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H. OF R.

Military Courts.

MARCH, 1808.

out of any court of the United States, and the clerk of though perfectly innocent, because he cannot obany such court shall be, and he is hereby, authorized tain evidence. In civil cases, the laws have proand required, upon due application in writing, by the vided compulsory process. In suits for property judge advocate, or party officiating as such, or by the between A and B, where the amount is not perparty accused, to issue such summons, requiring such haps more than £10, or from the value of one shilwitness to appear, and give evidence before such courtling to millions of money, the parties have the martial or court of inquiry, and upon good and suffi- benefit of compulsory process to obtain evidence, cient cause shown, verified by affidavit before any judge and while in cases affecting the life of a soldier of any court of the United States, and the same being or officer there is no power to compel testimony. certified by such judge, and produced to the clerk to whom application as aforesaid shall be made for any It was, therefore, thought proper not only that the summons, the said witness in such summons may be case alluded to in the President's Message should farther directed and required to exhibit in evidence be- be provided for, but that a bill should be introfore such court martial or court of inquiry, any paper, duced making a general provision in like cases. document, or record in his possession, power, or conMr. ROWAN was opposed to this bill, and hoped trol; and in every summons to be issued in virtue of this that the time would never come when it should act, some certain day shall be appointed for the same be necessary to keep a standing army organized to be returned to the proper court martial or court of for the internal defence of the United States; till inquiry, and for the appearance of the witness. And that time did arrive, there was no necessity to every summons as aforesaid shall be directed to the pass a law of this kind. By turning to the histomarshal of the district in which such witness may re-ry of that Government from which we borrow side or may happen to be; and for every default in not duly serving and returning any summons as aforesaid, the marshal shall be liable to the same penalties, and to be proceeded against in like manner as if he had made such default in not serving or returning any summons or citation in causes depending in the district court of the United States holden in the district or Territory whereof he may be marshal."

Mr. J. MONTGOMERY moved a verbal amend ment to the section.

Mr. J. CLAY Could not see what necessity there could be for investing military courts with such extraordinary powers. In order to produce a discussion which might throw some light on the subject, he moved to strike out the first section of the bill.

our laws, said he, we find that it existed some centuries before the mutiny act, from which the present law is in a great measure extracted, was passed. In a monarchical Government, which existed so long before it became necessary to pass it, this law was passed to secure the citizens against the disorders of the soldiery, and to preserve order amongst them. Our Government has existed but thirty years-a Government, too, in which a standing army is not contemplated as necessary; a small army has been submitted to as the least of two evils, and is contemplated but as temporary. To incorporate, then, in our system a law which was not found necessary in Great Britain till after so long a time, seems premature; it is going upon the principle of adopting into our Government the Mr. J. MONTGOMERY said he could only state principles of a Government different from oursthe reasons which influenced him to give his as- of a Government not in its early and simple state, sent to the introduction of the bill. A letter from but in its aged and corrupt state. If gentlemen the President of the United States on the subject examine this bill they will find that it goes to of the powers given to courts of inquiry had been make the military communicate too intimatereferred to a committee of which he was a mem-ly with the civil authority of the country; it ber. When the subject was before the commit tee, said Mr. M., they examined the present existing laws with respect to the manner of obtaining evidence in courts of this description. It was found, upon examination of the existing laws for the regulation of the Army and Navy, that in all instances which do not affect life or limb, deposi-is tions may be taken before a civil magistrate; but there are no regulations by which, in a case affecting life or limb, to permit the person accused to obtain testimony of persons who are not in the military or naval service. It was discovered that an officer or soldier, who certainly does not cease to be a citizen by entering into the Army, cannot obtain the benefit of evidence other than of persons in the military or naval service. For that reason, and from the representations of officers on the subject, it was found necessary to report this bill for the regulation of all courts martial and courts of inquiry. Every person charged with any offence before any court is entitled to a trial and to a proper defence; but under the present laws there is no power to compel testimony, so that a military man is liable to lose his life, al

gives the military an importance from which we should endeavor to preserve them, authorizing them to call upon the judges to punish witnesses, &c. This is no inconsiderable blending. The military is, I hope, incidental in this Government; the force we have is small, and I hope it temporary. I hope it is not contemplated that the military are to form a permanent establishment in this Government.

