George Washington's Nemesis: The Outrageous Treason and Unfair Court-Martial of Major General Charles Lee during the Revolutionary War

By Christian McBurney

This biography attempts to set the record straight for a misunderstood military figure from the American Revolution.
 
Historians and biographers of Charles Lee have treated him as either an enemy of George Washington or a defender of American liberty. Neither approach is accurate; objectivity is required to fully understand the war’s most complicated general. In George Washington’s Nemesis, author Christian McBurney uses original documents (some newly discovered) to combine two dramatic stories to create one balanced view of one of the Revolutionary War’s most fascinating personalities.
 
General Lee, second in command in the Continental Army led by George Washington, was captured by the British in December, 1776. While imprisoned, he gave his captors a plan on how to defeat Washington’s army as quickly as possible. This extraordinary act of treason was not discovered during his lifetime. Less well known is that throughout his sixteen months of captivity and even after his release, Lee continued communicating with the enemy, offering to help negotiate an end to the rebellion.
 
After Lee rejoined the Continental Army, he was given command of many of its best troops together with orders from Washington to attack British general Henry Clinton’s column near Monmouth, New Jersey. But things did not go as planned for Lee, leading to his court-martial for not attacking and for retreating in the face of the enemy. McBruney argues the evidence clearly shows Lee was unfairly convicted and had, in fact, done something beneficial. But Lee had insulted Washington, which made the matter a political contest between the army’s two top generals—only one of whom could prevail.

• Language: English
• Publisher: Open Road Integrated Media
• Release date: Dec 20, 2019
• ISBN: 9781611214666

Christian McBurney

Christian McBurney, the primary editor of this book and the editor and publisher of the Online Review of Rhode Island History, has written seven books on Rhode Island and/or Revolutionary War history. For more information on his books go to www.christian.mcburney.com. Brian L. Wallin spent the first half of his career as a radio and television journalist for major stations in Connecticut, Massachusetts and Rhode Island and the second half working as a healthcare executive for hospital systems in Massachusetts and Rhode Island. In addition to being a frequent contributor to the Online Review of Rhode Island History, he is a trustee of the Varnum Continentals historic militia and the Varnum Armory Museum. Patrick T. Conley is president of the Rhode Island Heritage Hall of Fame, president of the Heritage Harbor Foundation, chairman of the Rhode Island Publications Society and currently serving as the first historian laureate of the State of Rhode Island. For more information on the twenty-six books he has authored, as well as other Rhode Island history books, go to www.ripublications.org. John W. Kennedy is a retired naval officer who for the last seven and a half years served as the director of education and community outreach for the Naval War College Museum at Newport. In that capacity, he ran the popular Eight Bells history lecture series. He retired in 2016. Maureen A. Taylor is the author of sixteen books on family history and photography, as well as Rhode Island history. The Wall Street Journal called her "the nation's foremost photo detective." For more information on her books, go to www.maureentaylor.com.

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Introduction

In my book Kidnapping the Enemy: The Special Operations to Capture Generals Charles Lee & Richard Prescott , I made it clear the issues of whether Major General Charles Lee committed treason during his captivity, and whether his post-captivity court-martial conviction was fair, needed to be handled in a follow-up book. No biographies of Lee fully address his treason. ¹ In addition, there are no close studies of his court-martial after he commanded the Continental Army at the battle of Monmouth Court House. This book is an attempt to fill those gaps.

The book you are now reading, together with Kidnapping the Enemy, attempt to provide a fair and balanced view of Charles Lee, one of the most controversial and complicated figures of the Revolutionary War and the second-in-command of the Continental Army. The two most recent full-length biographies of him, while full of penetrating insights, take opposite extreme positions in evaluating his Revolutionary War conduct.

On the one extreme, Dominick Mazzagetti, author of Charles Lee: Self Before Country, writes that practically every move Lee made was for self-aggrandizement. Mazzagetti concludes that Lee’s treason was as bad as Revolutionary War traitor Benedict Arnold’s and that he deserved to be court-martialed and convicted for his conduct at the Monmouth battle. Mazzagetti joins many other Revolutionary War historians who regard Lee as a sinister figure, in part because of Lee’s treatment of George Washington and from a belief that he was a traitor to America. Some of these historians allowed their suspicion of Lee to color their evaluation of his performance at Monmouth.

