in a state of subordination to the civil power. If you admit that the military can become, even for a moment, co-ordinate with the civil power, you lay the axe to the root of the tree of public liberty. To make the military superior to the civil power, constitutes the very essence of despotism. This effect will be produced, to a certain extent, by the passage of the present bill. Indeed, a more appropriate title than it bears, that of "A bill concerning courts martial and courts of inquiry," would be "A bill to subject the civil to the military power, in certain cases therein mentioned." But we are gravely told that such will not be the effect of the bill. There may be a spice of arrogance in the assertion, but I shall venture to make it, that the authors and supporters of the bill do not appear to understand the nature and operation of the measure. To test the view which they have taken of it, let the first provision of the first section be critically considered. It is this which involves the pernicious principle against which we contend. The object is to coerce the attendance of civil witnesses before military tribunals; and how is this to be effected? The provision is in these words:

“That, in every case, where the attendance of any person, not in the military or naval service of the United States, shall be necessary as a witness before a military or naval court martial, or court of inquiry, and who shall not reside at a greater distance than one hundred miles from the place where the court martial or court of inquiry shall be holden, a summons may be issued out of any court of the United States, and the clerk of any such court shall be, and he is hereby, authorized and required, upon due application in writing by the Judge Advocate, or person officiating as such, or by the party accused, to issue such summons, requiring such witness to appear, and give evidence before such court martial or court of inquiry."

H. OF R.

as aforesaid shall be made for any summons, the said witness in such summons may be further directed and required to exhibit in evidence before such court martial or court of inquiry, any public paper, document, or record, in his possession, power, or control," &c.

The same discretion ought to have been given to the judge in the former case. It might have been placed in his breast with perfect safety. And thus the very advantage which it is contemplated to attain by the provisions of the present bill might have been attained without the sacrifice of principles which ought to be considered as sacred. If our military tribunals wish for the aid of the civil ones in the furtherance of public justice, they should not command it, but request it. The military should accost the civil power not in the imperious tone of mandate, but in the lowly voice of supplication.

The bill is still defective in its details, and in some of them involves new principles of a most dangerous and destructive character.

The provision, which embraces what I call the military subpoena duces tecum, has been well amended by the gentleman from Massachusetts, (Mr. BACON.) But it is, even now, not sufficiently definite and well guarded:

"Any public paper, document, or record, in his possession, power, or control; which said paper, document, or record, shall be specified in such affidavit and certificate, and described in such summons, and, in the opinion of the judge, shall contain evidence pertinent to the issue or subject-matter which may be on trial before such court, and which such witness might be compelled to produce in the ordinary rules of proceeding in a court of civil jurisdiction."

The latter part of this clause, embracing the gentleman's amendment, has removed, in a degree, the original objections to this provision in the bill. But a person may have papers, documents, or records, in his "power or control," for specific purGentlemen, I presume, will persist in telling us that a discretion is reserved to the judiciary by poses, which are not regularly in his possession, the expression "a summons may be issued out of The words "power or control," therefore, ought to and which, of course, he cannot carry into court. any court of the United States." But, who is so blind as not to see that these are mere words of have been omitted. That civil officers should, in form? That the court, instead of possessing a any case, be required to carry civil records into discretion, does not even possess an agency in the military courts, is a very questionable principle. case? That the Judge Advocate is the efficient It would be going far enough to prescribe some agent, and the clerk of the civil court the passive which should be received as evidence in courts method of authenticating copies of such records, one? That the former may command, and the latter must obey? The clerk is authorized and martial. But, if the principle is to be established, required to issue the summons-by whose direc-its exercise ought to be guarded with all possible tion? That of the court, or one of the judges? Not at all. "He is required, upon due application, tail in the second and third sections, I proceed to Passing over many objectionable matters of de' in writing, by the Judge Advocate, or party officiating as such, or by the party accused (before 'the martial tribunal) to issue such summons,' &c. Surely this will render the civil subservient to the military power, quo ad hoc. In the case contemplated in the next provision of this section, which may be called the military subpoena duces tecum, a sound and proper discretion is vested in the judge:

"And, upon good and sufficient cause shown, verified by affidavit before any judge of any court of the United States, and the same being certified by such judge, and produced to the clerk, to whom application

care.

the fourth section, which is also introduced as an amendment by the gentleman from Massachu

setts:

"SEC. 4. And be it further enacted, That, in all cases where the witness, whose testimony is required, shall reside at a greater distance than one hundred miles from the place where such court martial or court of inquiry may be holden, the deposition of such witness, taken in the manner prescribed, and agreeable to the directions contained in the third section of this act, may be read in evidence before said court martial or court of inquiry."

