H. of R. Sale of Public Arms. MARCH, 1808. The question was then taken on Mr. BIBB's proviso, and carried-53 to 26, W. Bibb, Epaphroditus Champion, Martin Chittenden, Joseph Clay, Howell Cobb, John Culpepper, Samuel W. Dana, John Davenport jun., Daniel M. Durell, [The ground of the various amendments to this James Elliot, William Ely, Francis Gardner, Edwin | bill and discussion upon them is this: The State Gray, John Harris, William Hoge, Robert Jenkins, of Georgia wishes to purchase arms to the numJames Kelly, Joseph Lewis, jun., Edward St. Loe Liv-ber of 10,000 stand, but has not in her Treasury ermore, Edward Lloyd, Nathaniel Macon, Robert Ma- specie wherewith to make payment. There is rion, Josiah Masters, Daniel Montgomery, jun., Jona- due to the State of Georgia out of the proceeds of than O. Mosely, Timothy Pitkin, jun., Josiah Quincy, the first sales of the Yazoo lands, in payment of John Randolph, Samuel Riker, John Rowan, John Russell, Samuel Smith, Richard Stanford, Lewis B. which the money is due, a sum of money. GeorSturges, Benjamin Tallmadge, Abram Trigg, Jabez gia wishes to receive from the United States those Upham, James I. Van Allen, Archibald Van Horn, arms, of which she stands in need, as a compenDavid R. Williams, and Marmaduke Williams. sation in advance of part of the first payment Ordered, That the said bill be read the third which the United States is bound to make to her at a certain time. Georgia is one of the applitime to-morrow. cants for arms, and the State whose necessity for them is most pressing.] SALE OF ARMS. The House took up for consideration the report of the Committee of the Whole on the bill authorizing the sale of certain arms. Mr. BIBB introduced an amendment to the bill, to except from the requisition of paying money into the Treasury before delivery the States to which the United States may be indebted in a sum equal to the amount of purchase. This clause was objected to by Mr. QUINCY, inasmuch as it would permit the creditor States to realize the debts due from the United States which may be payable ten or twenty years hence; all the States thus coming forward must be equally entitled to receive arms; there not being arms sufficient for all, it would give rise to an exercise of favoritism to particular States. motions and observations, were, Messrs. BACON, Those who opposed the object of the bill by ELY, QUINCY, and RHEA, of Tennessee. Those who supported it, were Messrs. ALSTON, BIBB, DAWSON, NELSON, NICHOLAS, TROUP, TAYLOR, and VAN HORN. The bill, as amended, was ordered to a third reading to-morrow-62 to 14. TUESDAY, March 8. Another member, to wit: from Virginia JoHN CLAIBORNE, appeared, produced his credentials, was qualified, and took his seat in the House. A message from the Senate informed the House that the Senate have passed the bill, entitled "An act remitting the duties payable on the importaIt was supported by Messrs. DAWSON, BIBB, and tion of a monument to be erected to the officers NELSON, who replied, that if these States choose of the United States' Navy, who fell during the thus to realize the debts due to them, for which attack made on the city of Tripoli, in the year they now receive interest, the United States would one thousand eight hundred and four,” with an have no objection. But the States would not do amendment; to which they desire the concurthis, for it was known when funded debt was to rence of this House; also, the bill, entitled "An be extinguished, that individuals would not sub-act in addition to the act, entitled 'An act supplescribe stock; that even if States did come for- mentary to the act, entitled 'An act laying an emward and apply for more arms than could be con-bargo on all ships and vessels in the ports and veniently disposed of, the Secretary of War would harbors of the United States," with several give to those States in preference which really amendments; to which they desire the concurhad occasion for them. rence of this House. Mr. BACON proposed an amendment to the proviso of Mr. BIBB, to limit the debts mentioned in the proviso to debts actually payable to the State applying, at the time of purchase. This amendment was agreed to; but, a few minutes afterwards, Mr. TAYLOR, who had voted in the majority from a misapprehension of the bearing of the amendment, moved a reconsideration of Mr. BaCON's amendment.