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celebrity, lately written by Tytler, an able judge ing far enough; but I never can or will consent advocate in Great Britain. Speaking of the au- that an officer of a military court shall have it in thority of courts martial," he says: The civil bis power to enter the sacred walls of our civil power will likewise lend its aid to supply any courts, and there order one of its clerks to issue deficiencies in the powers of courts martial, a summons for witnesses to appear before a miliwhere the end is the proper enforcement of mil- tary tribunal. This is rendering the civil power itary discipline and jurisdiction. Thus, for ex- subordinate to the military-it is making your 'ample, as military jurisdiction does not extend civil courts the humble tools and instruments, as to enforce the appearance of witnesses who are the case may be, of military despotism. Sir, it in a civil line of life, or to compel them to give will be recollected that, by the provision of the stheir attendance in a court martial, they will, in second section of this bill, in case one of your cit* case of refusal to obey the summons of the judge izens refuses to obey the summons thus ordered
advocate, be cited or subpænaed for that purpose by the judge advocate, or, when he has appeared 'by the cívil magistrate, on application by peti- before the court martial, shall depart“ without * tion from the judge advocate, setting forth the leave of the court, before his examination shall necessity of the case, and the importance of their ' have been taken down in writing, subscribed, testimony to elucidate the matter to be tried.” and concluded," he is liable to fine and impris
Whether this mode of proceeding is established opment. by an act of Parliament, or is founded on a sort If these observations have any force, so far as of comity between the civil and military courts, they relate to courts martial, they have much does not appear from this writer, nor is it, indeed, more as applicable to courts of inquiry. Decessary to determine. It shows, however, in- And here, sir, I cannot but observe, that by the contestably, that in England, from whom we have laws of England, courts of this description, so far derived many, if not most, of our ideas of juris- from having the extraordinary powers given them prudence, the military power is completely sub. by this bill, (if the author I have quoted is to be ordinate to the civil. That even in that country, credited,) have not in fact any power whatever to whose Government is monarchical, and where, procure the attendance of witnesses, or even to exfor centuries, there have been regular armies, the amine them on oath. I beg leave to ask, in what rights of citizens are so completely shielded from manner courts of inquiry are instituted, and for the control of the military that no one, except he what purpose? In Great Britain, they are instibelong to the army, can be called before a court tuted solely by some superior officer; by the Rules martial even for the purpose of giving testimony, and Articles of War, in this country, they are but by the consent of the civil court, and that instituted either by the President of ihe United opon ibe humble supplication and address of one States, or, when demanded, by the party accused. of its officers; and this consent is granted not as The object of these courts is merely to enable the a matter of right but of favor.
superior officer to form a more correct judgment Permit me, sir, to ask gentlemen whether this as to the propriety of calling a court martial Their is the case, according to the principles of the bill judgment or opinion is not binding or conclusive upon your table? The first section says: “That for any purpose whatever, and the facts which
in every case when the attendance of any per- they may find are in no case conclusive on the * son, not in the military or naval service of the court martial.
United States, shall be necessary as a witness Can it be necessary, sir, that courts of this ' before a military or naval court martial or court description should be vested with such extensive of inquiry, and who shall reside at a greater dis- powers as are given to them by this bill ? Every tance than one hundred miles from the place officer accused has a right, by the Articles of War, where the court martial or court of inquiry shall to have a court instituted for the purpose of inbe holden, a summons may be issued out of any quiring into his conduct; and, when thus instituted, court of the United States, and the clerk of any the party himself has power, by the bill before us, such court shall be, and he is hereby, authorized to send for persoas, and also for all public papers and required, upon due application, in writing, which may have relation to the subject, and to by the judge advocate, or party officiating as have them produced before this court. "I can never such, or by the party accused, to issue such sum- agree to this principle. When I say this, I trust mons, requiring such witness to appear and give no gentleman will believe that any observation evidence before such court martial or court of of mine can have any reference to the particular 'inquiry," &c. Who is to judge of the necessi- case which was given rise to this bill, and which, ty of the attendance of a witness? The judge in the course of the debate, has been so often advocate, an officer of the court martial, or the alluded to. With the present Commander-inparty accused. To whom is the application to Chief of our Army, I have no personal acquaintbe made ? Not to the court or any one of the ance. I can have no wish thai he should not be judges. but to the clerk. On such application able to exculpate himself from the charges which There is no discretion left with him-he is not have been made against his character; but I canonly authorized. but required, to issue a summons. not conceive that the passage of this bill can be I might be willing to go as far as they have gone necessary for that purpose. And I have no hesiin England on this subject, and in a country tation in saying that no particular case can be where civil liberty is regarded with a much more stated which would induce me to vest military jealous eye than there. This, I think, will be go- courts of inquiry with such extensive powers.
