Westpoint 15th June 1782.
I have studiously avoided troubling your Excellency, with unnecessary Letters, since I have had the Honor of serving under your Orders. It is to this motive, and not to neglect, that my silence to your Favors of the 2nd of March, and 1st of April is to be ascribed. I am however reluctantly obliged, to trouble you with the Subject of this address; as well to justify my Conduct, in objecting to the Court-Martial’s setting at FishKill, by Major General Heath’s Order, at the Time it was summoned there; as to request some other papers from your recording Secretary.
The 6th Article of the Arrest charges me with an Offence, in Conversation before the Field Officers of the Garrison; consequently they were naturally to be Witnesses; and of this, General Heath; who formed the Arrest, could not be ignorant; and another subject matter of the Arrest, rendered it necessary, for the Engineer, Quarter Master and Commissary of the Garrison also, to be Witnesses. Brigadier General Paterson was a Member of the Court.
Thus the Commandant, all the Field Officers, and most of the other principal officers of the Garrison were either Members of the Court, or Witnesses to attend it. They were all so destitute of money, that the whole Massachusett’s Line could not muster up a sufficient Sum to send one Officer of their Line, to Congress, to get Accompts of their’s settled: Nor were any quarters provided, either for the Court, or the numerous Army Witnesses, who were to attend. By the assembling the Court at FishKill, the Garrison was to be stripped of it’s Commandant, and all it’s principal Officers, without money to subsist themselves, or quarters provided, and their poverty by that extraordinary and unjustifiable Order, exposed to the Inhabitants, and that, twelve miles from the Center of the Army, at a season when; the Navigation by reason of the Ice became extremely precarious; so that when they were at Fishkill, or the East Side of the River they would be detained many Days there, from the impassable State of the River, however pressing the Call of Duty might be to Westpoint; when no position was so convenient, in every respect, as this place.
From this State of facts, your Excellency may judge whether it could be predicated of FishKill that it was "a convenient place in it’s Vicinity," that is, in the Vicinity of Westpoint; which are the Words of the after Order published at Philadelphia.
The calling the Court there was so inconvenient to all the Members and Witnesses, so embarrassing to the Service, and so contrary to the Letter and Spirit of your Excellency’s Order, for assembling the Court, that I could not think of submitting to attend at FishKill. Besides those Considerations the holding the Court there, would greatly lengthen out and delay the Trial; and a Delay of justice is a Denial of Justice.
From this Detail it will be apparent to the Commander in Chief, that "the Spirit of accommodating one another", or the Service, did not govern General Heath, in ordering the Court to be holden at FishKill. I have taken the Liberty to inclose a Certified Copy of his Orders on that Subject.
Your Excellency is pleased to say in your’s of the 2nd of March, that, "it would be matter of Concern to you, that a practise should prevail of publishing to the World, the Opinions which are given in Councils of War, as you have always considered the Transactions of such Occasions to be under the inviolable Sanction of Secrecy and Honor." Far be it from me, wantonly to add to the Concern or cares of a Gentleman, already too much burdened with public Cares: And it would give me pain to be in the least Degree the Cause of imaginary Concern.
