Witness questioned by the court. Question. Were captain Heath's language and manner respectful or disrespectful to captain Perry at the time specified? Answer. I did not conceive them disrespectful. The only words I heard him say, were "very well." His gestures I did not observe. Question. Were those words uttered in a contemptuous manner? Answer. I did not conceive that they were. The court adjourned to meet on Wednesday morning, 10 o'clock. Wednesday morning, January 1st, 1817. Answer. I do not recollect that captain Heath ever feigned indisposition. He was always actually indisposed when he applied for my assistance. Question. Do not causes of indisposition often occur which disqualify a man for the exercise of duty, when there is no symptom apparent to a person unacquainted with medicine? Answer. Such cases do occur. Question. Could he then form an opinion of the existence of such indisposition? Answer. He could not. The witness withdrawn. Lieut. M'Pherson examined by the prisoner. The court met pursuant to adjournment. Pre- Question. You are the executive officer of this sent, the president, members, and judge advocate. ship, did you convey to me the order which you Lieutenant Howle's examination continued.-received from captain Perry when going into NaThe presecutor declined questioning the witness. ples on the 22d July, for the ship's crew to be The witness questioned by the prisoner. cleaned? Question. When you was first apprised of the two marines having deserted from the ship on the evening of the 16th September, did you not know that I had retired to bed and believe me to have been unwell? Answer. The order was promulgated throughout the ship in the usual manner. I cannot recollect whether or not captain Heath was especially notified of it. I .b Question. You say that my manner of replying to Answer. I believed you to be unwell from your captain Perry relative to the dirty appearance of retiring, and from your saying so. the marine, was disrespectful; was it also contemp .0 Answer. Yes. Question. Did you repoive any orders or instruc-tuous or insulting? tion from me to muster the marines to discover who were missing, and to take proper steps to recover them? Answer. I received orders from captain Heath through a midshipman to muster the marines and ascertain who were missing, and to attend to the duty, that he himself was unwell. I received no order which related to the recovery of the men. Question. After I came on deck, and had the marines mustered and reported to captain Perry, do you believe that I had it in my power to have made any further exertions for their recovery? Answer. No, I do not think you had. Question. Was I careless and indifferent in mustering the marines after I came on deck on the even. ing of the 16th September? Answer. I did not perceive that you were careless about it. After you were done with captain Perry you spoke to and hurried the sergeant. Question. Did captain Perry, after this occurrence on the quarter deck, ever speak to you of the disrespectful, contemptuous, and insulting reply he had received from me, and if so, how long after. Answer. Three or four days afterwards, captain Perry mentioned to me that his feelings had been very much excited at the manner in which captain Heath replied to him on the occasion referred to. Question. Did captain Perry notice my reply to him at the time in any manner, either by arrest, suspension from duty, reprimand or otherwise? Answer. He did not arrest or suspend captain Heath, but told him if he did not pay more atten. tion to the marines, he would get somebody that would. Question. How long have you been under the command of capt. Perry. Question. Have you any reason to believe from Answer. I served under capt. Perry in 1808, at my general character and conduct on board this New York, and also on lake Ontario, and have vessel that I would descend to a falsehood or sub-been his first lieutenant for the last fourteen or terfuge in order to evade my duty? Answer. Not the least. Question. From the observations which you made in the cabin on the evening of the 18th September, when I was in conversation with captain Perry, do you not think that my language and deportment towards him were extremely forbearing and mild? Answer. I should suppose it was mild. The witness withdrawn. fifteen months. Question. From the knowledge you have of capt. Capt. Perry's character, and his rules and system of discipline, do you think he would suffer any officer under his command to treat him in a disrespectful, insolent and contemptuous manner, without an immediate arrest or suspension co from duty, or otherwise notice it? Answer. I have never known an instance but Question. · Have you any reason to believe from Doctor Parsons, surgeon of the Java, duly sworn. the present. Question. Was captain Heath on the sick list on the evening of the 16th September, or did he re-my general character and conduct on board this port himself to you at that time? ship, that I would descend to a falsehood or sub. Answer. He was not on the sick list on that even-terfuge, in order to evade my duty? Answer. I have no reason to believe you would. Witness questioned by prisoner. Answer. I do not recollect being out of the ship on that evening. Question Have I ever endeavored to evade my duty by feigning indisposition, or alleging as an excuse, the subterfuge of being sick? Lieut. M'Call re-examined by the prisoner. Question. Were you on the quarter deck of this ship on the 22d of July when I replied to capt. Perry relative to a certain marine who was dirty in his appearance? Answer. I might have been but I do not recollect the circumstance. Question. Do you believe that my complaint of indisposition on the evening of the 16th September, when sent for in consequence of the desertion