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A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates, 1774-1875
Journals of the Continental Congress --THURSDAY, OCTOBER 27, 1785.
Congress assembled. Present, Massachusetts, Rhode Island, Pennsylvania, Maryland, Virginia, South Carolina and Georgia; and from the State of New Hampshire, Mr. [Pierse] Long, and from New York, Mr. [John] Haring.
An ordinance respecting Consuls having been debated on Monday last and amended to read as follows:
Be it ordained, That the ministers plenipotentiary of the United States, be vested with the powers of Consuls general. That at the courts where no ministers reside, the Chargé des Affaires of the United States, be empowered to exercise the duties of Consul general. That consuls shall reside at Bilboa, Cadiz, Malaga, Alicant, Barcelona, Teneriffe, Lisbon, Madeira, Amsterdam, London, Bristol, Liverpool, Glasgow, Dublin, Cork, Belfast, Copenhagen, Stockholm, Canton. That no consul general, being minister, resident or chargé des Affaires shall be concerned in any trade or commerce whatever. That the Consuls general be empowered to suspend any consul within their jurisdiction, for good reason, and report the same to Congress, who will ultimately judge of such suspension; and that they determine the boundaries of each consulate within their jurisdiction.
When the question to agree to this ordinance, was about to be put, the determination thereof was postponed by the state of Rhode Island.
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After the public despatches were read, the determination of the question, which had been postponed by a state, was this day called for, and on the question to agree to the Ordinance, the yeas and nays being required by the State of Massachusetts,
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So the question was lost.1
[Note 1: 1 The proceedings on this ordinance were also entered, by Benjamin Bankson, in the manuscript Secret Journal, Foreign Affairs No. 5. See ante, October 24.]
The Secretary of the United States for the department of war, to whom was referred a letter from Mr. Carleton, of the war office, respecting courts martial and deserters, Reports,
That the forces of the United States being necessarily much detached, it will be impossible to bring to trial officers and capital offenders, agreeably to the existing articles of war, which require thirteen commissioned officers to constitute a general court martial.
He therefore is of opinion that the number necessary to form a general court martial should be reduced; and accordingly he proposes that five should be sufficient, in cases where a greater number cannot be obtained. There may be objections stated to this alteration; but he apprehends that no discipline can be supported unless offenders can be brought to a speedy trial, and punished. It was the opinion of many judicious officers, during the late war, that the discipline of the army would have been bettered, and justice as uprightly administered, had the courts martial been composed of a less number of
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members. The sickness or absence of members frequently protracted the trial to the most inordinate lengths, by which the service was extremely injured.
All proceedings of and evidences taken by courts martial being in writing, and submitted to an authority independent of the courts furnishes a great if not perfect security against unfair practices, whether the trial shall be had by few or many members.
Your Secretary submits in one section, all the Articles relating to the assembling and holding general, garrison and regimental courts martial, and the confirmation of their sentences. And as many of the articles are altered and differently arranged, and some new ones inserted, he thought it would render the subject more clear and easily understood to repeal the former articles on courts martial, than to insert the amendments of the respective articles. The following are the most material alterations exclusive of the above proposed reduction of the numbers necessary to form a court martial.
The oaths which were prescribed to be taken by officers composing a general court martial, are now extended to those of garrison and regimental courts martial; and the powers of garrison and regimental courts martial restricted to certain cases.
The resolution of Congress, December 24, 1779, respecting witnesses, is inserted to this section as the 10th. article.
There having been different modes of arresting officers, it was thought necessary to direct explicitly the conduct to be observed by an officer during his arrests in article 15th.
An evil which operated to the prejudice of subordination, having crept into the practices of courts martial, is now intended to be remedied by the 13th. article. Some persons who were tried instead of exculpating availed themselves of the oportunity of their defense before the court to vilify and abuse the persons who arrested them.
The 24th. article is introduced to authorize officers to transport persons accused of crimes, together with the witnesses, from one place to another, to be tried; and it is also intended as a justification to the commanding officer for any expences which may be incurred thereby.
