Gentlemen,
Your desire of knowing how the militia-bill came to fail in the last assembly shall immediately be complied with.
As the governor pressed hard for a militia-law to secure the internal peace of the province, and the people of this country had not been accustomed to militia service; the house, to make it more generally agreeable to the freeholders, formed the bill so as that they might have some share in the election of the officers; to secure them from having absolute strangers set over them, or persons generally disagreeable.
This was no more, than that every company should choose, and recommend to the governor, three persons for each office of captain, lieutenant, and ensign; out of which three, the governor was to commission one, that he thought most proper, or which he pleased, to be the officer. And that the captains, lieutenants, and ensigns, so commissioned by the governor, should, in their respective regiments, choose and recommend three persons for each office of colonel, lieutenant-colonel, and major; out of which three the governor was to commission one, whichever he pleased, to each of the said offices.
The governor's amendment to the bill in this particular was, to strike out wholly this privilege of the people, and take to himself the sole appointment of all the officers.
The next amendment was to aggravate and enhance all the fines. A fine, that the assembly had made one hundred pounds, and thought heavy enough, the governor required to be three hundred pounds. What they had made fifty pounds, he required to be one hundred and fifty. These were fines on the commissioned officers for disobedience to his commands; but the non-commissioned officers, or common soldiers, whom, for the same offence, the assembly proposed to fine at ten pounds, the governor insisted should be fined fifty pounds.
These fines, and some others to be mentioned hereafter, the assembly thought ruinously high: but when, in a subsequent amendment, the governor would, for offences among the militia, take away the trial by jury in the common courts; and required, that the trial should be by a court-martial, composed of officers of his own sole appointing, who should have power of sentencing even to death; the house could by no means consent thus to give up their constituents' liberty, estate, and life itself, into the absolute power of a proprietary governor; and so the bill failed.
That you may be assured I do not misrepresent this matter, I shall give you the last-mentioned amendment (so called) at full length; and for the truth and exactness of my copy I dare appeal to Mr. Secretary Shippen.
The words of the bill, p. 43, were, "Every such person, so offending, being legally convicted thereof, &c." By the words legally convicted, was intended a conviction after legal trial, in the common course of the laws of the land. But the governor required this addition immediately to follow the words ["convicted thereof">[ viz. 'by a court-martial, shall suffer DEATH, or such other punishment as such court, by their sentence or decree, shall think proper to inflict and pronounce. And be it farther enacted by the authority aforesaid, That when and so often as it may be necessary, the governor and commander in chief for the time being shall appoint and commissionate, under the great seal of this province, sixteen commissioned officers in each regiment; with authority and power to them, or any thirteen of them, to hold courts-martial, of whom a field-officer shall always be one, and president of the said court; and such courts-martial shall, and are hereby impowered to administer an oath to any witness, in order to the examination or trial of any of the offences which by this act are made cognizable in such courts, and shall come before them. Provided always, that in all trials by a court-martial by virtue of this act, every officer present at such trial, before any proceedings be had therein, shall take an oath upon the holy evangelists, before one justice of the peace in the county where such court is held, who are hereby authorized to administer the same, in the following words, that is to say, "I A. B. do swear, that I will duly administer justice according to evidence, and to the directions of an act, entitled, An act for forming and regulating the militia of the province of Pensylvania, without partiality, favour, or affection; and that I will not divulge the sentence of the court, until it shall be approved of by the governor or commander in chief of this province for the time being; neither will I, upon any account, at any time whatsoever, disclose or discover the vote or opinion of any particular member of the court-martial. So help me God."—And no sentence of death, or other sentence shall be given against any offender but by the concurrence of nine of the officers so sworn. And no sentence, passed against any offender by such court-martial, shall be put in execution, until report be made of the whole proceedings to the governor or commander in chief of this province for the time being, and his directions signified thereupon.'