of the two marines, was a subterfuge or an excuse to evade my duty? Answer. No. Witness questioned by the court. Question. How long was captain Heath in the Question. When I came on deck I hurried the sergeants in mustering the marines, did you at the time think I performed that duty in a careless, in-cabín? different manner? Answer. He hurried the sergeant very often, he appeared very anxious to get through, in order to make his report. Question. After I had mustered the marines, and reported them to capt Perry, did you hear capt. Perry say to me that he had no further use for my services on board that ship, and order me below? Answer. Captain Heath was called by captain Perry. Some conversation took place between them which I did not hear. Captain Heath then went below, and I concluded he was suspended, The witness withdrawn. Midshipman Buchanan, of the Java, duly sworn on the part of the prisoner: States he was on deck the night the two ma- Answer. I only thought so from your telling me Question. When you came to my state room on the evening of the 16th of September, to inform me that captain Perry wished to see me on deck, was I not making every exertion to obey the summons? Answer. Yes. The witness withdrawn. Corporal Philpot and John Coleman, belonging to the Java, duly sworn on the part of the prisoner. Corporal Philpot questioned by the prisoner. Question. Do you know of any thing that took place in the cabin of the frigate Java, between captain Perry and myself, on the evening of the 18th of September last? Answer. I was corporal of the guard on the evening referred to. I was sitting outside of the cabin door, on a match tub. Captain Heath passed me and went into the cabin. I heard captain Perry say to captain Heath, how dare you, sir, have the assurance to write me such a letter. Captain Heath replied to him and I heard him use the word feelings. Captain Perry said, if you repeat that again, I will knock you down. He called for his sword, and for the officer of marines, to take captain Heath and put him in irons. Lieutenant Howle appeared, and led captain Heath by the arm out of the cabin, and took him to his state room. Lieutenant Howle returned, and enquired of captain Perry if he should put captain Heath in irons; he told him no, but to put him in his state room, under charge of a sentry. I had a sentry in waiting, and when lieutenant Howle returned, I was ordered by him to withdraw him, which order I obeyed. Question. Did you see any thing disrespectful, insolent or contemptuous in my conduct towards captain Perry, that evening? Answer. I was not present during their conversation, and captain Heath spoke so low, that could not understand what he said. Answer. About ten or fifteen minutes. Question. Did captain Perry call for his sword Question. Do you know any thing that took place in the cabin of the frigate Java, between captain Perry and myself, on the evening of the 18th of September last? Answer. I remember captain Perry sending for captain Heath. After captain Heath came into the cabin, I heard captain Perry call for his sword. I did not know what it was for, at that time. Then he called for the marine officer, as far as I could understand, to put captain Heath in double irons, Then lieutenant Howell (Howle) led captain Heath> out of the cabin door. Lieutenant Howell stepped back, and asked captain Perry if he should put captain Heath in irons. Captain Perry said no: put him in his room, and place a sentry over him. Question. Did you see any thing disrespectful, insolent, or contemptuous in my conduct towards captain Perry that evening? Answer. No; I did not. Witness questioned by the court. Question Did you distinctly hear captain Perry order captain Heath in irons? Answer. I heard captain Perry order some person put in irons. I did not know who it was at that time. Question. Did you hear what captain Heath said to captain Perry, to cause his being ordered in irons. Answer. No; I did not. Question. In what part of the ship were you when this took place? Answer. I was on post, at the cabin door. Question. Was there any other person in the cabin besides captain Perry and captain Heath, at the time you heard somebody ordered to be put in irons? Answer. There was another person besides: he came on board with the captain, that night. The witness withdrew. Evidence on the part of the prisoner closed. The court adjourned, to meet on Thursday morning, 10 o'clock. Thursday morning, January 2, 1817. The court met pursuant to adjournment. Present, the president, members, and judge advocate. Captain Perry being called upon to give his evidence in the case, addressed the court to the following purport: Permit me, gentlemen of the court, before I commence my testimony, to observe, that I have been upwards of eighteen years in the service, and this is the first time I have ever stood before a court martial as a prosecutor, and captain Heath lis the first marine officer with whom I ever had 1 The following is a copy of the letter referred to in the foregoing testimony: U. S. frigate Java, Messina, 18th Sept. 1816. SIR-On the evening of the 16th instant, I was, any difficulty. Amongst that class of officers there are many, who, from a long acquaintance, I enter tain a sincere respect for, and it is with extreme regret that I have been compelled to bring charges against one of the corps. How much I have look-ordered below by you from the quarter deck of this ed over in the conduct of captain Heath, he well ship, with these words, or to this effect: "I have no knows, Whenever he has acted improperly, he further use for your services on board this ship." has only received friendly admonition, and until the evening of the 18th of September, respectful and kind treatment. I have waited until this moment to know why I