Class News
Timothy Breen ’64 writes “American Revolution on Trial”
September 28, 2021
Timothy Breen wrote an essay titled “American Revolution on Trial” which appears in the August 2021 issue of Trend & Tradition Magazine, published by Colonial Williamsburg. Timothy emailed: “The essay anticipates the book that I am currently writing.”
The essay is reproduced below.
Timothy will be our featured author on the next “Yale 1964 Authors Book Club” on January 12, 2022. John More ’64 will moderate the session. Registration information will be sent in December.
American Revolution on Trial
A vanquished British general demands military justice over the perceived shabby treatment of his defeated troops
By T. H. Breen
Published in Colonial Williamsburg’s Trend & Tradition Magazine
September 21, 2021
Jan. 9, 1778, was a very bad day for American Brig. Gen. William Heath. Trouble had been brewing for several months. Since Heath had been in charge of the captured troops that had surrendered at Saratoga, New York, he had endured a stream of complaints from his vanquished counterpart, British Lt. Gen. John Burgoyne.
Nothing in his experience had prepared Heath, a New England farmer who described himself as “of middling stature, light complexion, very corpulent, and bald-headed,” to oversee more than 6,000 prisoners, who had been marched some 200 miles east and were now living in Cambridge, Massachusetts, a town of only 1,500 people.
Burgoyne based his incessant demands on the remarkably generous terms of surrender he had negotiated at Saratoga. He called it a “treaty.” The so-called Convention of Saratoga agreement not only allowed the British and German soldiers to return to Europe on parole but also assured Burgoyne that, while waiting for ships to carry his army back to England, they would be properly housed in Cambridge and prisoners could receive passes to leave the barracks. Heath was responsible for supplying Burgoyne’s troops with food and fuel over a very hard winter as well as trying to keep the bored, angry soldiers from disrupting local society.
The letter Burgoyne sent to Heath on Jan. 9 turned ongoing grumbling about living conditions into a full-blown crisis. The British general alleged that the American officer in charge of the guard at Cambridge had engaged in serious offenses against the British soldiers living in a prisoner-of-war camp on Prospect Hill. In the hyperbolic language that characterized Burgoyne’s correspondence — one critic called him “Pomposo,” a term usually associated with grand or pompous music — he accused Col. David Henley “of behaviour heinously criminal as an officer, and unbecoming a man — of the most indecent, violent, vindictive severity, against unarmed men, and of intentional murder.”
Furthermore, he demanded “prompt and satisfactory justice.”
Henley was responsible for overseeing day-to-day affairs at Prospect Hill, as well as at the German camp on nearby Winter Hill. He had the support of a small group of Continental officers, but most of the guards — about 1,500 soldiers — were untrained local militiamen. Some of the American sentries were as young as 14.
Henley seemed an unlikely target for Burgoyne’s wrath. During the American siege of Boston following the Battle of Bunker Hill, Henley carried out several difficult missions in which he demonstrated courage and intelligence. Heath described Henley as “a brave and good officer, but warm and quick in his natural temper.”
Heath attempted to deflect Burgoyne’s attention away from Henley. After all, as Heath explained, the arrival of the Convention Army — the name given to the troops captured after the Battle of Saratoga — had created a volatile situation in which soldiers in both armies were bound to ignore regulations. The British troops were accused of petty theft, riotous drinking, and verbal insults.
Burgoyne rejected the equivalency argument out of hand. He declared that Henley’s crimes were so egregious that only a general court-martial could possibly bring justice to the long-suffering, unarmed prisoners.
“We arrived at Cambridge passengers through your country under the sanction of a truce,” Burgoyne declared. “In whatever capacity we had been found in a foreign and independent state, we were intitled to personal protection by the general and most sacred laws of truth and reason.”
When Heath reluctantly agreed to turn the matter over to a military court of inquiry — the equivalent of a grand jury — the British general had another angry outburst. Only a court-martial would serve his purpose. For Heath, it was a most unwelcome demand — but as he would soon realize, it was in Henley’s as well as the country’s interest to capitulate.
The British general then introduced another unwelcome surprise. He insisted on serving as the prosecutor during the trial.
