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H. OF R.

Military Courts.

March, 1808.

ness to the citizen witness, for whom, in his capa- accused? Why not give him all the privileges city of soldier, so much regard is felt? In case of a citizen ? Why not allow him an impartial of his refusal to attend, or to testify when he has jury, and counsel for his defence? You do not this; attended, he is proceeded against-how? In the you leave him at the mercy, at the discretion of same manner as if he had refused to attend, or an arbitrary commission, appointed for the express give evidence in a civil court; and the civil court purpose of trying him-but you extend privileges is called on to inflict the penalties. In case of to him at the expense of the private citizen, who contempt to a civil couri, the court possesses has no concern or connexion, and almost feels within itself the highest possible evidence of the himself contaminated at being coupled with him. fact, and proceeds to punish the offender accord. You take from the citizen his common right, and ingly. This has been ihought, and I believe prop- make the record of a court martial the evidence erly, a necessary

sanction to the authority of our upon which he shall be punished—and this to adcourts of law. But here, the citizen may be pun- vance the purposes of justice; when, at the same ished by order of court-for a contempt of the time, the court by whom the accused is to be tried civil authority? Not at all: the civil court is is constituted upon principles the most abhorrent made the mere executioner, the drum-major of to justice, and, from the very nature of things, the military court, to inflict a punishment on the must be presumed to have a bías for or against the citizen for a military offence, which, in his capa-culprit. Have gentlemen taken into consideration city of citizen, he cannot commit, and the evi- one great, plain distinction between courts martial dence of his guilt shall be the record of what ? and courts of law, (which I have not yet heard Of a court martial! This record is to be evidence, mentioned-perhaps it may have been, and has conclusive evidence, (for how are you to traverse escaped me,) when they are about to compel the it?) upon which the citizen is to be amerced and equal attendance of the citizen upon both, by the incarcerated; and yet he is told that this is a pro- same penalties ? That courts of law are regular vision for the protection of his liberty! The only -held at stated periods and places, which have case in which our free and manly jurisprudence been selected by law for public convenience the permits the citizen to be punished in his person, creatures of an enlightened and benevolent polior property, without the intervention of a jury of cy; that courts martial are irregular, that ihey his peers, is that of a contempt of court, an offence may, and niost frequently must, be held in places coming within its personal knowledge, and the most difficult and even dangerous of accessagainst which it is necessary to proceed in a sum- the most destitute of accommodation, and in seamary way, to uphold Justice herself upon the sons the most inclement—the mere creatures of judgment seat; and yet, even this power has been military power, perhaps of military caprice. And viewed with great jealousy, and must be exercised will gentlemen contend that the same attendance with cautious forbearance.' But to give validity, is due to the one as the other, by the citizen, in in the courts of law, to the records of courts mar- his private capacity? Indisputably and assuredly tial, to make them evidence, upon which the citi. not. Besides, as has been well observed in giving zen may be restrained in his liberty, and dispos- his attendance as witness in a court of law, evesessed of his property, without any security which ry man performs a duty which is reciprocal in its the trial by jury affords, is a monstrous innovation nature-which his neighbor is equally bound to upon every maxim heretofore beld sacred among 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 proviso that a witness shall not be compelled to of justice and of law are to become instruments attend at a greater distance than one hundred of punishment, in the hands of courts martial, for miles; but, not to mention that a supplementary any failure in that duty-why stop here? Why bill may amend this defect-nothing more easy not extend to courts martial of the Army of the after the principle shall have been firmly estabUnited States, power in all cases to command the lished-there is not a hundred miles square in the services of the citizen, where his assistance shall Union in which a court martial mighi not be sitseem to them “necessary” to enable them to do ting at the same time. The centre may be located military justice? You may as well turn over the at will, it is a moveable point, ai the pleasure of convicied soldier to the sheriff

