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March, 1808.

Military Courts.

H. OF R.

civil power

in a state of subordination to the civil power. If as aforesaid shall be made for any summons, the said you admit that the military can become, even for witness in such summons may be further directed and a moment, co-ordinate with the civil puwer, you required to exhibit in evidence before such court marlay the axe to the root of the tree of public liberty. tial or court of inquiry, any public paper, document, or To make the military superior to the civil power, record, in his possession, power, or control,” &c. constitutes the very essence of despotism. This The same discretion ought to have been given effect will be produced, to a certain extent, by the to the judge in the former case. It might have passage of the present bill. Indeed, a more ap- been placed in his breast with perfect safety. propriate title than it bears, that of "A bill con- And thus the very advantage which it is contemcerning courts martial and courts of inquiry," plated to attain by the provisions of the present would be “A bill to subject the civil to the mili- y bill might have been attained without the sacritary power, in certain cases therein mentioned.” fice of principles which ought to be considered as But we are gravely told that such will not be the sacred. If our military tribunals wish for the effect of the bill. There may be a spice of arro- aid of the civil ones in ihe furtherance of public gance in the assertion, but I shall venture to make justice, they should not command it, bụt request it, that the authors and supporters of the bill do it. The military should accost the not appear to uuderstand the nature and operation not in the imperious tone of mandate, but in the of the measure. To test the view which they lowly voice of supplication. have taken of it, let the first provision of the first The bill is still defective in its details, and in section be critically considered. It is this which some of them involves new principles of a most involves the pernicious principle against which dangerous and destructive character. we contend. The object is to coerce the attend- The provision, which enabraces what I call the ance of civil witnesses before military tribunals; military subpæna duces tecum, has been well and how is this to be effected ? The provision is amended by the gentleman from Massachusetts, in these words:

(Mr. Bacon.) But it is, even now, not sufficient“That, in every case, where the attendance of

ly definite and well guarded :

any person, not in the military or naval service of the Unit- Any public paper, document, or record, in his posed States, shall be necessary as a witness before a mil- session, power, or control ; which said paper, document, itary or naval court martial, or court of inquiry, and or record, shall be specified in such affidavit and certifiwho shall not reside at a greater distance than one hun- cate, and described in such summons, and, in the opindred miles from the place where the court martial or ion of the judge, shall contain evidence pertinent to court of inquiry shall be holden, a summons may be the issue or subject-matter which may be on trial before issued out of any court of the United States, and the such court, and which such witnees might be compelclerk of any such court shall be, and he is hereby, au- | led to produce in the ordinary rules of proceeding in a thorized and required, upon due application in writing court of civil jurisdiction.” by the Judge Advocate, or person officiating as such,

The latter part of this clause, embracing the or by the party accused, to issue such summons, requir- gentleman's amendment, has removed, in a degree, ing such witness to appear, and give evidence before the original objections to this provision in the bill. such court martial or court of inquiry.”

But a person may have papers, documents, or recGentlemen, I presume, will persist in telling us

ords, in bis“ power or control,” for specific purthat 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 and which, of course, he cannot carry into court. any court of the United States. But, who is so The words “ power or control,” therefore, ought to 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 inust 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 ? Thai of the court, or one of the judges ? Not at all. - He is required, upon due application,

Passing over many objectionable matters of dein writing, by the Judge Advocate, or party offi- 1 tail in the second and third sections, I proceed to ciating as such, or by the party accused (before the fourth section, which is also introduced as an the martial tribunal) to issue such summons,

amendment by the gentleman from Massachu

setts: &c. Surely this will render the civil subservient to the military power, quo ad hoc. In the case where the witness, whose testimony is required, shall

“Sec. 4. And be it further enacted, That, in all cases contemplated in ihe next provision of this section, reside at a greater distance than one hundred miles which may be called the military subpena duces from the place where such court martial or court of intecum, a sound and proper discretion is vested in quiry may be holden, the deposition of such witness, the judge:

taken in the manner prescribed, and agreeable to the " And, upon good and sufficient cause shown, veri- directions contained in the third section of this act, fied by affidavit before any judge of any court of the may be read in evidence before said court martial or United States, and the same being certified by such court of inquiry." judge, and produced to the clerk, to whom application The supporters of the bill, obliged to yield to


H. OF R.

Military Courts.

