celebrity, lately written by Tytler, an able judge advocate in Great Britain. Speaking "of the authority of courts martial," he says: The civil 'power will likewise lend its aid to supply any deficiencies in the powers of courts martial, 'where the end is the proper enforcement of mil*itary discipline and jurisdiction. Thus, for ex'ample, as military jurisdiction does not extend to enforce the appearance of witnesses who are in a civil line of life, or to compel them to give their attendance in a court martial, they will, in case of refusal to obey the summons of the judge advocate, be cited or subpoenaed for that purpose 'by the civil magistrate, on application by peti'tion from the judge advocate, setting forth the 'necessity of the case, and the importance of their 'testimony to elucidate the matter to be tried." Whether this mode of proceeding is established by an act of Parliament, or is founded on a sort of comity between the civil and military courts, does not appear from this writer, nor is it, indeed, necessary to determine. It shows, however, incontestably, that in England, from whom we have derived many, if not most, of our ideas of jurisprudence, the military power is completely subordinate to the civil. That even in that country, whose Government is monarchical, and where, for centuries, there have been regular armies, the rights of citizens are so completely shielded from the control of the military that no one, except he belong to the army, can be called before a court martial even for the purpose of giving testimony, but by the consent of the civil court, and that upon the humble supplication and address of one of its officers; and this consent is granted not as a matter of right but of favor. Permit me, sir, to ask gentlemen whether this is the case, according to the principles of the bill upon your table? The first section says: "That in every case when the attendance of any person, not in the military or naval service of the United States, shall be necessary as a witness 'before a military or naval court martial or court * of inquiry, and who shall reside at a greater dis'tance than one hundred miles from the place 'where the court martial or court of inquiry shall 'be holden, a summons may be issued out of any 'court of the United States, and the clerk of any *such court shall be, and he is hereby, authorized and required, upon due application, in writing, by the judge advocate, or party officiating as 'such, or by the party accused, to issue such sum'mons, requiring such witness to appear and give 'evidence before such court martial or court of 'inquiry," &c. Who is to judge of the necessity of the attendance of a witness? The judge advocate, an officer of the court martial, or the party accused. To whom is the application to be made? Not to the court or any one of the judges, but to the clerk. On such application there is no discretion left with him-he is not only authorized, but required, to issue a summons. I might be willing to go as far as they have gone in England on this subject, and in a country where civil liberty is regarded with a much more jealous eye than there. This, I think, will be go H. of R. ing far enough; but I never can or will consent that an officer of a military court shall have it in his power to enter the sacred walls of our civil courts, and there order one of its clerks to issue a summons for witnesses to appear before a military tribunal. This is rendering the civil power subordinate to the military-it is making your civil courts the humble tools and instruments, as the case may be, of military despotism. Sir, it will be recollected that, by the provision of the second section of this bill, in case one of your citizens refuses to obey the summons thus ordered by the judge advocate, or, when he has appeared before the court martial, shall depart "without leave of the court, before his examination shall have been taken down in writing, subscribed, ' and concluded," he is liable to fine and imprisonment. If these observations have any force, so far as they relate to courts martial, they have much more as applicable to courts of inquiry. And here, sir, I cannot but observe, that by the laws of England, courts of this description, so far from having the extraordinary powers given them by this bill, (if the author I have quoted is to be credited,) have not in fact any power whatever to procure the attendance of witnesses, or even to examine them on oath. I beg leave to ask, in what manner courts of inquiry are instituted, and for what purpose? In Great Britain, they are instituted solely by some superior officer; by the Rules and Articles of War, in this country, they are instituted either by the President of the United States, or, when demanded, by the party accused. The object of these courts is merely to enable the superior officer to form a more correct judgment as to the propriety of calling a court martial Their judgment or opinion is not binding or conclusive for any purpose whatever, and the facts which they may find are in no case conclusive on the court martial. Can it be necessary, sir, that courts of this description should be vested with such extensive powers as are given to them by this bill? Every officer accused