H. OF R.

Military Courts.

MARCH, 1808.

Sir, I trust the House will not do it. The gen-gentleman from Tennessee has observed that tleman from South Carolina has, to be sure, excourts martial or courts of inquiry cannot pervert pressed great sympathy for those persons who are the truth of evidence. They certainly have a subject to military rule. Sir, I feel as much as right to determine as they please on evidence; that gentleman for the sufferings of those who are and by whom, I would ask, are these courts apsubject to military and arbitrary power. But we pointed? Generally, it may be said, by the officers find from the experience of every country that of high rank, but sometimes by officers of inferior policy has dictated the subordination imposed by rank, sometimes for one purpose, sometimes for the articles of war, and from habit and custom it another. But no one will contend, sir, who knows is now thought necessary and proper. But how- anything of human nature, that inasmuch as ever pleasing and soothing the gentleman's repre- men holding commissions and filling high offices sentation of the situation of the soldier may be to in the Government have the appointment of courts the feelings of humanity, it certainly as an argu- martial, that the time may not arrive when those ment can have no bearing on the present question. courts may be created for the worst of purposes; If you mean to grant privileges to the military, that they may be created for the purpose of adwhich heretofore have been granted only to citi-vancing the views and interest of the person who zens, you destroy that subordination and distinc- creates them. Will the gentleman contend that tion which from experience and necessity has ex- a court appointed in this way, can or will decide isted between the two orders, and which distinction properly on the evidence that comes before them? has been recognised in the Constitution, and, there- Certainly not, sir; and I would ask to whom are fore, until it is found necessary from experience these courts responsible? Responsible only to to make this regulation, the House will not surely the person who appoints them. Sir, permit me agree to it. The gentleman from South Carolina to say that I consider these military courts as little tells us that trials before military courts are not calculated, from the very nature of their creation, public. I profess myself to be very little acquaint- to decide the fate of an American citizen as the ed with the modes of proceeding in these courts, inquisition itself. But, sir, another consideration and will, therefore, take the gentleman on his own has great weight with me. Before I would comshowing, and ask this House if they will sanction pel a citizen to appear as an evidence in any court a law by which their fellow-citizens shall be I must have some pledge that he would be prodragged into an inquisition-that, in defiance of tected, and that the persons composing the court those principles which have heretofore actuated were competent to decide on the rules of evidence, the Republican party, in violation of the people's and that he might not be called on to answer rights, that you will drag them before a court of questions tending to criminate himself. inquiry, or court martial, as the case may be, there to be shut up and questioned, on the most delicate subjects to themselves, and perhaps irrelevant to the cause, at the caprice and discretion of the commanding officer? Can this be justified? Can this be reconciled to their own feelings or to the people? If it can, gentlemen must differ very widely from me; indeed, viewing it as I do, they never could support it.

I will readily and willingly admit that the persons composing a court martial, or court of inquiry, may possess all the honor and valor characteristic of the soldier, but it does not follow that they are acquainted with our common and statute laws. A man may possess all the qualifications that may entitle him to mount the cockade in his hat; he may be bold, ardent, and adventurous, but not a profound lawyer. In fact, sir, without The gentleman from South Carolina has also saying anything to the disparagement of our offiobserved, that whenever anything was said in the cers-and which, I assure you, I have no disposiHouse with respect to the liberty of the country, tion to do-I may say that, from the nature of standing armies were introduced, and that the their education, they are not qualified to compose House were favored by an eloquent strain of de-a court, such as American citizens are accustomed clamation. Is this strange? Sir, the very articles of war which we are about to amend, or rather to make worse, is a strong argument why men subject to them ought not to be depended on in times af peace. Can any man suppose that a soldier, who can be tied up and flogged at the discretion of a petty court martial, can feel that ardor for liberty with one who is living in the unrestrained enjoyment of all its blessings? Can they be expected to step forward in defence of rights they do not enjoy? Can they feel much attachment to the principles of a Constitution, when they are deprived of sacred rights which are ex- Let us now examine the provisions of the first tended to others, and which rights would alone section, and see how far it comports with the digattach your citizens to your Government? No, nity which ought to be preserved in the Judiciary sir, no such zeal can be expected from them. of our country, and how far it respects the pri You might as well expect from the slave of an Eastern nabob, that attachment to your Constitution which you find in your own citizens. The

