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dicted of the crimes aforesaid, shall be allowed and admitted in his said defence to make any proof that he or they can produce, by lawful witness or witnesses, and shall have the like process of the court where he or they shall be tried, to compel his or their witnesses to appear at his or their trial, as is usually granted to compel witnesses to appear on the prosecution against them.
and with process to compel the attendance
In cases of treason or other capital offence, prisoner standing mute, how
to be proceeded against.
Act of March
SEC. 30. And be it further enacted, That if any person or persons be indicted of treason against the United States, and shall stand mute or refuse to plead, or shall challenge peremptorily above the number of thirty-five of the jury; or if any person or persons be indicted of any other of the offences herein before set forth, for which the punishment is declared to be death, if he or they shall also stand mute or will not answer to the indictment, or challenge peremptorily above the number 3, 1825, ch. 65, of twenty persons of the jury; the court, in any of the cases aforesaid, shall notwithstanding proceed to the trial of the person or persons so standing mute or challenging, as if he or they had pleaded not guilty, and render judgment thereon accordingly.
SEC. 31. And be it further enacted, That the benefit of clergy shall not be used or allowed, upon conviction of any crime, for which, by any statute of the United States, the punishment is or shall be declared to be death.
No benefit of clergy in cases
where the punishment is
No prosecution or punishment for treason
or other capital offence unless indictment be found within
three years, nor in other cases unless within
SEC. 32. And be it further enacted, That no person or persons shall be prosecuted, tried or punished for treason or other capital offence aforesaid, wilful murder or forgery excepted, unless the indictment for the same shall be found by a grand jury within three years next after the treason or capital offence aforesaid shall be done or committed; nor shall any person be prosecuted, tried or punished for any offence, not capital, nor for any fine or forfeiture under any penal statute, unless the indictment or information for the same shall be found or instituted within two years from the time of committing the offence, or incurring the fine or forfeiture aforesaid: Provided, That nothing herein contained except the ofshall extend to any person or persons fleeing from justice. SEC. 33. And be it further enacted, That the manner of inflicting the punishment of death, shall be by hanging the person convicted by the of death to be
neck until dead.
APPROVED, April 30, 1790.
CHAP. X.-An Act for regulating the Military Establishment of the United
April 30, 1790.
Repealed by Act of March 3, 1795, ch. 44, sec. 18.
troops, and term
SECTION 1. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the commissioned officers herein after mentioned, and the number of one thousand two hundred and sixteen non-commissioned officers, privates and musicians, shall be raised for the service of the United States, for the period of three years, unless they should previously by law be discharged. SEC. 2. And be it further enacted, That the non-commissioned officers and privates aforesaid shall, at the time of their enlistments respectively, and age. be able-bodied men, not under five feet six inches in height, without shoes; nor under the age of eighteen, nor above the age of forty-six years.
Of what size
SEC. 3. And be it further enacted, That the commissioned officers herein after mentioned, and the said non-commissioned officers, privates into regiments and musicians, shall be formed into one regiment of infantry, to consist of three battalions, and one battalion of artillery. The regiment of infantry to be composed of one lieutenant-colonel commandant, three majors, three adjutants, three quartermasters, one paymaster, one surgeon, two surgeon's mates, and twelve companies, each of which shall consist of one captain, one lieutenant, one ensign, four sergeants, four
corporals, sixty-six privates, and two musicians. The battalion of artillery shall be composed of one major commandant, one adjutant, one quartermaster, one paymaster, one surgeon's mate, and four companies; each of which shall consist of one captain, two lieutenants, four sergeants, four corporals, sixty-six privates, and two musicians: Provided always, That the adjutants, quartermasters, and paymasters, shall be appointed from the line of subalterns of the aforesaid corps respectively.
SEC. 4. And be it further enacted, That the President of the United States may from time to time appoint one or two inspectors, as to him their duty, &c. shall seem meet, to inspect the said troops, who shall also muster the same, and each of whom shall receive the like pay and subsistence as a captain, and be allowed ten dollars per month for forage.
Pay of the troops;
SEC. 5. And be it further enacted, That the troops aforesaid shall receive for their services the following enumerated monthly rates of pay: Lieutenant-colonel commandant, sixty dollars; major commandant of artillery, forty-five dollars; majors, forty dollars; captains, thirty dollars; lieutenants, twenty-two dollars; ensigns, eighteen dollars; surgeons, thirty dollars; surgeon's mates, twenty-four dollars; sergeants, five dollars; corporals, four dollars; privates, three dollars; senior musician in each battalion of infantry, and in the battalion of artillery, five dollars; musicians, three dollars: Provided always, That the sums herein after specified, shall be deducted from the pay of the non-commissioned officers, privates and musicians stipulated as aforesaid, for the purposes of forming a fund for clothing and hospital stores. From the monthly pay of each sergeant and senior musician, there shall be deducted for uniform clothing, the sum of one dollar and forty cents, and the farther sum of ten cents for hospital stores; and from the monthly pay of each corporal, for uniform clothing, one dollar and fifteen cents, and the farther sum of ten cents for hospital stores; and from the monthly pay of each private and musician, for uniform clothing, the sum of ninety cents, and the farther sum of ten cents for hospital stores.