has a right, by the Articles of War, to have a court instituted for the purpose of inquiring into his conduct; and, when thus instituted, the party himself has power, by the bill before us, to send for persons, and also for all public papers which may have relation to the subject, and to have them produced before this court. I can never agree to this principle. When I say this, I trust no gentleman will believe that any observation of mine can have any reference to the particular case which has given rise to this bill, and which, in the course of the debate, has been so often alluded to. With the present Commander-inChief of our Army, I have no personal acquaintance. I can have no wish that he should not be able to exculpate himself from the charges which have been made against his character; but I cannot conceive that the passage of this bill can be necessary for that purpose. And I have no hesitation in saying that no particular case can be stated which would induce me to vest military courts of inquiry with such extensive powers. 6 H. of R. Military Courts. MARCH, 1808. On this subject I will hazard an opinion, with But, sir, if the bill is defective in its principles, it is equally so in some of its provisions for carry-out fear of contradiction. It is not in the power ing those principles into effect. of any civil court to take any public papers, documents, or records, from the possession of the person who is, by law, intrusted with them. The subpoena duces tecum never has, it never can go further than to direct the witness summoned to bring with him certain public papers in his pos the court, the court then decides as to their relevancy to the matter in issue, and may direct that they be read in evidence; they are never taken from the possession of the witness. For what purpose are these public papers to be produced before these Commissioners? Not certainly to be read for their benefit; but that, through them, they may be had on the trial before the court mar By the fourth section, in all cases before such courts, even when the punishment of the offender extends to life, the depositions of witnesses may be read in evidence, when they live more than one hundred miles from the place of trial. No rule I ought perhaps to say no principle-session. When the papers are produced before in our criminal code is better known and established than this: that in all trials of a criminal nature the accused has a right to be confronted with the witnesses brought against him. The same rule, I understand, has hitherto been held sacred in military courts. Depositions have never been permitted to be read in courts of a criminal jurisdiction. I can see no good reason why this principle, hitherto deemed so important to the duetial. If, then, this bill passes, all the public paadministration of criminal justice, should be departed from. Permit me to call the attention of the House to the third section of the bill. It contains a provision, to my mind, particularly objectionable. It will be recollected, that the first section provides, that, upon good and "sufficient cause shown, verified by affidavit, before any judge of any court of 'the United States, a subpoena duces tecum may 'be issued by the clerk of such court, for public papers, documents, or records ;" and that, by the third section, when the witness lives more than twenty-five miles from the court, his deposition may be taken before certain State judges, or before a judge of any court of the United States, or three or more of five commissioners, to be appointed by a judge; and then follows the objectionable clause: "And summons shall issue for witnesses, 'before every such judge or such commissioners, for the purpose of giving their depositions, and producing papers, documents, and records, in like manner as is herein before prescribed for summoning witnesses before courts martial and courts " of inquiry." Let me ask any gentleman in this House, who is acquainted with judicial proceedings, whether he ever before heard of commissioners, appointed to take depositions, being vested with power to send for public papers and documents to be brought before them? To me, the idea is truly novel. But let us suppose these public papers and documents are produced before these commissioners, or before the judge who is requested to take the depositions-what is to be done with them? Are they to be delivered up into the hands of the commissioners? and, if so, in what manner are they to be sent forward to these military courts? Are they to be sealed up, with the deposition of the keeper of the records and papers, and put into the hands of the person applying for them; or must the commissioners themselves deliver them to the court, or send them by the mail? And if they should ever reach the court, in what manner are they to be returned to the person who by law has been intrusted with the safe-keeping of them? These are questions, sir, which I should wish to have satisfactorily answered, before I can agree to this section of the bill. pers of your country are placed in the power and under the control of your military tribunals. It is only for one of the officers of the Army, and who may perhaps be disaffected with your Government, to institute