I wish gentlemen to look at this bill, and see if the evil is not greater than that which it is intended to guard against. Persons summoned as evidence by a military court refuse to attend; the summons cannot be enforced. This is somewhat of an evil, but what is it compared with that which would accrue from mixing the civil and military institutions? There is in the very nature and complexion of our Government an abhorrence to military institutions; they are but permitted to exist as an evil. Let us not, then, incorporate them into our general system; let us not even suppose the present Military Establishment to be a lasting or permanent institution.

What peculiar case calls for this law? The

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case of a soldier cannot present itself as making it necessary; for if a private commits an offence, it must be in the ranks. If he steps out of the ranks, the civil law takes hold of him for any offence he commits. Wherever he commits an offence out of the ranks, it is cognizable by the eivil jurisprudence. He is punishable by military law for the violation of military rules. For instance: if a soldier goes to sleep at his post, you cannot expect a civil witness of the offence. A case, then, cannot occur in which a civil evidence can be necessary on a trial of a private for a military offence. If he makes an inroad on society, he is immediately taken hold of by the civil jurisprudence. So in the case of offences triable only by a military court, in ninety-nine cases out of an hundred, testimony must be confined to military evidence, if the charge be confined exclusively to military conduct. A file of men is sent for the witness; the testimony of the soldier or officer is compelled, so that there is no deficiency of process in exclusively civil or military of fences. The very law from which the present bill is substantially borrowed, if I understand it right, was not enacted for the benefit of the officer or soldier, but for the security of society. The mutiny act of England was intended to protect the citizen; the only provisions in that country on this subject are contained in that act. Even in that country the Parliament never chose to lend to the military that sanction which is contemplated by this bill; their law on the subject is to protect the citizen from the soldier or officer, while the bill under consideration grants a privilege to the military; this principle, therefore, has not been recognised in England.

H. of R.

life, or officer received an injury in consequence of the omission? None, I believe. It is dangerous in my opinion to legislate generally on special cases. I believe that our military rules are competent to the purpose of justice, as relates to the soldier or officer. I hope we shall not long have a standing army, as it is only on our frontiers that we require a regular force; in ordinary cases the militia being competent. As no evil then can arise in so short a time, and in so small a force, from the want of such a law as this, I hope the section will be stricken out, and thus destroy the bill.

Mr. TAYLOR said if they had indeed been so many years without having found a rule of action, and a law for the government of the Army, the arguments which had been adduced by the gentleman from Kentucky, would be at least sufficient to induce him to inquire; but when he found that the Legislature of his country had already established rules and regulations for the government of the Army, and that, from the tenor of the law, those regulations are binding as well upon the militia when in service as upon the standing army, he felt it necessary to legislate not on any particular case occurring now, or heretofore, but generally, for the safety of the individual. The power of obtaining testimony, so essential, so indispensable to every tribunal for the attainment of justice, was the object to be attained by this bill. On a former occasion, said he, I have expressed my ideas on the subject of the articles of war. If they were not in existence, the gentleman and I would, upon comparing notes, be nearer on principle than we are on the present amendatory law. What are these articles of war? Sixteeen articles I should consider it extremely unfortunate if, out of an hundred create capital offences; and is at this early period of our Government, with our your army walled around, pent up so that no man small standing force, and great abhorrence of a can see them but he who wears an epaulet or registanding army, this bill should pass. It will be mental livery 2 No. The actions of these men, found to be a truth that men en masse are worked alike with those of other men, come under the upon by their feelings. Whenever then these eyes of every bystander. For establishing the intwo institutions, civil and military, become fa-nocence of a person accused it is necessary that miliar by their connexion with each other, in the he should have the power to call upon these bysame proportion our abhorrence of military, and standers, whether in civil or military life, for evirespect for civil institutions will diminish. It is dence in his favor. therefore contrary to the policy of our Government to render the military institution familiar with the civil.

