Decision on the Sentence of Henry Muhlenberg, 31 March 1804
Decision on the Sentence of Henry Muhlenberg
The sentence against Capt. Muhlenberg appears1 to be of an extraordinary degree of severity. desirous of2 a short absence, & at a small distance, from his post, he asked Capt Gregg, his commanding officer, if there was any necessity for his attending roll-calling? Capt. Gregg replied there was not, as there would be no roll-calling with arms.3 No particular form of words being prescribed for a permission to be absent, whatever words in common understanding amount to that, are sufficient. and are not these words, to every common understanding, equivalent to a permission?4 and had they not been so, of what was he guilty? of going 9. or 10. rods to get a supper when he had neither breakfasted nor dined,5 leaving a commissioned officer in his place, and himself within call of a centinel.
The general order delivered by Lieutt. Bomar appears not to affect the case; because it was neither formally published, nor substantially disobeyed by an absence at 50. yards distance only,6 and that opinion generally and previously delivered by those present; and it seems on his return to have been followed by an express permission from Capt Gregg to leave the fort7
Dismission therefore & the dishonour flowing from that appear a rigorous8 punishment indeed. the9 disproportion between the fact & the sentence may excite10 a supposition that there was something in the case not appearing in the record which led to this severity. but the record is all we have to go by, and on that I cannot in my conscience direct the sentence to be carried into execution, but must disapprove of it.
Th: Jefferson
Mar. 31. 04.
PoC (DLC). Dft (DLC: TJ Papers, 130:22549); undated; endorsed by TJ: “Muhlenberg Capt’s case.” Recorded in SJL as a letter received.
capt gregg: Aaron Gregg (, 1:476). lieutt. bomar: Joseph Bowmar (same, 235).
must disapprove of it: Dearborn informed the commanding officer at New Orleans of TJ’s decision on 2 Apr. and ordered that Henry Muhlenberg “be released from arrest” (FC in Lb in DNA: RG 107, LSMA).
1. In Dft TJ here canceled “to me.”
2. In Dft TJ here canceled “occasion for.”
3. In Dft TJ interlined the preceding two sentences in place of “having neither breakfd. nor dined he wishes to go to a house not more than 50. yds distant to get a supper & capt Gregg his superior officer tells him his presence will not be necessary at roll calling, as there will be no arms.”
4. In Dft TJ first wrote “and will not 9 men out of 10. pronounce that these words were equivalent to a permission” before altering the sentence to read as above.
5. In Dft TJ here canceled “in a moment of tranquility.”
6. Dft: “disobeyed by being 50. yds distant only from the post, <& it seems to have been followed>.”
7. In Dft TJ inserted this paragraph in place of “would there remain an officer in any army on earth, were every one <cashiered> dismissed who had ever done as much as this?”
8. Dft: “heavy.”
9. In Dft TJ here canceled “extraordinary.”
10. Word interlined in Dft in place of “induce.”