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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

Sketch by Eric Cherry, illustrator for DC Comics Batman . We recognize the uniform such as the lapels and epaulette on the shoulder are incorrect. This was an early picture of just getting the artist Eric Cherry involved. What we like best is what the Court Martials may have looked like. CLICK OR TOUCH TO ENLARGE PICTURE.

 

BATTLE OF THE GREAT CACAPON

AND COURT MARTIALS

by Jim Moyer  4/2015, 4/16/2016, 3/5/2017, 9/21/2017, 6/10/2018, 1/14/2019, 1/17/2019. 1/18/2019, 1/19/2019, 2/9/2019, 2/14/2019, 2/15/2019, 2/16/2019, 3/9/2019, 6/16/2019

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INTRO


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The stories of the French and Indian War  capture the imagination.

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At first it is the firing of a musket, an Indian War Whoop, in a huge forest like its the Blair Witch Project, but then it becomes bigger.

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Like the Greek Gods known as the Titans, full of fault and trial and caprice and bravery, in here walk our Ancestors, navigating through a Dark Forest of a Shadowy Past.

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Forest –

That forest was Dark. It was no ordinary forest. As late as 1770, George Washington recorded the largest Sycamore ever recorded in the world.  These trees were huge. The Forest was Dark.   The Braddock Expedition in 1755  delighted in seeing the sunlight despite possible ambush when crossing the river.

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Questions on this Past –

In here flit murky shadows with questions unanswered.  We are going to hand you a detective story with some unanswered questions.

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SUMMARY


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See the Michigan Toy Soldier Company – https://michtoy-from-the-front.blogspot.com/2016/08/mtsc-product-spotlight-clash-of-empires.html … CLICK OR TOUCH TO ENLARGE PICTURE.

What, When, Where:

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This Battle of the Great Cacapon was fought about a mile and a half from Fort Edwards in what is now known as Capon Bridge WV, April 18, 1756 on an Easter Sunday evening, using the New Style Calendar which was only 4 years old.

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Where exactly?

See this link where we think the battle occurred.

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Back then this area was still administered by old Frederick Co of old Virginia.

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Jacob Edward’s fort was a house settlement surrounded by stockade.

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This fortified location became a way station.  Virginia Regiment troops garrisoned it.  Virginia troops would stop here on the way from Fort Loudoun Winchester VA on its way to other forts such as the only designated King’s Fort,  Fort Cumberland,  and to Fort Pearsall’s ,  Fort Pleasant, and other forts on the South Branch and to Fort Ashby and Cocke’s Fort on the Patterson Creek.

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HOW MANY?

William Stark states  a party of between fourty & fifty” of Virginia Regiment soldiers of which 6 were officers and we imagined the Number of the Enemy to be upwds of an hundred.”

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Mr James Parson who was there gave Cartmell an account decades after this battle. He states, ” About 30 or 40 [Indians] approached Edwards’s fort,” and states,Forty men, under the command of Capt. Mercer, sallied out.”

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The Maryland Gazette quoting the Virginia Gazette almost a month after the battle stated, Capt. Mercer went out with three Subalterns and sixty pick’d Men,” and “was attack’d by a superior Number of Indians.”

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So How Many?

Fort Edwards Garrison troops – 40 to 60.  Indians – 40 to 100.

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Casualties?

William Stark states   they, “unhappily lost Capt. Jno. Mercer Ensign Carter and fifteen Soldiers & had two wounded.”

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Washington writes to Lt Gov Dinwiddie on 3 May 1756:   that they found one Indian buried under a rock and believe more were killed from the quantity of blood found on the ground, where the Indians fired from; and from other discoveries of their attempts to make more Grave.”

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Maryland Gazette: “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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So How Many Casualties?

Fort Edwards —  Dead: 2 officers, 15 soldiers, Wounded 2

Indians:  1 dead found.

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Court Martials Afterwards?

After the battle there were 4 separate court martials.

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One Court Martial concluded a soldier cowardly failed to follow rules of engagement and should be executed by firing squad.   But was he ever executed?

