except in cases arising in the land or naval forces, or in the militia when in actual service, in time of war, or public danger, &c., &c., nor be deprived of life, liberty, or property, without due process of law," &c. The 7th amendment, looking to questions of property even of trivial value, provides that" in suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, &c. So that Congress has no power to pass a law which shall deprive the person accused of a criminal or otherwise infamous offence, of his trial by jury, except in cases arising in the land or naval forces, or in the militia, when in actual service, in time of war or public danger.

Even in relation to the land and naval forces, (including the militia when in actual service,) Congress have never considered the mere act of stamping on those bodies a military character, by ordering them to be raised, organized, and called into service, as being sufficient, of itself, to subject them to trial by court-martial under the rules and articles of war; because this would be to abrogate a high constitutional privilege by implication. In every instance, therefore, in which Congress has impressed a military character on any body of men, whom they intended to divest of the civil right of a trial by jury, besides the impressment of that military character, they have uniformly and expressly declared that they should be subject to the rules and articles of war. With the view to test the accuracy of this position, I have collated all the laws on the subject, to which I beg leave to refer you.

See the resolve of the old continental Congress of the 12th April, 1785, (vol. 1, L. U. S., p. 669, note;) that of the same body 3d October, 1787, (pp. 668, 69, 70,) concerning the military establishment; also the act of 29th September, 1789, referring to the last mentioned resolve, (vol. 2, L. U. S, p. 74, § 4;) the act of the 30th April, 1790, for regulating the military establishment of the United States, §13, (vol. 2, L. U. S., p. 102;) the act of the 3d March, 1791, for raising and adding another regiment, &c., § 10, (id. 234;) the act of the 5th March, 1792, for making further and more effectual provision for the protection of the frontiers, § 11, (id. 257-'8;) the act of the 9th May, 1794, providing for raising and organ izing a corps of artillerists and engineers, § 4, (same vol., p. 404;) the act of the 3d March, 1795, for continuing and regulating the military establishment of the United States, &c., § 14, (same vol., pp. 490-'1;) the act of the 30th May, 1796, to ascertain and fix the military establishment of the United States, § 20, (same vol., p. 559;) the act of the 27th April, 1798, to provide an additional regiment of artillerists and engineers, § 2, (vol. 3, p. 43;) the act of 28th May, 1798, authorizing the President to raise a provisional army, § 2, (vol. 3, p. 50;) the act of the 16th July, 1798, to augment the army of the United States, § 8, (vol. 3, p. 105:) the act of the 2d March, 1799, giving eventual authority to the President to augment the army, § 3, (vol. 3, p. 261;) the act of the 16th March, 1802, fixing the military peace establishment of the United States, (vol. 3, p. 453;) the act of the 28th February, 1803, in addition to the act last mentioned, § 3, (same vol., p. 531;) the act of the 2d April, 1808, to raise for a limited time an additional military force, § 5, (vol. 4, p. 163;) the act of the 8th January, 1812, authorizing the President to raise certain companies of rangers, for the protection of the frontier, § 4, (vol. 4, p. 366:) the act of the 11th January, 1812, to raise an additional military force, § 10, (vol. 4, p. 367;) the act of the 8th April, 1812, in addition to the act

to raise an additional military force, § 2, (vol. 4, p. 404;) the act of the 16th May, 1812, making further provision for the army of the United States, § 2, (vol. 4, p. 433;) the act of the 29th January, 1813, in addition to the act entitled "An act to raise an additional military force," § 6, (vol. 4, p. 492;) the act of the 5th July, 1813, to amend the act in addition, &c., § 2, (vol. 4, p. 541;) the act of the 28th January, 1814, to cause certain regiments to be enlisted for five years, § 2, (vol. 4, p. 644;) the act of the 10th February, 1814, to raise three regiments of riflemen, § 4, (vol. 4, p. 645;) the act of the 27th January, 1815, to authorize the President to accept the services of State troops and volunteers, § 1 and 4, (vol. 4, p. 778;) the act of the 3d March, 1815, to fix the military peace establishment of the United States, § 7, (vol. 4, p. 825;) the act of the 24th April, 1816, for organizing the general staff, and making further provision for the army, §6, (sessions acts of 1815-'16, pp. 71, 72.)

On turning to these laws, it is remarkable that in every instance in which troops have been raised, or their number has been augmented by any accession, however trivial, or in which their number has been reduced to a peace establishment, or in which a new and distinct destination has been given to any portion of them, Congress has cautiously introduced a provision that they shall be subject to the rules and articles of

And what is still more remarkable, is, that even after the general act of 1806 had passed, declaring the rules and articles of war, and containing the permanent provision that the armies of the United States should be subject to these rules and articles, Congress, not content to leave after-raised troops to the operation of that general provision, have, in every instance, repeated the provision of their subjection to military law. A course of legislation so long continued and so uniform marks the sacred respect in which Congress have ever regarded the right of trial by jury, and will justify us in assuming it as their sense, that this right is never to be taken away by implication; never by the mere impressment of a military character on a body; never without a positive provision to that effect. In relation to the cadets at West Point, then, in order to prove their subjection to the rules and articles of war and to trial by courts martial, it is not enough to show that Congress has stamped on them a military character; for if we respect the opinion uniformly expressed by the prac tice of Congress, it must also be shown to have been expressly provided that those cadets shall be subject to the rules and articles of war.

