George Washington Papers
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To George Washington from James McHenry, 26 July 1796

From James McHenry

War office 26 July 1796.

Sir.

The agent of the department of war in Tenessee having requested that the vacant office of deputy paymaster and store keeper might be filled up; and it appearing, that Mr Henley the agent cannot go through the business himself; and if he could, that it would be improper, inasmuch as it would center in one person, 1st. the keeping and distribution of stores, and 2dly the power to determine the sum due upon a claim, and to pay it.

I inclose you therefore a rough draught of instructions for the deputy pay master and store keeper; a draught of a letter to the agent of the department of war; and copy of the instructions of 1793 to the deputy pay master and store keeper when the office was instituted.1

You will perceive wherein these instructions vary from those of 93; and the reasons (without my suggesting them) which have induced to the creation of further checks upon both the Principal & Deputy.

I have thought of a Mr Hillis for Deputy who writes in the accountants office. As he has been employed there in the settlement of Col. Henley’s accounts, he understands of course the train of business in that quarter and the general objects of expence; and besides is very well recommended. If you should approve of him to fill the office (on looking over his recommendations) you will be pleased to mention it; and to return the draught of instructions, and letter designed for the agent, with such alterations as you may think proper.2

I have this moment received your letters of the 22d inst.

Mondays mail carried you the result of the meeting of the Creeks at Coleraine.3 Considering the aspect of things in that quarter, perhaps you may conceive it expedient that one of the companies of dragoons should be directed to join Col. Gaither. In the mean while, and that no time may be lost, should you so determine, I shall write to Gen. Wayne to hold one of the companies in readiness to march thither at the shortest notice.4

I should expect, that the presence of this company on the frontiers of Georgia would render it unnecessary to employ the one hundred militia dragoons which are kept up at the Expence of the U.S.

I have also received this morning the inclosed letter, and representation from the officers at West-point, praying that Lt Geddis may be released from his arrest.5

On this subject I would observe, That the act passed last session of Congress fixing the military establishment of the U.S. contains the following section.

Sect. 18. “And be it further enacted that the sentences of general courts-martial, in time of peace, extending to the loss of life, the dismission of a commissioned officer; or which shall, either in time of peace or war, respect a general officer, shall with the whole of the proceedings in such cases, respectively, be laid before the President of the U.S.; who is hereby authorised to direct the same to be carried into execution or otherwise as he shall judge proper.”6

This clause was incorporated into the act in order to remove some doubts heretofore started respecting the power of the President to pardon certain military offences in time of peace.

For my own part, I have no doubt, that independent of this act, the President possesses the power to remit sentences of courts martial extending to the loss of life or dismission of a commissioned officer I consider that part of the act therefore as surplusage.

If however it was to serve as authority it would not apply to the present case; inasmuch as it has had no retroactive effect given to it. The sentence on Geddis was pronounced on the 16th of May; and the act in question passed on the 30th.

I look to a higher authority for the power of the President to remit sentences of courts-martial.

The constitution art. II. sect. 2. constitutes the President [“]commander in chief of the army and navy of the U.S.” and vests him with “power to grant reprieves and pardons for offences against the U.S., except in cases of impeachment.”

Congress cannot pass any regulations for the government of the land and naval forces which may intrench upon, invalidate or nullify this power to pardon offences against the United States.

If this is a true exposition of the constitution, the President may if he should think proper comply with the request in favour of Lt Geddis.7 With the greatest respect, I have the honour to be Sir Your most ob. st

James McHenry

ALS, DLC:GW; LB, DLC:GW. For GW’s reply, see his second letter to McHenry on 1 August.

1The rough drafts have not been identified. For the appointment of Stephen Hillis as “deputy pay Master and Storekeeper of the public property in Tennessee,” see McHenry to David Henley, 13 Aug. (MHi: Adams Papers). A copy of the instructions for Hillis, also dated 13 Aug., is in DNA: RG 94, Post Revolutionary War Papers.

2Levi Hollingsworth had written McHenry from Philadelphia on 6 July that “Mr Stephen Hillis, of Christiana Bridge, New Castle County, applies to me for a recommendation as a Clerk in your office. I knew the young man’s family for many years past, they were respectable & worthy of confidence nor have I ever heard any thing to the disadvantage of Mr Hillis, his abilities as a Clerk I am ignorant of, but have heard him Spoken of as a person of application” (MiU-C: James McHenry Papers). Thomas and Samuel Hollingsworth wrote McHenry from Baltimore on 10 July that despite a relationship to Hillis through marriage “our personal knowledge of him is so slight, that our regard for him proceeds more from the pleasing reports we have heard of him … We have ever heard him spoken of as Youth of good morals, decent deportment attentive and industrious in the service of his Employers” (MiU-C: James McHenry Papers). Hillis received the appointment (see n.1 above).

4McHenry wrote Gen. Anthony Wayne on 30 July: “The Creek Indians having refused to sell any of their land to the State of Georgia, it cannot yet be ascertained whether the frontier people will confine themselves within the bounds of the treaty of New York, which the Indians have confirmed. It may therefore become expedient in order to obviate intrusions upon their lands and preserve the peace, to augment the military force in that quarter.

“It may also be proper, in an oeconomical point of view, to employ there, one of the troops of Cavalry as patroles between the posts, to announce to the inhabitants the approach of hostile marauders, and to give greater security to the garrisons. Besides their presence may relieve the public from an expensive militia establishment, which has been kept up on Georgia, for some years past.

“I mention these circumstances that you may have time to consider of the best route, and to take the preparatory steps for their march, in case the President should determine upon sending them” (Knopf, Wayne, description begins Richard C. Knopf, ed. Anthony Wayne, a Name in Arms: Soldier, Diplomat, Defender of Expansion Westward of a Nation; The Wayne-Knox-Pickering-McHenry Correspondence. Pittsburgh, 1960. description ends 507–8).

5The enclosed letter has not been identified.

6For the act under consideration, see 1 Stat. description begins Richard Peters, ed. The Public Statutes at Large of the United States of America, from the Organization of the Government in 1789, to March 3, 1845 . . .. 8 vols. Boston, 1845-67. description ends 483–86; quote on 485.

7For GW’s pardon of Lt. Simon Geddis, see his letter to McHenry on 12 Aug.; see also McHenry to GW, 14 June.

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