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We follow the cold trail.

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Reenactors in the Virginia Regiment George Mercer Co 1755-1757. Picture taken at the Virginia Beer Museum 12/10/2018. . A court of inquiry is being reenacted here. L-R: Eric Robinson, Tony Elar Jr, Sloan Culver, Marc Robinson, Steve Doss. CLICK OR TOUCH PICTURE TO ENLARGE. Don’t they look like they are having fun? Want to join? Shoot a real musket? We also have Cherokee, Catawba, Nottoway, Tuscarora allies. You want to join our Indian allies? Do you wish to live and tell their story?

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One court martial involved two soldiers who left their muskets in the battle. They were exonerated.  One of them got in trouble again and was court martialed again.

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A different court martial charged Lt John Lomax for not helping the retreat.  Lomax claims he was given orders to stay in the fort.  Lomax was exonerated.

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Amazingly he was chosen to sit on the next Court Martial accusing Sergeant Nathan Lewis of cowardice, who failed to follow rules of engagement.

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Also there is Double Jeopardy issue here for Nathan Lewis.

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The first trial of him ended in a decision that did not please Colonel George Washington who then ordered a 2nd trial.

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So we have a lot of questions.

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Most histories don’t mention all the questions still unanswered.   That approach provides the illusion of finality.  There’s always loose ends.  No historian can run down all the trails. We want your help.  You have the baton.

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Table of Contents:


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  1. 1. There is a lot here. Take in pieces.

  2. .

  3. 2. About the Sources and Links

  4. .

  5. 2.5  THE PRE-STORY

  6. .

  7. 3. The Story

  8. .

  9. 4. Killbuck is Involved?

  10. .

  11. 5. Kerchival on the battle, Killbuck, Daniel Morgan

  12. .

  13. 6. Cartmell on the battle, Killbuck, Daniel Morgan

  14. .

  15. 7. Back to the Story of the battle: Maryland Newspaper Account

  16. .

  17. 8. Washington tells Dinwiddie about this battle

  18. .

  19. 9. THE COURT MARTIALS

  20. .

  21. 10. The Trial of 2 Lost Firelocks

  22. .

  23. 11. THE TRIAL OF LT JOHN LOMAX

  24. .

  25. 12. First TRIAL OF SERGEANT NATHAN LEWIS

  26. .

  27. 13. Double Jeopardy?

  28. .

  29. 14. Death Penalty

  30. .

  31. 15. Second TRIAL OF SERGEANT NATHAN LEWIS

  32. .

  33. 16. Friendly Fire Defense

  34. .

  35. 17. The Dog Defense

  36. .

  37. 18. About Lomax noted in court records with different initials and different court dates

  38. .

  39. 19. The Sentence

  40. .

  41. 20. Questions

  42. .

  43. 21. Discipline Authority

  44. .

  45. 22. WAS NATHAN LEWIS EXECUTED?

  46. .

  47. 23. August 1755 Law

  48. .

  49. 24. October 1755 Law

  50. .

  51. 25. Assembling the Men to witness the Sentence

  52. .

  53. 26. Corrections? Suggestions?

  54. .

  55. 27. Links

  56. .

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There is a lot here. Take in pieces.


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Any observations? Corrections?

Post on FB page Friends of Fort Loudoun .

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Use the Table of Contents so you can skip around to the section you want to see first.

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About the Sources and Links


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We do know Wikipedia links  have errors.  But corrections to those references do come in time. We use the links because Wikipedia tends to not result in a broken link years later. We use Wikipedia as just a launching point for further investigation.  Even the Mt Vernon website can have broken links as they revise their website often.

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About the other links?  We use Founders Online, Hathitrust, Archive.org, and Jim Moyer’s Frontier Forts Google Maps.

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First the Story of the battle, then the Court Martials:

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THE PRE-STORY


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Often we read history or any event as a separate story.

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The Real Story?

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This battle is one battle in a series of battles in a 4 to 5 week period, like a modern crime wave, incident after incident.

