Robert Treat Paine Papers, Volume 4

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From Jonathan Payson

State versus Daniel Peirce et al. on the charge of treason

Soon after the Battle of Bennington, which unfolded in the Walloomsac River area (near the convergence of New York, Vermont, and Massachusetts) in August 1777, some Berkshire County militiamen were taken into custody on suspicion of deserting to the enemy. They were discovered unarmed, by most accounts, behind an enemy breastwork. Thirteen men were later tried for treason in two legal groupings (one of six men: Daniel Peirce, Richard Huddleston, Elijah Cunningham, Elijah Brown, Martin Townsend, and Joseph Vaughan; the other of seven: Thomas Rogers, Simeon Franklin, John Franklin, John Gardner, Benjamin Gardner, William Brown, and Philemon Lee) at the September 1778 Superiour Court of Judicature, held at Springfield. While the men were not convicted of treason, they were convicted of a “high misdemeanor.”

Grand Jury notes

RTP

Supr. Ct. Springfeild. Septr. 1778 Coram G: Jury Capt. Wm. Duglass.1 I gave orders to march to Wm. Brown James Rennolds John Gardner, ~~Eleazer~~ Simeon Franklin to Albany. they did not appear at time & place & also Elijah Cunningham & Samll. Rogers & Jabez Carr. I had not given orders to the others persons of Hancock. I had continued to go to Bennington & when we mustered; Elijh. Brown Martin Townsend jr. John Cunningham, Richd. Gardner; Richmond Carr; Philemon Lee John Franklin Thos. Rogers, were out of their way & had not orders given them, & I did not see them till after the Bennington Fight & the above persons who were warned were not to 54 be found till after sd. Fight. I first saw Thos. Rogers in Enemys Line in custody of Wheeler Duglass as a Prisoner. I never gave him orders to march because of his Fitts, but it did not impair his Reason; the Monday after fight I saw in Bennington M:H. Richd. Carr, Elijah Cunningham John Cunningham, John Gardner, Benja. Gardner, John Franklin, ~~Eleazer~~ Simeon Franklin, James Rennolds wth. the other Prisoners taken in the Battle2 Reuben Eli of Hancock, Robert Carr told me he knew wn. they went from Pownal they were going to Enemy, gave em Bread & Cheese & wished em Good Speed Capt. Saml. Clark of Williamstown: Danl. Peirce Richd. Huddleston, Joseph Vaughan had orders, but never wt. to be found: I recd. them at Tory Breastwork & put em in Ben. M:H. I asked em how they come there, I also saw Elijah Cunningham & a number of Persons from Jerico; 3 Peirce was considered as a Tory, & Huddleston would not bear Arms & Vaughan was not much called upon to duty being poor & weakly Joseph Whetford of Sunderland in Vermont I used to live in Jerico & at Bennington in time of action Saturday I joined Colo Herrick. took Martin Townsend he told me Whitman Vaughan was killed at the Breastwork Peter Payne of Pownal: by Capt. John Reister in Hoosuck I saw on Thursday Danl. Peirce, Richard Hudelston. Saml. Rogers, Jos. Vaughan, one ~~John~~ Dayfort was sent back to Pilot in six more, at Blakely. Danl. Peirce clap’d his hand on hearing the Enemy was coming Walloon Scaik, a few of Jerico men vizt. Saml. Rogers & Richd. Huddleston had arms, at Esqr. McCooms, Col. Feister4 musterd em all & put me under Capt. Anderson. ~~they~~ he said they were brave men he sd. they were come to assist him. 77 men mustered, Col. Feister sd. they would have arms wn. they got to the Line Friday PM we went to the lines at Walloon Scaik & went to building the Breast Work. I saw Saml. Rogers there under arms. Capt. Anderson bid us put white paper in our Hatts to mark us. I saw Benja. Gardner & John Gardner after they were taken, they sd. they were taken within enemy lines Col. Joab Stafford5 of New Providence, I went Thursday to Reinforce Genl. Stark, at my house I askd. Solomon Bunnel 6 where he got his wound he sd. at the Tory Breastwork, he sd. he ment to fight for the King. 55 Shubael Wilmarth, New Providence, I saw Sol: Bunnel at the Bridge by Breast Work & took him Wm. Kettel, Cambridge District } see Thos. Rogers within Enemy lines & Danl. Peirce: Richmond Carr: Franland Martin Townsend Elijah Brown Richard Huddlestone John Gardner Benja. Gardner Joseph Vaughan Blackman Browning7 ) of Cambridge district Albany county I was there on Saturday being taken prisoner by Indians see Thos. Rogers Benja. Gardner Richman Carr Martin Townsend Elijah Brown John Gardner Caleb Clark Elijah Cunningham Shibner Spink } of Hancock. I saw Thos. Rogers with his Pack on Wednesday he asked me where he cd. find his Uncle Edwd. Carr Bethuel Boker } of Lanesborough Ashbel Goodrich } of Lanesborough. Danl. Galusha ) of Elijah Cunningham & Richd. Huddleston, Danl. Peirce went to St. Scoik with his cattle Jason Wood: saw Danl. Peirce in Enemies Lines Jacob Galusha ) abt. Elijah Cunningham & Richard Huddlestone Benja. Swet of Hancock ) 56 John Nichols of Hancock ) Caleb B. Gardner of Hancock ) Ezel. Whitford. set out from Hancock on Wednesday morng. vid his Evidence at large Richmond Carr: I went from Hancock wth. Philemon Lee & Wm. Browne & march’d as Ezl. Whitford has related, to Ransalares Mills where I saw Lee shake hand with his brother & left him there. Brown went to Enemies Quarters. Eleazer Bateman ) John Franklin of Hoosuck was drafted by Capt. Duglass. I saw him among the Prisners. ~~Joshua~~ Josiah Farnum. I saw Solomon Bunnel at the Bridge, he was taken among the prisoners. he used to say he would not fight on either side Wheeler Duglass. Thos. Rogers Edward Wheeler. saw Thos. Rogers at home the Wednesday before. I took him after the Battle in the Lines Abraham Havens saw Phil. Lee, Wm. Brown Richman Carr Ezl. Whetford Clark Gardner, Caleb Clark, Gideon Clark, Benja. Gardner, John Gardner Thos. Rogers, John Franklyn, Peleg Carr, Simeon Franklyn; Phil. Lee perswaded me to go on Wednesday Evening, met at Wm. Brown at Esqr. McComb old Hoosuck we proposed to go to the Enemy we went into the Barn had 3 guns, 4 more brought in. Thos. Rogers, Peleg Carr, one of Franklyns, John Gardner took Guns Phil. Lee the 2 Sweets carried guns from house. Phil. Lee said he would have satisfaction, soon after we got to the picket guard Govr. Skeen ordered us to march from the Mills to Walloon Scaick. Jason Wood. Saw Daniel Peirce within Enemies Lines and among the Prisoners traveling wth. Capt. Saml. Clark8, & in Bennin. M. House Capt. Wm. Duglass. I gave orders to march to Wm. Brown James Rennolds John Gardner Simeon Franklin 57 Elijah Cunningham Saml. Rogers Peleg Carr I saw Thos. Rogers in Enemies Lines I saw in Bennington Meeting House Richard Carr Elijah Cunningham John Cunningham John Gardner Benja. Gardner John Franklin Simeon Franklin James Rennols Mr. Attorney Sir9 1st Did not the prisoners by going into the enemy, comply with & follow the direction of Burgoine’s proclamation—Was it not doing what ~~the~~ Genl. Burgoine, invited them to do, in order to effect a conquest? Did they not adhere to the enemy & desert us in the very manner the enemy proposed? Some of the Witneses say that it was talked by some of the company that they need not take up arms unless they chose it. The very terms of the proclamation hence the prisoners, might, say after they had join’d the enemy that they did not mean to take up arms. But after they were in the enemy’s camp, & of course in their power, could not the enemy compel them actually to take up arms in which case of cumpulsion, would not their crime consist in putting themselves in the enemy’s power. Is not the crime the same in them altho that compulsion is not used? If in the Case of murder, the persons who are of the company, altho they stand still & do nothing, are accessory to the murder, as their very presence tended to dishearten, the murdered man ~~for~~ from defending himself—or attacking the assaillant—Shall not persons, who are in company with the enemy, at the time of action, be principals in treason, as in such an instance, their very presence tends to encourage the enemy to attack & animate them while fighting on the one hand, and on the 58 other hand, by their appearance & numbers, even at a distance, tend to discourage our people from attacking, and dishearten them while engaged? How many ~~battles~~ victories have been obtained, from less services by their adverseries—, than those rendered by the prisoners and the company in the present instance?