to. I will ask, what may be the result of this law, if passed? A soldier or officer is on his trial at Michilimackinac, and for the purpose of delay, he subpoenas a witness from a distant part of the Union; you must, by the provisions of this law, leave your home and give your attendance, when, in fact, you know nothing relative to the cause. This, sir, is giving a privilege unknown. I believe, in our civil courts, for, when a witness does not attend, you must file an affidavit, or your cause goes on; but this regulation, for aught I know, may vary in the different States.

vate and delicate communications which frequently take place among your citizens, and with which the public interest and welfare have no connexion.

6

H. OF R.

court, is a measure, sir, that I am sure this House never will sanction. What, sir, will be the consequence of this law if it pass? You prostrate the rules of evidence which have heretofore existed, and in your great zeal to convict the accused, you compel an American citizen, in violation of justice and the principles of liberty, to become his own accuser. It may be said, sir, that a court of inquiry, or court martial, would not suffer a disclosure of facts irrelevant to the cause, to be made. In the first place, sir, I may answer, that they may be, without reflecting on them as men of honor or courage, ignorant of statute and common law, and ignorant of the rules of evidence; and, in the second place, I never would trust to the discretion of any court, much less to a court having as little responsibility to the nation as a military court.

From the proviso, at the end of the second section, it appears that sickness, or some other inevitable impediment, is the only plea that can be made in justification of a default, and if a paper is not produced: "That in case such witness shall satisfy the court before whom such proceeding against such witness shall be had as aforesaid, that the default imputed to him was produced by sickness or other inevitable impediment, and was not an act of contempt or wilful disobedi

Let us refer to the bill: "That in every case ' where the attendance of any person, not in the military or naval service of the United States, 'shall be necessary as a witness before a military or naval court martial, a summons may be is'sued out of any court of the United States, and the clerk of any such court shall be, and he is 'hereby authorized and required, upon due appli'cation in writing by the judge advocate, or party officiating as such, or by the party accused, to 'issue such summons, requiring such witness to 'appear, and give evidence before such court martial or court of inquiry, and upon good and suffi'cient cause shown." What is meant by the words good and sufficient cause shown? I ask the framers of the bill, if they mean, by good and sufficient cause shown, that a military court shall determine when it is necessary; and that a judge of a civil court shall, in compliance with their command, issue a summons? Is this, sir, to be the power given to a court of inquiry by this bill? If it is, you make the civil institutions of your country instruments in the hands of a military court, for you call upon a judge to do a judicial act, without knowing whether it is correct or not. This, sir, is a principle which I never can sanction with my vote. But, perhaps, this is not the intention, but it is intended that the judge shall determine the necessity and propriety of summon-ence, such witness shall be forthwith discharged ing the witness. Then, I will ask, how is it pos- 'from any farther proceedings thereupon in said sible that a judge can decide, when the case is court." I will ask this House, if summoned to not judicially before him? How can the judge produce a letter, I could satisfy the judge that it of this District, for instance, decide upon the case had no relation to the cause depending, ought it depending in the court of inquiry, to which he not to be, on the principles of justice and common has not attended in the character of a judge? If sense, a sufficient cause for withholding it; ought they have not all the circumstances before them, I to be compelled to gratify the whim and caprice it is impossible they can decide any question with of the accuser or the accused, to produce a letter propriety, in the capacity of a judge. But, sir, of a delicate and private nature having no bearIt seems that they are to have power, by this law, ing on the subject, or to produce one that might to compel a witness to produce any paper, docu- criminate myself? Sir, this doctrine cannot be ment, or record in his possession, power, or con- supported. As something has been said, sir, with trol. [Mr. L. then read the following: "The respect to the court of inquiry now sitting in this I said witness, in such summons, may be further city, perhaps it may be said that this law should 'directed and required to exhibit in evidence be- pass, to enable the court to progress in their in'fore such court martial or court of inquiry, any quiry; against this it may be urged, that the of paper, document, or record in his possession, fence into which they are inquiring, is not an power, or control." Is there, I will ask, a judge offence known to the articles of war; but, in my presiding in any civil court in the United States opinion, it would be better that ten thousand ofwho would suffer a party to examine a witness to fenders, covered with suspicion and guilt, should this alarming, unjust, and indelicate extent? Was escape unpunished, than to violate the principles there ever such a thing heard of in a country pos- of your Constitution, on the inviolate observance sessed of civil liberty, that a summons should is- of which depends the liberty and happiness of sue, compelling a citizen to produce every docu- yourselves and your children. Better would it ment or paper in their possession or control? It be that General Wilkinson should remain (what is true, when any paper is decided by a judge, in he has proved by his own declaration) the vica court of common law, to be relevant, and im-tim of suspicion for thirteen years longer, without portant in a case, the party may be compelled to produce it; but to say that every paper and document, even of the most delicate and irrelevant nature, is to be produced; that the communications which have been made in the generous glow of friendship; that letters wich have been intrusted to the care and honor of a friend, involving the secret and private transactions of a man's life, and having no bearing on the cause at issue, are to be indiscriminaiely revealed to a military

