Newburgh April 5th 1782
I have perused the Charges exhibted by M: Gen: Heath, against M: Gen: McDougal, and the letter of the 1st Instant from the latter to your Excellency.
The Charges contained in the first five articles, appear to me to be so clearly and particularly defined that General McDougal may either plead not guilty, and produce Evidence to refute them, or he may plead guilty, and claim the Indulgence of the court to Satisfy.
The 6th & 7th articles appear to me to be as much defined as the nature of such charges will admit of—To be more particular on such occassions, would subject the prosecuto[r] to the following Inconveniencies—If in detailing what he may be informed was the whole conversation, he must charge what every Informant has declared unless all the Informan[ts] perfectly agreed, and If he should then omit any material circumstance which might turn up in evidence, and which would, and ought to convert, the court cannot with propriety, take cognizance of such circumstance, as It would be foreign to the charge; and [hense] a person highly criminal might escape with Impunity, at least from Immediate punishment; and If the prosecutor charges particular expressions, and the wittnesses should not explicitly support such charge; either thro forgetfulness, or misapprehension, the prosecuter will be exposed to the Imputation, of having held a conduct inconsistent with the character of a man of honor, altho he might honestly conceve that the charge he had made was not broader, than his information warranted; Besides If my memory serves It has been the constant practice both in the british army and in that part of the american army, where I personally served, on such occasion generally to charge, Conduct unbecoming an officer, or tending to excite mutiny, sedition &ca and the defendant whom the particulars are detailed by the wittnesses, requests time of the court to collect evidence, refute the charge, and is always indulged.
With respect to the charges intended to be Exhibited by General McDougall against General Heath—It appears to me when an officer is under arrest, and is informed of any criminality in another by which the State or army may be injured, that it is his duty to advise the Commander in chief [ ] simply as giveing information and not by way of charge, If the Commander in chief deems the Information of consequence he will pursue the necessary measures. If not he will slight it. the Informant will however, after being tryed, and If not rendered Infamous by the confirmed sentence of the court martial have It in his option, to prefer the Charges or not unless the Comr In chief should already have ordered an arrest; in which case he will be considered only as an evidence, the contrary doctrine I concieve would lead to that pernicious practice of recrimination, not Justification and which I belive so far from being admitted, has always been discountenanced, both in civil and military contentions, on those principles I think Genl McDougal ought not only to withold any charges at present, but also any Information against General Heath. unless he is advised of such matters which If not Immediately communicated would hazard the [weal] of the state or the army. I am Dear Sir with great respect &ca Your Excellencys Obed: Servant
DLC: Papers of George Washington.