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But, sir, if the bill is defective in its principles, On this subject I will hazard an opinion, withit is equally so in some of its provisions for carry-out fear of contradiction. It is not in the power ing those principles into effeci.
of any civil court to take any public papers, docBy the fourth section, in all cases before such uments, or records, from the possession of the percourts, even when the punishment of the offenderson who is, by law, intrusted wit them. The extends to life, the depositions of witnesses may subpæna duces tecum never has, it never can go be read in evidence, when they live more than further than to direct the witness summoned to one hundred miles from the place of trial. bring with him certain public papers in his pos
No rule-I ought perhaps to say no principle- session. When the papers are produced before in our criminal code is better known and estab- the court, the court then decides as to their relelished than this: that in all trials of a criminal vancy to the matter in issue, and may direct that nature the accused has a right to be confronted they be read in evidence; they are never taken with the witnesses broughi against him. The from the possession of the witness. For what same rule, I upderstand, has hitherto been held purpose are these public papers to be produced sacred in military courts. Depositions have never before these Commissioners? Not certainly to been permitted to be read in courts of a criminal be read for their benefit; but that, through them, jurisdiction. I can see no good reason why this they may be had on the trial before the court marprinciple, hitherto deemed so important to the due cial. If, then, this bill passes, all the public paadministration of criminal justice, should be de-pers of your country are placed in the power and parted from
under the control of your military tribunals. It Permit me to call the attention of the House to is only for one of the officers of the Army, and the third section of the bill. It contains a provi- who may perhaps be disaffected with your Gor. sion, to my mind, particularly objectionable. Il ernment, to institute a court of inquiry at one of will be recollected, that the first section provides, your garrisons, say at Detroit, Michilimackinac, that, upon good and" sufficient cause shown, ver- or New Orleans. Commissioners may be apified by aflidavit
, before any judge of any court of pointed to take depositions at the seat of Govern. the United States, a subpæna duces tecum may ment. What is the consequence?. All the papers be issued by the clerk of such court, for public of this House in the possession of our Clerk; all papers, documents, or records ;"and 'that, by the the papers in the office of the Secretary of State; third section, when the witness lives more than the most important State papers, such as the offi. twenty-five miles from the court, his deposition cial correspondence between the Executive and may be taken before certain State judges, or be the various officers of the Government, may be fore a judge of any court of the United States, or produced before these Commissioners, and, by three or more of five commissioners, to be appoint-them, in some way, conveyed to your distant gared by a judge; and then follows the objectionable risons. clause: " And summons shall issue for witnesses, On the other hand, suppose a court of inquiry, 'before every such judge or such commissioners, as is now in fact the case, is called at the seat of for the purpose of giving their depositions, and Government; Commissioners may be appointed producing papers, documents, and records, in like at New Orleans, and all the public papers, not mapper as is herein before prescribed for sum. only of the present, but of the ancient Government moning witnesses before courts martial and courts of ihat Territory, are liable to be taken from the of inquiry."