, or marsbal, and the Executive, and there is not one man or woman make him executioner: call ihe citizen from pri- in the country, who may not be drawn within its vate life, put the instruments of torture or of vortex. If this bill pass, it will be the first attempt death, into his hands, and compel him to assist, under this Constilution, to raise the military pow. where his aid may be deemed “necessary,” in ex- er to a co ordinate authority with the civil. I ecuting the sentence of a court, abhorrent to his wish it may not be the first of a series of laws, feelings and his principles; to give the finishing tending, insensibly," whenever deemed necessahand to a process which ought to be summary, but ry," to extend martial law throughout the counwhich unites all the delay of a judicial court with try. Indeed, such is ils present operation, as far the terrors of a military tribunal. But this is as it goes. The citizen is punished by a military necessary to enable innocence to protect itself. court and for a military offence: the court of law, Why, then, is this the only relief extended to the indeed, pronounces sentence; but, in so doing, it

us.

MARCH, 1808.

Military Courts.

H. OF R.

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 ihe 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 ihis 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 io our civil tribunals; but they sons, insurrections, conspiracies, real or fictitious, did not seem to recollect that they are not the and, in our Southern country, materials for insur- same. The military cannot be equal to the civil. rection, are, unhappily, always at hand-may be Two equal powers cannot exist; for if a conflict made the pretexts of further encroachment, until occur between two equal powers, and neither the liberties of the people will exist only in yield, a paralysis takes place. But this bill is far, history.

very far, from leaving the military on a level Among the curious inducements held out in with the civil authority; it has far transcended it. favor of the bill, one gentleman has gravely said in the very first section I will show that a decided, that, in proportion as a nation was free, so ought clear, pre-eminent, and prominent advantage is the military code of that nation to be severe, and given to the military over the civil authority. the proceedings under it summary; from which This bill provides that when an officer is ache draws this very logical inference, that in all cused of a crime touching his life, depositions cases where it is practicable, you should extend tu shall not be read in evidence. Indeed, so tender the soldier every provision for his security, to is it of the officer, that if conviction might subwhich the citizen is entitled in criminal courts at ject the officer to dismissal or cashiering, deposilaw.

tions shall not be read; and if witnesses cannot When this bill was originally introduced, the be produced residing within one hundred miles of first idea that struck me was the reception it the place where the court martial shall be held, would have met with, ten years ago, from a certain their evidence shall not be admitted. What is description of politicians in the nation. At that the result? An officer shall have committed the day, “ standing armies, great navies, implicit con- most flagrant crime; if you can prove his guilt fidence in the Executives were the leading traits, by witnesses within one hundred miles, he may the watch words (I might say) of Federalism, and be convicted ; if not, he may be exempt.' He shall it was a subject of curious speculation by what commit a crime, which shall subject him, on constrange metamorphosis a great deal of what then viction, to cashierment; he is secure, except a was deemed good Federalism, has now, by grada- witness can be found within one hundred miles; tions almost imperceptible, become very good for, out of this circle, even depositions cannot be Republicanism. Are the same principles' now to read-thus putting the officer infinitely above the be brought into operation and silently acquiesced citizen, for the nation forms the limit to civil in, which, ten years ago, would have set the con- jurisdiction. In case of an offence committed by tinent in an uproar ? Are we to go beyond for- an officer, if you can find a witness within one mer Administrations in zeal, to cherish the Mili- hundred miles, his head may pay the forfeit; if tary Establishments at the expense of the civil? not, he is totally exempt from punishment. Much as I abhor and detest the alien and sedition Contrast this with the provision for the merilaws, neither of them, in my estimation, surpasses torious class of militiamen. Let us examine the the bill before you, as instruments of oppression. case. You may take depositions in cases of these As calculated for a particular case, it is highly men, and convict them on depositions taken any. objectionable-and yet more so as being general where on the continent; thus a species of testiin its operation.