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This crime wave was retribution by both.

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Payback. Revenge. Horror. Families destroyed. Futures lost.  All in a period of about a month.  Consequences to last a long time after that.

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March/April  –  Jeremiah Smith’s local militia battles the Indians in Lost River who are the same ones in the Battle of the Trough. They are also most likely the same Indians involved in all the battles listed below:

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End of March Early April 1756BATTLE OF THE TROUGH 

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April 1756  Attack on Martin’s Fort (Seller’s Fort). 

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7 April 1756 Capture and Scalp of Frenchman Sieur D’ouville  in the North River Mills area whose intent was to destroy the munitions at the depot at Maidstone fort  on the Potomac across from the mouth of Conocheague, which is why the fort area was often referenced as Conocheague in the letters.  See April 13, 1756 page 366 of the  March 25, 1756 session of the  Journal of the House of Burgesses who ordered 25 pounds be paid to the soldiers involved in this engagement on North River.

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8 April 1756  Lt Bacon of Maryland and 5  Ashby’s rangers  reported killed, and Cox Fort attacked

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15 April 1756  attack on Fort Ashby 

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18 April 1756 Battle of the Great Cacapon near Fort Edwards, 20 miles from Winchester

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16 July 1756  Vincent Williams near Fort Pleasant killed, chopped up to adorn his cabin

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Outside of all these battles, the Virginia Regiment with their Indian allies took the battle to the French and their Indians along the Braddock Road 35  some miles northwest of Fort Cumberland at the Great Crossing.

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May 29  Captain Tom Step Nottoway ally and the Southern Tuscaroras

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THE STORY


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This is a letter that establishes the date and time and general location of the battle.

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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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Time of Day:

“The purport of this is to acquaint you

of an Engagemt we had

with the Indians late this Evening—

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Horses:

Three of our Men going out on pretence

of looking after some Horses

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The Bait:

met with a party of Indians

within sight of the Fort

two of which escaped and alarm’d us,

we immediatly pursued them

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How Many in the Company:

with a party of between fourty & fifty Men

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Who went:

undr Command of Capt: Mercer

Lieut: Williams,

Ensn Carter

Ensign McCarty

Lt Lemen & myself 1

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Ambush:

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

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then finding ourselves almost surrounded

we retreated in the best manner We could to the Fort

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Casualties:

we unhappily lost Capt. Jno. Mercer

Ensign Carter and fifteen Soldiers &

had two wounded,

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Enemy Count:

we imagined the Number of the Enemy

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

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For months prior to this Battle of the Great Cacapon, William Stark was accused of giving allegiance to Maryland’s Captain Dagworthy as his commanding officer over any  Officer of the VA Regiment while at Fort Cumberland.  A Court of Enquiry, January 16, 1756, exonerated William Stark.

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Killbuck is involved?


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Notice the part in the letter above – “two of which escaped” ?

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This was the modus operandi of two Indians,

one named Killbuck.

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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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This link covers Killbuck’s alleged involvement in other attacks.  This link also covers what happened before the time of the Battle of Great Cacapon.

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No contemporary account found

has mentioned Killbuck by name.  Let us linger on that point.  Absence of Evidence is not evidence of absence.  So, if you find a contemporary account mentioning Killbuck’s name. please let us know.  Maybe Vincent Williams might have mentioned his name, since Killbuck is alleged to have worked with him before Killbuck dismembered the man.

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One more point, since no contemporary account is found mentioning Killbuck yet, can we assume the Virginia Regiment did not realize one particular warrior was behind all of these attacks in the region?   If they knew, perhaps that would have helped them focus their hunt?  And what of the Cherokee and Catawba allies?  Did they know about Killbuck?

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Years later Killbuck is mentioned

But Kerchival mentions him.  He interviews those who lived during this time who are in their 90s in 1833, some 77 years after this battle, which means they were probably younger than 20 years old at the time.  Another author, Cartmell, mostly quotes Kerchival’s findings.

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Below are their versions of this Battle of Great Cacapon and of Killbuck.

