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to take so wide a ground as this. If all the civil authorities be liable to be called upon to act by a military court, the military becomes less odious, and thus we may slip out of civil liberty to passive obedience.

A case may not occur in a century, in which the provision intended by this bill would be necessary. It is known that till a little before the reign of Elizabeth, the law did not permit a witness in a civil case, and here they cannot be summoned out of a State, and yet no man suffers for want of testimony, it is rendered cheerfully; and when any of our militiamen shall be thus jeopardized, their fellow militiamen will step forward in the same way as a witness comes forward in civil cases without process.

In England, in the dawn of jurisprudence, jurors were witnesses; being drawn from the vicinage, in which the offence was committed, it was thought that their knowledge of the fact was sufficient; their testimony determined the fate of the man. Now, if that mode has been considered competent in civil life, do you suppose that in military life a man can do a thing for which he is subject to conviction by military law, without sufficient testimony in the ranks, and which may be coerced by a file of men? A case has never yet happened, though we have passed through one war, in which the provisions of this bill were necessary. It is acknowledged on all hands that a cause now within our knowledge is the object of this bill. I for one am inclined to think that a case will not occur in future, and I will not hesitate to say, and indeed the House have said it, that the present case is not cognizable by the articles of war. Recollect the amendment of the honorable gentleman from Massachusetts (Mr. LIVERMORE.) The rejection of that amendment was a tacit acknowledgment that the case so often alluded to was not considered strictly cognizable by the articles of war. Of this I have myself no doubt, and I take that vote as expressive of the sense of the House on the subject.

I shall now content myself with voting against the bill, and with expressing a strong wish and a great hope that the good sense of this House will refuse their assent to its passage.

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must follow that provisions which were calculated to give the best effect to those laws, must also be correct. If there be an evil which is calculated to excite our fears, said Mr. L., we must trace its source to the former acts of Congress but he apprehended that the institution of those courts, although now a peculiar object of jealousy, had been recognised as necessary in our Government, from its commencement. The bill before us has been objected to because it is said to be similar to the laws of England on the same subject. It is perhaps going too far to say, that the circumstance of its being derived from the British system affords of course an objection to it; it must be acknowledged that from that nation we have borrowed many of our regulations in jurisprudence. The introduction of courts of inquiry, and courts martial, perhaps may have followed the martial system of jurisprudence, as civil courts did the civil system introduced from England; if that be the case the experience of that country as to the mere practice, may afford useful information and cannot be objected to: and although there is no gentleman in the House, said Mr. L., more averse to the introduction of the principles of Government incident to the British constitution into this country, than myself, yet so far as respects the present subject, they having been before introduced, he should have no objection to acting on them in the same way, unless indeed gentlemen who opposed the bill would point out some other mode better calculated to attain justice. Whether the bill under discussion therefore be a copy of the mutiny act of England, as has been suggested, or not, appeared to him to be entirely unimportant, as it respected the principle.

It has been argued, and great alarms have been attempted to be excited from an assertion, that this bill if passed into a law would have the effect of erecting the military over the civil authority. A favorite topic, certainly, said Mr. L., for the ears of those who are supposed to be so uninformed; but where are the proofs of these assertions? Let gentlemen who use this clamor, point to that part of the bill which is calculated to produce this effect. On the other hand, when we view the details of every section, we find but the repetition of Mr. Love commenced by observing, that if one the Constitutional maxim, that the civil shall conhundreth part of the objections urged against the trol the conduct of the military. Can gentleman passage of the bill were correctly founded, he rationally believe, that the public mind can be thought it would afford sufficient reason for its affected in the manner they seem to desire, by asunanimous rejection in the House; but certainly sertions so palpably erroneous to the understandgentlemen had calculated, in making them, on aning of every man who is able to read the different exceeding defect both of legal understanding on sections of the law? Can such arguments be rethe floor of Congress, and of general information lied on, to produce any effect here? Where is among the people of this country, if they hoped the coercion to which the civil authority is subthat their arguments could have the effect desired. jected from the military? No one has been able Objections to the passage of the bill had been to point it out. It is said, indeed, that no discremade, as well to the general principle it introduced tion in vested is the civil court, in issuing the into our code, as to its detail. The general prin- summons, but it is to be done when required by ciple he conceived was a plain and obvious one, the judge advocate of the party. True, sir, but which could admit of no doubt; indeed it might what is a summons? is it a compulsory process? be said to exist already in the laws which had es- No, it is no more than a bare request, which intablished and revised the military court system; deed the military courts now exercise the right for if the laws which authorized the different spe- of, and when we inspect the provisions of the bill, cies of court martials were correct in principle, it I we find that the further process, or a fine for dis10th CoN. 1st Sess.-57