establishing his innocence, and let the responsibility for his future good conduct rest with those who hereafter may retain him in office. Sir, as this individual case may be introduced as a reason for the adoption of this law, permit me to digress, and call the attention of the House and the nation to one fact; that in this country, which possesses every institution calculated to protect the property, to defend the liberty, and to preserve from malignity and slander the character of the

citizen; that an individual should be found professing all the punctilious honor and courage of the soldier, who, for thirteen years, has been the victim of suspicion. This is an enigma I will not pretend to unravel, but will leave it to those more skilled in necromancy than myself.

MARCH, 1808.

ENPORT, supported the motion for adjournment, and Messrs. DAWSON, M. CLAY, SLOAN, CAMPBELL and STANFORD opposed it and wished to choose a Speaker pro tem.

SATURDAY, March 5.

but it being understood that the SPEAKER was not At the usual hour on this day the House met; at present able to attend, and that he would probably attend on Monday, the House immediately adjourned.

MONDAY, March 7.

The observations of gentlemen on each side of the motion, were directed almost entirely to preIt has been said, sir, that the President of the edents. It was generally considered as a mark United States intimated a necessity for this law. of respect to the Speaker to adjourn for one day, He certainly, in his Message, noticed that milita- in order to ascertain whether it might be necestry courts had not the power of compelling the at- sary on the next day to appoint a Speaker pro tendance of witnesses; but I cannot, from this, tem. The gentlemen opposed to adjournment suppose that he meant to recommend a thing like wished to appoint a Speaker pro tem. in order to this, fraught with mischief incalculable. But, for proceed with business; but precedents were prothe sake of argument, I will admit that the Presi-duced in which the House had adjourned one dent has recommended this extraordinary bill, day or more in like cases. does it follow that this circumstance is to induce me to sacrifice the pledge I have given to my constituents to protect their rights, as far as I am able, or to violate the oath I have taken in the face of this House and in the face of the nation, to support the Constitution of the United States. But this argument of confidence, so often introduced into this House, is one I do not understand or approve. We are responsible to the people for our conduct-so is the Executive. And to say that we must advocate this or that measure, because the Executive recommends it, is, in my opinion, degrading to the dignity of the Representatives of the people. To the new-born political creed of unsuspecting confidence, of implicit obedience to Executive will, I never can, I never will, subscribe. If I cannot retain my popularity by a strict adherence to the principles of the Constitution, by supporting all measures calculated to advance the happiness of the people and the good of my country, and by a decided opposition to all those measures calculated to have a contrary effect, no matter by whom recommended, I am ready and willing to retire into private life, there to lament the political fanaticism of my countrymen. It is, sir, from the people themselves I wish to hold my popularity, and on the ground that, by my political conduct, I show myself attached to their rights and independence. I have trespassed a considerable time on the patience of the Committee, and am conscious of their indulgence.