SEC. 6. And be it further enacted, That the subalterns who may be appointed to act as adjutants, shall each receive for the same, in addition to their regimental pay, ten dollars per month; and quarter and paymasters so appointed, each five dollars per month.
SEC. 7. And be it further enacted, That the commissioned officers aforesaid, shall receive for their daily subsistence, the following number of rations of provisions-to wit: Lieutenant-colonel commandant, six; a major, four; a captain, three; a lieutenant, two; an ensign, two; a surgeon, three; a surgeon's mate, two, or money in lieu thereof, at the option of the said officers, at the contract price at the posts respectively where the rations shall become due.
SEC. 8. And be it further enacted, That the commissioned officers herein after described, shall receive monthly the following enumerated sums, instead of forage: Lieutenant-colonels commandant, twelve dollars; major commandant of artillery, majors and surgeon each, ten dollars; surgeon's mates each, six dollars.
SEC. 9. And be it further enacted, That every non-commissioned officer, private and musician aforesaid, shall receive annually the following articles of uniform clothing: One hat or helmet, one coat, one vest, two pair of woollen and two pair of linen overalls, four pair of shoes, four shirts, two pair of socks, one blanket, one stock and clasp, and one pair of buckles.
SEC. 10. And be it further enacted, That every non-commissioned officer, private and musician aforesaid, shall receive daily the following rations of provisions, or the value thereof: One pound of beef, or three quarters of a pound of pork, one pound of bread or flour, half a gill of rum, brandy or whisky, or the value thereof at the contract price where the same shall become due, and at the rate of one quart of salt,
two quarts of vinegar, two pounds of soap, and one pound of candles, to every hundred rations.
If wounded or
SEC. 11. And be it further enacted, That if any commissioned officer, non-commissioned officer, private or musician aforesaid, shall be wounded disabled, what or disabled while in the line of his duty in public service, he shall be placed on the list of the invalids of the United States, at such rate of pay, and under such regulations as shall be directed by the President of the United States, for the time being: Provided always, That the rate of compensation for such wounds or disabilities, shall never exceed for the highest disability, half the monthly pay received by any commissioned officer, at the time of being so wounded or disabled; and that the rate of compensation to non-commissioned officers, privates and musicians, shall never exceed five dollars per month. And provided also, That all inferior disabilities shall entitle the persons so disabled, to receive only a sum in proportion to the highest disability.
privates to take
an oath of alle
giance to the United States;
SEC. 12. And be it further enacted, That every commissioned officer, non-commissioned officer, private and musician aforesaid, shall take and subscribe the following oath or affirmation-to wit: "I, A. B. do solemnly swear or affirm (as the case may be) to bear true allegiance to the United States of America, and to serve them honestly and faithfully against all their enemies or opposers whomsoever, and to observe and obey the orders of the President of the United States of America, and the orders of the officers appointed over me, according to the articles of war." SEC. 13. And be it further enacted, That the commissioned officers, be governed by non-commissioned officers, privates and musicians aforesaid, shall be verned by the rules and articles of war, which have been established by the United States in Congress assembled, as far as the same may be applicable to the constitution of the United States, or by such rules and articles as may hereafter by law be established.
the articles of
SEC. 14. And be it further enacted, That the "act for recognizing and adapting to the constitution of the United States, the establishment of the troops raised under the resolves of the United States in Congress assembled, and for other purposes therein mentioned," passed the twentyninth day of September, one thousand seven hundred and eighty-nine, be, and the same is hereby repealed.
SEC. 15. Provided always, That the non-commissioned officers and privates continued and engaged under the aforesaid act of the twentyninth day of September, one thousand seven hundred and eighty-nine, and who shall decline to re-enlist under the establishment made by this act, shall be discharged whenever the President of the United States shall direct the same. Provided further, That the whole number of non-commissioned officers, privates and musicians, in the service of the United States at any one time, either by virtue of this act, or by virtue of the aforesaid act, passed the twenty-ninth day of September, one thousand seven hundred and eighty-nine, shall not exceed the number of one thousand two hundred and sixteen.
SEC. 16. And be it further enacted, That for the purpose of aiding the troops now in service, or to be raised by this act, in protecting the inhabitants of the frontiers of the United States, the President is hereby authorized to call into service from time to time such part of the militia of the states respectively, as he may judge necessary for the purpose aforesaid; and that their pay and subsistence while in service, be the same as the pay and subsistence of the troops above mentioned, and they shall be subject to the rules and articles of war. APPROVED, April 30, 1790.
May 26, 1790.
[Expired.] Act of March 3, Act of Feb. 11,
1797, ch. 13.
