Evidence for the Prisoner

Captn. Lewis Freeman BURGESS of said Regimt. being duly Sworn deposeth. On tuesday the 10th of March, He was invited to dine with Captain ROTTEN with a number of other Gentlemen, as were Col. BAYARD & Lieut: BIRD. Towards Evening Mr. BIRD grew exceeding troublesome, before Seven o’Clock Col. BAYARD left the room; after Col: BAYARD had left the room Lieut: BIRD made a motion to turn Capt: ROTTON from the Head of his own Table, he continued that line of Conduct for some time; that in short it was the means of breaking up the Company.

Capt: ROTTON and the Deponent went into Major DeWINTs room and there found Col. BAYARD, in some little time after the Deponent asked Col. BAYARD if he would play at Picquet or Quadrill, he answered no, then Capt. ROTTEN began to adjust some papers he had in a little Box. The deponent ordered his Servant to make a bowl of Sanggree, in a short time after Mr. BIRD and Capt: COFFIN came into the room, Capt. ROTTEN said to Mr. BIRD, Mr. BIRD I am very much obliged to you for your good Company, but its the first time I ever heard of a Gentleman’s being turned from the head of his own table the answer was that by God he would turn any man from his own Table that would not push about the bottle.

Capt. ROTTON then said I am also much obliged to Mr. BUSKIRK for his behaviour, Col. BAYARD then Answered Mr. BUSKIRK is a young man who has not seen much of the world, but there is not a better duty Officer in the Regimt. Mr. BIRD reply’d I hope you except me, no I don’t the Col. reply’d, for he has done more duty in one week than you have done since you came to the Regt. Mr. BIRD replied By God Sir, he may be a companion for you, but he is no Companion for me, a fellow just from the Plough tail, the Col. then reply’d there was nothing but a boy would talk and act in the manner he did.

Mr. BIRD had a Cane in his hand which he lifted a little up and shook it saying. God damn me Sir who do you call a boy, Col. BAYARD said to him, for God’s sake Mr. BIRD why do you come in here to disturb us, I beg and intreat you to go home to your own room, some words past, which the Deponent does not recollect, but shortly afterwards Mr. BIRD said to the Col. by God Col. BAYARD you are a damned rascal, the Colonel’s reply was, now Mr. BIRD I shall send you to your room instead of desiring you to go to it, and I order you under an Arrest. Mr. BIRD answered damn your arrest, on which Col. BAYARD called to the deponent, saying Capt. BURGESS take Mr. BIRDs Sword from him, take him to his room and see he is put under Arrest, the deponent went up to Mr. BIRD, clap’d his hand on his Arm, saying for God’s sake Mr. BIRD consider what you are about, consider it’s your Commanding Officer that is speaking to you, the Col: then called out Capt. BURGESS it's my particular Orders that you immediately put him under Arrest, Mr. BIRD stept back calling out Capt: BURGESS keep off or by God you are a dead man claping his hand on his Sword and getting it half way out of the Scabbard, immediately on which the deponent closed in upon him and caught hold of him by the Coat upon the Shoulder, but he slip’d from him still continuing to draw his Sword further out, as he was going round a partition in the room he called out by God I’ll not be put in Arrest by any of you, when the deponent lost sight of him, the Sword was within two Inches of being out of the Scabbard, as he past the corner Capt. COFFIN was nearer Mr. BIRD than the deponent, and Col. BAYARD call’d to Capt. COFFIN to put Mr. BIRD under Arrest, turning round at the same time to the deponent saying Capt. BURGESS did you ever know such an Extraordinary young man as this, can you account for his behaviour.

Col. BAYARD had then taken the bowl of Sangree in his hand when the Deponent heard Mr. BIRD call out Col. BAYARD you are a damned Rascal and a damned Scoundrel, on which Col. BAYARD went to the door called to somebody to go and tell the Serjeant Major, that he wanted him immediately, calling out Sir, as you won’t go to your room, I will send you there by a file of men. Mr. BIRD’s answer was, damn your file of men.