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obedience, is entirely discretionary with the court of civil jurisdiction. Suppose, sir, the court were to order this summons not to issue. Is there anything in the bill which enables the military court to coerce the civil? I presume not; that indeed would be a degradation of the civil authority, against which I would declaim too as loud as any one here. This assertion of gentlemen has been made and repeated; it is calculated they suppose to rouse the honest prejudices of the friends of civil liberty; but before the charge can be accredited, the temper and wisdom of this House, as well as the nation it here represents, will at least require the semblance of argument in support of it. Many indeed have been the objections said Mr. L., to the details of this bill, some of them no less extraordinary in themselves than in the manner of expressing them. A gentleman from Virginia (Mr. RANDOLPH) has depicted to us the horrors, which may be conceived, from compelling female delicacy to an attendance on a court martial, where he presumes neither virtue or decency can be respected, and where female modesty must encounter the rudest shocks; what farther might have suggested itself, on this subject, to the imagination of the gentleman, it is unnecessary for me to conjecture. To a female of delicacy the introduction as a witness even into a civil court, cannot be attended with very pleasurable sensations to herself; in the crowded room of a court, consisting generally of a mixed collection, she would find herself surrounded by a multitude, not very congenial to her habits; but neither there or in a military court, can we presume she would be unprotected; the human character ought not to be dishonored, by such a supposition; there is nothing in the history of military courts which warrant the charge of so much depravity; if indeed such might be contemplated to be the character of those courts, it certainly reflects no honor on those who by a law only of the last Congress have revised and re-enacted the military court system. I cannot consent to waste the time of this body by a reply to objections like this.

An allusion has been frequently made to the circumstances which have given rise to the measure now contemplated to be adopted. Whether the total inability of the court of inquiry which has been ordered, and sanctioned by the voice of this House, to compel the attendance of witnesses who are possessed, as has been asserted, of evidence to do justice to the public in a prosecution (which has from many laudable motives excited the utmost anxiety in the community) is the immediate cause of the proposition before us or not, is certainly not important in the decision of the questions involved in it; and whether those occurrences, so recent in our minds, have disclosed the necessity of such a law as this will be, or not, is to me perfectly immaterial The history, however, of the jurisprudence of this and every other country, may prove in a thousand instances, that circumstances the most trivial in themselves have given rise to laws of the utmost importance to the welfare of the State, or the safety of individuals, and which at subsequent periods have had the most

MARCH, 1808.

general operation. In the case alluded to the inquiry has been instituted, but it is discovered that it must be inefficient, and fail of its effect in satisfying public justice, if the accused is guilty, or of protecting his character, if innocent, unless by the aid of the civil authority the necessary testimony can be brought forward. The defect having so obviously existed, and having occurred in the transactions of the Executive Department of the Government, the President has intimated in his reply to our message on the subject, the difficulty which presents itself to the discharge of the duties we had thought proper to enjoin on him. And what is now said by the gentleman from Virginia? Why, sir, the members of this House who have introduced and supported this bill, by which alone the object of the motion for the inquiry depending can ever be rendered effectual, as well as the President of the United States, who is said to have hinted at the measure, are charged with the dishonorable motive of having intended it as a cover to infamy, and to gloss over guilt.

