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May
14

Battle of the Great Cacapon

By
When:
April 18, 2015 – May 31, 2015 all-day
2015-04-18T00:00:00-04:00
2015-06-01T00:00:00-04:00

Fort Loudoun Courtmartial eric cherry watermark

Sketch by Eric Cherry, illustrator for DC Comics Batman

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Click on sketch above to enlarge.

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BATTLE OF THE GREAT CACAPON

AND COURT MARTIALS

by Jim Moyer  4/2015, 4/16/2016, 3/5/2017

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There is a lot here. Take in pieces.

Any observations? Corrections?

Post on FB page Friends of Fort Loudoun .

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THE STORY

See Wikipedia overview:

Battle of the Great Cacapon,

evening of April 18, 1756,

about a mile and a half from

Fort Edwards (now in Capon Bridge WV),

but back in 1756, still administered by Frederick County Virginia).

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To George Washington from

William Stark, 18 April 1756, an account of the story

of the Battle of Great Cacapon:

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“The purport of this is to acquaint you

of an Engagemt we had

with the Indians late this Evening—

Three of our Men going out on pretence

of looking after some Horses

met with a party of Indians

within sight of the Fort

two of which escaped and alarm’d us,

we immediatly pursued them

with a party of between fourty & fifty Men

undr Command of Capt: Mercer Lieut:

Williams, Ensn Carter Ensign McCarty

Lt Lemen & myself 1

after following them abot a Mile & an half,

on rising a Mountain we were fired on very smartly

which we warmly return’d for half an hor

then finding ourselves almost surrounded

we retreated in the best manner We could to the Fort

we unhappily lost Capt. Jno. Mercer

Ensign Carter and fifteen Soldiers &

had two wounded,

we imagined the Number of the Enemy

to be upwds of an hundred. I am Sr &c.”

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KILLBUCK

Notice the part – “two of which escaped” ?

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This was the modus operandi of two Indians,

one named Killbuck.

The MO was to lure the whites out of the fort.

Then AMBUSH !

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Killbuck did this method with various modifications many times.

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THE STORY AGAIN

The Maryland Gazette (Annapolis) on 6 May 1756 gave the following report of Mercer’s engagement taken from the missing Virginia Gazette (Williamsburg) of 23 April:

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“Wednesday came to Town

Lieut. Rutherford, from Winchester,

and has brought us an Account of the Defeat

of one of our ranging Parties, on Sunday last,

under the Command of Capt. John Mercer,

near Edwards’s Fort, on Cape Capon,

about 20 Miles above Winchester:

A Party of Indians appearing

in the Neighbourhood of the Fort,

Capt. Mercer went out with three Subalterns

and sixty pick’d Men,

and about a Mile from the Fort was attack’d

by a superior Number of Indians,

whom they fought for some Time, with good Success,

but (the Enemy being reinforced by another Party)

were at Length obliged to give Way

and retire to the Fort;

Captain John Mercer, and Lieutenant Thomas Carter,

two brave Virginian Youths,

Volunteers in the Defence of their Country,

were, with 15 Men left in the Field;

they died bravely

the most honourable of Deaths . . .

Lieutenant Williams and some private Men were wounded.”

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Washington writes to Lt Gov Dinwiddie on 3 May 1756:  

(here is another link to same letter) :

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First known portrait of George Washington at age 40 in 1772, in his VA Regiment uniform

“I have sent down an Indian scalp,

which was taken at the place

where Captain Mercer had his engagement.

He was found thrust under some rocks,

with stones piled up against them.

They believe more were killed,

from the quantity of blood found on the ground,

and from other discoveries of their attempts

to make more graves.

But a hard shower of rain prevented

their making a farther search.”

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“We have reason to believe,

that the Indians have returned to Fort Duquesne,

as some scouts from Fort Cumberland

saw their tracks that way;

and many corroborating accounts affirm,

that the roads over the Allegany Mountains

are as much beaten,

as they were last year by General Braddock’s army.

From these and other circumstances

we may judge their numbers to have been considerable. 

Whether they are gone for the season,

or only to bring in a larger party,

I am at a loss to determine.”

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THE COURT MARTIALS

Held in WINCHESTER VA  on May 2, 3, 4, 1756

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Exact locations in Winchester VA are unknown of these trials.  The transcripts of the trials are all datelined Winchester. Later trials are recorded under dateline of Fort Loudoun.

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In 14 days after the last of these trials, the construction of Fort Loudoun starts.

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THE TRIAL OF SOLDIERS

Matthew Fling, and George Clarke

See The Court Martial.

Soldiers accused of throwing their arms away during the retreat, were exhonerated

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THE TRIAL OF LT JOHN LOMAX

Court Martial of Lieutenant John Lomax.

See date and time of this trial  of 2 May 1756 Washington ordered.

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Notice Lomax, after being exonerated, sits as jury member on the 2nd trial of Sergeant Nathan Lewis.