Shortly afterwards Col. BAYARD came into the room clap’d his two hands on the deponent’s two Shoulders, My dear BURGESS I have killed that unhappy young man and burst out a Crying, the deponent’s answer was, I hope not, the deponent then went out of the room, on the parade, met Capt. COFFIN who said, to the Deponent BURGESS my poor dear friend BIRD is no more, saying for God’s sake what would you advise me to do, the deponent said pray Capt: COFFIN tell me, had Mr. BIRD given up his Sword and Submitted himself to the Arrest; Capt. COFFIN reply’d by God he had, the Deponent said did Col. BAYARD know Mr. BIRD had Submitted to the Arrest, Capt. COFFIN reply’d, I believe not, the deponent then advised Capt. COFFIN to go and make report to the Field Officer of the day. The Deponent then went into the Surgeon’s room, and Mr. BIRD was placed between the two Surgeons, and assisted them in laying him upon the bed, and in a very short time, he was dead.

There lay two Swords upon a Chest, somebody took hold of one of the Swords that was bloody and put it into the deponent’s hand, saying Capt. BURGESS as you are Commanding Officer you will take care of that Sword for that is the Sword that has done the Job, the deponent went out of the room with the Sword, sent for the Serjeant Major, and order’d him to put two Centrys over Col. BAYARD.

The deponent went into Major De WINT’s room where he left Col. BAYARD, when he saw three or four more men holding Col. BAYARD, he being in the greatest agonies, Lamenting the loss of his dear friend Mr. BIRD, The deponent went up to him, when Col. BAYARD caught hold of the deponent’s Bayonet and drew it out of the Scabbard calling out, by God he would not live after him, making a blow at himself with the bayonet, when the deponent and one of the men that was with him, caught hold of his arms which he believes prevented his plunging it into himself. Captain GRAHAM of the 45th and the Deponent got him to his own room, where he remained all the night in the most violent agitations of mind, constantly calling out to know whether his dear friend was dead or no, complaining constantly of a violent pain in his Shoulder, the deponent persuading him at last to let him call the Surgeon, the deponent went out to the Surgeons and sent him to Col. BAYARD.

        Q. from the Court— What do you imagine Lieut. Col. BAYARD wanted with the Serjeant Major when he ordered him to be called?

        A. As we have no Adjutant, I conceive he called for the Serjeant Major to enforce his orders with respect to Mr. BIRD being put under Arrest.

        Q. Do you imagine if Lieut: BIRD had been able to have drawn his Sword before you had closed in with him, that he would have made use of it in the manner he threatened?

        A. He certainly does.

        Q. At what time of the night did the accident happen, what sort of light was there on the Parade, could Col. BAYARD easily distinguish whether Lieut. BIRD had his Sword or not.

        A. About eight o’Clock, It was such a sort of light, that he apprehends it could not be distinguished at seven Yards distance.

        Q. Did it appear Mr. BIRD was affected with liquor?

        A. He might be a little elevated, but was in such a Situation as to know a moral act, from an immoral one.

        Q.  Did you hear any words pass between Lieut: Col. BAYARD and Lieut: BIRD, prior to the formers leaving the room where you din’d?

        A. No.

        Q.  What do you apprehend was Col. BAYARD’s motion for quitting the room an hour before you all broke up?

        A. I conceive the same reason which made us all quit it at last, Mr. BIRD’s rude behaviour.

        Q.  When Col. BAYARD left the room did you apprehend it was with any intention of violence, If you did why did you not endeavor to keep him in the Room?

        A. He could not think it was with any such intention, when he knew it was by Col. BAYARD’s own particular desire he (Mr. BIRD) was invited that day.

        Q.  Was the deceased Mr. BIRD any way obnoxious to the Corps prior to this Accident?

        A. No, Capt. ROTTEN had that day or a day or two before joined the Regt. and gave an entertainment to his friends, and the reason Mr. BIRD was there, (Capt. ROTTEN not having much acquaintance with him) Col. BAYARD requested Capt: ROTTON to invite Mr. BIRD as he was a particular friend of his.

