Custer's Trials: A Life on the Frontier of a New America

by Stiles, T. J.

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  ON OCTOBER 5 THE TESTIMONY resumed with two final prosecution witnesses, Maj. Joel Elliott and 2nd Lt. Henry Jackson.108 On October 7 the defense began. Tom took the stand again and spoke of a dinner meeting between Custer and Sherman at Fort McPherson. Sherman had told Custer “that if he wished, he could go to Denver City, or he could go to hell if he wanted to. That he could go to any post he wanted to.” Other witnesses testified about the plague of desertions. Parsons introduced telegrams showing that Hancock had previously given orders to “kill or capture the deserters.”

  The last defense witness was Weir. He described how he had gone to Smith’s quarters and shook hands with Custer after his arrival at Fort Harker. Custer said he had to hurry or he would miss the 3 a.m. train to Fort Riley. Smith, then, clearly knew where Custer was going. As Weir accompanied Custer outside, Smith remarked, “Give my respects to the ladies.”109

  For the second time in his life, Custer prepared a closing statement for a court-martial. He, not Parsons, wrote it, and it was enormous—more than 8,000 words, composed in overstretched, artificially hifalutin sentences. For example, he tried to say, “Reasonable men can disagree,” with this sentence: “The mind of man is so diversely constituted that individuals governed by the same honorable motives, and laboring for the same generous ends”—and so on for thirty-five more words. His defense was plausible on some points, laughable on others, and turgid throughout. He was lucky that the court did not press fresh charges after Parsons read this enormity aloud on October 11.110

  When Parsons finished, Chandler stood and delivered his summary. It was less than half the length of Custer’s statement. It was direct in style, concisely reviewing the evidence, “applying it distinctly to the facts of the charge.”

  The court cleared the chamber for deliberations. They did not take long. Custer and Parsons were called back into the room in the wooden building in Fort Leavenworth to hear the verdict.111

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  *1 Benteen remains a divisive figure for biographers and historians. Given Benteen’s investment in his hatred of Custer, his reliability as a source is dubious. In these pages he will only be quoted or cited regarding matters of which he had firsthand knowledge, and where other sources substantiate his claims.

  Twelve

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  THE INDIAN KILLER

  WHEN CUSTER’S CASE REACHED the desk of Ulysses S. Grant, one of the greatest political crises in American history enveloped the commander of the army. He steered between two contending forces, each wanting him as an ally, even as he pursued his own agenda. Yet Grant still found time to review Custer’s court-martial—appropriately so, since the crisis and the case intertwined.

  In 1867, the Republican-controlled Congress battled President Andrew Johnson for control of the Reconstruction of the South. The struggle now centered on Congress’s determination to give all black men the vote, a fringe idea just two years before, at war’s end. “The astonishingly rapid evolution of Congressional attitudes that culminated in black suffrage,” explains Eric Foner, “arose both from the crisis created by the obstinacy of Johnson and the white South, and the determination of Radicals, blacks, and eventually Southern Unionists not to accept a Reconstruction program that stopped short of this demand.” It was a historic issue on the grandest scale. The daily political struggle, though, still came down to tactics. There Grant was the necessary man.1

  In March 1867, Congress passed the Tenure of Office Act, requiring the president to obtain Senate approval before removing any previously confirmed cabinet secretary. Republicans wanted to prevent Johnson from sabotaging the first Reconstruction Act, passed that same month, by firing Secretary of War Stanton and replacing him with a conservative. The Reconstruction Act put ten former Confederate states under military jurisdiction until they ratified new constitutions with universal manhood suffrage and ratified the Fourteenth Amendment. Congress put the army in charge because it was the only federal body capable of this huge task, and also because Republicans trusted both Stanton and Grant to execute the act as they intended.

