Blood of Tyrants: George Washington & the Forging of the Presidency (56 page)
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34
Smith,
An Authentic Narrative
, 15.
Smith,
An Authentic Narrative
, 15.
35
Ibid.
Ibid.
36
Flexner,
The Traitor and the Spy
, 363.
Flexner,
The Traitor and the Spy
, 363.
37
Smith,
An Authentic Narrative
, 15.
Smith,
An Authentic Narrative
, 15.
38
Jared Sparks,
The Life and Treason of Benedict Arnold
(New York: Harper & Bros., 1848), 198.
Jared Sparks,
The Life and Treason of Benedict Arnold
(New York: Harper & Bros., 1848), 198.
39
Smith,
An Authentic Narrative
, 15.
Smith,
An Authentic Narrative
, 15.
40
Ibid.
Ibid.
41
Intelligence Report of Andrew Elliot of New York, October 4–5, 1780, in
The Spirit of Seventy-Six
, 752.
Intelligence Report of Andrew Elliot of New York, October 4–5, 1780, in
The Spirit of Seventy-Six
, 752.
42
“Major John Andre Trial: 1780,” Notable Trials and Court Cases—1637 to 1832, Law Library—American Law and Legal Information,
http://law.jrank.org
.
“Major John Andre Trial: 1780,” Notable Trials and Court Cases—1637 to 1832, Law Library—American Law and Legal Information,
http://law.jrank.org
.
43
Smith,
An Authentic Narrative
, 21.
Smith,
An Authentic Narrative
, 21.
44
Ibid.
Ibid.
45
Ibid., 26.
Ibid., 26.
46
Ibid.
Ibid.
47
Ibid., 25.
Ibid., 25.
48
Ibid.
Chapter 24: Commissions & Courts-MartialIbid.
1
There is evidence that these three men were actually mere highway robbers who were honored as militiamen after the fact as a reward for catching André.
There is evidence that these three men were actually mere highway robbers who were honored as militiamen after the fact as a reward for catching André.
2
Smith,
An Authentic Narrative,
48.
Smith,
An Authentic Narrative,
48.
3
Ibid., 49.
Ibid., 49.
4
Ibid.
Ibid.
5
Alexander Hamilton to John Laurens, October 15, 1780, in
The Papers of Alexander Hamilton
, ed. Harold C. Syrett et al. (New York: Columbia University Press, 1961–1987), 2:467.
Alexander Hamilton to John Laurens, October 15, 1780, in
The Papers of Alexander Hamilton
, ed. Harold C. Syrett et al. (New York: Columbia University Press, 1961–1987), 2:467.
6
Smith,
An Authentic Narrative
, 46.
Smith,
An Authentic Narrative
, 46.
7
Intelligence Report of Andrew Elliot of New York, October 4–5, 1780.
Intelligence Report of Andrew Elliot of New York, October 4–5, 1780.
8
Ibid.
Ibid.
9
Alexander Hamilton to Elizabeth Schuyler, September 25, 1780, in
The Papers of Alexander Hamilton
, 2:441.
Alexander Hamilton to Elizabeth Schuyler, September 25, 1780, in
The Papers of Alexander Hamilton
, 2:441.
10
Chernow,
Washington: A Life
, 383–84, provides a good description of this scene.
Chernow,
Washington: A Life
, 383–84, provides a good description of this scene.
11
General Anthony Wayne to H. A. Sheel, October 2, 1780, in
The Spirit of Seventy-Six
, 753.
General Anthony Wayne to H. A. Sheel, October 2, 1780, in
The Spirit of Seventy-Six
, 753.
12
Smith,
An Authentic Narrative
, 31.
Smith,
An Authentic Narrative
, 31.
13
Ibid., 32.
Ibid., 32.
14
Although Part V focuses on Washington’s treatment of Americans, I include the description of Smith’s treatment in Part IV to illustrate the difference between his and André’s fate.
Although Part V focuses on Washington’s treatment of Americans, I include the description of Smith’s treatment in Part IV to illustrate the difference between his and André’s fate.
