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A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates, 1774-1875
Journals of the Continental Congress --TUESDAY, MARCH 21, 1786.
Congress assembled. Present, as yesterday.1
[Note 1: 1 On this day, according to Committee Book No. 190, Mr. [Charles] Pinckney, Mr. [Rufus] King, Mr. [James] Monroe, Mr. [Stephen Mix] Mitchell and Mr. [Nathaniel] Gorham were appointed "To prepare and report an Ordinance for the Regulation of trade with the Indians." This committee was discharged June 6.]
War Office, March 20th., 1786.
The Secretary of the United States for the department of war to whom was referred the memorial of Captain Daniel Baldwin, Reports,
That it appears from several papers accompanying the petition that Brigadier General Dayton and Col. Ogden were commissioned by his Excellency the late Commander in Chief to employ suitable persons to obtain intelligence from within the enemy's lines.
That in consequence of this commission, they employed Capt. Daniel Baldwin, and stationed him at Newark in order to receive and forward, any information which he might obtain.
That he industriously and faithfully executed the trust reposed in him, from July, 1781, to January, 1783. That during the said period, he not only expended considerable sums of his own money, but he was at the charge of subsisting himself servant and horse, for which he has never been compensated.
That Capt. Baldwin has exhibited an account, wherein he states the expences of himself, servant, and horse to have amounted to 473 22/90 dollars; and his actual disbursements for public service at 170 30/90 dollars; the whole being 643 52/90 dollars. Certificates and receipts are produced for 121 dollars of the sums expended for public service.
Besides the above sums a general charge is made, for services rendered during the above period, but without any sum being annexed.
On this statement your Secretary observes, that Capt. Baldwin by his situation and conduct on the lines, was usefully employed in obtaining the earliest information of the State of the enemy and their designs.
That after having lost his leg, in the service of his country, his zeal still prompted him to continue his endeavours to promote its interests.
That it appears equitable, that he should be reimbursed the actual advances made for the public service, and that a further sum should
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be advanced him on account of his expences; on this principle the following resolve is submitted.
Resolved, That the sum ofbe paid, by the board of treasury, to the late Captain Daniel Baldwin, to reimburse him his expences and advances for public service, from July, 1781, to January, 1783.
All of which is submitted to Congress.
H. Knox.1
[Note 1: 1 This report is in the Papers of the Continental Congress, No. 151, folio 149. According to indorsement it was read March 21 and referred the Board of Treasury to report. According to Committee Book No. 190 the Board reported April 24. See ante, January 26.]
The Secretary of war to whom was referred certain letters from Major John Palsgrave Wyllys to the said Secretary, Reports,
That it appears by a letter of Major John Palsgrave Wyllys to the subscriber dated Fort Mcintosh 23 January, 1786, "That the frequent desertions at that Fort undoubtedly required some immediate remedy. That in his opinion capital punishment is absolutely necessary for that purpose. That he was so far convinced of its utility in the present instance that he had ventured to approve of the sentence of a court martial. That he sincerely wishes that the necessity of his situation may not render it his duty to put the sentence into execution before any orders can arrive from the War Office should that unhappily be the case (and nothing but that can induce him to deviate from the Articles of War) that necessity must justify him."
The court martial to which the above letter alludes was composed of five members, Captain John F. Hamtramck, president and the proceedings contain the following sentiments:
"The court after passing the sentences would wish to remind the commanding officer of the very great imposition the public have received from persons entering into their service with no other intention than to defraud them, that the number of sixty-nine men have deserted from the companies present since their recruiting command (as appears from the different returns) therefore think themselves fully justifiable in urging an immediate example."
In another letter from Major Wyllys to the subscriber dated Fort Mcintosh 13 February, 1786, He says "That two days after his last of the 23d. January notwithstanding the proceedings of the court martial were published and the prisoners were in irons before their eyes, three men of Captain Strong's company deserted. A party was
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sent after them; after a long pursuit they were taken and brought back to the garrison. He ordered them immediately to be put to death, which was done. No desertions have happened since & he thinks this instance of severity, will probably preclude the necessity of executing the deserters now in confinement. He is fully convinced that nothing but such exemplary punishment could produce the desired effect and he hopes his conduct in the affair merits the approbation of the subscriber."
On this statement made by Major Wyllys and the court martial your Secretary observes, That the existing articles of war for the government of the troops of the United States, are the only laws, by which all descriptions of men, composing said Troops, are to be tried, and adjudged for military crimes.
That the said articles direct, that all capital crimes, shall be tried by a general court martial, consisting of thirteen members, and that the sentences thereof, extending to the loss of life, shall require the approbation of Congress, the commander in chief or general commanding in a separate department.
That by the articles of war, desertion is deemed a capital crime, and the punishment accordingly is death.
That the small number of troops at present in the service of the United States, and their dispersed situation, render it difficult, and almost impossible to form a general court martial, of the numbers required by the articles of war; therefore desertion and other capital crimes may be committed without its being practicable to inflict legally the highest degree of punishment provided by the laws.
That thus circumstanced a commanding officer cannot be responsible for the injuries the public may suffer from the commission of capital crimes by the troops under his command. He can only attempt to check the disorders by the milder species of punishment which the laws allow him to exercise, but he cannot inflict the capital punishment of death for desertion contrary to the established forms. To supersede the laws in this respect is to assume the sovereignty and annul the compact, which the public have made with their troops, that they shall be governed by the rules and articles of war. By the before recited letter from Major Wyllys of the 11th. of February it appears that he has in a manner unauthorized by the articles of war, ordered three soldiers of the troops of the United States to be put to death for desertion. The said letter does not state that any court martial was convened on the occasion; but it is hardly probable that
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he would have ventured on a measure of such importance unless the officers of the garrison examined formally or otherwise the circumstances respecting the desertion of the prisoners, or at least supported him with their opinion of the necessity of an immediate punishment.
Your secretary is of opinion that the dignity and justice of the United States require that a full investigation of all the circumstances attending this transaction should be made immediately in order that Congress may ground thereon their ultimate determination respecting the same.
He therefore submits to Congress the propriety of constituting a court of Inquiry to consist of two field officers and a captain of the regiment of the United States who were not of the garrison of fort Mcintosh at the time of the before mentioned event and that they report to the subscriber a state of facts only, in order to be presented to Congress.
That in the mean time and until the further order of Congress, That Major John Palsgrave Wyllys be suspended from all command in the troops of the United States.
He further observes that as the articles of war do not take cognizance of transactions of this nature it is his opinion a suspension would be more proper than an arrest as the latter would imply a trial by a court martial which cannot be the case.
Your secretary conceives that the ordinance of Congress establishing the powers and duty of the Secretary at War invests him with the efficient powers of commander in chief; therefore he shall direct the two men now in confinement under sentence of death at Fort Mcintosh be released, their trial having been illegal. If he is wrong in his opinion he humbly requests that Congress would have the goodness to rectify his error.
All of which is submitted to Congress.
H Knox.
War Office,
March 21st. 1786.1
[Note 1: 1 This report is in the Papers of the Continental Congress, No. 151, folio 153. According to indorsement it was read this day and "Thursday 23 assigned for Consideration." Acted on March 27.]
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