        Q.  What were your reasons for telling Lieut. BIRD when he was abusing Col. BAYARD that that Language came very ill from his mouth?

        A. Knowing he was under very particular Obligations to Col. BAYARD, he was astonished when he heard him.

        Q.  What were those Obligations?

        A. First giving him his Ensigncy, 2d appointing him Lieutenant to the Deponent’s Company, his living at Col. BAYARD’s Table for a great while, and being introduced by him to all his Friends.

        Q.from the Prisoner—  Do you think it possible for Capt: COFFIN or any other person who was in Major DeWINT’s room at the time of Lieut: BIRD’s abuse to me, not to have heard it, especially as Capt: COFFIN at that time from his situation was, as it were leaning over Mr. BIRD’s Shoulders?

        A. Don’t think it was possible for any man to be in the Room without hearing every word.

        Q.  Do you recollect Captn. COFFIN’s attitude at that time?

        A. Mr. BIRD and Capt: COFFIN were both leaning against the Jam of the Fireplace, Capt. COFFIN rather behind him leaning over Mr. BIRD.

        Q.  When the Prisoner left the room had he any side Arms on, and were not his own Sword and two others laying on a Table which he past?

        A. He had no weapon of any sort and three Swords were laying on the table, one of which was the Colonel’s.

        Q.  What room is to be understood?

        A. The Major’s Room.

        Q.  What arms had Lieut: BIRD on?

        A. He wore a bayonet the whole day, and when the Deponent left the room where they din’d, he had his bayonet on.

        Q.  Did not Lieut: BIRD put a Sword on shortly after dinner?

        A. I don’t know, but when he came into the Major’s Room, which was about ten minutes after the Deponent, Lieut. BIRD had a Sword by his Side and a large Cane in his hand.

        Q.  Can you account for Lieut: BIRD’s changing his side Arms?

        A. At the time he could not, but now reflecting on the Calumny which he made use of with regard to the Col. which the deponent thought was all blown over, on seeing him come into the room with his Sword on and a Cane, he is now of opinion it was to carry into Execution threats which he understands he had often made use of against the Colonel.

        Q.  What were those threats?

        A. Since the Affair he heard from several, particularly his own Ensign, that Lieut: BIRD declared in York he would take his Sword in one hand and his Cane in the other, and lay his Cane over Col. BAYARD’s Shoulders at the point of his Sword.

        Q.  Did you ever hear a reason assign’d for Mr. BIRD’s making use of those expressions to Lieut: Col. BAYARD?

        A. I have heard the reason he assigned was that Col: BAYARD had ordered him up from York to join the Regt.

        Q.  Do you know whose Sword Lieut: BIRD had on when he went into Major DeWINT’s Room?

        A. Do not.

Captain Bartholomew UNIAKE of said Regt. Being duly [sworn] Deposeth. On Tuesday the 10th Inst. About eleven o’Clock Mr. BIRD came to Capt: COFFIN’s hutt, the deponent was with Capt. COFFIN at the time Mr. BIRD set down with them, staid about two hours, the deponent went to the door, Mr. BIRD followed him, the deponent asked Mr. BIRD which way he was going, as he was going home, Mr. BIRD said will you give me leave to shift myself in your Hutt, the deponent said by all means, they went to the Hutt, Mr. BIRD set down upon the bed and ask’d if the Deponent’s Servant might go and bring a Shirt, the deponent told his Servant to go and fetch him one, while the Servant was gone for the Shirt, the deponent took up a book, Mr. BIRD asked him whose Book it was, the deponent answered it was one he had from the Colonel.