MS .

Capt. William Douglas of Hancock commanded the 3d company, Col. Benjamin Simonds’s (Berkshire County) regiment (Mass. Soldiers and Sailors of the Rev. War, 4:903).

Battle of Bennington, Aug. 16, 1777.

Jericho Plantation was established as the town of Hancock in 1776.

Col. Francis Pfister, a retired English officer who was living on half pay near Hoosick Four Corners, commanded the loyalist American Volunteers at the Battle of Bennington (Frank Warren Coburn, A History of the Battle of Bennington, Vermont [Bennington, 1912], 38).

Joab Stafford was a captain, not colonel, in the New York militia. He was wounded at the Battle of Bennington (F. B. Heitman, Officers of the Continental Army during the War of the Revolution [Washington, D.C., 1893], 378).

Solomon Bunnell served as a private in Capt. Joseph Barns’s company, Col. Benjamin Simonds’s (Berkshire County) regiment in Apr. and May 1777; and in Capt. Ebenezer Newell’s company, of the same regiment, July 1777 (Mass. Soldiers and Sailors of the Rev. War, 2:810).

Blackman Browning was a sergeant in Capt. William Douglas’s company (Mass. Soldiers and Sailors of the Rev. War, 2:706).

Capt. Samuel Clark’s (2d Williamstown) company.

In another hand.

Indictment

RTP

September 22, 1778

Hampshire Ss At the Superior Court of Judicature Court of Assize and general Goal delivery begun and holden at Springfield in the said County of Hampshire, and for the Counties of Hampshire and Berkshire on the ~~last~~ fourth Tuesday of September in the Year of our Lord Seventeen hundred and seventy eight and in pursuance of an Act and Law of this State of Massachusetts Bay in New England made and passed by the great and general Court or Assembly of the same in the Year of our Lord Seventeen hundred and 59 seventy eight, entituled an Act to direct the Justices of the Superior Court of Judicature Court of Assize and general Goal delivery to try certain persons now confined in the Goal at Northampton in the County of Hampshire and in the Goal at Great Barrington in the County of Berkshire and for procuring Evidence to be used in said Trials.

