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accused? Why not give him all the privileges of a citizen? Why not allow him an impartial jury, and counsel for his defence? You do not this; you leave him at the mercy, at the discretion of an arbitrary commission, appointed for the express purpose of trying him-but you extend privileges to him at the expense of the private citizen, who has no concern or connexion, and almost feels himself contaminated at being coupled with him. make the record of a court martial the evidence upon which he shall be punished-and this to advance the purposes of justice; when, at the same time, the court by whom the accused is to be tried is constituted upon principles the most abhorrent to justice, and, from the very nature of things, must be presumed to have a bias for or against the culprit. Have gentlemen taken into consideration one great, plain distinction between courts martial and courts of law, (which I have not yet heard mentioned-perhaps it may have been, and has escaped me,) when they are about to compel the equal attendance of the citizen upon both, by the same penalties? That courts of law are regular

ness to the citizen witness, for whom, in his capacity of soldier, so much regard is felt? In case of his refusal to attend, or to testify when he has attended, he is proceeded against-how? In the same manner as if he had refused to attend, or give evidence in a civil court; and the civil court is called on to inflict the penalties. In case of contempt to a civil court, the court possesses within itself the highest possible evidence of the fact, and proceeds to punish the offender accord-You take from the citizen his common right, and ingly. This has been thought, and I believe properly, a necessary sanction to the authority of our courts of law. But here, the citizen may be punished by order of court-for a contempt of the civil authority? Not at all: the civil court is made the mere executioner, the drum-major of the military court, to inflict a punishment on the citizen for a military offence, which, in his capacity of citizen, he cannot commit, and the evidence of his guilt shall be the record-of what? Of a court martial! This record is to be evidence, conclusive evidence, (for how are you to traverse it?) upon which the citizen is to be amerced and incarcerated; and yet he is told that this is a provision for the protection of his liberty! The only-held at stated periods and places, which have case in which our free and manly jurisprudence permits the citizen to be punished in his person, or property, without the intervention of a jury of his peers, is that of a contempt of court, an offence coming within its personal knowledge, and against which it is necessary to proceed in a summary way, to uphold Justice herself upon the judgment seat; and yet, even this power has been viewed with great jealousy, and must be exercised with cautious forbearance. But to give validity, in the courts of law, to the records of courts martial, to make them evidence, upon which the citizen may be restrained in his liberty, and dispossessed of his property, without any security which the trial by jury affords, is a monstrous innovation upon every maxim heretofore held sacred among

us.

been selected by law for public convenience-the creatures of an enlightened and benevolent policy; that courts martial are irregular, that they may, and most frequently must, be held in places the most difficult and even dangerous of accessthe most destitute of accommodation, and in seasons the most inclement-the mere creatures of military power, perhaps of military caprice. And will gentlemen contend that the same attendance is due to the one as the other, by the citizen, in his private capacity? Indisputably and assuredly not. Besides, as has been well observed, in giving his attendance as a witness in a court of law, every man performs a duty which is reciprocal in its nature-which his neighbor is equally bound to perform for him. Not so here.

Supposing this bill to pass, I can hardly conBut after having declared that the citizen shall ceive a more effectual engine of oppression, than become, without voluntary enlistment, subject to it might become in the hands of an Executive a species of military duty, pertaining to, and con-disposed to use it as such. It is true, there is a nected with, the regular army, and that the courts of justice and of law are to become instruments of punishment, in the hands of courts martial, for any failure in that duty-why stop here? Why not extend to courts martial of the Army of the United States, power in all cases to command the services of the citizen, where his assistance shall seem to them "necessary" to enable them to do military justice? You may as well turn over the convicted soldier to the sheriff, or marshal, and make him executioner: call the citizen from private life, put the instruments of torture or of death, into his hands, and compel him to assist, where his aid may be deemed "necessary," in executing the sentence of a court, abhorrent to his feelings and his principles; to give the finishing hand to a process which ought to be summary, but which unites all the delay of a judicial court with the terrors of a military tribunal. But this is necessary to enable innocence to protect itself. Why, then, is this the only relief extended to the

proviso that a witness shall not be compelled to attend at a greater distance than one hundred miles; but, not to mention that a supplementary bill may amend this defect-nothing more easy after the principle shall have been firmly established-there is not a hundred miles square in the Union in which a court martial might not be sitting at the same time. The centre may be located at will, it is a moveable point, at the pleasure of the Executive, and there is not one man or woman in the country, who may not be drawn within its vortex. If this bill pass, it will be the first attempt under this Constitution, to raise the military power to a co ordinate authority with the civil. I wish it may not be the first of a series of laws, tending, insensibly, "whenever deemed necessary," to extend martial law throughout the country. Indeed, such is its present operation, as far as it goes. The citizen is punished by a military court and for a military offence: the court of law, indeed, pronounces sentence; but, in so doing, it

