Front Page Titles (by Subject) hamilton to mchenry - The Works of Alexander Hamilton, (Federal Edition), vol. 7
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hamilton to mchenry - Alexander Hamilton, The Works of Alexander Hamilton, (Federal Edition), vol. 7 
The Works of Alexander Hamilton, ed. Henry Cabot Lodge (Federal Edition) (New York: G.P. Putnam’s Sons, 1904). In 12 vols. Vol. 7.
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hamilton to mchenry
Sir:—A complete revision of the articles of war is desirable, as they require amendment in many particulars. But this would be so serious a work, that I fear it is not likely to be undertaken with a prospect of being speedily finished. Waiving the expectation of such a revision, there are some things which could be done that would be important improvements. You are aware of the great obscurity which envelops the provisions of the existing articles respecting the power to appoint general courts-martial. On one construction, it is inconveniently narrow, so as to occasion too great delay, as well in constituting courts, as in giving effect to their sentences. On another, it would be too much diffused, and would place in too many hands a trust no less delicate than important.
To attempt to attain the proper medium by a mere legislative definition of the characters who may execute the power, would be attended with much difficulty, and might often not meet the new situations which are apt to occur in the infinite combinations of military service. The expedient which has appeared to me the most proper is, to give the President a discretionary authority to empower other officers than those designated by the articles of war, to appoint general courts-martial under such circumstances and with such limitations as he shall deem advisable.
The provisions which refer to the President the determination on sentences affecting life and the dismission of officers must, no doubt, have been frequently attended with perplexity to him, and are inconvenient to the service. It is scarcely possible for any but the military commander to appreciate duly the motives which in such cases demand severity or recommend clemency. To this an accurate view of all the circumstances of the army in detail is often necessary. On the other hand, the efficacy of punishment, when requisite, depends much upon its celerity, and must be greatly weakened by the unavoidable delay of a resort to the Executive. These reasons certainly render it expedient to enable the commanding general of an army to decide upon the sentences in question as in other cases.
The proper mode of treating the crime of desertion has been, in most cases, an embarrassing subject. In ours it is particularly so. The punishment of death, except in time of war, is contrary to the popular habits of thinking. Whipping is found ineffectual. I have a hope that confinement and labor would prove more effectual. Believing this punishment to be within the discretion of courts-martial, I encourage its adoption. But as the matter now stands, the confinement would not exceed the term of service, and when this is nearly expired, it would be inadequate. Some auxiliary provisions are desirable to give a fair chance to the experiment. It is not, however, my idea to abolish death, which in some aggravated cases would be proper even in time of peace, and in time of war ought invariably to ensure. I incline even to the opinion, that the power of pardoning ought to be taken away in this case, certainly in every instance of desertion, or an attempt to desert to enemies or traitors.