Slike strani

MARCH 1808.

Military Courts.

H. OF R.

New York giving the State courts martial the the duties on the salt, at twenty cents per bushel, when most unlimited power to issue compulsory pro- the law, at the time the entry was made, authorized cess; similar laws he believed existed in Massa- the exaction of not more than twelve cents per bushel. ehusetts and Maryland ; in how many other The petitioners pray that Congress will interpose their States in the Union he could not say. He thought powers, and direct a remission of eight cents per bushupon the whole that there was nothing objection- el, which has been illegally demanded by the collector. able in the principle of the bill, but as he thought

The committee are of opinion that the case which it needed a little amendment in detail

, he was the petitioner presents comes properly under the cogwilling it should be recommitted.

nizance of the judiciary. The bonds given to secure Mr. J. MONTGOMERY said that the gentleman who tioners have it in their power to raise a question for

the duties on the salt are not, as yet, due. The petihad just sat down tiad very properly

stated that this legal decision, by making a tender of the sum which was a novel subject, presented for the first time in they think is legally due, and by withholding the paythis form, and therefore it was no matter of sur- ment of that which appears to them to be illegally deprise thai the bill had been at first reported defec- manded. The committee are, therefore, of opinion that tive; it could not have been expected that it the case of the petitioners is not entitled to the intershould be entirely complete at once. When the position of the extraordinary powers of Congress. bill was first reported, said be, defects were found; The committee recommend the adoption of the folit was recommitted and reported in its present lowing resolution : form. The gentleman from Massachusetts (Mr. Resolved, That the petitioners have leave to withLIVERMORE) has denounced this bill as a monster. draw their petition. We may conceive his idea of a monster by what

The report was adopted. be considers as perfection itself. He has told us that the rules and articles of war are not deficient,

Mr. Boyle, from the Committee on the Public thai they are unexceptionable. What are they? Lands, to whom was committed on the twentyThey present to the mind the very monster which ninth ultimo, the bill sent from the Senate, entithe gentleman bas represented this bill to be. Ir lled "An act granting William Wells the right of be examines them he will find, that besides the li- pre-emption,” reported several amendments thereability to punishment for all civil offences in com- to; which were iwice read, and reed to by the

House. mon with other citizens, the officer or soldier is liable to loss of life for crimes defined in sixteen

Ordered, That the said bill, with the amendarticles of the rules and regulations for the Army, ments, be read the third time to-morrow. and nine in those for the Navy Establishment. the second ultimo, “ to inquire into the manner in

Mr. Durell, from the committee appointed, on There are besides a number of articles affecting which the Representatives' Hall is heated by furreputation, for crimes exclusively confined to military conduct ; and yet the gentleman says these naces beneath the flooring of the same; what are unexceptionable, and has denounced a bill for the health of the members exposed to their exha

probable influence such subjacent fires have upon ameliorating these rules by giving the accused an lations, and how, or by what means the injurious opportunity

of defending themselves. The House will decide on which side the deformity lies.

effects of the same may, in future, be avoided," Mr. M. made some observations defending the made a report thereon; which was read, and laid details of the bill; but as some gentlemen who

on the table. were friendly to the principle had taken exception

MILITARY COURTS. to some of its provisions, holding himself always

The House went into a Committee of the open to conviction, and not meaning in this case to depart from that principle, he was willing that whole, 55 to 35, on the bill concerning Courts the bill should be recommitted; and therefore Martial and Courts of Inquiry. withdrew bis opposition to the motion.

Mr. J. MONTGOMERY said, that to meet the obThe bill was ihen recommitted to a Committee jections offered by gentlemen to the bill on yesof the Whole without opposition.

terday, he had prepared amendments which he hoped would remove every objectiun. He then

proposed an amendment restricting the power of WEDNESDAY, March 9.

a military court to call witnesses to the distance Mr. Newton, from the Committee on Com- of one hundred miles from the place where it merce and Manufactures, to whom was referred shall be held, thus ingrafting on these courts the the petition of Samuel Miller, of Wiscasset, in the principle of civil courts of the United States. District of Maine, in the State of Massachusetts, Agreed to without a division. in bebalf of himself and others, made the follow- Mr. LIVERMORE had no objection to give miliing report:

tary courts the power to compel testimony if it The petitioners state that they imported from Liver- were so secured as not to be injurious to the citipool, in the ship Golden Rule, 9,4641 bushels of salt.