The move was unprecedented. Heath called it “novel.” After surrendering an entire army to American forces, Burgoyne now claimed the right to call his own witnesses and challenge defense testimony. He also assumed that he would be allowed to make opening and closing statements before the military panel that sat in judgment.
William Tudor, the judge advocate who advised courts-martial on points of law, protested such a highly unusual arrangement. Trained in the law under John Adams, Tudor pointed out that the whole purpose of a court-martial was to deliver swift justice, often while armies were actually on the march. Judge advocates had the responsibility of presenting evidence and giving legal advice to the accused. If the Cambridge court allowed Burgoyne special privileges as a prosecutor, Tudor argued, then defendants in future trials might demand separate defense counsel, a move that would slow deliberations and defeat the possibility of speedy verdicts.
Brig. Gen. John Glover, who served as the president of the court, ruled against Tudor. There were no appeals in such matters. And in any case, it was not a good idea for Tudor to challenge Glover, a highly respected Continental officer who had recently organized the rescue of Washington’s troops during the battle for New York City and had overseen the long trek of Burgoyne’s forces from Saratoga to Cambridge.
The highly unusual character of the Henley trial raises obvious questions. Why did Heath accede to Burgoyne’s demands? He could have denied the request for a court-martial. He certainly had more pressing matters with which to deal. And why would Burgoyne, who was eager to return to London, have taken such a personal interest in prosecuting an American officer who enjoyed an excellent reputation?
In Heath’s case, the trial quickly became a matter of national honor. If the Americans ignored the charges against Henley, if they appeared to treat the Cambridge prisoners in the same cruel manner that the British dealt with American prisoners held on rotting hulks in New York harbor, then in the court of public opinion the Americans would sink to the level of their enemy. As Heath informed Burgoyne, “I will venture to say, as much generosity and hospitality may be found in my country as in any, and I will add more than in some others, if we may judge from the treatment of the unfortunate.”
Heath may also have wanted to provide Henley with a legal forum in which he could recover his standing as a good soldier.
Burgoyne’s motives in pushing for a court-martial are not hard to discern. He knew that critics in England blamed him for the defeat at Saratoga. Even more than Henley’s, Burgoyne’s reputation was at stake. By presenting himself in court as a person especially concerned about the welfare of ordinary British soldiers, he hoped to redeem at least some of his honor as a proper gentleman.
In his opening statement at the trial, Burgoyne claimed to have been inspired to pursue Henley by a sense of “gratitude, esteem, affection to that meritorious, respectable part of my country, the brave and honest British soldiers.” Burgoyne desperately wanted to restore his reputation, but whether anyone in London paid attention to his performance is not clear.
Burgoyne conflated his own dogged prosecution of Henley with the honor of Great Britain: “In objects of this magnitude, where not only the rights of a single nation, but the interests of human nature are concerned, the effort of vindication falls indispensably — however disagreeable the office, and unequal the talent of the person — to him who has the supreme trust of his country upon the spot.”
The focus of attention throughout the trial, Burgoyne generated hostility, especially among those Americans who remembered his loutish behavior during the British occupation of Boston. Among other things, he had turned the Old South Church into a riding school and in the process destroyed many valued artifacts.
His arrogance was often insufferable, but Burgoyne could also be extremely charming.
The author of several successful London plays, he knew how to manipulate language for dramatic affect. He used the courtroom as a stage on which he captured the anguish of abused British soldiers. One spectator reported, “In several instances General Burgoyne demonstrated his abilities as a great orator, and caused the entire court to shed tears.”
The general’s performance annoyed Tudor, who feared that eloquence alone might influence the verdict. The judge advocate urged the court to concentrate on the facts, to rely on common sense, and not be swayed “by a brilliancy of expression or affected nobility of sentiment [which Burgoyne employed] to dazzle [and] the more effectually to mislead the Court.”
To dismiss Burgoyne’s performance simply as vacuous contrivance would be a mistake. He may have been intolerably imperious, but he was very smart. He sensed that even in the midst of war many Americans remained ambivalent about their relationship with Great Britain. They were willing to fight for independence, and they spurned a social order based on aristocratic privilege. But, as Burgoyne understood, many of them — citizens and soldiers who attended court every day — wanted the British to view them not as ill-mannered rebels but as a civilized people, worthy of respect.