Mr. RHEA, of Tennessee, rose to explain, that he had not used the expression, that military courts could not pervert testimony.

Mr. TAYLOR rose to observe that he had, when up before, expressed himself inaccurately; and the gentlemen who had replied to him had taken ample advantage of it. Military courts, he said, took testimony in public, but deliberated on it in private. He had, before, stated that the trial was private, which was an error, proceeding from his considering the practice in this country to be the same as in England.

FRIDAY, March 4.

Mr. PORTER presented a petition of sundry inhabitants of the city of Philadelphia, in the State of Pennsylvania, praying that the petitioners, their heirs and assigns, may have the privilege of renewing the patents granted to them, respectively, as discoverers or improvers of useful arts within the United States, for such farther term as to the wisdom of Congress shall seem meet.-Ordered to lie on the table.

Mr. BOYLE, from the Committee on the Publie Lands, to whom were referred, on the twentyninth of December, and the nineteenth and thirtieth of January last, the several memorials and petitions of the Wyaudot nation of Indians, and of the inhabitants of the Territory of Michigan, presented a bill supplemental to "An act regulating the grants of land in the Territory of Michigan;" which was read twice and committed to a Committee of the Whole on Thursday next.

The SPEAKER laid before the House a letter from the Secretary of War, accompanying his report on the petition of George Hunter, of the city of Philadelphia, referred to him by order of the House, on the second instant; which were read, and referred to the Committee of Ways and Means.

Mr. G. W. CAMPBELL, from the Committee of Ways and Means, presented a bill to amend the act, entitled "An act to regulate and fix the compensation of Clerks, and to authorize the laying out certain public roads, and for other purposes," passed the twenty-first day of April, in the year one thousand eight hundred and six; which was read twice and committed to a Committee of the Whole on Thursday next.

A Message was received from the PRESIDENT The House met this morning at the usual hour; OF THE UNITED STATES in relation to public but information being given that the SPEAKER ground and other property in the city of New was indisposed, and could not attend, the House, Orleans. The Message was read, and, together after some discussion, adjourned till to-morrow. with the papers accompanying the same, referMessrs. SMILIE, BLOUNT, QUINCY, and DAV-red to the Committee on the Public Lands.

MARCH, 1808,

Military Courts.

H. of R..

Mr. NEWTON, from the Committee of Com- Mr. F. then made some observations in favor of merce and Manufactures, to whom was commit- the principle of the bill; he thought the measure ted, on the fifteenth ultimo, the bill sent from which it embraced was necessary for the justifithe Senate, entitled "An act for erecting a light-cation of character and to prevent slander. He house, and placing buoys at the places therein said he had been in courts martial; and whenever mentioned," reported several amendments thereto; the judge advocate had summoned citizens, they which were read, and, together with the said bill, had attended without compulsion. If persons committed to a Committee of the Whole House. who were summoned were inclined to do justice, Mr. J. CLAY, from the committee appointed on they would still do so; but as a case of refusal had the seventeenth of November last, presented a occurred, it was requisite to provide that they bill for the encouragement of learning, and for should not have it in their power to refuse. the promotion of the useful arts; which was read twice and committed to a Committee of the Whole on Friday next.

On motion of Mr. CLOPTON, Resolved, That a committee be appointed to inquire into the expediency of continuing in force, for a farther time, "An act for the more effectual preservation of peace in the ports and harbors of the United States, and in the waters under their jurisdiction;" and that they have leave to report by bill, or otherwise.

Ordered, That Mr. CLOPTON, Mr. VAN RENSSELAER, and Mr. DURELL, be appointed a committee, pursuant to the said resolution.

