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A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates, 1774-1875
Dear Brother York Town in Pennsylvania Octr 26. 1777 By a Letter from Colo Jonathan Mifflin D.Q.M.G. (dated Head Quarters J Morris's Octo 24th 1777 5 oClock P.M.) to General Mifflin, who is indisposed at Redden, which the General has sent to Congress, We have the following Intelligence.
"The Day before Yesterday at 4 o Clock P.M. Count Donop with 1200 Hessian Granadiers made their Appearance before the Garrison at Red Bank,(1) & by Flag demanded a Surrender; which being refused they made an immediate Attack, forced the Abbatis, crossed the Ditch & some few had mounted the pickets. They were so warmly received
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that they returned with great precipitation, leaving behind the Count, & his Brigade Major who are wounded & in the Fort. The killed & wounded agreable to the Letter are 500.
"Leut. Colo (2) Green who commanded, played upon them a very good Deception. When the Flag came in he concealed all his Men but 50 saying 'with these brave Fellows the Fort shall be my Tomb.' He had 5 killed & 15 wounded.
"Yesterday an attack was made upon Fort Mifflin (3) by 6 Ships which were warped thro the Cheaveux de Frizes at Billingsport in the Night. They began the Cannonade at Day Break, which continued very hot till 10 oClock, when the Gallies forced them to give Way. In retiring, a 64 Gun Ship (said to be the Augusta) & a Frigate (the Liverpool) (4) ran ashore & were soon set on Fire by their own People. Two Men were wounded."
The above News is confirmed so far as it relates to the Loss of the Ships, by a Letter from Major Clark A D C to General Green, who being wounded is employed to obtain Intelligence; he says the explosion of the Ships exceeded all Description & that Red Bank had been attacked, so that We have no Doubt of the Fact. I am in Haste, yours &c, E Gerry
P.S. We have not yet the particulars of General Gates Success.
RC (MHi).
1 Gerry inserted an asterisk at this point and wrote in the margin: "one of our Fortifications on the Jersey side of the Delaware."
2 Gerry inserted an asterisk at this point and wrote at the foot of Mifflin's letter: "It should have been wrote 'Colo Green' [Christopher Greene] of one of the Rhode Island Batalions to whom General Washington gave the Command of the Fort."
3 Gerry inserted an asterisk at this point and wrote in the margin: "Another of our Fortifications [on] an Island in Delaware."
4 During this engagement the British lost the Augusta and the Merlin, not the Augusta and the Liverpool.
Henry Laurens to John Rutledge
Dear Sir York 26th October 1777 I had the honour of addressing your Excellency the 19th Inst. by Durst an Express. My Duty to the State calls upon me to employ the present bearer for conveying this dispatch relative to the Case of the Brigt Success which is represented by Mr. Attorney General of So. Carolina to be of great importance & which your Excellency has recommended to the attention of the Delegates.(1) About the 20th or 21st Inst. I informed my Colleague Mr. Heyward, that an application had been made by Capt Arthur for a hearing & determination of his
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Appeal, that I had therefore obtained leave to withdraw from the Bench of Appeals as well to avoid a suspicion of being an Interested judge as to act in support of the Decree, that a Court was to be held the next Morning, requested his advice & assistance & obtained a promise of both. Mr. Heyward then informed me he had received a Letter on the Subject from the Attorney General which he soon after put into my hand. The Court met at the time appointed, I attended & to my great Surprize the Advocate employed by me, Mr. Rush, admitted without hesitation the authenticity of the Records & Appeal as produced in Court under Notarial Seal. As Mr. Heyward did not attend & I much disliked the tameness of my Advocate I moved the Court to adjorn in order that I might further confer with Counsel before we Should enter upon pleadings.
I considered the Attorney General's Letter as deserving notice & had therefore put it into the hands of Mr. Rush who perused & returned it. Saying, what appeared to me very extraordinary that he had been Speaking to Captain Arthur & his Proctor & they were exceedingly anxious to put an end to the business & he requested I would not oppose it. Mr. Rush's general good Character & good disposition forbid a remark which his conduct would have warranted tho' I don't mean even to insinuate that it would seem as if those Gentlemen had been Speaking to him. He asked if I would permit him to apply to Mr. Heyward-which I not only consented to but urged in hopes of obtaining the aid of my Colleague & also from an assurance he would be of my opinion that a determination ought to be postponed until we should receive the necessary papers promised by Mr. Moultrie.