have been thus treated, and, being ignorant of the cause, request my arrest and charges. Very respectfully, your obedient servant, (Signed) JOHN HEATH, capt. marines. Capt. O. H. Perry, commanding U. S. F Java. Capt. Perry questioned by the court, Question. Was it in the forward or after cabin that this conversation with captain Heath took place? Answer. A part in the forward and a part in the after cabin. Question. When captain Heath replied that he was speaking to captain Perry, &c. &c. did he smile? Answer. Yes. He had a sardonic grin on his face and a contemptuous look. Question. Was any other person in the cabin at the time? Captain Perry was then duly sworn, and stated as follows: On standing into the bay of Naples, at the time referred to, in the charge, I observed a marine come on the quarter deck, in a very dirty condition, although an order had been issued be fore, that every person should be particularly clean in their dress. I sent for captain Heath or called to him, I do not recollect which, and pointed to the marine; captain Heath approached me in a manner which I thought indecorus, and unbecoming. I told him, that a man in the dress and condition of the marine, was a disgrace to the ship, and I be lieve I said to the corps. He replied, he had reported a want of clothing, and if the marines were not clean, he could not help it. I then told him if he could not, I would find some one that would I leant over the hammock cloths, to suppress the Answer. Mr. Anderson, the consul at Tunis, was feelings occasioned by the conduct of captain present. He is a very material witness in the case, Heath. On captain Heath sending me the letter and I regret very much that I cannot have the be. which is now before the court, and of which, Icom-nent of his testimony. plair, I sent for him to come into the after cabin; I merely asked him the occasion of his sending me such a letter. He assumed at once a manner which was irritating, in the highest degree, both in person and in looks, shaking his head at me; this had the effect which might have been expected, and I expressed my indignation in warm terms. After some further conversation, I ordered him to be silent, and sent for the second marine officer. Cap tain Heath paid no attention to my orders. Previ ous to this I asked him if he was aware to whom Captain Perry objected answering this question he was speaking, and where he was. He replied, and submitted it to the court. The court was then in an insulting tone, and throwing himself back, cleared, and it was decided that the question was with a contemptuous smile, said he presumed he an improper one, and the witness not bound to was speaking to captain Perry, and was in the Java's answer it. The parties were then admitted, and the cabin, or words to that effect. I arrested, and determination of the court made known. Captain repeatedly ordered him to be silent. He continu. ed to reply until he was taken out of the cabin, and all my efforts to make him keep silence, were ineffectual. When the marines jumped overboard and after I had got on deck, I asked for captain Heath; to my surprise he was not on deck. I was told he was sick; it was the first time I had heard of his being so. I enquired repeatedly the nature of his indisposition. No one could tell. I then ordered him on deck. When he made his appearance there, he said nothing about his indisposition; nor did I find his name on the sick report of the surgeon the next day; neither have I heard since, that he really was indisposed. I directed him to muster the marines. After a lapse of some time, being extremely anxious to know the number of men who had deserted, I sent for him, and demanded why he was so dilatory, he replied, the marines were mustered; I asked why he had not reported; did not yet know how many were gone. he some further delay, I at length obtained a After The witness questioned by the prisoner. Question. What were the precise words which I used in reply to you relative to the dirty appear. ance of the marine alluded to in the first specifi cation of the first charge, and which you say was insolent, disrespectful and contemptuous. Answer. I do not recollect the precise words. Question. Why did you not arrest or suspend me at the time, conceiving, as you did, that my conduct merited it? Perry explained that he only objected to the ques. tion from a sense of its inutility in the case. He would now, however, give a voluntary answer to the question, in order to remove any impressions, if such there were, that he was influenced by any other motive than that which he had already stated. He gave the following answer: "That it was from a reluctance to suspend or arrest any officer when there was a possibility to avoid it." The prisoner prayed the court to record the proceedings in this case, which the court hereby grant. Question. Did you not, on the quarter-deck of this ship, on the evening of the 16th of September, when I came to you by your orders, tell me I had been sent for several times, and that I had sent you word 1 was sick, and did I not, on that occasion, reply to you that I was unwell, and had been so all day? Answer. I have no recollection of your telling me you were sick. I Question. Did not lieut. Howle inform you before Question. Was not lieut. Howle attending to sending up from below and mustering the marines when you sent for me on the evening of the 16th of September? Answer. I believe he was. I directed him so to do Question. Have you any reason to question my veracity? Answer. I must have had some reason from the the circumstance of your not appearing on the sick list. This is the universal custom of the service and of this ship, and I am entitled to the services of all my men and officers who are not so reported. Question. Would it have been