The Jurors for the Government and People of the Massachusetts Bay in New England upon their Oaths present that Daniel Peirce of a place called Trees Grant adjoining Williamston in the County of Berkshire husbandman being a member and Subject of the State aforesaid, and owing allegiance to the same, not having the fear of God in his heart nor having any regard for the duty of his Allegiance, but being moved and seduced by the instigation of the Devil as a false Traitor and Rebel against the Government and People aforesaid, entirely withdrawing that cordial Love and due Obedience Fidelity and allegiance which every Subject & member of the same State of right ought to bear to it: And also most wickedly and Traiterously devising and conspiring to levy War against this State and against every other of the united States of America and adhering to the Enemies of this State and of each of the united States of America and giving them aid and comfort, thereby most wickedly and traiterously intending as much as in him lay to change and subvert the Rule & Government of this State, duly and happily established under the good People of the Inhabitants and Members of this State and to reduce and subject this State to the Government and Subjection of the King & Parliament of Great Britain upon the Sixteenth day of August in the year of our Lord Seventeen hundred & seventy seven at a place called Walloon Schaick in the County of Albany and State of New York with a great number of Traitors and Rebels against the Government & people aforesaid to wit, to the number of three hundred whose names are yet unknown to the Jurors in conjunction with the Enemies of this State being armed and arrayed in a warlike and hostile manner, to wit, with Colours display’d, Drums beating, Pipes playing & with Swords, Guns Clubs, Pistols & divers other Weapons as well offensive as defensive with force and arms did falsly and traiterously assemble & join themselves against this State and against each & every of the united States of America, and then & there with force & arms did falsly and traiterously array and dispose themselves against the Government and People aforesaid and against every of the united States of America, and then & there with force and arms in pursuance of such his wicked and traiterous Intentions and purposes aforesaid did falsly and traiterously prepare, order, Wage & levy a public and cruel War against the Government and People aforesaid and against each & every of the united States of America, then and there committing & perpetrating a miserable and cruel slaughter of and among the faithful Subjects and members of this and every of the united States of America, and then and there with force & arms in pursuance of such 60 his wicked traiterous intentions & purposes aforesaid did falsly and traiterously repair & go to the Encampment & within the Lines of the Enemies of this State and of the united States of America then waging public cruel & bloody War against this State and each & every of the united States of America and conspiring & endeavouring to reduce them to the subjection & Government of the King & Parliament of Great Britain and did put himself under the military Controul and direction of the same Enemy then encamped at said Walloon Schaick all which is against the duty of his Allegiance the Peace of the Government and People aforsaid the Laws of the State in Such Case1

Case made & provided & the Dignity of the Same

R T Paine atty. pr. Stat.

a true bill

Nathel. Ely Foreman

MS (Suffolk Files, no. 158172. Massachusetts Judicial Archives, Boston, Mass.). The text of this indictment is in a clerk’s hand with minor editorial additions and signature by RTP.

At the same session of the court, there were similar indictments against Richard Huddleston of Trees Grant, “an Infant under the age of twenty-one” (Suffolk Files, no. 158173); Elijah Cunningham of Hancock, yeoman (158174); Elijah Brown of Hancock, laborer (158175); Martin Townsend of Hancock, laborer (158176); Joseph Vaughan of Williamstown, husbandman (158177); Simeon Franklin of Hancock, an infant (158178); Benjamin Gardner of Hancock, laborer (158179–158180); and Thomas Rogers of Hancock, laborer (158181).

Although the indictments and minute books of the SCJ treat these cases individually, RTP’s notes indicate that they were tried together in two units: State v. Daniel Peirce, Richard Huddleston, Elijah Cunningham, Elijah Brown, Martin Townsend, and Joseph Vaughan and State v.Thos. Rogers, Simeon Franklin, John Franklin, John Gardner, Benja. Gardner, William Brown, Philemon Lee. RTP’s diary noted on Sept. 28: “the Trial of six Persons for high Treason comitted at Wallon Schaik, came on & lasted till 3 oClock in the morning”; Sept. 29: “the Jury brought in their Verdict, not guilty”; Sept. 30: “the Trial of seven other persons for high Treason came on, Court at 10PM adjournd to next day”; Oct. 1: “the Trial went on. Case given to the Jury in the Evning”; Oct. 2: “Jury brought in five not guilty & two vizt. Philemon Lee & Wm. Brown guilty motion in arrest of Judgt. contd. for advisement. Court finished PM.”