On the other extreme, Phillip Papas, in Renegade Revolutionary, The Life of General Charles Lee, argues Lee was a brilliant general and talented radical revolutionary who is misunderstood. Papas spends little time on Lee’s treason and explains it away cavalierly. Papas and Lee’s best biographer, John R. Alden, as well as a number of other historians, concluded that Lee was not a traitor, but a much-maligned Revolutionary Patriot who did little wrong and deserves much better treatment from many historians who have maligned him.

The first part of this book argues that Lee committed treason after his imprisonment. Shortly after his surprise capture at Basking Ridge, New Jersey, on the morning of December 13, 1776, Lee experienced a dramatic transformation. As one of the most ardent Whig leaders, he had supported a complete break from Britain months before the adoption of the Declaration of Independence. As second-in-command of the Continental Army, he had expressed confidence in the Americans’ ability to defeat the British army. As a prisoner of war, however, he radically transformed his views: He decided that the Americans could not win the war and that they should renounce their independence and return to King George III’s rule. Lee wrote and submitted to British commanders a military plan on how to defeat the American army as quickly as possible. In doing so, Lee committed rank treason under the Articles of War, even though some historians would rather blithely pass it off as a momentary lapse of judgment or a mere lark.

Consistent with his transformation, in February 1777, Lee sent a letter to the Continental Congress requesting that a small delegation meet him in British-held New York City with the unspoken but clear goal of negotiating an end to hostilities. Congress rejected Lee’s effort, but throughout his captivity, and (even more shockingly) shortly after his release, Lee persisted in clandestinely communicating with the enemy about a negotiated end to the war, based on his consistent belief that America should renounce its independence. There is strong proof that one of his letters promoting peace, written as a captive, was even read to the British Parliament.

My conclusion that Lee changed his mind about America remaining independent relies on Lee’s own words. An individual’s own words and conduct are typically the best indication of the person’s motives, rather than speculation about underlying causes. In addition, Lee’s secret correspondence, by itself, probably also constituted treason.

Did Lee commit treason? Why did he undergo his dramatic transformation? Did he submit his plan intending to trick the British commander in chief into taking most of his army to Philadelphia, the biggest strategic blunder of the war? Was his treason intended to harm the new United States and was it as bad as that of Arnold’s treason? Part I addresses these questions.

The second part of this book focuses on Lee’s generalship of the Continental Army at the battle of Monmouth Court House. Lee’s treason was never discovered by the Patriots, allowing Lee, after his release in April 1778, to rejoin the Continental Army. The soldier of fortune was given command of many of its finest troops with orders from General George Washington to attack the rear of British general Henry Clinton’s column as it lumbered from Philadelphia toward New York City. Lee fully intended to attack on June 28, 1778, but he decided to retreat to more defensible ground. He retreated, in part, because two of his generals, Charles Scott and William Maxwell—without orders and without informing him—moved more than half of Lee’s force off the battlefield. Lee also retreated because of Clinton’s bold move to reverse his march and send his best troops to attack his outnumbered forces. Faced with the prospect of the remainder his men being pinned against a ravine and possibly destroyed, Lee ordered a general retreat and organized an effective delaying action that helped to stall the British advance. In doing so, he saved his force, thereby performing a crucial service for the Patriot cause.

After the battle of Monmouth Court House, Lee was unfairly charged with failing to attack the enemy, and making an unnecessary, disorderly and shameful retreat. His most virulent detractors included the general most responsible for the retreat, Charles Scott, a confused Anthony Wayne, and two of Washington’s brilliant but young and relatively inexperienced aides, Alexander Hamilton and John Laurens.

In finding Lee guilty of all charges lodged against him, the court-martial judges failed to implement impartial military justice. They apparently decided the matter on nonmilitary grounds. Lee had imprudently made the matter a political contest between him and his commander, Washington, and only one of them could prevail. In this environment, the truth mattered little. One man was much more popular and important to the Patriot cause than the other. Lee was convicted on all counts and suspended from the Continental Army for one year.

After the approval of the sentence by Congress, as a result of dramatic confrontations in the court-martial proceedings, Lee faced challenges to duel with John Laurens, Anthony Wayne, and Baron von Steuben. Laurens and Lee, in fact, did duel. Alexander Hamilton, after testifying in a tension-filled court room that Lee lost his composure during the battle, barely avoided a duel with one of Lee’s outraged aides.