15
David Glazier, “Precedents Lost: The Neglected History of the Military Commission,”
Virginia Journal of International Law
46 (2005): 20. Professor Glazier provides an excellent discussion of the André affair.
David Glazier, “Precedents Lost: The Neglected History of the Military Commission,”
Virginia Journal of International Law
46 (2005): 20. Professor Glazier provides an excellent discussion of the André affair.
16
Resolution of the Continental Congress, August 21, 1776, in
Journals of the Continental Congress
, 5:693.
Resolution of the Continental Congress, August 21, 1776, in
Journals of the Continental Congress
, 5:693.
17
Washington was fully cognizant of this resolution, as evidenced by his letter to members of Congress seeking clarification on it. George Washington to Continental Congress Committee to Inquire into the State of the Army, July 19, 1777, in
The Papers of George Washington, Revolutionary War Series
, 10:332–37. “Written after the new Articles of War were adopted in September 1776, it confirms Washington’s understanding that the resolution on spies was not superseded by the new law.” Glazier, “Precedents Lost,” 8n97.
Washington was fully cognizant of this resolution, as evidenced by his letter to members of Congress seeking clarification on it. George Washington to Continental Congress Committee to Inquire into the State of the Army, July 19, 1777, in
The Papers of George Washington, Revolutionary War Series
, 10:332–37. “Written after the new Articles of War were adopted in September 1776, it confirms Washington’s understanding that the resolution on spies was not superseded by the new law.” Glazier, “Precedents Lost,” 8n97.
18
Smith,
An Authentic Narrative
, 131.
Smith,
An Authentic Narrative
, 131.
19
Major Christopher W. Behan, “Don’t Tug on Superman’s Cape: In Defense of Convening Authority Selection and Appointment of Court-Martial Panel Members,”
Military Law Review
176 (2003): 209.
Major Christopher W. Behan, “Don’t Tug on Superman’s Cape: In Defense of Convening Authority Selection and Appointment of Court-Martial Panel Members,”
Military Law Review
176 (2003): 209.
20
Ibid.
Ibid.
21
American Articles of War of 1776, as cited in ibid., 209n118.
American Articles of War of 1776, as cited in ibid., 209n118.
22
Journals of the Continental Congress
, 15:1277–78.
Journals of the Continental Congress
, 15:1277–78.
23
Hamdan v. Rumsfeld
, 126 S. Ct. 2749, 2839n15 (2006).
Hamdan v. Rumsfeld
, 126 S. Ct. 2749, 2839n15 (2006).
24
Richard J. Wilson, “Military Commissions in Guantánamo Bay: Giving ‘Full and Fair Trial’ a Bad Name,”
Gonzaga Journal of International Law
10 (2007): 65.
Richard J. Wilson, “Military Commissions in Guantánamo Bay: Giving ‘Full and Fair Trial’ a Bad Name,”
Gonzaga Journal of International Law
10 (2007): 65.
25
William Winthrop,
Military Law and Precedents
(1886), 1:731.
William Winthrop,
Military Law and Precedents
(1886), 1:731.
26
United Nations War Crimes Commission,
Law Reports of Trials of War Criminals
, 1 (1997), 116–17.
United Nations War Crimes Commission,
Law Reports of Trials of War Criminals
, 1 (1997), 116–17.
27
Captain Brian C. Baldrate, “The Supreme Court’s Role in Defining the Jurisdiction of Military Tribunals: A Study, Critique, and Proposal for
Hamdan v. Rumsfeld
,”
Military Law Review
186 (Winter 2005): 11.
Captain Brian C. Baldrate, “The Supreme Court’s Role in Defining the Jurisdiction of Military Tribunals: A Study, Critique, and Proposal for
Hamdan v. Rumsfeld
,”
Military Law Review
186 (Winter 2005): 11.
28
Hamdan v. Rumsfeld
, 126 S. Ct. at 2749 (quoting W. Birkhimer,
Military Government and Martial Law
, 3rd ed. (1914), 537–38).
Hamdan v. Rumsfeld
, 126 S. Ct. at 2749 (quoting W. Birkhimer,
Military Government and Martial Law
, 3rd ed. (1914), 537–38).