-Agreed to, 37 to 35. Mr. BIBB called for a division of Mr. BACON's motion, taking it first on striking out of the proviso the words intended to be substituted by the amendment. The question, thus divided, was negatived-51 The House proceeded to consider the amendments proposed by the Senate to the bill, entitled "An act in addition to the act, entitled 'An act supplementary to the act, entitled 'An act laying an embargo on all ships and vessels in the ports and harbors of the United States:" Whereupon, Resolved, That this House doth agree to the first, second, third, fourth, fifth, sixth, and eighth, of the said amendments, and doth also agree to the seventh of the said amendments, with amendments. The House proceeded to consider the amendment proposed by the Senate to the bill, entitled "An act procuring an additional number of arms:" Whereupon, Resolved, That this House doth agree to the said amendment. The bill sent from the Senate, entitled "An act to amend the act, entitled 'An act establishing MARCH, 1808. Sale of Public Arms-Military Courts. Circuit Courts, and abridging the jurisdiction of the District Courts of the Districts of Kentucky, Tennessee, and Ohio, was read twice, and referred to Messrs. GEORGE W. CAMPBELL, JOHN G. JACKSON, and HOLLAND. H. OF R.. James Fisk, Francis Gardner, John Heister, Nathaniel NAVAL MONUMENT. The House proceeded to consider the amendment of the Senate to the bill, entitled "An act The House proceeded to consider the amendto incorporate the Trustees of the Baptist Church ment proposed by the Senate to the bill, entitled in the City of Washington:" Whereupon. the "An act remitting the duties payable on the im said bill, together with the amendment of the portation of a monument to be erected in memory Senate, was submitted to Messrs. SOUTHARD, fell during the attack made on the city of Tripof the officers of the United States' Navy, who BARD, BASSETT, BARKER, and Culpepper. Mr. MONTGOMERY, from the committee to whom oli, in the year one thousand eight hundred and was referred the President's Message on the sub-four." [The amendment appropriates $1,000 for ject, reported a bill additional to the bills hereto- railing and covering the same.] fore passed respecting the Ohio road. [This bill appropriates the sum of dollars in addition to former appropriations on the subject.] Which was twice read, and referred to a Committee of the Whole. On motion of Mr. VAN HORN, the resolution which he laid on the table a few days ago, for amending the Constitution in relation to contracts, was taken up and referred to a Committee of the Whole on the state of the Union. On a motion made to resume the consideration of a resolution on the table for printing certain papers relative to the Yazoo claim, the House refused to consider it. A motion was made by Mr. NICHOLAS, that the said bill and amendment do lie on the table; and the question being taken thereupon, it passed in the negative. The question was then taken that the House do agree with the Senate in their amendment to the said bill, and passed in the negative-yeas 48, nays 59, as follows: YEAS-Lemuel J. Alston, Burwell Bassett, Epaphroditus Champion, Martin Chittenden, Howell Cobb, Orchard Cook, John Culpepper, S. W. Dana, John Davenport, jr., John Dawson, Josiah Deane, Jas. Elliot, William Ely, Francis Gardner, John Harris, William Helms, Benjamin Howard, Daniel Ilsley, Robert Jenkins, Richard M. Johnson, Walter Jones, James Kelly, William Kirkpatrick, Joseph Lewis, jun., Edward St. Loe Livermore, John Love, Matthew Lyon, William An engrossed bill authorizing the sale of public Nelson, Thos. Newton, W. C. Nicholas, Timothy PitMilnor, Jonathan O. Mosely, G. S. Mumford, Roger arms was read the third time; and, on the ques-kin, jr., Josiah Quincy, Samuel Riker, John Russell, tion that the same do pass, it was resolved in the affirmative-yeas 86, nays 21, as follows: SALE OF ARMS. YEAS-Lemuel J. Alston, Willis Alston, jun., David Bard, Joseph Barker, Burwell Bassett, William W. Bibb, William Blackledge, John Blake junior, Thomas Blount, John Boyle, William A. Burwell, William Butler, Joseph Calhoun, George W. Campbell, Epaphroditus Champion, Joseph Clay, George Clinton, jun., John Clopton, Howell Cobb, John Culpepper, John Dawson, Josiah Deane, Joseph Desha, Daniel M. Durell, John W. Eppes, William Findley, Peterson Goodwyn, Edwin Gray, Isaiah L. Green, John Harris, William Helms, William Hoge, James Holland, David Holmes, Daniel Ilsley, John G. Jackson, Richard M. Johnson, Walter Jones, James Kelly, William Kirkpatrick, Nehemiah Knight, John Lambert, Joseph Lewis, junior, Edward Lloyd, John Love, Matthew Lyon, Robert Marion, Josiah Masters, William McCreery, William Milnor, Daniel Montgomery, junior, John Montgomery, Nicholas R. Moore, Thos. Moore, Jeremiah Morrow, John Morrow, Gurdon S. Mumford, Roger Nelson, Thomas Newton, Wilson C. Nicholas, John Porter, John Rhea of Tennessee, Matthias Richards, Samuel Riker, John Russell, Ebenezer Seaver, Dennis Smelt, John Smilie, Jedediah K. Smith, Samuel Smith, John Smith, Henry Southard, Richard Stanford, Clement Storer, Peter Swart, John Taylor, Abram Trigg, George M. Troup, James I. Van Allen, Archibald Van Horn, Daniel C. Verplanck, Jesse Wharton, Isaac Wilbour, Marmaduke Williams, Alexander Wilson, and James Witherell. NAYS-Ezekiel Bacon, Martin Chittenden, Matthew Clay, Orchard Cook, Richard Cutts, Samuel W. Dana, John Davenport, junior, James Elliot, William Ely, Dennis Smelt, John Smith, William Stedman, Clement NAYS-Willis Alston, jr., Ezekiel Bacon, David Bard, William W. Bibb, William Blackledge, John Blake, jr., Thomas Blount, John Boyle, Robert Brown, William Butler, Joseph Calhoun, Matthew Clay, John Clopton, Richard