Other historians have recognized that the court-martial verdicts were unfair and a travesty of justice, but this is the first book both to delve closely into the details of the court-martial itself and to place most of the blame on Charles Scott and William Maxwell. In refusing to ask the court-martial judges to reconsider the verdicts on the first two charges, it was also not Washington’s finest hour. It was the Revolutionary War’s most scandalous court-martial, and one of the most unfair in American military history.

Nonetheless, much of the blame for the court-martial lies with Charles Lee himself. His failure on the day of battle to keep his commander in chief properly informed of the changed circumstances at the front led directly to the famous testy battlefield confrontation between the generals. Lee, in turn, could not brook the stain on his reputation from that exchange and he impulsively and unwisely requested a court-martial to clear his reputation, while simultaneously insulting his commander, making it a contest between the Continental Army’s highest-ranking generals.

The common theme of the two parts of this book, other than the outsized personality of Charles Lee, is the examination of issues of military law or justice. First, did Lee commit treason under the Articles of War? Second, should he have been convicted of violating the Articles of War for his conduct at the battle of Monmouth Court House? As an attorney and historian, I believe I am well positioned to evaluate these issues.

Charles Lee’s court-martial was one of the great legal trials in early American history, perhaps even rivaling Aaron Burr’s 1807 trial for treason. A great trial involves important, attention-grabbing people of the day and carries a meaningful lesson for future generations. Lee’s court-martial, threatening the future of Washington’s second-in-command, was watched closely on both sides of the Atlantic Ocean. Its meaningful lesson for future generations is to be aware of the risk of political and other nonmilitary considerations intruding on court-martial verdicts.

This book was mostly written before the release of the most authoritative study of the battle of Monmouth Court House, Fatal Sunday: George Washington, the Monmouth Campaign, and the Politics of Battle,² by Mark Edward Lender and Garry Wheeler Stone. The battle was the war’s longest and most confusing, and this impressive and long overdue work is a most valuable and welcome addition to the scholarship on it. However, the book does not focus on Lee’s court-martial.

There are several versions of the transcript of Lee’s court-martial. This book relies on the one published by the New-York Historical Society in the Lee Papers.³ Another version, originally privately printed in 1864, is available as a reprint.⁴

When using original sources, when possible, published versions are cited. For the convenience of the modern reader, spelling, grammar, and punctuation in quoted material have been corrected.

1 Christian M. McBurney, Kidnapping the Enemy: The Special Operations to Capture Generals Charles Lee & Richard Prescott (Yardley, PA, 2014). The two most recent biographies are Phillip Papas, Renegade Revolutionary. The Life of General Charles Lee (New York, NY, 2014) and Dominick Mazzagetti, Charles Lee, Self Before Country (New Brunswick, NJ, 2013). Mark Lender has an excellent review of these two works, and makes his own contribution to the scholarship on Charles Lee, in Mark Edward Lender, The Ever Controversial Charles Lee, The Journal of Military History, vol. 78 (Oct. 2014), 1395-1405. The best biography of Lee remains John R. Alden, General Charles Lee: Traitor or Patriot? (Baton Rouge, LA, 1951). An excellent, though shorter, work on Lee is John Shy, Charles Lee: The Soldier as Radical, in George A. Billias, ed., George Washington’s Generals and Opponents, Their Exploits and Leadership (New York, NY, 1994), 22-53. Another full-length biography, a veritable hagiography of Lee, is Samuel White Patterson, Knight Errant of Liberty, The Triumph and Tragedy of General Charles Lee (New York, NY, 1958).

2 Mark Edward Lender and Garry Wheeler Stone, Fatal Sunday: George Washington, the Monmouth Campaign, and the Politics of Battle (Norman, OK, 2016).

3 Most of Lee’s writings are in Charles Lee, The Lee Papers, 1754-1811, in Collections of the New-York Historical Society for the Years 1871-1874, 4 vols., New-York Historical Society, 1872-75 (hereinafter, "Lee Papers"). Volume 3 of the Lee Papers contains a transcript of the record of the court-martial of Charles Lee (hereinafter Lee Court-Martial). See Charles Lee, Proceedings of a General Court Martial, Held at Brunswick, in the State of New-Jersey, by Order of His Excellency General Washington, Commander in Chief of the Army of the United States of America, for the Trial of Major General Lee, July 4, 1778, Major General Lord Stirling, President, in Lee Papers, vol. 3, 1-208.

