George Washington Papers

To George Washington from James McHenry, 29 November 1798

From James McHenry

War Department Novr 29th 1798


The enclosed papers contain the proceedings of two Military Courts, lately held at the city of Trenton, state of New Jersey, pursuant to warrants from the Secretary of War.1

The dispersed state of the troops in our western country rendered it difficult to collect a sufficient number of officers at any of the posts to compose a General Court Martial and impossible to do so without injury to the service, it therefore, appeared proper when Captain Lewis was arrested in the city of Philadelphia to issue a warrant for convening a Court at the same place to investigate, try and determine upon the charge exhibited against him. Other inducements to this measure were that the cause of arrest originated at Philadelphia, the party and prosecutor were both on the spot, as it was probable, were also the witnesses to prove any facts that might be denied, and these not military persons: and it was known that officers sufficient to form the court were present, or in the vicinity. A Warrant accordingly issued from the War office on the 24th of July last for constituting a general court Martial consisting of five, the smallest number of Members allowed by the articles of War, to meet at the city of Philadelphia to try and determine upon the charge and specifications thereof, exhibitted against Captain Lewis, as well as such others as might be, in proper times, specified and produced to the court, and such sentence pass on the premises, as by the rules and articles of War shall be authorised.

Agreeably to the Warrant, the court met, and proceeded in the trial. Captain Mitchel however one of the members of the court, became indisposed and afterwards died, which reducing the number of members below five the lowest number allowed to constitute a general court Martial, the court was considered as dissolved.

There being no result from the former trial, the same reasons caused it to be thought proper to issue a second Warrant from the War office on the first day of October last constituting a general court martial, de novo, for the trial of Captain Thomas Lewis, to consist of a full court of thirteen members, if so many could be collected at the city of Trenton, New Jersey, and such sentence pass as may be authorized by the rules and articles of War.

Of this court nine members, including the President, convened at Trenton on the 20th of October ultimo; the other members, from various causes could, or did not attend. The Prisoner challenged one, and in his place Lieutenant Massey who had just arrived from Michilimakinac was substituted.

The court sat from the 20th to the 30th of October inclusive and on the latter day passed sentence of acquittal.

This case is submitted respectfully to you Sir, with a view to obtain the opinion of yourself and also of Major Generals Hamilton and Pinckney whether under all circumstances, the President can consistent with that due subordination which is necessary in all armies, and which the practice of challenging superior officers, for any cause, may have a tendency to interrupt and destroy, give, to the sentence of the court the sanction of his unqualified approval? If the opinion be in the negative, then, whether it would not be attended with beneficial consequences that the Presidential sanction be qualified with a reprimand of Captain Lewis, and a denunciation of the practice of Duelling, particularly of challenging superior officers.

It ought to be stated that Captain Lewis was at the time of the transaction which occasioned the charge against him, on furlough, and that Major Cushing was also not on actual duty. Also, that the charge is grounded on, and is in the precise words of the 20th article of the appendix, and not on the 2nd article of the 7th section of the rules and articles of War relative to challenges.

The other proceedings are those of a court of Inquiry, which met at the city of Trenton on the 18th of October ulto to examine, inquire and report ⟨illegible⟩mg certain allegations against Edward Miller Captain in the second regiment of Infantry in the service of the United States, and continued, by adjournment, to the 26th of the same month, inclusive.

Captain Miller was, during the revolutionary wars, a meritorious serjeant, and at its conclusion Serjeant Major of the third Connecticut regiment, and as such, he was entitled to and has drawn the continental bounty in land. In 1791 he was commissioned as an Ensign, and has since risen by grades at promotion, to the rank he now holds. He is understood uniformly, to have conducted himself as a brave and vigilant officer in the field, and to have been always ready for any duty however hazardous, and frequently employed on such—to have behaved well in the unfortunate affair under General St Clair, and also in the successful action with the Indians under General Wayne. He had been ordered to recruit his company and when he had nearly completed this service he was ordered with his men from Middle town, Connecticut, to Philadelphia.

A settlement of his accounts, for the recruiting service, being necessary, a previous muster of the recruits was directed, when several of the men were mustered out. and the accountant of this Department by letter to the Secretary of War dated the 3rd of July last reported alligations of irregularities in the conduct of Captain Miller, and referred to him to determine whether the bounty paid, and charged by Captain Miller to recruits, now reported to have been unfit for service at the time of inlistment, should not be deducted from his account. The settlement of Captain Miller’s accounts was suspended, his pay has been withheld from [him], and the pressure of the necessities of a large family consisting of a wife and eight or nine children becoming distressing he, by letter to the Secretary, dated Trenton September the 11th last requested that a court of inquiry might be ordered, to examine into his conduct.

A warrant issued from the War Office, on the 16 day of October last, authorizing and especially requiring the court of Inquiry, strictly to examine into the allegations contained in the letter from the accountant, dated the 3rd of July last, and to report a State of all the circumstances, and evidence which should appear to them, together with their opinion thereon. The court have not reported these opinions so fully as was expected. It was expected that they would have examined the conduct of Captain Miller on the principle of Honor, and if, notwithstanding some irregularities, Captain Miller, as an officer, and an associate for themselves, could have been excused on the score of misapprehension, inadvertence, or otherwise; and the public indemnified by a competent retribution, on his part, that they should have so reported.

Your opinion, Sir, with that of the Major Generals is likewise requested, whether, consistent with the regularity, œconomy and strict obedience, to orders and inscriptions, indispensable to the service, Captain Miller can, under all circumstances, be continued in the service, upon his remunerating the public, out of his pay, for the losses sustained by his conduct? Whether it will be more proper to revoke his commission, or to order a general court Martial to decide finally on his case. I have the honor to be with very great respect Sir, your most Obd. Hb. st

James McHenry

LS, DLC:GW; LS (letterpress copy), DLC: James McHenry Papers.

1A report of 2 July 1798 from McHenry to John Adams regarding this affair is in DLC: McHenry Papers; a page of printed letters between Thomas Lewis and T. H. Cushing is also in the McHenry Papers, filed under July 1798. Charles Cotesworth Pinckney replied on behalf of GW on 14 Dec.: “Dear Sir, I am directed by the Commander in Chief to inform you that he has perused & considered the proceedings of the Court of Enquiry on Capn Miller, and of the Court Martial on Capn Lewis, and is of opinion that a Court Martial should be ordered on the former, with regard to the latter he thinks the Court Martial could not do otherwise than acquit him, he certainly had not behaved in a scandalous & infamous manner unbecoming an Officer & a Gentleman, but the Commander in Chief is also of opinion that there was much reprehensible impropriety in his Conduct; for tho it appears from the Evidence that Major Cushing had not behaved in that open candid manner which should characterize the conduct of an Officer, yet he had done nothing which deserved the term ‘villanous interference’ or which could justify Capn Lewis in sending the message he did to his superior Officer, & particularly without requiring a previous explanation. Opprobrious language should never be used from one Officer to another, and in services where duelling is connived at, it is with a view to introduce urbanity of behaviour in the intercourse between Officers. The Commander in Chief thinks that at the same time the sentence of the Court should be approved & confirmed, that the conduct of Capn Lewis deserves animadversion” (DLC:GW).

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