Cutts, Joseph Desha, Daniel M. Durell, John W. Eppes, William Findley, James Fisk, Peterson Goodwyn, Edwin Gray, Isaiah L. Green, John Heister, William Hoge, James Holland, David Holmes, John Lambert, Nathaniel Macon, Robert Marion, Josiah Masters, Daniel Montgomery, junior, John Montgomery, Nicholas R. Moore, Thomas Moore, Jeremiah Morrow, John Morrow, Thomas Newbold, John Pugh, John Rea of Pennsylvania, John Rhea of Tennessee, Jacob Richards, Matthias Richards, Ebenezer Seaver, James Sloan, John Smilie, Jedediah K. Smith, Samuel Smith, Henry Southard, Richard Stanford, John Taylor, John Thompson, James I. Van Allen, Jesse Wharton, Robert Whitehill, Isaac Wilbour, David R. Williams, Alexander Wilson, Richard Winn, and James Witherell. MILITARY COURTS. The SPEAKER having commenced reading the engrossed bill concerning Courts Martial and Courts of Inquiry— Mr. BASSETT said he could not sit still while the bill was reading without mentioning a proposition which he wished to make in relation to it. He believed that there was no position more sound than that wherever a tribunal was instituted, it should be made as perfect as possible. To effect this, it was necessary that it should be endued with the most extensive power to collect facts. He was, therefore, clearly of opinion, that the power of military courts to obtain testimony should be extended; but there was one principle in this bill to which he could not consent. He meant that part which put it in the power of a court martial to bring our citizens from either extreme of the continent to the other. A view of the continent would show the hardship of it. He would not restrain this power from a belief that our courts martial were so far biassed as to make an ill use of it, but he would not give it, because there was a possibility of their becoming so. He was not prepared to say that the difference between parole and written evidence was so great as to require oral testimony in all cases. He had always thought that civil courts had carried this principle too far, and certainly did not wish to admit it here. As the bill at present stood, a citizen might be called by a military court from the province of Maine to New Orleans. Mr. B. suggested one difference in this respect between courts of law and courts martial. Civil courts were numerous and held at stated places, offenders being tried in the district where the offence was committed, so that a witness might not, in civil cases, have so great a distance to travel; while a military court is held perhaps in a remote corner of the country from the peculiarity of its organization. Mr. B. concluded by moving that the bill be recommitted for the purpose of amending the detail. Mr. MONTGOMERY stated to the gentleman last up, that the operation of this bill went to provide that, in cases in which the definitive sentence might go to loss of life or to infamy, subpoenas should issue. But where the punishment did not extend to loss of life or infamy, depositions might be taken. He would submit it to the consideration of the House whether a person should be at the risk of life, limb, or reputation, before a court, and not have the benefit of that testimony which would prove his innocence. There was no civil criminal jurisdiction throughout the United States, the Constitution having forbade it, in which the person accused was not confronted with his witnesses; depositions were not allowed to be produced as evidence in such cases. This bill provides that, in cases going to life and infamous punishment, oral testimony shall be had; in other cases depositions may be taken upon application to a judge of the United States by the judge advocate or party accused. My own opinion on this subject is, that, in no case whatever, ought a sentence affecting life to be adjudged, unless the party be confronted by his witnesses; this, too, is the practice in our civil courts under the Constitution. The principle contained in the bill does not vary from the practice of the courts of the United States, or of the several States. Inasmuch as but in few cases can it be necessary to summon witnesses from remote parts of the Union, and as in those cases they ought to attend, I wish the bill not to be recommitted. MARCH, 1808. Mr. M. WILLIAMS wished the bill to be recommitted, and then stated his reasons for so doingamong others, that parole evidence, taken before a court of inquiry, when collected, could not be received by a court martial in cases affecting life or limb. When gentlemen come to examine the principles of the bill, they will be found erroneous. I am certainly of opinion that there ought to be provision by law to give a person accused of a crime a fair opportunity to meet all charges against him; but I cannot see any good grounds why a citizen should be dragged before a court martial, or compelled to come forward when their testimony could not be received. Whenever an officer in the Army is charged with a crime against military law, he is tried by a military court; but whenever he commits an offence of a