4 Proceedings of a General Court-Martial Held at Brunswick, in the State of New-Jersey, by Order of His Excellency Gen. Washington, Commander in Chief of the Army of the United States of America, for the Trial of Major-General Lee, July 4th, 1778 (Forgotten Books, 2012). This is a reprint of a privately printed book published in New York in 1864.

Chapter 1

Charles Lee Turns Traitor

In late March 1777, Major General Charles Lee came to a shocking decision. At the time, the Continental Army’s second-highest ranking general was a prisoner of the British army, confined day and night by guards to a two-room apartment in Manhattan in British-occupied New York City. On December 13, 1776, while spending the night at a tavern at Basking Ridge, New Jersey, three miles from the main body of his division, he had been surprised by British dragoons, captured after a brief but violent struggle with his few guards, and spirited away to British-held Pennington. Soon afterward he was taken to New York City.

By the third month of his imprisonment, Lee, the most experienced and best educated American general, had changed his views about the ability of the Americans to secure their independence. He now believed that the Americans could not defeat the British and should therefore end the bloodshed and rejoin the British empire. Lee decided to handwrite a military plan designed for the British to conquer the Americans quickly. He must have asked the officer on guard for a quill pen and a sheaf of paper. When asked the purpose, Lee explained, and the request was granted. The captive general, probably wearing his usual soiled brown jacket, began scribbling away, trying to use his best penmanship.

When he finished, Lee likely handed his written document to Henry Strachey, since May 1776 the personal secretary to Admiral Lord Richard Howe, the commander of British naval forces in North America. Lee no doubt hoped that Strachey would show his plan to both Lord Howe and his younger brother, Major General William Howe, the commander in chief of the British army in America. Strachey, as Lee knew, was also secretary to the Royal Commissioners, as the Howe brothers had begun calling themselves when acting in their role as the Crown’s representatives to negotiate an end to the rebellion.

Strachey sat down at his desk and labeled the document Mr. Lee’s Plan, 29th. March 1777. The 30-year-old Strachey was a man of some prominence himself. He served as a member of Parliament from 1774 to 1782 and again from 1802 to 1807. A budding diplomat in his own right, as an undersecretary of state in 1783, he would be sent to Paris to buttress British commissioners engaged in peace negotiations with the Americans. After inheriting a baronetcy in 1801 and residing at his family’s estate at Sutton Court (near Bath), the diplomat became entitled to be called Sir Henry Strachey.¹

There is little reason to doubt the authenticity of the document, despite the lack of Lee signing it or any other known written document referring to it. While Lee probably did not sign it likely out of concern it might fall into American hands, it is unquestionably in his handwriting and contains views he held most of his captivity.

The captive general began his nearly eight-page plan admitting that he had sincerely and zealously abandoned the American cause. He justified submitting his plan to the Howes as an effort to spare America blood in a war the Patriots could never win.

As on the one hand it appears to me that by the continuance of the War America has no chance of obtaining the ends she proposes to herself [i.e., independence]; that although by struggling she may put the Mother country to very serious expense both in blood and money, yet she must in the end, after great desolation, havoc and slaughter, be reduced to submit to terms much harder than might probably be granted at present.

Lee explained that Britain too had an interest in ending the war quickly—even though he was confident it would ultimately win the conflict:

As on the other hand Great Britain though ultimately victorious, must suffer very heavily even in the process of her victories, every life lost and every guinea spent being in fact worse than thrown away: it is only wasting her own property, shedding her own blood and destroying her own strength.²

The first of eight pages of the military plan Charles Lee wrote in his own hand and submitted to the Howes while a captive. New York Public Library

Lee did not propose harsh raids against the Americans. He recommended that the Howes retain troops sufficient to defend New York City and Newport, Rhode Island, without engaging in any offensive operations from those posts. His goal was for the British military to win the war in the least expensive manner possible—in terms of both blood and treasure.³ I have, Lee added, the comfort to reflect that, in pointing out measures which I know to be most effectual, I point out those that will be attended with no bloodshed or desolation in the colonies.⁴

Lee believed that the Americans could obtain more generous peace terms with the Howes in charge than with other British commanders who might replace them. Based on the high opinion I have of the humanity and good sense of Lord [Admiral Howe] and General Howe, Lee continued, he was persuaded that the terms of accommodation will be as moderate as their powers will admit. The more moderate are the general conditions of surrender and return to Crown rule, Lee advised, the more solid and permanent will be the union.

