Arnold was a traitor. Being asked if he thought himself under the sanction of a flag, in the darkness of the night, he answered, ‘Yes.’ The question being put to him, why he did not return by water, on board of the Vulture, he said it was on account of his bad state of health; and upon our observing that the ill state of his health had not prevented his riding many miles, he attributed that land journey to another reason; and said that the boatmen were tired or unwilling to return. Being asked why he took so much pains to disguise Mr. Anderson, he said that he thought such a secret ought not to be known by the people, and repeated his assurances that he had no other idea, but that of rendering an important service to his country; and being pressed to discover the truth, as the only way of saving himself, he said he had nothing else to relate” (, 61–63).
The court then questioned Lafayette, who answered that Smith had said he “was not present” at conferences between Arnold and John Anderson “and he did not know the contents of them.” Asked whether Smith appeared “embarrassed in the course of his examination,” Lafayette replied: “From the length of his protestations, before entering into the relation of the account he gave of his conduct, I apprehended that he was embarrassed.” The officers then queried: “Did Mr. Smith appear to keep back any of the business he was employed in, by General Arnold?
“A. He really told the whole of the story himself freely, except the changing of the coat; and I thought he was not candid in relating the reasons which prevented his returning on board the Vulture.”
Another question followed: “Had you any reason to think that Mr. Smith was acquainted that General Washington was informed with the part he had acted, until General Washington intimated it to him himself?
“A. From the manner in which Mr. Smith was taken up, and brought to Robinson’s House, I did not believe that he could have any doubts on that matter; but nothing appeared which could confirm or destroy that opinion of mine” (, 63–65).
Smith cross-examined Lafayette: “Did I not say, when I said that General Arnold asked me for a coat for this Mr. Anderson, that General Arnold said he was only a merchant, and from false pride had borrowed a British uniform coat?
“A. You may have said so; but I don’t recollect it; it is true I was not attending during the whole time, there being many questions asked which I do not remember.”
Smith next queried: “Did you not hear me expostulate with his Excellency about the manner in which I was taken and brought down to Robinson’s House?
“A. I did.”
Smith ended his cross-examination with this question: “Did you think from the whole of my conduct when before General Washington, when interrogated, I discovered a disposition to declare all I knew about this matter?
“A. Your omitting the circumstance of the changing of the coat, and the reasons you gave for not returning on board the Vulture by water, in the same way that you came, led me to believe that you did not mean to be candid; I made you that observation at the time” (, 65–66). Smith later recalled Lafayette “was most widely different in his testimony … he delivered his evidence with acrimonious severity, and malignant bitterness: he asserted as part of my declaration to General Washington matters that I could not have mentioned; and had my life, or that of a hundred others, depended on his credibility before an ignorant court-martial, all would have been forfeited.
“I had paid particular attention to the testimony of General Knox and Colonel Hamilton, in my notes taken on their evidence; and in my cross-examination of the marquis, I applied their answers and remarks to his recollection, which did not a little embarrass him. I could plainly perceive the court-martial were sensible that he was mistaken; and I most sincerely hope he erred from ignorance of the true import of the English language.” Smith added that “from one of General Washington’s domestics, who daily brought me provisions, and who was a confidential servant of the general’s [probably William “Billy” Lee], that the marquis, on all occasions, when my name was mentioned, expressed himself with great asperity” (, 134–36).
Knox also testified for the prosecution on 5 Oct.: “I was present at Robinson’s House, the morning of the twenty-sixth of September last, with his Excellency, when Mr. Smith was brought in. The General prefaced the matter with a short narrative of what had happened, which was, that General Arnold had gone off to the enemy; and that Major Andre, the British Adjutant-general, was taken; and that they had had a meeting or interview at Mr. Smith’s house; and that there were strong reasons to induce a belief that Mr. Smith knew the substance of the conversation, that had passed between General Arnold and Major Andre; and he exhorted Mr. Smith to make a full confession of all that he knew respecting the matter. Mr. Smith made great protestations of his attachment to the liberties of America; and that what he had done he conceived to be for the public good; and that he should, in a candid manner, relate every circumstance, that he was master of. Mr. Smith said he had been employed by General Arnold, to procure intelligence; and that he conceived a design, which General Arnold informed him of, was in pursuance of that purpose. The design was to go on board the Vulture, man-of-war, and bring from thence a person who, General Arnold informed him, could give very material intelligence, and put things in such a train, that in future he should be at no loss for intelligence of the enemy’s movements … that when he came near the Vulture, he was hailed, and told to come on board in very violent and abusive language; that he went on board, was ushered into the cabin, where he saw Colonel Robinson and the person whom he brought on shore, whom he was informed was Mr. John Anderson; that he had conceived that he was to have brought Colonel Robinson on shore, but that he declined coming; and assured Mr. Smith that Mr. Anderson would answer all purposes; that they came on shore to a place a little below Haverstraw Landing, where he met General Arnold, who was upon the beach.”