A message from the Senate informed the House that the Senate have passed the bill, entitled "An act to incorporate the Trustees of the Baptist Church in the City of Washington ;" and the bill, entitled "An act for procuring an additional number of arms," with amendments, to which they desire the concurrence of this House. The Senate have passed a bill, entitled "An act to amend the act, entitled 'An act establishing Circuit Courts; and abridging the jurisdiction of the District Courts of the districts of Kentucky, Tennessee, and Ohio;" to which they desire the concurrence of this House.

The SPEAKER laid before the House a letter from the Secretary of War, transmitting an additional report in relation to the invalid pensioners of the United States; which were read, and, together with the documents accompanying the same, referred to the Committee of Claims.

MILITARY COURTS.

The House resolved itself into a Committee of the Whole on the bill concerning Courts Martial and Courts of Inquiry.

Mr. J. CLAY's motion for striking out the first section being yet under consideration

The question on striking out the first section was then taken, and the motion negatived-52 to 36.

Mr. TAYLOR observed that he had been struck with the force of the observations of the gentleman from Maryland a few days ago, on that part of the law which requires, upon a certain cause shown, the production of every paper, document, &c. The judicial courts did not possess the power of wresting from an individual private papers. The general terms of the laws which authorized the sending for persons, papers, and records, in certain cases, were construed to include merely public papers. He wished to leave these courts precisely in the same situation as courts of law, and therefore moved to insert in the first section the word "public" before the words "paper, document." &c.-Agreed to.

Several amendments having been made not affecting the principle of the bill, the Committee rose and reported it.

The amendments having been agreed to, and the question having been put that the bill be engrossed for a third reading,

Mr. D. R. WILLIAMS moved to strike out all the first section, except the amendment which had been made.

The SPEAKER decided that the motion was not in order.

The question on the bill's passing to a third reading was then taken by yeas and nays, on motion of Mr. STANFORD, and decided in the affirmative-yeas 65, nays 43, as follows:

YEAS-Willis Alston, jun., Ezekiel Bacon, David Bard, John Blake, jun., John Boyle, Robert Brown, William A. Burwell, William Butler, Joseph Calhoun, George W. Campbell, Matthew Clay, Orchard Cook, Richard Cutts, John Dawson, Josiah Deane, Joseph Desha, John W. Eppes, William Findley, James Fisk, Isaiah L. Green, John Heister, William Helms, James Mr. FINDLEY said he did not know that argu- Holland, David Holmes, Benjamin Howard, Daniel ment was necessary to subvert the objections Ilsley, John G. Jackson, Richard M. Johnson, Walter which had been made to the bill. The gentle-Jones, William Kirkpatrick, Nehemiah Knight, John man from Kentucky (Mr. RowAN) had given the best reason in the world for his objections-that he knew nothing about the subject. Every one hearing his arguments would have discovered that without his telling them. Those officers who compose courts martial, said Mr. F., are selected from their country for their integrity and honor, and are responsible for their conduct. I wish the gentleman from Kentucky, and all who do not know it, to understand that courts martial are always held as publicly as civil courts, but deliberate and make up their opinions in private.

Lambert, William McCreery, John Montgomery, Nicholas R. Moore, Jeremiah Morrow, John Morrow, Roger Nelson, Thomas Newbold, Thomas Newton, Wilson C. Nicholas, John Porter, John Pugh, John Rea of Matthias Richards, Lemuel Sawyer, Ebenezer Seaver, Pennsylvania, John Rhea of Tennessee, Jacob Richards, Dennis Smelt, John Smilie, Jedediah K. Smith, Henry Southard, Clement Storer, Peter Swart, John Taylor, John Thompson, George M. Troup, Daniel C. Verplanck, Jesse Wharton, Robert Whitehill, Isaac Wilbour, Alexander Wilson, Richard Winn, and James Witherell.

NAYS-Lemuel J. Alston, Burwell Bassett, William