Military Law and Justice

[Larry Koschkee]

The focus of this thread is on the insubordinate actions of Colonel Henry Dodge and Brigadier General James D. Henry while under the command of Brigadier General Henry Atkinson and what consequences could they have faced under the military law of the period.

First a quote from Crawford Thayers work "Hunting A Shadow", page 141-142.... (July 09, 1832) "The situation of Dodge's troops was explained by John Ryan of Captain Clark's company from White Oak Springs: We only took scant rations for two or three days (for the cross-country trip from Fort Hamilton at today's Wiota, Wisconsin), expedting to get plenty when we got to Atkinson's command. In short we went altogether more prepared for a quick and active march than for comfort. When we finally got to Atkinson's command, tired and hungry (for our rations had all given out) instead of going to meet Blackhawk and his band, Atkinson ordered Dodge and his men to go to work at building fortifications.... General Dodge told him that he did not come there to build forts, that he had come to fight Indians, and flatly refused to employ his men in building forts, much to the indignation of Atkinson".

A second incident occured shortly after Dodge refused to be assigned to a work detail. Two of the brigades had wasted their supplies so Atkinson dispatched the brigades under Alexander and Henry along with Dodge's mounted volunteers to Fort Winnebago for rations. They carried written orders to "return to these headquarters without delay". They arrived at Fort Winnebago on the evening of July 11th.

While at Fort Winnebago, Dodge received a hot tip that Black Hawk's band was camped at the rapids of the Rock River, near the site of present-day Hustisford, WI. Dodge coerced Henry to march on to the rapids but Alexander refused to disobey Atkinson's orders to return without delay.

Dodge and Henry arrived at the rapids July 18th. No Black Hawk to be found only a few Winnebago were camped there. Dodge interrogated one of the Winnebago who reported that the Black Hawk band was camped on a lake about twenty miles north. Once again Dodge and Henry decided to ignore orders and prepared to continue their "wild goose chase" the following day.

Fortunately for Dodge and Henry the two adjutants from their commands, carrying a message to Atkinson stumbled across Black Hawk's trail and turned back to advise Dodge and Henry. Luck was on the side of Dodge and Henry again as after three days of pursuit they caught up with Black Hawk at the Wisconsin River.

These actions would have been indefensible in a court-martial proceeding under the Articles of War established in 1806. Why do think Dodge and Henry were not brought up on charges?

[Peter Shrake]

This is just a guess, and could perhaps reveal a bad lack of knowlege on my part, but... was Dodge or Henry actually mustered into federal service during the war? During the Winnebago uprising of 1827 Governor Edwards called out the Illinios State Militia, and comanded the forced under his authority but I do not believe they operated under federal command. Dodge commanded a mounted force in that campaingn as well and though he moved in conjunction with Atkinson up the Wisconsin River, linking with him near Muscoda I did not get the impression that he was federalized at that time. I am, however still doing research into the precice movements of the militia forces in 1827.

So as to your question Larry, I would pose a counter question, were they actually mustered into federal service or were they serving under the authority of the territory or other local governments. If they were operating under any other authority outside federal, they might not be subject to the military laws of the United States.

Pete

[Larry Koschkee]

Pete, thanks for your comments and question. I need everyone's help in sorting out the presence of a military jurisdiction over the militia during the BHW.

There must have been an official dotted line connecting the authority of General Henry Atkinson of the United States Army with the militia body. From my limited knowledge of military law this is my take on it.

The Constitution, though it does not contain the words "martial law," gives Congress power "to provide for calling forth the Militia to execute the Laws of the Union to suppress Insurrections"... The President "shall take Care that the Laws be faithfully executed."

The framers considered that state governments might be faced with rebellion and riots too formidable for their own militia, they provided in explicit language: "The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive against domestic Violence."

There are three principal acts of Congress, sections 331, 332, and 333 of Title 10 of the United States Code, which implement these provision of the Constitution.

My attention is drawn to section 331 that reads: "Whenever there is an insurrection in any State against its government; the President may, upon the request of its legislature or of its governor if the legislature cannot convened, call into Federal service such of the militia of the other States, in the number requested by that State, and use such of the armed forces as he considers necessary to suppress the insurrection."