Knox narrated basic facts of Smith’s travel with Anderson across King’s Ferry and below Crom Pond before covering questions the interrogators had posed to Smith: “On being asked where Mr. Anderson had changed his clothes, he answered, at his house; and that he had lent him one of his own coats. On being asked, whether he knew Mr. Anderson’s rank and connection with the British army, or the conversation that passed between General Arnold and him, he declared he did not; but that he thought it was intelligence that General Arnold was receiving, of the greatest importance for the good of America. This was the idea, which Mr. Smith constantly held up, and declared that nothing should have induced him to have been acting in the matter, but a perfect conviction of its being a matter of the greatest importance to the good of his country. Mr. Smith was asked, whether he did not advert to the impropriety of going on board a King’s ship to obtain intelligence? He replied, he did not at the time. He was strongly exhorted by the General, and other persons present, to make an ample confession of all the circumstances that he knew, which he declared he had done, and I do not recollect anything of importance more passing” (, 66–69).
The court then directed thirteen questions to Knox, including this second one: “Did he [Smith] discover any marks of surprise, when he was informed that John Anderson, whom he had brought on shore from the Vulture, was Adjutant-general of the British army?
“A. I did not discover any marks or change in his features or complexion.”
The court’s sixth question reads: “Did Mr. Smith mention any information that General Arnold had received from this Mr. Anderson, or that General Arnold told him that he had received from him?
“A. Not a word. He said the conversation was totally unknown to him. I don’t remember that the question was asked him, whether General Arnold had informed him of the intelligence he had received.”
The court’s eighth question reads: “Was this confession from Mr. Smith easily obtained from him; or did he discover a backwardness to make any?
“A. I think easily, as to the general matter, the particulars of the coat, the carrying the breakfast and dinner, the being obliged to lodge at Crompond, were drawn from him by questions: the answers to these questions were readily made.”
The court’s tenth question reads: “Did General Washington, or either of the gentlemen who were present at Mr. Smith’s examination, inform Mr. Smith that they were acquainted with his conduct before he had an opportunity of giving this relation?
“A. Yes.”
The court’s eleventh question reads: “Did he appear to be much embarrassed when his Excellency, or one of the gentlemen present, acquainted him that he was acquainted with his conduct?
“A. There was an embarrassment, but I knew not to what cause to attribute it.”
The court’s thirteenth question reads: “Can you inform the Court the time General Arnold went off to the enemy, and the time Mr. Smith was taken up?
“A. General Arnold went off to the enemy about ten o’clock in the morning of Monday, the twenty-fifth of September last; but General Washington did not know it until four o’clock in the afternoon of that day. Colonel Govion was sent from Robinson’s House to Fishkill, where it was understood Mr. Smith was, about ten o’clock that evening, to apprehend Mr. Smith; Colonel Govion returned before day, and Mr. Smith arrived between seven and eight o’clock on Tuesday morning, under guard” (, 69–72).
Smith’s cross-examination of Knox centered on when the two men had socialized with others at Fishkill on Sunday, 24 Sept.: “Did my behaviour that evening indicate a knowledge of any transaction that was injurious to my country?
“A. No: you related a circumstance of the Vulture’s being removed by some of our artillery firing on her; and that General Arnold was at your house, and was looking out of the window at the time, which circumstance, combined with others, was the cause of your being apprehended afterwards” (, 72).
10. , 117–19; see also , 22–23, and , 63–64, 79–80. For the testimony of Capt. Patrick Carnes concerning his recovery of this coat, see , 73–74. For Smith’s subsequent recollection of his torments later on 26 Sept. while in confinement, see , 57–58, 62–63.