  Johnson hated the Reconstruction Act, and believed the Tenure of Office Act was unconstitutional. In August 1867, between sessions of Congress, he suspended Stanton and named Grant as interim war secretary, believing him to be more pliable. It was not a direct confrontation with the Tenure of Office Act, as Congress could restore Stanton when it reconvened, but Johnson cunningly placed it in an awkward position by forcing it to remove Grant, a national hero and favorite among Republicans.2

  Grant tried to preserve the appearance of neutrality. He had agreed to go on the Swing Around the Circle, for example, yet had said nothing to endorse the president and left the tour before it was complete. He accepted the appointment to replace Stanton only on an interim basis, since that much was legal, but he refused to participate in a violation of the law.

  But Grant increasingly disagreed with the president over Reconstruction. He made that clear when Johnson decided to remove Sheridan from command of Louisiana and Texas. As noted previously, Sheridan condemned the New Orleans riot of July 30, 1866, as “an absolute massacre by the police.” After the Reconstruction Act passed, he fired the mayor, Louisiana’s attorney general, and a district judge. He denounced racial violence in Texas, too. He wrote in his annual report, “Over a white man killed by Indians on an extensive frontier the greatest excitement will take place, but over the killing of many freedmen in the settlements, nothing is done.” Johnson wanted him out of the South.

  Grant told the president it was “unmistakably the wish of the country” to keep Sheridan in place. Johnson ignored his advice and swapped Sheridan with the conservative Hancock. On September 12 Sheridan formally took charge of the Department of the Missouri.3

  Despite the intrigue, Grant’s work went on. Clerks and messengers continued to deliver reports, letters, and telegrams from departments, districts, and posts around the country, informing him of the molecular life of the military. Piece by piece, they revealed the army’s institutional opinion of Lt. Col. George Armstrong Custer.

  On August 22, 1867, Judge Advocate General Joseph Holt brought up Custer in a letter to Grant. The sixty-year-old Holt knew the Regular Army and its culture. He had served as President James Buchanan’s secretary of war, and was named to his current post by Lincoln. He wrote to Grant that 2nd Lt. Levant W. Barnhart had been convicted of forging Custer’s name on a claim for a horse, lost while on duty in Texas. Holt wanted leniency for Barnhart, who had thought that as a staff officer he was entitled to sign Custer’s name on the form. “It is thought that his education while with Gen. Custer may have easily blinded him to the gravity of the offence of which he is convicted, serious as it is.”

  Sherman wrote to Grant about Custer that same month. Hancock, he said, “is not satisfied with Custar [sic] who has not fulfilled our wishes.” Leading the best cavalry available, Custer “simply moved…from place to place” as the Indians evaded him. “On his arrival at Wallace instead of starting at once after the Cheyennes he came into Fort Riley to see his wife. Gen. Hancock reports to me that he has arrested him.”4

  These few daubs of paint portrayed a self-indulgent man, unserious about duty, convinced the rules did not apply to him. On November 8, the picture grew fuller and darker when Holt reported the verdict in Custer’s court-martial.

  On the first charge, absence without leave, the court found Custer guilty. On the second charge and its specifications—that he rendered his horses and men unfit for service, took two wagons for his own use, and neglected to look after the men shot at Downer’s Station or pursue their attackers—the court found Custer guilty, with no criminality attached to the matter of the wagons. On the additional charge and specifications—that he ordered a detachment to shoot dead a group of deserters, caused three men to be severely wounded, hauled these casualties in a wagon, refused them medical treatment, and caused the death of Pvt. Charles Johnson—the court found Custer guilty. It saw no crim
inality in the medical treatment question.

  The court sentenced Custer “to be suspended from rank and command for one year, and forfeit his pay proper for the same time,” Holt reported. The conviction was correct, he wrote. The sentence was an open question. Grant would have to settle it. Custer was guilty of “the crime of murder,” unless he was justified by “imperative necessity.” Murder lay outside of military law, Holt observed; it required a civil trial.