MARCH, 1808.

the unconquerable objection to the bill as it ori- leading questions to be put to the witnesses ginally stood, that the peaceable citizen might be against him, or to suffer him to be compelled 10 dragged from Passamaquoddy to Natchiioches, criminate himself. The officer, and the non-comfrom one extreme to the other of our vast territo- missioned officer or private soldier, occupy very ry, to attend the military courts, have endeavored different ground upon a military trial. In most to remove the difficully by the introduction of cases, the officer is only deprived of his sword, and this most extraordinary section. I have heard the goes at large upon bis parole of honor; the solrules and regulations for the government of the dier is always placed in close confinement. To Army. called, upon this floor, the code of Draco the officer is secured the most essential charactera bloody code. The volume of martial law must istic of a trial by jury; not so the soldier. The always be stained with blood. It cannot be avoid- officer is tried by his peers, by his equals and ased. For one, I think our own military code too sociates ; the soldier by his masters, by men with severe and sanguinary, and was a member of a whom he is never permitted to associate, and who very small minority, which voted in opposition to are in the constant habit of exercising an iron the system. But how greatly is the gloom of the despotism over him. To the officer, all those scene increased by enacting ihat the lives of your sympathies and sentiments which result from the soldiers shall be sacrificed by depositions-by common intercourse of gentlemen, upon terms of written evidence! Fifteen or iweniy crimes are equality, but, above all those which connect punishable by death, and in all cases, where the themselves with the spirit of the corps, will sewitness shall reside at a greater distance than one cure not only every legal advantage, but every hundred miles, depositions may be read against reasonable indulgence. In favor of the soldier the accused. In civilized countries, and in en nothing of this kind can operate. As it respects lightened times, this monstrous principle has never him the law will be unavailable, except that his been adopted-not even in military courts. The life may be sacrificed by depositions ! The officer soldier, who is accused of a crime, is, of course, can avail bimself of its provisions, to send for placed in a place of close confinement; he noi depositions from every quarter of the Union, and to be confronted with the witnesses against him, thus impede the march of military justice as long nor can he attend at the times and places where as he pleases. To the industrious and peaceful depositions are taken, which are to affect his life. citizen, your law will be a constant source of inIn this free country, gentlemen ought to start at jury. There are two principles upon which the a law of this kind with instinctive horror ! citizen is called into courts of justice as a witness,

The other objections to this system are, that it uoremunerated, for his legal fees are contemplated will be inoperative in practice as to the great mass only as a bare compensation for his actual exof cases which it comprehends, and that in others penses, and he receives nothing for the derangeit will operate to the delay of military justice, and ment of his business, or even for his time. One the injury and oppression of the peaceable of them, that private inconvenience should always citizen.

yield to the public good, will apply to military as Gentlemen say that the soldier, by becoming well as civil tribunals. The other, which is a such, does not cease to be a citizen, and ought to very obvious one, applies to civil courts alone. In possess the rights of the citizen even in the camp. attending the court as a witness, the citizen perWhy, then, do they not propose to give to milita- forms a service for some other citizen, which, in ry men the right of trial by jury, the privilege of the course of the common concerns of life, he is being confronted with the witnesses against under the necessity of asking others to perform them, the right of compulsory process for witness- for himself. In relation to courts martial, this es, on their own part, and the privilege of being reciprocity does not exist. The citizen can neiheard by counsel? All this is delightfulin theory, ther' sue or prosecute others, nor be sued or prosbut can never be realized in practice. Men can- ecuted himself, before military courts. He comnot carry all the rights of the citizen from their mits no military crime, he wishes for no military native fields to the tented plains, from rural scenes witnesses. to the camp of Mars. The idea is a pleasing but Upon the whole, although the policy of passing a delusive one. But this new law, while it will such a law at all, is extremely questionable

, yet subject the soldier to the loss of life, in conse- the advantages which it is contemplated to obtain quence of the depositions of men whom he never by it, might be obtained, without subjecting the saw, nor ever can see, will give him no new priv- civil to the military power. Let the martial apilege. To illustrate ihis position, let us recur to proach the civil court, not with all the pomp, the first part of the first section : ' "That in every pride, and circumstance of glorious war,'' but in case where the attendance of any person, not in the humble attitude of a supplicant. Every judge,

the military or naval service of the United in every case, should possess a sound discretion. States, shall be necessary as a witness," &c. This power would noi be abused. If it were by Who is to judge of the necessity ? Will the court one magistrate, application might be made to antake a soldier's word for it? Will they allow him other, Mr. E. concluded by remarking, that he to file an affidavit, stating the absence of a mate would not pledge himself to vote even for such a rial witness? If they will, who shall form his law. But if a law upon the subject be to pass, it affidavit? Your military code denies him coun- ought to pass upon that principle, and upon that sel, except that the Judge Advocate is so far to alone. act as counsel for the prisoner as not to suffer Mr. JOHNSON said, that he meant to make a few,

MARCH, 1808.
Military Courts.