zen. He thought it should never be done but for They also state, that the ship arrived at the quarantine a specified crime coming within the articles of ground, near the harbor of Boston, on the 29th day of war. Why compel a citizen togoone hundred miles June, 1807; on the 2d of July following, she entered from his home, if no end was to be answered by it? the harbor of Boston, and on the next day entry was These charges should be supported by affidavit as made of her cargo at the custom-house. The petition- cases submitted to a grand jury; when that was ens complain, that the collector compelled them to bond the case, witnesses might attend. To meet his

H. OF R.

Military Courts.

March, 1808.

that persons

own idea on this subject he moved the following often told of the necessity of inquiry into a parproviso:

ticular case, in relation to crimes not of modern Provided always, That no summons shall issue but of ancient date. In the case of General Wil

. unless some specific charge shall be made in writing, kinson, that officer had been accused of crimes of supported by affidavit, of an offence, of which if the thirteen years standing; the House bad asked the accused should be afterwards convicted on trial before institution of an inquiry into his conduct; the a court martial, such person would be liable to punish- President informed them that he had already done ment, pain, or penalty, by virtue of the act entitled "An it; the character of this person hung on this in. act for the establishing rules and articles for the gov: quiry. Now, in order to show whether these ernment of the armies of the United States," made and charges were true or false, it had become necespassed the 10th day of April 1806, and of which the


in civil life should be summoned trial and punishment is not barred by the 88th article to give testimony. For the purpose of justice it of said act, or of any offence committed in the Navy had become necessary to put it in the power of of the United States cognizable by a court martial.”

each party to obtain means of crimination or deMr. Bacon objected to this amendment as going fence; and now gentlemen came forward and totally to exclude courts of inquiry from the opera- wished to limit the inquiry te transactions of two tion of the bill. If they were considered as years standing. anything he could not see why they should not Mr. Rowan, in some observations in reply to have the same power to issue compulsory process the gentleman last up, observed that General Wilas courts martial. This amendment was draughted kinson had the means of meeting the charges. in such a manner as completely and exactly to Joseph Hamilton Davies, a gentleman in the exclude the court of inquiry now pending, from Western country, second to few in talents and exercising the general power delegated by the bill; reputation, had long since made these charges, whether this was the gentleman's intention or not, pledged himself to the nation to prove them, and he could not pretend to say.

challenged Wilkinson to prosecute him for makMr. LIVERMORE explained his intention to be, ing them. Was not here a fair object for prosethat citizens should not attend courts in cases cution, a man of reputation, talents, and fortune? where their evidence could be of no avail, or in General Wilkinson having it in his power to meet cases of crimes which the court could not punish, these charges there was no necessiiy for legislaas in the case of those specified in the 88th article ting on this subject in delicacy to him; but if of the rules and regulations for the government of they did pass such a law as this to clothe the milithe Army.

tary with the rights of civil life, they should do Mr. VARNUM presumed his colleague was not it guardedly. He was certainly opposed to the aware of the construction which might be given principle, but if it must pass, he would endeavor to his amendment; for it would totally exclude all to make it as unobjectionable as he could. For military offences of which a 'soldier could be this reason he was in favor of the proviso. charged. The 88th article barred after a term of Mr. TAYLOR said, if some time ago there had two years all offences against the United States; been as little anxiety for the development of the and the construction of the amendment which charges against the person whose case had been ostensibly went to require specification, would ex- so often cited as there appeared to be now, this clude from the court the power of collecting tes- bill would not have found its way into the House