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After those stories, follows the information on the Court Martials.

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Kerchival

on the battle, Killbuck, Daniel Morgan


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Many years later Kerchival interviews men who lived during this Battle of the Great Cacapon:

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Click or Touch [  ] square on bottom right to expand.  Then on bottom right is magnifying glass to zoom in.  Then go to pages 102 to 104.

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For easier reading here is that text from Kerchival  on Pages 102, 103, 104 :

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Killbuck and Crane:

Kill-buck, the chief before mentioned, used frequently to command these marauding parties. Previous to the breaking out of the war, he was well acquainted with many of the white settlers on the Wappatomaka, and lived a good part of his time among them. His inti- mate acquaintance with the country enabled him to lead his band of murderers from place to place, and to commit many outrages on the pei-sons and property of the white inhabitants. In the progress of this work, some further notice will be taken of this distinguished warrior. There was another great Indian warrior call- ed ” Crane ;” but the author has not been able to col- lect any particular traditionary accounts of the feats per- formed by him.    [Note:  After pulling up this link, Ctrl F and type: Crane . The 1756 incident with Ashby might have been Crane in this Founders Online footnote. ]

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Date of Battle:

In the year 1757 . . .  [ The Battle of Great Cacapon was April 18, 1756 ]

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Trap set Before the Battle:

About 30 or 40 approached Edwards’s fort * on Capon river, killed two men at a small mill, took off a parcel of corn meal, and retreating along a path that ed between a stream of water and a steep high mountain, they strewed the meal in several places on their route. Immediately between this path and the stream is an abrupt bank, 7 or 8 feet high, and of considerable length, under which the Indians concealed themselves, and awaited the approach of the garrison.

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Footnote, see asterisk above:

* Mr. James Parson, near Romney, Hampshire county gave the author this information.  Edwards  fort was located on the west side of Capon rarer, not more than three quarters of a mile above where the stage road from Winchester to Romney crosses the river.  [Note: James Parson or James Parsons?  This person might be the same who was a teenage participant in the Battle of the Trough  some two weeks before this Battle of the Great Cacapon. ]

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Ambush:

Forty men, under the command of Capt. Mercer, sallied out, with the intention of pursuing and attacking the enemy. But oh! fatal day! Mercer’s party, discovering the trail of mealy supposed the Indians were making a speedy retreat, and, unapprised of their strength, moved on at a brisk step, until the whole line was drawn immediately over the line of Indians under the bank, when the latter discharged a most destructive fire upon them,

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Casualties:

sixteen falling dead at the first fire. The others attempting to save themselves by flight, were pursued and slaughtered in every direction, until, out of the forty, but six got back to the fort.

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Recovery of Wounded delayed:

One poor fellow, who ran up the side of the mountain, was fired at by an Indian : the ball penetrated just above his heel, ranged up his leg, shivering the bones, and lodged a little below his knee : he slipped under the lap of a fallen tree, there hid himself, and lay in that deplorable situation for two days and nights before he was found by his friends, it being that length of time before the people at the fort would venture out to collect and bury the dead. This wounded man recovered, and lived many years after, though he was always a cripple from his wound. Capt George Smith, who now resides on Back creek, inform- ed the author that he was well acquainted with him.

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A battle after the battle?

Sometime afterwards, the Indians, in much greater force, and aided, it was believed, by several* Frenchmen in person, determined to carry this fort by storm. The garrison had been considerably reinforced ; among others, by the late Gen. Daniel Morgan, then a young man. The Indians made the assault with great boldness ; but on this occasion they met with a sad reverse of fortune. The garrison sallied out, and a desperate battle ensued. The assailants were defeated with great slaughter, while the whites lost comparatively very few men.   …   Morgan in this action    performed his part with his usual intrepidity, caution and firmness, and doubtless did much execution.*   [See our findings about Daniel Morgan at Fort Edwards.]

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Artifact Finds:

The remains of a gun of high finish, ornamented with silver mounting and gold touch-hole, were plowed up near the battle ground about forty years ago. It was supposed to have belonged to a French officer. Part of a bomb shell was also found.

