From Edmund Randolph
German Town [Pa.] November 24th 1793.
Upon the proceedings against Ensign Morgan two questions may arise. The first is, whether the President, as the constitutional commander in chief of the army, ought to pass his judgment on them; and if he ought, the second will be, whether the sentence of the court-martial is supported by the testimony, and the articles of war.
When the subject was opened yesterday for consideration, and I had the honor of expressing to you my sentiments in favor of your interference, I went upon general principles, drawn from your official relation to the army, without having had an opportunity of consulting those articles. But now, after having examined them, I am induced by the rules “for the administration of justice” to a contrary opinion1—By the second article of that head; general courts martial are to be ordered, as often as the cases may require, by the general or officer commanding the troops; and in this instance Mr Morgan’s court martial has been ordered by General Wayne. The article further declares, that no sentence of a court martial shall be carried into execution, until after the whole proceedings shall have been laid before the said general, or officer commanding the troops for the time being. Who is meant by the said general? The general, who had ordered the court martial: This construction is enforced by several considerations. Altho’ the President is the constitutional commander in chief, he will seldom be the commander in the field, and he being therefore necessarily absent from the scene of action, the arrest of an officer would be continued contrary to the spirit of the sixteenth article of the same head, by the time spent in sending backwards and forwards to him.2 Again; the proceedings are to be laid before the general, or the officer; that is, before the one or the other, as the one or the other may be in the command. The exception, by which no sentence of a general court martial in time of peace, extending to the dismission of a commissioned officer, shall be carried into execution, until the whole proceedings shall be laid before congress, does not affect a case in time of war. Consequently in this time of war, the proceedings against Mr Morgan are to be laid before the same officer, before whom they would have been laid under the preceding clause of the article; that is, General Wayne. And such is the language which follows: “All other sentences[“] (that is, except those extending to life or dismission in time of peace, or a general officer, in time of peace or war) “may be confirmed and executed by the officer ordering the court to assemble, or the commanding officer for the time being, as the case may be[“]3—The oath, taken by the members of a court martial prohibits them from divulging the sentence of the court, until it shall be published by the commanding officer; 4 in no manner intimating thereby, that the publication of it is to depend upon the will of another—Farther: in the 13th article of the same head, it is directed, that no commissioned officer shall be cashiered or dismissed from the service, excepting by order of Congress, or by the sentence of a general court martial. Now if we suppose that the President, not being in the field, has succeeded Congress in this particular; (as we must suppose, to prevent a link in the chain from being broken) there appears to be a contrast between him, and the actual commander in the field.
Copy (extract), in the writing of John Stagg, Jr., PHi: Wayne Papers; copy (letterpress copy of extract), PHi: Wayne Papers. The copy is signed with the following certification: “The foregoing is an authentic extract from the original, compared by, Jno. Stagg Junr Chf Clk War Department Novr 29th 1793.” This opinion was enclosed in Henry Knox’s letter to Gen. Anthony Wayne of 29 Nov.: “The President has had the subject [the court-martial of Ensign John Morgan] under his consideration, and for the reasons contained in the opinion of the Attorney General herein enclosed, he has directed me to return you the said proceeding in order that you may pass your judgment thereon” (PHi: Wayne Papers). Wayne confirmed the court-martial verdict in his general orders of 31 Dec. (PHi: Wayne Papers).
1. The articles of war established by the Continental Congress in 1776 were modified on 31 May 1786 by the repeal of section 14 and its replacement with twenty-seven “rules and Articles for the Administration of justice” (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 , 30:316–22).
2. Article 16 provided that “No Officer or Soldier . . . shall continue in his confinement more than 8 days, or until such time as a Court-Martial can be assembled” (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 , 30:319).
3. This quotation is taken from article 2.
4. This oath is ordered in article 6.