H. or R. but very few observations, why he thought this It is also said by some who are opposed to the bill should pass. The objections which some bill, that military despotism will be extended by it. gentlemen had made to the detail of the bill when I have no doubt that gentlemen do conscientiously first iotroduced, had struck him with considerable believe it, and I do as much believe that it will force, although from the first moment he had abridge military despotism, if despotism indeed thought that something ought to be done. On exists. The only objection to this bill is, that desthe passage of this bill, said he, although its de- potism may be exercised by the military over the tails may not exactly meet my mind, as gentle-citizen. If one of your soldiers should be marked men on neither side could make it more pero out for the vengeance of a superior officer, does fect, and I will not entertain a doubt that they this bill deprive him of his means of defence, or would have done it if they could, I must give my of the power of coercing witnesses ? Does it vote in its favor.

abridge or extend military despotism to say that It would seem that gentlemen who oppose this a man with a budget on his back and a firelock bill feel the same sentiment as myself. If I could on his shoulder has an equal right with his supebelieve that the construction of the bill would rior officer to compulsory process ? Surely not. cause military predominance and civil subservi. Does this bill apply exclusively to the Comence, udquestionably I should give my negative mander-in-Chief?" I would spurn the idea of to the passage of this bill. But, if I understand giving this privilege to the Commander-in-Chief the clause alluded to, an application is first to be were we to leave the poor soldier in the ranks made to clerks of civil tribunals. I cannot be in- without the power of coercing evidence. I would duced to believe, when we make application to a say, here is ihe same law to apply to all; and if civil tribunal for process, that the military pre- exculpatory evidence can be procured, the law ponderates. Did the bill provide that the civil has said that citizens shall be confronted with magistrate should make application to the mili- their accusers, and have the benefit of compulsory tary, and be dependent on it, I should certainly process. We say, as far as we can go, we will think the objection forcible. But can I say, grant coercion, and where this cannot be done, when discretion does rest with the civil authority, we will give you an opportunity to procure testithat the civil authority subserves the military? mony in writing Which power is subservient? That which has the It has been said that a particular case which is power of controlling process, or that which makes known to us all, has given rise to this law. I disapplication for it? I have always thought that claim the idea of that case operating upon myself. the power which can control another is superior, I agree with gentlemen, that it is improper to legisand the power controlled subservient.

late upon particular cases; but if a particular case It is said likewise, and if that were the con- should occur, which shows a defect in our laws, struction I would certainly oppose the passage of although the particular case suggests the proprietý the bill, that we are about to give power to the of the law, I consider it important to make a military to create offences, the punishment of provision which shall not only include that, but which is vested with the civil authority, and to

à thousand possible cases which might happen create a jurisdiction in military tribunals to inflict in the course of human events. 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- posile. 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 coorts; 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 are not requested to do this or that. I was one of which the punishment is also pointed out. who voted for the inquiry; the only Constitu

The gentleman last up has made an objection tional tribunal which could make that inquiry to the issuing a subpæna without showing cause has not efficient powers to compel the attendance to the civil authority for it. Do you not in civil of witnesses. We have, in consequence of the cases always obrain subpænas on application to defect in our laws, which this case has discovthe clerk, without showing cause, except in cases ered, thought proper to attempt an amendment of of subpæna duces tecum? Do you ever make ap- then. What, then, has this to do with confidence plication to the judge in the first instance for civil or distrust ? So long, sir, as I have a rational process? Do you for a capias ad satisfaciendum ? confidence in what comes from the President, or You direct the clerk to issue it, and endorse on it from any member of this House, so long, also, I no bail to be taken; the person against whom it will act in such a way as shall inanifest to the is issued is thrown into jail

, and cause is not re- world that I do not possess a blind confidence, quired to be shown. But if we make application which would ioduce me to do an act injurious tó for papers to a civil tribunal, reason must be shown; my country or contrary to my own sentiments. if to a military court, this bill provides the same. We are told that this law 'will harass the citiIf I were mistaken in this, in this also I should zen, and as a reason for this belief, we are told be als) opposed to the provisions of the bill. that it is inconvenient to attend courts mar

H. OF R.

Military Courts.