11. See , 126–29, and , 64–66.
Smith later recalled his conversation with Mason: “The reverend gentleman, after commiserating my unhappy situation, and expressing his extreme sorrow to find a branch of a family that he so highly respected, placed in so dangerous a predicament, assured me that his utmost exertions should not be wanting to alleviate the miseries of my confinement, and that if I would candidly declare to him how I came to be in such a situation, his utmost endeavours should be made with the commander in chief to procure my enlargement. He professed to have considerable interest with General Washington, and said that he was sent by him to interrogate me on the subject, and that if I would confess who were General Arnold’s accomplices, he would intercede for my parole, to enable me to return to my family under a guard. The soothing and consolatory conduct and conversation of this venerable gentleman would have induced me to comply with his solicitation, had I known Arnold’s plot. …
“I mentioned to Mr. Mason the substance of what I had declared to General Washington, and he answered that the general was much concerned to detain as a prisoner a person for whom he had a high esteem, and from whom he had received marks of distinguished civility and hospitality; that the commander in chief was the more enraged at the defection of General Arnold than he could have been at the treasonable conduct of any general officer under his command, from the uncommonly spirited exertions he had made in the cause of his country; and therefore he was led to suspect all around him. …
I gave my reverend visitor all the satisfaction he could obtain from me, with many thanks for his consolatory advice. … He then left me, saying that he should see General Washington, and inform me of the result the ensuing day; but I never saw nor heard from him afterwards” (, 66–74, quotes on 67–69, 73–74).
12. See Documents VI and VII; , 129–32; and , 76–83; see also Document VI with Major John André’s Capture and Execution, 23 Sept-7 Oct., editorial note.
A Continental soldier wrote in his diary for 28 Sept. that André and “Smith a Tory were brought to the Army & kept under guard in a house & think they were Arnold’s accomplices” ( 460). Lt. William S. Pennington of the 2d Continental Artillery Regiment, then near Tappan, wrote in his diary entry for 30 Sept.: “Night before last, His Excellency, General Washington, arrived in camp from West Point. His appearance diffused universal joy through the Army. Some time afterward, Mr. André (and one Smith, a private gentleman, supposed to be in the West Point plot), were brought into camp prisoners, escorted by a body of dragoons” ( 322).
13. , 206.
14. , 1–2. For the organization of the court-martial that tried Smith, see General Orders, 12, 13, 14 and 20 September.
Smith later recalled that André spoke to him on the way to his execution on 2 Oct.: “As he passed the church where I was confined, while under trial, he asked the meaning of the crowd around it? and when told I was then upon my trial as an accomplice, he sighed, and said—‘Poor man! he knew nothing of the real business’” (, 168). Smith added: “It is worthy of remark, that Major Andre’s awful fate did not in the least seem to abate the fury of my persecution by General Washington. Notwithstanding the declarations of both Arnold and Andre, my guards were doubled, I was more closely watched, and I was assured daily that, from the additional evidences that were to be produced against me, I ought to prepare for the same fate as had befallen Major Andre” (, 188–89; see also Document I, postscript, with The Discovery of Major General Benedict Arnold’s Treachery, 25 Sept.–24 Nov., editorial note).
15. See , 3–82; , 130–32; , 138–48, 152–59; and Document VIII. For selections from Smith’s cross-examinations, see n.9 above.
Smith later recalled the commencement of his court-martial, particularly that Laurance “exhibited ten separate charges against me, so artfully drawn up, that the proof of one would necessarily involve, as by inference, some testimony to support the other. Aware of the snare which was laid for me, I requested that the charges might be consolidated into one general accusation” (, 129).
For Smith’s later account of his harsh treatment and opportunity to escape on the march from Tappan to Totowa, which he mistakenly recalled as beginning on 3 Oct., see , 189–93).
16. , 82–105 (quote on 82; Hay’s testimony, 85–88); , 162, 165–74; and Documents X, XI, XII.
Smith later remarked on the last stages of his court-martial, which “sat every day for about a fortnight, but proceeded very slow in the examination of their witnesses; it was conjectured by my friends that the delay was occasioned by the hope that some new matter of evidence would have arisen; and no efforts were wanting on the part of the prosecutor to bring all the testimony against me which he could procure.
