From George Washington to Colonel Lewis Nicola, 5 February 1780
To Colonel Lewis Nicola
Head Qrs Morris Town Feby 5th 1780
Sir
Inclosed You will receive an Extract from the General Orders of Yesterday, by which You will find that the sentence of the Court Martial against Thomas Warren of the Invalid Corps has been approved and his execution ordered.1 I have however since on account of the frequency of capital punishments and from General Woodford’s representation that this was the first offence the prisoner had been guilty of,2 remitted the Sentence—and for this purpose I inclose You a pardon for him of the present date.3 It might possibly have some operation towards the prisoners future good conduct—if you were to publish the approbation of the sentence in your Garrison Orders4 and to keep him ignorant of the pardon for a few days; but this is left to your own discretion and you will act with respect to it as you may think best. I am sir Your Most Obedt sert
Go: Washington
Df, in Robert Hanson Harrison’s writing, DLC:GW; Varick transcript, DLC:GW. The draft is addressed to Nicola at Philadelphia.
1. This enclosure has not been identified.
3. This enclosure has not been identified.
Since August 1778, GW had become increasingly concerned about the number of death sentences mandated by courts-martial and the resulting frequency of executions in the army. In that month, GW had requested the opinion of a council of general officers on whether some lesser punishment than death could be devised to impose on offenders who rated more than a punishment of 100 lashes, the maximum sentence short of death allowed by the articles of war. GW was concerned that capital sentences were becoming “so numerous” that it was “impossible to execute them, without degenerating into cruelty,” and he feared that the “too great frequency” of executions would destroy their deterrent value. To avoid these “disagreeable consequences” he “too often” had to grant pardons to criminals worthy of severe punishment. The general officers recommended an intermediate punishment of “Severe hard Labour” (Proceedings of a Council of General Officers, 20–24 Aug. 1778). Explaining that a punishment of hard labor would offer a sentence “less shocking to humanity” than execution, GW forwarded the council’s recommendation to Congress (GW to Henry Laurens, 31 Aug. 1778). Congress passed the request to the Board of War (see Laurens to GW, 5 Sept. 1778, and 12:862–63), but that body apparently took no action on the issue. Congress did not revise the articles of war.
The day after calling the council of general officers, GW pardoned a group of soldiers under sentence of death. He pardoned one of the offenders with extreme reluctance (see General Orders, 21 Aug. 1778). GW remained concerned about the frequency of executions and the resulting loss of the “good effects” of capital punishment (GW to Goose Van Schaick, 27 Oct. 1778). Throughout 1779, GW continued to pardon many criminals under sentence of death, while letting a few of the executions go forward (see, for example, General Orders, 14 April; 12 and 19 May; 11, 21, and 25 Aug.; and 14 and 18 Sept.; see also GW to William Maxwell, 28 April, and William Heath to GW, 25 Aug. 1779 [first letter], and n.1 to that document). By the middle of that year, GW felt that the main army had recently had “frequent examples,” and he expressed a “reluctance at present to add to the number” (GW to Alexander McDougall, 3 July 1779). On 4 July 1779, GW granted a general pardon to all prisoners in the main army under sentence of death (see the general orders of that date).
GW’s handling of Warren’s case fit this pattern of avoiding a large number of executions while seeking to maintain the deterrent effect of capital punishment. GW continued to be very open to any appeal from his officers to grant pardons to offenders under sentence of death (see Henry Jackson to GW, 9 Feb. 1780, and General Orders, 10 and 20 Feb.).
4. The following text is lined out at this point on the draft: “and the time mentioned for his execution.”