The particular circumstance which has given rise to the present bill we all know. It does not seem to me that this case will justify the passage of a law, which in its consequences may be so mischievous. So far as society is interested, there is a mode in which it can be tried; so far as respects the citizen there is a mode; for I deplore the day in which an American military officer cannot confide his conduct or character to the scrutiny of the great body of the people. There is no occasion then for this bill in relation to any officer of ours. Our officers must have a reverence for our civil institutions, and confide in their competence to do them justice in any case.

We have had this Army for many years. Is it not extraordinary that this deficiency has never been discovered before? Has any soldier lost his

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I hope gentlemen will look at the articles of war, and see how far they go to abridge the privileges of a military man, and assist me in an endeavor to draw a parallel between a civil tribunal and a court martial. In the first place, decisions of a court martial do not require unanimity of judgment of those who sit as inquisitors. out of thirteen are sufficient for a decision, pro or con; whilst in a civil case before a jury of twelve good and lawful men, an unanimity of the whole is required. The party in a court martial or court of inquiry has not the privilege of counsel for the purpose of annotating, and making observations upon testimony. True, it is, that by special favor a person is sometimes allowed to come into court to assist the accused in asking questions necessary for his defence, and in cross-examining the testimony; but as to the privilege of counsel to explain or argue the case, to collate and digest the testimony, no such thing is allowed. The delibe

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rations of military courts are private. The judge advocate, who is like the State attorney, may urge home the points against the prisoner, and there is no one to urge the points in his favor-in courts of law, although the jury retire to make up the verdict, the discussion before them is public. A more important inconvenience to the accused is, that crimes against military law are not specially defined. I will read an article or two out of the many, which struck my mind as going fully to establish this point: the sixth article makes it a crime to behave with contempt or disrespect towards his commanding officer (without defining what constitutes disrespect or contempt.) In another article, ungentlemanlike conduct, and such as is unbecoming an officer, is made a crime-the specification of his crime must be diversified with the relaxed or nice notions of honor of the judges, or members of the court. In a great majority of the articles, the extent of the punishment is left discretionary with the court. In proportion then to the immense extent of the powers of these courts, in condemning and punishing, so should the facilities of obtaining defensive testimony be amplified to the accused.

MARCH, 1808.

in an evil for which unless this bill pass he has no remedy. As to the allegation that a civil witness can never be necessary in a military trial, you must either shut your eyes to the light or suppose that all mankind instinctively shut theirs when the soldiery are in their presence; neither of these cases can be supposed. I hope it is and will be the habit of this nation to look the more astutely where the Army or its soldiers are near, that the citizens may never be excused from testifying to the guilt or innocence of a soldier, however low or however high.

There is a clause of the Constitution, which indeed applies to courts of law, which guaranties to the accused the right of compulsory process for obtaining witnesses in his favor. Surely the spirit of the Constitution, even rigid justice herself, would not exclude men, merely from their change of clothes, from that right considered so sacred as to be guarantied to the people by the Constitution.

Let us consider this law as respects the witness. Is there a mighty inconvenience to a witness summoned and paid for his attendance in court to substantiate the innocence (I have not yet It is necessary that this body of the community, touched upon the guilt) of a person accused? He when collected together, should be governed by is paid for his attendance, liable only to the same rules more rigorous than those imposed on men impositions as he would be subject to if summoned in other situations of society; it has been found by a neighbor in a civil cause. He is not under in all ages and nations that these rules are neces- as much disadvantage; for it is the law of the sary for the government of men with arms in their land, in the State which I have the honor in part hands, and that nothing but rigid discipline can to represent, that when a person is committed to make them useful, or indeed prevent them from jail or bound over, the witness against him, unless being dangerous to the country-yet, had these he can give sufficient security for his appearance rules been less severe, the Legislature might to prosecute on behalf of the State, is sent to jail, have found their ample apology in the freedom to there to lie until the course of time comes round which the citizens of the United States are ac-in which the trial is to be had. Here then the customed. For in proportion to the freedom of the citizens of the State, in that proportion must be the rigor in order to keep them in subordi

nation.

