Blood of Tyrants: George Washington & the Forging of the Presidency

by Logan Beirne

  6 The Spirit of Seventy-Six, 708.

  7 Philander D. Chase, “Friedrich Wilhelm von Steuben,” American National Biography (February 2000).

  8 Ibid.

  9 William Cullen Bryant and Sydney Howard Gay, Scribner’s Popular History of the United States (1879), 597.

  10 Qtd. in Walter Harold Wilkin, Some British Soldiers in America (London: Hugh Rees, Ltd., 1914), 258.

  11 Testimony of Lieutenant Colonel Richard Harrison, in The Spirit of Seventy-Six, 712.

  12 The Spirit of Seventy-Six, 708.

  13 Joseph Plumb Martin, A Narrative of a Revolutionary Soldier (New York: Signet Classics, 2001), 91–95.

  14 Ibid.

  15 Wilkin, Some British Soldiers in America, 260.

  16 Ibid.

  17 The Spirit of Seventy-Six, 710. This was a court-martial.

  18 Francis Vinton Greene, The Revolutionary War and the Military Policy of the United States (1911), 148.

  19 Qtd. from Colonel Laurens (aide to Washington), in Charles Lee and Edward Langworthy, The Life and Memoirs of the Late Major General Lee (1813), 49.

  20 The History of Dueling in America, PBS Special Feature, http://www.pbs.org/wgbh/amex/duel/sfeature/dueling.html.

  21 Chernow, Washington: A Life, 346.

  22 Benson John Lossing, “General Charles Lee: Traitor of the American Revolution,” in Our Country: Household History for All Readers, 2 (1877).

  23 Smith, An Authentic Narrative, 16.

  24 Flexner, The Traitor and the Spy, 226.

  25 Ibid., 234.

  26 Major Henry Lee, “Capture of Major André,” Pennsylvania Magazine of History and Biography 4 (1880), 61.

  27 Flexner, The Traitor and the Spy, 230.

  28 Martin, Benedict Arnold, Revolutionary Hero, 443.

  29 John Talbot, History of North America (1820), 1:338. This was a court-martial.

  30 Lee, “Capture of Major André.”

  31 Smith, An Authentic Narrative, 16.

  32 Ibid.

  33 Murphy, The Real Benedict Arnold, 191.

  34 Ibid.

  35 Washington to Joseph Reed, May 28, 1780, in The Writings of George Washington, 18:436.

  36 Isaac Q. Leake, Memoir of the Life and Times of General John Lamb (1857), 379.

  Chapter 23: Treason of the Blackest Dye

  1 Smith, An Authentic Narrative, 10.

  2 Polish General Tadeusz Kościuszko.

  3 Smith, An Authentic Narrative, 10.

  4 Thacher, Military Journal of the American Revolution, 215.

  5 Smith, An Authentic Narrative, 10.

  6 Diary of Tobias Lear, Private Secretary to Washington, October 23, 1786.

  7 Smith, An Authentic Narrative, 10.

  8 Orders of Nathanael Greene, September 26, 1780, qtd. in The Diary of the American Revolution, ed. Frank Moore (New York: Washington Square Press, 1967), 2:323.

  9 Benedict Arnold to John André, July 15, 1780, qtd. in Alex Storozynski, The Peasant Prince: Thaddeus Kosciuszko and the Age of Revolution (New York: Thomas Dunne Books, St. Martin’s, 2009), 85–92. The modern comparison comes from the MeasuringWorth Project’s average earning index. Many thanks to Samuel H. Williamson for his help on this point. Estimates vary widely, but this is just meant to provide an estimate for the modern reader.

  10 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.

  11 Smith, An Authentic Narrative, 20.

  12 Frank Bertangue Green, The History of Rockland County (1889), 94.

  13 Winthrop Sargent, The Life and Career of Major John André (Boston, 1861), 8.

  14 Smith, An Authentic Narrative, 9.

  15 Flexner, The Traitor and the Spy, 26.

  16 Letter from John André, October 19, 1769.

  17 Flexner, The Traitor and the Spy, 26.

  18 Smith, An Authentic Narrative, 21.

  19 Anna Seward, “Monody on Major Andre” (1817).

  20 Richard Lovell Edgeworth, Memoirs of Richard Lovell Edgeworth, Esq. (1821), 1:109.

  21 Flexner, The Traitor and the Spy, 25.

  22 Ibid., 28.

  23 Sargent, The Life and Career of Major John André, 39.

  24 John Davison Lawson, ed., American State Trials (1916), 6:465.

  25 “Major John Andre,” Revolutionary War 1777: People, Independence Hall Association, UShistory.org.

  26 Orders of Nathanael Greene, September 26, 1780.

  27 Benedict Arnold to George Clinton, Governor of New York, August 22, 1780, George Washington Papers, Manuscript Division, Library of Congress.

  28 Jim Murphy, The Real Benedict Arnold (New York: Clarion Books, 2007), 202.

  29 Benedict Arnold to George Clinton, Governor of New York, August 22, 1780.

  30 “Obstructed the Hudson,” New York Times, February 16, 1895.

  31 Robert McConnell Hatch, Major John André: A Gallant in Spy’s Clothing (Boston: Houghton Mifflin, 1986), 236.

  32 Sargent, The Life and Career of Major John André, 280.

  33 Major Henry Lee, “Capture of Major André,” Pennsylvania Magazine of History and Biography 4 (1880), 64.

  34 Smith, An Authentic Narrative, 15.

  35 Ibid.

  36 Flexner, The Traitor and the Spy, 363.

  37 Smith, An Authentic Narrative, 15.

  38 Jared Sparks, The Life and Treason of Benedict Arnold (New York: Harper & Bros., 1848), 198.

  39 Smith, An Authentic Narrative, 15.

  40 Ibid.

  41 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.

