War Office 10th October 1796.
In obedience to the Command of the President as conveyed in his letter to the Secretary of War dated 1. July Ulto. requiring the opinion of the heads of departments upon certain charges exhibited against General Wayne by Brigadier General Wilkinson, as relative to “the measures necessary to be pursued to do justice to the public, the accused, and the accuser,” the Secretary of War submits the following observations.
Though the charges against General Wayne have not been all exhibited; and according to late letters from Brigadier General Wilkinson, will not be concluded till after his arrival in Philadelphia, the Secretary of War does not conceive that he should delay any longer, on that account, the discussion of certain questions essential to the formation of a just opinion on the case.
A primary question is, whether the Articles of War authorize the President, to order General Wayne to be tried by a General Court Martial? And if they do not; or if the right is doubtful; what steps will be proper to be pursued, “to do justice to the public, the accused and the accuser.”
As to the first question.
1. It is very clear that the rules and articles of War passed the 27th of May 1777 and 31. of May 1786 can have no relation to troops raised after the establishment of the present federal government; and therefore the law of the 30 of April 1790 and that of the 30 of May 1796 enact “that the Commissioned Officers &c. shall be governed by the rules and articles of War which have been established by Congress, as far as the same may be applicable to the constitution of the United States, or by such Rules and articles as may hereafter by law be established.”
2d Agreeably to the law of the 3d March 1791. General Wayne was appointed a Major General, and as such, commanded all the troops in the Western Country.
3. The articles of War (passed 27. May 1777) contemplated a General or Commander in chief of the forces of the United States; or of the American forces Sect. 2. Art. 2 pa. 3. and Sect. 18. Art. 6. pa. 31 and Art. 7. passed 17. June 1777 pa. 32 Sect. 5. Art. 1. and 2 pa. 8 Sect. 13. Art. 16. page 22.
4. The articles of war (passed 27 May 1777.) contemplated a continental General commanding in a State Sect. 11. Art. 1. pa. 15 & Sect. 18. Art. 2 pa 29. 5
5. The articles of War (passed 17. June 1777.) also contemplated a general Officer commanding in a separate department Sect. 18. Art. 7. pa 31. At this time the United States were divided by resolves of Congress into three separate departments, called Eastern Middle and Southern.
6. The articles of War passed 31. May 1786. contemplated the general or other Officer commanding the Troops. Art 2. pa 34. Art 6. pa 36. The General or Officer commanding the Army Art 13 pa. 39 The commander in Chief Page 31 The same articles of 31. May 1786. also recognise a commanding Officer of a department Art 13 pa 39. and Art 23 pa 41.
7. The 25. Art. of War (passed 31. May 1786.) pa 42 directs the conduct of a court of enquery when appointed by the General or commanding Officer.
8. The articles of war in many places mention Courts martial as in pa 3. 4. 8. 9. 10. 11. 15 and 17 to 24. 35. 37. 38. 39. 40.
9. The articles of war in many places mention General Courts Martial as in pag 7. Art 4. pa 9. Art. 2 pa 11. Art 4. pa 14. 16. 20. 21. 22. 29. 31. 34. 38. 41. and 42. But it is very evident that the same Court was meant by both descriptions; and that only three kinds of Courts martial were established, to wit; general Courts martial, regimental Courts martial and garrison Courts martial, the two last having no jurisdiction of capital Offences or over commissioned Officers. Art 4. pa 35.
10. It appears that the General or Officer commanding the Troops might order General Courts Martial pa 34.
11. It also appears that the commanding Officer of a department might order General Courts martial Art 23. pa 41 and pardon any Crimes though capital. Art 7. pa 31.
12. It further appears that a continental General commanding in any of the States might appoint general courts martial, and pardon Crimes not capital and suspend the punishment of capital Offences, Sect. 18. Art 2. pa 29.