, timony on offences barred by that act, to wit: on But the national feelings had been excited, said all offences established by the articles of war. he, and the only question now is, whether we · Mr. LIVERMORE replied that his intention was will leave the development of these things to the merely to specify the offence on which a citizen District Court of Kentucky, or have it made becould be called upon to give testimony before a fore a court which you command, whose proceedmilitary court. Mr. L. made some further obser- ings must be reported to the Executive of the vations in support of his amendment, remarking Union, and for the decision given on them, he that if an officer did not choose to take advantage will be held responsible to the nation. Gentleof the limitation in the 88th article to screen him- men have said that this court of inquiry is a thing self from responsibility, he should not conceive which is to be conducted in secret. Do we forget himself bound then to afford him the means of the court of inquiry lately held at Norfolk, the defence.

evidence and proceedings before which are among Mr. TAYLOR observed that the 88th article had the printed documents in the House ? From these. - no relation to courts of inquiry. It was the busi- notice the mode of proceeding in a court of in: ness of those courts to say whether an offence of quiry; and even if they be ever so corrupt

, still any soldier came within the meaning of the arti- the nation has a fair chance of knowing the whole cles of war. Courts of inquiry might be held on truth. This mode is not in secret; nor is the citiany matter, and their report would decide whether zen or soldier carried into a dark hole to have his or not affairs submitted to them were barred by testimony contorted or twisted—it is taken down the 88th article, or whether they came within the in writing, and then read over to him for correccognizance of a court martial. With regard to tion. Is there any very great possibility that men the particular case so often alluded to, Mr. T. did of the same respectability as those men alluded to not believe it would be included by this amend as witnesses in this particular case, would suffer ment, though he believed it totally unnecessary. their testimony to be so taken as to convey a differMr. Fisk observed that the House had been ent meaning from that which they intended? The

March, 1808.

Military Courts.

H. OF R.

nation has a strong call upon us to give to that Aster hearing accusations, shall we refuse this man court of inquiry power to collect all testimony the necessary means of defending himself ? Shall As I have said before, I have not taken sides in this we on the other hand with hold from the commubusiness: I want the whole truth in a Constitu- nity the means necessary to ascertain whether this tiooal way. Whether the offence charged shall man be guilty or not? If we reject this bill, we have been committed ten years ago or not, when declare that we will. Observe that I do not say the whole testimouy is brought before the Execu- that the bill may not undergo amendment; but tive, he will possess not only the opinion of the that the bill ought to pass I do say. I have been court of inquiry with their statement, but also the surprised on this occasion to hear suppositions exwritten result of the examination of every witness. pressed that this bill would infringe the liberty He will then be held responsible for continuance of the citizen. Why, sir, if we look into the Conof this officer in command. For this reason I stitution, and reason from analogy, comparing desire to know the whole truth; and for another the situation of the citizen in the civil and milreason--because the court of inquiry, although itary capacity, we shall see that this bill ought to asked for by this House, had been previously in pass. What was the object of the framers of the stituted at the desire of the individual. If Gen- Constitution ? They have never mentioned the eral Wilkinson were that cunning and intriguing rights of a witness. The rights of a citizen accharacter he has been represented to be, he would cused of a crime have been sacredly guarded, wish to go before that tribunal which does not while the witness has not been thought of. From possess the power to collect testimony, believing the arguments we have lately heard it would apthe court of inquiry to be that tribunal. It is to pear that the rights of the witness are more sacred give fair play to both sides of the question that I than those of the accused, I confess, I would think this bill ought to pass, and that the provision never subject the witness to more inconvenience to defeat its operation should be rejected. than is necessary, for the purposes of justice; but,

Mr. Smilie said, since it had been thought pro- if we mean lo do justice, whether in civil or per to glance at a certain transaction, he would criminal cases, witnesses must be subject to inmake a few observations on it. It is well known convenience. Justice demands it, and the Conto the House, said he, how earnest a set of gentle stitution has sanctioned it. In speaking of civil men were to have this inquiry instituted. It did cases, the Constitution says: not originate with us. We objected to it, because

