Memoirs of my own times

Front matter

MEMOIRS BY GENERAL WILKINSON. VOL. in. MEMOIRS OF MY OWN TIMES BY GENERAL JAMES WILKINSON. Remember that the ways of Heaven, Though dark, are just: that oft some guardian power, Attends unsetn, to save the innocent ! But if high Heaven decrees our fall — O let us Firmly await the stroke; prepared alike To live or die. Brown's Babbabossa For patriots still must fall for statesmen's safety, And perish by the country they preserve. Savage. /JV THREE VOLUMES. VOL. III. PHILADELPHIA: PRINTED BY ABRAHAM SMALL. 1816. MEMOIRS BY GENERAL WILKINSON.

Chapter I

Exordium.— General Order for holding a general court CHAP. martial for the trial of Major-general Wilkinson, at l' Utica. — Supplementary ditto, and second supplementary ditto., — Constitution qf the court. — Adjournment qf the court and removal to Troy. — Appearance of M. Van Beuren esq. with a warrant from the War Department, as special Judge Advocate. — General Wilkinson's exception to his agency. — Mr. Van Beuren's reply. — The Judge Advocate supports Mr. Van Beuren's pretensions. — The decision of the court, excluding Mr. Van Beuren. — Arrangement. — Charges. — General Wilkinson objects to plead on account of the alterations made in the original charges. — The court decides against him. — Pleads not guixty. — Court adjourned at the instance of the Judge Advocate. — General Wilkinson applies for certain official papers. — Judge Advocate objects thereto. — Decision qf the court. — General Wilkinson remonstrates against the conduct qf the Judge Advocate, and opposes a further adjournment of the court. — Court decides on the necessity qf proceeding, and orders the Judge Advocate to conform to the law on the subject of absent witnesses. — The Judge Advocate's affidavit. — General Wilkinson applies for certain orders isstied by General Armstrong, secretary of VOL. III.

A CHAP. I Exordium General Order ap pointing a court mar tial. I MEMOIRS BY war.-— Judge Advocate objects to their production — He obtains another adjournment, on account of the alleged absence of material witnesses. This volume will display, to the reader, the closing scenes of my persecutions, contrived by a remorseless minister, to prop his sinking popularity, and support his pretensions to the Presidential chair j the secretary was hated by the President, yet to cross the vindictive purposes, of a man impatient of power, would have produced discord in the cabinet, which is to be avoided at any sacrifice, of men, or principles ; this motive concurring, with the well known subserviency, of President Madison, to Secretary Armstrong, prevailed over a sense of justice and public duty. He abandoned the high, and solemn obligations of official trust, conferred on him by his fellow-citizens ; and sooner than oppose his authority, to the tyranny and improvidence of the minister, with unpardonable apathy, he consented to the destruction of a faithful public officer, grown grey in the service, and permitted the conflagration of the national capitol, with out a struggle, finis coronal opus.' The proceedings which took place, in that wanton and scandalous attack, upon my military conduct and private character, will be recorded as they occurred ; with notes explanatory, to elucidate the subject, and the correction of such obvious errors and omissions, as appear on the face of the copy in my possession.

Proceedings of a General Court Martial, convened at Fork House, in the village of Utica, and state of New Fork, by virtue of the following General, and Supplementary Orders, issued from the Department of war. GENERAL ORDERS. « Adjutant 8r Inspector General's Office, Washington, 18f/_ Nov. 1814. « A general court martial, for the trial of Major-general James Wilkinson, will assemble, at some suitable place in the village of Utica, and state of New York, on chap. the 3d of January next. r" " The court will he composed as follows : President. Major-general H. Dearborn. Members. Major-general M. Lewis, Major-general George Izard, Brig. Gen. J. Bloomfield, Brig. Gen. J. P. Boyd, Brig. Gen. D. Bissel, Brig. Gen. E. W. Ripley, Col. J. Simonds, 5th inf. Col. P. P. Schuyler, 13th inf. Col. R. Purdy, 4th inf.