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Footnote on 95 year old:

* Mr. William Carlile, now ninety-five years of age, and who resides near the battle ground, informed the author that he removed and settled on Capon soon after the battle was fought. He also stated that he had frequently heard it asserted that Morgan was m this battle, and acted with great bravery, &c. Mr. Charles Carlile, son of this venerable man, stated the fact of the gun and part of a bomb shell being found.   

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Cartmell

on the battle, Killbuck, Daniel Morgan


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Here is Cartmell on Page 74 quoting Kerchival as the source.

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Click or Touch [  ] square on bottom right to expand.  Then on bottom right is magnifying glass to zoom in. Then go to pages 73 and 74.

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For easier reading here is that text from Cartmell  on Page 73 and 74 wrote, using Kerchival as his source:

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Jacob Edward’s Fort

“…here was a fort on Big Capon near the North- west Turnpike, that relics have been taken from in recent years. This was “Edward’s Fort.”

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Capt. Mercer was stationed there in 1757, and his report of the disaster corroborates all that “Killbuck” told of his wily attacks.  [Note: The Battle of Great Cacapon was April 18, 1756. There were 2 Captain Mercers. They were brothers. John Fenton Mercer was on the one killed in this battle. Capt George Mercer was aid de camp, stationed with Colonel George Washington in Winchester VA.  Both travelled to Fort Edwards many times.]

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The Trap set:

The Indians entered the Ca-Capon Valley in small parties to take observation. Killbuck’s party of forty warriors visited a mill and killed the two men found there. They carried away meal and com and passed along a stream at the base of a high mountain, strewing meal in several places on the route, to lure the whites in their pursuit. Killbuck selected a high point for his ambuscade, and awaited the arrival of the garrison from the Fort.

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The Ambush:

Capt. Mercer, with forty-five men follow- ed the trail; and supposing the scattered meal indicated disorder and haste in the Indian band, the whites rushed on and suddenly received a most destructive fire from the Indians.

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Casualty Count:

Sixteen of Mercer’s men fell dead; and as the others made hasty retreat, they were pursued by Kill- buck and slaughtered. Only six men got back to the fort.

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Kerchival’s Source – George Smith:

Kercheval says that Mr. George Smith, residing on Back Creek, told him in 1833 that one of the men escaping death from the Indians in the battle, was desperately wounded but succeeded in making his way over the moun- tains to his neighborhood, and he knew him for years.

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Kerchival’s source Mr William Carlisle:

The Valley historian gives us some other interesting matter relating to this fort. He says Mr. William Carlisle, now 95 years old (1833), who lived near the battle ground, re- moved and settled on Capon soon after the bat- tle was fought.

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Garrison:

The garrison was strengthened, for it was well known the Indians would return with larger forces and endeavor to destroy the fort.

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Daniel Morgan:

Some color is given a tradition that credits Daniel Morgan with being present at the next assault on the fort; for we find the Court allowed payment to Daniel Morgan and others for claims produced for supplies taken by them to the settlers on Great Ca-Capon.   [See our findings about Daniel Morgan at Fort Edwards.]

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The same old Mr. Carlisle states further that he had frequently heard that “Dan” Morgan was in the battle that soon followed the first. This time two Frenchmen accompanied the Indians; the garrison defeated this force, causing great slaughter, with slight loss to the whites.

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The failure on the part of those reporting the battles with the Indians to give details is greatly to be regretted. Had they done so, many descendants to-day could point with pride to the old pioneer fathers and give their names; but we must re- member that this custom is practiced in all reports of battles — nothing more said than some field officer lost, and the number of privates fallen or captured.

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Back to THE STORY of the battle:

Maryland Newspaper Account


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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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Source of Newspaper Report:

“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,

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Who, What, Where:

under the Command of Capt. John Mercer,

near Edwards’s Fort, on Cape Capon,

about 20 Miles above Winchester:

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A Party of Indians appearing

in the Neighbourhood of the Fort,

Capt. Mercer went out with three Subalterns

and sixty pick’d Men,

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The Battle:

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;

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Casualties:

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 tells Dinwiddie about this battle


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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

The Scalp:

“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.