It was thought proper to provide that when an officer should be suspended from command, that he should also be suspended from his emoluments, in article 22d.
The subjects of courts of inquiry not being mentioned in the articles of war, they have been but vaguely understood. There are some cases
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which seem to require a mode of investigation less rigorous than an arrest and a trial by a court martial, which leaves a kind of stigma, unless the accused shall have been acquitted in the most unequivocal manner. Suspicion of the character of an officer may be widely disseminated and the cause not be a subject for a court martial. In such a case the officer may find a court of enquiry essential to his happiness. An intended enterprize may have been frustrated by causes not visible to the Army; no accusation may be found against the commanding officer sufficient to justify the severity of an arrest and trial by a court martial, and yet an inquiry may be necessary, as well for the reputation of the party as for the public interest. In the probable detached state of the troops in future, courts of inquiry may be still necessary. A company being detached will have but three officers at most, who cannot form any species of a court martial as it is essential that the commanding officer should not be of the court. It may be possible that the witnesses cannot leave their station, to attend the trial of a prisoner at a distance in which case, the evidence taken by a court of inquiry may be admitted, upon the principles of the resolution of Congress December 24, 1779. The army was in the habit of having courts of inquiry during the late war, and they may still be in use. A regulation of them therefore is attempted by article 26th.
The subject of excepting to or challenging of members of a court martial, with or without shewing cause, has been considered. But although it may be proper, in a degree, to admit into courts martial, the practice of the courts of common law, in this instance, yet it will be extremely difficult to mark so precisely the degree as shall reconcile it with the energy of military discipline. In some cases, peremtory challenges ought and might be admitted, without injury; while in others the indulgence might be abused by criminals to postpone the trials until the expiration of their times of service. Peremtory challenges have been admitted in the American as well as in the practice of British courts martial; but no regulation of them is attempted in the articles of war of either nation. Upon a discussion of the question in his own mind, your Secretary is of opinion, that it would be prudent considering the difficulties and perplexity such an article might create, to omit it in the articles of war, and to suffer circumstances to govern the practice. Challenges with reason will always be regulated by the opinion of the court.
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Should Congress not have time at present, to go into the consideration of the proposed amendments in general yet it is important that the numbers necessary to form a general court martial should be decided upon as soon as may be.
The subject of apprehending deserters has occupied the attention of your Secretary, who is of opinion that no principle which can be proposed will be so effectual for that purpose as rendering the officers responsible for the detection of deserters. That a reward of ten dollars is proposed to any person who shall secure a deserter, and that the reasonable extra expences incurred in the business shall be borne by the public. That to prevent any abuse of this regulation, the reward and expences are to be paid only on the certificate of the commanding of officer. Upon these principles the resolutions which accompany this report are submitted.
In order to form a consistent system of martial law, it will be necessary to alter and modify several other sections of the rules and articles of war. These alterations may be made and presented to Congress at a future period.
All which is submitted to Congress.
H. Knox.1
[Note 1: 1 This report is in the Papers of the Continental Congress, No. 151, folio 113. According to indorsement it was read October 27 and on March 9, 1786, referred to St. Clair, Lee and Lawrance. The resolutions referred to are not filed with the report.
On this day, according to the indorsement, was read a petition from Edward Keran, dated September 23, 1785, praying the adjustment of his accounts. It is in the Papers of the Continental Congress, No. 41, V, folio 103. It was referred October 28 to the Board of Treasury, which reported December 2.
Also, according to Committee Book No. 190, a petition of John Menard was this day referred to the Commissioner of Army Accounts "so far as it relates to his claim of pay as Capt. and Commissary."
Also the letter of July 29 from C. W. F. Dumas was referred to the Secretary for Foreign Affairs. A copy of this, which was numbered as despatch No. 60, is in the Papers of the Continental Congress, No. 115a.]
War Office, 27th. September, 1785.
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