It is indisputable, that the general Opinion of a Council of War, is to be kept secret, under the inviolable Sanction of Honor; till the Object of such Opinion is attained; and so is the Opinion of the several Members; for the same period, if the revealing of any of them would defeat the End the Council had in Contemplation: And if the general Opinion of the Council, or particular one of any of it’s Members, is founded on any Secret of State; neither should be divulged at any time when it may be injurious to the State. But otherwise, I humbly conceive the general opinion of the Court and particular one of any member, may be revealed; whenever the Object of the Deliberation is obtained. And altho’ I can with great truth say that the Opinions of all Councils I had the Honor of serving at, were kept secret by me, ’till the Objects of them were answered; yet I own I never considered myself bound in Honor or Conscience any longer; unless any one of those Opinions was connected with Secrets of State. The contrary principle carried to it’s fullest Extent, might make a Council of War a secret Conclave, against the State. For suppose a Member in Council should express a treasonable Sentiment; shall it not be divulged? Besides the Military Cabinet, will some time or other be opened, when all the Resolutions of our Councils of War, will be disclosed. If it would be a Breach of honor to disclose any of them now, except with the restrictions I have mentioned, it would be a breach then. But another Consideration offers itself on this Subject; Is it not the Interest of the Country, of the supreme Council of it, to know the Weakness, or Wickedness of any of their high Servants, discovered in Councils of War? I humbly conceive it is: And two remarkable Instances countenance me in that Doctrine, and this Opinion; one which is handed to us from the British Army, the other from our own. That from the British, is from the Council of War held by General Wolfe, previous to his Landing on the plains of Abraham; all the Members were opposed to the measure, but the General himself, Brigadier Murray and Colonel Barry, the latter in the presence of the Council, took a Copy of the Proceedings, with express Design, which he declared, to give all the Honor of the measure, to General Wolfe, if he should fall in the Action.
That from our own, is inserted in the Trial of Major-General St Clair; in which the Proceedings of two Councils of War, are inserted; and were added by him: The Copies of which I have taken the Liberty to inclose.
I presume it will now appear to Your Excellency, that in the qualified sense I have mentioned, no Injury can arise to the States, or to any honest consistent member of a Council of War, by his Opinion being made public. I have thus trespassed on your patience, in discussing that subject, that you may be informed of the Reasons, which induced me to communicate General Heath’s Opinion at the Council of war, held the 12th of September 1776, as well as to justify myself in the Request I made of a Copy of the Minutes of that Council. And I hope, the Request I am now to make, to your Excellency, will not appear improper—It is for two papers from your recording Secretary; a Certified Copy of General Heath’s Letter to your Excellency, when the Army was before Boston; in which he refused to take the Command of a Corps destined to attack the Town of Boston, which fell to him by Seniority, because he was against the Measure in a Council of War; and a Copy of another Letter, of his to the Commander in Chief, dated from about the 25th of December 1776; to the 10th of January following, in which he reported to your Excellency, General Lee’s having demanded of him some of the Troops left with him at Peekskill at that period; which General Heath absolutely refused; because he had the particular Charge of that Post and the Troops given to him. Both these papers are of great importance to me in my defence, or I should not give your Excellency any trouble on this disagreeable Subject. If your Excellency will please to cause the order to be made out, Major McDougall will call for it.
As your Excellency now commands this Army in person, I shall be obliged to you for Liberty to visit the Legislature when they shall be convened.
For the Reasons which I mentioned in a former Letter, I could not think of leaving the proper limited Bounds of my Confinement on General Heath’s Permission. The Charges I make against him are enclosed—Several others will be added, when my Trial is compleated. ’Till then it may be improper to add, many that will arise out of the Trial—I would have transmitted them immediately on receiving your favor of the 1st of April; but as he had not then applied for Leave of Absence as I expected he would; I imagined no time would be lost. I have the Honor to be with great Truth Your Excellency’s most Obedient and most humble Servant
DLC: Papers of George Washington.
29 January-16 February 1782
Head Quarters Highland February 6th 1782.
Head Quarters Philadelphia Tuesday January 29th 1782.
A General Court Martial for the tryal of Major General McDougall on sundry charges exhibited against him by Major General Heath, will assemble at West Point as soon as possible. Major General Lord Stirling, is appointed President. The Deputy Adjutant General of the Eastern Army will detail the members.
Extract from General orders
Edwd Hand A. Genl
As soon as Major General Lord Stirling arrives at this Post the members of the Court will be named and the place of the Courts siting pointed out.
Head Quarters Highlands February 13th, 1782.
Head Quarters Philadelphia January 29th 1782.
The General Court Martial for the tryal of Major General McDougall may be holden at West Point or some convenient place in it’s vicinity.