places of their deposit, and placed in the power Let me ask any gentleman in this House, who of the party calling the court, or in the power of is acquainted with judicial proceedings, whether the court itself; and if this may be done in one he ever before heard of commissioners, appointed case, it may be done in all. to take depositions, being vested with power to The mode of enforcing the attendance of witsend for public papers and documents to be brought desses, is also liable to many objections, and will before them ? To me, the idea is truly novel. be attended with many, if not insuperable difficul But let us suppose these public papers and docu- ties. By the second section, if any witness thus ments are produced before these commissioners, ordered before the court fails to appear, or having or before the judge who is requested to take the appeared, departs without leave of the court, he depositions-what is to be done with them? Are is liable to the same penalties, and to be proceeded they to be delivered up into the hands of the com- with in the same manner as is provided by law missioners ? and, if so, in what manner are they in cases of similar defaults, when summoned in to be sent forward to these military courts? Are civil causes, in the State where he resides. they to be sealed up, with the deposition of the In what manner do courts proceed against witkeeper of the records and papers, and put into the nesses in civil causes? In niost, if not in all the hands of the person applying for them; or must States, the usual mode is, in case of the nonthe commissioners themselves deliver them to the appearance of witnesses, to issue a capias ad tes. court, or send them by the mail? And if they tificandum, as it is called, by which he is taken should ever reach the court, in what manner are and brought into court by an officer. The capias they to be returned to the person who by law has always issues from the court before whom the been intrusted with the safe-keeping of them ? cause is pending, and who have complete control These are questions, sir, which I should wish to not only over the subject in dispute, but also over have satisfactorily answered, before I can agree the witness, They may, also, in certain cases, to this section of the bill.
fine and imprison the witness. But let us exam
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ine what must be the proceedings under the sec- the other. In this opinion Tytler concurs. In 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 pelling the attendance of witnesses, and receivUnited States Court; and, on the certificate of ing their testimony likewise upon oath." the president of such military court, and of the A court of inquiry is in in military jurisprujudge advocate, such a writ will issue of course. dence what a grand jury is in civil. Why, then, What is to be done with this citizen by the court there should not be the same compulsory process in Virginia ? It would seem that the bill contem- in one case as in the other, I cannot conceive. plates he should either be fined, imprisoned, or The decision of a court of inquiry may have consent to the military court, where his testimony is siderable influence upon the final trial; it will wanted. It is very questionable, indeed, whether certainly make an impression upon the nation the court would have any power to fine and im- that will not easily be removed. Upon the report prison a person under these circumstances. _For of a court of inquiry, the President, in many cases, what is he to be fined and imprisoned ? For a may dismiss officers who may be obnoxious to contempt of the court in Virginia ? No, for he him; but whom he could not dismiss in any other has been guilty of none. It must be for contempt way without incurring considerable censure. In towards the military court; and where is the this way any man may be sacrificed, unless there State, let me ask, by whose laws a person can be a power to compel the attendance of witnesses. fined and imprisoned by one court for any con- So much has been said in support of the bill that tempt committed towards another court ?' Can very little remains for me to say. The necessity the court order him to be transported out of the for a law of this kind must be obvious to all who State of Virginia by their marshal, and brought believe it is not only possible, but probable, that before the military court in this city? Certainly military men may be accused of crimes where the pot; they have no power to do this. If, then, the witnesses, to exculpate or to convict, are not perlaw is to have the effect of compelling the attend-sons in the military service of the United States. ance of the citizen before this military tribunal, The mind of every gentleman can suggest so he is to be delivered into the hands of the officers many cases where this may occur, that I will not appointed to execute the orders of this military attempt to enumerate them, I will only say that court, and be by them transported to the place of charges of conspiracy and of corruption by a fortrial.' And who are the sheriffs and deputy sheriffs eign Power, will most frequently rest upon eviof a court martial ? They are a sergeant and a dence of this sort. If you deprive your military file of men, armed, not with staves, the emblems men of the means of defence, you increase their of civil power, but guns and bayonets, the en- dependence upon the Commander-in-Chief; you signs of military despotism. I had hoped that the give him the power to deprive those men of their time would never come when the citizens of the lives and their honor whom he cannot bend to United States might be thus subjected to military his purposes. If the bill upon your table was power. But if the principles and provisions of meant to extend the jurisdiction of courts martial, ihis bill are to be adopted, and carried into execu. I would oppose it; but I repeat what has been tion, I much fear that time may soon arrive. For said by others over and over again, that under the these reasons I shall give the bill my decided operation of this law, military courts will have negative.