The Bench were again convened the Morning of the 2Sth & as Advocate Rush did not appear but Mr. Lewis his opponent attended. In the absence of Mr. Rush I moved the Court upon the ground of Mr. Moultries letter for a further day in order to obtain Evidence & was very warmly & earnestly opposed by Mr. Lewis. The Subject was plain & easy, I found my Self in no embarrassment for want of a proper reply until I was questioned upon the receipt of the Letter, nor was I then distressed on my own Account, truth dictated that Mr Heyward had received it Some time Since & that the president of the Court had been informed the day it came to my hands. Mr. Heyward was Sent for & asked when he had received the Letter. He answered about Six weeks ago, that he thought it of no consequence, that Mr. Moultrie had been very careless, that he had not spoke to Captain Arthur upon the occasion but that Mr. Rush had spoke to him & he had told Mr. Rush he had no objection to bringing on the Trial, he did not see why Captain Arthur should suffer for Mr. Moultries carelessness. This reply as it came without previous intimation & as there had ever been a good understanding between my Colleague & my Self & no deficiency of respect or attention on my part in the present Instance affected me & accounted for Mr. Rush's absence who had
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been so extremely averse from my prayer for Time, It had likewise a visible effect upon the Bench.
I however derived Some consolation from hearing my Colleague in one Short answer Censure the Attorney General for negligence & acknowledge he himself had been in possession of a Letter from Authority near Six Weeks without disclosing the Contents to those persons to whom he was particularly instructed to make them known. I will not be second to any Man in point of Candor but there appeared to be no necessity for a display upon this occasion. I beg your Excellency will be assured I do not mean by any thing I have Said to Censure my Colleague, I am persuaded he Spoke the genuine Sentiments of his mind & whatever impressions these might have made I do not beleive he meant to lessen me in the Esteem of the Court, nevertheless I flatter my Self Your Excellency will agree that if he had communicated his opinion in private every good purpose would have been answered, & I am sure much trouble saved in which I am now unavoidably involved, by an abrupt declaration directly contrary to the tenor of my petition founded upon Instructions which he had put into my hands & in which I had intreated him to join. Your Excellency will also from hence receive information why you are addressed upon public business by a Single Delegate, which is the chief end I have in view. Thus left to Struggle without a Friend I proceeded to expostulate with the Judges-the Cause before them was not mine- it was the Cause of the State of So. Carolina, was of a new impression & of the highest importance in its consequences to the 13 United States. Admitting the charge of remissness on the part of the Attorney General which I might have expected to hear without foundation from the Appellant the Interest of the State of South Carolina deserved some consideration-the enforcing obedience to the Resolves of Congress, more, that I had no doubt in my own mind of Sufficient ground for Supporting the Decree, & that in such assurance were the Cause my own I would wish for no other Evidence than those already produced, but that I considered the Attorney General's Letter as an Instruction on behalf of the State to the Delegates which barred me from acting until I should receive further power from the [Appelles?], upon the whole I prayed for forty days adding that Should the expected papers in the mean time arrive I would immediately give notice to Capt. Arthurs Proctor & hasten a final determination for I had no wish or desire to injure Captain Arthur. I was Strongly induced to pray for time from another motive, to gain the assistance of a Second Advocate. Mr. Rush was not only desirous of bringing on a hearing but had told me he feared we should lose the Cause which I could not beleive & therefore intimated to him my design to call in assistance. The refusal by the Judge & by the Register in obedience to the Judge's order to grant Copies of the proceedings to the Appellant underwent, from possibly the weaker Side of the Bench, severe &
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unmerited Strictures which called for all the defence that my abilities could afford. I denied the allegation, that the Judge had refused to admit Mr. Arthurs appeal, he had refused to receive or Record a paper abounding with Insolent, unjust & equally unnecessary charges against himself, but had nevertheless condescended to promise he would receive an Appeal expressed in proper terms & to the purpose. The Cause had been tried before a Jury of twelve Men approved of by the Appellant, Men all personally & most of them intimately known to him, the Judge in promulgating his Decree had acted as Executor of the Law not as Sole Judge of the merits of the Cause. It was therefore Cruel as it was unjust to Insult him for pronouncing a Sentence which was the natural effect of the Verdict of an impartial Jury. I appealed to Gentlemens own feelings & added that I had heard one Gentleman of the Bench express his Surprize that the Judge had not committed the proctor for a Contempt.