Lee ended his introduction using strong language to attempt to persuade the Howes of his sincerity in desiring a quick British victory in the war. He assured them that he would most sincerely and zealously contribute all in my power to accomplish the return of America to the British fold, and boldly concluded, I will answer my life for the success.⁵

In his military plan, Lee argued that controlling the Lake Champlain-Hudson River corridor and sending an army against Philadelphia, Maryland and northern Virginia was the speediest path to a British victory. Lee expected the British force in Canada would move south toward Albany in the spring and Howe would leave behind sufficient forces to defend British-occupied New York City and Newport, so Lee shifted his focus southward. As a first step, Lee recommended that General Howe send 14,000 soldiers over land from New Jersey to capture Philadelphia, while Admiral Howe delivered by sea an expeditionary force of 4,000, one half of them up the Chesapeake Bay to capture Annapolis, Maryland, and the other half up the Potomac River to seize Alexandria, Virginia.

Henry Strachey, aide to General Howe and Admiral Lord Howe in their roles as peace commissioners, wrote this endorsement on the military plan Charles Lee submitted to the Howes while a captive. New York Public Library

In effect Lee expanded on the existing British plan to divide America. That plan, agreed to by British civilian leaders in London and William Howe, was for John Burgoyne’s army descending from Canada and a British army marching northwards from New York City to meet at Albany and thereby cut off New England from support from the states to the south. Now Lee recommended that the Howes also seize territory in a line from the southern border of Pennsylvania south of Philadelphia to the coastal regions to the east. Lee urged Howe to seize not just Philadelphia, but also Annapolis and Alexandria, allowing Lord Howe easily to take either Baltimore or the west bank of the lower Susquehanna River. Doing so, according to Lee, would cut off communications between the rebels in the southern and middle states and keep them from marching to the aid of Pennsylvania.

Lee, who had visited Maryland in his capacity as second-in-command of the Continental Army, made the bold and unsupported claim that if Howe could capture Annapolis and Alexandria, all the inhabitants of that great tract southward of the Patapsco and lying betwixt the Potomac and Chesapeake Bay and those on the Eastern Shore of Maryland would surrender, as would the potent and populous German districts, Frederick County in Maryland and York in Pennsylvania. Subduing these areas would, according to the former English general, in less than two months from the date the first British troops landed in the Chesapeake unhinge or dissolve … the whole system or machine of resistance, or in other terms, the government of Congress. Once Congress was dissolved, there would be a period put to the war.⁶

Lee argued, correctly, that taking Philadelphia would be insufficient to crush the rebellion. Rather, the key was to capture or disband the Continental Congress. But when Congress could easily relocate to a town in the interior of Pennsylvania, as it ultimately did to York, Lee was incorrect in saying that executing his plan would result in Congress disbanding.

Ultimately, General Howe ended up sending a major expeditionary force solely by sea from Staten Island to the Chesapeake Bay, seizing Philadelphia in September 1777, but he did not attempt to subdue the area beyond Philadelphia’s outlying areas. And, of course, the war continued.

Lee sincerely thought that ending the war quickly was in the best interests of America. Even so, it is difficult to arrive at any conclusion other than that Lee committed treason against the newly formed United States. He never had to face the issue in his lifetime, as his written plan was not publicly revealed until George H. Moore announced its discovery in the files of Sir Henry Strachey at a meeting of the New-York Historical Society on the evening of June 22, 1858, 75 years after Lee’s death.⁷

1 For Strachey’s background, see Alan Valentine, The British Establishment, 1760-1784: An Eighteenth Century Biographical Dictionary, 2 vols. (Norman, OK, 1970), vol. 2, 832; Henry Strachey’s Obituary, The Gentleman’s Magazine, vol. 107 (Jan. 1810), 93. Some historians assume Strachey was General Howe’s aide, but he was in fact Lord Howe’s aide, as well as secretary to both peace commissioners. See ibid; Ira D. Gruber, The Howe Brothers and the American Revolution (Chapel Hill, NC, 1972), 118-19, 144, and 229; Thomas J. McGuire, Stop the Revolution, America in the Summer of Independence and the Conference for Peace (Mechanicsburg, PA, 2011), 160-62 and 165.