MARCH, 1808.

tial or courts of inquiry. Granted ; it results to be tried by courts martial, as well as soldiers in from human institutions. So long as controversy the regular army." But if the bill be examined exists, so long will witnesses suffer inconvenience. with only one half of the attention which it beWill you, because it is inconvenient, withhold hooved every member to bestow upon it, the adcompulsory process ? Would not this prostrate vantage ascribed to it would be found altogether every institution in your country? Do we require illusory. As the bill had grown out of a case more by this law than is already in the power arising in the standing army, so it was calculated of our civil institutions ? No; in cases of life for the benefit of that army, if not of a siogle or death, and affecting reputation, we award officer of that army. Its application to the micompulsory process. It is all-important that this litia had been gladly seized upon to give an air power should be vested somewhere, and where of popularity to the measure, and make it go better than in the civil authority, to coerce at- down. The militia might have existed until tendance in cases of this kind ?

doomsday, and such a provision be never dreamed It has been said that we cannot extend all the of on their account. In fact, they could derive privileges of the citizen, in civil life, to the sol- no advantage from it, and had merely been pressed dier. I regret that we cannot extend them as far into the service to furnish some plausibility to as I could wish, and as far as those gentlemen the bill. who opposed the bill must certainly wish. But It is, said Mr. R., of the very.esseace of courts shall that induce us to withhold the hand from martial, in time of war more especially, when ministering to their rights as far as in us lies ? alone the militia can be called into actual service, Have gentlemen taken into consideration, that the that their proceedings should be summary, prompt, militia also are subject to military law in time of and energetic. What sort of discipline will thai war, and should their fellow-citizens, or shall Gov- be in an army, in time of actual war, perhaps in eroment, be deprived of testimony against them ? sight of the enemy, in which is permitted this This bill is not particularly calculated for the slow process of sending men to Georgia, New man accused, but," upon the reciprocal principle, Hampshire, or Detroit, to take depositions ? This that Governinent also should have the power of bill is equivalent to a repeal of all military law; coercion.

for, in time of war, if it have any operation at all, I confess that I can see no occasion, nor any it must operate a dissolution of your army. I rereason, for this alarm on the subject. If I could peat it, that if, in time of war, a soldier cannot be see the same evils resulting from the passage of punished, until the dilatory process pointed out this bill as are mentioned by some genilemen in by this bill is complied with, your army is virtuopposition to the bill, I should be one of the last ally dissolved. It will be seen, then, on examinato vote for it, and this House would immediately tion, that the bill is calculated not for time of war, reject it.

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 connes. gentleman 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 which, as a militiaman, he is bound to perform. pressed upon the House, induced him now to rise; He stands severed from this class of men by the not that he could have reconciled it with his feel great, broad landmarks of the Constitution. He ings or principles to give a silent vote on such a owes' them no service-there is none, which, in bill as that now before them ; but the remark of their military capacity, they can demand at his the gentleman from Kentucky had caused him to hands. They are to him a distinct class, whom throw himself upon the patience and mercy of he looks upon with suspicion, at least; whose the House earlier than he had intended. It was movements it behooves him at all times to watch; a remark calculated, he would not say ad captan- whose troops it is his duty to keep within the dum vulgus, but to catch every class of citizens smallest possible number, capable of garrisoning in the community, and particularly that most the posts on the frontier; in other words, within meritorious class the middle class, who must un- the pale of the public good. A jealousy of that questionably be relied upon for the ultimate safety force and of Executive influence, and they are of thecountry, whether from internal danger or for- one and the same thing, for every augmentation eiga assault; it had accordingly been reiterated again of the Army is but an increase of Executive and again by the advocates of the bill, who seemed power, has ever been deemed the great criterion, to regard it as their favorite and most unanswer. ihe infallible touchstone of every Republican's, of able argument. The position was this: "That the every Whig's political principles. bill on your table is calculated to favor the militia, It is an objection to ihis bill, not only (as has inasmuch as men serving in the militia are liable been very forcibly and ably demonstrated io this

March, 1808.

Military Courts.