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FIRST TRIAL OF

SERGEANT NATHAN LEWIS

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First Court Martial of Sergeant Nathan Lewis results in no decision:

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Colonel Washington is not happy with this lack of a decision and orders another trial of Sergeant Nathan Lewis.

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No Double Jeopardy concept back then.

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Was there a lack of evidence to convict?

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2ND TRIAL OF

SERGEANT NATHAN LEWIS

Second Court trial of Sergeant Nathan Lewis

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TESTIMONY

4 witnesses testified.

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Lieut. Lemon first Evidce Sworn, says he order’d Serjt Lewis to go out with him from the Fort with about thirty men which he carrd out and at the same time order’d Lewis shou’d go upon the right with a few of them and so keep up with him as to be able to join him upon an attack—But after marching a small Distance he found himself Deserted by half his men together with Lewis Mr Lemon continued his March till he overtook Lieut. Williams, when the Engagement Began—But Lewis was not there and was found in the Fort on return.

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Serjt Sallard Sworn says, Serjt Lewis Left the Fort when the other Party Did, and return’d to the Fort a Little before them.

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John Beard2 Sworn says Serjt Lewis ask’d him and the other Soldiers with him to go upon the right of Lieut. Lemons party and that they went about a mile which brought them nigher the Fort, and seeing a Dog they Persued him then hearing Guns fire the[y] Consulted what to do and seeing Mr Blaggs party joind them. and that Lewis and he was never out of the Pasture till they joind Lieut. Blaggs party on their retreat The Deponent says that Lewis seem’d very willing to join Lieut. Blaggs party.

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John Whiffle3 Sworn says that he and Lewis and the others, march’d up the Pasture, after Leaving Lieut. Lemons party there they heard some Guns fired, and s⟨to⟩pt sometime consulting what to do Lewis was ask’d, if they had not best join the party Engaged to which he answer’d t’was Dangerous and they might be shot by their own Men as well as the Indians, as they knew not which side they were Engaged upon, they afterwards seeing a party come out of the Fort the Deponent ask’d Lewis, if he wou’d not join them. but he said it was too Late and that they woud retreat before they coud join them—he further says several of the men run to Lieut. Blaggs party and he and Lewis being Left, they return’d to the Fort.

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Serjt Lewis in Defence says that Lieut. Lemon orderd him to go up a Valley on the right (which Lieut. Lemon Denies, as allso that there was such a Valley) with Lemon,4 he there March’d and Expected to meet with Mr Lemon, as he had promised to join him at the Head of the Valley (which Lieut. Lemon also denie⟨s)⟩ But when he came there he went in Persuit of an Indian Dog wch he saw.

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FRIENDLY FIRE DEFENSE

Two witnesses stated Lewis and his men stopped to consult when they heard the firing in the distance.

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The 2nd witness to be deposed, John Beard, went further:  they thought they would be mistakenly shot by their own men in the confusion of battle.

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THE DOG DEFENSE

Interesting side note of chasing a dog. Why? In the midst of danger? Was that dog going to lead them somewhere important?  Because accused Sergeant Nathan Lewis called it an Indian Dog, it could lead him to the Indians?  But he never showed up to the fight. Was the dog exposing their position? Was the dog a prize to have? That we don’t have an answer might be indicative of assumptions by the contemporaries who figure everyone would naturally know why they would chase that dog.

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LOMAX

Different links show different initials for Lomax, and different trial dates.

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This link of court martial accurately shows Lt Lomax in jury list at top of page.

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Also shows J.E.Lomax at bottom of page.

This link also shows the trial date correctly as May 3.

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The web link 2 of same court martial has 2 errors:

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1. H. Lomax on list of jurors. H is not the correct initial.

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2.  Incorrectly states May 2 as trial date.

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THE SENTENCE

This 2nd trial results in a unanimous decision:.

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Sergeant Nathan Lewis willingly retreated from helping in battle.

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Cowardice is the Charge.

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Questions:

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Lt Lomax accused and then exhonerated of cowardice in the same battle – should he have sat on the trial of Sgt Nathan Lewis?

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The first trial of Sgt Nathan Lewis resulted in no finding.  Double Jeopardy?  Not a concept hardened into law yet.

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Did Washington ever execute Sergeant Nathan Lewis? Is absence of evidence, proof?

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DISCIPLINE AUTHORITY

Colonel Washington is careful to require legal authority for this court martial.

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Washington writes  Lt Gov Dinwiddie 3 May 1756, “I find the Act of Assembly against Mutiny and Desertion quite insufficient; except in those two particular crimes. [meaning only Mutiny and Desertion. Cowardice and other crimes were not listed.]  There is no notice—nor can a Court Martial be held by virtue of this act, against any Officer or Soldier who is charged with cowardice—Holding correspondence with the Enemy—Quitting, or sleeping upon a post—nay, many other crimes which are provided against in the Articles of War.”   Washington wanted to add “impressing wagons,” which are “in force in our mother country.”

