To James McHenry
New York Sepr. 2nd 1799
Your letter of the 29 instant1 is received.
I shall conform to what I understand to be the spirit of the practice of which it gives examples. It is right not to make an extra allowance to officers for performing a military duty at a place where they are stationed or where they actually are resident, or where there is a military post at which they can be accommodated as usual except for travelling from another place to that post. But I submit that this is not applicable to a person, not a member of the army, who may be specially designated to such a duty. Nor do I think that it consists with the dignity or policy of the government to desire the service of such a person gratis. A person not of the army acting as Judge Advocate ought in my opinion to be compensated. Trials in some instances exhaust too large a portion of time to be employed for a public purpose without an equivalent. It will be agreeable to me in the three instances in which I have been the Agent to announce that an allowance is to be received. I have thought of three dollars per day. The persons are Mr. Hare in the trial of Capt. Vance2 Mr. Morton in the Trials of captains Freye and Doctor Osborne3 and Mr Malcom in those of Major Hoops & Captain cochran.4 The state of the military hereafter will obviate the necessity of incurring a similar expence.
In the case of the Court Martial of which Major Wilcocks5 was President, I applied the regulations of December 1798,6 though from the wording of them I thought there might be some doubt of their applicability; but your construction will solve the doubt: It is the convenient one.
I shall announce to the several commandants that law and usage consider the two dollars per head as the equivalent for the extra expences of recruiting officers and that no further allowance can be made.
Nothing is more just than your observation that “officers instead of encouraging the complaints of their men on the occasions to which you refer ought to endeavour to satisfy them that the articles complained of for some good reason could not be otherwise.” I have inculcated this doctrine in different instances and shall make it the subject of a circular instruction.
You add that nothing is more common among officers than complaints about every thing furnished by the public. I am inclined to believe with you that the spirit of complaint is apt to be carried to an excess. But it is important, when it is observed to prevail, to inquire with candour and calmness whether it has not been produced in whole or in part from real causes of complaint. If it has, it is then essential that any defects in the public plan which may have occasionned these should be corrected. This is essential for two reasons, one that justice the success of the service and the public good require that right should be done to the troops, the other that the doing of it will most certainly and effectually remedy the evil. In a new army especially, the force of discipline can hardly be expected to stifle complaint if material grounds for it truly exist.
To be frank on this point is a duty. Viewing the matter from a variety of positions in which I have stood, it is an opinion of some standing with me that the supply of the army, except in the article of provisions, has been most commonly so defective as to render a considerable degree of discontent a natural consequence. In some instances, the quality of articles, in others their form or workmanship have been faulty. In others they have been supplied too irregularly and too much by retail. These things amidst a revolution will be acquiesced in—in the first essays of a new government they will be tolerated; but in a more mature state of its affairs, as that of ours at present, a government should not stand in need of indulgence from its armies. In strict justice to them it should lay the foundation of an absolute claim to their strict obedience and rigid compliance with every duty.
In recurring to ideas of this sort I only embrace an occasion which seems to call for the expression of them. I well know your disposition to ameliorate our plan. I count upon the success of your efforts but till the amelioration has been exemplified you are not to wonder if murmurs continue. It will not be my fault if they are not as moderate as possible.
With great respect I have the honor to be Sir Yr. Obed ser
The Scy of War
ADf, Hamilton Papers, Library of Congress.
2. Charles W. Hare was the judge advocate at the court-martial of Samuel C. Vance. For the charges against Vance, see McHenry to H, second letter of August 29, 1799, note 3.
3. Washington Morton, a New York lawyer, was the judge advocate at the courts-martial of Frederick Frye and Samuel Osborne. For the charges against Frye, see H to McHenry, two letters of July 31, 1799. Doctor Samuel Osborne, a surgeon’s mate with the First Regiment of Artillerists and Engineers, was charged with disobeying his commanding officer (Hare to H, March 12, 1799; Morton to H, March 14, 1799 [listed in the appendix to Volume XXII]). For earlier plans to try Osborne by court-martial on the same charge, see McHenry to H, January 29, 1799; H to McHenry, March 18, 1799.
4. William Malcom, a New York merchant, was the judge advocate at the courts-martial of Major Adam Hoops and Captain Walter L. Cochran. Frye had accused Hoops of “insulting and provoking lanuguage” and of striking him with a cane; he had accused Cochran of threatening to strike him (Frye to H, August 7, 1799 [listed in the appendix to this volume]).
The court-martial acquitted Hoops of “any scandalous, or infamous Conduct, such as is unbecoming an Officer, and a Gentleman” and “of any disorderly Conduct, unbecoming an Officer” (D, undated and signed by William S. Smith’ Hamilton Papers, Library of Congress). Although H stated in an undated memorandum that he agreed with the acquittal of Hoops on the first charge, in the same document he also stated that he believed Hoops was guilty of the second charge because his actions were “incompatible with the relative situation of officers, with the respect which every officer owes to the military character in the abstract, and with the decorum of behavior which every Gentleman bearing a commission ought to deem the inseparable attribute of his station.… In manifesting his sense of an injury received from another officer he ought to shew by the manner of doing it, that contempt for the person of his adversary has not caused him to lose sight of the consideration which is appropriate to the station” (ADf, Hamilton Papers, Library of Congress).
5. Major William Willcocks presided over the courts-martial of Frye and Osborne (H to Morton, March 14, 1799 [listed in the appendix to Volume XXII]).