The supporters of the bill, obliged to yield to

but very few observations, why he thought this bill should pass. The objections which some gentlemen had made to the detail of the bill when first introduced, had struck him with considerable force, although from the first moment he had thought that something ought to be done. On the passage of this bill, said he, although its details may not exactly meet my mind, as gentlemen on neither side could make it more perfect, and I will not entertain a doubt that they would have done it if they could, I must give my vote in its favor.

H. OF R.

It is also said by some who are opposed to the bill, that military despotism will be extended by it. I have no doubt that gentlemen do conscientiously believe it, and I do as much believe that it will abridge military despotism, if despotism indeed exists. The only objection to this bill is, that despotism may be exercised by the military over the citizen. If one of your soldiers should be marked out for the vengeance of a superior officer, does this bill deprive him of his means of defence, or of the power of coercing witnesses? Does it abridge or extend military despotism to say that a man with a budget on his back and a firelock on his shoulder has an equal right with his superior officer to compulsory process? Surely not. Does this bill apply exclusively to the Commander-in-Chief? I would spurn the idea of giving this privilege to the Commander-in-Chief were we to leave the poor soldier in the ranks without the power of coercing evidence. I would say, here is the same law to apply to all; and if has said that citizens shall be confronted with their accusers, and have the benefit of compulsory process. We say, as far as we can go, we will grant coercion, and where this cannot be done, we will give you an opportunity to procure testimony in writing.

It would seem that gentlemen who oppose this bill feel the same sentiment as myself. If I could believe that the construction of the bill would cause military predominance and civil subservience, unquestionably I should give my negative to the passage of this bill. But, if I understand the clause alluded to, an application is first to be made to clerks of civil tribunals. I cannot be induced to believe, when we make application to a civil tribunal for process, that the military pre-exculpatory evidence can be procured, the law ponderates. Did the bill provide that the civil magistrate should make application to the military, and be dependent on it, I should certainly think the objection forcible. But can I say, when discretion does rest with the civil authority, that the civil authority subserves the military? Which power is subservient? That which has the power of controlling process, or that which makes application for it? I have always thought that the power which can control another is superior, and the power controlled subservient.

It has been said that a particular case which is known to us all, has given rise to this law. I disclaim the idea of that case operating upon myself. I agree with gentlemen, that it is improper to legislate upon particular cases; but if a particular case should occur, which shows a defect in our laws, although the particular case suggests the propriety of the law, I consider it important to make a provision which shall not only include that, but a thousand possible cases which might happen in the course of human events.

It is said likewise, and if that were the construction I would certainly oppose the passage of the bill, that we are about to give power to the military to create offences, the punishment of which is vested with the civil authority, and to create a jurisdiction in military tribunals to inflict a punishment on the citizen. Does this bill con- The gentleman from Vermont (Mr. ELLIOT) template the giving any jurisdiction not hereto has also stated that this is a subject recommended fore given? If so, I am mistaken. If I under- by the President of the United States, and that it stand the object of the bill it is to give power to is made a question of confidence. It is not a subthe Government to prosecute, and the individual ject of confidence, or of distrust, which is its opto defend himself by coercion. I have not un-posite. If we look at the Message of the Presiderstood that any jurisdiction is given to military dent, we shall find that no particular course is courts; I have taken up an idea that the grand pointed out. Our attention is called to the partiobject of the bill is to coerce the evidence of wit-cular situation of our laws on this subject. We nesses in cases of crimes already designated, and of which the punishment is also pointed out.

The gentleman last up has made an objection to the issuing a subpoena without showing cause to the civil authority for it. Do you not in civil cases always obtain subpoenas on application to the clerk, without showing cause, except in cases of subpoena duces tecum? Do you ever make application to the judge in the first instance for civil process? Do you for a capias ad satisfaciendum? You direct the clerk to issue it, and endorse on it no bail to be taken; the person against whom it is issued is thrown into jail, and cause is not required to be shown. But if we make application for papers to a civil tribunal, reason must be shown; if to a military court, this bill provides the same. If I were mistaken in this, in this also I should be als opposed to the provisions of the bill.

are not requested to do this or that. I was one who voted for the inquiry; the only Constitutional tribunal which could make that inquiry has not efficient powers to compel the attendance of witnesses. We have, in consequence of the defect in our laws, which this case has discovered, thought proper to attempt an amendment of them. What, then, has this to do with confidence or distrust? So long, sir, as I have a rational confidence in what comes from the President, or from any member of this House, so long, also, I will act in such a way as shall manifest to the world that I do not possess a blind confidence, which would induce me to do an act injurious to my country or contrary to my own sentiments.