proper for me to have ordered a boat and sent officers and men in pursuit of the deserters without your orders? Answer. Certainly not. You must first obtain per mission from myself or from the executive officer. Question. Did you not prevent my taking any further steps than I did to secure the deserters, by telling me you had no further use for my services on board, and ordering me below? Answer Certainly. You were suspended and sent below, and could not, of course, take any further steps. Question. What do you mean to be understood by the words in the third specification of the first charge-"why he, (captain Heath) took such a time to write to me a letter of that kind?" Answer. What I meant by that was your sending me the letter at night. I think it was about eleven o'clock. This, I consider, a very improper time to be addressed on business of that kind. Question. Do you know at what time I sent you this letter? Answer. I found the letter in my cabin, on my table, when I returned on board. I had left the ship about an hour before. Question. What do you perceive in the letter I addressed to you, requesting an investigation of my conduct, to be either improper or reprehensible? Answer. I have already expressed my entire disapprobation of the letter. It is before the court, for them to judge of. Question. Do you not think that every officer, when laboring under a suspension from duty, and conscious himself that he is injured, has a right to request an investigation of his conduct? Answer. At a suitable time. Question. What was the language you addressed to me on approaching you in your cabin, on the night of the 18th of September? Answer. I addressed myself to you with some degree of warmth, but respectfully. I enquired why you chose such a time to write me a letter of that description. Captain Perry not being bound to answer the foregoing question, the reply which he has given to it is a voluntary one, and the court direct that it shall be so noted. Question.. After you spoke to me concerning the letter I wrote to you on the evening of the 18th of September, did I not reply to you in this manner, or to this effect: that I was very sorry you had · construed the letter into insolence, as it was very far from my intention to insult you, my object being to obtain arrest and charges? Answer. At some period of the conversation you assured me it was not your intention to insult me, but your conduct was so much at variance with your assurances, that I paid no attention to them. Question. On finding you much irritated in your cabin, on the evening referred to, did I not attempt to leave the cabin, when you ordered me to remain? The evidence for and against the prosecution being here closed, captain Heath moved the court to allow him until Saturday, morning, 11 o'clock, to prepare his defence, which was granted accordingly. The court adjourned, to meet on Friday morning, 11 o'clock. Friday morning, January 3, 1817. The court met and adjourned, to meet on Saturday morning, 11 o'clock. Saturday morning, January 4, 1817. The court met pursuant to adjournment, Present, the president, members, and judge advocate. Captain Heath appeared in court, and being called upon, addressed the court, a copy of which address is hereunto annexed. The court was then ordered to be cleared. and g the whole of the evidence read over by the judge advocate, and the following sentence pronounced. SENTENCE. The court, after mature deliberation on the testimony adduced, and having weighed and considered the whole matter, together with what the pri soner had to offer in his defence, agree that the charges are in part proven. The court doth, in conformity thereto, find the prisoner guilty of the first charge, and guilty of the first and third specification of said charge. The court also find the prisoner guilty of the second specification of the first charge, so far as it accuses the prisoner with writing and sending the letter, but acquit him of using language therein-highly improper to be used to his commanding officer. The court acquit the prisoner of the second charge, and of all the specifications annexed thereto, and find him guilty of the third charge, and the specification to said charge. The court doth, therefore, from the circumstances of the case, adjudge the prisoner to receive a private reprimand from the president of the court, and he is hereby sen. tenced accordingly. (Signed) JOHN SHAW, President. JOHN ORDE CREIGHTON, imputation of a charge, I submit to your consideration a few remarks. Why then, let me ask this honorable court, is this circumstance produced against me as a charge, under the arrest of the 18th September? I beg that the court will take this under their serious consideration. I shall proceed to notice the first specification to the first charge, of disrespectful, insolent and contemptuous conduct. It appears, from the evidence which the witness has stated in this case to With regard to the second specification of the the court, that he thought my conduct disrespect first charge, I have to observe, that the letter, as ful to captain Perry, yet it also appears, when ques. therein expressed to be written, has been produced tioned by me, that he does not believe I intend to this court, and will be left to its wise determi ed any disrespect to captain Perry. My manner nation to judge how far it may be deemed insolent of disrespect is also described by having my hat on and disrespectful. But I hope this court will take one side of my head, and my hands in my pockets into consideration the circumstances under which It really did not occur to me before, that being it was written. I was ordered below on the 16th in this particular situation (as described by the September without knowing the cause, I remainwitness) was intended to convey