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In same letter GW seeks legal authority for death sentence.

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The law required that Lt Gov Dinwiddie sign his name to any such death sentence. Colonel Washington writes, “I inclose your Honor the Sentence of a General Court Martial, which was held here upon a Sergeant for running away with his Party. They have, I think, very justly adjudged him to suffer Death: which Sentence I hope you will approve of; as there never was a fitter object to make an Example of—being the second time he has been guilty of the same crime; nor a better time, as the Newly-draughted Recruits for the Regiment may be here by that time to see it executed; and it will be a good warning to them.

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Signed Death Warrant is required by law:

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Lt Gov Dinwiddie writes in a letter 8 May 1756, to Colonel Washington , “I send You a Death Warrant for shooting Sergeant Lewis, which I doubt not You will order to be executed, by having as many of the Forces present as You can, that he may be a public Example to deter others from such like Offences; You are to fill up the Blank to the Day You may think most proper, declaring the Crime for which he suffers.”

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WAS NATHAN LEWIS EXECUTED?

Washington, however, never signs the blank warrant to execute.

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This death warrant was left blank. Washington never signed it or dated it. According to the law, such a warrant had to be signed in order to be legal. So if Washington had executed Sergeant Nathan Lewis, such an action would put Washington in legal jeopardy. Washington being careful about having legal authority would not have risked his standing with the Virginia Assembly and Lt Gov Dinwiddie.

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As late as 18 May 1756, some 2 weeks after the Court Martial’s sentencing, Sergeant Nathan Lewis is still living.

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Washington writes 18 May 1756 letter to  Adam Stephen who is still at Fort Cumberland.

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“…Instances of this are now before them of Nathan Lewis, Corporal James Thomas, and Henry Campbell—all under Sentence of Death—The first for his cowardice at the action at Edwards’s; the others for desertion. I have a warrant from the Governor for shooting of Lewis, and shall delay the execution until the arrival of the new Recruits [ see orders 18 May 1756 reaffirming this point ] .  The others were tried but to-day; and the proceedings of the Court will be sent to the Governor; if he approves the Sentence—I shall make it my particular care to see them executed; as I shall every individual that offends in the like cases.7 “

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AUGUST 1755 LAW

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Scroll down to page 562 in this link to find the following quote from the August 1755 law: “…and that execution of all and every such sentence and judgment shall be suspended until the pleasure of the governor, or commander in chief, for the time being, be known, who if he thinks proper, is hereby desired to issue his warrant under the seal of the colony, for putting such sentence or judgment into execution, and to transmit the same to the presiding officer at such court martial.”

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George Washington sees a problem with this.

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If every sentence of death must be subject to a distant Governor’s availability of time and his ability to understand, then delays, misunderstandings, disagreements will occur.

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The October Law strengthening of punishment still does not correct this problem.  But Assembly members and the Governor see no circumvention of this law by offering George Washington blank warrants signed by the Governor.

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OCTOBER 1755 LAW

To George Washington from Robert Dinwiddie, 18 October 1755

“I am very sensible the Militia Law is very deficient, & several other Points proper to be adjusted; I have therefore called the Assembly to meet next Monday Week…” 

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The August 1755 law is strengthened in the October 1755 law.  Scroll down to Page 560 in the following link until you see the October 1755 changes.

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Col Washington writes in a 18 November 1755 letter to  Adam Stephen:

I beg that you will be particularly careful in seeing that strict Order is observd among our Soldiers, as that is the Life of Military disciplineWe now have it in our Power to enforce obedience, and obedience will be expected from us, the Men being subject to death as in the Military Law:3 The Country4 have also offer’d a reward to all who will apprehend deserters, and a severe punishment upon those that shall entertain, or suffer them to pass; also upon any constable who refuses to convey them to their Quarter’s,5 or suffer’s them to Escape after such deserter is committed to their custody: these things, with the Articles of War, and a proper exhortation I would have you immediately read to the Men; and see that it is frequently done hereafter”

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Assembling the Men.

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As with later trials ending with death sentences or floggings, Colonel George Washington would assemble the men at the end of these trials to march out to the frontier forts and to scout the countryside.

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The men duly sobered by recent disciplinary action were in the mindset to do their job – or so Washington hoped.

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Orders after this trial, see this important link

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Suggestions, corrections, additions of information about this time of the Spring of 1756 are welcomed to post on https://www.facebook.com/groups/788566064548558/

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Links

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battle of great cacapon 1x battle of cacapon 2 xhttp://www.treefrogtreasures.com/forum/showthread.php?7483-April-18-1756-Battle-of-Great-Cacapon-(Mercer-s-Massacre)

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battle of cacapon 3 x

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Great Family Tree Chart for Mercer

http://www.fortedwards.org/mercer.htm

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