I trust I have explained that military crimes are not specially defined, as crimes are defined in courts of law. I might have noticed another peculiarity of these courts, that punishments are more rigorous.

innocent witness on the part of the accuser is carried to jail; I have known them incarcerated thus because they were unknown to the justice and to the neighbors, and had not friends who would sign their recognisance. I acknowledge this seldom happens, perhaps never but where there are suspicions of the witness; but it always rests with the magistrate, to require it if he chooses. The witness by this law is only put on the same footing as if summoned to a court of common pleas, he is not recognised, he only incurs the same penalties he would do if he made default as a witness in a cause of twenty-one dollars dispute between individuals-so that the objection as to the hardship on the witness cannot be valid.

When it is fully understood in the House with how much severity this class of the community are ruled, and I call upon gentlemen to remember that the militia too are subject to these rules when called into actual service, when it is found that a person charged with a crime may have a witness competent to prove his innocence, but The gentleman from Kentucky has objected to who is not in military service at the time, shall the jumbling of military and civil institutions. we shut the door upon truth, and say that a man Let the gentleman decide at once that if a man when innocent shall be punished as guilty because shall be accused of a crime, a conviction of which the witness in his favor does not wear a cockade? subjects him to a punishment of five hundred lashIf we did, we should merit more reproaches than es, or to be shot or hung, he shall be deprived of some of us are disposed to heap on those who the privilege of summoning witnesses to attend. passed and enacted the sanguinary system I have Can he decide it? He cannot. Well, then, if been speaking of, excusable only from the neces we take it for granted that it is absolutely necessity of the case-they have enacted the punish- sary that we should not in that way immolate ment, and we should be chargeable in refusing justice, but allow a defence, how is that dethe culprit the power of defending himself from fence to be got at? If this bill proposed to auit. I do aver that this law does not alter the sys-thorize courts martial to send musketeers among tem at all, barely affording a relief to the soldier | the husbandmen in the country, is there a mind in

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the House that would not revolt at it? I think there is not. It is necessary that these courts should have the power to ask the question of the witness. All other power is vested with the courts at law. Are you afraid of them? Can courts martial interfere with courts of law in their punishment for defaults of witnesses? No; they are kept separate.

H. OF R.

and summon them? None. Or can they be taken before a military tribunal? No such thing is known to our laws. I defy any gentleman to show a power in a military court to derive testimony but from military men. Well, if this case might have occurred, and it surely might, is it not possible that other similar cases may occur? This jealousy of standing armies is a good one; The honorable Chairman (Mr. MONTGOMERY) I wish to foster it, and will, therefore, take the has explained that the provisions of this bill are testimony of any man, whether he bears an epausimilar with those of Great Britain; and how-let, or whether he be found in the military uniever much we may abuse that Government for form, or the more lowly garb of the husbandman, its corruption, I believe that the most enlightened when necessary to guard against the power of an men who have had an opportunity to examine her evil disposed officer or soldier. civil polity, have gone so far as to say, that this Mr. RowAN said, this was a subject to which, is the only thing excellent in their institutions—indeed, he had not devoted much attention; but the very salvation of the Government itself; that the more he thought of it, the more abhorrent it this good thing, like a few good men in a city, appeared to him. It is very strange, said he, that have saved the Government from that destruction America has gone through one war already, and which some of her other institutions might have not found out the evil which this bill proposes to brought upon it. For my part, I do not hesitate guard against. If this regulation were so indisto say that the courts of England have conducted pensably necessary, is it believed that, during the this power with impartiality; that there has not Revolution, no instance would have occurred, been an instance in which the privilege of a judi- which required its exercise? I believe none did cial court has been invaded in consequence of this occur. If, then, in a Government like ours, there provision, either by a court martial or by the has been shown no necessity for such a law, Crown. Where, then, is this jumbling, this col- would it not be premature to pass it? The doings lision of jurisdiction, which alarms us? My of a military court, the gentleman tells us, are enmind's eye can see in that bill as perfect a sever-tirely secret-all mankind shut out. It is true, as ance between the two jurisdictions as is possible to be described.