Col. J. Kingsbury, 1st inf. Col. Jas. Burn, light dragoons, Col. D. Brearly, 15th inf. Supernumeraries. Col. Denny M'Cobb, 45th inf. Col. George M'Feely, 25th inf. Lieut. Col. William S. Talmadge, 46th inf. Evert A. Bancker — Army Judge Advocate. " By order of the secretary of war. « JOHN R. BELL, Insp. Gen.'11 First Supplementary GENERAL ORDER. « Adjutant Ss Inspector General's Office. Supple- November 25th, 1814. Genwri « Brigadier-general Moses Porter, is detailed as a 0luer member of the general court martial, for the trial of Major-General Wilkinson, in lieu of Major-general Izard,* who will remain in command of the arm}, near Buffaloe. » By order of the secretary of war. « D. PARKER, Mjt. $ Lisp. Gen." Second Supplementary GENERAL ORDER, Second " Adjutant § Inspector General's Office. suPPle- December 2, 1814. mentary General « Briaradier-sreneral John Chandler, is detailed as a Order member of the general court martial, ordered to convene at Utica, in the state of New Yirk, on the 3d of January next, for the trial of Major-general Wilkinson, in lieu of Brigadier-general John P. Boyd, " By order, « D. PARKER, Mjt. $ Insp.

Gen." Fork Hoitse, Utica, Jan. 3d, 1815. Agreeably to the pi'eceding general orders, the members assembled at York House, in the village of Utica, and by the addition of the several supernumeraries, the court was organised as follows : President. Constitu- Major-general H. Dearborn. tion of the Members. Major-general M. Lewis, Brig. Gen. Moses Porter, Brig. Gen. John Chandler, Brig. Gen. D. Bissel, Col. J. Simonds, 5th inf. Col. P. P. Schuyler, 13th inf. * This officer, from his professional knowledge and experience, his lofty mind, and inflexible honour, was anxiously desired by the prisoner, as one of his judges. Col. J. Kingsbury, 1st inf. Col. J. Burn, light dragoons. Col. D. Brearly, 15th inf. Col. D. M'Cobb, 45th inf. Col. G. M'Feely, 25th inf. Lieut. Col. S. Talmadge, 46th inf. CHAP. I. Evert A. Bancker — Judge Advocate.

The orders constituting the court having been read, Major-general James Wilkinson next appeared, [and General beins; questioned thereto, made no exception to the court, w,-}*-insori a . * r » professes and professed his readiness for trial.*] But, it being rehis readi presented by the judge advocate, that certain documents p^ceed— essential to the prosecution, had not been received from judge ad the war department, and further, that no witnesses atan tended, on the part of the United States, the court adadjourn journed to Friday, the 6th of January instant, 10 o'clock, men ' A. M. Fork House, Utica, Jan. 6th, 1815. The court convened pursuant to adjournment. The following order was produced and read. GENERAL ORDER. " Adjutant <$• Inspector General's Office, December 17 th, 1814. « Major-general Dearborn, president of the general court martial, ordered to convene at Utica, on the 3d of January next, is authorised to adjourn said court to meet and hold its session, at Albany, or Troy, in the state of New York.

" By order. « D. PARKER, Adjt. $ Imp. Gen." * Omitted by the judge advocate. Whereupon a majority of the members advising a re- _^_. moval, and it also appearing, that the judge advocate, Adjournf°r wa"t of the necessary documents, and witnesses, wras ment and not prepared to proceed with the prosecution ; the presi removal .... , . of the dent adjourned the court, to meet at some suitable place court to in the village of Troy, and state of New York, on Monday the 16th day of January, inst, at 12 o'clock, A. M. Court House, Troy, Jan. 16th, 1815. The court convened pursuant to adjournment. Major-general James Wilkinson, of the United States army, appeared; and being asked, if he objected to any of the members, whose names were severally called, replied in the negative. Whereupon the prescribed oaths were administered to the president, and members of the court, and to the judge advocate.