civil nature, it is tried by a civil court. It is well known that the case which has formed the ground of this bill is triable by a civil court; and suppose a charge is made against an officer for murder, or for bribery, or corruption, is it proper that these, being civil offences, should be tried by a military court? I think the bill very exceptionable; I wish every person accused to have a fair trial, but I would never give power to a military court to drag our citizens from every part of the Union. Another section gives power to compel the production of all public papers. Would you compel a clerk of a court to bring forth all his records? Is there in the United States any court which has that power? In some cases copies of particular records are permitted to be taken; but this bill not only requires the records, but all in the possession of any officer, upon the summons of a military court. Another part says that "the witness shall be tried for non-attendance by the military court, and fined by a civil court." The second section says, "the witness shall not be discharged until he has gone through an examination, and the court think proper to discharge him." Gentlemen have told us that a military court will not pretend to abuse their authority. I would not give an authority to them which they possibly could abuse. A witness might be led to give testimony to convict himself by a court composed of military men, who, though actuated by good motives, may not be acquainted with the correct rules of procedure in such cases. I can never consent to vote for this bill; if it be recommitted, and such a bill reported as might be formed, I might vote for it, as I am willing to make some provision in the case. Such a bill as this, taking power from the civil and vesting it with the military authority, never ought to be adopted in our Government. We should be careful not to legislate for the particular case, but consider the general effects of the bill. Mr. FISK was opposed to recommitment. The necessity and justice of confronting persons accused with the witnesses against them had been acknowledged in all free Governments. Depositions were the most fallacious evidence that could be conceived; much more of fact could be gathered from oral testimony, cross-examinations being essentially necessary for obtaining the whole truth. In depositions, when taken, the deponent MARCH, 1808. Military Courts. H. OF R. commander to see justice done; and, in case he refuses, he is subject to infamous punishments, and these to be inflicted by a court martial, and not by a civil court. We have given courts martial this power, whether properly or not, it is not necessary to inquire. Unless you make a provision of the kind contemplated by this bill, you deprive the accused of the right of obtaining testimony in his favor, which must of necessity, per placed the officer in this situation, and ought to give him a chance for a fair trial. A variety of other instances might be mentioned. Speaking disrespectfully of his superior officer is made a crime, and the law is unlimited, does not confine it to the Army, but extends it to all parts of the United States. Here, then, is evidence required from civil life. In case of desertion also: when a soldier overstays the time specified in his furlough, he must be tried ; sickness may be plead in excuse. If it be out of his power to procure testimony of this he is tried for his life. A number may be made to speak a language and convey a meaning which he did not intend, and facts may be concealed, which, when drawn out by question, would totally change the complexion of the evidence. So long, therefore, as we have a disposition to secure the liberty of man, so long certainly should we preserve the testimony by parole. The life of a citizen soldier or officer is as dear to him as it is to à man in civil life. I believe it would be good policy in all Governments to re-haps, be drawn from the civil rank. You have duce the military law to as close a conformity with the civil as possible. In the same proportion as we do this, I believe we shall lessen the danger to be apprehended from a standing army; because, while they remember the feelings of a citizen freeman, they will respect the citizens' rights. The present bill is a step towards that object; it provides that courts martial or inquiry, whenever life or reputation is involved, shall have a power of summoning witnesses. This law is as well guarded as it was possible to make it; it does not put it in the power of a court martial arbitrarily to call a witness. Gentlemen will re-of instances might be produced where persons, collect that the accused is obliged to apply to a court of civil law, and show probable cause. Now let me ask whether this is not a complete security? The right is not arbitrary, nor the power at the will or discretion of the accused, but it is guarded with discretion. If the power be safe with courts of law in civil cases, why not in military? If gentlemen examine this bill again, they • will find that