To James McHenry
New York February 23 1799
I have maturely considered the questions raised by your letter of the 21 of January with the aid of such lights, as memory or inquiry could furnish with regard to usage.
The truth is that the articles are so obscurely worded as to preclude a very clear construction.
The second article of the 18th section1 of the original code seems to me to be repealed by the first resolution of the 31 of May 17962 in the Appendix;3 for it comes expressly within the description of “an article relating to the holding of Courts Martial and the confirmation of the sentences thereof.” I therefore pass it by in the examination.
The 2d Article4 of the appendix (title Administration of Justice) provides that General Courts Martial shall be ordered by “the General or officer commanding the troops” which standing alone would seem to confine the Power to the Officer who should command the whole army of the UStates. “The troops” without any additional words of description would naturally comprehend “All the Troops of the UStates” and the terms “the General” look to a similar conclusion.
But the 23 Article5 admits that the Commanding Officer of a Department may appoint a General Court Martial, & by implication that the Commanding Officer of a Post or detachment may do it.
And if a Judge Advocate is appropriate to a General Court Martial only, the 6th Article,6 also by implication admits that the commanding Officer of a detachment or garrison may constitute such Court.
It is therefore admissible to adopt a broader construction & to say that other officers besides the Commander of all the Troops of the UStates may appoint a General Court-Martial.
There are two other kinds of Courts Martial contemplated by the Articles one Regimental—the other Garrison.
The special authority given by the 3d article7 to the Commander of a Regiment or corps (by which I understand some single corps or integer of the army) to constitute Regimental Courts Martial, and to the commanding officer of any Garrison, Fort, barrack, or other place, to constitute a garrison Court Martial, each of which Courts is limited to three officers, excludes by implication the power to appoint a General Court Martial.
The Construction, which I incline to infer from the whole is, affirmatively that every General of a Department or of a distinct army, every General commanding troops at a Post or on a command so detached from the army as that its ordinary police is and must be distinct, and every Officer, who as a substitute for a General commanding an army, or such other Corps as being the proper command of a General officer is also in the situation last described, may appoint a General Court Martial—and negatively—that no other officer, especially no officer commanding only a Regiment or other corps (whether entire or consisting of detachments), which forms a command not superior to that of a Regiment, can appoint a General Court Martial; Consequently that no Officer commanding either of the Garrisons on the sea Board has power to constitute such a Court. In other words, none but a General or his representative can do it.
The application of this rule is not always obvious, but in most cases it will be so, & in all a satisfactory line may be drawn by the exercise of a sound discernment. It would however be well that there should be some more correct definitions by law.
According to my information the above construction is agreeable to Military usage.
As to the question how far a judge advocate or person acting in that capacity is essential to a Court Martial, I am of opinion that such an officer is essential to every General Court Martial and a Recorder to every Court of Inquiry, but neither of them to any other Court.
I infer this, first from what I understand to be military usage—
Secondly from several clauses in the articles of war.
The sixth article of the appendix directs that the Judge Advocate or his representative shall administer to each member of a Court certain oaths concluding thus “which oaths shall also be taken by all members of Regimental and Garrisons Courts Martial.” If the office of Judge Advocate extended to these last Courts, the previous words were sufficient, & this clause is redundant, if not incorrect.
Again, that part of the 24 Article8 which requires the Judge Advocate to transmit the proceedings and sentences of Courts Martial to the Secy at War is expressly confined to those which are General. This is a circumstance to imply that his agency is limited to such Courts.
The expediency of having a Judge Advocate or Recorder seems relative to cases of importance, and to those which are only preparatory to some ulterior arrangement. It may be inconvenient to carry it further.
Inclosed are the sentences which you transmitted to me, that you may finally direct what is to be done.
With great respect I have the honor to be Sir Yr. Obed serv
ADf, Hamilton Papers, Library of Congress.
1. Article 2 of Section XVIII of the articles of war adopted by the Continental Congress on September 20, 1776 (JCC description begins Journals of the Continental Congress, 1774–1789 (Washington, 1904–1937). description ends , V, 788–807), reads: “The general, or commander in chief for the time being, shall have full power of pardoning or mitigating any of the punishments ordered to be inflicted, for any of the offences mentioned in the foregoing articles; and every offender convicted as aforesaid, by any regimental court-martial, may be pardoned, or have his punishment mitigated by the colonel, or officer commanding the regiment” (JCC description begins Journals of the Continental Congress, 1774–1789 (Washington, 1904–1937). description ends , V, 806). This article was repealed and replaced by a resolution of April 14, 1777 (JCC description begins Journals of the Continental Congress, 1774–1789 (Washington, 1904–1937). description ends , VII, 266).
2. H mistakenly wrote “1796”; the date should be 1786. The first resolution of May 31, 1786, reads: “Resolved, That the fourteenth section of the rules and Articles for the better government of the troops of the United States, and such other Articles as relate to the holding of Courts-Martial, and the confirmation of the sentences thereof, be, and they are hereby repealed” (JCC description begins Journals of the Continental Congress, 1774–1789 (Washington, 1904–1937). description ends , XXX, 316). Section XIV contained twenty-two sections describing the structure and procedures of courts-martial (JCC description begins Journals of the Continental Congress, 1774–1789 (Washington, 1904–1937). description ends , V, 800–04).
3. For the appendix to the articles of war, entitled “Administration of Justice,” see JCC description begins Journals of the Continental Congress, 1774–1789 (Washington, 1904–1937). description ends , XXX, 316–22. See also H to Jonathan Dayton, August 6, 1798, note 11.