We are told that this law will harass the citizen, and as a reason for this belief, we are told that it is inconvenient to attend courts mar

tial or courts of inquiry. Granted; it results from human institutions. So long as controversy exists, so long will witnesses suffer inconvenience. Will you, because it is inconvenient, withhold compulsory process? Would not this prostrate every institution in your country? Do we require more by this law than is already in the power of our civil institutions? No; in cases of life or death, and affecting reputation, we award compulsory process. It is all-important that this power should be vested somewhere, and where better than in the civil authority, to coerce attendance in cases of this kind?

It has been said that we cannot extend all the privileges of the citizen, in civil life, to the soldier. I regret that we cannot extend them as far as I could wish, and as far as those gentlemen who opposed the bill must certainly wish. But shall that induce us to withhold the hand from ministering to their rights as far as in us lies? Have gentlemen taken into consideration, that the militia also are subject to military law in time of war, and should their fellow-citizens, or shall Government, be deprived of testimony against them? This bill is not particularly calculated for the man accused, but, upon the reciprocal principle, that Government also should have the power of

coercion.

I confess that I can see no occasion, nor any reason, for this alarm on the subject. If I could see the same evils resulting from the passage of this bill as are mentioned by some gentlemen in opposition to the bill, I should be one of the last to vote for it, and this House would immediately reject it.

MARCH, 1808.

to be tried by courts martial, as well as soldiers in the regular army." But if the bill be examined with only one half of the attention which it behooved every member to bestow upon it, the advantage ascribed to it would be found altogether illusory. As the bill had grown out of a case arising in the standing army, so it was calculated for the benefit of that army, if not of a single officer of that army. Its application to the militia had been gladly seized upon to give an air of popularity to the measure, and make it go down. The militia might have existed until doomsday, and such a provision be never dreamed of on their account. In fact, they could derive no advantage from it, and had merely been pressed into the service to furnish some plausibility to the bill.

It is, said Mr. R., of the very essence of courts martial, in time of war more especially, when alone the militia can be called into actual service, that their proceedings should be summary, prompt, and energetic. What sort of discipline will that be in an army, in time of actual war, perhaps in sight of the enemy, in which is permitted this slow process of sending men to Georgia, New Hampshire, or Detroit, to take depositions? This bill is equivalent to a repeal of all military law; for, in time of war, if it have any operation at all, it must operate a dissolution of your army. I repeat it, that if, in time of war, a soldier cannot be punished, until the dilatory process pointed out by this bill is complied with, your army is virtually dissolved. It will be seen, then, on examination, that the bill is calculated not for time of war, and consequently not for the benefit of the militia. I have endeavored to show that the jurisdic- On the contrary, it goes to violate the rights of tion of courts martial and courts of inquiry is not those very men, in their civil capacities, whom, in to be extended by this bill; that the only grand their military garb, it professes to protect. I lay object is to give power of prosecution and defence it down as an immutable principle, which cannot to the Government and individuals; and that it be controverted, which no man will pretend to is not a subject of confidence or distrust, but a deny, and much less the gentleman who has just subject on which every one should be guided by sat down, that the citizen is constitutionally exhis own judgment; and so, I have no doubt, eve-empt from all military service whatever, except ry gentleman in this House will do. he subject himself to that military service by volMr. RANDOLPH said, that an observation of the untary enlistment. I speak of service in connexgentleman who had just taken his seat, not, in-ion with the standing army, and not of the duty deed, an original one, for it had been repeatedly pressed upon the House, induced him now to rise; not that he could have reconciled it with his feel ings or principles to give a silent vote on such a bill as that now before them; but the remark of the gentleman from Kentucky had caused him to throw himself upon the patience and mercy of the House earlier than he had intended. It was a remark calculated, he would not say ad captandum vulgus, but to catch every class of citizens in the community, and particularly that most meritorious class the middle class, who must unquestionably be relied upon for the ultimate safety of the country, whether from internal danger or foreign assault; it had accordingly been reiterated again and again by the advocates of the bill, who seemed to regard it as their favorite and most unanswerable argument. The position was this: "That the bill on your table is calculated to favor the militia, inasmuch as men serving in the militia are liable

which, as a militiaman, he is bound to perform. He stands severed from this class of men by the great, broad landmarks of the Constitution. He owes them no service-there is none, which, in their military capacity, they can demand at his hands. They are to him a distinct class, whom he looks upon with suspicion, at least; whose movements it behooves him at all times to watch; whose troops it is his duty to keep within the smallest possible number, capable of garrisoning the posts on the frontier; in other words, within the pale of the public good. A jealousy of that force and of Executive influence, and they are one and the same thing, for every augmentation of the Army is but an increase of Executive power, has ever been deemed the great criterion, the infallible touchstone of every Republican's, of every Whig's political principles.

It is an objection to this bill, not only (as has been very forcibly and ably demonstrated to this

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