Reasonable people can argue that Dodge and Henry were not subject to Federal Military Law until they went to Fort Winnebago for rations. However, while at the fort they accepted commissions in the newly organized battalion of United States Rangers that Congress authorized. President Andrew Jackson named Henry Dodge commanding officer as Major. Henry accepted a rank of Captain to serve under Dodge. Was this not a federal action?

Larry

[Robert Braun]

My readings indicate that the Militia Act of 1792 (amended in 1795) goverend the use and employment of the militia. Apparently, powers to affect the militia were vested with the President.

As a partial answer to Larry's question, the Militia Act provided for the following:

Sec. 5. And be it further enacted, That every officer, non-commissioned officer or private of the militia, who shall fail to obey the orders of the President of the United States in any of the cases before recited, shall forfeit a sum not exceeding one year's pay, and not less than one month's pay, to be determined and adjudged by a court martial; and such officers shall, moreover, be liable to be cashiered by sentence of a court martial: [words added in 1795:] and be incapacitated from holding a commission in the militia, for a term not exceeding twelve months, at the discretion of the said court;

I think if there's one thing that's clear from the Black Hawk War, it is that the lines of authority between federal vs. state. vs. territory were often blurred. I'm comfortable with asserting that the intention of the President and the Secretary of War was to empower Gen. Atkinson with overall command of the various militias in the region. That was easier said than done, because of the presence of the governor of Illinois directly in the field, and the colonel of the western Michigan Territory militia, the formidable Dodge.

Now let's add more complexity. True, most militia companies accepted muster into U. S. service... but only for thirty days, and subject to the provisions of the Militia Act. The rasing of the three so-called "militia armies" for Illinois speak to this length of service. Dodge's companies stayed in for much longer... either he simply "re-upped" them every thirty days, or indicated a longer term of enlistment with the volunteers accepted. If Atkinson messed with this delicate balance too much, he stood to lose the support of a significant militia presence in Crawford and Iowa Counties... thus subjecting half of the Mineral District to potential danger.

Unlike the conclusions drawn by many modern writers, Dodge's presence in the region was formidable; his reputation among the inhabitants of Crawford and Iowa County immense-- particularly after the triumph at 'Bloody Pond" (Pecatonica.) For Atkinson to win, he needed Dodge and his mounted squadron, particularly once the 'British Band" crossed the Turtle River.

Let's add more complexity. Atkinson had been fired by Jackson in late June. Atkinson learned of this at the Burt Village camp. Essentially, Atkinson was a "lame duck," and smarting under the lack of presidential confidence. I submit that Dodge forced his own hand regarding the construction of a fort at the confluence of the Rock and Bark River. What was Atkinson going to do?

Strictly speaking he could have brought Dodge up on charges... but to what end? The penalties under the Militia Act would have been to forfeit pay (I believe Dodge already was serving without pay) and loss of his militia rank for one year (he already held a major-general's rank from Missouri.) A court-martial would have enraged the Michigan Mounted Volunteers-- along with a healthy number of Illinois men-- the very men Atkinson needed to find and pursue Black Hawk. It would have decimated the already poor military situation faced by Atkinson and his campaign in mid July.

Militarily and jurisdictionally, Atkinson had the authority to charge Dodge. He probably even contemplated it. Dodge might have even offered counter-charges, to which Atkinson might be forced to publically disclose his embarrassing lack of progress in the campaign. But in the end, he didn't dare charge Dodge with Black Hawk still at large

And everyone... including Dodge... knew it.

This test of martial authority proved to be an important turn of events in the campaign--and in my mind at least as crucial a turning point as the battle at Pecatonica: As long as Dodge kept the mission to find and engage Black Hawk foremost, and demonstrated success in that pursuit, he could do pretty much what he wanted to do.

For me, this explains why Dodge pursued leads in trying to locate the British Band in the region east of Fort Winnebago. It explains why Henry and Dodge felt they could stretch and even exceed the authority initially conveyed upon them by Atkinson---so long as they discovered BH's trail. Once the express found the trail, Henry and Dodge re-opened communications with Atkinson, and commenced the pursuit of the British Band. I think both Henry and Dodge knew that, so long as they showed progress in the pursuit, (and didn't stretch their authority too much) Atkinson wouldn't pursue a course of military justice.

I will address the assertion that Dodge "coerced" General Henry into disobeying orders while at Fort Winnebago in a seperate thread.