  43 Smith, An Authentic Narrative, 21.

  44 Ibid.

  45 Ibid., 26.

  46 Ibid.

  47 Ibid., 25.

  48 Ibid.

  Chapter 24: Commissions & Courts-Martial

  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.

  2 Smith, An Authentic Narrative, 48.

  3 Ibid., 49.

  4 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.

  6 Smith, An Authentic Narrative, 46.

  7 Intelligence Report of Andrew Elliot of New York, October 4–5, 1780.

  8 Ibid.

  9 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.

  11 General Anthony Wayne to H. A. Sheel, October 2, 1780, in The Spirit of Seventy-Six, 753.

  12 Smith, An Authentic Narrative, 31.

  13 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.

  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.

  16 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.

  18 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.

  20 Ibid.

  21 American Articles of War of 1776, as cited in ibid., 209n118.

  22 Journals of the Continental Congress, 15:1277–78.

  23 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.

  25 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.

  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.

  28 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.

  30 Glazier, “Precedents Lost,” 22.

  31 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.

  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.

  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.

  35 Ibid., 153.

  36 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.

  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.

  39 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.

  41 Washington to Mifflin, February 14, 1777.

  Chapter 25: American Military Justice

  1 Smith, An Authentic Narrative, 63.

  2 A. Wigfall Green, “The Military Commission,” American Journal of International Law 42 (1946): 833.

  3 Smith, An Authentic Narrative, 130.

  4 Ibid., 132.

  5 Ibid., 73.

  6 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.

  8 Ibid.

  9 Ibid.

  10 Ibid., 138.

  11 Jared Sparks, The Life and Treason of Benedict Arnold (New York: Harper & Bros., 1848), 197.

  12 Smith, An Authentic Narrative, 139.

  13 John D. Lawson, American State Trials (1916), 7:487.

  14 Smith, An Authentic Narrative, 207.

  15 Ibid., 206.

  16 See Washington to George Clinton, October 29, 1780, in The Writings of George Washington, 20:262.

  17 Smith, An Authentic Narrative, 64.

  18 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).

  20 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.

  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.

  23 William Winthrop, Military Law and Precedents (1886), 1:731.

  24 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.

  26 Smith, An Authentic Narrative, 92.

  27 General George Washington’s Orders, September 29, 1780.

  28 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.

  30 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.

  32 Smith, An Authentic Narrative, 99.

  33 Ibid., 152.

  34 Ibid., 92.

  35 Ibid., 96.

  36 “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.

  38 Ibid., 99.

  39 Ibid., 53.

  40 Ibid.

  41 Ibid., 55.

  42 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.”

  44 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.

  46 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.

  48 Smith, An Authentic Narrative, 96.

  49 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.

  51 Smith, An Authentic Narrative, 97–98.

  52 “Loan Exhibition at Tappan, NY,” The Churchman 38 (August 10, 1878), 14.

  53 Ibid.

  54 Sargent, The Life and Career of Major John André, 304.

  55 Smith, An Authentic Narrative, 167.

  56 Sinclair B. Ferguson, Deserted by God? (Grand Rapids: Baker Books, 1993), 87–88.

  57 Journals of the Continental Congress, November 3, 1780, 1009.

  58 Dennie and Dickins, The Port Folio, 509.

  59 John Marshall, The Life of George Washington, ed. Robert Faulkner and Paul Carrese (1838; Indianapolis: Liberty Fund, 2000), 5.

  60 Sargent, The Life and Career of Major John André, 403.

  61
Professor Glazier makes a good point when he cautions: “Any residual precedent from Washington’s actions must be considered in the context of the Constitution, which repudiates claims of continuing executive authority to ignore statutory enactments. The Supremacy Clause of the Constitution explicitly makes statutes and treaties ‘the supreme Law of the Land’ but makes no mention of customary international law. Also clearly on point is the constitutional commitment to Congress of the authority to ‘define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations.’ This clause gives the Congress, not the Executive, primary authority in the field. Taken together, these two clauses suggest that Washington’s handling of the André affair was mooted by the Constitution. Ironically, the resolution on spying was not; its language about ‘lurking as a spy’ remains recognizable in the UCMJ to this day.” David Glazier, “Precedents Lost,” 23.

  62 Journal of Major General Benjamin Lincoln, in Thacher, Military Journal of the American Revolution, 215.

  Part V: His Excellency’s Loyal Subjects

  1 Instructions to John Sullivan, May 31, 1779, in The Writings of George Washington, 15:190.

  2 Ibid.

  Chapter 26: Total Ruin

  1 Instructions to John Sullivan, May 31, 1779.

  2 Benson John Lossing, Our Country: A History of the United States from the Discovery of America to the Present Time (New York: Lossing History Co., 1905), 4:998.

  3 Ibid.

  4 Ibid.

  5 Thomas Campbell, “Gertrude of Wyoming,” in Gertrude of Wyoming; a Pennsylvanian Tale. And Other Poems (London: Longman, Hurst, Rees, & Orme, 1809), 59.

  6 Lossing, Our Country, 4:999

  7 Ibid.

  8 Ernest Alexander Cruikshank, The Story of Butler’s Rangers and the Settlement of Niagara (1893), 47.

  9 Ibid., 50.

  10 Lossing, Our Country, 4:999.

  11 Steve Adams, “NH: Years of Revolution,” Profiles Publications and the NH Bicentennial Commission (1976).

  12 Ibid.

  13 Washington to the President of Congress, June 17, 1776, in The Papers of George Washington, Revolutionary War Series, 5:21.

  14 Washington to John Sullivan, March 15, 1777, in The Writings of George Washington, 7:290. Steve Adams, “NH: Years of Revolution,” brought this statement to my attention.