2 Charles Lee, Scheme for Putting an End to the War, Submitted to the Royal Commissioners, March 29, 1777, in Lee Papers, vol. 2, 361-66. The original of the plan is in the Manuscripts and Archives Division of the New York Public Library.

3 Ibid., 361-62.

4 Ibid., 363.

5 Ibid., 362. Lee made a similar claim two more times in his plan. He also wrote, if it [his plan] is adopted in full, I am so confident of success that I would stake my life on the issue. Ibid., 363. He penned later, I am so confident of the event that I will venture to assert with the penalty of my life that if the plan is fully adopted … in less than two months … not a spark of this desolating war remains unextinguished in any part of the Continent. Ibid., 365.

6 Ibid., 363-64.

7 George H. Moore, Mr. Lee’s Plan—March 29, 1777, The Treason of Charles Lee, Major General, Second in Command in the American Army of the Revolution (New York, NY, 1860), cover page. (This work is also in Lee Papers, vol. 4, 335-427.) John R. Alden writes about Lee’s military plan, It was preserved among the papers of the Strachey family for over seventy years after Lee’s death. Stolen from the family, it was finally purchased by the New York Public Library, where it is now preserved. Alden, General Charles Lee, 336, n. 49. George Moore, Librarian of the New-York Historical Society, acquired the original of Lee’s plan in a New York sale in 1857 (presumably from the thief or the thief’s agent). Moore then presented a paper about Lee’s treason to the New-York Historical Society on June 22, 1858, and followed it up in with his Treason of Charles Lee book in 1860. General Charles Lee’s Treason in 1777, Bulletin of the New York Public Library, vol. 1 (1897), 92; Moore, Treason of Charles Lee, preface. The Lee Papers contain a statement, dated June 15, 1860, from Sir Edward Strachey, then the head of the Strachey family that continued to reside at Sutton Court where Sir Henry Strachey’s papers were stored, confirming that the original of Lee’s plan had been stolen from Sutton Court and permitting its use by the New-York Historical Society. See Lee Papers, vol. 2, 361. The firm of Dodd, Mead & Co. purchased the original of Lee’s plan from George Moore’s estate in 1894, and by 1897 the manuscript was acquired by the New York Public Library. General Charles Lee’s Treason in 1777, 92.

Chapter 2

Did Lee Commit Treason?

Some Lee biographers and many Revolutionary War historians either virtually ignore that Lee submitted his military plan to the Howes or deny that it was treason. They spend little time on the subject and move on quickly to other matters, as Lee himself did when he finally returned to American lines in April 1778. ¹ The most recent serious book addressing Lee’s military plan concludes that most modern scholars have dismissed any notions of treason. ²

Should Lee be included in the pantheon of shame of American army commanders who committed wartime treason? He should be, although with the caveat that his treason was not nearly as egregious as Benedict Arnold’s.

The Continental Congress formally created the Continental Army by a resolution passed on June 14, 1775, more than a year before its delegates signed the Declaration of Independence. The army’s formation was a momentous event in itself. As one historian of the law of treason in America has stated, Men who joined the American army … became the first American citizens. They announced boldly a new allegiance, the breach of which constituted treason against America.³

At the time Lee wrote his plan, the Continental Congress had recently settled on its definition of treason. When John Adams, Thomas Jefferson, and other lawyer-delegates turned their attention to the topic, they knew that the English roots of the law making treason illegal dated to the Treason Act of 1351 enacted in the reign of Edward III. Specific acts of treason included levying war against the King, adhering to the King’s enemies by giving them aid and comfort, and imagining the King’s death.⁴ Of course, in legislating armed resistance against King George III’s military forces commencing in June 1775 and signing the Declaration of Independence in July 1776, Adams, Jefferson, and other congressional delegates had committed treason several times over in the eyes of Great Britain.

Congress passed its first version of the Articles of War on June 30, 1775, based largely on Massachusetts legislation.⁵ Military offenses included providing the enemy with supplies (Article 26), harboring an enemy (Article 27), and corresponding with the enemy (Article 28). These were specific examples of giving aid and comfort to the enemy.