Trial notes

RTP

State vs. Daniel Peirce, Richd. Huddleston, Elijah Cunningham, Elijah Brown, Martin Townsend: Joseph Vaughan: at Springfield Supr. Court. Septr. 1778.1

Capt. Wm. Duglass ) I recd. orders from Col. Simons2 to march ½ <the> my militia company. I was to take command of the company of Williamstown: I ordered Elijah Cunningham to march he Martin Townsend & Elijah Brown belonged to me; I had ordered some march before & they did not. Col. Simons order’d me to take a guard, Elijah Cunningham did not appear. I found he was at Daniel Peirce, on Wednesday I saw El. Cun. & Richd. Huddleston come out & run, they had appeared under arms under me. I don’t know that they were at choice of officers I saw all 6 in Bennington M: House as Prisoners. I had seen ’em all a short time at home. Jos. Vaughan told at Williamstown me he was wounded. there was a great tumult among the people on acct. the Enemy, it was sd. Gen. Sch: was a traytor. my brother fired at Huddleston & Brown there had been a division abt. officers, but had got Steady Cunningham had been in service I let ’em know I would not march any man off the Parade that had any reasonable excuse Townsend & Brown had been drafted in the Spring. I saw Whitman Vaughan dead in the Tory Breastwork Capt. Saml. Clark. ) Peirce Huddleston & Vaughan belonged to my Company at Williamstown, I drafted Huddleston & Vaughan for one month. I had the command of the first party of Prisoners several 100 of all sorts I saw at B. Meeting. Cunningham Huddleston & Vaughan, & Peirce. Vaughan sd he was wounded going across the River I let no body go in but Prisoner, next day saw Brown looking out of window, I recd. Prisoners at Breast Work. They had no arms nor the other Prisoners. Peirce sd. he was taken by the House by Bridge & had not fought there was a jelousy of some abt. Genl. Sculyer, but not of this Party. Vaughan was poor & had been found Saw Townsend in B.M.H. Sunday or Monday. he sd. he was taken at Esqr. McCoom’s & Brown. 62 Ezekiel Whetford ) I live in Hancock Saturday morning at Renselaire mills. Danl. Pearce Richd. Huddlestone sd. they saw us & run, at the mills was a Guard of British Troops, they gave us terms. Saw Govr. Skeene there. Dayfoot asked us to go to Headquarter. 20 persons with me, they went to Headquarters abt. 12 or 1 oClock. I saw Elijah Cunningham & Martin Townsend & Elijah Brown but not Vaughan, we pass’d a Company of Indians. I was drafted & tryd to keep out of the way, I was on the mountain & heard that Capt. Duglass would take any 4 he could not get them he had drafted Townsend & Cunningham sd. they had not joined the Enemy nor did intend to I had heard there was trechery in Gen. Sch: I did not pecieve any danger in returning from McCoombs, heard Enemy in Possn. of Mills Dayfoot told us to bind papers in our Hatts to keep the Indians from firing on us. Joseph Whetford ) I lived at Bennington I saw Martin Townsend taken no Gun. he had a hors tail & paper in his Hatt, wch. was a Tory mark, I askd. him What he did with it. he made no answer, he asked me how I came there if willingly I sd. yes, he sd. you Lye you are a Prisoner; he told me Whitman Vaughan was killed, this was directly after the battle. Jason Wood ) I saw Daniel Peirce abt. 20 Rods from Tory Breast Works & after on Monday evening I saw him at BMH: I saw Cunningham at M House I asked him wt. he thought of going to the Enemy he wd. not answer but turned away. Peter Payn ) Thursday before fight I came to Peirce & Huddlestone, by John Reister in old Hoosuck, went to Blakelys in Pittstown, heard Enemy had got to Wallon Schaick, Danl. Peirce clap’d his hands, & co. sd. well done Mr. Peirce, I saw Richd: Huddleston have a Gun, at Hoosuck & at Pittstown, Capt. Anderson there, went to Esqr. McCoom barn: Col Feister came to Pittsfeild barn, Huddleston said he was going with them, Thursday night we got there with Peirce & Huddleston talk of going to Enemy, Wednesday morning Col. Feister there, & saw Huddleston, Feister sd. they sd. have guns wn. they come to the lines abt. 20 that came in had Guns—75 were mustered. we marched across the Woods & come to the Enemies Lines saw Huddleston & Peirce & we went to building the Breastwork Capt. Anderson bid us work there & before we got in he gave us a peice of paper to put in hat & that Indians sd. we must have Horse hair in hatts: I don’t remember seeing them till after they was taken in 63 the BMH. Danl. Peirce carrying Payls up to the Breastwork: in the Co. at Pittstown they talk’d they wantd to catch Capt. Clark & Peirce & Huddleston were present, one that drafted 2 of them. Wm. Kettel ) on Saturday saw Peirce & Huddlestone before Battle. Elijah Brown Elijah Cunningham there Thursday were washing. I saw Martin Townsend in camp: I saw Joseph Vaughan. Some of sd. they did not know of the Enemy being there, & they were going to see their Freinds at White Creek, the people that had been freindly went to the Enemy & Surrendered; the rumour was that they that went in would be safe without fighting they said they did not incline to take up arms. they said they had been drawn & paid their fines, & yet were called upon, & supposd they should be freed to go Blackman Browning, of Cambridge District in Albany Co.: I saw Martin Townsend by the River in the Lines by their Bounds washing. Elijah Brown Elijah Cunningham: Brown sd. he did not mean to take up arms, on either side: the Enemy arrivd at Walloon Schaick on Thursday morning Richmond Carr ) I got to Renslars mills Thursday morning Peirce & Huddleston came in saw a British Guard there. saw Govr. Skene at Distance, Dayfoot urged them to go to head quarters. saw officers there, they went with me to Head Quarters: there I saw Martin Townsend & Elijah Brown. saw Joseph Vaughan there, am not certain I saw Cunningham Abraham Haven Force 121. the only force 22 do. John Wedderburn Case 216.§.8. joining with Rebells 241. calls Confession

