Head Quarters New Windsor Feby 3d 81
I have on different occasions done myself the honor to represent to Congress the inconveniences arising from the want of a proper gradation of punishments in our military code; but as no determination has been communicated to me, I conclude a multiplicity of business may have diverted their attention from the object. As I am convinced a great part of the vices of our discipline springs from this source, I take the liberty again to renew the subject. The highest corporal punishment we are allowed to give is an hundred lashes; between that and death there are no degrees. Instances dayly occurring of offences for which the former is intirely inadequate—Courts Martial to preserve some proportion between the crime and the punishment are obliged to pronounce sentence of death. Capital sentences on this account become more frequent in our service than in any other, so frequent as to render their execution in most cases inexpedient; and it happens from this, that greater offences often escape punishment while lesser are commonly punished, which cannot but operate as an encouragement to the commission of the former.
The inconveniences of this defect are obvious: Congress are sensible of the necessity of punishment in an army—of the justice and policy of a due proportion between the crime and the penalty, and of course, of the necessity of proper degrees in the latter—I shall therefore content myself with observing, that it appears to me indispensable, there should be an extension of the present corporal punishment; and also that it would be useful to authorise Courts Martial to sentence delinquents to labor at public works—perhaps even for some crimes, particularly desertion, to transfer them from the land to the sea service, where they have less opportunity to indulge their inconstancy. A variety in punishments is of utility as well as a proportion.
The number of lashes may either be indefinite left to the discretion of the Court to fix, or limited to a larger number; in this case, I would recommend five hundred.
There is one evil however, which I shall particularize, resulting from the imperfection of our regulations in this respect: It is the increase of arbitrary punishments. Officers finding discipline cannot be maintained by a regular course of proceeding are tempted to use their own discretion, which sometimes occasions excesses, to correct which the interests of discipline will not permit much rigor. Prompt, and therefore arbitrary, punishments are not to be avoided in an army; but the necessity for them will be more or less, in proportion as the military laws have more or less rigor.
There is another thing in our articles of war, which I beg leave to suggest to Congress the propriety of altering, it is the 2d article of the 4th section, allowing commanding officers of corps to furlough their soldiers. This privilege if suffered to operate would often deprive the army of more men than it could spare; it has been attended with abuses—it is disagreeable for a general order to restrain the exercise of a privilege granted by authority of Congress. To prevent uneasiness and discussion, it were to be wished Congress would think proper to repeal this article, and vest the power of designating the mode of granting furloughs in the Commander in Chief, or Commanding Officer of a separate army. It would perhaps be useful to prescribe a printed form, for which purpose I have taken the liberty to inclose one. This would hinder counterfeits and impositions. On the same principle I include the form of a discharge. It would in my opinion be a good regulation, that a soldier returning home, either on furlough or discharge who did not in ten days after his return produce to the nearest Magistrate his printed certificate, should be apprehended by the Magistrate as a deserter, and through the governor reported to the general officer commanding in the state or department. This regulation published in the army and in the several states would have a tendency to discourage desertion. Something of this kind has been lately adopted in Virginia and I doubt not will have a good effect; it were to be wished its utility could become general. I have the honor to be With perfect respect & esteem Yr Excellcys Most Obed. Servant
P.S. I have just received the agreeable account contained in a letter from the Count De Rochambeau of which the enclosed is a copy.
If Congress approve I wish the Board of war may be directed to have a number of printed copies made of the furloughs & passes.
DNA: Item 152, Letters from George Washington, PCC—Papers of the Continental Congress.