29
Alexander Hamilton to William Livingston, April 21, 1777, in
The Papers of Alexander Hamilton
, 1:235.
Alexander Hamilton to William Livingston, April 21, 1777, in
The Papers of Alexander Hamilton
, 1:235.
30
Glazier, “Precedents Lost,” 22.
Glazier, “Precedents Lost,” 22.
31
Washington to Jonathan Trumbull, April 21, 1777, in
The Papers of George Washington, Revolutionary War Series
, 9:232.
Washington to Jonathan Trumbull, April 21, 1777, in
The Papers of George Washington, Revolutionary War Series
, 9:232.
32
Hamilton to Livingston, April 21, 1777.
Hamilton to Livingston, April 21, 1777.
33
Christopher A. Chrisman, “Article III Goes to War: A Case for a Separate Federal Circuit for Enemy Combatant Habeas Cases,”
Journal of Law and Politics
21 (2005): 40.
Christopher A. Chrisman, “Article III Goes to War: A Case for a Separate Federal Circuit for Enemy Combatant Habeas Cases,”
Journal of Law and Politics
21 (2005): 40.
34
J. V. Capua, “The Early History of Martial Law in England from the Fourteenth Century to the Petition of Right,”
Cambridge Law Journal
36 no. 1 (1977): 152.
J. V. Capua, “The Early History of Martial Law in England from the Fourteenth Century to the Petition of Right,”
Cambridge Law Journal
36 no. 1 (1977): 152.
35
Ibid., 153.
Ibid., 153.
36
Chrisman, “Article III Goes to War,” 40.
Chrisman, “Article III Goes to War,” 40.
37
Washington to Brigadier General Preudhomme de Borre, August 3, 1777, in
The Papers of George Washington, Revolutionary War Series
, 10:495.
Washington to Brigadier General Preudhomme de Borre, August 3, 1777, in
The Papers of George Washington, Revolutionary War Series
, 10:495.
38
John Ross successfully represented “Loyalists prosecuted by [Congressman Joseph] Reed in the state courts.” Willard Sterne Randall,
Benedict Arnold: Patriot and Traitor
(New York: Morrow, 1990), 425–31.
John Ross successfully represented “Loyalists prosecuted by [Congressman Joseph] Reed in the state courts.” Willard Sterne Randall,
Benedict Arnold: Patriot and Traitor
(New York: Morrow, 1990), 425–31.
39
Washington to Brigadier General Thomas Mifflin, February 14, 1777, in
The Papers of George Washington, Revolutionary War Series
, 8:337.
Washington to Brigadier General Thomas Mifflin, February 14, 1777, in
The Papers of George Washington, Revolutionary War Series
, 8:337.
40
Hence Washington’s fixation on whether “a person who belongs to any of the United States of America . . . can be tried . . . and punished as a spy.” Washington to Continental Congress Committee to Inquire into the State of the Army, July 19, 1777.
Hence Washington’s fixation on whether “a person who belongs to any of the United States of America . . . can be tried . . . and punished as a spy.” Washington to Continental Congress Committee to Inquire into the State of the Army, July 19, 1777.
41
Washington to Mifflin, February 14, 1777.
Chapter 25: American Military JusticeWashington to Mifflin, February 14, 1777.
1
Smith,
An Authentic Narrative
, 63.
Smith,
An Authentic Narrative
, 63.
2
A. Wigfall Green, “The Military Commission,”
American Journal of International Law
42 (1946): 833.
A. Wigfall Green, “The Military Commission,”
American Journal of International Law
42 (1946): 833.
3
Smith,
An Authentic Narrative
, 130.
Smith,
An Authentic Narrative
, 130.
4
Ibid., 132.
Ibid., 132.
5
Ibid., 73.
Ibid., 73.
6
Ibid., 64.
Ibid., 64.
7
Marquis de Lafayette, General Knox, and Colonels Harrison and Hamilton all gave (somewhat conflicting) accounts of Smith’s involvement in the André affair. Next, the testimony of two boatmen, Samuel and Joseph Colquhoun, corroborated Smith’s account. Despite “disgraceful means that were used to impeach the integrity of the eldest Samuel,” the two men “seemed to have much weight with the court-martial.” Finally, two militiamen testified to finding a paper on André that listed Smith’s name, to which Smith did not object since “no man was bound to say that legally which might condemn himself.” Ibid., 137.
