|Collection||Huntington Library: James McHenry Papers|
|Date||November 20, 1796|
|Author Name||Charles Lee (primary) Location: Philadelphia|
|Recipient Name||James McHenry (primary) Location: Philadelphia|
|Summary||Attorney General Lee writes to McHenry regarding his opinion of a court martial for General Wayne, based on charges brought forth by General Wilkinson. He discusses that the President, as Commander in Chief of the army, has the right to order a court martial upon an inferior officer. It is also within his discretion to determine whether a court of enquiry shall be instituted previous to his court martial. The court of enquiry may be ordered without the consent of the accused. The President may also take command of the army from General Wayne, and commit it to another. The accused may also request a court of enquiry. The court shall proceed according to the 25th, 26th, and 27th articles of war drafted in 1786, and when finished are to be transmitted to the president, who will then determine whether or not a court martial shall be ordered.|
|Document Format||Autograph Letter Signed|
|Document Notes||[not available]|
|Content Notes||[not available]|
|Related Persons/Groups||James McHenry; Charles Lee; General Anthony Wayne; General James Wilkinson; President of the United States; ;|
|Related Places||Philadelphia; Western Country; ;|
|Keywords||court martial; court of enquiry; charges; articles of war; ;|
|Key Phrases||[not available]|
|Transcription [Note: Transcriptions are works in progress and maybe partial. Please help us correct any errors or omissions by signing up for a transcription account.]||Philadelphia 20th November 1796
As the charges exhibited against General Wayne by General Wilkenson have not been communicated to me, I have supposed they were not xxxx to be known to enable me to form an opinion relative to the xxxx xxxx xxxx to be xxxx to do justice to the xxxx, the accused and accuser." I have taken a general view of this subject and the following is the opinion which I have formed.
The President being by the constitution the commander in chief of the army of the United States xxxx all the xxx belonging to that office; one of which is to order a court martial upon any inferior officer whenever it shall appear to him xxxx and xxxx. General Wayne is considered in the light of an inferior officer though commander in chief of the american forces in the western country and may be subjected to a trial before a court martial, to be ordered by the President and it is within his discretion to determine whether a court of inquiry shall be instituted xxxx to the court martial or not.
If a previous court of inquiry is deemed exxxx
it may be ordered in my opinion without the consent of the accused, as the restriction in the 26th article of war xxxx 31st May 1786 is not applicable in its reason to the President of the United States who may lawfully whenever he xxxcause, take the command of the army from Gen. Wayne and commit it to another; and xxxx he may be the better enabled to exercise this defexxxtionary power, he might have authority to order a court of enquiry even without the consent of the officer, whose conduct is intended to be investigated.
But if this opinion is doubted, it will certainly be xxxx of the reach of exception, for the accused to xxxx a court of enquiry for which xxxx xxxx notice should be given to him of the charges xxxx xxxx xxxx, that it may be in his power to solicit a court of enquiry; and if this is not requested by him, a court martial should be ordered without any further intermediate enquiry.
If a court of enquiry shall be ordered, whether with or without the consent of the accused, the proceedings should be according to the xxxx forms? and in pursuance of the 25th 26th & 27th articles of war radified? in 1786 and when finished are to be transmitted
to the President of the United States who will then determine whether or not a court martial shall be ordered.
I am very respectfully [Sir?] your most obedient humble servant
To the Secretary of War