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Military Courts.

MARCH 1808.

H. of R.

New York giving the State courts martial the most unlimited power to issue compulsory process; similar laws he believed existed in Massachusetts and Maryland; in how many other States in the Union he could not say. He thought upon the whole that there was nothing objectionable in the principle of the bill, but as he thought it needed a little amendment in detail, he was willing it should be recommitted.

the duties on the salt, at twenty cents per bushel, when the law, at the time the entry was made, authorized the exaction of not more than twelve cents per bushel. The petitioners pray that Congress will interpose their powers, and direct a remission of eight cents per bushel, which has been illegally demanded by the collector. the petitioner presents comes properly under the cogThe committee are of opinion that the case which nizance of the judiciary. The bonds given to secure the duties on the salt are not, as yet, due. The petitioners have it in their power to raise a question for legal decision, by making a tender of the sum which they think is legally due, and by withholding the pay

Mr.J.MONTGOMERY said that the gentleman who had just sat down had very properly stated that this was a novel subject, presented for the first time in this form, and therefore it was no matter of sur-ment of that which appears to them to be illegally demanded. The committee are, therefore, of opinion that the case of the petitioners is not entitled to the interposition of the extraordinary powers of Congress.

The committee recommend the adoption of the following resolution:

prise that the bill had been at first reported defec-
tive; it could not have been expected that it
should be entirely complete at once. When the
bill was first reported, said he, defects were found;
it was recommitted and reported in its present
form. The gentleman from Massachusetts (Mr.
LIVERMORE) has denounced this bill as a monster.
We may conceive his idea of a monster by what
he considers as perfection itself. He has told us
that the rules and articles of war are not deficient,
that they are unexceptionable. What are they?
They present to the mind the very monster which
the gentleman has represented this bill to be. If
he examines them he will find, that besides the li-
ability to punishment for all civil offences in com-
mon with other citizens, the officer or soldier is
liable to loss of life for crimes defined in sixteen.
articles of the rules and regulations for the Army,
and nine in those for the Navy Establishment.
There are besides a number of articles affecting
reputation, for crimes exclusively confined to mil-
itary conduct; and yet the gentleman says these
are unexceptionable, and has denounced a bill for
ameliorating these rules by giving the accused an
opportunity of defending themselves. The House
will decide on which side the deformity lies.
Mr. M. made some observations defending the
details of the bill; but as some gentlemen who
were friendly to the principle had taken exception
to some of its provisions, holding himself always
open to conviction, and not meaning in this case to
depart from that principle, he was willing that
the bill should be recommitted; and therefore
withdrew his opposition to the motion.

The bill was then recommitted to a Committee of the Whole without opposition.

Resolved, That the petitioners have leave to withdraw their petition.

WEDNESDAY, March 9.

Mr. NEWTON, from the Committee on Commerce and Manufactures, to whom was referred the petition of Samuel Miller, of Wiscasset, in the District of Maine, in the State of Massachusetts, in behalf of himself and others, made the following report:

The report was adopted.

Mr. BOYLE, from the Committee on the Public Lands, to whom was committed on the twentyninth ultimo, the bill sent from the Senate, entitled "An act granting William Wells the right of pre-emption," reported several amendments thereto; which were twice read, and agreed to by the House.

Ordered, That the said bill, with the amendments, be read the third time to-morrow.

Mr. DURELL, from the committee appointed, on the second ultimo, "to inquire into the manner in which the Representatives' Hall is heated by furnaces beneath the flooring of the same; what probable influence such subjacent fires have upon the health of the members exposed to their exhalations, and how, or by what means the injurious effects of the same may, in future, be avoided," made a report thereon; which was read, and laid

on the table.

MILITARY COURTS.

The House went into a Committee of the

Whole, 55 to 35, on the bill concerning Courts
Martial and Courts of Inquiry.

Mr. J. MONTGOMERY said, that to meet the objections offered by gentlemen to the bill on yesterday, he had prepared amendments which he hoped would remove every objection. He then proposed an amendment restricting the power of a military court to call witnesses to the distance of one hundred miles from the place where it shall be held, thus ingrafting on these courts the principle of civil courts of the United States.Agreed to without a division.

zen.