for Prisoners

Isaac Perry of Hancock ) Monday same week of Battle, orders for men: met PM: some men drafted Robt. Car sd. he had rather his Son shd. pay his fine than go: Capt. said he must have the men & would not take the fine: I was acqainted with Martin Townsend & Cunningham & Brown Townsend sat out early to defend the Country: no contention in Town in 64 1777: Several were disgusted abt. Genl. Schyr: Thursday evening heard at Hancock that the Enemy were at Wall Scaick. Timo. Walker ). acording to the Obs: I have made the Hancock Prisrs. are Whiggs some think otherwise, Robert Carr offered to pay fine & some others, Capt. Duglass sd. he must have the men, & turned to me & sd. you that are Select men must prepare Carriages to carry Baggage, & men too, they must go. Edward Wheeler sd. he would shoot them Jacob Galusha, Huddlestone sd. he was at drafted. Cunningham was at Peirces where Huddlestone lived; Tuesday or Wednesday of the Battle they run from the House, Capt. Duglass & his Brother Nathl. after them, & Nathl. fired a Gun. Peter Payn at the Goal said he could not swear he saw Dan. Peirce in Breastwork no opposition at Williamston. Ebenezer Smith ) Peter Payn sd. he could not swear he saw Daniel Smith on Thursday at Walloon Schaick Abraham Gardner ) I have known Peter Payn he is not worthy to give an Evidence Danl. Galusha: Wednesday Huddlestone & Peirce were shot at by Nat Duglass Saml. Sweet ) Peirce & Huddlestone come into the Camp on Thursday abt. 11 or 12; they said they were afraid of being shot by At home they went into the Barn till action was warm John Cunningham, father of Elijah, we was frightd. by Capt. Duglass, his shooting at Elijah. Cunningh. Townsend, Brown, Vaughan & Huddlestone. Saw Peirce come in on Thursday. Guns were brought but they could not take them. we went together. Huddlestone parted, after Battle had been some time Peirce came in Strong3 men are always angry wn. drafted & will say they had as lief be under Ld. North as such Folks. they were threatned to be killed fired at &c. they had Freinds in those parts 65 the fright they were in from the approach of the Enemy. Strange that fear should drive ’em from the Freinds to their Enemies, & how were they to prevent taking up arms after they had got there they were afraid of being shot by Dayfoot they carried no Guns. Payn sd. Peirce & Huddleston came in on Friday but 3 others say he came in on Saturday we he have a hard case to prove we were there where would they have gone if the Enemy had overcome? Blackstone4 Hale5 what make such War as to be Treason 4 Black 82. there must be some overt act Foster6 208. quo animo. did they assemble Deacons Case Wedderburn Case Hol. 165. English living in France 169 delivering up a Castle thrô fear not Treason Foster 218: same 214. Case of Purchase How. 32. § 26. 37 24. Ray7 1585. abt. adhering. might be there out of curiosity Fos: 216 abt. Force of fear we are now establishing a System of Liberty there must be some agreement between the actor & aiders to make the latter guilty they could have no knowledge that the Enemy was in that part of the country They have had Gentn. to collect evidence.