a court of inquiry at one of your garrisons, say at Detroit, Michilimackinac, or New Orleans. Commissioners may be appointed to take depositions at the seat of Government. What is the consequence? All the papers of this House in the possession of our Clerk; all the papers in the office of the Secretary of State; the most important State papers, such as the official correspondence between the Executive and the various officers of the Government, may be produced before these Commissioners, and, by them, in some way, conveyed to your distant garrisons. On the other hand, suppose a court of inquiry, as is now in fact the case, is called at the seat of Government; Commissioners may be appointed at New Orleans, and all the public papers, not only of the present, but of the ancient Government of that Territory, are liable to be taken from the places of their deposit, and placed in the power of the party calling the court, or in the power of the court itself; and if this may be done in one case, it may be done in all. The mode of enforcing the attendance of witnesses, is also liable to many objections, and will be attended with many, if not insuperable difficul ties. By the second section, if any witness thus ordered before the court fails to appear, or having appeared, departs without leave of the court, he is liable to the same penalties, and to be proceeded with in the same manner as is provided by law in cases of similar defaults, when summoned in civil causes, in the State where he resides. In what manner do courts proceed against witnesses in civil causes? In most, if not in all the States, the usual mode is, in case of the nonappearance of witnesses, to issue a capias ad tes tificandum, as it is called, by which he is taken and brought into court by an officer. The capias always issues from the court before whom the cause is pending, and who have complete control not only over the subject in dispute, but also over the witness. They may, also, in certain cases, fine and imprison the witness. But let us exam MARCH, 1808. Military Courts. H. OF R. In pelling the attendance of witnesses, and receiving their testimony likewise upon oath." ine what must be the proceedings under the sec- the other. In this opinion Tytler concurs. ond section of this bill. Suppose a citizen of Vir- page 358 he says: "It is, however, a subject worginia is, by direction of the judge advocate, sum- thy of consideration, whether it were not better moned to appear before a military court sitting in 'that this tribunal, in order that it might possess the District of Columbia, as a witness, and he all the power, and furnish all the benefits of a fails to appear. Application must be made to a grand jury, should be constituted under the like court of the United States in Virginia for a ca-bond of a solemn oath, and have power of compias to apprehend him and bring him before the United States Court; and, on the certificate of the president of such military court, and of the judge advocate, such a writ will issue of course. What is to be done with this citizen by the court in Virginia? It would seem that the bill contemplates he should either be fined, imprisoned, or sent to the military court, where his testimony is wanted. It is very questionable, indeed, whether the court would have any power to fine and imprison a person under these circumstances. For what is he to be fined and imprisoned? For a contempt of the court in Virginia? No, for he has been guilty of none. It must be for contempt towards the military court; and where is the State, let me ask, by whose laws a person can be fined and imprisoned by one court for any contempt committed towards another court? Can the court order him to be transported out of the State of Virginia by their marshal, and brought before the military court in this city? Certainly not; they have no power to do this. If, then, the law is to have the effect of compelling the attendance of the citizen before this military tribunal, he is to be delivered into the hands of the officers appointed to execute the orders of this military court, and be by them transported to the place of trial. And who are the sheriffs and deputy sheriffs of a court martial? They are a sergeant and a file of men, armed, not with staves, the emblems of civil power, but guns and bayonets, the ensigns of military despotism. I had hoped that the time would never come when the citizens of the United States might be thus subjected to military power. But if the principles and provisions of this bill are to be adopted, and carried into execution, I much fear that time may soon arrive. For these reasons I shall give the bill my decided negative. Mr. NICHOLAS said, that the gentleman from Connecticut, (Mr. PITKIN,) whom he had heard with great pleasure, admitted that the power to compel the attendance of witnesses before courts martial should exist under the limitation he proposed; but asserted that there should not be compulsory process to compel the attendance of witnesses before a court of inquiry. I cannot see a reason for the distinction. The only argument the gentleman made use of was, that there is not compulsory process in England in cases of courts of inquiry. I have before me the book to which