Appear- Martin Van Beuren, esquire, next appeared, and pro- Martin duced his warrant, from the war department, to offi- Van Beudate as speciai judge advocate, before this court, in special aS t'»e and figures following, viz. judge advocate. "Adjutant Sr Inspector General's Office, December 14th, 1814. " Sir, War office « You have been appointed special judge advo mePn°t of cate, of the general court martial, ordered to convene ?ud°'al d at Utica' in the state of Nevv Yo**,k» °n the 3d of January vc^te? ' next' for the trial of Major-general Wilkinson, of the United States army. E. A. Bancker, esquire, army judge advocate, has been assigned to this duty, and will be directed to report to you, and furnish such papers and information as he may have relative to the case, and receive your directions,* in the necessary preparations * Thus the legitimate officer was made subordinate to an assistant,-the deputy placed above the principal,_rightful authority degraded, and the regular course of proceedings innovated I had warned the adjutant and inspector general, of the illegality of this of the charges, &c. He will also aid you in the trial, as chap. assistant judge advocate.

I have to request, that you J* will signify your acceptance, or non acceptance of this appointment. In case of acceptance, you will make the necessary arrangements for the trial. A rough draft of specifications of charges, have been furnished to Mr. Bancker, which will be subject to such alterations and amendments, as you may find necessary. General Wil kinson will be advised of your appointment, and referred to you for such further information, as he may require relative to the trial. « By order of the secretary of war. " I have the honour to be, &c. « D. PARKER, Adjt. ■$■ Insp. Gen. « Martin Van Beuren esq. Hudson, New Fork." The warrant having been read, Major-general Wil kinson, objected to the admission of a special* judge adappointment, and had called on the secretary of war, to give him the same notification; but he was absent, and my time would not allow me to wait for him ; I therefore left a message for him, and a reference to the articles of war, which were opposed to this appointment, of special judge advocate, with Lieutenant-colonel M'Pherson, and Mr. Tench Ringgold, whom I found at the war office ; nevertheless, as a minister must not recede from his purpose, however destructive of the public interests, or ruinous to individuals, the same gentleman, who had been illegally imposed on General Hull, was also appointed to assist at my trial. * In this case there was an attempt to trample upon the principles of justice, and to pervert the ordinary course of judicial proceedings.

The prisoner had been furnished in November, 1814, by order of the President, with the charges and specifications, on which he had been arrested, and to which he was to plead, and these had previously un dergone several changes and modifications; but now in January, 1815, after the malice and ingenuity of Gen. Armstrong, and his co-adjutors, had been exhausted, and the prisoner is brought up for trial, he is given to understand, that an extra officer has been appointed, to the court, with extraordinary and illegal powers, to make such alterations and amendments, as he might deem necessary. This is recorded vocate, as unauthorised and illegal; submitting to the court, the following observations, as the grounds of his General objections, viz. Wilkinson the%! ° " The undersigned, James Wilkinson, being duly sen pointment sible that the rights of a soldier, even, in this government of laws, are few ; and that deprived of these, the garb of honour, will be converted into a badge of servility; is impelled by the duty of his station, which, imperiously requires of him, not only to maintain his own rightful pretensions, but, as far as may be in his power, to preserve those of his brethren in arms; especially, at a time, when war exists, and a large portion of his fellow -citizens, may be necessarily transformed into soldiers; most respectfully objects, to the admission of Martin Van Beuren esq., to appear and act, before the general court martial, as a special judge advocate; and in support of this objection, he with great deference submits, the following facts, and reasons, to the consideration of the court.

" 1st — Because a special judge advocate, is unknown to the law, and therefore is unauthorised. " 2d — Because E. A.Banckeres(j,. judge advocate, duly appointed by the President of the United States, « by and with the advice and consext of the senate," is pre sent to perform the duties of said office; and the law does not allow, more than one person at the same time, to act as judge advocate, before a general court martial, for the prosecution of any real or supposed offence. « 3d— Because the said judge advocate, E. A. Bancker esq. was by the President of the United States through the agency of his secretary of war, (the ho nourable James Monroe) specially designated, to act in the capacity of judge advocate, in the case before you, as appeais by the letter, of Colonel John R. Bell, inspector-general, bearing date, the ISth day of November. among the minor instances of the trembling solicitude, with which President Madison, regards the laws of his country, and the rights of his fellow-citizens. 1814.

