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Military Courts.

MARCH, 1808.

to the civil authority-for what? For the establishment of truth. Power is given to Congress, by the Constitution, to raise and support armies and navies, to make regulations for the government of the land and naval forces; power is also given to them to establish superior courts, &c. For what were these powers given? For the establishment of right and the punishment of wrong. How is this object to be accomplished? By correct evidence of facts-and, to procure this evidence, the present bill has become necessary.

It is said that a military court is incidental, growing out of a military institution. Granted. Out of what does the military institution grow? The Constitution. And, if it becomes necessary that we should act on this principle, hy are these suspicions of those who compose our Army to be poured forth? If the Constitution has given us power to provide rules and regulations for the government of the Army, it has given us power to institute courts for the trial of offences-to use means commensurate with the object. If we establish military courts, such testimony as becomes necessary to establish facts in cases triable by those courts ought to be procured. Decisions of all courts rest upon the facts brought before them. The grand object of this bill being to do what is necessary, to procure testimony to establish facts before a court martial or court of inquiry, I must say that I am not a little surprised that any gentleman can object to it.

It is said, that this bill will blend the civil and military institutions. The Constitution has authorized us to superintend civil and military affairs; you may as well say that the Constitution has blended them together. If there be any blending of institutions, it is in the Constitution, and cannot be affected by this bill, which goes merely to provide for procuring that mass of evidence necessary for conviction.

Mr. LLOYD said he would state the reasons that would induce him to vote in favor of the motion for striking out the first section, and also his reasons for voting against the bill. That the principles and details of this bill were so abhorrent to his mind, so little according with the political principles which had always actuated his conduct, that he could not reconcile it with his duty to his constituents, or to his own feelings, to give a silent vote. He wished also to be understood, that in any observations he should make, he meant not to impeach the principles or motives of those gentlemen who advocated the bill, nor in anything he might say in regard to courts of inquiry, or courts martial, did he mean to reflect on any officer of our Army.

He said he should consider the nature of the court to whom we were about to give the power by law, of dragging our citizens from their families and their homes, how far the details of this bill accorded with the principles of justice or the spirit of the Constitution, and what necessity did there exist for the increasing of the jurisdiction of military courts to this alarming extent. The reason which has been urged by my colleague (Mr. MONTGOMERY) and on which he declares

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this bill to be founded, is, that at present a soldier or officer of the United States may be tried and deprived of his life, when deprived of the power of summoning witnesses that may be necessary for his defence. This might be an argument of some weight, if an officer or soldier was amenable only to a military court; but the fact is, that military courts are clearly intended, by the articles of war, for the punishment of offences committed in quarters, garrisons, or on march, or acts most generally committed in the view of the Army, and which are made offences by military law. Those offences, then, sir, being committed before military men, courts martial, or courts of inquiry, have already the power of summoning those witnesses that may be material either to criminate or acquit the accused. But what, sir, is the situation of the officer or soldier who commits an offence against the person or property of a citizen, such as is punishable by the known laws of the land? If the gentleman will turn to the 33d article of war, he will find that they are to be delivered over to a civil magistrate, that he may bring them to trial. Mr. L. then read the following clause:

"When any commissioned officer or soldier shall be accused of a capital crime, or of having used violence, or committed any offence against the persons or property of any citizen of any of the United States, such as is punishable by the known laws of the land, the commanding officer, and officers, &c., are required, upon application, &c., to use their utmost endeavors to deliver over the person or persons so accused, &c., in order to bring them to trial," &c.

In what situation then, I will ask, is it probable that an officer or soldier should commit an offence, on the trial for which he would not have it in his power to summon evidence? If an offence is committed for which he is amenable to a court martial, it results from his situation, and the effects of military discipline, that it must take place in the presence of those who may be summoned by a military court. I mean, sir, his brother officers or soldiers. If, on the other hand, an offence is committed, not known in the articles of war, and for which he is amenable to the civil authorities of your country, a military court has nothing to do with it, and the civil court has already the power of summoning any witness, either military or civil.

This then, sir, being a correct position, I shall contend that there is not the most distant probability that any offence should be committed, when it will be impossible to procure or compel the attendance of evidence, if any evidence should exist, and it must be admitted that if none should exist, no law we can pass can conjure it up, either for the purpose of condemnation or acquittal; and what must give force to this opinion, that no necessity does exist for this law, is, that not a case has occurred in which testimony could not be had before a proper tribunal. I would, sir, then ask if no such case has existed, if your laws heretofore have been effective, why anticipate an improbable evil, for the purpose of applying the remedy of this law, the effects of which, in my opinion, would be mischievous and oppressive?

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Military Courts.

MARCH, 1808.