With these principles in view, I shall proceed to examine all the laws which bear on the question submitted, expressing my opinion on the legal construction and operation of each law as it occurs.

The nucleus of the military institution at West Point was a corps of engineers, raised under the act of Congress of the 16th March, 1802. (Laws of the United States, vol. 3, pp. 456-7, § 26, 27, 28.)

In order to apprehend more distinctly the intention of Congress in relation to this corps, it may not be amiss to examine the previous laws relative to troops of this description, and to compare them with the two laws bearing directly on the question. Neither the two resolves of the old Congress nor the acts of 1789-'90, before cited, say anything of engineers. The first time they are mentioned in our laws is in the act of 9th May, 1794, (vol. 2, p. 403,) entitled "An act providing for raising and organizing a corps of artillerists and engineers," by which seven hundred and sixty-four non commissioned officers, privates, &c., were di

rected to be engaged for three years, by voluntary enlistment, and were incorporated with the previous corps of artillery then in the service of the United States, the joint body being thereafter to be denominated the corps of artillerists and engineers; the entire number, exclusive of commissioned officers, being nine hundred and ninety two. By the 3d section of this law, the whole body was organized into four battalions, each battalion consisting of four companies; and to each company were attached (among others) two cadets, with the pay, clothing, and rations of a sergeant. The 5th section made it the duty of the Secretary of War to provide, at the public expense, under the direction of the President, the necessary books, instruments, and apparatus for the use of the corps. The 6th section authorizes the President to canse such proportion of the said corps as he should deem consistent with the public service, to serve in the field, on the frontiers, or in the fortifications of the seacoast. The 4th section expressly provided that the whole body should be governed by the rules and articles of war which have been or may be by law established.

Hence there is nothing in the character of the service, in the circumstance of their being cadets, nor in that of their being furnished with the necessary books, instruments, and apparatus for study, which, at that time, was deemed sufficient to exempt cadets, among the rest, from the operation of the rules and articles of war. The act of 3d March, 1795, continues this incorporation and organization of the corps of artillerists and engineers; and, in the 14th section, repeats their subjection to the rules and articles of war. The act of 30th May, 1796, makes no change in the situation of the corps of artillerists and engineers. The act of 27th April, 1798, "to provide an additional regiment of artillerists and engineers," directs three battalions, of four companies each, to be raised for this purpose, by enlistment for five years, unless sooner discharged; attaches two cadets to each company; directs the Secretary of War to furnish all necessary books, instruments, and apparatus; and, in like manner, subjects the whole corps to the rules and articles of war. The act of 16th July, 1798, to augment the army of the United States, and for other purposes," after authorizing the raising and organization of twelve additional regiments of infantry and six troops of light dragoons, proceeds, in the 7th section, to authorize the President to appoint any number not exceeding four teachers of the arts and sciences, necessary for the instruction of the artillerists and engineers, at the monthly pay of fifty dollars and two rations per day. The 8th section subjects the officers, non-commissioned officers, and privates, raised by virtue of this act, to the rules and articles of war; but does not embrace in that provision the teachers appointed by the President, unless they come under the denomination of officers, non-commissioned officers, musicians, or privates, which I do not think was intended; because the previous sections of the law sufficiently indicate who were meant by those terms.

Next in order comes the act of the 16th March, 1802, by which the establishment at West Point was erected. As this act bears directly on the subject of inquiry, it will be necessary to give it a more minute attention. It is entitled An act fixing the military peace establishment of the United States." And the 1st section declares that, after the 1st of June next following the date of the act, the military peace establishment of the United States "shall be composed of one regiment of artillerists and two regi