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Enemy Count:

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.

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Rain stopped search:

But a hard shower of rain prevented

their making a farther search.”

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Where is the Enemy?

“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. 

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Enemy Returning?

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


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

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Exact locations in Winchester VA are unknown of these trials.

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CLICK TO ENLARGE

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Possible locations may have been the Frederick Co Courthouse near the current 1840 Courthouse now known as a civil war museum.  Maybe another location might have been where the marching grounds or Fort George prison near Braddock and Cork.  Other possible locations may have been an Ordinary or tavern.

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The transcripts of the trials are all datelined Winchester.

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 Later trials are recorded under dateline of Fort Loudoun whose construction started May 18, 1756.

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A 1777 map drawn by Hessian Prisoner might give us possible locations for these court martials held at beginning of May 1756. CLICK TO ENLARGE

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

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The Trial of 2 Lost Firelocks


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Matthew Fling, and George Clarke

See The Court Martial.

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Picture by Eric Cherry, to show the soldiers fleeing and losing their flintlocks. Click on picture to enlarge.

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These Soldiers  were accused

of throwing their firelocks away

during the retreat,

and were exonerated

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But Fling got court martialed again for a different offense 3 June 1756

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THE TRIAL OF LT JOHN LOMAX


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Court Martial of Lieutenant John Lomax.

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

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Lomax is exonerated.

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Amazingly, he sits as jury member on the 2nd trial of Sergeant Nathan Lewis.

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1st 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.

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He orders another trial of Sergeant Nathan Lewis.

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Double Jeopardy?


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No Double Jeopardy concept back then?

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Yes there was.  way before the US Constitution contained it.

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Here is the law by the House of Burgesses.

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Volume 6 page 547 to 548 of the August 1755 session.

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VII.  … That if any inferior officer or soldier, during the time the militia shall be employed for suppressing any invasion or insurrection, as aforesaid, shall disobey the lawful commands of his superior officer, or behave himself refractorily, or shall be guilty of prophane swearing, drunkenness, or any other such like offence, every person so offending, shall pay such fine, or suffer such corporal punishment, not extending to life or member, as by a court martial, to be held as aforesaid, shall be inflicted or imposed.

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VIII. Provided always, That no such person shall be adjudged to pay more than the sum of five pounds, or to receive more than twenty lashes, for any one of the said offences, nor be subject to a second trial for the same offence, after he hath been once condemned or acquitted thereof.

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Notice both the issue of Double Jeopardy and the other issue of penalty of death or dismembering.

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Colonel GW doesn’t seem to follow the Double Jeopardy issue thinking there was no time for evidence to surface.

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Death Penalty


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And this other issue of the Death Penalty?

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Colonel GW pushed long and hard to have the power of Capital Punishment to get a handle on the desertion and mutiny going on.

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The October session ending in November passed a law  to correct the August session’s lack of  Capital Punishment.

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Still, this power devolved only to the House of Burgesses – not a power delegated to Colonel GW.

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For each execution decision, Colonel GW would need to ask the government in Williamsburg.

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Colonel George Washington writes Lt Gov Dinwidde, 13 January 1756:

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I represented in my last the Inconveniences of the late Act of Assembly which obliges us, first to send to your honour for a commission to hold Genl Courts Martial and then to delay execution till a warrt can be had from Williamsburg. and hope you will take the same into consideration5—we have several Deserter’s now on h[an]d which I have taken by vigorous measures that shoud be made examples to other’s as this practice is continud with greater spirit than ever.

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Lt Gov Dinwiddie and the Privy Council found a way around this.

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Lt Gov Dinwiddie provided Colonel GW with blank Execution Warrants.

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2ND TRIAL OF SERGEANT NATHAN LEWIS


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Second Court trial of Sergeant Nathan Lewis

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TESTIMONY

4 witnesses testified.