House) that it tends to exalt the military at the between the several departments of Government, expense of the civil authority, but that, under the where the Executive was equally disposed to engarb and color of civil jurisdiction, the person of croach on the other departments—and chiefly of the citizen is laid at the mercy of a military tri- systems calculated to favor permanent military bunal; for, as has been said, over and over again, institutions in this country. What, then, shall we the party suing out the writ applies to the clerk say to a bill calculated to extend the power of the of the court, who, on application, is bound to issue Federal Government? Not, indeed, at the direct it. Why, then, this parade of calling in the civil expense of the States, but of the citizen; and parauthority, when no discretion is lodged with that ticularly of that branch of the Federal Governauthority to give or withhold its aid? The pro- ment of which it behooves us to be especially cess is, in fact, as much military as if issued by jealous; which exalts the military at the expense the court martial in the first instance, with this of the civil institutions of our country, and gives additional and fatal objection, that, to mask the to the President, by whom every court martial is deformity of naked military despotism, the civil virtually ordered, power of the most alarming and power is surrendered a passive victim into its undefined nature. In whichsoever way this bill hands. It is this hideous feature which, most of be viewed, the impropriety of legislating for a all, excites my antipathy to the bill. The power particular case, becomes the more manifest and which it confers is odious, but the manner of con- glaring. A proposition was brought forward by ferring it worse.

the gentleman from Kentucky (Mr. Rowan) to I have said that every freeman of the United inquire for ourselves by a known, practicable, States stands constitutionally exempt from being Constitutional organ, into the conduct of a cercalled upon to perform any service in relation to, tain officer. That motion was overruled. The or connexion with, a standing army, unless he sub- House preferred a request to the President of the ject himself to that obligation by his own volun- United States, that he would cause an inquiry to tary act. Yet this bill does subject the citizen be instituted, with which he does not comply. I not merely to perform expensive and arduous ser- mean no disrespect to the President of the United vice, but to have everything that man can hold States, but merely to state a fact. A military dear, placed in a situation, the very idea of which court of inquiry into the conduct of this person it is impossible to contemplate without abhor- had been instituted, some time previous to the

The personal liberty of the citizen is, in application of the House of Representatives, of principle, as much violated by compelling him to which the President officially notifies them in his go one hundred miles as five thousand. This pro- answer, and hints a deficiency in its power. For vision must be regarded as a mere entering wedge. this particular case, and on this recommendation, It prostrates the rights of every freeman in the you legislate; and every section and line in that first instance, leaving the details to future com- bill is a lame attempt to justify the House in rementators on the new military code, who will, of fusing the inquiry proposed by the gentleman course, accommodate them to their own purposes. from Kentucky, which was calculated to probe But this is nothing in comparison. What would the matter to the bottom, and required the aid of any man among you say, at seeing his sister, his no new law, Constitutional or otherwise, 10 carry daughter, or his wife, summoned to give evidence it into effect. I will not consent to make amends in a fortified town, on the eve of a siege, or for having refused that inquiry, at the expense of brought to headquarters through the tumuliuous, the Constitutional rights of our citizens. I will profligate, and flagitious scenes of a camp-per- never give this proof of my zeal for investigation, haps hourly expeciing the enemy's attack? Where much less of my deference to military power. is ihe screen to protect female delicacy-I might But this bill, objectionable as it is in principle, is almost say female virtue? None. This case is manifestly incompetent to the object which it pronot merely supposable, but, in time of war, when fesses to attain. Because, in the case in question, courts martial are most frequent, must happen- if you are desirous to get at the whole truth, you unless, indeed, gentlemen are ready to allow the must obtain possession of other than "public" pautter impossibility of executing the bill, and to pers, and other evidence than ex parte depositions. confess that, as it has been brought forward to the bill, unquestionably, is not calculated to reach suit a particular purpose, so when that purpose its avowed object-further comment on such a shall have been answered, it will be laid aside. production is unnecessary-a bill which deserves Allow it efficacy, and there is not a man or wo-much more the name of a contrivance (I do not man in the United States, who may not, by its say an intentional one) to gloss over guilt, than a express provisions, at the bare instigation of a shield for the protection of innocence. Such an Judge Advocate, or any party accused, be dragged inquiry as this bill is likely to produce, take my into the tumultuous scenes of military licentious word for it, will never satisfy the people of this "Dess.

country. In the earlier stages of my political life, a salu- But, with all this tenderness for the rights of tary jealousy—as it was then deemed, and as I the soldier, and particularly of the militiamanstill deem it to be-was inculcated by the fathers who dever can be benefited by the bill — because of our political church, against the ambition of it must be inoperative in the face of an enemy, the Federal Government, generally disposed, as when your discipline will cease, if you have to it was believed to be, to encroach on the govern- send the marshal'a hundred miles for witnesses to ment of the States—of the distribution of power give it efficiency-wbat becomes of your tender

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