To James McHenry
New York June 12. 1799
A late letter from you1 suggests some doubts whether in the case of the Serjeant, who was convicted of Destertion and Embezzlement, the form in which the proceedings were at first transmitted ought not to prevent the execution of the sentence.
My first impression was to defer a reply till the proceedings had been acted upon by the President; but on further reflection I have concluded to submit to you my ultimate ideas on the subject, in which I am supported by the opinion of Mr. Harrison,2 Attorney of this District.
They are these—1 In strictness of law, it is not essential that it should appear on the face of the proceedings that two thirds of the members had concurred. When a certain proportion of a Court is required towards the rendering of a Judgment or sentence, and when a Court duly constituted does in fact give one, in a case in which the assent of that proportion is required, and the record of its proceedings, authenticated in the proper form, testifies that the Judgment or sentence was rendered, it is to be presumed, and need not be expressed, that there was a concurrence of the requisite number: Otherwise it could not be true in a legal sense that there was a sentence. Thus The law demands unanimity in the Verdict of a Jury—yet this unanimity is never declared on the Record. It is presumed, on the faith which is given to the Presiding & recording Officers, that the Verdict would not have been received, unless it had been unanimous, in other words unless it had been a legal Verdict. But
2dly. If this were not true, since the law intrusts the President and Judge Advocate with the duty of authenticating the proceedings, without the signature of any other member of the Court, it will consider them as competent to rectify an omission by an after act and to insert in the proceedings any circumstance, which may be necessary as evidence of their regularity, on the respo[n]sibility of those Officers that nothing shall be inserted which is not true. There can be no reason why as much Credit should not be given to their supplementary as to their original testimony.3
On either ground it is conceived that it will be legal and safe to approve and execute the sentence.
It is nevertheless conceived to be a good practice to insert in the proceedings the evidence that two thirds did concur. It will guard against the possibility of mistake through inattention, and will afford more complete satisfaction to the person, to whose approbation the sentence is to be referred, that all is right.
With great respect I have the honor to be Sir Yr Obed Serv
P. S. You will oblige me by causing the inclosed4 to be immediately forwarded. It relates to a matter of urgency.
On recurring to your letter I find two points not noticed above. I am of Opinion that it is not necessary to specify the manner of the death, or to declare on what particular article the sentence is founded. Tis sufficient there is a warrant in the articles.
The Secy of War
ADf, Hamilton Papers, Library of Congress.
1. McHenry to H, May 28, 1799 (listed in the appendix to this volume). In this letter McHenry discussed the case of Sergeant Richard Hunt who had been sentenced to death by a court-martial on April 16, 1799. On May 28, 1799, McHenry wrote to John Adams for his approval of the sentence (ALS, Adams Family Papers, deposited in the Massachusetts Historical Society, Boston). For information on this case, see H to McHenry, April 20, 1799, note 2; H to Washington Morton, April 23, 1799.
2. Richard Harison.
4. H to Ebenezer Massey, June 12, 1799, enclosing H to Walter L. Cochran, June 12, 1799 (both listed in the appendix to this volume). In these letters H ordered Cochran to report to New York to serve as a witness at a court-martial.