From John Armstrong
War Department May 9th. 1814.
I have the honor to inclose copies of a correspondence between Major Genl. Izard and General Wilkinson on the Subject of the Court Martial recently instituted for the trial of the latter.1 The result of this is that General Wilkinson declines being tried by a Court of the smallest legal number, unless wholly composed of General Officers—& that the Court not being so composed, was dissolved.
It may be proper that this report be accompanied by some remarks on Genl. Wilkinson’s Letters (to General Izard) of the 25th. & 27th. Ultimo, as otherwise a degree of countenance may be given to the General’s objections utterly inconsistent with the authority of this Department & the necessary subordination of the Army.
The objections are two—
1st. That the order instituting the Court is but signed by the adjutant General attached to the War Department—that to transmit orders thro’ this medium is a practice of recent date & quite unknown until the ministry of the present Secretary; &
2nd. That to consent to be tried by a Court, constituted by orders issued in this form, and not wholly composed of General Officers, or of a less number than thirteen, is matter, not of duty, but of concession on the part of the officer to be tried.
As to the first of these objections, the records of the War Office put it completely down and shew—that an Inspectorship was attached to this Department as early as the year 1800:
That it was made the medium of military orders:
That it so continued until the year 1803.
That it was again renewed in 1808, & has continued without interruption till the present time.
That in March 1812 an Adjutant General was attached to this Department—
That this officer became the medium through which the military arrangements of the Department were transmitted & executed—& that General Wilkinson was in habits of correspondence with him on subjects of military duty before my coming into Office.
These facts abundantly shew, that to issue military Orders through a Staff Officer attached to the War Dept: was not a practice of recent date—nor (as asserted by Genl. Wilkinson) unknown until “the ministry of the present Secretary.” It was in use under my Predecessor in Office—& could not have been so without your knowledge & approbation.
The 2d objection is not better founded than the first. If the adjutant General be a known & accredited Channel through which military orders pass from the War Office to General & other officers—the validity of orders so given cannot even be doubted without a violation of duty. A submission to them, therefore cannot be matter of concession on the part of the Officer receiving them—because that term implies a right to do otherwise. Again: The General thinks himself entitled by law to decide, whether he will, or will not, be tried by a Court Martial, composed wholly of General Officers and of a number not less than thirteen. By the 75th. Article of War it is provided that—“no officer shall be tried but by a General Court Martial, nor by Officers of an inferior rank, if it can be avoided.” And in the 64th. Article we find that “General Courts martial may consist of any number of commissioned Officers from five to thirteen inclusively—but they shall not consist of less than thirteen, where that number can be convened without manifest injury to the Service.”2 In both these Articles it is evident that circumstances govern both as to the number & rank of the members of Courts martial—& that in both cases the interests of the public must control. But of these—who shall be the Judge? The prisoner, who knows nothing of the public exigencies—or the Government, who alone knows them all, & who is charged with the application of the means best adapted to them? It is not therefore matter of Concession in an Officer to accommodate himself in such cases to the decisions of the government—but matter of duty. I have the Honor to be With the greatest Respect Sir your most obedt. Servant.
RC (DLC); letterbook copy (DNA: RG 107, LSP). RC in a clerk’s hand, signed by Armstrong; docketed by JM.
1. Armstrong enclosed copies of letters forwarded to him by Maj. Gen. George Izard on 27 Apr. 1814 (DNA: RG 107, LRRS, I-453:7). They were 1) Izard to Maj. Gen. James Wilkinson, 25 Apr. 1814 (1 p.), enclosing a copy of Adj. Gen. John Walbach’s 7 Apr. 1814 general orders for Wilkinson’s court-martial and stating that Armstrong had asked Izard to find out whether Wilkinson would “assent to be tried by a court of the smallest legal number”; 2) Wilkinson to Izard, 25 Apr. 1814 (1 p.), objecting that the general orders bore no evidence of JM’s authorization and enclosing an extract of his 24 Apr. 1814 letter to Armstrong, in which he consented to be tried by a court-martial of five general officers (DNA: RG 107, Registers of Letters Received); 3) Izard to Wilkinson, 26 Apr. 1814 (1 p.), observing that the orders were in the standard form and asking whether Wilkinson’s reply constituted a refusal to be tried by the fewest number of officers permitted by law; 4) Wilkinson to Izard, 27 Apr. 1814 (2 pp.), detailing his objections to the style of the orders and agreeing to be tried by a court-martial consisting of five general officers; and 5) Izard to Wilkinson, 27 Apr. 1814 (1 p.), stating that since the court convened by the orders was not made up of five general officers, he had dismissed it. According to a record of the court’s proceedings also enclosed in Izard’s 27 Apr. 1814 letter to Armstrong, the court-martial members present included Izard, Brig. Gen. Duncan McArthur, Col. William King, and Lt. Col. Samuel S. Conner; the remaining officers assigned this duty were absent.
2. Armstrong quoted from “An Act for establishing Rules and Articles for the government of the Armies of the United States,” 10 Apr. 1806 (U.S. Statutes at Large, description begins The Public Statutes at Large of the United States of America … (17 vols.; Boston, 1848–73). description ends 2:359, 367, 368).