The Court now consisting only of four were divided in their opinions which egged me to declare that I should esteem the Attorney General's Letter as a prohibition to my interfering in the Cause until I had at least applied for the promised Evidence. I should submit to the Bench to act as they should think unwarrantable, I felt an assurance of confirmation to the Decree whenever the Merits should be considered, but if upon a premature determination it should happen otherwise, my duty would oblige me to protest at large. It was determined to indulge me with forty days, a short space of time for going to Charles Town waiting the liesurely progress of Mr. Attorney & returning to this place or perhaps as I wish to Philadelphia & I have informed Mr. Heyward of my purpose to Send this bearer express.
As your Excellency has been pleased to think this business of such moment as to recommend it to the Delegates I am persuaded there will be no delay on your part. The Express should have at least two & twenty days allowed for his return, the Roads will be bad & weather severe, he hopes to get to Charles Town in 18 days & not to be detained there above 48 hours. I have only to add that if the Act of Assembly enjoining Masters of Vessels to wait on the Commander in Cheif within a limitted time after arrival was not among the exhibits intended to be Sent it may be useful to transmit an authenticated Copy, altho' I am apprized of Mr. Arthurs having first landed in George Town.
Reflect a moment if you please Sir upon our present High Court of Appeals, five persons a Committee of Congress, not all of them, as witness the present writer, Lawyers or conjurers, empowered by a very Summary mode or rather no mode of proceeding & not under the obligation of an Oath to Stem the Verdict of twelve good & true Men Sworn to do Justice, to blemish the reputation of a Judge bound under an Oath of Office & to determine upon property to the highest
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Amount, & correct me if I err in declaring it an unwise & dangerous Institution. I think it merits consideration whether Delegates should not be instructed to move Congress for a Repeal of their former Resolution & to recommend a more perfect establishment within each State. I know the confederation will be thrown in as an obstacle to any thing that might be attempted without Special Instruction but alas the Confederation. When Your Excellency comes to peruse that paper you will perceive that many Evil[s] may arise to Individuals before the Several States shall have concurred, even admitting, what I doubt, that all the States are disposed to concur in a general Confederation. The day for that event does not Seem to be at hand. I think in many parts we have improved after too long debating the original plan much for the worse. By the next opportunity I will transmit all that we shall then have agreed to.
Under this Cover you will find Copy of Mr. Duche's infamous Letter to General Washington. As it has been thought improper by Congress to publish it Your Excellency will not suffer a publication to be made from the Copy I send. I request you to let General Howe & Mr. Gervais see it.
The News of the day is great & valuable. I will endeavour to collect the Substance & put a half sheet containing it within this. I congratulate with your Excellency on these great events, God grant we may improve them into foundations for establishing an honourable & lasting peace. I am fatigued by apprehensions of being any further obliged to the French, rejoiced that we are hitherto so little. As it may now be said we have thrown Sixes upon which we have been, tacitly promised the friendship of all Europe I hope our Antagonist will draw the Game.
No Man is more determined to persevere to the end at all hazards than I am yet the State of our Army, of our finances & above all the management & disposal of our funds furnish arguments sufficient to induce every thinking Man devoutly to wish for peace & opportunity for recollection but some there are in & not in the Field who pray for a long & moderate War. I am with the most perfect Esteem.
27th. This was ready for the Express last Night but I waited expecting the Court of Appeals would have Issued a Citation to answer to Capt Arthurs Appeal & shew Cause but Mr. Lewis informs me it will not be done or not immediately & he has agreed the 40 days shall commence tomorrow.
LB (ScHi).
1 For information on the case of Weyman v. Arthur, see Laurens to John Lewis Gervais, October 18, 1777, note 4.
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