“During this period, I received a very consolatory message from my brother, the chief justice; my wife and family were permitted to see me, but not without some hesitation on the part of General Washington, who even reprehended Major-General Howe for his polite attention to them; the general, however, answered, that as she was a lady of his acquaintance, and a native of Carolina, no power on earth should prevent him from discharging those duties, which humanity and politeness demanded. An elder brother of mine, in the profession of the law, was ordered from camp, until the court-martial had gone through their evidence” (, 195–96).
17. , 196–97, and , 105.
18. , 202–9; see also , 174–76.
Smith later recalled what transpired after he had delivered his summation: “I was remanded under guard, and conveyed to the place of my confinement. Previous to my arrival, some person had mentioned to the woman of the house, in which I was imprisoned, that I was condemned by the court-martial, on which the good housewife, in a furious rage, refused me admittance. The reader may conceive that I was not a little shocked with this instance of vulgar unfeelingness; another place was therefore found for my reception, in which I waited in suspense for several days, but consoled myself with the reflection that I had discharged my duty, to the extent of my ability, for the benefit of my distressed family; and composed my mind to support with resignation and fortitude whatever might befal me” (, 209–10).
19. , 106; see also , 176–79.
Smith later remembered the period before the court-martial’s determination: “I had a visit from two of the court-martial, (a Major and a Captain,) accompanied by the Judge-Advocate: the court-martial consisted of a Colonel, Major, and twelve Captains, principally collected from the Connecticut line of the army, who, being General Arnold’s countrymen, it was supposed, would be more enraged against me, if it had been proved that I was in his confederacy; and I must confess that, at the time, I considered them in no other light than a packed jury: but no gentlemen could have acted with more candour and liberality, after the principal evidences were taken.
“The object of the Major’s interview was to obtain from me an explanation of the reason why my name was inserted amongst those of the inhabitants, that were found upon Major Andre? This appeared to be a great stumbling-block to him, and which, as I have already observed, I could not remove; he left me, apparently much affected by my unhappy situation, and said, the court-martial would soon determine on my case” (, 210–12). For the members of Smith’s court-martial, including Lt. Col. Joseph Hait and Maj. Lebbeus Ball, see , 5).
Regarding the court-martial, Dr. James Thacher commented in his journal that Smith presented himself “in the character of a confidential agent in the employment of Arnold, without suspicion of treasonable conduct in this officer. This pretence is plausible, and it is his good fortune that no positive evidence could be produced to countervail his assertions. Though his actions appear criminal, yet it is possible his motives and views may have been laudable. The want of positive evidence, therefore, of his criminality, prevented his conviction; but so strong was the circumstantial proof of his guilt, that it was deemed proper that he should be kept in confinement” (, 233–34).
Smith later recalled “an expression of General Washington to my friend Colonel [Ann Hawkes] Hay, when I was under my trial for life, viz. ‘that we may as well hang him as not, for he can never be happy if acquitted.’ It is somewhat remarkable, that he never published the sentence of the court-martial which, for six weeks, was employed in my trial, thereby intending to fix a stigma that, he conceived, would embitter my future life. I am confident that he anxiously meditated my destruction; but, being favoured by the law, and the hand of Divine Providence, which sustained me under my severe afflictions, I was enabled to offer a defence, that baffled every attempt to cause me to suffer the tragical fate of the lamented Andre:—Yet Washington would have attempted my destruction, had he not been dissuaded by General Greene, on account of the insufficiency of the evidence, and the influence of his lady … as well as from a special regard which General Greene bore towards a favourite nephew, Lieutenant-Colonel William Livingston” (, 121–22; see also , 212–14).
20. See Documents XV, XVI, XVII; see also , 214–22, and , 180–86.
21. For a narrative of Smith’s escape from prison and of his subsequent life, see , 190–246; see also , 225–28, 259–303.
22. “Army Correspondence of Col. John Laurens,” 3 (1902): 20–23, quotes on 20–22.
23. , 76 (brackets in source). In a letter devoted mainly to Arnold’s treachery written at Orangetown on 8 Oct., Lt. Benjamin Gilbert wrote his father (Daniel) and stepmother (Mary Goddard Kimball): “One Smith an Inhab. of haverstraw who was confederate in the above plan, is under Tryal and no doubt will share the same [André’s] fate” (, 22–23).
24. , 16:163. Maryland delegate John Hanson expressed the same belief regarding Smith when he wrote Gov. Thomas Sim Lee of that state from Philadelphia on 9 Oct. (see , 16:165–66).
25. , 213–14.