jurisdiction over precisely the same offences that Mr. Nicholas said, that the gentleman from they now have, and no others. It does not make Connecticut, (Mr. Pitkin,) whom he had heard one man amenable to this tribunal who is not so with great pleasure, admitted that the power to at present. By this bill the Government will be compel the attendance of witnesses before courts enabled to use such evidence as they can commartial should exist under the limitation he pro- mand, whether possessed by a citizen or a soldier, posed; but asserted that there should not be com- to bring military men to punishment; and, by it, pulsory, process to compel the attendance of wito military and naval men may avail themselves of nesses before a court of inquiry. I cannot see a the testimony of citizens to show their innocence. reason for the distinction. The only argument What is the cause for alarm? What is the ground the gentleman made use of was, that there is not of the clamor that this bill has excited ? How compulsory process in England in cases of courts extraordinary is it that gentlemen should, without of inquiry. I have before me the book to which scruple, confide to these courts a power to decide the gentleman referred; it is therein stated, that upon the lives and honor of all your military and "the members of a court of inquiry are not sworn naval men, and refuse to trust a citizen in the as those of a court martial; nor do the witnesses presence of this court to be examined as a witness!
examined give their evidence upon oath.” Be-Can it be possible you will suffer your articles of cause that is the practice in England I presume war to remain in force one moment after decidthe gentleman would not wish to introduce it ing that these courts are so lost to every princihere. There is as much reason why the judges ple of honor and integrity, that you cannot trust and witnesses should be sworn in one court as in lihem to examine a citizen who may be called
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MARCA. 1808. upon as a witness? I cannot and will not sus- The case that has been so often referred to in pect any men of such a wanton abuse of power. the course of this debate, proves, in the strongest The members of these courts will not aci upon manner, the necessity for such a law. A gentle. the responsibility that judges do in other courts. man in the service of the United States is accused If they misbehave, tbey will be subject to punish- of being concerned in a conspiracy for a severment and disgrace.
ance 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 I 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 fouod 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 Mr. RANDOLPH said, that after the
very able them for disobedience. To do either, they must and learned argument of the gentleman from Conapply to the civil power. The civil power, we necticut, (Mr. Pirkin,), who certainly had proven are told, is made the mere executioner of the sen- to his entire satisfaction that he was the only tence of the military court. This is not the case; person of those who had spoken upon this subso far from it, that a perfect discretion is vested ject, that possessed anything like a correct knowlin the civil authority ; the same as it would have edge of that law, which had been said to be the if the witness had been summoned to attend such model of the one which it appeared they were civil court. By the hill you say the certificate of now about to enaci-he almost felt ashamed at the marshal shall be sufficieni evidence that the again obtruding himself upon the attention of the process was executed ; and that the certificate on House; and he did feel most thoroughly ashamed oath of the president and judge advocate-shall for the framers of the bill in question. I do blush, do what? Subject the citizen to punishment? said he, for the gentlemen who have brought a No. It shall establish the single fact that the bill into this House, modelled, as they say, upon person summoned disobeyed the summons. You the British law, who have been proven, to my take the certificate of the marshal that the sum- unlearned judgment, (for really, sir, I stand as a mons was issued, and will you give less credit to juror betwixt them and the gentleman from Conthe certificate on oath of a president and judge necticut,) not only ignorant of the law of Eng. advocate to the fact of the witness having diso- land-surely a very pardonable fault, if they had beyed the summons?. In case of default, the civil not pretended to understand it—but equally uncourt and not the military will judge, and punish, informed with respect to the law of their own or acquit at its discretion. Hear the words of the country, and with respect to the operation of this law :
instrument, which, after successive recommit“The return of the marshal certifying the service of ments, they have presented to the House. If I such summons, and the certificate on oath of the presi: have arisen immediately after the gentleman from
were friendly to the principle of the bill, I should dent of any such court martial or court of inquiry, and of the judge advocate or person officiating as such, Connecticut had resumed his seat, and moved its stating in what respect such summons may have been recommitment, in the hope that the Committee disobeyed, which certificate shall have been entered of would not fail to avail themselves of the extenrecord in the proceedings of such court martial, at the sive knowledge which, with so much credit to time of such neglect or disobedience, shall be admitted himself, he has displayed upon this occasion. For as evidence of such default in such witness as afore- myself, I have not the same cause to blush at the said : Provided, nevertheless, That in case such wit- scantiness of my information on the subject. In ness shall satisfy the court before whom such proceed the first place, I'am not a professional man; neiings against such witness shall be had as aforesaid, ther was it a matter committed by the House to that the default imputed to him was produced by sick- my especial care, and on which it was my pecuness or other inevitable impediments, and was not an liar and bounden duty to make myself acquainted; act of contempt or wilful disobedience, such witness and for another reason; because, finding in the shall be forthwith discharged from any farther proceed first section a principle so totally abhorrent to my ings thereupon in said court."
mind that no inducement whatever could have MARCH, 1808.