  Should Gen. Custer’s act be considered as an unwarrantable exercise of lawless power, the result of the habits of thought acquired while controlling in time of open war a large command, and when accustomed to the doing of those deeds of arbitrary energy that war sometimes necessitates, and not as justified by the peculiar and difficult circumstances under which this deed was committed, the sentence pronounced by the Court in this case is utterly inadequate, and measures should be at once taken for Gen. Custer’s trial before a court of competent jurisdiction. If on the other hand, it is believed to have been ordered to be done, in the exercise of a wise and conscientious discretion…the sentence as now recorded should be regarded as sufficiently rigorous.5

  Holt put Custer’s life in Grant’s hands. If Grant referred a murder case to a civilian court, Custer would face the death penalty. But the commanding general had more to consider than justice alone. There were the wishes of Custer’s new department commander, Sheridan. Grant trusted him more than any subordinate except Sherman. In a time of national crisis, a man feels the need to stand by his friends.

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  PARADES AT FORT LEAVENWORTH could be tense. Once in 1867, Col. William Hoffman derided the soldiers of the 10th Cavalry as “nigger troops” and told them to march farther away from his own 3rd Infantry. Col. Benjamin Grierson, commander of the 10th, angrily confronted Hoffman, and the two argued in front of the men.6

  When the troops assembled for dress parade on the evening of November 25, the tension was all Custer’s. It was announced to the gathering that General Grant had completed his review of the court-martial. He confirmed the conviction and sentence. He elected not to refer Custer to a civilian court to face murder charges, but did release his personal opinion in the matter. As the Leavenworth Bulletin reported, “Gen. Grant, in reviewing the case, declared that the decision of the Court Martial was altogether too lenient.” Morally if not legally, he implied, Custer was guilty of murder.7

  “There is considerable astonishment expressed at the result of the trial,” wrote the New York Times correspondent on the scene. He declared Custer content with the sentence. “Gen. Custer is anxious to have it stand, as it gives him a respite he has desired for a long time, not perhaps in this precise way.…It may be, too, that some of this wished-for leisure time will be devoted to the preparation of a work that will be decidedly interesting to those who have followed the fortunes of the General through his many campaigns.” If the writer’s prejudice were not obvious enough, he concluded,

  Gen. Custer is, to those who know him intimately, the very beau ideal of an American cavalry officer. He is a magnificent rider, fearlessly brave, a capital revolver shot, and without a single objectionable habit. He neither drinks, swears, nor uses tobacco in any form. His weakness, if he has one, is a fast horse, to get all the speed out of which there is no better man than the long-haired hero of the Shenandoah.8

  After two years of Custer’s racing from controversy to controversy—after his failure, trial, and conviction—there were still Americans who saw him as a romantic hero. It’s telling that the conservative New York Times published this tribute. Custer was its man.

  The Custers made a great show of equanimity. Armstrong wrote to a friend that he had asked Sheridan to refrain from lobbying for clemency “as I would not accept it.” He and Libbie would remain in Leavenworth until spring, he said, then go to Monroe to have fun. He looked forward to the presidential election in the fall of 1868. Living in Kansas had kept them out of society, forcing them to decline an invitation to the fashionable wedding of two members of New York’s patrician circle, Eva Lorillard, daughter of Pierre Lorillard III, and Lawrence Kip, formerly of Sheridan’s staff. No longer.9

  Inwardly the Custers seethed. Armstrong wrote privately that the evidence did not support the verdict; everyone told him his punishment was “unjustly severe.” Libbie called the trial “nothing but a plan of persecution toward Autie.” General Hancock, they believed, needed a scapegoat for his own failure. Custer also blamed Capt. Robert West, who had filed the most serious charge. He took great satisfaction in believing that West was “drinking himself to death,” and retaliated by filing his own charge against him for inebriation. But West was not done.10

  On January 3, 1868, Custer drove a buggy with Libbie and some guests from the fort into town, singing as they went, until they were stopped by two civilian officers. They arrested him for murder. Faced with the army’s inaction, West had filed his own charges.