the gentleman referred; it is therein stated, that "the members of a court of inquiry are not sworn as those of a court martial; nor do the witnesses examined give their evidence upon oath." Because that is the practice in England I presume the gentleman would not wish to introduce it here. There is as much reason why the judges and witnesses should. be sworn in one court as in A court of inquiry is in in military jurisprudence what a grand jury is in civil. Why, then, there should not be the same compulsory process in one case as in the other, I cannot conceive. The decision of a court of inquiry may have considerable influence upon the final trial; it will certainly make an impression upon the nation that will not easily be removed. Upon the report of a court of inquiry, the President, in many cases, may dismiss officers who may be obnoxious to him; but whom he could not dismiss in any other way without incurring considerable censure. In this way any man may be sacrificed, unless there is a power to compel the attendance of witnesses. So much has been said in support of the bill that very little remains for me to say. The necessity for a law of this kind must be obvious to all who believe it is not only possible, but probable, that military men may be accused of crimes where the witnesses, to exculpate or to convict, are not persons in the military service of the United States. The mind of every gentleman can suggest so many cases where this may occur, that I will not attempt to enumerate them, I will only say that charges of conspiracy and of corruption by a foreign Power, will most frequently rest upon evidence of this sort. If you deprive your military men of the means of defence, you increase their dependence upon the Commander-in-Chief; you give him the power to deprive those men of their lives and their honor whom he cannot bend to his purposes. If the bill upon your table was meant to extend the jurisdiction of courts martial, I would oppose it; but I repeat, what has been said by others over and over again, that under the operation of this law, military courts will have jurisdiction over precisely the same offences that they now have, and no others. It does not make one man amenable to this tribunal who is not so at present. By this bill the Government will be enabled to use such evidence as they can command, whether possessed by a citizen or a soldier, to bring military men to punishment; and, by it, military and naval men may avail themselves of the testimony of citizens to show their innocence. What is the cause for alarm? What is the ground of the clamor that this bill has excited? How extraordinary is it that gentlemen should, without scruple, confide to these courts a power to decide upon the lives and honor of all your military and naval men, and refuse to trust a citizen in the presence of this court to be examined as a witness! Can it be possible you will suffer your articles of war to remain in force one moment after deciding that these courts are so lost to every principle of honor and integrity, that you cannot trust them to examine a citizen who may be called upon as a witness? I cannot and will not suspect any men of such a wanton abuse of power. The members of these courts will not act upon the responsibility that judges do in other courts. If they misbehave, they will be subject to punishment and disgrace. MARCH. 1808. The case that has been so often referred to in the course of this debate, proves, in the strongest manner, the necessity for such a law. A gentle. man in the service of the United States is accused of being concerned in a conspiracy for a severance of the Union, and of having corruptly reHow do the arguments used by different gen-ceived money from a foreign Government. The tlemen in opposition to the bill agree with one public good requires that such charges should be another? At one time we are told we are creat- inquired into; if they are well founded, the pering a military despotism; at another, that we are son guilty should be punished as he merits, and relaxing discipline so much that all subordination consigned to infamy. If he is innocent, he should will be destroyed. Can both these be true? At have an opportunity of clearing his reputation. one time we are told we must not summon wit- It appears from everything that we have seen or nesses, and alarming representations are made of heard, that a resort to persons not in the military the inconveniences to which they would be sub-service, for evidence in this case, is necessary both ject by such a law; and, at the next moment, that for the prosecution and defence. If it be necesdepositions should never be read in such cases, sary in this case, others may occur in which it but that witnesses ought to be examined in open will be equally so; and I will venture to predict, court. An objection has been urged and pressed that such provisions as this will be found neceswith great earnestness, that this bill blends mili- sary in every case of conspiracy or corruption by tary and civil powers, and destroys the subser- a foreign Power. I have attended to this bill vience of the military to the civil power. Is that throughout all its stages; so far from believing the fact? On the