To Brigadier General William Smallwood
Head Quarters Valley Forge Feby 21st 1778
I have been duly favoured with yours of the 10th instant.
You intirely misconceived my intention, with respect to the mode proposed of furnishing your division with shoes. I did not mean, that a shoe manufactory should be established for the purpose; but only, that you should contract with private persons, in the way of barter, to furnish you with such a number of shoes, and to be paid for them, at stipulated rates, in raw hides. This is the mode, which has been, with success, persued in several instances, and which, I should be glad, if you can find an opportunity you would embrace.
With respect to the proposition from Governor Johnson, I have no objection to your sending the officers required. You know the scope of his requisition, and what the ends of it demand, and will act accordingly.
You mention some scruples, as to the operation of our articles of war, with regard to intentional, or attempted desertion. Cases of mere intention, unexpressed in any act, notwithstanding the confession of the criminal, I do not conceive, to fall within the meaning of that article, which particularly relates to desertion, or to be susceptible of capital punishment;1 but where intention and any act, expressive of it, correspond, I think there can be no doubt of the propriety of construing it into desertion, and inflicting the sentence of the law. When a man is found at an improper distance from camp, or in circumstances that indicate an attempt to desert, he is certainly to be considered and treated as a deserter. If not the attempt, or nothing but the full execution of his design, were to be deemed desertion, the crime could never, or very rarely be ascertained; for in order to that, it would be necessary, the soldier should have been actually with the enemy and afterwards recovered. When difficulties occur, the spirit rather than the letter of the law is to be consulted; and this appears clearly to be intended by that part of the oath prescribed to Courts Martial, which declares “that when any doubt shall arise which is not explained by the articles, the court is to determine, according to conscience, the best of their understanding and the custom of war in like cases.”2 I am with great regard Sir Your most Obedt servt.
Df, in Alexander Hamilton’s writing, DLC:GW; Varick transcript, DLC:GW. GW wrote Smallwood on 25 Feb. that he had sent this letter “by Colo. Blaine.”
2. Section 14, article 3 of the articles of war prescribed the oath that would be administered by the judge advocate general or one of his deputies to the members of a court-martial. The oath read in part: “You A. B. do swear, that you will duly administer justice according to the rules and articles for the better government of the forces of the United States of America, without partiality, favor, or affection; and if any doubt shall arise, which is not explained by the said articles, according to your conscience, the best of your understanding, and the custom of war in the like cases” (JCC description begins Worthington Chauncey Ford et al., eds. Journals of the Continental Congress, 1774-1789. 34 vols. Washington, D.C., 1904–37. description ends , 5:801).