REVIEW OF THE LAWS FOR THE GOVERNMENT OF THE NAVY.
COMMUNICATED TO THE HOUSE OF REPRESENTATIVE, APRIL 1, 1818.
Mr. Pleasants, from the Committee on Naval Affairs, to whom were referred a resolution instructing them to inquire whether any, and, if any, what, alterations are necessary and proper to be made in the several laws relating to the government of the navy; also the proceedings of certain courts martial lately held in the Mediterranean for the trials of Captain Oliver H. Perry, Captain John Heath, and Captain John O. Creighton; also the memorial of certain midshipmen, belonging to the Mediterranean squadron, addressed to the President of the United States, reported:
The committee have examined the several subjects referred to them, and are of opinion that the general regulations for the government of the navy do not require to be changed. With a view of ascertaining whether the circumstances which lately transpired in the Mediterranean have grown out of a defect in the law, or the administration of the law; the committee, after an attentive consideration of the law, and of the several cases determined under it, think the defect is not in the law. Their attention has been particularly drawn to the third, fourteenth, and thirtieth sections of the act "for the better government of the navy of the United States." The third section of said act is in the following words: "Any officer, or other person in the navy, who shall be guilty of oppression, cruelty, &c. shall, if an officer, be cashiered, or suffer such other punishment as a court martial shall adjudge," &c. The fourteenth section of said act is in the following words: "No officer or private in the navy shall disobey the lawful orders of his superior officer, or strike him, or draw, or offer to draw or raise, any weapon against him, while in the execution of the duties of his office, on pain of death; or such other punishment as a court martial shall inflict." The 30th section of said act is in the following words: "No commanding officer shall, of his own authority, discharge a commission or warrant officer, nor strike, nor punish him, otherwise than by suspension or confinement, &c; any commanding officer offending herein, shall be punished at the discretion of a court martial." It will be observed, that the punishment denounced against an inferior officer for striking, &c. his superior, may be death, or such other punishment as a court martial may adjudge; whilst for a similar offence committed by a superior officer
against an inferior, the punishment is such as the discretion of a court martial may award. In these two articles, such an inequality of punishment is supposed by many to exist as to call for a change of the law. This impression did not escape the attention of the committee; but, on mature reflection, they were led to doubt the propriety of the opinion. Striking, drawing weapons, &c. on the part of inferiors against superiors, in military bodies, carries along with it the idea of insubordination and mutiny. Under such circumstances no military body can exist; or, if it exist at all, it must be to purposes worse than useless. It is believed that at all times, and in all nations who have had correct ideas of military discipline, the power to punish mutiny with death has been vested in their military tribunals; nor do they think it could be dispensed with in this Government; for they believe the principle to be correct, that in free Governments the rigor of military discipline is as necessary, perhaps more so, as under Governments of a different character: and it is a circumstance well understood, that persons going into military service part, for the time, with a portion of their civil rights. The committee are of opinion that it would be inexpedient to change this part of the naval regulations.
Their attention was next drawn to the opposite view of the question. Oppression, and striking inferiors by superiors, are punishable, the first by cashiering, or such other punishment as a court martial shall adjudge; the second, at the discretion of a court martial. This part of the subject having given rise to the late occurrences among the officers in the Mediterranean, claimed and received the undivided attention of the committee. They examined the propriety of fixing some definite punishment in these cases; such as suspension for a certain length of time, below which no court martial should be at liberty to go, in adjudging the penalty to be awarded for a commission of the offence. But, on mature consideration, difficulties, which the committee considered as great, if not insuperable, were believed to attend such a provision. Let us suppose that such is the law: when the case comes to be examined, it is found that a number of circumstances exist which reduce the offence to almost nothing; or, on the other hand, circumstances are discovered of a character so aggravated as to give it a very different complexion. Let us take, by way of illustration, the two cases of Captain Perry and Captain Creighton, both now under the consideration of the committee. In the former, the committee see circumstances of a character which, in their opinion, would have justified a much more rigorous sentence of the court martial towards that officer, as high and deserved a favorite of his country as he was; and it is with no small regret that the committee feel it their duty to express the opinion. On the other hand, for a charge, in part, of a similar character, the charge of striking Midshipman Mars-ton by Captain Creighton, they see nothing of sufficient importance to have attracted attention. Thus situated, numberless shades of difference attending almost every case which can be supposed to occur, the committee believe that fixing by law a minimum punishment, if it were of sufficient magnitude to have any effect, would be improper. The committee think a reference to our civil trials will illustrate this part of the subject. Thus, in the trial by jury, that body exercise an entire discretion in all actions of assault and battery, &c. and graduate the penalty to the offence, according to the circumstances of each case. It is also in accordance with the mild character of the criminal codes of most of the States composing this Union, in which a scale of punishments is graduated according to the degree of the offence. The committee know that where the law can be defined with propriety, the discretion of no tribunal, whatever ought to be as much relied on as proper legal definitions. They have stated the difficulties which presented themselves, and which they find of such a character as to induce them to consider a change unadvisable. The committee also state, that it would be with much reluctance they would relinquish their confidence in courts martial, composed of those officers whose conduct has so justly merited the confidence of their country.
The committee are aware, that, in examining the conduct of the courts martial referred to them, the path of their duty led over delicate ground. They know that no law which they could recommend would operate otherwise than prospectively; and, also, that they have no power to reverse or unsettle the decisions; but these proceedings having been referred to them, as connected with the subject of the inquiry, that inquiry having in fact grown out of them, they have thought it right to express the opinion they have done. Indeed, the body to which the committee belongs, and who have charged them with the inquiry, constitute the grand inquest of the nation, whose duty it is, on proper occasions, to inquire into the conduct of the highest officers in the Government.
The committee, then, taking into consideration all the circumstances of the cases referred to them, trusting that the officers of the navy, to whom are confided the important duties entrusted to courts martial, with a due regard to the laws of their country, ever to be held sacred by those entrusted with their execution, and constituting the only criterion between free and despotic Governments, will exert themselves to heal the wounds with which the discipline of the navy has been at least threatened—a discipline so admirable in itself, and which was not known to exist till its effects were witnessed by the world, and which once lost, the navy itself would be a useless burden on the community; the committee trusting that these highly important considerations will have their due and proper weight, conclude by recommending to the House the adoption of the following resolution: Resolved, That the committee be discharged from further consideration of the several subjects referred to them.
After the foregoing report was read, Mr. Johnson, of Virginia, moved to recommit it to the Committee on Naval Affairs, with instructions "so to amend the act, entitled 'An act for the better government of the navy of the United States,' (approved April 23, 1800,) as to subject the superior officer who shall strike, or draw, or offer to draw or raise, any weapon against his inferior officer, to a forfeiture of his commission, and dismission from the service."
The said report and amendment were then ordered to lie on the table.