The petitioners state that they imported from Liverpool, in the ship Golden Rule, 9,464 bushels of salt. They also state, that the ship arrived at the quarantine ground, near the harbor of Boston, on the 29th day of June, 1807; on the 2d of July following, she entered the harbor of Boston, and on the next day entry was made of her cargo at the custom-house. The petition-cases submitted to a grand jury; when that was ers complain, that the collector compelled them to bond the case, witnesses might attend. To meet his

Mr. LIVERMORE had no objection to give military courts the power to compel testimony if it were so secured as not to be injurious to the citiHe thought it should never be done but for a specified crime coming within the articles of war. Why compel a citizen to go one hundred miles from his home, if no end was to be answered by it? These charges should be supported by affidavit as

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H. OF R.

own idea on this subject he moved the following proviso:

Military Courts.

Provided always, That no summons shall issue unless some specific charge shall be made in writing, supported by affidavit, of an offence, of which if the accused should be afterwards convicted on trial before a court martial, such person would be liable to punishment, pain, or penalty, by virtue of the act entitled "An 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 sary that persons 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 to transactions of two tion of the bill. If they were considered as anything he could not see why they should not have the same power to issue compulsory process as courts martial. This amendment was draughted in such a manner as completely and exactly to exclude the court of inquiry now pending, from exercising the general power delegated by the bill; whether this was the gentleman's intention or not, he could not pretend to say.

MARCH, 1808.

often told of the necessity of inquiry into a particular case, in relation to crimes not of modern but of ancient date. In the case of General Wilkinson, that officer had been accused of crimes of thirteen years standing; the House had asked the institution of an inquiry into his conduct; the President informed them that he had already done it; the character of this person hung on this in

Mr. LIVERMORE explained his intention to be, that citizens should not attend courts in cases where their evidence could be of no avail, or in cases of crimes which the court could not punish, as in the case of those specified in the 88th article of the rules and regulations for the government of the Army.

years standing.

Mr. RowAN, in some observations in reply to the gentleman last up, observed that General Wilkinson had the means of meeting the charges. Joseph Hamilton Davies, a gentleman in the Western country, second to few in talents and reputation, had long since made these charges, pledged himself to the nation to prove them, and challenged Wilkinson to prosecute him for making them. Was not here a fair object for prosecution, a man of reputation, talents, and fortune? General Wilkinson having it in his power to meet these charges there was no necessity for legislating on this subject in delicacy to him; but if they did pass such a law as this to clothe the military with the rights of civil life, they should do it guardedly. He was certainly opposed to the principle, but if it must pass, he would endeavor to make it as unobjectionable as he could. For this reason he was in favor of the proviso.

Mr. VARNUM presumed his colleague was not aware of the construction which might be given to his amendment; for it would totally exclude all military offences of which a 'soldier could be charged. The 88th article barred after a term of two years all offences against the United States; and the construction of the amendment which ostensibly went to require specification, would exclude from the court the power of collecting testimony on offences barred by that act, to wit: on all offences established by the articles of war.

Mr. TAYLOR said, if some time ago there had been as little anxiety for the development of the charges against the person whose case had been so often cited as there appeared to be now, this bill would not have found its way into the House. But the national feelings had been excited, said 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 the printed documents in the House? From these. notice the mode of proceeding in a court of inquiry; and even if they be ever so corrupt, still the nation has a fair chance of knowing the whole truth. This mode is not in secret; nor is the citizen or soldier carried into a dark hole to have his testimony contorted or twisted-it is taken down in writing, and then read over to him for correction. Is there any very great possibility that men of the same respectability as those men alluded to as witnesses in this particular case, would suffer their testimony to be so taken as to convey a different meaning from that which they intended? The

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Mr. TAYLOR observed that the 88th article had no relation to courts of inquiry. It was the business of those courts to say whether an offence of any soldier came within the meaning of the articles of war. Courts of inquiry might be held on any matter, and their report would decide whether or not affairs submitted to them were barred by the 88th article, or whether they came within the cognizance of a court martial. With regard to the particular case so often alluded to, Mr. T. did not believe it would be included by this amendment, though he believed it totally unnecessary. Mr. Fisk observed that the House had been

Military Courts.

MARCH, 1808.