Mr. BIRD reply’d it belonged to a damn’d Rascal and a Scoundrel; the deponent said Mr. BIRD Guard your expressions else you may get your backside whipt, he shifted himself, set down by the fire along with the deponent, and as they got up to go away, he saw a Sword hanging by the bed which he desired the deponent would lend him, the Deponent replyed he wanted it himself, but would lend him a bayonet, he said he had one of his own and went to the bed and put it on, he came and set down again by the fire, they had staid, he thinks about an hour, and he said to Mr. BIRD, it’s pretty near dinner time, we had better go to the barracks, on which they both went out, and as they crossed the road and were going by the 45th Guard room, he said to the deponent, you will see what a dust I will kick up today, a Short life and a merry one, that’s life damn me; they went over to the Barracks, the deponent went into the Colonel’s room, and Mr. BIRD went, he does not know where.

That he saw him at dinner; after dinner was over, a little before Sun down, Major DeWINT was called out, he returned back again and becken’d Mr. BIRD to come out, Mr. BIRD went out, Major DeWINT returned, and took his seat, which was next the Deponent, on his right hand. The Major said to the Deponent after he had sat down, I am surprized Mr. BIRD does not mind his duty better, that a complaint was made of a deficiency of wood in the Barracks, which Mr. BIRD ought to have look’d into and seen done.

About ten minutes or a quarter of an hour after retreat beating, Mr. BIRD returned into the Room, came and set down on the deponent’s left hand, the Colonel was then Singing a Song, he laid his hand upon the deponent’s Shoulders and whispered him, he would be glad to speak with him out of the room, the deponent reply’d his business was not so great, but what he could wait till the Song was over; as soon as it was over the deponent went to the further end of the room with him, asked him what he wanted, he replyed, to lend him my Sword; after he had asked him twice or three times, which the deponent still refused, he asked Mr. BIRD if he and the Major had any words, as they had been out together, the deponent thought there might be some dispute between them, he reply’d there was not, the deponent then said, you have no occasion for a Sword, you have your bayonet on; saying so, the Deponent returned to his Seat, and Mr. BIRD went and sat down on the opposite side of the Table next Capt: COFFIN he thinks; the deponent staid about ten minutes or a Quarter of an hour after that in the room, and went into the next room, staid there for about half an hour, and then went home; after he had been in bed some time the deponent was waked by some body knocking at the door, he ask’d who’s there, and what they wanted, the person said he was sent over from the Barrack’s to desire the Deponent might come over immediately, the deponent desired to know what it was for, whether there was any thing extraordinary, he told the Deponent some words had happened between Mr. BIRD and the Colonel, and that Mr. BIRD was carried to the Doctor’s room wounded.

The deponent went over immediately to the Barracks and went to the Doctor’s room, he saw Mr. BIRD laying in the bed, he went and stood by the fire for a few minutes, saw a drawn Sword laying on the Chest just by the Doctors bed, and ask’d somebody, is this the Sword has done the business, they made answer it was not, that it belonged to Mr. BIRD, that Mr. BIRD had it.

The Deponent went out of the Doctor’s room, met Captain GRAHAM of the 45th who went with the Deponent to the Major’s Room, where the Colonel then was. The Col. Seem’d much disturbed and very uneasy, the deponent and Captain GRAHAM persuaded the Col. To go to his own room; accordingly he went with them to his own room, Capt. GRAHAM staid with him about an hour and half talking to him, and then went away, and the Deponent staid with him ‘till morning and further knoweth not.

        Q.  What was the nature of the disturbence you observed in the Colonel?

        A. He seem’d very uneasy and troubled in mind.

        Q.  Was the Sword you saw in the Doctor’s room bloody?

        A. No.

        Q.  Do you know whose Sword Lieut: BIRD had that Evening?

        A. He knows Capt: COFFIN had the Sword in his possession for a long time, and never saw Lieut: BIRD have it.

        Q.  Do you know where Lieut. BIRD got that Sword?

        A. I don’t know where he got it, he knows the Sword was that very day hanging up in the Colonel’s room.

        Q.  What induced you to retire so soon and go to bed?

        A. From Mr. BIRD’s expressions, I apprehended there might be some disturbance, and retired on that very Account.

        Q.  Did you inform Col. BAYARD of those threats or injurious Expressions made by Mr. BIRD?

        A.  No.

Then the Court adjourned to Thursday March the 26th.

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