The Continental Army first faced the prospect of treasonous conduct in late September 1775, when Dr. Benjamin Church was caught passing a letter written in a cipher code to a British officer stationed in Boston. The revelation shocked Patriots. Church, the surgeon general of the Continental Army, was in frequent contact with Washington himself. In Massachusetts, Church was an elected and sitting member of the Provincial Congress and a member of its powerful Committee of Safety, created to supervise the state’s war effort. He worked closely with Samuel Adams, John Hancock, and other Whig leaders.

Once two teams of Massachusetts Patriots decoded his letter, Church’s roles as a spy and traitor were confirmed. His letter was intended for Major Edward Crane of the British 43rd Regiment in Boston. Church disclosed in the letter the strength of the Continental Army, an accounting of its supplies and gunpowder, and a count of artillery pieces available to Americans outside Boston. He urged its recipient, Make use of every precaution, or I perish. He concluded his letter requesting Major Crane to write me largely in cipher, by the way of Newport …, where Church had contacts.⁶

Charles Lee, drawn by John Trumbull. No known likeness of Lee made during the Revolutionary War is known to exist. Trumbull often sketched the likenesses of Continental Army officers who sat for him, but there is no record of Trumbull meeting the general in person. Yale University Art Gallery

Continental Army guards arrested Church and confined him to his Cambridge home under a strong military guard until his punishment could be determined. In a council of war on October 3, 1775, Washington’s generals, including Lee, unanimously determined that Church had engaged in a criminal correspondence with the enemy, violating Article 28 of the new Articles of War.⁷ But they soon realized that the Articles of War did not authorize any severe punishment. If a soldier were convicted at a military court-martial, he could only be punished by "cashiering, drumming out of the army, whipping not exceeding thirty-nine lashes, fine not exceeding two months’ pay, [or] imprisonment not exceeding one month.⁸ In an October 5 letter to John Hancock, the president of the Continental Congress, Washington lamented that the Articles of War were woefully inadequate to address treasonable activities and recommended that Congress correct the deficiencies by amending Article 28 before more cases of treason were uncovered.⁹ The Massachusetts House of Representatives also tried Church and voted to utterly expel" him, but it too lacked authority to impose a harsh penalty.

With Congress and the Massachusetts legislature reluctant to pass a treason law that would apply the death penalty to Church retroactively, Congress ordered the doctor jailed in Connecticut, without the use of pen, ink, and paper, and without allowing anyone to speak with him except in the presence of a town magistrate or county sheriff.¹⁰ After spending about a year in jail in Norwich, and in declining health, Church was permitted by Congress and Massachusetts to depart on a vessel bound for French-controlled Martinique. His vessel disappeared at sea and he was presumed drowned with the rest of the passengers and crew.¹¹

On November 7, 1775, Congress amended the Articles of War to provide that All persons convicted of holding a treacherous correspondence with, or giving intelligence to the enemy, shall suffer death, or such other punishment as a general court-martial shall think proper.¹² Washington’s first time using the reinforced articles was to quash a June 1776 conspiracy in New York City by Tories, who meant to kidnap (or even to assassinate) him.

Thomas Hickey, an Irish immigrant, had admitted to participating in the conspiracy against Washington and was jailed along with other plotters. Hickey served in Washington’s Life Guard, established to provide for Washington’s personal security. On June 26, Continental Army officers treated the others charged in the plot leniently, but they made an example of Hickey, charging him with sedition and mutiny, and also of holding a treacherous correspondence with the enemy. At Hickey’s court-martial, the Irishman was found guilty and sentenced "to suffer death."¹³

Washington could approve or reject Hickey’s conviction and death sentence. Perhaps concerned that rumors of a plot against him might be seen as coloring his objectivity, the commanding general on June 27 submitted the matter to a council of officers, whose members unanimously advised the commander in chief to approve the sentence and to order it carried out the next day. Washington approved the sentence and directed that Hickey be hanged tomorrow at eleven o’clock.¹⁴

On June 28, guards led Hickey to his place of execution, according to a New York newspaper, near the Bowery Lane, in the presence of near 20,000 spectators, including four brigades of the Continental Army.¹⁵ Before perhaps the largest gathering of Americans assembled up to that time, Hickey was executed.¹⁶ Accordingly, Church’s case led to the adoption of the death penalty for military traitors, and Hickey’s case was the first time the Continental Army applied it.