H. OF R.

nation has a strong call upon us to give to that court of inquiry power to collect all testimony. As I have said before, I have not taken sides in this business: I want the whole truth in a Constitutional way. Whether the offence charged shall have been committed ten years ago or not, when the whole testimouy is brought before the Executive, he will possess not only the opinion of the court of inquiry with their statement, but also the written result of the examination of every witness. He will then be held responsible for continuance of this officer in command. For this reason I desire to know the whole truth; and for another reason-because the court of inquiry, although asked for by this House, had been previously instituted at the desire of the individual. If General Wilkinson were that cunning and intriguing character he has been represented to be, he would wish to go before that tribunal which does not possess the power to collect testimony, believing the court of inquiry to be that tribunal. It is to give fair play to both sides of the question that I think this bill ought to pass, and that the provision to defeat its operation should be rejected.

After hearing accusations, shall we refuse this man the necessary means of defending himself? Shall we on the other hand withhold from the community the means necessary to ascertain whether this man be guilty or not? If we reject this bill, we declare that we will. Observe that I do not say that the bill may not undergo amendment; but that the bill ought to pass I do say. I have been surprised on this occasion to hear suppositions expressed that this bill would infringe the liberty of the citizen. Why, sir, if we look into the Constitution, and reason from analogy, comparing the situation of the citizen in the civil and military capacity, we shall see that this bill ought to pass. What was the object of the framers of the Constitution? They have never mentioned the rights of a witness. The rights of a citizen accused of a crime have been sacredly guarded, while the witness has not been thought of. From the arguments we have lately heard it would appear that the rights of the witness are more sacred than those of the accused, I confess, I would never subject the witness to more inconvenience than is necessary, for the purposes of justice; but, if we mean to do justice, whether in civil or criminal cases, witnesses must be subject to inconvenience. Justice demands it, and the Con

Mr. SMILIE said, since it had been thought proper to glance at a certain transaction, he would make a few observations on it. It is well known to the House, said he, how earnest a set of gentle-stitution has sanctioned it. In speaking of civil

cases, the Constitution says:

men were to have this inquiry instituted. It did not originate with us. We objected to it, because we believed the method taken was not correct. The subject was, however, pressed upon the House by those who now express their dissatisfaction at this bill, and upon reference to the Journals we shall find that the following resolution was adopted:

"Resolved, That the President of the United States be requested to cause an inquiry to be instituted into the conduct of Brigadier General James Wilkinson, Commander-in-Chief of the Armies of the United States, in relation to his having, at any time, while in the service of the United States, corruptly received money from the Government of Spain, or its agents."

ART. 6. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence.

Now, if the rights of the citizen are thus guarded in civil cases, does not the reason of the thing show the necessity that our citizen soldiers should have the same right, as far as the nature of our military institutions will admit? Surely no man cau deny this; and it is astonishing to me that the inconvenience of the witness should be set up against justice to the accused.

This resolution was adopted, and transmitted to the President of the United States. I thought it incorrect, and voted against it; at the same time, I declared, that I wished that a fair investigation might take place into the transaction; I saw that it was necessary for the community and for the person implicated. The President takes up the subject as recommended, institutes a court of inquiry, and afterwards informs the House that the laws are not sufficient to compel the attendance of witnesses, so as to have the case examined. This is the whole state of the case. What is then the duty of the House? If there is to be a trial, will any gentlemen say that justice first to the community, next to the individual charged, does not require that process shall issue to bring before the court the necessary testimony? This is the object of the bill. We have heard on this floor the character of this gentleman represented in the worst point of view, one story after another, of what has been said by this or that man. Have we 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

I beg gentlemen to reflect upon this subject in one view-its great importance. It does not merely affect a particular officer; every man in the United States from eighteen to forty-five, may be subject to it, because the militia when in service are subjected to military law. This makes the matter very important. This being the case, will you not grant compulsory process to compel witnesses to attend, in order to do justice to the community, and to protect the innocent? This is all that is intended by the bill, and I am surprised to see an opposition to it. If gentlemen mean to say that all our citizens shall be liable to be tried without the privilege of calling witnesses in their defence, let them come forward and tell us so.