  Despite everything, many in the regiment still liked and admired Custer. A dozen friends, including Weir, accompanied him to the judge’s office. He paid his bail, and they enjoyed an oyster supper before returning to the post. Custer hired an attorney, as did his codefendant, Lt. William W. Cooke. The judge heard now-familiar testimony about the desertions and shooting. On January 18 he dismissed the case.11

  Custer still fumed. He could never conceal his emotions, but seemed compelled to publicly perform his private flaws, driven to shout down the judgment of others. He had done so in private before; now he published his indignation to the world.

  On October 26, 1867, he mailed his third article for Turf, Field and Farm under the pseudonym Nomad. It appeared in the November 9, 1867, issue. However good Hancock was at battling “a civilized foe, his experience the past year on the Plains has shown him that in order to outwit or circumvent the wily red man he has much to learn,” he wrote. The same could be said of Custer; indeed, the article provided a perfect example of psychological projection. “Indian warfare is a distinct and separate species of hostilities,” he explained, “requiring different talent, different materiel, as well as personnel, and different rules of conduct.” He depicted Hancock’s strategic error in burning the village on Pawnee Fork as a personal moral failing. When the Cheyennes and Lakotas fled, “the commander of Uncle Sam’s forces was enraged,” he wrote. “Was his favorite plan to be thus thwarted? Were the laurels he was to reap from his Indian policy to prove a crown of thorns?”12

  He finished two more pieces for the magazine on November 11 and December 15, published on November 23, 1867, and January 4, 1868, respectively. He defended his failure but also described his education as a plainsman, tutored by Indian and civilian scouts. “No cavalry in the world, marching even in the lightest manner possible…can overtake or outmarch the Western Indian, when the latter is disposed to prevent it,” he wrote. The Indian pony was an “insignificant specimen of the equine species,” but it could subsist on grazing alone, whereas “the white man’s horse” needed grain. There was truth in these observations, which would influence his thinking in years to come.13

  If he had left it there, all might have been well. But as he wrote the last piece there came the public reading of his sentence. It put him in a dark frame of mind. Then he heard from Alvred B. Nettleton, a Civil War subordinate and editor of the Sandusky (Ohio) Register, asking about another newspaper’s report on his court-martial.

  Nettleton published Custer’s reply on December 26, 1867. In legalistic detail, Custer defended himself against the charges. “Most officers,” he claimed, believed that the evidence would “wholly exculpate me.” The problem was “the composition of the Court.” He presumed that Hancock had personally selected his judges. He complained that four of them were his inferior in rank, three had never commanded troops in the field, and three came from Hancock’s staff. He suggested that some on the court were “jealous” because he had been promoted over older men. And he called West “a confirmed inebriate, a victim of delirium tremens, and one w
ho is now resting under infamous charges” (preferred by Custer himself, of course). There was much more.

  The New York Tribune announced the letter’s publication. The New York Times excerpted it at length, along with Nettleton’s editorial comment that Custer’s “temporary political error could not blind us to his great qualities as a soldier, or dim his well-earned fame,” a hint of how his public conduct in 1866 had set him against the large majority of Union veterans. The army officially took offense.14

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  JUDGE ADVOCATE GENERAL HOLT SENT the Sandusky Register clipping to Grant on February 14, 1868. He included “the joint protest against said publication of all the members of the court which sentenced Gen. Custer, forwarded by Bvt. Major General Hoffman.” Holt wrote that he agreed with them.

  Genl. Custer, in the manner of his thus appealing from his sentence to the public, in his misrepresentations in regard to the evidence in his case, in his attacks upon the impartiality and justice of the members of the court, in his criticisms of the course pursued by Genl. Hancock, and in the language with which he assails one of the officers who preferred charges against him, must be deemed to have been at least guilty of conduct to the prejudice of good order and military discipline.

  Custer had challenged the legitimacy of the institutional processes of the Regular Army. To the military profession it was an unforgivable crime. Holt drew up specifications carefully, as some of Custer’s language had been “cautious and indirect,” and submitted them for review. If Grant approved, Custer would face another court-martial, potentially more destructive to his career than the first two.15