George Washington Papers

From George Washington to Major General Horatio Gates, 14 February 1778

To Major General Horatio Gates

Head Quarters [Valley Forge] February 14th 1778


I am favoured with yours of the 9th instant inclosing the proceedings of a general Court Martial held by your order.1

It is a defect in our martial law, from which we often find great inconvenience, that the power of appointing General Courts Martial is too limited. I do not find it can be legally exercised by any officer, except the Commander in chief or the commanding general in any particular state.2 This circumstance would make it improper for me to ratify the sentence against Murray, did the nature of his crime require it; and if it was thought inexpedient to let him pass unpunished, I should be under the necessity of ordering another court for his trial. But as there are some mitigating considerations, which you mention, it may perhaps be as well to remit the present sentence, without proceeding any further in the affair. I leave it to your judgment, either, with my approbation to do this, or to make use of the inclosed order, to bring the offender to a second trial.3

Had the constitution of the court been intirely regular, I do not conceive I could with propriety, alter the capital punishment into a corporal one. The right of mitigating only extend in my opinion, to lessening the degree of punishment, in the same species, prescribed; and does not emply any authority to change the nature or quality of it altogether. I am Sir Your most Obedt servt.

Df, in Alexander Hamilton’s writing, DLC:GW; Varick transcript, DLC:GW.

1This letter has not been found.

3Alexander Hamilton wrote an authorization form at Valley Forge on this date: “A General Court Martial, whereof [ ] to be president, to be held the [ ] day of [ ] at York in the State of Pensylvania, for the trial of all offenders, that shall be brought before it” (DLC:GW). Hamilton also wrote a draft of this form, on which he crossed out “York” and wrote “Lancaster” in its place (DLC:GW).

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