notwithstanding the necessity for this testimony, and the disposition of a court martial, it cannot inflict fines or forfeitures until a court of law have said that the testimony is necessary. The bill therefore makes the military subservient to the civil authority. It has been suggested as a reason for commitment, that, at present, a citizen can be summoned from one extreme of the country to the other. The bill provides, that in cases affecting life or reputation, as dear as life, (recollect that a soldier is nevertheless a brother citizen,) that a witness shall be liable to be summoned. Much better is it that these inconveniences should be suffered than that an innocent man should fall a sacrifice. When life or reputation are at stake, nothing can be brought in competition with them. The more you lessen the means of procuring testimony, in the same degree the Government grows despotic, and the liberty of the citizen is endangered. In taking depositions, the persons employed for that service may be interested in the destruction of the party accused; they may be taken by ignorant persons so as to be foreign to truth, and sometimes by artful ones, so as to be foreign to the meaning of the deponent, thus causing a sacrifice of life and perversion of all principles of justice. Instead of increasing, we should endeavor to ameliorate the evils attendant on a military life. from their peculiar situation, must be under the necessity of procuring evidence from civil life. In the same proportion that we lessen the opportunity of obtaining testimony, we deprive the citi zen of his privilege as an American. I wish to see the time when soldiers shall have their privileges secured and rights defined as citizens in civil life. I hope, therefore, that the bill will be permitted to pass. Gentlemen who wish a recommitment seem to think the principles of the bill exceptionable, which I consider as essential and of as much importance as ever were contained in any one bill proposed to the consideration of the House. I have considered our articles of war as the very image of despotism. Death seems to stare us in the face through the whole of them. But they were enacted in the wisdom of the House, and probably my inability to discern the good features they contain, so much distorts them in my eyes; but I wish to secure every privilege that can be permitted. Since no summons, no attachment, no process can issue or inconvenience can ensue till proper cause be shown, and till the judge has exercised his discretion, I trust and hope that gentlemen will find this sufficient to alleviate their fears for the citizens. Mr. LIVERMORE said he had no objection to the recommitment of the bill, or to whatever course should be pursued in relation to it. In its present form he thought it the greatest monster ever exhibited before the Legislature, and destructive of the very principles it went to support. If the gentleman last up was right in what he thought should be the spirit of the bill, he was wrong in the construction which he gave to the letter of it. From what he says, observed Mr. L., I collect that We have been told that all offences committed he thinks there ought to be a discretion with a on society are punishable by a civil court. We judge to issue subpoenas to compel testimony. shall find the case to be different on examining the There is not, however, such a provision in the articles of war, of which I will mention one or bill; for although in common parlance the word two. When the Army is on its march, if any in-"may" leaves a discretion, in legal construction it jury be done to citizens, it is made the duty of the is imperative. The gentleman has an idea that H. OF R. Military Courts. MARCH, 1808. the bill leaves a discretion with the judge; if it Mr. MARION hoped the bill would be recommitis intended, it should have been so expressed. If ted. He was opposed to the passage of the bill it is wished to give a discretion, the bill should be in its present shape, not from enmity to military recommitted for the purpose; but even then I courts nor to the principle of the bill, but to the should be opposed to it altogether. I would ask extent to which it was carried. I allow, said he, gentlemen whether they are willing to give pow- that it is important that the accused should be er to a military court to send to any part of the confronted with his witnesses, but when I recolUnion, and compel the production of all the re-lect that in ninety-nine cases out of an hundred cords to send from a court in the province of where the citizen is tried for his life, viz. in all Maine to the custos rotulorum or whatever he may prosecutions in State courts, he cannot obtain be in Georgia, and compel him to produce all their compulsory process to obtain evidence of a witacts? I do not conceive that the Convention del-ness without the limits of a State, while this bill egated this power to Congress; if however it be gives a court martial power to call a witness from derived by a forced construction, there is here no any