A general order, of the same date, and the copy of a letter from Daniel Parker, adjutant ami inspector general, to the said E. A. Banckcr esq. army judge ad vocate, bearing date the 2d day of December, 1814; herewith presented. CHAP. 1 <•< 4th — Because, since the act of Congress, passed on the 11th day of January, 1812, the President of the United States, except when In actual service, in a military capa city, has not power, to appoint any person lo act as a judge advocate, without « the advice and consent of the Senate," while that Senate is in session, which is, and has been the case, for more than two months ; inasmuch, as the constitution of the United States ordains, that while said Senate is in session, tlie President shall nomi nate, and by, and with the advice and consent of the Se nate, shall appoint all officers, except in those cases, where Congress may vest the President, with power to appoint inferior officers; and it does not appear, that the Congress has invested the President, with the power to appoint a judge advocate, in this, or any other case; in asmuch as, the 21si section of the act, fixing the military peace establishment, of the United States, passed on the 16th day of March, 1802, is virtually, and by operation of law, repealed, by the 19th section of the act, entitled an act, to raise an additional military force, passed on the 11th day of January, 1812.

It must be observed, that the act, fixing the military peace establishment, of the United States, did not make any provision, for the regular ap pointment of a judge advocate, to be attached to the staff of the army ; and to remedy the defect of the same, in the 9.1st section of the said act, power is given, not only to the President of the United States, but, « to the Brigadier-general," or to the president of the court, whenever a general court martial shall be ordered, to appoint some fit person, to act as judge advocate. When the reason, for which this power was granted, ceased, viz. on the passage of the act of the 11th January, 1812, authorising the appointment of judge advocates, with it ceased, the power VOL. III. B itself. Now the 19th section of the act of the 11th Janua ry, 1812, peremptorily, ordains that there shall be ap pointed to each division, a judge advocate.

This statute was obligatory on the President, and he did, accordingly, « by and with the advice and consent of the Senate," appoint several judge advocates, and among them E. A. Bancker esq. The 21st section of the act of the 16th March, 1802, vested the President with power, to appoint some fit person, to act as judge advocate; but the 19th section of tlie act of January, 1812, created the office of judge advocate. Now, therefore, it would be absurd to suppose, that the 19th section of the act qf January, 1812, did not virtually, and of itself, necessarily, repeal, annul and abrogate, the 21st section of the act of the 16th March, 1802; since, otherwise, two contradictory powers of appointment, would exist, one with, and one without, the advice of the senate, precisely in the same case.

Such a doctrine would be alike opposed to common sense, and to law; every affirmative statute, being, by implication, a repeal of any preceding affirmative statute, so far as it is contrary thereto; prior are abrogated hy posterior laws; but was this doctrine admitted, a president of the United States might, under the last law, make sinecure births, whilst under the first act, he might destroy the functions of the legitimate judge advocate, in each particular case thereby extending his prerogative at his discretion; and should it be the future destiny of our country, to have a vindictive tyrant, in place of a wise and virtuous man, at the head of its government, he may exercise his authority, to wreak his vengeance on every unfortunate military man, who may incur his displeasure. « 5th— Because, the said Martin Van Beuren esquire, is a citizen of the state of New York, and a senator of the same, and in no way connected with, or attached to the army; nor does he hold any office, or commission, whatsoever from the United States.

Wherefore, should it even be conceded, that the 21st section of the act of tlie 16th March, 1802, was in force, still, the aforesaid Van Beuren, would not be eligible to act, as judge advocate, CHAP. I. because that section expressly confines, the President of CHAP. the United States, the brigadier-general, or the president L of the court, to select such acting judge advocate,from perv"^"v""v' som belonging to the public service. This fact is clearly demonstrated, by that part of the aforesaid section, which ordains that the person acting as judge advocate, shall be allowed, in addition to his other pay, one dollar and twenty five cents, for every day he shall be necessarily employed, in the duties of the said court: he must, therefore, be a person, who, independent of this allowance, of one dollar and twenty-five cents per diem, receives a fixed and known sum for his services, from the government.

As Mr. Van Beuren, is not of this character, he -did not, and does not, come within the designation of those persons, from whom the executive might have made a selection. In other words, tlie President did not possess constitutional, or legal power, to appoint him, to act as judge advocate in this case; though he had, « by 'and with the advice and consent of the senate," to appoint him a judge advocate for the army. Could a doubt remain, as to the description of persons, from whom the President might select one, to act as judge advocate, under the said act, of the 16th qf March, 1802; or who, in other language, was meant by the person, who shall receive, while so employed, one dollar and twenty-five cents, in addition to his other pay, such doubt would be removed, by the 19th section of the act of January, 1812; which ordains, that if a citizen, not belonging to the public service, is appointed judge advocate, he shall receive the pay and emoluments of a major in the infantry; but if taken from the line of the army, he shall receive thirty dollars per month, in addition to his pay.