Sir, I trust the House will not do it. The gen-
tleman from South Carolina has, to be sure, ex-
pressed great sympathy for those persons who are
subject to military rule. Sir, I feel as much as
that gentleman for the sufferings of those who are
subject to military and arbitrary power. But we
find from the experience of every country that
policy has dictated the subordination imposed by
the articles of war, and from habit and custom it
is now thought necessary and proper. But how-
ever pleasing and soothing the gentleman's repre-
sentation of the situation of the soldier may be to
the feelings of humanity, it certainly as an argu-
ment can have no bearing on the present question.
If you mean to grant privileges to the military,
which heretofore have been granted only to
zens, you destroy that subordination and distinc-
tion which from experience and necessity has ex-
isted between the two orders, and which distinction
has been recognised in the Constitution, and, there-
fore, until it is found necessary from experience
to make this regulation, the House will not surely
agree to it. The gentleman from South Carolina
tells us that trials before military courts are not
public. I profess myself to be very little acquaint-
ed with the modes of proceeding in these courts,
and will, therefore, take the gentleman on his own
showing, and ask this House if they will sanction
a law by which their fellow-citizens shall be
dragged into an inquisition-that, in defiance of
those principles which have heretofore actuated
the Republican party, in violation of the people's
rights, that you will drag them before a court of
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 irrele-
vant 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.

gentleman from Tennessee has observed that courts martial or courts of inquiry cannot pervert the truth of evidence. They certainly have a right to determine as they please on evidence; and by whom, I would ask, are these courts appointed? Generally, it may be said, by the officers of high rank, but sometimes by officers of inferior rank, sometimes for one purpose, sometimes for another. But no one will contend, sir, who knows anything of human nature, that inasmuch as men holding commissions and filling high offices in the Government have the appointment of courts martial, that the time may not arrive when those courts may be created for the worst of purposes; that they may be created for the purpose of adciti-vancing the views and interest of the person who creates them. Will the gentleman contend that a court appointed in this way, can or will decide properly on the evidence that comes before them? Certainly not, sir; and I would ask to whom are these courts responsible? Responsible only to the person who appoints them. Sir, permit me to say that I consider these military courts as little calculated, from the very nature of their creation, to decide the fate of an American citizen as the inquisition itself. But, sir, another consideration has great weight with me. Before I would compel a citizen to appear as an evidence in any court I must have some pledge that he would be protected, and that the persons composing the court were competent to decide on the rules of evidence, and that he might not be called on to answer questions tending to criminate himself.

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 arti- to. I will ask, what may be the result of this law, cles of war which we are about to amend, or if passed? A soldier or officer is on his trial at rather to make worse, is a strong argument why Michilimackinac, and for the purpose of delay, he men subject to them ought not to be depended on subpoenas a witness from a distant part of the in times af peace. Can any man suppose that a Union; you must, by the provisions of this law, soldier, who can be tied up and flogged at the dis- leave your home and give your attendance, when, cretion of a petty court martial, can feel that ardor in fact, you know nothing relative to the cause. for liberty with one who is living in the unre- This, sir, is giving a privilege unknown, I bestrained enjoyment of all its blessings? Can they lieve, in our civil courts, for, when a witness does be expected to step forward in defence of rights not attend, you must file an affidavit, or your they do not enjoy? Can they feel much attach- cause goes on; but this regulation, for aught I ment to the principles of a Constitution, when know, may vary in the different States. they are deprived of sacred rights which are extended to others, and which rights would alone attach your citizens to your Government? No, sir, no such zeal can be expected from them. 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

Let us now examine the provisions of the first section, and see how far it comports with the dignity which ought to be preserved in the Judiciary of our country, and how far it respects the pri vate and delicate communications which frequently take place among your citizens, and with which the public interest and welfare have no connexion.

Military Courts.

MARCH, 1808.

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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.


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 mar'tial 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 summoning the witness. Then, I will ask, how is it possible that a judge can decide, when the case is not judicially before him? How can the judge of this District, for instance, decide upon the case depending in the court of inquiry, to which he has not attended in the character of a judge? If they have not all the circumstances before them, it is impossible they can decide any question with propriety, in the capacity of a judge. But, sir, it seems that they are to have power, by this law, to compel a witness to produce any paper, document, or record in his possession, power, or control. [Mr. L. then read the following:] "The 'said witness, in such summons, may be further 'directed and required to exhibit in evidence be'fore such court martial or court of inquiry, any paper, document, or record in his possession, 4 power, or control." Is there, I will ask, a judge presiding in any civil court in the United States who would suffer a party to examine a witness to this alarming, unjust, and indelicate extent? Was there ever such a thing heard of in a country possessed of civil liberty, that a summons should issue, compelling a citizen to produce every document or paper in their possession or control? It is true, when any paper is decided by a judge, in