part of the United States, I must object to it. necessity for its exercise, and it would produce a The inconvenience to result to the citizen from real injury. I should consider it unfortunate that this bill will be much greater than he suffers at we should legislate with a view to a particular present from his liability to be compelled to attend case; it is not my opinion that the Legislature in the Federal courts. The Constitution of the can properly make a law with a view to a partic- United States provides that all criminal offences ular case, especially when popular opinion on the shall be tried in the districts where the crimes are subject has been much agitated; it is said that committed, and it is probable that persons who this bill has reference to such a particular case, can prove the offence reside in the neighborhood. although in fact it is made a general law. I can- Not so in courts martial or courts of inquiry. Had not find that it will remedy the evils which exist the inquiry now pending been held in the district even in that case. An affidavit of a member of where the offence is charged to have been comthis House has been taken, and sent to the Presi-mitted, it would have been in the district of Kendent of the United States, relative to a certain person; now, if I recollect, the charges contained in that affidavit did not arise from the articles of war, nor were they punishable by a military court. For what purpose then are we pursuing this subject at this particular time? The gentleman involved has called upon the Secretary of War to make an inquiry into his military conduct? What may be the result? It may give him an opportunity ostensibly to clear up his conduct. I have no ill will against General Wilkinson; I am wholly unacquainted with him; but as a legislator I must take things as they come before me. I know of no necessity for this thing. If General Wilkinson be accused by the papers transmitted, it is in his power to meet them; if evidence be produced sufficient to invalidate the testimony against him, it will have all its effect. Mr. L. then took a view of the necessity for this law. The act of Congress of the last session had established certain articles and regulations for the discipline of the Army; he did not agree with gentlemen in their great objection to these, for there could be no body of disciplined troops with out similar rules. He had heard of no necessity for this law. If the United States had proceeded from 1776 to this time without it, he conceived it unnecessary to introduce it at this time. In speaking of depositions, he said he could see no material objections to them. The only difference between a deposition taken by a civil officer and oral testimony before a court martial, was, that one was taken down by a civil judge and the other by the judge advocate, and in this form deliberated upon by the court. He was not anxious for the recommitment of the bill, because he was opposed to the principle in toto; though he thought some addition to the articles of war of last session, relative to evidence of witnesses in particular cases, might be introduced. tucky, where probably witnesses who could testify to the person's innocence or guilt could have been easily obtained. But when the offence is triable by a court martial, the offence may be alleged to have been committed in New Orleans, and the witnesses residing in that district may be compelled to attend the court martial in the district of Maine. Therefore the power given by this bill to courts martial is much greater in that respect than the power of the courts of the United States. With respect to the powers being confined to those cases which extend to the cashiering or dismission of a commissioned officer, when we consider how indefinitely offences are described in the military code, and how much is left to the discretion of the courts to determine, we cannot say in many cases whether the punishment would be trivial or whether it would extend to loss of life or reputation. A judge when applied to for a summons will look into the articles of war, and if the punishment of the crime amount to cashiering, the witness must attend; a deposition cannot be taken. If an officer murders a citizen he cannot by any process I am acquainted with compel the attendance of a witness residing beyond the precinct of the State in which the crime was committed; while by this law, if he refuses to cut his hair or neglects any other requisite of military law, a citizen may be dragged from the place where the offence is committed, to any place however remote from his residence, where the court martial may be held. When I consent that a court martial in a district shall have the same power of compulsion as a civil court in that district, it is as far as I can go. If the bill be recommitted and amended, thus far I will go. Mr. BACON wished the bill to be recommitted, that it might pass with as general a consent as possible. He went into an examination of the principle; he cited the laws of Pennsylvania and |