It is, therefore, evident that under the act, of the 16th March, 1802, the President could not appoint Mr. Van Beuren, because he did not belong to the public service, Reasons and cannot, therefore, receive one dollar and twenty-five pre^jjent cents per day, in addition to his other pay; and that he could not could not appoint him, under the act of the 11th of Ja- Mr°Van nuary, 1812, because the act, does not authorise the ap- Beuren, pointmentof a judge advocate, for a particular case; and because Mr. Van Beuren, has not been nominated to, and approved by the senate. CHAP I. « 6th Because, by the 69th article, of the rules and articles of war, it is enacted, that the judge advocate, or some person deputed by him, or by the general, or officer commanding the army, detachment or garrison, shall pro secute in the name of the United States.

We find some obscurity in this article, yet a fair explanation, and full interpretation, will dispel every doubt, and remove every difficulty. It is necessary to remark, that at the time of the enactment of the rules and articles of war, April 10, 1806, our army consisted of the military peace establish ment, of the 16th March, 1802; it was commanded by a single general officer, he a brigadier, and the corps was frittered into detachments, and garrisons, scattered throughout the national limits. To meet the exigencies of the service, and to enforce the prinriples of subordination, and discipline, with promptitude and effect, under such a dispersion of the troops, the general commanding the army, and colonels commanding great districts, were authorised to appointgeneial courts martial, and, of course, judge advocates; hence the singular phraseology, in the 21st section of the act of the 16th March, 1802, "t/.e brigadier-general, and the president of the court;" and in the article under consideration, « the general or officer com manding the army, detachment or garrison." « But by no interpretation, however strained, can the general be made to imply, the President of the United States.

Referring, particularly, to the 69th article of war, we find that the judge advocate, « or some person deputed by him," not the judge advocate, and some person deputed by him, shall prosecute; and hence it follows, in contestibly, that one law officer, and but one, shall appear before a general court martial, to prosecute in the name of the United States; the first right of substitution, was reserved to the judge advocate; the second right of sub stitution, necessarily, to the general, or officer commanding the army, &c. In case of the non-appointment, or default of the judge advocate, from whatever cause, it is apparent, that by the general, or officer commanding, is chap. meant the person, in actual command, and not the chief l magistrate of the United States ; who, although the conp stitutional commander in chief, of the army and navy of the or officer United States, and of the militia, when in actual service, "™^d" has never been spoken of, or described in any statute, as not be the general; and, who, so long as he continues to exercise, the functions of president of these states, cannot be dent. so designated.

It would be as humiliating, as ridiculous, to reduce the President, to the level of the judge advocate, whom he nominates, and, with the advice and con sent of the senate, appoints to office; yet such would be the case, were he liable to appoint, the deputy of the judge advocate. And how can we reconcile, the func tions of the chief magistrate, of the nation, to the duties of a petty commandant, of a military detachment, or gar rison? It is equally absurd to say, that by the general, or officer commanding, was meant the President. The dis tinction is too obvious, to escape the dullest observer; the President, is appointed by the people; the gcneral is appointed by the President, by and with the advice, and consent of the senate, and is the officer of the President. The conclusion, which should establish the proposition, that by the words « the general commanding," is meant the President, would necessarily subject him, to martial bashing law and military punishment, like other officers, which ton at would involve the monstrous absurdity, of a general assem. beina: brought to trial, who possessed power to pardon hlage of , . ,„ • x. . -,, i.- i _. troops at himself.