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is the mere mouth-piece of the offended court bill. His colleague (Mr. JOHNSON) seemed to martial. The court cannot even grant a trial. think that this bill proposed no encroachment on The award of the military commission is more those rights to which the people had been long binding upon it than the verdict of a jury. The habituated. He set out by telling the House that court of law must inflict the sentence of the law, he was opposed to giving an ascendency to the on the victim of the military tribunal. Had a military power. I did hope that he would have jury found him guilty, the court might have gone further, and said he was opposed to making granted him a new trial. You may begin with it co-ordinate with the civil. The gentlemen who this bill, and go on until the inhabitants of this have supported the bill have endeavored to sanccountry are placed in the same deplorable condition its provisions by arguments drawn from simition with the wretched natives of Ireland-Trea- lar authority given to our civil tribunals; but they sons, insurrections, conspiracies, real or fictitious, and, in our Southern country, materials for insurrection, are, unhappily, always at hand-may be made the pretexts of further encroachment, until the liberties of the people will exist only in history.

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tiaman enjoy them? He does not, sir, whether in actual service or as a citizen; they attach to the officer only.

"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 posses

How can they expect to look their fellow-citizens in the face whom they have subjected in this way? We may tell our constituents, that if a charge be made against a citizen, when in actual There is another provision in the bill which is service, we have passed a law which will enable extremely objectionable, both as to its manner of you to go out of the lines to procure evidence construction and its effectuation; I allude to the how far? If you can find a witness within twen-power given to compel the production of papers. ty-five miles, you may compel him to attend; beyond that distance, if you can get out of camp, (and a militiaman's influence in an army to be sure is vast!) you may in time of war go out and collect depositions; in the meanwhile your lifesion, power, or control." What is meant by may be taken from you by depositions made where "public paper?" If it is meant to signify a part you had not an opportunity to cross-examine. of a record, a copy is sufficient; if private papers, The bill, indeed, provides that notice of the time they cannot be surrendered. If it be a record and place of taking depositions shall be given by within his control, shall a person, because he is the party taking them to the adverse party. Can summoned as a witness, be compelled to go and anything be more farcical than to suppose that a get it? The records of the Union are at my conmilitiaman would be suffered to go out of the trol to copy. I cannot take the originals, for they ranks in time of war, and cross-examine witnesses are testimonials in perpetuam rei memoriam; when depositions are to be taken? Are these the good policy will not permit them to be removed. privileges you allow to the "militia"? The thing Here, then, is an advantage given to the military. is impracticable, sir; it can exist but in theory. A copy will do for the citizen, while the military It may be talked about, but never can be prac-man by this law is authorized to take the origitised. If you will pass this bill, go upon practi- nal. We all revolt instinctively at the idea of cable principles; state the grounds on which it making a man produce his private papers. What may be practised and understood, and give it a public papers are in the hands of the citizen? If shape in which it may effectuate the purpose for a paper be in the possession of an individual, it is which it is intended. his paper; and it is a violation of the Constitution, and of the first principles of right, to force him to surrender it.

A little preference by this bill given to the military over the civil authority did not strike my colleague in the parallel which he drew. In the civil courts, there are such things as pleadings, and the cause of action is in a visible shape. Not so in military courts. In civil cases, if a man summon more than three witnesses in some States, and, in others, more than a reasonable number, it subjects him to costs for harassing his enemy. There is no such restriction in this bill; a military officer goes to the civil court and summons witnesses in every direction within the limits of one hundred miles from the centre, without restriction to number. This gives the military an advantage, instead of bringing them up to the level.

But that the pill may not taste bitter, it is sugared, glossed over, by a provision ostensibly going to show that we have a very high regard for private papers and rights. I feel, as well as all gentlemen must, that we tread on sacred ground; but I contend that gentlemen are deceived in believing that these checks operate as a restraint, while, in fact, they serve only to obscure the danger. "Which said papers, document, or record, shall be specified in such affidavit and certificate." How specified? In hæc verba. “And described in such summons." I am really at a loss to know how it is to be described: "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 said witness might be compelled to produce, by the ordinary rules of proceeding in a court of civil jurisdiction." This clause, I confess, I am not able to construe. The judge to whom application is made in the first place, is to examine whether the paper be pertinent to the issue. To do this, the subject must be before him. But it is not; it is before a military tribunal. He must first judge of the matter, then, to enable that court to have the means of judging it. There ought to have been a provision for a transcript of papers on the subject, that he might have the subject before him; but there is no such thing; he is to determine

