To James McHenry
Philadelphia April 23
Upon a careful inspection of the Articles of War I entertain doubts, whether I can act upon, by approving or disapproving sentences of Courts Martial referred to me from the Department of War, in cases in which the Courts have been instituted by that Department through organs other than myself.1
As there is peculiar delicacy in inflicting punishment upon questionable authority, I shall be glad to be exempted from the embarrassment which references of the above mentioned kind will occasion.
With the greatest respect I have the honor to be Sir Yr. Obed ser
The Secy of War
ADf, Hamilton Papers, Library of Congress.
1. In this paragraph H is replying to McHenry to H, first letter of April 4, 1799 (listed in the appendix to this volume), in which McHenry sent H copies of the proceedings of two courts-martial and asked H to issue the appropriate orders.
In addition, on April 7, 1799, Thomas Lloyd Moore wrote to H (letter listed in the appendix to this volume) that a court-martial had been held at Fort Mifflin. He then wrote: “… they [the members of the court] ha⟨ve⟩ finished the Business, and have enclosed the Proceedings to me for my Opinion, but I am doubtful of my powers as to actin⟨g⟩ finally in this case and shall be glad to hear your sentimen⟨t⟩ on the subject.”
Article 2 of the appendix of the articles of war reads: “General Courts-Martial shall be ordered, as often as the cases may require, by the General or Officer commanding the troops. But no sentence of a Courts-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; neither shall any sentence of a general Court-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, be carried into execution, until after the whole proceedings shall have been transmitted to the Secretary at War, to be laid before Congress for their confirmation, or disapproval, and their orders on the case. All other sentences 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” (JCC description begins Journals of the Continental Congress 1774–1789 (Washington, 1904–1937). description ends , XXX, 317). See also H to McHenry, February 23, 1799; H to Jonathan Dayton, August 6, 1798, note 11.
2. H’s letter to David Strong has not been found.