Art. 6. In all criminal prosecutions, the accused we believed the method taken was not correct. shall enjoy the right to a speedy and public trial, by The subject was, however, pressed upon the an impartial jury of the State and district wherein the House by those who now express their dissatis-crime shall have been committed, which district shall faction ai this bill, and upoo reference to the Jour- have been previously ascertained by law, and to be pals we shall find that the following resolution was informed of the nature and cause of the accusation; to adopted :

be confronted with the witnesses against him ; to have “ Resolved, That the President of the United States compulsory process for obtaining witnesses in his favor, be requested to cause an inquiry to be instituted into and to have the assistance of counsel for his defence. the conduct of Brigadier General James Wilkinson, Now, if the rights of the citizen are thus guardCommander-in-Chief of the Armies of the United ed in civil cases, does not the reason of the thing States, in relation to his having, at any time, while in show the necessity that our citizen soldiers should the service of the United States, corruptly received mo- have the same right, as far as the nature of our ney from the Government of Spain, or its agents." military institutions will admit ? Surely no man

This resolution was adopted, and transmitted to cau deny this; and it is astonishing to me that the President of the United States. I thought it the inconvenience of the witness should be set up incorrect, and voted against it; at the same time, against justice to the accused. I declared, that I wished that a fair investigation I beg gentlemen to reflect upon this subject in might take place into the transaction; I saw that one view—its great importance. It does not it was necessary for the community and for the merely affect a particular officer; every man in person implicated. The President takes up the the United States from eighteen to forty-five, subject as recommended, institutes a court of in- may be subject to it, because the militia whea quiry, and afterwards informs the House that the in service are subjected to military law. This laws are not sufficient to compel the attendance makes the matter very important. This being of witnesses, so as to have the case examined. the case, will you not grant compulsory proThis is the whole state of the case. What is cess 10 compel witnesses to altend, in order to then the duty of the House? If there is to be a do justice to the community, and to protect the trial, will any gentlemen say that justice first to innocent? This is all that is intended by the bill, the community, next to the individual charged, and I am surprised to see an opposition to it. If does not require that process shall issue to bring gentlemen mean to say that all our citizens shall before the court the necessary testimony? This be liable to be tried without the privilege of callis the object of the bill. We have heard on this ing witnesses in their defence, let thern come forfloor the character of this gentleman represented | ward and tell us so. in the worst point of view, one story after another, Mr. LIVERMORE said, indeed he had no idea of of what has been said by this or that man. Have trying any man without giving him an opportuwe not gone so far as to permit a witness to be ex- nity to exculpate himself; but every step they amined? We have done it. Shall we recede? took showed him the impropriety of thus legis

H. OF R.

Military Courts.

MARCA, 1808.