The Articles of War applied only to Continental soldiers and did not cover civilians. Lee, who called Tories traitors, attempted on his own to address this shortfall.¹⁷ Sent by Washington to Newport to bolster the Patriots, Lee on Christmas Day 1775 forced several prominent civilian Tories there to take an oath to support Congress and to not supply or give intelligence to British troops. When Washington in February 1776 sent Lee to New York City to shore up its defenses, Lee informed Congress that he would purge all its environs of traitors. He again administered oaths to intimidate prominent civilian Tories.¹⁸ After Lee sent a radical Patriot, Isaac Sears, to Long Island, the general must have smiled when reading Sears’s report. I … tendered the oath to four of the great Tories, which they swallowed as hard as if it was a four pound shot that they were trying to get down, Sears wrote.¹⁹

The discovery of the role of civilians in the plot against Washington in New York City prompted Congress, on June 24, 1776, to pass a resolution recommending that each of the legislatures of the 13 colonies (they were a few weeks short of becoming states) enact laws that would apply to all civilians prohibiting certain conduct as treasonous.²⁰ In effect, Congress’s resolution amounted to an early declaration of independence. Even after adopting the Declaration of Independence, Congress never enacted a law outlawing treason by non-soldiers on a national level. Congress left the matter to the states.

On September 20, 1776, the Continental Congress repealed the prior Articles of War and replaced them with new ones that covered Charles Lee, as well as all other officers and soldiers enlisted in the Continental Army. Drafted largely by Adams and Jefferson, and slightly amended in April 1777, the new articles resembled the British Articles of War of 1765 and remained in force with only minor alterations until 1806.²¹ The new Articles, 102 in total, for the first time spoke of the respective armies of the United States and omitted any reference to the Crown. In addition to treason, the military offenses of mutiny, sedition, desertion to the enemy, and misbehavior before the enemy carried the death penalty. Regarding treason, Article 19 of Section XIII provided that Whosoever shall be convicted of holding correspondence with, or giving intelligence to, the enemy, either directly or indirectly, shall suffer death or such other punishment as by a court-martial shall be inflicted.²²

Congress did not expressly state that corresponding with the enemy or giving intelligence to the enemy constituted treason against the new United States. But any such conduct, historically, was a form of aiding and abetting the enemy that constituted treason. There was no crime of treason on its own. ²³ To commit treason, the perpetrator had to engage in a specific act betraying his country that was prohibited under applicable law, such as aiding and abetting the enemy, holding a correspondence with the enemy, or giving intelligence to the enemy.

Lee violated Article 19 when he engaged in a prohibited correspondence with the enemy by submitting to the Howes his military plan explaining how they could defeat the Americans quickly and efficiently. Lee clearly intended for the Howes to read and rely on it. He submitted it to a British official, Henry Strachey, the secretary to the Howes in their roles as peace commissioners. His submission of the plan alone establishes his guilt.

Still the most authoritative legal treatise on American military justice, Military Law and Precedents, which author William Winthrop revised and updated in 1920, explains requirements for convicting a soldier of holding a correspondence with the enemy. First, Winthrop wrote, a letter written by the soldier to the enemy satisfied the need to find correspondence. Second, he concluded that a mutual interchange of letters is not needed and that the offense may consist in the sending of a single letter. Third, it was not necessary to find that the letter was treacherous, injurious or calculated to encourage the enemy. The provision simply made it an offense to engage in any correspondence with the enemy. Winthrop added that the crime is complete in the writing or preparing of the letter … and the committing it to a messenger, or otherwise putting it in the way to be delivered. Winthrop concluded, It is not essential that it be received by the person for whom it is intended ….²⁴ It seems clear that Lee satisfied all these requirements.

As to the last requirement, Lee met it when he handed his plan to Strachey or to a British guard whom he knew would forward it to British officials, probably Strachey. Lee had met with Strachey on February 9 to discuss Lee’s request for the Continental Congress to send two or three delegates to New York City to open peace negotiations.²⁵ Neither of the Howe brothers needed to have read the military plan or relied on it for Lee to have violated the prohibition.

In practice, Washington, as well