Marquis de Lafayette, General Knox, and Colonels Harrison and Hamilton all gave (somewhat conflicting) accounts of Smith’s involvement in the André affair. Next, the testimony of two boatmen, Samuel and Joseph Colquhoun, corroborated Smith’s account. Despite “disgraceful means that were used to impeach the integrity of the eldest Samuel,” the two men “seemed to have much weight with the court-martial.” Finally, two militiamen testified to finding a paper on André that listed Smith’s name, to which Smith did not object since “no man was bound to say that legally which might condemn himself.” Ibid., 137.
8
Ibid.
Ibid.
9
Ibid.
Ibid.
10
Ibid., 138.
Ibid., 138.
11
Jared Sparks,
The Life and Treason of Benedict Arnold
(New York: Harper & Bros., 1848), 197.
Jared Sparks,
The Life and Treason of Benedict Arnold
(New York: Harper & Bros., 1848), 197.
12
Smith,
An Authentic Narrative
, 139.
Smith,
An Authentic Narrative
, 139.
13
John D. Lawson,
American State Trials
(1916), 7:487.
John D. Lawson,
American State Trials
(1916), 7:487.
14
Smith,
An Authentic Narrative
, 207.
Smith,
An Authentic Narrative
, 207.
15
Ibid., 206.
Ibid., 206.
16
See Washington to George Clinton, October 29, 1780, in
The Writings of George Washington
, 20:262.
See Washington to George Clinton, October 29, 1780, in
The Writings of George Washington
, 20:262.
17
Smith,
An Authentic Narrative
, 64.
Smith,
An Authentic Narrative
, 64.
18
Major Henry Lee, “Capture of Major André,”
Pennsylvania Magazine of History and Biography
4 (1880), 64.
Major Henry Lee, “Capture of Major André,”
Pennsylvania Magazine of History and Biography
4 (1880), 64.
19
Washington to Sir Henry Clinton, September 30, 1780, in
The Writings of George Washington
, 20:103 (emphasis added).
Washington to Sir Henry Clinton, September 30, 1780, in
The Writings of George Washington
, 20:103 (emphasis added).
20
Washington to a Board of General Officers, June 2, 1778, in
The Papers of George Washington, Revolutionary War Series
, 15:296.
Washington to a Board of General Officers, June 2, 1778, in
The Papers of George Washington, Revolutionary War Series
, 15:296.
21
Smith,
An Authentic Narrative
, 63.
Smith,
An Authentic Narrative
, 63.
22
This tribunal was not even a “trial,” per se. “Although Washington himself at least once referred to André as having been ‘tried,’ the Board was an advisory panel, not a ‘court’ that legally determined guilt or imposed a sentence.” David Glazier, “Precedents Lost: The Neglected History of the Military Commission,”
Virginia Journal of International Law
46 (2005): 19.
This tribunal was not even a “trial,” per se. “Although Washington himself at least once referred to André as having been ‘tried,’ the Board was an advisory panel, not a ‘court’ that legally determined guilt or imposed a sentence.” David Glazier, “Precedents Lost: The Neglected History of the Military Commission,”
Virginia Journal of International Law
46 (2005): 19.
23
William Winthrop,
Military Law and Precedents
(1886), 1:731.
William Winthrop,
Military Law and Precedents
(1886), 1:731.
24
General George Washington’s Orders, September 29, 1780, Early American Imprints, no. 30012.
General George Washington’s Orders, September 29, 1780, Early American Imprints, no. 30012.
25
Jonathan Turley, “Tribunals and Tribulations: The Antithetical Elements of Military Governance in a Madisonian Democracy,”
George Washington Law Review
70 (2002): 649.
Jonathan Turley, “Tribunals and Tribulations: The Antithetical Elements of Military Governance in a Madisonian Democracy,”
George Washington Law Review
70 (2002): 649.