mony which shall not in the least affect an officer, I have done, sir-I have endeavored to express may take away the life of a militiaman. Every in as few words, and in as plain a way as I could, citizen, when called into service in the militia, some of my objections to this bill; but if it should may have his life taken upon that species of testipass, I hope you will do away this military mas- mony, which shall not subject an officer to cashquerade, this miserable mockery of calling in the ierment or dismissal. civil authority, when the civil authority has no Take another side of the picture. By this bill discretionary power, except in the case of what it is the privilege of the officer that he is not subhas been aptly called the "military subpæna duces ject to examination before a court of inquiry even, tecum :" and even there its power is inadequate without the benefit of viva voce testimony, if to when it has no discretion in withholding the pun- be had within one hundred miles, while the miliishment (but merely over its quantum) awarded tiaman has the poor privilege of having testimony, by a court martial on a citizen, for refusing to if it is to be had within twenty-five miles. One obey what is called a civil process, but what is as hundred miles are marked for the officer, and substantially a military process, as if enforced by twenty-five for that description of men, who, we a ble of grenadiers, at the point of the bayonet. are told, are to be so much favored by this bill.

Mr. Rowan rose to oppose the passage of the With what eyes do gentlemen view this bill?

H. OF R.

Military Courts.

March, 1808.

How can they expect to look their fellow-citizens tiaman enjoy them? He does not, sir, whether in the face whom they have subjected in this in actual service or as a citizen; they attach to way? We may tell our constituents, that if a the officer only. 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 ihe lines to procure evidence-construction and its effectuation; I allude to the how far? If you can find a witness within iwen- power given to compel the production of papers. ty-five miles, you may compel him to attend; "The said witness, in such summons, may be furbeyond that distance, if you can get out of camp, ther directed and required to exhibit in evidence (and a militiaman's' influence in an army to be before such court martial or court of inquiry, any sure is vast!) you may in time of war go out and public paper, document, or record in his possescollect depositions; in the meanwhile your life sion, 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 io the adverse pariy. 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, iben, 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 Constitu. A little preference by this bill given to the mili- tion, and of the first principles of right, to force tary over the civil authority did not strike my hin' to surrender it. colleague in the parallel which he drew. In the But that the pill may not taste bitter, it is sugarcivil courts, there are such things as pleadings, ed, glossed over, by a provision ostensibly going and the cause of action is in a visible shape. Not to show that we have a very high regard for priso in military courts. In civil cases, if a man vate papers and rights. I feel, as well as all gensummon more than three witnesses in some States, tlemen must, that we tread on sacred ground; and, in others, more than a reasonable number, it but I contend that gentlemen are deceived in besubjects him to costs for harassing his enemy. lieving that these checks operate as a restraint,

There is no such restriction in this bill; a mili- while, in fact, they serve only to obscure the daotary officer goes to the civil court and summons ger. “Which said papers, document, or record, witnesses in every direction within the limits of shall be specified in such affidavit and certificate.” one hundred miles from the centre, without re- How specified ? In hæc verba. “And described striction to number. This gives the military an in such summons.” I am really at a loss to know advantage, instead of bringing them up to the how it is to be described : “and in the opinion of level.

the judge shall contain evidence pertinent to the But something more as to this equality, and issue, or subject matter which may be on trial bare equality for certainly it cannot be a pre- before such court, and which said witness might eminence of the military that is contended for.' be compelled to produce, by the ordinary rules When, in civil cases, a deposition is to be taken, of proceeding in a court of civil jurisdiction." the judge is not subject to the trouble of taking This clause, I confess, I am not able to construe. them, but a commission is issued, while this bill

, The judge to whom application is made in the as if desirous to subject all the constituted authori- first place, is to examine whether the paper be ties, commands all courts and judges, of whatever pertinent to the issue. To do this, the subject description, to attend upon the requisition of this must be before him. But it is not; it is before a military man. Where is the man in civil life military tribunal. He must first judge of the who can command such honorable servants? matter, then, to enable that court to have the Where is the man who can reckon so honorable means of judging it. There ought to have been a suite ? They are all subject to be called upon a provision for a transcript of papers on the subby a military man-to save his life? No.