he says, that there is very little more inconvenience in attending a military than a civil court; After having confined myself as much as I the same quantum of locomotion will convey a could as respected the rights of the accused, of the man to one as the other, but, shut up in that court, citizen, and of the civil court, I come now to that without his friends, it may happen that his repu part of the subject, which cannot be new to the tation may be sacrificed. This law does not proHouse, on which I have heard the most eloquent vide that any but the parties may have power to harangues. What do we hear, whenever the sub-compel the attendance of witnesses. A single ject of the military is called up? Where is the witness may be brought before men who are so jealousy of military force directed? On whom connected by their common profession as to feel does it fall? Upon our standing army. It is a a sort of sympathy for each other, which men in standing army which the Republic fears-that of the common walks of society have not. Suppose all others which is most sedulously guarded and a witness brought before such a court to give tesrestricted. If this jealousy accords with the sen-timony against a man who has been always actiment of the nation, how should it be guarded? customed to command, while they have been How are the wicked and infamous officers in that trained to subservience and respect. What is his standing army to be marked and punished? The situation? The doors are shut, no person admitsoldier under their command may, from the influ- ted to see him, he comes out of a military court ence of his superior officers, be intimidated from with his reputation sacrificed. A confliction is bearing that testimony against a commander, made in his testimony which he has not wit to which a civil witness, safe from their power, detect, without counsel, or a friend to compassionmight do. Will you deprive the Republic of the ate him. I am unwilling that men should be benefit of this testimony? If it be necessary for brought from the field to a military court in the the individual, much more is it necessary for the dark. Government, and for the people of the United States. What is the case of those good fellows who took Major Andre? Suppose, instead of Andre, they had taken Arnold? Suppose that these men, who were above the bribes of the enemy, whose testimony was necessary, and conclusive of the guilt of the party-suppose this squeamishness to call upon the citizen out of the Army to prevail, how could the fact of his going to the enemy, of his being found out of the course and at a distance from the place of his duty be proved? Do the articles of war give any power to the court trying this man to go into the field 10th CoN. 1st SESS.-55

One of the articles of war, read by the gentleman from South Carolina, requires that an officer or soldier shall not speak disrespectfully of his superior officer-and for what reason? Because, were disrespectful language permitted in the ranks, it would tend to diminish that subordination so necessary in an army. It is not disrespect, as meant by the articles of war, for a soldier to speak disrespectfully of his superior officer to the laborers in the field, but it is meant that he shall not be spoken to with disrespect before those whom he commands, before whom respect to him is necessary. The disrespectful language must

H. OF R.

Military Courls.

MARCH, 1808.

be attested by soldiers, or it is harmless-mere and never ought to be violated, yet it will be by verba volentia, and never reaches the officer, or, if this bill, in my opinion. it does, no harm results. Nor can anything which an officer can do, which is punishable by a military tribunal, require any other evidence than of military men.

We know, as the gentleman has said, that punishments are generally more rigorous in the military than in the civil code. Wherever courts martial try offenders, despatch is required; and their whole proceedings are conducted in a summary manner, which, to us, is unknown, and I hope will long continue so. Until, then, some strong necessity be shown, I am averse to the familiarity which this bill goes to establish between military and civil institutions.

The details of this bill, if we go into a discussion of them, will not work; for I observe, among other things, that the bill provides that the certificate of a military officer shall be sufficient to warrant a punishment of a citizen for non-attendance on a summons.