contrary, this bill, in my judg- that under it oppression can be practised, I am ment, asserts and maintains the supremacy of the convinced it is essential to the public weal, and civil power, in the strongest possible manner, in- to the security of the individual, that it should asmuch as the military are neither trusted with pass. the power to summon witnesses, nor to punish them for disobedience. To do either, they must apply to the civil power. The civil power, we are told, is made the mere executioner of the sentence of the military court. This is not the case; so far from it, that a perfect discretion is vested in the civil authority; the same as it would have if the witness had been summoned to attend such civil court. By the hill you say the certificate of the marshal shall be sufficient evidence that the process was executed; and that the certificate on oath of the president and judge advocate-shall do what? Subject the citizen to punishment? No. It shall establish the single fact that the person summoned disobeyed the summons. You take the certificate of the marshal that the summons was issued, and will you give less credit to the certificate on oath of a president and judge advocate to the fact of the witness having disobeyed the summons? In case of default, the civil court and not the military will judge, and punish, or acquit at its discretion. Hear the words of the law: "The return of the marshal certifying the service of such summons, and the certificate on oath of the president of any such court martial or court of inquiry, and of the judge advocate or person officiating as such, stating in what respect such summons may have been disobeyed, which certificate shall have been entered of record 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: Provided, nevertheless, That in case such witness shall satisfy the court before whom such proceedings against such witness shall be had as aforesaid, that the default imputed to him was produced by sickness or other inevitable impediments, and was not an act of contempt or wilful disobedience, such witness shall be forthwith discharged from any farther proceedings thereupon in said court." Mr. RANDOLPH said, that after the very able and learned argument of the gentleman from Connecticut, (Mr. PITKIN,) who certainly had proven to his entire satisfaction that he was the only person of those who had spoken upon this subject, that possessed anything like a correct knowledge of that law, which had been said to be the model of the one which it appeared they were now about to enact-he almost felt ashamed at again obtruding himself upon the attention of the House; and he did feel most thoroughly ashamed for the framers of the bill in question. I do blush, said he, for the gentlemen who have brought a bill into this House, modelled, as they say, upon the British law, who have been proven, to my unlearned judgment, (for really, sir, I stand as a juror betwixt them and the gentleman from Connecticut,) not only ignorant of the law of England-surely a very pardonable fault, if they had not pretended to understand it but equally uninformed with respect to the law of their own country, and with respect to the operation of this instrument, which, after successive recommitments, they have presented to the House. If I have arisen immediately after the gentleman from were friendly to the principle of the bill, I should Connecticut had resumed his seat, and moved its recommitment, in the hope that the Committee would not fail to avail themselves of the extensive knowledge which, with so much credit to himself, he has displayed upon this occasion. For myself, I have not the same cause to blush at the scantiness of my information on the subject. In the first place, I am not a professional man; neither was it a matter committed by the House to my especial care, and on which it was my peculiar and bounden duty to make myself acquainted; and for another reason; because, finding in the first section a principle so totally abhorrent to my mind that no inducement whatever could have MARCH, 1808. Military Courts. H. OF R. brought me to sanction it, I passed over the re-judge, and as to the authority of such, by the certificate mainder of the bill in rather a hurried way; for of the clerk, under the seal of the court to which such it will be remembered that the printed copy, as judge may belong." amended, was not laid on our tables until yesterday morning, when we we were called to vote on the final passage of the bill. I therefore did not scrutinize its details. Surely the words composing this clause convey no specific meaning to the mind-it is heathen Greek-and as a rule of action (which every law purports to be) for me, it might as well be inscribed in Chaldean characters. I forgot to state, as I intended when I rose, that the circumstance, which induced me to overcome the sense of inferiority inspired by the arguments of the gentleman from Connecticut, was my having omitted some points which ought to have been pressed, when I, yesterday, claimed the indulgence of the House, and which would have been touched upon, if the difficulty of speaking in this room, the elegant curtains to the contrary notwithstanding, had not exhausted my strength; and