To John Armstrong
Montpelier May 17. 1814
Obstructions to the mail retarded for several days, your letter of the 9th. instant, accompanied by a correspondence between Generals Wilkinson & Izzard, on the subject of the Court Martial. The letter from the former to the Dept. of War, referred to in the correspondence, was omitted.
The objection made to the validity of the order for a Court Martial cannot be sustained. Altho’ orders derive1 their authority from the President and not from the Department of War, where an authority is not specially vested in it by law, the authority of the President in orders requiring it is to be presumed, when passing through a legitimate & known channel. I have not the means of ascertaining whether the terms of the order sent by Col. Walback corresponded with the current of precedents. Should there have been any deviation in that respect, it would not viciate2 the order itself, and may be avoided in future.
The other objection, viz to the number of the Court, and the deficiency of rank in one of the members, is also without legal foundation. The extracts from the articles of war cited by you import that the Executive must necessarily judge, on its responsibility, whether, in any particular case, a restriction of the members of a Court Martial to a smaller number than is required in ordinary cases, or a resort to officers of inferior rank, can or cannot be avoided without manifest injury to the service.
But altho’ there be no legal right on the side of Genl. W. it merits consideration whether there may not be expectations which will be deemed reasonable. Being of the highest grade in the Army, having been charged with the most important operations of the campaign, and so much time having elapsed after the question of a military Court came into view, during which time he was continued in Command, the grounds on which the smallest allowable number, with an inferiority of rank, can be properly enforced, ought to be equal3 certain & imperious. The law evidently favors, in behalf of the party to be tried, the highest number, and an equality of rank.4
The suggestions in the letter of Genl. Pinkney of April 22d now returned appear to be judicious.5 It would have been well if he could have participated in the final arrangements with the subdued Indians.6 The task of making them is now however so easy that Col: Hawkins alone might suffice for it. But it may be more satisfactory to associate Col. Milton7 or some one else with him.
It may be more satisfactory also to give associates to Genl. Harrison for a treaty with the N.W. Indians; and Mr. Morrow & Col. Johnson will be a fit selection. Send me a Commission; and let it be joint & several; as well to guard agst. casualties, as to leave General Harrison free for the other service allotted to him, in case of an interference between the two.
Send also a commission of Brigadier, and a Brevet of Major General for Genl. Jackson.
I have not yet fixed on the day of my setting out for Washington. Untill you receive notice of it, your communications may be continued hither. Accept my respects & good wishes
RC (PHi: Daniel Parker Papers); Tr (DLC); Tr (DLC, series 3). Minor differences between the copies have not been noted.
1. First Tr has “sustained, altho derive.”
2. First Tr has “deviate.”
3. Trs have “equally.”
4. Second Tr includes the following paragraph here: “As General Wilkinson will be content with a Court composed of five members only, provided they be General officers, it is proper that such an one should be instituted, and assembled at as early a day as will avoid manifest injury to the public service. Of this determination you may inform him. The selection of the officers most eligible for the Court with the other necessary steps, may await my return to Washington.” First Tr includes a nearly identical paragraph.
5. First Tr has “appears to injudicious.” In his 22 Apr. 1814 letter to Armstrong (4 pp.; DNA: RG 107, LRRS, P-459:7), Maj. Gen. Thomas Pinckney reported that “all effectual resistance of the hostile Creeks is at an End,” and proposed that a chain of posts between Tennessee, Georgia, and the Mobile River be maintained to protect U.S. territory. He had sent Tennessee militia to garrison some of the posts but suggested that “Troops of a more permanent establishment,” such as twelve-month volunteers or regulars, be placed in these locations. Pinckney advised further that commissioners be appointed to make a settlement with the conquered Creeks, opined that the United States would be justified in taking “a considerable quantity of very good Land” from the Creeks “as idemnity for the War” and that the remaining territory would amply suffice for both “friendly” and “subdued” Indians, and stated that he could not participate in the peace talks because he had to attend to duties on the seacoast.
6. First Tr has “of the subdued Indians.”
7. First Tr has “Col. Miller.”