Tuesday Septr. 30 State vs. Thos. Rogers, Simeon Franklin John Franklin, John Gardner, Benja. Gardner, William Brown, Philemon Lee. Capt. Wm. Duglass ) I recd. orders to march wth. ½ Militia. I musterd on Monday: gave marching orders to John Gardner Wm. Brown Simeon Franklin to march on Tuesday: part appeared to march, they did not appear at time & place, (I met Wm. Brown coming down to tell me he was not able to travel) I sd. if I was convinced of his not being able I wd. excuse him. I told him not to be out of the way. he sd. he would not: I took Serjt. & guard to look up those who did not appear. I went to Danl. Peirce with Nathl. Duglass. Supposing Elijah Cunningham to be there, he shot sd. he shot into the air to bring ’em too. Thursday morning early Col. Simons had orders to march to Bennington. Philemon Lee, John Franklin Thos. Rogers Benja. Gardner were not to be found Thursday morning to give Orders to, (I did not call upon Thomas Rogers to do military duty & I told him I should not call upon him) I had seen ’em all a short time before I had met with dificulty at alarum before they wd. go into the woods & then return again: the Col therefore told me I must carry ’em under guard & not to take the fine of 3£: we got to Pownal that Night abt. 15m. got to Bennington on Friday noon, there were stores there & Genl. Starks on Thursday we got to Walloon Schaick abt. 9 oClock to our Picket Guard abt. ½ mile this side. I was at Tory Breast Work, wn. the lines was forced. I saw Whitman Vaughan lay dead, he belonged to my Company & also Jabez Sweet immediately Wheeler Duglass sd. he had taken Thos. Rogers a Prisner. I ask’d him wt. he did there he wth. heavy Heart sd. I have done no , at the Picket Guard I saw Robert Sweet a Prisner wounded he died: I saw in B.MH. all but Lee & Brown: they sd. they did not fight. I sd. they all said so: Brown & Lee sd. they retreated back with the Enemy to Burgoyne, & came away just before he surrendred & came home; the first I saw of Lee was in Custody. Brown sd. he had tended Schuyler Mill for them, Lee acknowledged doing some business I think: I told ’em if they had any reasonable excuse I shd. accept I had released some, Brown in perticular he sd. he would not go out of the Way: (Lee in June told me he was whipped for having one of Hows Proclamations, he sd. his Brother desired him to bring one up) 67 Wheeler Duglass ) in the time of Bennington Batt. I was one who went round. Thos. Rogers was deld. to me as a Prisner by Edd. Wheeler, he said he came to Pownal to get a Colt. I sd. it was some distance he sd. I came here to see his uncle: Brown & Lee were absent from the time of our marching till after Burgoyne surrendered he came & comitted sent him Lee to Goal, and Brown was also sent Brown sd. he retreated with the army to Saratoga, to his & work’d in Schuylers Mills for the Inhabitants, he sd. wn. he had a good opportunity he made his Escape & came home, Lee sd. he did not fight after he retreated, to Stillwater but went into the Hospital Lee got home 2 days after the Surrender. he sd. he went away West from Edward Wheeler of Hancock ) I was one of the 5 or 6 ordered to lock up those that were Drafted & saw him Rogers on Wednesday. I saw him at Walloon Schaick & made a Prisner of him abt. a mile from where the Battle was fought on the same spot where the 2d action began, he was coming on Road from the mills 2 persons with him one had a Paper in his hatt. he sd. he had been to get his young mare of his uncle & the Indians took him & carried him within the Line Ezekl. Whetford ) a No. were drafted & ordered to appear at Esqr. Duglass. several offered to pay fines & were refused. James Rennols was one, none of the Prisners present; I was drafted, on Wednesday I saw Thos. Rogers & went with him & tarryed on the mountain Thursday morning went from thence to go to White Creek, went to Pownal, there heard a scout had come out from the Enemy to Bennington Friday morning Dayfoot sd. he would conduct where we should be safe, the 2 Sweets came to us with arms & kept with us as far as we went, Clark Gardner came to us, It was sd. that Capt. Duglass had sd. if he cd. not get those that were drafted he wd. get others: they talk’d that Schuler was traitor & there was no opposition & they were afraid. we went to Esqr. McCoom Dayfoot went with us, McCooms said Enemy twas got to Walloon Schaick & they had 4000 & 700 Indians & 3000 more coming up, stay’d at McCooms that night. he encouraged us to go to the Enemy. & Dayfoot was busy: McCoom asked if they had Guns Dayfoot sd. not many—the Sweets had their guns there, a Dutchman named Fosbury who had a gun who came from ~~Pownal~~ Hoosuck 3 miles with us brought 3 or 4 Guns to us & wanted us. we had followed Dayfoot as a Leader, I did not see what Rogers did with his gun. Dayfoot told me must put papers in our Hatts that 68 the Indian should not hurt us. Dayfoot conducted us to Ranselaer’s Mills on Thursday morning. 4 guns in co. 2 Dutchmen & 2 Sweets. there was a Guard at the Mills of Torys some in Red Coats one man stood centry armed. Dayfoot encouraged us to go to Headquarters, the Prisner seam’d backward as last they went, I heard no Threats at the mills, at McCoombs it was said the Dutch man sd. they would fire upon any that attempted to go back; (I did not percieve any danger in going back) Lee stop’d at Ranslaers mill. & shook hands with a person called his Brother: before we got to Pownel. Broadway asked Lee if he would carry a Gun he sd. no he did not mean to have one. said he had sworn, or taken the oath, & he would not be taken with a Gun: we drank Rum at the Mill: going to Headquarters we passed by some Indians: we did not go to the Breast Work, but scatterd about (The Sweets did not say they were going to the Enemy. I thought their Guns were to hunt) we went there by reason of the distress at home, & we were afraid of fighting the Enemy by reason of the Treachery: Richman Carr Wednesday PM Thos. Rogers & als. went upon Mountain he said he wd. go to see his Aunt. Thursday morning the others came to us & the Sweets. we went to Pownal. Dayfoot sd. he would lead us where we should be safe this was on Friday morning by Caleb Rennols. I thought he was pretty clever of a man, (I told him how we were treated in Hancock) got to Esqr. McCoombs Friday night. Esqr. McCoomb told the No. of the Enemy & sd. they were at Walloon Schaick, he advised us to go to the Enemy. some Guns brought in to the Barn. Esqr. said it was dangerous to go to the Enemy no centry abt. the barn. we went to Ransalaers Mill a No. of Soldiers there one officer, a centry. all of us went there, I did not endeavour to shun them I was going to White Creek thence we all march’d to the head Quarters; offers were made of Fame & money: they sd. they would not engage; Saw Govr. Skeene. I took it he was going after the Reinforcements: John Gardner surrendered himself after the battle. (I was afraid of being taken and brought back for deserting) we talked of working for the Inhabitants, the Gardners talked of going back: (we expected to go back to Hancock in a few days, we thought the Enemy would run thrô the Country) 69 Eleazer Bateman ) I saw John Franklin with a number of Hessians & other Prisners after first battle by Bridge. I saw Thos. Rogers a Pris’ner with Wheeler Duglass. Wm. Brown came to me after surrender of Burgoyne & delivered himself up. Lee & Brown sd. they retreated with the Enemy from Renslairs Mills Abraham Havens ) I lived in Hancock and thought to return to R Island. I met with ’em Tuesday night all but Rogers they asked me when I was going, Thursday we went to Caleb Rennols in Pownal Wednesday found Thos. Rogers R Car, P Carr E Whitford Cl. Gardner & the Sweets they had Guns. Phil. Lee brought a Gun, he gave it to Broadway son Broadway came with us with his Guns & parted with us: at Rennols I saw Dayfoot, I understood he sd. there was a guard kept where our people could take us up; Frosbury had a Gun. when we come near McCoombs I heard firing, Lee sd. it would not do to break Co.: at Rennols some bread in a bread trough: Esqr. McCoom sd. the woods were full of Indians. bid us put markers in our hatts Lee had his Gun at McCooms. 4 more Guns were brought by the Dutchmen. Thos. Rogers took one; Peleg Carr another one of the Franklyns & John Gardner. they carried them to the Mills, a Picket guard kept there of the Enemy, they asked us to fight they said no. they did not intend to fight, they bought Rum, there was 17 of us, at Walloon Shaick the Winter of Baum asked how many. Govr. Skeene said the Rebels were gathring for battle, he directed Dayfoot to conduct us to Headquarters, we all went but Lee his brother was there on guard & armed we all went to Hoosuck Dayfoot in front, they that had Guns went to the Bridge. at Mills (Lee sd. they had whipp’d him & he wd. have Satisfaction)