Burgoyne played on the tension between fierce resistance and longing for approval that was palpable throughout the trial. Were the Americans prepared to understand the complex issues involved in the court-martial? In the most patronizing manner, Burgoyne addressed the judges: “You are trustees for the honor of an infant state, and therefore evasion, subterfuge, and law-craft, was any man hardy enough to offer such to your tribunal, would be to no avail.”
What, he asked, would be the reaction of enlightened nations throughout the world if the Americans refused to convict Henley? It would be “a foul and indeliable blot in the first page of her new history” and no “series of disavowal and penitence, nor ages of rectitude in government, purity in manners, inflexible faith, or the whole catalogue of public virtues [could redeem] her in the opinion of mankind.”
The formal proceedings began on Jan. 20, 1778, and continued for several weeks, interrupted only by a blizzard. Burgoyne called a stream of witnesses who testified that Henley not only used excessive force in controlling the British prisoners but also had created such a hostile environment that his guards believed they could use extreme measures with impunity. Testimony included that of American soldiers who came forward to justify Henley’s actions.
Burgoyne’s sententious rhetoric apparently had little effect on the panel of officers sitting in judgment. In a terse statement, the court declared that “after mature consideration [they] are of opinion that the charge against Col. Henley is not supported, and that he be discharged from his arrest.” Spectators reported that “the colonel has been acquitted, all of his conduct being ascribed to his zeal.”
After the Cambridge ordeal, the major figures in the court-martial went their separate ways. Henley resumed his responsibilities overseeing the prison camp. Washington later appointed him to a highly sensitive post overseeing the gathering of military intelligence. Burgoyne refused to accept the verdict. He later released for publication the speeches he had made during the court-martial attacking Henley.
Henley and Burgoyne were so aggrieved by what had happened that they negotiated a duel to be held in Bermuda after the conclusion of the war. By 1783 both men had lost interest in the affair. Heath continued to serve in the army. After a peace treaty had been signed by Great Britain, he returned to farming, wrote a memoir, and participated in local politics.
Burgoyne returned to England, eager to confront critics in Parliament. Despite his energetic efforts to convince them that he was not to blame for the defeat at Saratoga, he was unable to restore his tarnished reputation.
The ordinary British and German soldiers fared worse. Authorities in Massachusetts found it increasingly hard to provision so many prisoners, and as conditions in the barracks deteriorated, people in Cambridge expressed fear for their own safety. Congress was unwilling to allow so many enemy soldiers to return to Great Britain on parole since it suspected that many would soon return to the American battlefields. After nullifying the convention agreement, it decided to move the surviving troops to Charlottesville, Virginia, a distance of over 700 miles. By this time the number of soldiers had greatly decreased. Many had died, others had deserted. Only about 3,000 soldiers endured the long winter march to a new prison camp in Albemarle County.
Well-to-do planters initially welcomed the newcomers who arrived in Charlottesville in January 1779. After all, the prisoners brought money to a struggling local economy. The officers rented homes, and some enjoyed Thomas Jefferson’s hospitality at Monticello. In a letter to Gov. Patrick Henry concerning the support of the enemy troops, Jefferson observed: “It is for the benefit of mankind to mitigate the horrors of war as much as possible. The practice therefore of modern nations of treating captive enemies with politeness and generosity is not only delightful in contemplation but really interesting to all the world.”
Ordinary Virginians found the situation a lot less interesting when they discovered how expensive it was to feed and house so many soldiers. Few complained when the remnants of Burgoyne’s army were transferred to Maryland in 1780, and later to Pennsylvania. When the war ended in 1783, only 800 prisoners remained.
Burgoyne had been wrong about the United States. Even in the midst of a war for which there was no guarantee of victory, the Americans acquiesced to the British general’s unusual demands and demonstrated to themselves and to the British that “the first page of her new history” contained a commitment to the rule of law.
T.H. Breen is the author of The Will of the People: The Revolutionary Birth of America. He is currently at work on a book titled The American Revolution on Trial: The Cambridge Ordeal.