Mr. LIVERMORE said, indeed he had no idea of trying any man without giving him an opportu

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Military Courts.

lating on a particular case. Gentlemen have really mistaken this business, said he; I applaud their zeal, humanity, and love of justice and affection for those who are innocent; it is all very laudable and praiseworthy; but I beg gentlemen to attend to the main object, and not let their zeal, love, affection, or any particular cause, operate upon their judgment, but lay aside all bias. In discussing this question, gentlemen have turned their eyes to a particular case-a court of inquiry which has been called relative to conduct coming within the cognizance of the articles of war; they then, however, lose sight of my idea of the purpose for which the court of inquiry has been convened. What is this court to inquire? Most certainly into the conduct of this person as a military officer? The charges brought against General Wilkinson do not go to his conduct as a military officer, but as a citizen-he is not charged with an offence which I can find specified in the articles of war. Now the gentleman from Pennsylvania has exceedingly mistaken the idea of the majority on this resolution if he supposes they wished General Wilkinson to be arraigned before a court martial. A court martial has nothing to do with the subject; it was not a transaction to be inquired into in a military point of view. Now let me change the name of James Wilkinson, for that of James Monroe-and here I must beg pardon of the latter gentleman for using his name, for I cannot conceive a possibility of his being placed in this situation, believing him a man of unblemished character. Suppose it were James Monroe, I repeat, and, for the sake of argument, that he had received money of a foreign Powerwould gentlemen say that a military tribunal was the proper authority to inquire into that transaction? Certainly not; neither is it in the case so often alluded to. Military men might be as proper for the purpose as any others, for aught I know, but the idea of a military court to try such an offence, is an absurdity which no gentleman can for a moment admit. The difficulty is this; a military officer of high rank is accused of having done an improper thing, not mentioned in the articles of war. Shall it not be inquired into? Certainly. How shall the inquiry be made? The President in this will use his own discretion as 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 other ciple 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 have ward witnesses. I wish to guard it as much as an eye to a particular case. possible.

A gentleman has said that charges under military law cannot be specified, because the crimes are not defined. If the articles of war are even subject to this aspersion they are not a ground for this act. But suppose it were alleged against a man that he had been guilty of unsoldierlike or unmilitary conduct, and this were considered good ground for coercing testimony; could not the charge be specified that on a certain day in a certain year he was guilty of unmilitary conduct, &c.? It would be so far a specific charge that under this amendment witnesses could be summoned to support them. This is but reasonable. Those who oppose this bill should not suffer themselves to be wrought upon by an insinuation that in so doing they would oppress the citizen.

I say that it is necessary, in some cases, that courts martial should have the power to procure witnesses. But witnesses may be put to hardships; their examination may be public or private, ac

Mr. LLOYD said, as the gentleman from Pennsylvania (Mr. SMILIE) had made a charge of inconsistency against those who voted for the inquiry into the conduct of General Wilkinson, inasmuch as they were opposing the bill on the table, with a view to exclude tesumony, he would make a few observations in reply to him. The gentleman, said Mr. L,, must excuse me if I correct him in an error which he has fallen into in point of fact; and if I say that the court of inquiry, now pend

I think it improper here to speak of General Wilkinson; I feel no animosity towards him, but a charge has been brought against him which if true renders him unfit in my opinion to command the Army of the United States. I am willing that he shall have every opportunity of exculpation which a citizen of the United States could have. An officer who has been heretofore accused has written a book in his defence; General Wilkinson or any other officer may adopt this

MARCH, 1808.

mode: James Monroe might as well be arraigned before a military tribunal for the commission of such an offence as General Wilkinson; for the offence is not designated or comprised within the articles of war. But it is an improper thing, which ought to be inquired into in some way. Suppose a charge were brought against General Wilkinson that, whilst in the command of the Army, he had been guilty of a violation of the law of his country; for instance, of violently arresting citizens and sending them from New Orleans. How would this be tried? Certainly not by a court martial, but by a jury sworn to try whether General Wilkinson were guilty or not. This is a possible case. If he were accused of murder, being also a civil crime, he would certainly be tried for it before a civil tribunal. Such a law as this cannot certainly be passed with an eye to such cases as these. Surely if gentlemen would confine their view to the amendment under consideration, they would certainly be at a loss to find an argument against it. If our citizens are to be harassed and sent to a military court, let it be for something beneficial, and not on jack-o'-lantern adventures, to inquire whether a man has acted in a gentlemanly manner or like "a man of honor," but let a substantial charge be specified. This is all I contend for.

