James Madison Papers

To James Madison from William Eustis, 14 September 1811

From William Eustis

Washington Septr 14th 1811.

Dear Sir,

It is with reluctance that I am obliged again to trouble you on the subject of the court martial, the details of which it was hoped might have been arranged by the department. Since my last it appears that it has been determined to take congnizance of all the charges. A new demand, as will be explained by the enclosed copy of a Letter from the Judge Advocate, is now made by the General thro the court for Colo. Cushing & several other officers from the Mississippi.1 When the request for Colo. Cushing was made by the General to the Dept he was answered that the Colo. was in the hands of a court martial—had pleaded to the charges—that the court at his instance had been adjourned to the first of December to give him an opportunity to procure testimony, and in case of his being ordered to Maryland that he could not return by the time assigned for the meeting of the court in December.2 The General was then refer’d to Mr Jones for the purpose of making an arrangement by which the deposition of the Colo might be taken. When the motion was made to the court for the order lately given Mr Jones offered as I am informed to admit the declaration of the General to any point wch. was to be sustained by the evidence of Colo. Cushing.

When Colo. Pike was applied for at a late period it was answered to the General that had the application been made in season an arrangement might have been adopted for the purpose: but so many field and other officers had already been ordered from that command, & two of the former grade being in arrest, the public service did not admit of a compliance. Colo. Covington being added to the list brings to recollection a letter which is herewith enclosed which was put into my hands by Mr. Munroe on the evening previous to his leaving the city, apparently in the hand writing of the General;3 this with other circumstances discovers a disposition to bring together by some means or other the personal friends of the General. The other officers named, if they had been material witnesses should have been ordered on the intimation of the General at an earlier day. From information which I have received, it is probable that a personal accommodation to themselves has been the ground work of the application with an ultimate view to increase the number of friends. To be compelled to know & to state the indirect means which are practising is truely painful. To be convinced of their existence and at the same time to be forbidden to act upon them is embarrassing. After the General had moulded the court to his liking and gained a controul over it wch as I am well informed has been evident in every instance hitherto & of which there can be no higher proof than their order enclosed which was issued under a knowlege of all the circumstances; it was to have been expected that he would have been satisfied and have suffered the trial to proceed.

In the case of Colo. Cushing, practice & general principles sanction the releasing an officer from arrest as well as a private from a guard house for the purpose of giving testimony before a court martial—whether an application of the principle under the peculiar circumstances of the Colo. is admissible I must confess I have doubts. Genl. Hampton in a Letter written a short time previous to his visit to the seat of Govt. begs that his resignation may be cotemporaneous with any order which takes Colo. C from the arrest in which he has placed him. If he should adhere to this determination (which has not hitherto been communicated to you Sir, because it was deemed hasty & which is now made known from a sense of duty) after he shall see that it is at the instance of the Court: two great objects will be effected by Genl. W. Cushing will probably never be brot to trial. It will be hors de combat. With respect to Covington Pike & the other officers who (in case an order is given) cannot be expected to arrive in less than three months unless there arise some unforeseen occurrence I perceive no other derangement of service than the passing of their commands to other officers some of whom will be of inferior grades. The question arises shall the request be granted in toto—shall it be declined in toto—or shall it be granted with the exception of Colo. Cushing. A denial is a disrespect to the court (which whether they have or have not merited I presume not to determine) and this will be added in high colours to the alledged system of persecution. In my life I do not recollect an instance of greater embarrassment. Confidentially I have consulted Mr Hamilton who sees the stratagem but is of opinion that the safest course is to comply.

In forming a judgment it is impossible to exclude from consideration the high presumption (founded on the disposition already manifested by the court) of a complete and (I should not be surprized to see attached the word) honorable acquital of every charge and specification.

In this dilemma, inclining to an opinion that the request of the Court cannot be altogether disregarded unless circumstances affecting the public safety should be deemed such as to justify it, I beg leave to solicit your advice & direction, so far as you may judge proper to afford the one or the other. To render justice to the General & to the country in a manner correspondent with your views & directions, is the highest ambition (in the care) of Dr Sir, your faithful & respectful

W. Eustis

The request of the President of the court as expressed in his Letter4 will be complied with as soon as a suitable person can be found to assist Mr Jones, who was informed by me a day or two previous to his leaving the city that he would require an asst. and who was requested to cast about in his own mind for a proper character.

It was stated to the court by the Judge Advocate that ordering Colo. C. to this court w’d discharge him from his arrest—& as he had pleaded to the charges would release him from any obligation to the court before which he was bound to appear—& it does not appear that this court have given an opinion to the contrary.

RC and two enclosures (DLC). RC docketed by JM. For surviving enclosures, see nn. 1 and 4.

1Eustis enclosed a copy of an 11 Sept. 1811 letter he had received from Walter Jones (3 pp.), transmitting a court order requiring the attendance of certain witnesses on Wilkinson’s behalf, namely Colonels Leonard Covington and Thomas Cushing, Lt. Col. Zebulon Pike, Capt. Benjamin Wallace, and Lieutenants Thomas Jessup and Timothy Spann. Jones mentioned that Wilkinson had already applied to the War Department for these witnesses and had been refused. It was common knowledge that Cushing was under arrest pending his own court-martial, but Jones wished to have War Department advice and orders on the prospect of his attendance anyway. Wilkinson, Jones added, did not wish to delay the court for want of witnesses, but “so tired out is he [Wilkinson] with the persecutions under which he has laboured for so many years, that no matter with what consequences to himself, he shall submit his cause to the court upon the evidence as soon as even that which may be ready is gone through.” Jones doubted that the court would sit long enough to wait for further witnesses, assuming that it could even get to the evidence already available, “which has even ’til now been postponed for preliminary questions.” After two days of deciding procedural questions—the limitation arising under the eighty-eighth article of war and the propriety of the court interfering on the subject of witnesses—Jones hoped that the court could go ahead “in an uninterupted course upon the main business.”

2See Toulmin to JM, 6 Mar. 1811, and n. 1.

3This enclosure has not been identified.

4Eustis enclosed a copy of an 11 Sept. 1811 letter he had received from Brig. Gen. Peter Gansevoort, who was presiding over Wilkinson’s court-martial (2 pp.). He suggested the expediency of naming supernumerary officers to attend the trial, which “bids fair to be long & tedious,” in case vacancies should occur. Colonels Backus, Burbeck, and Freeman had already been removed and replaced by the only available supernumeraries, Majors Armistead, Stoddart, and Swift. The judge advocate, moreover, was in poor health, and the court had been compelled to adjourn that day for this reason. Gansevoort therefore suggested that an assistant judge advocate be named. So far, he continued, the trial had advanced only to the reading of the charges and to some preliminary questions. If an assistant were hired, Gansevoort recommended “his allowance be liberal, and adequate to so tedious and generally an unthankful business.”

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