But, sir, the citizen is to be subjected, it is said, to military tyranny, because the evidence of his failure to attend the military court, to which he shall be summoned, is the record of that court, which is to be exhibited to the civil tribunal levying the penalty. It seems difficult to suppose how the terms of this bill could have been so much misapprehended; the witness summoned to attend shall be liable to the same penalties, to be inflicted in the same manner, as if he had been summoned in a suit depending before a civil court; and what, let me ask of learned gentlemen, is the manner of proceeding in civil cases? Is it, indeed, that the evidence adduced against the defaulter, is in its own nature conclusive and incontrovertible, not to be rebutted, as has been said? So far from it, we all know that according to the manner of those civil courts, which are still to inflict ad libitum the penalty for disobedience, they never refuse, what justice to the accused always requires, to give him an opportunity of defending himself. He is regularly called on for evidence to mitigate his offence, or clear his contempt, and after a full hearing his fine is levied according to the degree of the offence, in the discretion of the court. Does the certificate of the record of the court of inquiry amount to more than the certificate of the service of process by an officer? and that is always read in evidence on such occasions. It seems to me, said Mr. L., that it can only be used for a similar purpose; they may both be considered as competent, but not conclusive evidence in establishing a fact.

What, I repeat, said Mr. L., are we to think of objections like these? are they intended to inform those to whom they are here addressed, or are they intended to mislead the public mind? They certainly offer no very honorable compliment to the understanding of this House, or the information possessed by the community.

The gentleman from Kentucky (Mr. RowAN) has been extremely minute in his objections to the details of the bill. He has also not omitted to remark in a general way on the injurious quali

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ties he attributes to it. He says dangers are to be apprehended from the junction of the civil and military authorities, which is contemplated by the bill. That this ought not to be the case unless we had a standing army, and that it is a measure adapted to the introduction of it. When gentlemen make these assertions, which can only be intended to enlist our prejudices against the measure, we ask them to point to that section of the bill which is to produce these effects. Let them show the argument to be correct, and I promise them that the bill shall have my most hearty negative; for while I have a voice in this body I will always oppose the introduction of a standing army; but if our situation compels us to keep in active service a regular military, for a period ever so short, necessity compels us to make rules for its government; if those rules are only to be enforced by a recourse to the civil authority, the common principles of reasoning would induce us to believe, that it would operate as a restraint on the excesses of the military. When we have it in our power to disband our army, there is nothing left for the military code to operate on. But the bill before us cannot certainly be charged with a tendency to establish a standing army merely because it provides certain regulations, which are incident to all armies alike; it may as well be said in any case, that the subordinate regulations necessary to carry a general institution into effect, are the original grounds on which the measure itself rests.

Great oppression, it is said, will be introduced, by compelling the production of public papers and records, as provided for by the first section of the bill; and much fault is found with it that copies are not made to answer the purpose. I confess I am astonished, said Mr. L., when I hear a gentleman who speaks in so high terms of the rights and liberties of the people of this country, express opinions so hostile to them; certainly he could not mean to tell the public, when he mentioned the introduction of copies of papers, that it could be proper to read such copy in evidence on a criminal trial. Such principles of jurisprudence are new to us, and it is to be presumed the gentleman has not well considered them, or he could not certainly entertain the opinion, that a copy signed by the keeper of a record, or his clerk, of any paper which might be deposited as a public one, although a forged original (which could not be detected in the copy) ought to have the weight of testimony when a man's life or reputation was at stake. If ever a doctrine of this kind is introduced among us, we shall soon find that the rankest forgeries can easily be employed to convict the innocent, or screen the guilty from the punishment his crime deserves; inconveniences which may attend the execution of compulsory process to produce the originals, may, it is true, bear hard on the clerks of those offices, or the keeper of such records; but these are evils incident to justice, and what practice has already rendered familiar. The gentleman has argued on this section of the bill, as if it was really so unguarded, as to put it in the power of a military court to compel the

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attendance of persons with their papers, at any time or place they might appoint; but when we look at the provisions of it, it will be found that before the subpæna duces tecum can issue, the affidavit of the party must be filed, showing good cause before a civil judge, who is to decide as to the validity of such cause, in his discretion, and to certify, only if he thinks proper, in order that the process may issue. This provision is further guarded still, by requiring that the civil judge shall, when he orders such subpoena, certify his opinion that the paper required does contain evidence proper and pertinent to the cause.