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 disobedience, such witness shall be forthwith discharged 'from any farther proceedings thereupon in said court." I will ask this House, if summoned to produce a letter, I could satisfy the judge that it had no relation to the cause depending, ought it not to be, on the principles of justice and common sense, a sufficient cause for withholding it; ought I to be compelled to gratify the whim and caprice of the accuser or the accused, to produce a letter of a delicate and private nature having no bearing on the subject, or to produce one that might criminate myself? Sir, this doctrine cannot be supported. As something has been said, sir, with respect to the court of inquiry now sitting in this city, perhaps it may be said that this law should pass, to enable the court to progress in their inquiry; against this it may be urged, that the offence into which they are inquiring is not an offence known to the articles of war; but, in my opinion, it would be better that ten thousand offenders, covered with suspicion and guilt, should escape unpunished, than to violate the principles of your Constitution, on the inviolate observance of which depends the liberty and happiness of yourselves and your children. Better would it be that General Wilkinson should remain (what he has proved by his own declaration) the vic

a 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 establishing his innocence, and let the responsiproduce it; but to say that every paper and docu- bility for his future good conduct rest with those ment, even of the most delicate and irrelevant who hereafter may retain him in office. Sir, as nature, is to be produced; that the communica- this individual case may be introduced as a reations which have been made in the generous glow son for the adoption of this law, permit me to diof friendship; that letters wich have been in-gress, and call the attention of the House and the trusted to the care and honor of a friend, involv- nation to one fact; that in this country, which ing the secret and private transactions of a man's possesses every institution calculated to protect life, and having no bearing on the cause at issue, the property, to defend the liberty, and to preserve are to be indiscriminaiely revealed to a military from malignity and slander the character of the

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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.

It has been said, sir, that the President of the United States intimated a necessity for this law. He certainly, in his Message, noticed that militatry courts had not the power of compelling the attendance of witnesses; but I cannot, from this, suppose that he meant to recommend a thing like this, fraught with mischief incalculable. But, for the sake of argument, I will admit that the President has recommended this extraordinary bill, 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.

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.

The observations of gentlemen on each side of the motion, were directed almost entirely to preedents. It was generally considered as a mark of respect to the Speaker to adjourn for one day, in order to ascertain whether it might be necessary on the next day to appoint a Speaker pro tem. The gentlemen opposed to adjournment wished to appoint a Speaker pro tem. in order to proceed with business; but precedents were produced in which the House had adjourned one day or more in like cases.

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.

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 Public 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 Wyandot 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.


FRIDAY, March 4.

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.

Military Courts.

MARCH, 1808,

Mr. NEWTON, from the Committee of Commerce and Manufactures, to whom was committed, on the fifteenth ultimo, the bill sent from the Senate, entitled "An act for erecting a lighthouse, and placing buoys at the places therein mentioned," reported several amendments thereto; which were read, and, together with the said bill, committed to a Committee of the Whole House. Mr. J. CLAY, from the committee appointed on the seventeenth of November last, presented a bill for the encouragement of learning, and for 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.

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.

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Mr. F. then made some observations in favor of the principle of the bill; he thought the measure which it embraced was necessary for the justification of character and to prevent slander. He said he had been in courts martial; and whenever the judge advocate had summoned citizens, they had attended without compulsion. If persons who were summoned were inclined to do justice, they would still do so; but as a case of refusal had occurred, it was requisite to provide that they should not have it in their power to refuse.

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 au

Ordered, That Mr. CLOPTON, Mr. VAN RENS-thorized the sending for persons, papers, and recSELAER, and Mr. DURELL, be appointed a com-ords, in certain cases, were construed to include mittee, pursuant to the said resolution. 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.

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.

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:


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

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 Holland, David Holmes, Benjamin Howard, Daniel Ilsley, John G. Jackson, Richard M. Johnson, Walter

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

Mr. FINDLEY said he did not know that argument was necessary to subvert the objections which had been made to the bill. The gentle-Jones, William Kirkpatrick, Nehemiah Knight, John man from Kentucky (Mr. RowAN) had given the Lambert, William McCreery, John Montgomery, Nichobest reason in the world for his objections-that las R. Moore, Jeremiah Morrow, John Morrow, Roger, Nelson, Thomas Newbold, Thomas Newton, Wilson he knew nothing about the subject. Every one hearing his arguments would have discovered C. Nicholas, John Porter, John Pugh, John Rea of that without his telling them. Those officers Matthias Richards, Lemuel Sawyer, Ebenezer Seaver, Pennsylvania, John Rhea of Tennessee, Jacob Richards, who compose courts martial, said Mr. F., are seDennis Smelt, John Smilie, Jedediah K. Smith, Henlected from their country for their integrity and ry Southard, Clement Storer, Peter Swart, John Tayhonor, and are responsible for their conduct. I lor, John Thompson, George M. Troup, Daniel C. Verwish the gentleman from Kentucky, and all who planck, Jesse Wharton, Robert Whitehill, Isaac Wildo not know it, to understand that courts martial bour, Alexander Wilson, Richard Winn, and James are always held as publicly as civil courts, but Witherell. deliberate and make up their opinions in private,

NAYS-Lemuel J. Alston, Burwell Bassett, William

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