for Prisoners

Blackman Brownin Saturday after 12 oClock he saw Benj. & John Gardner & Thos. Rogers, no Gun. Benja. Gardner was afraid & wanted to get off towards a party of our men. the talk was that the Enemy had said they might come in & not fight. I saw ’em off at the spring no arms: the Enemy leave so suddenly the People could not get away. Prisoners were made of some & some moved away. Saml. Sweet ) I saw Thos. Rogers, Benja. Gardner & John Gardner when they came in abt. 11 oClock not armed that I saw; people came in from a distance. Genl. Starks lives 2 miles from the Enemy 70

for Prisoners

Martin Townsend ) Capt. Duglass came to Jona. Cunningham house & enquired for his son after he was drafted, thence he went to James Rennols & Benja. Baker & Rennols Baker were armed, Rennold no, they put up Guns did not fire, people intimidated because Enemy prevaild: Timo. Walker a No. that were drafted refused to go. Robt. Carr & James Rennols offer’d to pay his fine. Capt. sd. Carriages must be provided. I did not suppose he meant to carry the men in Carriages. Edd. Wheeler sd. he wd. shoot them if he cd. not catch ’em; Havens told me he did not swear before G Jury that Lee took the Gun again Jacob Galusha ) Nathl. Duglass fired at Cunningham & Huddlestone. they were in the hollow he sd. afterwd. that he wished he had shot ’em thrô the heart Danl. Galusha: same story abt. shooting Abraham Gardner ) I saw Wm. Brown on his return, he was at Pownal 7 or 10 days before we heard of the surrender of Saratoga Wm. Kettel: news was given out that he that wd. not come to the Enemy wd. be taken—Several Rumours came to nothing: Saturday saw ’em all come in but Lee & Brown Caleb Clark. on Wednesday I was in the road saw these people they sd. 2 had been shot at & they intendd to go away saw Rogers at Rennolls, at Pownal Dayfoot came, at McCooms we all had a notion of returning home. McCooms sd. we could not go back: Dayfoot & Frosby had Guns & no body else. only one or two more. no body there but from Jerico at the Mills were Regular Soldier. I see Lee Brother but he had no Gun. they askd us to join ’em they wd. give 100 acres of Land. Wm. Brown took us aside & told the two Franklin to have nothing to do with the army. B. ~~& J~~ Gardner & J & Browning run out to our army. I saw the Sweets to the Bridge & no further. Danl. Peirce I saw Phil. Lee Rogers B & J Gardner at Mills. I saw no arms. near 11 oClock, I heard proposals made to any that were there to go into their service; Thos. Rogers sd. I will not go to Headquarters & they are a fool that will. Phil. Lee refused going & advised me not to go; they had no Arms. Lee in Goal told Havens wt. he sd. to G:J: Havens sd. he did not swear Lee carried the gun to the Mills 71 Gamaliel Whiting, one of the Cmtte. of Great Barrington: Havens sd. he had not given Evidence that Lee sd. it wd. not do to break Co. for he wd. have Satisfaction Jos: Vaughan I saw B: Gardner by flatts no arms, & J. Gardner abt. noon.: Havens sd. he had sworn Lee had a Gun, but cd. not swear he ever took it from Broadway or carryed it to Camp. Martin Townsend. I saw Wm. Brown come and set down by me, sd. you have not had any thing to do with the Enemy. I advise you not to. I saw Whitman Vaughan. Elijah Brown ) saw Wm. Brown, he ask’d me if I had any thing to do with Enemy he advised me not to: Richd. Huddelstone ) Saw Thos. Rogers: & Simeon Franklin, John Gardner. no arms: Rogers and Franklin refused to join, saw a man bringing Guns Franklin & I went away to avoid taking Guns saw Lee at the Mills no Gun he advised me not to go Mr. Sedgwick no Evidence of a conspiracy the crime is not of a secret kind. (is not Conspiring secret) Political disputes run high & people differ in opinion clergy as well as others. Torys are hated a genral Rumour that the Cmdr. in chief was false. all the witnesses have said they did not go to join the Enemy. and it will not do to invalidate their Testimony because then there will be no Evidence to the fact Capt. Duglass had no right to refuse fines it is incredible that there should be this conspiracy & yet all pretend they were going to White Creek if they were going to Burgoyne why not go the direct Road & loiter: Dayfoot a Tory seeking whom he might Devour the Papers in their Hatts, no signature they went for idle curiosity 72 Foster: 350. of accessory Havens was under violent temptation to strike a bargain abt. swearing Foster 243. the uncertainty of confession Lee & Brown. return’d from the Enemy. and they have all been at large, therefore not conscious of guilt Foster. 208. the quo animo 4 Black. 82. adherance I chalenge an Instance of bearly being with the Enemy, has been judged Treason Raymond 1585. not aiding HPC. 37.§ 26 Mr. Strong the State Witnesses are disposed to say as much as they can—are accomplices good Witnesses. Deacon Case: a man may appear in a hostile innocently Boswick Case Wedderburn Case Mm. Attorny’s Law bearing