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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 yester- Surely the words composing this clause conday morning, when we we were called to vote on vey no specific meaning to the mind-it is heathen the final passage of the bill. I therefore did not Greekand as a rule of action (which every law scrutinize its details..
purports to be) for me, it might as well be inscribed I have thought these prefatory remarks proper, in Chaldean characters. because, as a member of this House. I feel obliged I forgot to state, as I intended when I rose, that to the gentleman from Connecticut for having the circumstance, which induced me to overcome made himself master of this subject, and for the the sense of inferiority inspired by the arguments light which he has diffused upon it; and if, in- of the gentleman from Connecticut, was my havstead of attending to other affairs, gentlemen had ing omitted some points which ought to have attended to bis argument, we should have had the been pressed, when I, yesterday, claimed the inbenefit of that, for which this body was insti- dulgence of the House, and which would have tuted, but which is seldom experienced within our been touched upon, if the difficulty of speaking in walls the benefit of deliberation and discussion. this room, the elegant curtains to the contrary For when the members of the House are busily notwithstanding, had not exhausted my strength'; engaged in counting money, signing receipts, read and further, that I thought some of the observaing newspapers, writing letters, and folding pam- tions of the gentleman last up entitled to notice; phlets, (I pretend to no personal and exclusive ex. entitled, I am compelled to say, not from their inemption, it is impossible that they can enjoy the trinsic weight, but from the weight of influence, benefit of discussion : in fact, persons so employed in this House, of the person from whom they constitute anything rather than a deliberative as- fell. sembly. 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-10 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, wbo, himself, tells us that he could read three party accused is completely precluded from havskins of parchment without once drawing breath. ing a single witness examined in his behalf, alIt may be from defect of comprehension; but I though the finding of a grand jury may have an will read one proviso, as distinctly as I can, and effect on the repuiation and life of the accused, as appeal to the minds of those who use words, at- prejudicial as the decision of a military court of taching signification to them, whether any precise inquiry can prove to the party arraigned before meaning can be extracted from it.
it. The proceedings before the grand jury be" And provided, also, That no such deposition shall ing, then, altogether ex parte, by the gentleman's be read in evidence, unless reasonable notice of the own principle, that part of the bill which relates time and place of taking the same be given to the ad- to courts of inquiry is totally inadmissible; exverse party, by the party at whose instance the same cept, indeed, he would assimilate our civil instimay be taken, nor unless the witness shall reside, as tutions to this famous bill-except he wishes our well at the time of taking the deposition as of offering the free system of jurisprudence to be ripped up from same in evidence, at a greater distance than — miles its very foundations, and reduced to the standard from the place of holding such court martial or court of this inimitable model ; unless that be contendof inquiry, or the same shall have been taken by con-ed for, the gentleman must give up one of the sent of parties as aforesaid ; nor if the same be taken most important provisions, I may say, the vital before Commissioners as aforesaid, unless the party at principle of this bill—the provision which enawhose instance such commission may be issued, shall bles the indicted pariy to compel the attendance have given reasonable notice to the adverse party, of of witnesses in his behalf, before this new milithe time and place of applying for such commission, and of the name and residence of the judge to whom tary grand jury--without which all his solicitude such application may be made; nor unless such com
for the bill would soon be at an end. So much mission be duly issued under the hand and seal of such for this unlucky analogy. judge, and attested and countersigned by the clerk of
You are told, sir, with a most imposing solemthe court to which such judge may belong, with the seal nity of voice and countenance, that this bill does of the court annexed. And the probate or certificate not enlarge the powers of courts martial. Do you annexed to all such depositions by the Territorial or want proof? Ipse dirit-tbat gentleman says so; State judge, before whom the same may be taken, may and surely you will not be so unreasonable as to be authenticated as to its being verily the act of such doubt his word. I am more sensible of the weight