From George Washington to Samuel Huntington, 8 December 1779
To Samuel Huntington
Head Qrs Morris Town Decr 8. 1779
sir
From the silence of our Articles of War with respect to the right, which parties in arrest have, of challenging or objecting to Members of Courts Martial—I would beg leave to submit the point to the consideration of Congress, and to request, that they will be pleased to decide—Whether the parties have such a right: Whether it may be exercised in all, or in what cases: To what extent as to number, challenges may be made: Whether they may be peremptory—or must be special, assigning causes—and whether the parties have the privilege of making both. These are points which appear to me necessary for forming a part of our military code—and which can only be defined and fixed by Congress. And I will take the liberty to add, that the important trials coming on, make me solicitous for a very early determination. I have consulted many of the General Officers of the Army upon the occasion—and it seems to be a matter generally agreed—that the practice of Armies admits challenges of both sorts; but we have no rule fixing their extent or the cases in which they may be made.1
I had the honor at a quarter after Eleven to day, to receive Your Excellency’s Letter of the 4th Instant—and have given orders for the march of the whole of the Virginia line to philadelphia. The Troops will be in motion as soon as circumstances will possibly admit of it.2 I have the honor to be with the highest respect Yr Excellency’s Most Obedt sert
Go: Washington
LS, in Robert Hanson Harrison’s writing, DNA:PCC, item 152; Df, DLC:GW; copy, DNA:PCC, item 169; Varick transcript, DLC:GW. Congress read GW’s letter on 11 Dec. and referred it to a committee consisting of Robert R. Livingston, John Mathews, and Roger Sherman ( 15:1367).
The committee reported a resolution to Congress on 14 Dec.: “That on all trials by Courts Martial, for Capital offences, at least twenty six persons be returned as members of such Court, with a list of whose names the person to be tried shall be furnished at least six hours before such trial commences, and may if he shall think proper, challenge peremptorily any number of the officers whose names shall be so returned, not exceeding six, and as many more as he shall be able to assign good reasons for objecting to. The validity of such objections to be determined by those who have been admitted to take their seats. Or if the objections shall be offered before any six of the proposed members shall have been sworn, then by the six senior officers present, not having been before challenged.
“Provided, nevertheless that no peremptory challenges be allowed in cases not capital, or where from the situation of the army it would have the effect of preventing a trial. In which cases the reasons upon which the persons charged shall object to any officer returned as a member of such Court shall be assigned, and the validity thereof determined as above” ( 15:1375–76). Congress took no action on the resolution.
1. The pending courts-martial for Maj. Gen. Benedict Arnold and William Shippen, Jr., particularly concerned GW. For Arnold, see GW to Joseph Reed, 4 Dec., and the notes to that document. For Shippen, see Samuel Huntington to GW, 27 Nov., and n.1 to that document.
2. See GW to William Woodford, this date; see also GW to Huntington, 29 Nov., and the source note to that document.