ments of infantry, with such officers, military agents, and engineers, as are hereinafter mentioned. The 2d section is employed in organizing the regiment of artillerists (not of artillerists and engineers) and the regiments of infantry. All the succeeding sections are confined exclusively to these regiments of artillery and infantry (with the appendages of paymasters and military agents, with their assistants, and of surgeons, with their mates) till we come down to section 9, by which the President is required" to cause to be arranged the officers, non-commissioned officers, musicians, and privates of the several corps of troops now in the service of the United States, in such manner as to form and complete out of the same the corps aforesaid❞—that is to say, the corps composed of the regiment of artillery and the two regiments of infantry; and the next section (the 10th) provides that the officers, non-commissioned officers, musicians, and privates of the said corps shall be governed by the rules and articles of war. This section, therefore, does not embrace the engineers, of whom, as yet, nothing had been said. The sections succeeding the 10th are wholly employed, as the preceding ones had been, in regulations confined to the regiments of artillery and infantry, till we come down to section 26th, where, for the first time, the subject of the engineers is taken up. That section authorizes and empowers the President, when he shall deem it expedient, to organize and establish a corps of engineers, to consist of one engineer, with the pay, rank, and emoluments of a major; two assistant engineers, with the pay, rank, and emoluments of captains; two other assistant engineers, with the pay, rank, and emoluments of first lieutenants; two other assistant engineers, with the pay, rank, and emoluments of second lieutenant; and ten cadets, with the pay of sixteen dollars per month and two rations per day;-with a power to make promotions, so as not to exceed one colonel, one lieutenant colonel, two majors, four captains, four first lieutenants, four second lieutenants, and so as that the whole corps shall at no time exceed twenty officers and cadets. The 27th section provides that the said corps, (composed solely of officers and cadets,) when so organized, shall be stationed at West Point, in the State of New York, and shall constitute a military academy; and that the engineers, assistant engineers, and cadets of the said corps, shall be subject, at all times, to do duty in such places, and on such service, as the President of the United States shall direct. The 28th section assigns the su perintendence of the academy to the principal engineer, and authorizes the Secretary of War, under such regulations as the President should direct, to procure the necessary books, &c., for the use of the institution. The 29th section is a repealing one; and here the law stops. There is no provision that this corps shall be subject to the rules and articles of war. It is here worthy of observation, that this is the first time that a sepa rate corps of engineers had been raised by our laws; that there is no instance in the annals of Congress in which a new description of troops has been authorized without an express provision that they shall be subject to the rules and articles of war; that in this very law there is, in the preceding part of it, such a provision in relation to the artillerists and infantry, which gives this omission with regard to the engineers tenfold significance; and that, although a military character has been impressed on this corps, as well by their name as their being fixed as part of the peace establishment, yet that character is, comparatively speaking, rather of an equivocal cast; whereas, in every other case where the most dis

tant and unequivocal military character has been impressed on a newly raised corps, the provision which is wanting here has nevertheless been added. It seems to me very difficult to conceive why, in this identical law, it was thought necessary that the provision should have been so expressly introduced as to the regiments of artillery and infantry, (which were most clearly of an unequivocal military character,) and yet that it should have been so palpably omitted in relation to the engineers-a new corps, who were constituted an academy, and liable to military duty only when called on by the President-unless Congress intended the exemp tion with regard to the latter corps. But whether they did in fact intend it or not, a review of all the analogous laws which they have passed, the component parts of this very law, and the principle that the trial by jury is not to be ousted by implication, do, in my opinion, justify the conclusion, that, so far as the question rests on the act of the 16th March, 1802, the members of this military academy were not subject to the rules and articles of war.

Next in order follows the act of the 25th February, 1803, in addition to the preceding act, (vol. 3, Laws U. S., p. 530.) The first section of this act contains merely a provision in relation to the regiment of artillerists. The second section authorizes the President to appoint one teacher of the French language, and one teacher of drawing, to be attached to the corps of engineers, whose compensation shall not exceed the pay and emoluments of a captain in the line of the army. The third section provides that "the commanding officer of the corps of engineers be authorized to enlist, for not less than three years, one artificer and eighteen men, to aid in making practical experiments, and for other purposes; to receive the same pay, rations, and clothing as are allowed to the artificers and privates in the army of the United States, and the same bounty when enlisted for five years, and to be subject to the rules and articles of war." Who are to be so subject? Most clearly those who are the exclusive objects of the rest of the provisions in this section, to wit: the artificer and the eighteen men. If it should be asked what reason there can be why these men should be more subject to the rules and articles of war than the engineers and cadets who had before constituted the corps, it would be sufficient answer that Congress have so provided. But it seems to me that, if it were necessary to assign a further reason, one might be found without difficulty, in the different footing in other respects in which the two parts of this corps stand; for it is observable that the act of the 16th March, 1802, does not require the engineers and cadets to be enlisted at all, much less to be enlisted for a particular time. The language of that section is, that the President may, when he shall deem it expedient, organize and establish a corps of engineers not from the army then on hand; for, if it had been so intended, it would have been so expressed, as it was in the 9th section as to the regiments of artillerists and infantry. But there is a further reason why it could not have been intended to be drawn from the army then on hand; for, by the 9th section of the law, all the officers and privates of that army, who were not taken into the regiments of artillerists and infantry, were directed to be discharged on the 1st of April, 1802; whereas the corps of engineers were to be organized and established whenever thereafter the President should deem it expedient. Were they to be drawn from the regiments of artillerists and infantry authorized by the previous