To ject, that he might have the subject before him; save him from cashierment? No. They are all but there is no such thing; he is to determine 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! without having the subject before him, and also All the judges of States, inferior and superior; to determine whether the paper called for could all are to be put in requisition to save this person be legally required in a civil tribunal, by which from a reprimand. Where is the man in civil public papers cannot be called for. I have never life who enjoys these privileges ? Does the mili- | known a witness, in a civil action, constraiaed to

March, 1808.

Military Courts.

H. OF R.

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produce a paper, except it had been placed in his l' 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 nomons, 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 à 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 disirict 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- li 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 the court sit? How long is he to be detained? with civil process. The paper, when produced, The court may sit for months; and when the witmust be read, or this military court must decide ness is once before them, he is at their discretion. upon laws not military, but upon the laws which Our civil courts have defined sessions; the attendregulate the actions of mankind, and upon the ance of the witness is defined, and his rights are practice of the country. To this, military men not violated. This bill is to carry him before a cannot be competent; ihey are not presumed to strange tribunal; strips him of his rights, except be so. This provision may work mischief; pri- at their caprice. He is not to go away, unless vate papers are secured from exposure by the Con- regularly dismissed, and how long they are to sit stitution; they are not exempted by this bill. is left to their discretion. If a witness is guilty This section, I fear, might be made use of lo vio of contempt, he may be fined and imprisoned. late the sacredness of private transactions and When they have a man before them, they will private confidence, to expose to public gaze papers keep him till they get his testimony; whether iotally improper for it, and constitutionally ex- they imprison him or not till he has given his empt. It might tend to render our Government testimony, or, if guilty of contempt, whether they perhaps less stable and permanent than it might will imprison him till he atone for it, will depend otherwise continue.

upon them. It is putting the civil in the power The next provision is objectionable and radi- of the military in a way at which my feelings cally defective: “And for every default in not duly revolt.

serving and returning any summons as aforesaid, Here is a hardship then. An amendment was : the marshal, or officer acting as such, shall be offered by a gentleman from Massachusetts, and * liable to the same penalties, and to be proceeded negatived, that the witness should be tendered against in like manner, as if he had made such his wages. I lay it down as a rule of law that default in not serving or returning any summons you cannot compel a witness to attend except his or citation in causes depending in the district pay be tendered him; and whenever it has been court of the United States, holden in the district attempted to punish a witness for contempt, it or territory whereof he may be marshal, or act has been always asked was his pay tendered to 'ing as such."

him? If not, he has not been punished. Here I ask how punishment on this officer is to be then is a decided preference to the military over inflicted ? The civil courts punish their officers the civil authority; as no provision is made that for offences, of which the record is their own per- his expenses shall be tendered. sonal knowledge; but if the officer has neglected The most exceptionable part of all, is that menhis duty out of docrs, a jury must intervene to tioned by the gentleman from Virginia (Mr. ascertain the fact, and the officer is punishable by RANDOLPH.) “And the certificate on oath of the suit at the instance of the party injured. The President of any such court martial, or advocate marshal, then, cannot be punished in the way con- or person officiating as such, stating in what retemplated by the bill. The summons is not re- spect such summons may have been neglected turnable to the civil court, but to the military or disobeyed, which certificate shall have been court. Whether it be executed or not, the civil entered and recorded in the proceedings of such court can never see. The officer is not bound to court martial at the time of such neglect or dismake return; if he fail to execute a summons, it' obedience, shall be admitted as evidence of such will not appear on the face of it because he does default in such witness as aforesaid.” In the not endorse it. How, then, can be be punished ? first place you lay all the civil authorities under In powise by suit.

contribution to this military man; all our courts I am thus stating objections to the details to and judges shall dance attendance upon him. show, that if it passes it will be ineffectual, and No depositions can then be taken within one incompetent even to its intended purpose, which hundred miles; the witness must personally atI unequivocally disapprove.

tend, and the oath of this honorable judge of this "If any person, duly summoned as a witness very honorable court is competent to subject him ' in pursuance of this act, shall fail to appear and to punishment for default. Is not this a mon

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H. OF R.