A military court grows out of the Military Establishment-a thing of necessity, growing not out of the social order, but out of the military, and is confined to it. The very idea is abhorrent that republicans should be dragged from their homes, to attend a military inquisition--and what then? If we may judge from late specimens, his feelings may be injured and himself slandered. We find that, though secret, a military court can, now and then, emit a little gall. If there were no other reason, this would be sufficient to induce me to say that citizens should not be dragged be fore a court, to be sacrificed to military etiquette. Mr. RHEA, of Tennessee, said the gentleman's Ought not strong necessity to be shown before we chief objection to this bill appeared to be that the take an individual out of the walks of private honor of a citizen might not be safe with a mililife, before a tribunal of which he may be entire-tary court, because his testimony may be made ly ignorant, and of which he is presumed to know perfectly different from what he actually did tesnothing? It is a vast inroad upon his rights, in tify. When I observe the insinuations which this my mind, that he should be compelled to attend is intended to convey, I cannot express my feelbefore a secret tribunal. The honest man, dispos- ing of it. When I hear an intention to derogate ed to act uprightly, has nothing to fear from man- from the character of our military officers, and an kind in civil life. But, when taken before a mil- insinuation that our officers of rank and capacity itary court, he is out of his element, taken off are so destitute of any principle of honor and insocial ground; and this should not be done, ex- tegrity as to transubstantiate the evidence of any cept upon necessity the most imperious, and that witness, I shudder at the idea; and, if I thought does not now exist. this character could be justly applied to any court martial to be summoned out of our Army, I would, before to-morrow night, move a resolution to dissolve that Army. I deny the principle which the gentleman has assumed, because I believe that, with those men within our camp, there is integrity, honor, and virtue. At such observations as these, I cannot help expressing my astonishmeut and surprise.

I wonder gentlemen have not found some instances from England, in which men have been called from the civil rank. The act provides that, if necessary, a judge shall issue a subpœna. Has any one ever heard of a case in which this was necessary? None has occurred, that I know of. It strikes me as peculiarly varying our institution, and the distinction set up by the Constitution, which says, that the military shall be subservient to the civil institutions. I have heard of no case which would require it. If a soldier shows disrespect to his superior, it is before those in whose presence it flowed, that it is necessary to punish him, as well to make him, as others, by his example, conform to correct conduct. I hope society never will submit life to the discretion of a military court, except under the most absolute and imperious necessity, in which a civil court cannot interfere, particularly during war. In the case to which this bill particularly alludes, we know that some of those who have been summoned have refused to attend. Before they are compelled to attend, as this bill contemplates, we know that one of them has been published as perjured. In my mind, it is no unimportant right that the credit or degree of credibility of a witness should depend upon men in the same level of life with himself, in social, and not in military life. I am unwilling to place it in the power of any military court to call a man from the walks of social life. Men in civil life must be willing to trust their characters, and everything, to the sound sense of the community, to civil and not to military institutions. This is a radical provision

It has been objected to this bill, that, in a military court, examinations are made in a private manner, and that military courts may pervert testimony. If that be apprehended, this bill can be so amended as to provide that all testimony shall be taken publicly; and if gentlemen, whose fears are so much alarmed, will bring forward an amendment to this effect, no doubt it will be agreed to. The mere name of a soldier does not take away from them the patriotism and honor which they owe to themselves, and the integrity which they owe to society. If this were the case, I should pray that there was not one in the United States. But, I do not hold this doctrine, nor ever shall, till it be made to appear to me that our Army is composed of persons who are not our own citizens. They are bound to a care of their reputation and honor by the ties of kindred and society, as other men; and, when their term of service ceases, they return to the bosom of their country. In my opinion, the honor of the witness is safe with these men, and there is nothing to fear from them on that score.

It has been said that, if this bill passes, we shall make the civil subservient to the military institution. The very object of the bill is to add power

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