But something more as to this equality, and bare equality for certainly it cannot be a preeminence of the military that is contended for. When, in civil cases, a deposition is to be taken, the judge is not subject to the trouble of taking them, but a commission is issued, while this bill, as if desirous to subject all the constituted authorities, commands all courts and judges, of whatever description, to attend upon the requisition of this military man. Where is the man in civil life who can command such honorable servants? Where is the man who can reckon so honorable a suite? They are all subject to be called upon by a military man-to save his life? No. To save him from cashierment? No. They are all to be called upon to take depositions without lim-whether a paper is pertinent to the subject-matter itation to number, to save him from a reprimand! All the judges of States, inferior and superior; all are to be put in requisition to save this person from a reprimand. Where is the man in civil life who enjoys these privileges? Does the mili

without having the subject before him, and also to determine whether the paper called for could be legally required in a civil tribunal, by which public papers cannot be called for. I have never known a witness, in a civil action, constrained to

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produce a paper, except it had been placed in his give evidence before such court martial or court safe-keeping, and he would not surrender it till of inquiry, according to the tenor of the sumrequired by the civil authority. I know of no mons, or shall, in any respect, wilfully disobey law authorizing a party in a suit to call upon a any summons duly issued and served, in pursuwitness for private papers, and he is not presumed ance of this act, or having appeared, in obedito have public papers in his possession. This ence to any summons, shall depart without leave provision, then, is either inefficient, or it proposes of the court before his examination shall have a violation of private right. It does not require been definitively taken down in writing, subeven that, upon inspection of the paper, the judge scribed and concluded, every such person shall may determine whether it be pertinent to the be liable to the same penalties, and to be proissue. I cannot suppose it to be in contemplation ceeded against in like manner before any court that private papers shall be thus produced, and of the United States holden for the district or yet this I am assured will be the effect of the pro- territory where he resided, or may have been vision. How is a military court to determine found at the time of being summoned, as is prowhether a paper ought to be produced in evi-vided by law in cases of default by any witness dence? You go upon the supposition that offi-summoned in civil causes," &c. How long may cers composing a military court are acquainted with civil process. The paper, when produced, must be read, or this military court must decide upon laws not military, but upon the laws which regulate the actions of mankind, and upon the practice of the country. To this, military men cannot be competent; they are not presumed to This provision may work mischief; private papers are secured from exposure by the Constitution; they are not exempted by this bill. This section, I fear, might be made use of to violate the sacredness of private transactions and private confidence, to expose to public gaze papers totally improper for it, and constitutionally exempt. It might tend to render our Government perhaps less stable and permanent than it might otherwise continue.

be so.

The next provision is objectionable and radically defective: "And for every default in not duly serving and returning any summons as aforesaid, the marshal, or officer acting as such, shall be liable to the same penalties, and to be proceeded against in like manner, as if he had made such 'default in not serving or returning any summons or citation in causes depending in the district court of the United States, holden in the district or territory whereof he may be marshal, or acting as such."

I ask how punishment on this officer is to be inflicted? The civil courts punish their officers for offences, of which the record is their own personal knowledge; but if the officer has neglected his duty out of doers, a jury must intervene to ascertain the fact, and the officer is punishable by suit at the instance of the party injured. The marshal, then, cannot be punished in the way contemplated by the bill. The summons is not returnable to the civil court, but to the military court. Whether it be executed or not, the civil court can never see. The officer is not bound to make return; if he fail to execute a summons, it will not appear on the face of it because he does not endorse it. How, then, can he be punished? In nowise by suit.

I am thus stating objections to the details to show, that if it passes it will be ineffectual, and incompetent even to its intended purpose, which I unequivocally disapprove.

"If any person, duly summoned as a witness ' in pursuance of this act, shall fail to appear and

the court sit? How long is he to be detained? The court may sit for months; and when the witness is once before them, he is at their discretion. Our civil courts have defined sessions; the attendance of the witness is defined, and his rights are not violated. This bill is to carry him before a strange tribunal; strips him of his rights, except at their caprice. He is not to go away, unless regularly dismissed, and how long they are to sit is left to their discretion. If a witness is guilty of contempt, he may be fined and imprisoned. When they have a man before them, they will keep him till they get his testimony; whether they imprison him or not till he has given his testimony, or, if guilty of contempt, whether they will imprison him till he atone for it, will depend upon them. It is putting the civil in the power of the military in a way at which my feelings revolt.

Here is a hardship then. An amendment was offered by a gentleman from Massachusetts, and negatived, that the witness should be tendered his wages. I lay it down as a rule of law that you cannot compel a witness to attend except his pay be tendered him; and whenever it has been attempted to punish a witness for contempt, it has been always asked was his pay tendered to him? If not, he has not been punished. Here then is a decided preference to the military over the civil authority; as no provision is made that his expenses shall be tendered.