[Larry Koschkee]

Bob, thanks for the thoughtful outline addressing the subject of the thread. You gave some good reasons why court-martial action may not have been pursued by General Atkinson.

I can not speak to Dodge's thought process behind his insubordinate actions, however one can draw their own conclusions that may suggest character flaws.

Larry

[Robert Braun]

Nice try... however, Dodge's achievements speak for themselves. Without him, Atkinson could not have either rescued his reputation, nor gained the expected goals of the campaign.

The facts show that Dodge, along with Gen. James Henry, won the conflict for Atkinson.

...and in spite of Atkinson.

[Mike Thorson]

All military actions involve luck - both good and bad. Aside from his adjutants discovering Black Hawk's trail I don't see any other incidents of good luck for Dodge. What i see is initiative and determination. That's how they caught up to Black Hawk before he could get everyone over the river and that's how he crushed the Kickapoo party at Pecatonica.

In peacetime Dodge's insubordination would have gotten him into trouble. Also, if Dodge would have been defeated by Black Hawk, his insubordination would have also been trouble for him. Military history is replete with maverick officers defying orders, taking initiative and winning the day. No General above them would dare bring them up on insubordination charges. I disagree that this was a Dodge "character flaw", I think it is quite the opposite.

[Robert Braun]

I found another Dodge character flaw. Looks like he disobeyed orders to punish a band of the Miamis during the War of 1812.

William Salter, in his biography of Henry Dodge, pp. 8-10 wrote:

Parts of several tribes belonging on the east side of the Mississippi had been removed at their own request to the valley of the Missouri, that they might be out of the reach of British influence; but they proved perfidious, and were a terror to the settlements. Among them was a band of Miamies (Piankeshaws), which General Harrison had sent west in order to detach them from the Prophet's band. They occupied the region above the mouth of the Osage river. General Dodge conducted an expedition to correct and punish them in the summer of 1814. It consisted of three companies of mounted men; one from Cape Girardeau, one from St. Louis, one from the Boone's Lick Settlement (Capt. Cooper), and sixty-six Shawnees, under Kishkalwa, a Shawnee chief. In making a rapid movement for the purpose of taking the Miamies by surprise, having the Missouri river to cross, the whole command dashed into the rushing stream, and swam their horses to the opposite shore. They found that the affrighted Indians had deserted their village and taken to the woods.

On being collected together the Indians gave up their arms, and begged to be spared their lives. Gen. Dodge accepted their surrender, and was making preparations to dispose of them by sending them out of the country. Mean while the "Boone's Lickers" had become infuriated against them from finding in their possession and about their persons articles of booty and spoil which they had taken from their kindred and neighbors whom they had plundered and murdered. Word came to the General that there was to be an indiscriminate massacre of all the Miamies. He immediately rode to the spot where they were collected, and found the frightened Indians upon their knees addressing a death-prayer to the Manitou, while the "Boone's Lickers" were in the act of levelling their guns at them. He quickly spurred his horse between the muzzles of the guns and the Indians, and placing the point of his sword to Capt. Cooper's bosom; told him and his men that they could not shoot except through the dead body of their commander. After some angry looks and hard words the Captain demanded his men to desist.

The Miamies expressed the warmest gratitude to Gen. Dodge for saving them from death. They were afterwards conducted in safety to St. Louis, and conveyed to their former home on the Wabash. Long afterwards in narrating the scene to his son Augustus, Gen. Dodge said that he felt more pride and gratification at having saved the lives of his Miami prisoners than he ever did at any triumph upon the field of battle. His magnanimity and firmness of character deeply impressed the friendly Shawnees and Delawares who were in his command.

Twenty years after this event, when stationed at Fort Leavenworth as colonel of U. S. Dragoons, he was visited by various Indian chiefs, among others by Kishkalwa, the Shawnee chief, who had been with his troops in 1814. As the chief came in he embraced and kissed Col. Dodge, to the surprise of his family who were present. Other spectators were deeply impressed as they saw the chief's esteem and affection for his old commander. More than seventy years after the event, a venerable pensioner who had emigrated to California referred with pride to his having been "a soldier under Henry Dodge in the war of 1812."

It would seem that those modern writers who protray Henry Dodge as an indian hater have neglected to note this incident.