26
Smith,
An Authentic Narrative
, 92.
Smith,
An Authentic Narrative
, 92.
27
General George Washington’s Orders, September 29, 1780.
General George Washington’s Orders, September 29, 1780.
28
Smith,
An Authentic Narrative
, 92.
Smith,
An Authentic Narrative
, 92.
29
Were this in a court-martial proceeding during the present day, virtually all of the government’s case would likely constitute a violation of Rule 801 of the Federal Rules of Evidence.
Were this in a court-martial proceeding during the present day, virtually all of the government’s case would likely constitute a violation of Rule 801 of the Federal Rules of Evidence.
30
Smith,
An Authentic Narrative
, 99.
Smith,
An Authentic Narrative
, 99.
31
Were this in a court-martial proceeding during the present day, this would likely constitute a violation of the confrontation clause of the Sixth Amendment.
Were this in a court-martial proceeding during the present day, this would likely constitute a violation of the confrontation clause of the Sixth Amendment.
32
Smith,
An Authentic Narrative
, 99.
Smith,
An Authentic Narrative
, 99.
33
Ibid., 152.
Ibid., 152.
34
Ibid., 92.
Ibid., 92.
35
Ibid., 96.
Ibid., 96.
36
“Major John Andre Trial (1780),” in
Great American Trials
, ed. Edward W. Knappman (Detroit: Gale Research, 1994), 75.
“Major John Andre Trial (1780),” in
Great American Trials
, ed. Edward W. Knappman (Detroit: Gale Research, 1994), 75.
37
Smith,
An Authentic Narrative
, 53–54.
Smith,
An Authentic Narrative
, 53–54.
38
Ibid., 99.
Ibid., 99.
39
Ibid., 53.
Ibid., 53.
40
Ibid.
Ibid.
41
Ibid., 55.
Ibid., 55.
42
Ibid., 107.
Ibid., 107.
43
Glazier, “Precedents Lost,” 21. Glazier writes, “Washington handled André’s case more summarily than the actual court-martial that Congress had called for.”
Glazier, “Precedents Lost,” 21. Glazier writes, “Washington handled André’s case more summarily than the actual court-martial that Congress had called for.”
44
Smith,
An Authentic Narrative
, 89.
Smith,
An Authentic Narrative
, 89.
45
Washington to John Laurens, October 4, 1780, in
The Writings of George Washington
, ed. Worthington C. Ford (New York and London: G. P. Putnam’s Sons, 1890), 8:494.
Washington to John Laurens, October 4, 1780, in
The Writings of George Washington
, ed. Worthington C. Ford (New York and London: G. P. Putnam’s Sons, 1890), 8:494.
46
Joseph Dennie and Asbury Dickins,
The Port Folio
(1809), 509.
Joseph Dennie and Asbury Dickins,
The Port Folio
(1809), 509.
47
Washington to the President of Congress, October 7, 1789, in
The Writings of George Washington
(ed. Fitzpatrick), 20:131.
Washington to the President of Congress, October 7, 1789, in
The Writings of George Washington
(ed. Fitzpatrick), 20:131.
48
Smith,
An Authentic Narrative
, 96.
Smith,
An Authentic Narrative
, 96.
49
Major Henry Lee, “Capture of Major André,”
Pennsylvania Magazine of History and Biography
4 (1880), 64.
Major Henry Lee, “Capture of Major André,”
Pennsylvania Magazine of History and Biography
4 (1880), 64.
50
Winthrop Sargent,
The Life and Career of Major John André
(Boston, 1861), 304.
Winthrop Sargent,
The Life and Career of Major John André
(Boston, 1861), 304.
51
Smith,
An Authentic Narrative,
97–98.
Smith,
An Authentic Narrative,
97–98.
52
“Loan Exhibition at Tappan, NY,”
The Churchman
38 (August 10, 1878), 14.
“Loan Exhibition at Tappan, NY,”
The Churchman
38 (August 10, 1878), 14.
53
Ibid.
Ibid.
54
Sargent,
The Life and Career of Major John André
, 304.
Sargent,
The Life and Career of Major John André
, 304.
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