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Subject Area: Political Theory
Topic: The American Revolution and Constitution

TO J. McHENRY, SECRETARY OF WAR. - John Adams, The Works of John Adams, vol. 8 (Letters and State Papers 1782-1799) [1853]

Edition used:

The Works of John Adams, Second President of the United States: with a Life of the Author, Notes and Illustrations, by his Grandson Charles Francis Adams (Boston: Little, Brown and Co., 1856). 10 volumes. Vol. 8.

Part of: The Works of John Adams, 10 vols.

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TO J. McHENRY, SECRETARY OF WAR.

Quincy, 13 June, 1799.

I return you the papers inclosed in your letter of the 1st. I have carefully read the proceedings of the court-martial on Ensign David Fero.

It will be necessary for the legislature, at their next session, to make some provisions for cases of standing mute. The best possible jurisprudence in this case in my opinion is, to order the refusal to plead to be recorded, and then proceed to trial in all respects as if the defendant had pleaded not guilty. I would not even refuse to hear him in his own defence, or by counsel, and would swear and examine all witnesses, and admit every species of evidence in his favor, offered by himself or any of his friends, as freely and fully, as upon the general issue. I should have been better pleased if the court-martial had extended all this patience and candor to Mr. Fero. The result would, I believe, have been the same, however, and although I do not see my way clear to confirm the sentence of the court-martial,1 I have no scruple to conform to your opinion and dismiss Ensign David Fero from the service.

[1 ]An extremely moderate judgment of the proceedings. It would seem that this court was constituted by the sole authority of the captain commandant; that the prisoner, prior to the qualification of the members, was asked if he had objections to any of them; that he did object to the commandant and two members, and that, this objection having been overruled by them, he then refused to plead. In Great Britain a decision upon such premises would have subjected the members to severe penalties in the common-law courts. For an instance, see vol. ii. p. 102, note.