13. It would seem that whenever the expressions used are, The General or Commander in Chief of the forces of the United States (as in Sect. 2. Art 2 pa. 3 and Sect. 5. Art 1. pa 8. and Sect. 13. Art. 16. pa 23) or the Commander in Chief of the American forces (as in Sect. 5. Art 2. pa 8) or the General and Commander in Chief (as in Sect. 18. Art 6. pa 31) or the Commander in Chief as in Art 7. pa 32 or the General or Officer commanding the Troops as in Art 2 pa 34.) or the General or Officer commanding the Army (as in Art 6. pa 6) that only one and the same person is contemplated under all these different descriptions.
14. From a view of the 25th Art. (pa 42) and the 26th Article (pa 43) and a comparison of them with the different articles authorizing the appointment of Courts Martial it appears that Courts of enquiry might be appointed not only by the General (or Commander in Chief) but also by any commanding Officer.
15. General Wayne may be considered in one of three capacities. 1st As Commander in Chief of the forces of the United States as described in the articles of War pa 3. 31. 32. 34. 36. 39. 42. and 44. and which all mean one and the same person; altho there is some little variation in the mod[e] of expression. Or. 2d. As a general Officer commanding in a separate department. Or 3d As a Continental general commanding in a State. The first is wholly inadmissible, because by the Constitution Art 2. Sect. 2. the President for the time being is created Commander in Chief of the Army and Navy of the United States. The second will not apply, because the Western Country was not within either of the three departments created by Congress. The third character alone seems descriptive of his Command.
There results from this exposition of facts the following positions. 1. That if General Wayne be considered as a general Officer commanding in a separate department, or as a Continental General commanding in a state, and the President as the General (described in Article 25 pa. 42) he may with his consent be brought before a Court of Enquiry, if the President shall think proper to order it. or 2d. That General Wayne, considered under the said description, may be tried by a Court Martial, against his consent, if the President be considered the General or Officer commanding the Troops, as described in Art 2. page 34.
Upon these positions it may be observed, that there is a certain want of explicitness in the articles of war relative to the whole subject, which must make it a desirable thing to be relieved from the necessity of being obliged, to rely absolutely upon them for the attainment of justice.
Is there any other mean which may be applied to, less subject to Criticism? The President as Commander in Chief, has power, ex officio, to order a general Court Martial; but the exercise of this power is no less liable to criticism. What then is to be done? The President has aright to displace military Officers as holding their Commissions during pleasure. In as much however as the delicacy of the military character, as well as justice, requires that this power should be exercised with great caution and not till after very full investigation; it occurs that a course of proceeding may be adopted, bottomed upon this power, and at the same time conformable to the course indicated by the articles of War.
Agreeably to this idea, the Secretary of War submits the following mode of proceeding in the case. That as soon as all the Charges shall have been exhibited by General Wilkinson, they shall be communicated to the General accused, who shall be called upon to reply particularly to them. That if there should be facts to be proved, and by persons with the Army, that it be suggested to him that they should be investigated by some Court, and that circumstances render it adviseable, that he should demand the investigation.
As there can be no doubt but that he will require the facts to be investigated. Let then (which will throw the affair into the form of a court of enquiry) three judicious Officers with the aid of a Judge Advocate (and a Magistrate if to be had to administer oaths) be charged to collect testimony for the information of the Department of War to be laid before the President. Let the accuser and the accused be notified to attend the examination of the Witnesses, to cross examine and interrogate, and let the testimony, reduced to writing (Articles of War 25 page 42) by the Court or Referees, with the Judge Advocate, and certified by them, with the observations of the accuser and the accused, be transmitted to the War Office and laid before the President, who will act in the case according to the nature of the Testimony.
This mode of proceeding appears to the Secretary of War the least liable to exceptions; calculated to ascertain the truth or falsity of the charges; within the powers vested in the President by the Constitution; and supported by the construction deducible from the articles of war. All which is respectfully submitted.
DLC: Papers of George Washington.