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Picture by Eric Cherry imagining the trial held in Winchester VA of Nathan Lewis accused of Cowardice in the Battle of the Great Cacapon …. Click on picture to enlarge.

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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


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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


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Interesting side note of chasing a dog. Why chase the dog? In the midst of danger?

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Was that dog going to lead them somewhere important?

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Because accused Sergeant Nathan Lewis called it an Indian Dog, could that dog lead him to the Indians?

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And he says he followed that dog, instead of meeting with Mr Lemon?

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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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About Lomax

noted in court records

with different initials and different court dates


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See note about John Edward Lomax.

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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


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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 exonerated 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?  Do you believe that Colonel GW did not execute this man because the law did mention double jeopardy?

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

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Who has those artifacts of a French Musket and cannon ball mention by Kerchival?

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Where’s contemporary evidence of a battle after the Battle of the Great Cacapon?

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Where’s contemporary evidence of Daniel Morgan in that battle after the Battle of the Great Cacapon?

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Where’s contemporary evidence of Killbuck being at the Battle of the Great Cacapon?

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Where was the Mill exactly?  This mill was only mentioned by Kerchival and no mention found yet in contemporary accounts?

 

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DISCIPLINE AUTHORITY


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

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The law said that GW could only execute a death sentence if he, GW, received a signed warrant from the Governor.

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This April 7, 1756 letter from Lt Gov Dinwiddie, acting as Governor for the absentee Governor system in effect, wrote this letter saying this letter shall be Your Warrant.  This bypassed the law implying individually signed warrants. This letter is to be a blank check, or rather an all purpose blank warrant,

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By Virtue of the Power and Authority to me given and granted by His Majesty I do hereby authorize and impower You to hold and appoint Courts Martial for the Tryal of Non-commissioned Officers and Soldiers as Colonel and Commander in Chief of the Virginia Regiment for all Crimes and Offences whatsoever pursuant to the Act of Assembly, for punishing Mutiny and Desertion And for so doing this shall be Your Warrant. Given under my Hand and Seal this Seventh day of April 1756.1

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But Washington states in two letters that this commission to act as Your Warrant is not enough.

The Commission your Honor has sent for holding Courts Martial is yet insufficient,6 as it is copied (I suppose too literally) after Governor Innis’s;7 who had no power to hold a General Court martial, or to try Commissioned Officers Having none either to hold a Court, or in short any to try.,

to say he still thinks the law quite insufficient.

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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?


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Warrant

We have no record of GW signing the blank warrant to execute.

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He may have signed it.  We don’t know.  We just don’t have the warrant.

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According to the law, such a warrant had to be signed a death execution to be legal.

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So if Washington had executed Sergeant Nathan Lewis, such an action would put Washington in legal jeopardy.

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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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Nathan Lewis still ALIVE?

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 Campbellall 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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As late as 23 May 1756, Nathan Lewis is still alive.   GW in Winchester VA,  writes to Lt Gov Dinwiddie, discusses all the men listed above in the  previous letter and finally notes Nathan Lewis’s status:

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…as Lewis against Cowardice: whose execution I have delayed until the arrival of the Draughts. 

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Once the drafts appear, Nathan Lewis will be executed

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About those “draughts”?

Col GW writes on 24 May 1756 to Captain Henry Woodward to travel to Fredericksburg to pick up drafts for the VA Regiment and then to march them to Winchester. Once here then according to letter above, Nathan Lewis will be executed by firing squad.

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You are to proceed with the officers now in Town—except Ensign McCarty, with all possible dispatch to Fredericksburgh; to receive the Draughts that will be sent to that place,  . . .  until they are marched to this place—which must be as fast as they are formed.

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We have this day  [ 1 June 1756 ] Sent twenty Seven Soldiers Inlisted the twenty Sixth day of last Month,1under the Comand of Majr Wood Jones to be delivered to the Officer appointed by the Govr to receive them at Fredricksburg.

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As of 21-22 June 1756, the drafted men had come to Winchester VA from Fredericksburg, but no mention is made of executing Nathan Lewis in front of these new recruits.