Historians may now righly add to Dodge's litany of accomplishments: "The Saviour of the Miamis"

[Larry Koschkee]

This thread was started in an atempt to make some sense of the blurred lines of military command and authority in the BHW, also to explore military law and order of the time. Now I am listening to a choir singing the praises of a man who essentially spit in the face of his commanding officer.

I realize you have hitched your wagon to the "Hero of the Pecatonica." No problem with that, but you must realize the man does not come without a few warts and flaws. Dodge got away with disobeying orders. He was lucky or should I say fortunate?

The man had a problem following orders. That is a character flaw. He showed a willingness to exploit another man's (Atkinson) weakness for his personal gain. That is a character flaw. Must I go on?

With few exceptions, following orders, loyality and discipline is what wins the day in the military arena.

In additon, who cares what Dodge did back in 1812, we are talking about the 1832 year here, unless you want to start another thread about the stark contrast of "The Saviour of Miamis" and the "Great Annihilator of Sauk, Fox and Kickapoo."

[Mike Thorson]

Hmm, well the "Discussion" I thought was to try to answer "Why do think Dodge and Henry were not brought up on charges?" and I think that there were some well thought out responses as to why they weren't. This board may be the only place on the planet where a discussion of the Black Hawk War does not automatically fall into the same, tired old rut of "Black Hawk was great, Dodge was a greedy murderer", or something along those lines. Just becasue there are a few people who, after looking at the conflict in an unbiased way, conclude that Dodge wasn't a monster, and that Black Hawk wasn't perfect, doesn't mean they worship at the feet of an Injun Killer.

Bob gave a well thought out answer, which you acknowledged as such. But, then your question turned to "Why did Dodge do it?" to which you answered that it was due to a character flaw. Then the discussion turned to a response to that. So don't claim now that the discussion turned somewhere you didn't want it to, when you turned it that way on your own.

ALL opinions ARE welcome here.

I closed this thread earlier but it's now open again for discussion. Bombs away.

[Mike Thorson]

Any and all "lurkers" out there are encouraged to jump into this discussion if you want to. If you hesitate to register and participate because of the request that you use your real name you can register without doing so and I'll consider letting you use an anonymous name - BUT indescriminate bomb-throwing and obvious flame baiting will not be tolerated and you will be banned from the board if that happens.

But, I encourage you to go ahead and register with your real name. We won't bite, the water's fine.

[Robert Braun]

Thanks for your note, Larry. I must say that we examine all players in this conflict, warts, and all. I, for one, have not shrunk from offering comments supported by the historical record that are critical of Atkinson, Dodge, Henry, Na-pope, and Black Hawk himself. Your insinuation that I am engaged in unbridled "hero-worship" is without merit.

However, I will state that Dodge has become the perennial "whipping boy" of the pro-Black Hawk set... to the point that fabrication and outright distortion had been substituted for research, context, and reasonable debate. I will call a spade a shovel... and have already indicated in this thread and elsewhere that Dodge stretched his authority under Atkinson's original July orders to the very limit, and beyond.

Acknowledgement of the fact that Dodge's perspective was different than that of Atkinson, and that Dodge used his personality and charisma to great extent, does not diminish his accomplishments. The balance of total accomplishment must be weighed against real or perceived "flaws"--- just as Abraham Lincoln's accomplishments are not diminished by the fact that as a young Captain of militia, he was arrested for allowing his men to discharge firearms in camp; just as John Kennedy's accomplishments are not diminished by his deliberate failure to obey orders and naval protocols prior to the sinking of his PT-109.

The context of Dodge in relationship to his War of 1812 service is essential to understanding his nature, and his dispositions toward native people-- a disposition frequently maligned by writers who have no idea whatever about Dodge's early life, and how his experiences translated into how he prosecuted his campaigns against the British Band. This understanding is as essential as is an understanding of Black Hawk's War of 1812 service, and how it translated into his continued, unbridled hatred of the Americans.

There is no doubt in my mind that animosities and potential for conflict sown in the then-western United States and territories during the War of 1812 had no small part in the Indian conflicts in 1827, 1831, and 1832. Certainly, from a military perspective, the experiences of the War of 1812 heavily influenced commanders on both sides of the 1832 war.

Now that you have changed the tone and text of this thread, it is up to you to prove your utterly fantastic charge that Dodge was the "Great Annihilator of Sauk, Fox and Kickapoo."