Edwd Hand A. General
The General Court Martial whereof Major General Lord Stirling is President appointed for the tryal of Major General McDougall, is to sit at Mr Coopers Tavern in Fish Kill on Monday next the 18th of this instant February at ten oClock A.M. Brigadiers General James Clinton and Paterson, Colonel Shepard, Swift, Putnam, H. Jackson and Butler, Lieutenant Colonels Commandants, Smith and Sherman, Lieutenant Colonel Grosvenor, Majors Throop and Spurr will attend as members—All evidences and persons concerned to attend the Court.
The foregoing orders I received from Lieutenant Colonel Hull Deputy Adjutant General of the department.
W Point February 16th 1782
Ed. Haskell De.A.G.
Westpoint 15th June 1782.
Charges exhibited by Major General McDougall, to his Excellency the Commander in Chief, against Major General Heath; on which Major-General McDougall desires he may be put in Arrest.
1st For suffering Brigadier General Glover with impunity, when the Army here was suffering for want of bread, and a party had refused to go on Duty for want of bread, in December 1779 or in January 1780, to send out of this state, about seventeen Hundred Weight of flour, contrary to an express Law of this State, made to provide for and secure Provision for the Army; altho’ Major Campbell informed Major General Heath of it.
2nd For Neglect of Duty (as he Major General Heath assumed the Command of this Department) in suffering Mr Samuel Marshall on or about the 25th or 26th of November last to issue, and the different Commissaries in this Department, to receive as a Daily Issue, with Impunity, ten thousand, six hundred and five Rations of Provision, as underwritten; when no such Number or quantity could possibly be daily demanded; and at a time when the Army near the North River and this Garrison were suffering and frequently had suffered for want of bread, of which he was informed; and when it was his duty and in his power only, as he assumed the general Command of the Department, to correct such abuse of general Issues.
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3d For his assuming a general Command of West point and it’s Dependencies, without the necessary and known military Promulgation of his having such Authority.
4th For unmilitary and inhuman Neglect, in not putting the general Hospital Huts near New Windsor, and those for the small pox patients, near the Connecticut Cantonment last Autumn and Winter; in a comfortable State for the sick in them respectively; when they were suffering for want of necessary Repairs; and he had means under his Orders, to make the Huts comfortable; the Neglect of which in due time hath exposed those patients to great Hardship and Distress, by which the service hath been injured.
5th For Tyrannically and assumingly on the 13th of February last, ordering "the general Court Martial whereof Major General Lord Stirling was President, for the Trial of Major General McDougall, to sit at Mr Cooper’s Tavern in Fish Kill," contrary to the Letter and Spirit, of the orders of the Commander in Chief of the 29th of January last for assembling the said Court "at Westpoint or some convenient pace in it’s Vicinity"; and by ordering the Court to sit at FishKill, endangering the Safety of the Garrison of Westpoint, by the necessary Attendance of the principal Officers of it as Members of the Court, and Witnesses; and unfeelingly exposing those Officers to Expences, and their Poverty and Distress to the Country; and thereby denying Justice to the said McDougall, by the necessary Delays which would have been created by the Court’s sitting at FishKill, instead of the Place described by the above orders of the Commander in Chief, an Obedience which would have prevented all those Evils.
The underwritten complains to his Excellency General Washington, against Major General Heath for the unmilitary Neglects, Inhumanity and Tyranny particularised in the Charges above mentioned, which are ready to be supported by
6th For a Breach of the Instructions of the Commander in Chief to him, of the 19th of August last, repecting the new boats, which directed them to be "put under the Care of a Guard"; but he (Major General Heath) on the 7th of November last, ordered about ninety of those new Boats from the Care of a Guard placed over them, at Danforth’s Creek, by Major General McDougall; to be sent off, to Wapping Creek, without placing a Guard over them, where many of them were used and abused by the Inhabitants. [This] Charge will also be Supported by