From Alexander Hamilton to James McHenry, December 1799
To James McHenry1
Philadelphia Decr. 1799
Sir
A complete revision of the Articles of War is desireable, as they require amendment in many particulars. But this would be so serious a work, that I fear it is not likely to be undertaken with a prospect of being speedily finished. Waving the expectation of such a revision, there are some things which could be done that would be important improvements.
You are aware of the great obscurity which e[n]velopes the provisions of the existing articles respecting the power to appoint General Courts Martial.2 On one construction, it is inconveniently narrow, so as to occasion too great delay as well in cons[ti]tuting Courts as in giving effect to their sentences. On another, it would be too much diffused, and would place in too many hands a trust no less delicate than important.
To attempt to attain the proper medium by a more exact legislative definition of the characters who may exercise the power would be attended with much difficulty & might often not meet the new situations which are apt to occur in the infinite combinations of Military service. The expedient, which has appeared to me the most proper, is to give the President discretionary authority to empower other officers than those designated by the Articles of War to appoint General Courts Martial under such circumstances and with such limitations as he shall deem adviseable.
The provisions which refer to the President the determination on sentences respecting life and the dismission of officers must no doubt have been frequently attended with perplexity to him and are inconvenient to the service.3 It is scarcely possible for any but the Military commander to appreciate duly the motives which in such cases demand severity or recommend clemency. To this an accurate view of all the circumstances of the army in detail is often necessary. On the other hand the efficacy of punishment, when requisite, depends much upon its celerity, and must be greatly weakened by the unavoidable delay of a resort to the Executive. These reasons certainly render it expedient to enable the Commanding General of an army to decide upon the sentences in question as in other cases.
The proper mode of treating the crime of desertion has been in most countries an embarrassing subject. In ours it is particularly so. The punishment of death except in time of War is contrary to the popular habits of thinking. Whipping is found ineffectual. I have a hope that confinement and labour would prove more effectual. Believing this punishment to be within the discretion of Courts Martial, I encourage its adoption.4 But as the matter now stands, the confinement could not exceed the term of service and when this is nearly expired it would be inadequate. Some auxiliary provisions are desireable to give a fair chance to the experiment. It is not however my idea to abolish Death, which in some aggravated cases, would be proper even in time of peace and in time of war ought invariably to ensue. I incline even to the opinion that the power of pardoning ought to be taken away in this case, certainly in every instance of desertion or an attempt to desert to enemies or Traitors.5
With great respect I have the honor to be Sir Yr Obed servt
ADf, Hamilton Papers, Library of Congress.
1. For background to this letter, see H to McHenry, February 23, 1799.
2. This is a reference to Sections 2 and 23 of Article 14 or the “Administration of Justice,” which was printed as an appendix to the 1794 edition of Rules and Articles for the Better Government of the Troops, Raised, or to be raised, and kept in pay, by and at the expence of the United States of America (Philadelphia: Printed by Steiner and Kammerer, 1794). See H to Jonathan Dayton, August 6, 1798, note 11.
3. This is a reference to Sections 2 and 13 of Article 14 or the “Administration of Justice” (see note 2) as amended by Section 18 of “An Act to ascertain and fix the Military Establishment of the United States” ( 485 [May 30, 1796]).
4. See Josias Carvel Hall to H, October 4, 1799, note 1, for a different opinion held by H on this question.
5. Most of this letter was incorporated in McHenry’s report to John Adams of January 5, 1800, which was sent to Congress in a letter dated January 13, 1800 (, Military Affairs, I, 133–41).