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 .

1.

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).

2.

Battle of Bennington, Aug. 16, 1777.

3.

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

4.

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).

5.

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).

6.

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).

7.

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

8.

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

9.

In another hand.

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.

1.

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.”