To James McHenry
Philadelphia, April 20, 1799. “… As I do not conceive the United States to be now at War in the legal import of that term (which I construe to be a state not of partial but of general, hostility) I consider it as beyond my power to approve or execute such sentences as by the Articles of War are referred to the President in time of peace.1 But while I think it my duty on this ground to transmit the sentence without acting upon it,2 I feel myself called upon by a profound conviction of the necessity of some severe examples to check a spirit of desertion which for want of them in time past, has become too prevalent, respectfully to declare my opinion, that the confirmation and execution of the sentence are of material consequence to the prosperous course of the military service. The crime of desertion is in this instance aggravated by the condition of the Offender, who is a Serjeant, and by the breach of trust, in purloining the money which was in his hands for the pay of his company.”
Copy, in the handwriting of Philip Church, Hamilton Papers, Library of Congress.
1. Section 18 of “An Act to ascertain and fix the Military Establishment of the United States” (1 Stat. description begins The Public Statutes at Large of the United States of America, I (Boston, 1845); II (Boston, 1850). description ends 485 [May 30, 1796]) provided: “That the sentences of general courts martial, in time of peace, extending to the loss of life, the dismission of a commissioned officer; or which shall, either in time of peace or war, respect a general officer, shall, with the whole of the proceedings in such cases, respectively, be laid before the President of the United States; who is hereby authorized to direct the same to be carried into execution, or otherwise, as he shall judge proper.” The articles of war were published in 1794. See H to Jonathan Dayton, August 6, 1798, note 11.
2. This is a reference to the case of Sergeant Richard Hunt of the Second Regiment of Artillerists and Engineers, who was charged with desertion. He was court-martialed on H’s orders, tried in New York City on April 16, 1799, found guilty, and sentenced to death (“Proceedings of a General Court Martial … on the 16 day of April 1799” [copy, RG 59, Miscellaneous Letters, January 1, 1799–December 27, 1800, National Archives]).