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the militia when in actual service," &c. Here it will be found that in the Constitution itself, to which we look as the safeguard of our rights and privileges, this very provision is not to be extended to persons in the military or naval service. If therefore there be any inconsistency, it grows out of the Constitution itself. It has been thought wise and proper-experience, custom, and habit have induced us, who so often show our zeal for the rights of the citizen-to believe that the liberty which is allowed to the citizen, cannot be extended to cases in the military service. This principle is recognised in the Constitution, and we have acted under it.

MARCH, 1808.

Military Courts.

The gentleman says, nothing is said in the Constitution with respect to the witness. True, the word witness is not used; but let us examine the rights of the citizen as guarded by the Constitution, and look at the first clause as it stood before it was amended, and see how far it comports with the letter and spirit of the Constitution, which says, that "The right of the people to be secure

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ing, was not convened in consequence of any resolution which passed this House. This is a fact which the gentleman will not deny; for, before the resolution passed this House, a court of inquiry had been instituted. We passed a resolution requesting the President to make an inquiry. The inquiry by a military court had commenced, and the court was in session when the resolution was passed. If this court of inquiry does not possess the power to prosecute the object, it is not a fault to be imputed to those who requested the President to institute an inquiry. But admit, for the sake of argument, that the inquiry took place in consequence of our resolution, and that it is now necessary to give further power to courts of inquiry to take testimony, will gentlemen contend that the law now on the table will have that effect? Let me call your attention to an amendment which has taken place this day, and ask whether it is possible that the amendment could have the desired effect. You have said that no evidence shall be summoned who resides at a 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 no warrants 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 importanted, 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. If this, then, did not 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. utation, by the seventy-fourth article in the Regulations for the Army. Why is it necessary to give the power here, if it be already given in the Articles of War? I will ask if the offence with which General Wilkinson is charged is one for which he is amenable to a court martial or court of inquiry? If so, any power here given can have no effect. He is charged with an offence which, if a military court have cognizance, (which I believe they have not; for, if a court of inquiry find him guilty to-morrow, he cannot be tried for it,) a deposition can have no bearing, as it will not apply in a case affecting life or reputation. If the bill be intended to give power to the court now sitting in this city, it falls far short of its intent, and cannot have effect; and gentlemen will be convinced, the more they investigate the subject, that it is impossible to give power without infringing the rights of the citizen, and encroaching on the civil institutions of the country.

The gentleman from Pennsylvania has read us an article from the Constitution, and, in so doing, was a little more prudent than when he read the same article once before. I recollect, when the resolution requesting an inquiry into the conduct of General Wilkinson was before the House, some time ago, the gentleman from Pennsylvania was so unfortunate as to stumble another article: "No person shall be held to answer for a capital 'or otherwise infamous crime, unless on a pre'sentment or indictment of a grand jury, except ' in cases arising in the land or naval forces, or in 10th CoN. 1st Sess.-56

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I should not have said anything on this subject, but to rebut the impression that we who voted for the resolution for inquiry are unwilling to give the power necessary to carry the inquiry into effect. I profess myself to be perfectly impartial on this subject-I feel no favor to the accused or the accuser. I wish no one guilty of any offence to remain unpunished; but I respect the rights of the people too much to pass a law to drag them before a military court unnecessarily.

Mr. BACON read a section which he should move if the present proviso should be negatived, allowing depositions to be read in certain cases.

While up, he said he would again express his surprise at the amendment, and at the operation which it would have. It is certainly this, said he: by passing it, we say, that if a person on trial for an offence will not take advantage of the statute of limitation, (the 88th article)-if he will not take advantage of what is generally esteemed a dishonorable exception-we will afford him no remedy whatever. This will be its unquestionable operation. Gentlemen say, as we have permitted this limitation, it ought to have effect; and that if it is wrong, we should have thought of it before. Sir, was there any limitation in the case spoken of this day? The resolution of inquiry says. "Relative to his having at any time, whilst in the service of the United States, corruptly received money," &c. Suppose it had been objected, at the time this was under consideration, that General Wilkinson was not guilty, (for the offence was barred

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