MS .

The case was heard at the Sept. 1778 term of the Superiour Court of Judicature with William Cushing as chief justice and justices Jedadiah Foster, Nathaniel Peaslee Sargeant, David Sewall, and James Sullivan on the bench:

Hereupon a Jury, Viz: John Hale, foreman, John Warner, Moses Church, Hezekiah Russel, Benja. Colt, Edmund Hubbard, Jedadiah Bliss, David Moasley, Thomas Stebbins, Bohan King, Asaph Leonard, and William King, is called and sworn to try the issue: who after hearing all the evidence upon their Oaths says That the said Daniel Pierce is not guilty: Thereupon his Counsel move that he may go without Day: Thereupon it was moved by R:T: Paine Esqr. Attorney General for this State, That the sd. Pierce be not discharged & go without Day, but that he recognize to keep the Peace & be of good Behaviour; for that tho the Jury have doubted whether the Evidence against hm was Sufficient to convict him of the Treason charged yet That the evidence amounted to proof of a high misdemeanor, & shows it not to be safe for this state that he go with out Bonds: Thereupon Ordered by the Court That he Recog: in the sum of £600—with two Sureties in £300 each for his keeping the Peace & being of good behaviour for the Term of one year & stand committed till Sentence performed. (Superiour Court of Judicature Minute books, Hampshire and Berkshire Counties, Sept. 1778. Massachusetts Judicial Archives, Boston, Mass.)

The same charges were brought against Richard Huddleston of Trees Grant, a minor, who was found not guilty. Upon RTP’s motion, he was ordered to procure two sureties to recognize in £400 each. On the 73 indictment against Elijah Cunningham of Hancock, yeoman, he was ordered to recognize in £400, with two sureties in £200 each. Elijah Brown of Hancock, laborer, and Martin Townsend of Hancock, laborer, were each ordered to recognize in £400 with two sureties of £200 apiece. Joseph Vaughan of Williamstown, husbandman, was to recognize in £600 with two sureties of £300 each.

In the second series of cases, John Franklin of Hancock, laborer, and Simeon Franklin of Hancock, “an infant, under the age of twenty one years,” were each ordered to procure two sureties at £400 each. Thomas Rogers of Hancock, laborer, was ordered to provide a £400 bond, two sureties at £200; John Rogers of Hancock, laborer, two sureties at £400 each; and Benjamin Gardner of Hancock, laborer, a bond of £400 with two sureties at £200 each (Superiour Court of Judicature Minute books, Hampshire and Berkshire Counties, Sept. 1778. Massachusetts Judicial Archives, Boston, Mass.).

Benjamin Simonds (1726–1807) of Williamstown was colonel of the 2d (Berkshire County) Regiment from 1776 to 1780 (Mass. Soldiers and Sailors of the Rev. War, 14:239).

Caleb Strong (1744–1819).

William Blackstone, Commentaries on the Laws of England, 4:82. The first volume of Blackstone’s Commentaries was published in London in 1768, and its success in America was “phenomenal,” making it the preeminent legal text before the Revolution (Josiah Quincy Jr.: Political and Legal Works, ed. Daniel R. Coquillette and Neil Longley York [Boston, 2007], 2:19). The four volumes in RTP’s library were purchased for him in London by Samuel Eliot, June 21, 1770, for £5.12s.

Matthew Hale, Historia Placitorum Coronæ: The History of the Pleas of the Crown (London, various editions from 1736). RTP’s two-volume copy was purchased for him in London by Samuel Eliot, June 21, 1770, for £5.10s.

Sir Michael Foster, A Report of Some Proceedings on the Commission for the Trial of the Rebels in the Year 1746, in the County of Surry; to Which Are Added Discourses upon a Few Branches of the Crown Law, viz., High Treason, Homicide, Accomplices, and Observations on the Writings of Lord Hale (Oxford, 1762 and later editions). RTP’s copy was purchased in London by Samuel Eliot, June 21, 1770, £1.11s.4d.

Probably Sir Robert Raymond, Reports of . . . King’s Bench, Common Pleas, and Exchequer (London, 1743 and later editions).