An apprehension is said to be entertained that the witness who produces his papers in obedience to the subpoena, will not be able to obtain a restoration of them; how is this done, said Mr. L., in other courts? Is there any positive law, any legislative act specially providing for the restoration of original papers introduced into court? If there is, I have never heard of it; under the practice of all courts, it has been established as a common rule of justice, that the witness introducing a paper, or a record, should have a return of it; it would be hard indeed if a court thus arbitrarily deprives another of his property, especially as the only object of introducing a paper is answered by the inspection of it.

The gentleman from Kentucky (Mr. RowAN) has again attempted to excite our apprehensions for the safety of the civil officer who shall be charged with the service of the process. He has told us that if in civil cases he makes default, before he is made to suffer he is entitled to the right of trial by jury; if indeed this be the case, where is the clause of this bill which deprives him of that right? Does it confer on a military court the right of fining or imprisonment? If it does not, the officer is still left to the power of the civil court, and in express terms the civil court is required to proceed in the usual manner to levy the fine for his misconduct in office. The position taken by the gentleman, that the officers of courts are entitled to a trial by jury before a fine can be inflicted on them, it is not now necessary to observe on. It has, however, so far as my experience has enabled me to inform myself, been considered as a proper and necessary incident to the honor of a civil court to fine its own officers for misconduct in the performance of military duties; it is only when the party suffering by the neglect of the officer has sought redress, that the officer is entitled to the trial by jury, who are to assess the damages the injury demands.

The hardship of compelling a witness to attend a military court, where it is said he is to receive no compensation, has been elaborately dwelt on. Mr. L. said, he would ask the gentleman what provision is made for payments of that sort in civil courts? Is there any law which authorizes by summary process a recovery? He had always considered it as a matter of practice only, which would equally apply in the cases contemplated by the bill; there is no process of the court by which a witness would be enabled immediately to levy his money. But why is it said that a witness is

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Military Courts.

MARCH, 1808.

obliged to attend in pursuance of a summons to a objection did exist to any part of the bill, it was military court more than to a civil court? There to the fourth section; it is certainly jeopardizing is no positive law, it is true, which declares that a in a very dangerous degree the life of a fellowparty shall be obliged to tender a witness his wa- being, to permit testimony taken by deposition to ges before he sets out to court; but the practice be read in evidence on his trial; it is not objecof courts, as in the other instance, has adopted tionable in this law, however, on Constitutional rules which are equally calculated to insure jus- grounds, as a gentleman from Vermont (Mr. ELtice, and which are, under the operation of this LIOT) has supposed, because, by the letter of the bill, secured to the civil courts; for, should a wit- Constitution, the right of being confronted with ness fail to obey the summons, the practice already the accuser and witness at the time of trial is, in established would secure him against any evil express terms, confined to civil cases, in exclusion consequence, if he had demanded from the party of military trials. This civil right is as expresssummoning his wages, and they had not been ten- ly excluded from the military as the right of trial dered him. If, on the other hand, the witness by jury; and it is easy to see the necessity which does attend, and is not paid, he can only have re- exists for this distinction which our Constitution course to the common process of law in a civil has made. That necessity was, no doubt, lamentcourt, which still remains superior, and I trust al-ed by the humane and wise framers of our Conways will, to the military, in order to recover and stitution. The section in question, however, allevy by execution, his money. though it ought to be acted on with great caution, It is objected by the same gentleman, that the affords perhaps the best mode which can be adoptbill operates unequally on the officer and soldier; ed, considering the convenience and rights of the that the life of a soldier may be taken by the in-citizen, to obtain testimony so situated. To make troduction of evidence which would not be sufficient to affect an officer. But this construction, like many others of the gentleman, is not warranted by the terms of the bill. The third section, which had been alluded to, when we have recourse to it, we find in no case authorizing the reading of testimony by depositions, unless in cases where the punishment may extend to cashiering an officer or flogging a soldier; but if that section had been obscure in its terms, the general provision, which is of unlimited operation, in the fourth section, and declares that in no case where the punishment is capital a deposition shall be read in evidence, unless when the witness resides at more than one hundred miles from the court, completely refutes the distinction made by the gentleman's argument.

