Secretary of the State's Opinion Regarding Presidential Power Over Officers' Commissions, Relative to the Court Martial of Richard Hunt

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CollectionMassachusetts Historical Society: John Adams Papers view image
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Document Information
Date July 9, 1799
Author Name Timothy Pickering (primary) Location: Department of State
Recipient Name James McHenry (primary)
Summary Pickering submits his observations concerning the question of presidential power in officer's commissions and of the propriety of Sgt. Richard Hunt's court martial. Believes that an officer's commission is evidence of appointment, rather than the substance of it, and that Hunt merits death because his desertion was exacerbated by fraud [stealing the company payroll with which he was entrusted].
Document Format Autograph Letter Signed
Document Notes Enclosed in McHenry to Adams, 07/12/1799.
Content Notes [not available]
Related Persons/Groups James McHenry; Timothy Pickering; Richard Hunt; sergeant; Corps of Artillerists and Engineers; Senate; President; ;
Related Places Department of State;
Keywords court martial; opinions; appointment; nomination; commission; evidence; crime; sentence of death; ;
Key Phrases [not available]
Transcription

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Department of State. July 9th 1799
Sir,
Your letter of the 29 Ult inclosing the proceedings of a Court Martial in the case of Richard Hunt, a Sergeant in the Corps of Artillerists and Engineers I have considered and on the two questions concerning which Opinions of the Heads of departments have been required by the President, observe.
1. That the appointment of an Officer when nominated to the Senate and by them approved appears to me complete; and that the Commission which is the act of the President alone, is merely the evidence of an appointment; a fact which other evidence may establish.
2. That the crime committed by Richard Hunt is highly aggravated - his desertion being accompanied with a most dangerous kind of fraud; and therefore that the sentence of death pronounced against him ought to be executed.
I am very respectfully Sir Yr. obed servant
signed/ Timothy Pickering
Copy
The Secretary of War
Navy Department 6th July 1799
Sir,
I have considered attentively your reference to the heads of Departments, in the case of Sergeant Hunt, sentenced to death by a Court Martial.
The Officers who composed the Court, it appears, have not received their Commissions, but they had been notified of their appointment, had returned to your office their acceptance and oath of office and actually entered upon duty. The Commission I consider as an evidence of appointment, not the appointment itself. And tho' it is desireable that in all cases where officers enter upon duty, they should have it in their power, by producing their Commissions, to show the clearest and best evidence of authority yet I cannot conceive that the want of this evidence, in cases where their authority would be sufficiently established by the evidence, should vitiate their proceedings. I know that during the last war, nothing was more common than for officers to serve for years, and to sit on Courts-Martial, without Commissions.
You observe that when the proceedings of this Court were first presented to you, it did not appear upon the face of them that two thirds of the members had concurred as required in a sentence of death, by the 8th article of the appendix to the rules and articles of war, that the proceedings were returned to General Hamilton with this objection stated, that he caused the omission to be supplied by an interlination
in the sentence, and the President of the Court and Judge Advocates added a certificate under their signature that more than two thirds of the Members did concur, and that the words interlined were omitted by accident, at the time of the first signature of the Sentence.
This whole proceeding after your transmission of the sentence to General Hamilton appears to me to have been illegal. Without entering into the question whether the President of the Court, after having dissolved it, could again assemble it, and in the presence, and with the concurrence of the whole Court and in the presence of the prisoner, could alter the proceedings, it is clear to my understanding that the President and Judge Advocate alone had no right to do it.
The proceedings of the Court Martial are read, and I believe signed in the presence of the Court. To admit that the President and Judge Advocate could afterwards alter the proceedings would be to subject the Fame, liberty, and life of a man to the will of two individuals to whom the law gives no such priviledge:
If then the sentence as first transmitted, was not sufficient to justify the execution of this man, no defect has been [illegible] by the subsequent proceedings. But whether the sentence as just transmitted was or was not sufficient, is a question, which in my opinion, must depend upon the practice heretofore observed in the Army in similar cases.
If it has been the invariable practice to insert in sentences
sentences of death, the words "two thirds of the Court concurring" or words to that effect, omission of the words in the present instance must vitiate the proceedings of the Court. If on the other hand, it has not always been the practice to insert words to show that two thirds of the Court did concur in sentences of death, then I presume that it was a point well understood in the Army, that the very sentence of death implied the concurrence of two thirds of the members. This is an idea which the very wording of the 8th Section of the Appendix forcibly impresses on the mind.
My opinion then, upon the whole of this case, depends upon a matter of record in your office.
I have the honor to be with the greatest respect Sir, your most obedt humble servant.
(signed) Ben Stoddert
The Honourable
The Secretary of War