further, that I thought some of the observations of the gentleman last up entitled to notice; entitled, I am compelled to say, not from their intrinsic weight, but from the weight of influence, in this House, of the person from whom they fell. I have thought these prefatory remarks proper, because, as a member of this House. I feel obliged to the gentleman from Connecticut for having made himself master of this subject, and for the light which he has diffused upon it; and if, instead of attending to other affairs, gentlemen had attended to his argument, we should have had the benefit of that, for which this body was instituted, but which is seldom experienced within our walls the benefit of deliberation and discussion. For when the members of the House are busily engaged in counting money, signing receipts, reading newspapers, writing letters, and folding pamphlets, (I pretend to no personal and exclusive exemption,) it is impossible that they can enjoy the benefit of discussion: in fact, persons so employed constitute anything rather than a deliberative assembly. But if time had permitted an attentive By a most unfortunate analogy, the gentleman examination of the bill, ignorant as I profess my-has likened courts of inquiry to grand juries, and self, till now, to have been of the law on this sub- therefore, he says, it irresistibly follows that the ject, both at home and abroad, even my purblind powers proposed to be conferred on them are eyes would have discovered defects which I am indispensably necessary to the proper discharge of astonished should have escaped any man. I may their functions. Have grand juries the power be mistaken-the defect may be in my own dul- contained in this bill-to compel the attendance ness of apprehension-but there are sentences in of distant witnesses, to issue commissions throughthis bill, which, to my mind, convey no more idea, out the United States, to take depositions, upon no proposition more definite, than so many words which their presentments may be founded? How tumbled by chance out of a dice box-sentences long since they acquired it? But to pursue this which one would suppose must have been writ- analogy: the only party heard, through his witten by the celebrated Mr. Allscrip, a special attor-nesses, before a grand jury, is the prosecutor. The ney, who, himself, tells us that he could read three skins of parchment without once drawing breath. It may be from defect of comprehension; but I will read one proviso, as distinctly as I can, and appeal to the minds of those who use words, attaching signification to them, whether any precise meaning can be extracted from it. “And provided, also, That no such deposition shall be read in evidence, unless reasonable notice of the time and place of taking the same be given to the adverse party, by the party at whose instance the same may be taken, nor unless the witness shall reside, as well at the time of taking the deposition as of offering the same in evidence, at a greater distance than miles from the place of holding such court martial or court of inquiry, or the same shall have been taken by consent of parties as aforesaid; nor if the same be taken before Commissioners as aforesaid, unless the party at whose instance such commission may be issued, shall have given reasonable notice to the adverse party, of the time and place of applying for such commission, and of the name and residence of the judge to whom such application may be made; nor unless such commission be duly issued under the hand and seal of such judge, and attested and countersigned by the clerk of the court to which such judge may belong, with the seal of the court annexed. And the probate or certificate annexed to all such depositions by the Territorial or State judge, before whom the same may be taken, may be authenticated as to its being verily the act of such party accused is completely precluded from having a single witness examined in his behalf, although the finding of a grand jury may have an effect on the reputation and life of the accused, as prejudicial as the decision of a military court of inquiry can prove to the party arraigned before it. The proceedings before the grand jury being, then, altogether ex parte, by the gentleman's own principle, that part of the bill which relates to courts of inquiry is totally inadmissible; except, indeed, he would assimilate our civil institutions to this famous bill-except he wishes our free system of jurisprudence to be ripped up from its very foundations, and reduced to the standard of this inimitable model; unless that be contended for, the gentleman must give up one of the most important provisions, I may say, the vital principle of this bill-the provision which enables the indicted party to compel the attendance of witnesses in his behalf, before this new military grand jury-without which all his solicitude for the bill would soon be at an end. So much for this unlucky analogy. You are told, sir, with a most imposing solem nity of voice and countenance, that this bill does not enlarge the powers of courts martial. Do you want proof? Ipse dixit-that gentleman says so; and surely you will not be so unreasonable as to doubt his word. I am more sensible of the weight |