lating on a particular case. Gentlemen have mode. James Monroe might as well be arraigned really mistaken this business, said he; I applaud before a military tribunal for the commission of their zeál, humanity, and love of justice and affec- such an offence as General Wilkinson; for the tion for those who are innocent; it is all very i offence is not designated or comprised within the laudable and praiseworthy; but I beg gentlemen articles of war. But it is an improper thing, which to attend to ihe main object, and noi let their ought to be inquired into in some way. Suppose zeal, love, affection, or any particular cause, oper- a charge were brought against General Wilkinson ate upon their judgment, but lay aside all bias. that, whilst in the command of the Army, he had In discussing this question, gentlemen have turned been guilty of a violation of the law of his countheir eyes to a particular case-a court of inquiry try; for instance, of violently arresting citizens aod which has been called relative to conduct com- sending them from New Orleans. How would ing within the cognizance of the articles of war; this be tried ? Certainly not by a court marthey then, however, lose sight of my idea of the tial, but by a jury sworn to iry whether General purpose for which the court of inquiry has been Wilkinson were guilty or not. This is a possible convened. What is this court to inquire ? Most case. If he were accused of murder, being also a certainly into the conduct of this person as a civil crime, he would certainly he tried for it bemilitary officer ? Tbe charges brought against fore a civil tribunal. Such a law as this cannot General Wilkinson do not go to his conduct as a certainly be passed with an eye to such cases as military officer, but as a citizen-he is not charg- these. Surely if gentlemen would confine their ed with an offence which I can find specified in view to the amendment under consideration, they the articles of war. Now the gentleman from would certainly be at a loss to find an argument Pennsylvania has exceedingly mistaken the idea against it. If our citizens are to be harassed and of the majority on this resolution if he supposes sent to a military court, let it be for something benthey wished General Wilkinson to be arraigned eficial, and not on jack-o'-lantern adventures, to before a court martial. A court martial has no inquire whether a man has acted in a gentlething to do with the subject; it was not a transac- maply manner or like a man of honor," but let tion to be inquired into in a military point of view. a substantial charge be specified. This is all I Now let me change the uame of James Wilkioson, contend for. for that of James Monroe-and here I must beg A gentleman has said that charges under milpardon of the latter gentleman for using his name, itary law cannot be specified, because the crimes for I cannot conceive a possibility of his being, are not defined. If the articles of war are even placed in this situation, believing him a man of subject to this aspersion they are not a ground upblemished character. Suppose it were James for this act. But suppose it were alleged against Monroe, I repeat, and, for the sake of argument, a man that he had been guilty of unsoldierlike that he had received money of a foreign Power- or unmilitary conduct, and this were considered would gentlemen say that a military tribunal was good ground for coercing testimony; could not the the proper authority to inquire into that transac- charge be specified that on a certain day in a certion? Certainly not; neither is it in the case so tain year he was guilty of uomilitary conduct, often alluded to. Military men might be as pro- &c.? It would be so far a specific charge ihat under per for the purpose as any others, for aught I this amendment wilnesses could be summoned to know, but the idea of a military court to try such support them. This is but reasonable. Those an offence, is an absurdity which no gentleman who oppose this bill should not suffer themselves can for a moment admit.' The difficulty is this; to be wrought upon by an insinuation that in so a military officer of high rank is accused of hav- doing they would oppress the citizen. ing done an improper thing, not mentioned in the I say that it is necessary, in some cases, that articles of war. Shall it not be inquired into? courts martial should have the power to procure Certainly.' How shall the inquiry be made? | witnesses. But witnesses may be put to hardships; The President in this will use his own discretion their examination may be public or private, acas to the mode of ascertaining facts. But, say gen- cording to the discretion of a court martial. They tlemen, Shall the accused not have an opportunity know not what may be produced against them ; to exculpate himself? Certainly. What is this no opportunity is given them to support their charopportunity? The same as would be given to acter. But still, I do not contend against the prinJames Monroe in the case stated, or any to otberciple that, under certain situations, it may be necitizen. In making a law, therefore, to regulate cessary to have compulsory process to bring forcourts martial, I consider it an absurdity to bave ward witnesses. I wish to guard it as much as an eye to a particular case. ?

possible. I think it improper here to speak of General Mr. Lloyd said, as the gentleman from PennWilkinson ; I feel no animosity towards him, but sylvania (Mr. Smilie) had made a charge of ina charge has been brought against him which if consistency against those who voted for the inquiry true renders him unfit in my opinion to command into the conduct of General Wilkinson, inasmuch the Army of the United States. I am willing as they were opposing the bill on the table, with that he shall have every opportunity of exculpa a view to exclude tesumony, he would make a few tion which a citizen of the United States could observations in reply to him. The gentleman, bave. An officer who has been heretofore accus- said Mr. Ls, must excuse me if I correct bim ia ed has written a book in his defence; General an error which he has fallen into in point of fact; Wilkinson or any other officer may adopt this, and if I say that the court of inquiry, now pendMARCH, 1808.

Military Courts.