Military Courts.

March, 1808.

tary officer!

strous disparity? Contrast the civil and military I will state an objection. Papers, documents, and for a moinent. In a civil court you cannot make records, are not only to be produced by the wilthe 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 consmissioners, 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 bere they are taken from him, and what is to be a military officer hall 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 perbaps otherwise directed by the military Does not the Constitution say, that in all crimi-court. nal prosecutions the accused shall have testimony After all this, depositions are not to be read unin his favor? And can any man or can the na- less " reasonable notice" be given by the parties. tion be persuaded that the certificate of a court Who is to judge what is reasonable ? Every genmartial shall be a sufficient substitute for the Con- tleman of ihe bar knows that in civil courts every stitutional provision? I cannot help repeating question of reason is decided on setuled principles that it seems to me monstrous. There is some of law, as incontrovertible as the statute law; no thing worse than this; the naked certificate of discretion is exercised, and so happy is the Constithis court may subject you to prosecution, the tution of the country that the civil authorities are oath of one of these military men may subject not trusted with the play of discretion upon us. you to the process of a civil court and to great Reason is fixed on sound maxims of law. What expense and loss of time-and, you are also made is reason to a military man, who knows nothing to pay the costs. True, the militiaman may be but despatch, and whose habits are hostile to it? abundantly consoled by the flection that he is re- And yet he is to judge what is reasonable notice! duced to this trouble and expense by the certifi. Although the militiaman, about whom we are so cate of a court martial, or by the oath of a mili- solicitous, may take depositions from persons in

civil life, it is made to bang upon the discretion Provided nevertheless, That in case such witness of a court martial whether he shall be allowed shall satisfy the court before whom such proceeding five, ten, or twenty days to do it. Thus they may against such witness shall be had as aforesaid, that the prevent depositions from being read if they are default imputed to him was produced by sickness or so disposed. I am averse to placing discretion other inevitable impediment, and was not an act of anywhere, but particularly so as to giving discrecontempt or wilful disobedience, such witness shall be tion to a court martial in relation to a man Conforthwith discharged from any farther proceedings stitutionally exempt from military service. thereupon in said court."

Every person attending as a witness in obe. A vast privilege, considering by whom he is 'dience io any summons issued under this act, summoned and on what authority!

shall be entitled to the same compensation, and I shall make no comment on the next part, but be privileged from arrest, in like manner as beg leave to read it, for its very sound will have witnesses duly summoned before a circuit court infuence against it: “ That depositions taken' of the United States.” Who is to pay them, I before a judge of any court of the United States, ask? How is it to be recovered? You tell them or before a judge of any circuit or district court, they shall be entitled to compensation-from court of chancery, common pleas, errors or ap- whom? How are they to get it? After they peals, or any superior or supreme court of a Staie have been there and rendered their service, they or Territory"—Nothing short of supreme and are to be told that they are entitled to the same superior, and superior and supreme again, must compensation as in civil cases; but no way prominister to their case—“where the deponent or vided for them to get it.

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 op' to be appointed and commissioned by a judge of posed the priaciple. 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 draw after them evils which might be prevented.

a definitive sentence of conviction, may not ex- If it were necessary to pass a bill of this kind at ' tend to life, nor to the cashiering or dismission of all, I was unwilling that it should be so constructed 'a commissioned officer.”

as to familiarize or blend the civil and military To the latter end of the same section also, I institutions. I wish it to be more explicit; not

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