Abbott listened attentively to Hobhouse’s report of what he had seen—they were seated across from one another at the conference table in the “American Embassy”—and finally said to him, “Mr. Hobhouse, I am as much perplexed as you are. I have never had any reason to believe that Forecastle is other than who he says he is.”
“Do you know, then, why Forecastle might have reason to exchange words with Mrs. Crankshaw?”
Abbott pursed his lips. Hobhouse already knew, of course, about Mrs. Crankshaw’s role as a spy for the British. Should he now also tell him about her role as a double spy? Perhaps not.
“I do not know any reason Forecastle should talk with Mrs. Crankshaw,” Abbott said. “I shall ask him why he did that. But let me now, if I might, change the topic to the trial, which it appears to me might come sooner than I thought.”
“Why?”
“Because of what Lord North said to us both the other day and because this morning we reached a perhaps final impasse in the negotiations. We have been able so far to agree on many things—the recognition of our Congress as a legitimate elected body able to make laws and lay taxes, borders, trade, fisheries, the permanent withdrawal of British troops and much more. But for one thing.”
“Independence.”
“Quite right. We want it made clear that we have sundered our relationship with the Empire. They want us to acknowledge that it continues. We have proposed many solutions, as have they, but nothing has been accepted. Late in the morning today, we agreed to take a few days off and then start again.”
“I thought, Ambassador, that you were prepared, somehow, to find a compromise on the issue of independence. Did I misunderstand?”
“No, you did not. But His Excellency does not favour that.”
“What now, then?” Hobhouse asked.
“Now the action will switch to you, sir. Because I assume they will sooner than we expected put His Excellency on trial for high treason. And then try to use his conviction to pressure us into conceding on the independence issue. Or maybe dangle a possible pardon by the King to get us to concede it.”
“The King does indeed have an unlimited power of pardon.”
“Is there any chance at all His Excellency will not be convicted in a trial?” Abbott asked.
“There is always a chance, but the odds are heavily against acquittal. He is charged with treason for levying war against the King. And he did. Publicly and continuously. Even though we might deny to them, through technical arguments, the right to put into evidence some of the most obvious examples of his guilt, in the end the Crown should not find it so difficult that they cannot prevail.”
“Are there no good legal arguments you can make, then? Ones that somehow avoid those bad facts?”
“The best one is that Washington could not have betrayed the King,” Hobhouse said. “We would argue that His Excellency is no longer His Majesty’s subject, the King having given up his sovereignty over the colonies by his illegal actions and the colonies having declared themselves independent. One cannot betray one to whom one owes no allegiance.”
“If that were true, what crime would His Excellency have committed?” Abbott asked.
“None. He would simply be a prisoner of war.”
Abbott smiled and raised his eyebrows. “You might be thought treasonous yourself just for making that argument.”
“Perhaps so,” Hobhouse said. “But I will lack an opportunity to do so, at least directly to a jury.”
“Why?”
“I do not know how it is in Pennsylvania, Mr. Abbott, but here the prisoner’s lawyers are not always permitted to make either an opening or a closing statement. We may only examine and cross-examine witnesses.”
“But a skilled lawyer could hint at that argument by the questions you ask.”
“Yes, if I am clever enough and the judge doesn’t stop me.”
“Can the Crown prosecutor directly address the jury?”
“The Lord Chief Justice will be one of the judges in this case,” Hobhouse said. “I doubt he will permit anyone to argue to the jury, but we shall see.”
“There are no other arguments in your basket, then?”
“There are a few others, but they are technical attacks involving the statute of limitations and such. Also, the Crown will surely call at least two witnesses to testify to General Washington’s making war against the King, as required by the treason statute. We will contend the two must have witnessed the very same act.”
“Is that what the law provides?”
“It is a point in dispute in the law.”
“Is that a promising argument, then?” Abbott asked.
“No. None of our legal arguments is promising. I will try with every skill I possess to make at least one of them succeed, but you should prepare to lose.”
Abbott got up, moved over to the window and looked out into the street. “It is strange, Mr. Hobhouse. The scene out this window is not so much different from what I would see if I looked out my own window at home in Philadelphia. We speak a common language. We read many of the same books. We sit in the same type of chairs while we read them, and we laugh at many of the same jokes. At heart we are all Englishmen. Brothers and sisters, or at least cousins raised in the same household.”
“That is all true,” Hobhouse said.
“So I ask myself every day why we have fallen to fighting so.”
“The fight is about a principle, I think,” Hobhouse said. “Those kinds of disagreements often yield the most bitter of wars and are the hardest to resolve.”
“You are perhaps correct.” Abbott stared out the window for another little while, then returned to the table and said, “How long will the trial likely take, Mr. Hobhouse?”
“They are usually short. An hour to choose the jury, half a day for the testimony perhaps, however long it takes the jury to deliberate. It could all be over in a day. Two at the most.”
“And if His Excellency is convicted, how long before he is sentenced?”
“If he is convicted of high treason, sentence is usually immediate, or at least within a day or two. The judges have no discretion in what the sentence will be. General Washington will be sentenced to a traitor’s death.”
“There is no delay for another court to reconsider?”
“If there is a serious question of law, the trial judges can delay sentencing, especially an immediate execution, and refer the legal question to what we call the Twelve Judges. They are all of the judges of the three common law courts in London. They resolve the legal question. Sentencing could be delayed a few weeks while we await the answer.”
“How likely is that to happen?”
“Very unlikely.”
“How long before the sentence is carried out?”
“A day or two at most, unless the King pardons him.”
Abbott wanted to ask Hobhouse if he knew where prisoners were held after sentencing and how they were moved to Tyburn for execution. But then he thought the better of it. The man had a family.
“Thank you for coming, Mr. Hobhouse. If there is anything I or the rest of our delegation can do to assist you, please let us know. Anything at all. I am trained as a lawyer, you know.”
“I have thought on that. But I have enquired and learned that the judges will only permit you to be a spectator, not to assist me by sitting at counsel table or even close by. Perhaps if you’d been educated here...”
“I understand, but I will be in the courtroom in any case.”
As he prepared to leave, Hobhouse asked, “If His Excellency is convicted and there is no pardon from the King, what will you do?”
“If His Excellency wishes me to stay and witness the execution, I will do so. Otherwise, I will depart beforehand. It may be cowardly, but I would rather not bear witness to my failure.”
“I understand,” Hobhouse said.
“But all of this is theoretical, until there is a trial,” Abbott said. “When is the trial likely to be?”
“Whenever the government wants it to be. You’ve been negotiating for many weeks now. I think the government is hoping that your negotiations will at some point yield a settlement and avoid the necessity for a trial.”
“But we’ve made so little progress.”
“Perhaps they are delaying for other reasons.”
“Such as?”
“Looking for witnesses in America, and having time to bring them back. The rumour is that none of the British Army officers in London will testify against him.”
“Let us hope they fail to find a single one.”