H. of R.

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ing, was not convened in consequence of any the militia when in actual service,” &c. Here resolution which passed this House. This is a it will be found that in the Coostitution itself, to fact which the gentleman will not deny; for, be which we look as the safeguard of our rights and fore the resolution passed this House, a court privileges, this very provision is not to be extended inquiry had been instituted. We passed a re- to persons in the military or naval service. If solution requesting the President to make an therefore there be any inconsistency, it grows out inquiry. The inquiry by a military court bad of the Constitution itself. It has been thought commenced, and the court was in session when wise and proper-experience, custom, and habit the resolution was passed. If this court of inquiry have induced us, who so often show our zeal for does not possess the power to prosecute the object, the rights of the citizen—to believe that the libit is not a fault to be imputed to those who re- erty which is allowed to the citizen, cannot be quested the President to institute an inquiry. But extended to cases in the military service. This admit, for the sake of argument, that the inquiry principle is recognised in the Constitution, and took place in consequence of our resolution, and we have acted under it. that it is pow necessary to give further power to The gentleman says, nothing is said in the Concourts of inquiry to take testimony, will gentle- stitution with respect to the witness. True, the men contend that the law now on the table will word witness is not used; but let us examine the have that effect? Let me call your attention to rights of the citizen as guarded by the Constitu-, an amendment which has taken place this day, tion, and look at the first clause as it stood before and ask whether it is possible that ihe amendment it was amended, and see how far it comports with could have the desired effect. You have said that the letter and spirit of the Constitution, which no evidence shall be summoned who resides at a says, that " The right of the people to be secure greater distance than one hundred miles from the in their persons, houses, papers, and effects against place where the court is held. Admit that power- unreasonable searches and seizures, shall not be ought to be given to the court of inquiry now pend- violated; and do warranis shall issue, but upon ing to carry the inquiry fully into effect, the ob- probable cause, supported by oath or affirmation, ject will not be answered by the passage of this and particularly describing the place to be searchlaw; because, in all probability, all the important ed, and the persons or things to be seized.” The witnesses in this transaction live at a greater dis- bill, as it was, required that every paper, docutance than one hundred miles from this place. ment, or record, in the power or control of any The law, then, will not have the effect desired by person, should be produced, at the requisition of a its advocates. As to the power of taking deposi- military court. li this, then, did noi violate the tions, it is one already given in all cases where spirit of this clause of the Constitution, I can put punishment does not extend to loss of life or rep- no construction upon it. ulation, by the seventy-fourth article in the Reg- I should not have said anything on this subject, ulations for the Army. Why is it necessary io but to rebut the impression that we who voted for give the power here, if it be already given in the the resolution for inquiry are unwilling to give Articles of War? I will ask if the offence with the power necessary to carry the inquiry into effect. which General Wilkinson is charged is one for I profess myself to be perfectly impartial on this which he is amenable to a court martial or court subject-I feel no favor to the accused or the of inquiry? If so, any power here given can have accuser. I wish no one guilty of any offence to Do effect. He is charged with an offence which, remain unpunished; but I respect the rights of the if a military court have cognizance, (which I be- people too much to pass a law to drag them believe they have not; for, if a couri of inquiry find fore a military court unnecessarily. him guilty to-morrow, he cannot be tried for it,) Mr. Bacon read a section which he should move a deposition can have no bearing, as it will not if the present proviso should be negatived, allowapply in a case affecting life or reputation. If the ing depositions to be read in certain cases. bill be intended to give power to the court now While up, he said he would again express his sitting in this city, it falls far short of its intent, surprise at the amnendment, and at the operation and cannot have effect; and gentlemen will be which it would have. It is certainly this, said he: convinced, the more they investigate the subject, by passing it, we say, that if a person on trial for that it is impossible to give power without infring- an offence will not take advantage of the statute ing the rights of the citizen, and encroaching on of limitation, (the 88th article)--if he will not take the civil institutions of the country.

advantage of what is generally esteemed a dishonThe gentleman from Pennsylvania has read us orable exception-we will afford him po remedy an article from the Constitution, and, in so doing, whatever. This will be its unquestionable operwas a little more prudent than when he read the ation. Gentlemen say, as we have permitted this same article once before. I recollect, when the limitation, it ought to have effect; and that if it is resolution requesting an inquiry into the conduct wrong, we should have thought of it before. Sir, of General Wilkinson was before the House, some was there any limitation in the case spoken of this time ago, the gentleman from Pennsylvania was day? The resolution of inquiry says. ** Relative so unfortunate as to stumble on another article: to his having at any time, whilst in the service "No person shall be held to answer for a capital of the United States, corruptly received money,"

or otherwise infamous crime, unless on a pre- &c. Suppose it had been objected, at the time sentment or indictment of a grand jury, except this was under consideration, that General Wil'in cases arising in the land or naval forces, or in kinson was not guilty, (for the offence was barred

10th Con. Ist Sess.-56

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