disrespect, or ed below for two days, under feelings the most considered as a mark of insolence or contempt: if mortifying-I felt no longer able to bear the indig. so, I have been frequently guilty of the same nity which I conceived in the manner attached in thing I have frequently, Mr. President, been sending me below. The wise and salutary laws of in such a situation, and without a knowledge of it our country provide for the punishment of offenat the time: yet the witness does not inform this ders in any situation, and also afford redress to court, that as soon as I was called by captain Per- the injured. Had I neglected my duty, or acted ry, that, I placed my hat and my hands in the situ- in any manner unbecoming the officer and gentleation he described: my manner of approaching cap: man, I will ask this honorable court if the proper tain Perry, too, is not unnoticed. it is represented mode of proceeding was not by a court martial. as being in a kind of swagger. I confess, Mr. President, I have not the advantage of some men, as regards the attitude of walking. It may be also true, that I am not remarkable for walking in a handsome manner; I have probably not paid that The third specification I shall duly notice. We attention to this particular as others have. Every come now to the charge of neglect of duty, and its circumstance which the witness has stated, may several specifications. I am charged, in the first have occurred, and yet by no means intended as instance, with having screened myself from duty disrespect, insolence or contempt to captain Perry on the night of the 16th of September, under the As I have before observed, the witness has stated subterfuge of being sick. As this charge, it appears, to the court, that when questioned by me as to the has attracted no little attention of the court, it may circumstance, he did not believe I intended any not be amiss to dwell a little on it. I am accused disrespect to captain Perry, yet he observes, he of resorting to the subterfuge of sickness, in order was bound to believe me, from me solemnly assert-to evade the exercise of my duty. In the first place ing that I did not. I do not recollect of ever pledg-I shall observe, that in the numerous catalogue of ing my honor, or solemnly averring on the occasion, as I deemed my word sufficient. The evidence of the witness is however before this honor able court, and they will judge how far it will af fect me. Under those feelings of mortification, which I have already observed to the court, I wrote the letter which is stated in the second specification of the first charge. diseases by which we are occasionally afflicted, many often occur where it is entirely impossible for the most sagacious physician to detect the nature and extent, by any external signs. They may elude the most subtle tact of medical art. For the I have a faint recollection of the circumstances, truth of this fact I appeal to the testimonyof all meas the first specification states to have occurred on dical men. These cases, ofindisposition, too, may be the 224 July. I remember, however, captain Per- so sudden and severe, asto disqualify us immediately ry's calling or sending for me on the quarter deck, for the exercise of duty. But it is asserted that the and pointing out to me a marine who was badly at commanding officer is not bound to believe any man.. tired. I confess, I was much mortified to see the unfit for duty until he is reported so by the sursituation of the marine, particularly as I had al-geon. But is the surgeon bound to report every case ways endeavored to make the detachment appear of sickness, immediately on his knowledge of it, as respectable as possible. I mentioned to captain without an order to this effect from the captain? Perry the situation of the guard as respected clothing, that I had addressed him before on the same subject, and could not help it, or words to that effect. Lobserved this, I thought, to captain Perry, in my usual manner when I addressed him, which I have ever deemed respectful and polite. This will not be found to be the case, in any of the existing customs or regulations of the navy. The surgeon is ordered to make his report of sick at certain specified times, and never recurs to his commanding officer to inform him of every indivi. dual case, immediately as it may happen to be preCaptain Perry, from his manner, was evidently sented to him. It follows then from the above much incensed, but I presumed it was more at the facts, that in the case of sickness, the testimony appearance of the marine, than any thing else; for of the sick man must ultimately be admitted as I can assure this honorable court, that so far from complete and sufficient evidence for its existence intending to treat captain Perry with disrespect on the occasion, I was astonished to find it a charge against me. that the report of such indisposition is always regulated by order of the captain himself. If then, the circumstance of sickness be received as a saCaptain Perry has been pleased to state to this tisfactory plea for incapacity of duty, the charge court, in answer to my question, "why he did not here exhibited in this specification, even if exaarrest or suspend me at the time," that it was from mined by the most rigid mode of reasoning, in such an indisposition to arrest or suspend any officer cases, is entirely invalidated. But I trust I am not where there was a probability to avoid it. Does it here reduced to the necessity of appealing before not appear then, that captain Perry overlooked my this court, to the rigid decrees of law, even sup conduct on that day? It was passed over. I was posing that they did not in this instance, operate punished, inasmuch as I received a reprimand.-in my favor. No, I feel conscious of bearing such |