For a more pointed illustration, let us review Bedford, the expedition, to repress the western insurrection : Prehut Gene sident Washington, attended the assemblage of troops command at Bedford, from the several adjacent states; but, at that ed— Pre- , sident Ma place, he appointed General Lee to the command. In dison at the late affair, near Bladensburgh, the Presi- . b'lrgh.but DENT WAS ON THE FIELD OF BATTLE, BUT GENERAL General Winder was the general and commanded. " command « JAMES WILKINSON, Maj. Gen." ed. In reply to the objections thus raised, the special judge advocated stated, « That the delicacy of his situation, rendered it, in his judgment, improper, to enforce by a full discussion, his right of conducting the prosecution; that he had felt him self, bound to obey the call, which had been made upon him, by the government; and was now prepared, with the permission of the court, to enter upon the discharge of the duties, attached to the station, for which he had been selected ; that he deemed the authority, under which he claimed to act, competent for him, and binding on the court : that it was for them to say, how far they were authorised, to arraign the conduct of the government, in this respect, and decide on the legality, of the course which had been adopted ; that he should con form to such order, as they might feel at liberty, and justified to make, in the premises."

CHAP. I. Mr. Van Beuren's reply. Judge ad. vocate en deavours to sustain Mr. Van Beuren's appointment. Mr. Van Beuren having concluded his remarks, the judge advocate read page 20~ of Tytler on martial law, as authority for the course, which had been pursued by the government. He next cited the trial of Brigadier-general Hull, as a precedent* in point, and adverted to the practice com mon in naval courts martial, of appointing special judge advocates; likewise in the criminal courts, of the United States, where common law maxims govern, though the attorney -general is the only public prosecutor, recognis ed by the statute; yet it has been the established usage, to employ counsel in most important cases. The court being, thereupon, cleared; after full and de liberate discussion; and having maturely weighed the objections, advanced, was of opinion: « 1st.. — That it had full cognizance, and was competent to determine, upon the legality of the special judge * The judge advocate, true to his trust, and content with his de gradation, (although the legitimate officer of the court) appeared, not only willing, but desirous, to wave the privileges of his rank, and submit to receive instructions from an assistant; for this end he la boured with an unholy zeal, in support of the usurpation of the exe cutive, and contributed his aid, to found a precedent, on an illegal exertion of power. advocate's appointment; though emanating from the same chap. authority, which constituted the court. ** i «2d. — That in cases, where a regular judge advocate has been assigned, and is attending on the part of the prosecution, the court cannot admit as principal prosecutor, a special judge advocate, designated by the war department, and neither in the line or staff of the army."

THE COURT* ACCORDINGLY DECIDED, THAT Mar- Decision tin Van Beuren Esq. cannot be recognised, as of tlie court. SPECIAL JUDGE ADVOCATE, ON THE PRESENT TRIAL. The court having determined on the exclusion, of Mr. Van Beuren, the judge advocate observed, that being well aware, it was not designed that he should singly undertake, a trial so important and arduous, as the present, and knowing, that a gentleman distinguished in his pro jession, had been selected, he felt reluctant to contravene the intentions of the government; under any other circumstances, he should not have hesitated, but he felt a delicacy in assuming a responsibility, not originally] his, raid which has become so merely by accident. * This determination of the members of this general court martial, well deserves to be recorded, in letters of gold; its authors, will live in the grateful remembrance of posterity, while the occasion which produced it will excite abhorrence; and the more lasting will be their fame, when, it is recollected, that they thus dared to main tain their just authority, to assert the rights of their brethren in arms, and to uphold the pure principles of external justice, in i.Ue face of des potic power; they risked nothing, they calculated clearly, and ably, on the times they lived in, and on the dispositions of the executive; and resolved on a noble sacrifice ; " fiat justitia ruat cœlum."

They were not mistaken ; the penalty due for the exercise of indepen dence, and their adherence to the obligations of conscience and ho nour, was levied with an inexorable hand; and out of thirteen members, who had been selected, for this general court martial, one only was retained, on the reduction of the army ; another, it is true, after being degraded from his rank, has been re-admitted; and yet after all this, it would be a political heresy, to question the justice and the magnanimity, of the meek, and mild, and virtuous, President Madison. ■f* Yet the General Orders, constituting the court, and adjutant-general's letters, shew, that he was " originally" appointed judge advocate to it, and that Mi*. Van Beuren was not isamed. chap. Under these impressions, he would with permission of the court, beg leave to decline. j^Ti-du The court was of °pinior*' that it was the duty of tIie vocate judge advocate to proceed with the trial, and adjourned to the inh instant, i0 o'clock. acting.