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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


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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 to witness the Sentence


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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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Corrections? Suggestions?


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Post Suggestions, corrections, additions of information about this on Friends of Fort Loudoun Facebook Page:

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 https://www.facebook.com/groups/788566064548558/

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Links


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Great Family Tree Chart for Mercer

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

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See Michigan Toy Soldier Company

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Toy Soldiers:

This link no longer shows these pictures,

but contacting this website,

might help you find these soldiers.

See link:

http://www.treefrogtreasures.com/

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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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Were there Horses?

 

Eric Robinson

April 19, 1756 Colonel GW writes to Lt Gov Dinwiddie:

This engagement happened within twenty miles of Winchester, and the sergeant, who brought the letter, assures me there is reason to imagine, that their numbers are greater than the letter informs. He says there were many French among them, and that the chief part of the whole were mounted on horseback; so that there is a great probability of their having a design upon this place.

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Love this point brought out by Eric Robinson … about the horses and the French. Re-reading and re-reading it, this intel all comes from the Sergeant delivering the letter by Stark. Was it embellishment? Stark’s letter on the 18th says nothing about French or about the enemy on horses. Nor do later newspaper accounts in the Maryland Gazette or the Virginia Gazette. Also none of the court trials following this battle mention French or the enemy being on horseback. Nor does Washington repeat this intel ever again. I’m wondering about this Sergeant all caught up in the wildness of the moment. Also wild stories and embellishments often raged about during this time. Look at Capt Dagworthy saying there was an invasion coming. This caught the whole frontier trying to raise an army, and just as fast the alarm fizzled.There were reports all the time that fizzled. One turned out to be two drunk whites shooting up the area. Another story turned out to be a white wearing Indian style causing havoc. I dunno. I thank Eric Robinson for this letter. I did not give it any notice for this story on the Battle of the Great Cacapon, but now I am going to include it with my suspicions. If I’ve missed another corroboration on this Sergeant saying there were French and much of the enemy was on horseback, I’d love to hear about it !!! …. so far I am leaning to that there were little if any French and maybe a horse or two, only because they might have been stolen. Stark’s letter does mention the garrison was looking after the horses they had. And again thank you Eric Robinson for this, because I had often breezed by this letter ….And finally, Absence of Evidence is not Evidence of Absence. 🙂

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If there were horses, they may have been stolen from the Edwards garrison.

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Dave Pancake Jim Moyer or could have come from the Trough Battle

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April 26, 1756

Mr Speaker, and Gentlemen of the House of Burgesses,
“I recommend to your immediate Consideration a Letter from Col. Washington,
“and several others from the Officers of our Forces, by which you may be convinced
“what a miserable Situation our poor People are in on our Frontiers; I expect you will
“seriously reflect upon the Contents of the Letters now sent to you, and hope they will
“make such an Impression on you, so as to rouse you to discharge with a true Spirit,
“your Duty to your King and Country; and to dispatch the Business before you with all
“possible Expedition. In the mean Time I desire you will give Leave to such of the
“Members of your House, as are Officers in the Frontier Counties, to repair immediately
“to their respective Posts, as I intend forthwith to give orders for raising the Militia
“of those Counties.”

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Page 384

Journal of the House of Burgesses of its session starting March 25, 1756

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Research Notes


Stark

1. Lt. William Stark of the Virginia Regiment was probably the William Stark who was born c.1735, the son of William and Mary Bolling Stark of Prince George County. In Jan. 1755 Stark was serving as a lieutenant in the Virginia forces, and he continued at that rank in Capt. Thomas Cocke’s company after GW took command of the reorganized Virginia Regiment. Stark incurred GW’s disfavor when in Jan. 1756 he accepted Capt. John Dagworthy of Maryland as ranking officer at Fort Cumberland. In the spring of 1756 Stark was stationed at Edwards’s fort on the Cacapon River; but in June or July he followed George Fraser’s example and resigned his commission rather than serve under Peter Hog in Augusta County.

Index Entries

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