A general objection has been made against summoning a witness before a military court, because, it is said, that kind of court is not regular in the times or places of its sittings; and the gentleman from Kentucky has intimated that in this respect the civil courts are differently organized. These, if objections at all, are objections to the constitution of the military court itself, and not to the provisions of the act, which are intended to enable it to effect the purposes for which it was intended; from the very nature of a military court it was impossible such court could by law be fixed as to the time and practice of its sessions. The gentleman is mistaken, too, when he supposes that the civil courts are limited in the duration of their sessions, and in this respect different from the military court. The Supreme Court of the United States is unlimited in this respect, and the inferior courts all have the power to adjourn as may suit their convenience, and to sit as long as the business before them may require. The dangers, then, which have been apprehended to exist in a greater degree in a military court, from their power to continue longer in session than a civil one, and thus harass a witness unnecessarily, are also found to be but ideal.

Mr. L. said he was willing to admit, that if an

no provision for obtaining testimony, which might happen to be at the distance of an hundred and one, or a thousand miles from the seat of the courts, might, particularly in courts of inquiry, be productive of evils in the investigation of charges which the public interests required to be supported, if true, or which the accused, if false, might thus disprove.

Too much of the time of the House has already been taken up in replying to objections to the bill, which have been urged in many instances without even the shadow of plausibility, and could only have been intended to mislead the public mind.

Mr. L. said he would only beg leave to remark, before he concluded, that the bill, in his opinion, had been unfairly opposed. A military court, although admitted to be a necessary institution for the trial of offences, has been mentioned as if it was now intended to form an usurpation over the civil authorities, although the bill itself has in the closest manner pursued, from the beginning to the end, the principle of subordination which is acknowledged to be due from the military to the civil. The courts themselves have been represented as formed of men already determined on the most violent abuses of the rights of society, and as wholly uninfluenced by the usual restraints of prudence and discretion which actuate judicial tribunals. If, indeed, this be the case, abolish these courts as useless and dangerous; but who, in the candor of his mind, and when the effervescence of the occasion shall have subsided, will say so? Has any part of the conduct of those courts heretofore published warranted the stigma? The late instances have been honorable ones to the character of its members. The judge advocate has been selected from the civil orders of society; gentlemen have been appointed who stand first in the line of their professional pursuits, distinguished no less for legal ability than moral integrity-men whom no one dare to suspect of a disposition to harass the citizen or trample on his rights. It is most probable that examples so sat

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isfactory might in future be followed, but if the law as it at present stands does not give that assurance, let it be altered, and make it necessary uniformly hereafter to select from civil life the judge advocate of the court, whose details of the testimony reliance may be placed on.

In all the objections which have been made, Mr. L. said he could see nothing, unless, indeed, it was such clamor as ingenuity may at all times give birth to, against the most unexceptionable laws, and which the time and circumstances under which this bill has been necessarily introduced, are particularly calculated to bring forth. For his own part, he was willing to risk its passage, for he could see nothing like danger in any of its parts to the civil liberties of the people of the United States.

At four o'clock the House adjourned without having decided the question.

SATURDAY, March 12.