The most exceptionable part of all, is that mentioned by the gentleman from Virginia (Mr. RANDOLPH.) "And the certificate on oath of the President of any such court martial, or advocate or person officiating as such, stating in what respect such summons may have been neglected or disobeyed, which certificate shall have been entered and recorded in the proceedings of such court martial at the time of such neglect or disobedience, shall be admitted as evidence of such 'default in such witness as aforesaid." In the first place you lay all the civil authorities under contribution to this military man; all our courts and judges shall dance attendance upon him. No depositions can then be taken within one hundred miles; the witness must personally attend, and the oath of this honorable judge of this very honorable court is competent to subject him to punishment for default. Is not this a mon

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strous disparity? Contrast the civil and military will state an objection. Papers, documents, and for a moment. In a civil court you cannot make records, are not only to be produced by the witthe court take depositions; the utmost you can nesss personally before a court martial; but he is do is to have commissioners appointed to take constrained by a subsequent provision to produce them. Not so by this law in relation to the mil- these papers before five commissioners; to do itary. We there require testimony before con- what with them? They are are compelled to viction of a citizen; there, in criminal prose-surrender these papers to the commissioners, and cutions, there is a Constitutional guarantee that no provision is made as to what shall then be the accused shall be confronted with his accusers done with them. While the witness is before and have the benefit of cross-examination. Here the court martial, his papers are with him, but you prostrate that, and say that the certificate of here they are taken from him, and what is to be a military officer shall be proof competent to the done with them depends upon the pleasure of the conviction of one of these militiamen who we commissioners before whom they are produced, are told are intended to be favored by this bill. unless perhaps otherwise directed by the military Does not the Constitution say, that in all crimi- court. nal prosecutions the accused shall have testimony in his favor? And can any man or can the nation be persuaded that the certificate of a court martial shall be a sufficient substitute for the Constitutional provision? I cannot help repeating that it seems to me monstrous. There is some-of thing worse than this; the naked certificate of this court may subject you to prosecution, the oath of one of these military men may subject you to the process of a civil court and to great expense and loss of time-and, you are also made to pay the costs. True, the militiaman may be abundantly consoled by the reflection that he is reduced to this trouble and expense by the certificate of a court martial, or by the oath of a military officer!

A vast privilege, considering by whom he is summoned and on what authority!

After all this, depositions are not to be read unless "reasonable notice" be given by the parties. Who is to judge what is reasonable? Every gentleman of the bar knows that in civil courts every question of reason is decided on settled principles law, as incontrovertible as the statute law; no discretion is exercised, and so happy is the Constitution of the country that the civil authorities are not trusted with the play of discretion upon us. Reason is fixed on sound maxims of law. What is reason to a military man, who knows nothing but despatch, and whose habits are hostile to it? And yet he is to judge what is reasonable notice! Although the militiaman, about whom we are so solicitous, may take depositions from persons in civil life, it is made to hang upon the discretion of a court martial whether he shall be allowed five, ten, or twenty days to do it. Thus they may prevent depositions from being read if they are so disposed. I am averse to placing discretion any where, but particularly so as to giving discretion to a court martial in relation to a man Constitutionally exempt from military service.

"Every person attending as a witness in obedience to any summons issued under this act, 'shall be entitled to the same compensation, and be privileged from arrest, in like manner as witnesses duly summoned before a circuit court of the United States." Who is to pay them, I ask? How is it to be recovered? You tell them they shall be entitled to compensation-from whom? How are they to get it? After they have been there and rendered their service, they are to be told that they are entitled to the same compensation as in civil cases; but no way provided for them to get it.

I shall make no comment on the next part, but beg leave to read it, for its very sound will have influence against it: "That depositions taken 'before a judge of any court of the United States, ' or before a judge of any circuit or district court, 'court of chancery, common pleas, errors or ap'peals, or any superior or supreme court of a State or Territory"-Nothing short of supreme and superior, and superior and supreme again, must minister to their case-"where the deponent or 'deponents shall reside, or may happen to be, or I have now gone through my objections to the 'before any three or more of five commissioners, detail. When the bill was first introduced, I opto be appointed and commissioned by a judge of posed the principle. I did confess then, and I do 'any court of the United States, or Territories now, that I am very little acquainted with the 'thereof, may be read in evidence before any such things belonging to the military department; but ' court martial or court of inquiry, in relation to the impression was early made on me that miliany charge." One would think after all this that tary institutions should be watched with the utsome desperate punishment must be awarded to most jealousy; that they exist, but as an evil, in the accused, if convicted. Not at all. After all a febrile state of society; that they should be tolthese have ministered to their convenience, depo-erated in certain situations, but not permitted to sitions may be read-"where the punishment, upon 'a definitive sentence of conviction, may not extend to life, nor to the cashiering or dismission of ' a commissioned officer."

·

To the latter end of the same section also, I

draw after them evils which might be prevented. If it were necessary to pass a bill of this kind at all, I was unwilling that it should be so constructed as to familiarize or blend the civil and military institutions. I wish it to be more explicit; not