Mr. JEREMIAH MORROW, from the committee appointed on the tenth instant, presented a bill authorizing a loan of arms to the State of Ohio; which was read twice and committed to a Committee of the Whole on Tuesday next.

MILITARY COURTS.

The bill concerning Courts Martial and Courts of Inquiry was again taken up. The question being on the passage of the bill.

H. OF R.

sister, or daughter, to be mal-treated, and compel them to follow a moveable camp; that this bill was originally designed for a special case, and that there is such a defect of detail in it, that there is not a solitary provision which will meet the case. Are all those objections real or visionary? How easy it is for the human mind to raise objections against any system on earth! What system was ever adopted, which would not be equally objectionable as this, going in the same manner upon the supposition of abuses which might occur under that system? When measures are held up for adoption to the National Councils, how easy it is to reprobate them! Prior to the elevation of a Jefferson to the Chief Magistracy of the nation, we heard various objections urged against him; he was denounced as an infidel; it was said that by establishing him in the Presidential chair, you would establish infidelity throughout the land; that the Government would be perfectly nerveless. He has been elevated, and where is the citizen hardy enough to say that one of those consequences which was predicted, have resulted? On the contrary, all his measures, the selection of his men, all the acts of Government, have been approved. Shall I call the consideration of the House to the embargo law? How many objections, how many clamors were raised against it-how many evils predicted! That our citizens would be ruined, our country prostrated, and everything hazarded by its adoption. The measure has been adopted, and what is the result? It meets with popular Mr. J. MONTGOMERY observed, that having been approbation throughout the Union. In those Chairman of the committee who reported the bill, places where it was at first unpopular, the moment it might be considerered proper for him to assign it was understood, and the censures against it met the reasons which influenced the committee to and obviated, the law became popular, and is now report the bill, to state its principles, explain its considered one of the sheet-anchors of the nation. provisions, and to meet objections yesterday urged When that measure was first introduced to the by gentlemen on the floor against it. Ingenuity House, will any gentleman say that the bill for has been exercised, said he, talents have been dis- imposing it was correct in its provisions? Was played, and the power of imagination put to the it not defective, and have not two bills been passed stretch to invent objections to the principle and to amend it? Assuredly; and one of the grounds provisions of the bill-some of such a nature as of objection to this bill, and it has been repeated to affright us, to excite a horror against its adop-two or three times, is, that the bill is defective. It tion. The bill has been denounced as erroneous in principle, defective in detail, inoperative in practice, causing delay in military justice, and as oppressive to the citizen. It has been said that this bill, instead of being entitled a bill concerning courts martial and courts of inquiry, should have been denominated a bill making the civil subservient to the military authority. It has been said, that if you pass this bill one of the greatest misfortunes at this all-important crisis of the nation, one of the most serious calamities, will certainly happen. It will cause, it is said with confidence, a dissolution of your Army. It has been said, too, that pass this law, and one of its prominent features is, that you cause military law to be established in your land; that you subject the citizens of the United States to military despotism, a state of things the most abhorrent to our feelings, a state of things the most to be deprecated. It has been said, too, that this bill is worse than the alien or sedition laws, that if you pass this bill you drag before your courts martial your wife,

was not correctly reported at first I admit, and it requires time and deliberate discussion to understand and correct its principles.

How many gentlemen argued upon this bill? They blow hot and cold. Sometimes it is too strong: sometimes powerless. When it was originally reported, it was censured by some of its friends and all its enemies as being too extensive in its operation; inasmuch as that when a man was put on trial for his life, a summons might issue to any person within the United States. Here then it was too strong. What was done? The bill, to meet the ideas of gentlemen, to ameoliorate it, was recommitted, and the committee have reported it thus: as it now stands no summons shall issue to a person at a greater distance than one hundred miles; and in all cases beyond that, depositions shall be taken. But, says a gentleman now, will you put a man's life at stake upon a deposition? The bill was too strong when it authorized the calling witnesses; but the moment we have made a provision to meet the ideas of gen

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