1800, ch. 6.
Act of March 2, 1821, ch. 12, sec. 3. Act of March 1, 1823, ch. 21, sec. 8. Mitigation or remission of
penalties, &c. how to be ap plied for; and
CHAP. XI.-An Act to prescribe the mode in which the public Acts, Records, and judicial Proceedings in each State, shall be authenticated so as to take effect in every other State.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the acts of the legislatures of the several states shall be authenticated by having the seal of their respective states affixed thereto: That the records and judicial proceedings of the courts of any state, shall be proved or admitted in any other court within the United States, by the attestation of the clerk, and the seal of the court annexed, if there be a seal, together with a certificate of the judge, chief justice, or presiding magistrate, as the case may be, that the said attestation is in due form. And the said records and judicial proceedings authenticated as aforesaid, shall have such faith and credit given to them in every court within the United States, as they have by law or usage in the courts of the state from whence the said records are or shall be taken.(a)
APPROVED, May 26, 1790.
CHAP. XII.-An Act to provide for mitigating or remitting the forfeitures and penalties accruing under the revenue laws, in certain cases therein mentioned.
SECTION 1. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That whenever any person who now is, or hereafter shall be liable to a fine, penalty or forfeiture, or interested in any vessel, goods, wares or merchandise, or other thing which may be subject to seizure and forfeiture, by force of the laws of the United States now existing, or which may hereafter exist, for collecting duties of impost and tonnage, and for regulating the coasting trade, shall prefer his petition to the judge of the district in which such fine, penalty or forfeiture may have accrued, truly and particularly setting forth the circumstances of his case, and shall pray that the same may be mitigated or remitted; the said judge shall inquire in a summary manner into the circumstances of the case, first causing reasonable notice to be given to the person or persons claiming such fine, penalty or forfeiture, and to the attorney of the United States for such district, that each may have an opportunity of showing cause against the mitigation or remission thereof; and shall cause the facts which shall appear upon such inquiry, to be stated and annexed to the petition, and direct their transmission to the Secretary of the Treasury
(a) Art. 4, sec. 1, Constitution of the United States.-The decisions of the courts of the United States upon this statute, and on the introduction in evidence of the "acts, records, and judicial proceedings of the States," have been:
Under the fourth article and 1st section of the constitution of the United States, and the act of 26th May, 1790, if a judgment has the effect of record evidence in the courts of the State from which it is taken, it has the same effect in the courts of every other State; and the plea of nil debet is not a good plea to an action brought upon such judgment in a court of another State. Mills v. Duryee, 7 Cranch, 483; 2 Cond. Rep. 578. See Leland v. Wilkinson, 6 Peters, 317. United States v. Johns, 4 Dall. 412. Ferguson v. Harwood, 7 Cranch, 408; 2 Cond. Rep. 548. Drummond's adm'rs v. Magruder's trustees, 9 Cranch, 122; 3 Cond. Rep. 303.
Under the act of May 26, 1790, prescribing the mode in which the public records in each State shall be authenticated, so as to take effect in every other State, copies of the legislative acts of the several States, authenticated by having the scal of the State affixed thereto, are conclusive evidence of such acts in every other State. No other formality is required, than the annexation of the seal, and in the absence of all contrary proof, it must be presumed to have been done by an officer having the custody thereof, and competent authority to do the act. United States v. Amedy, 11 Wheat. 392; 6 Cond. Rep. 362. The record of a judgment in one State is conclusive in another, although it appears that the suit in which it was rendered was commenced by an attachment of property, the defendant having afterwards appeared and taken defence. Mayhew v. Thatcher, 6 Wheat. 129; 5 Cond. Rep. 34.
In an action upon a judgment, in another State, the defendant cannot plead any fact in bar which contradicts the record on which the suit is brought. Field v. Gibbs, Peters' C. C. R. 155. See Green v. Sarmiento, Peters' C. C. R. 74. Blount v. Darrah, 4 Wash, C. C. R. 657. Turner v. Waddington, 3 Wash. C. C. R. 126.
of the United States, who shall thereupon have power to mitigate or by whom granted; remit such fine, penalty or forfeiture, or any part thereof, if in his opinion the same was incurred without wilful negligence or any intention of fraud, and to direct the prosecution, if any shall have been instituted for the recovery thereof, to cease and be discontinued, upon such terms or conditions as he may deem reasonable and just. (a) Provided, That nothing herein contained shall be construed to affect the right or claim cases of preof any person, to that part of any fine, penalty or forfeiture, incurred by breach of either of the laws aforesaid, which such person may be entitled to by virtue of the said laws, in cases where a prosecution has been commenced, or information has been given before the passing of this act; the amount of which right and claim shall be assessed and valued by the judge of the district, in a summary manner.
SEC. 2. And be it further enacted, That this act shall continue and be in force until the end of the next session of Congress, and no longer. APPROVED, May 26, 1790.
CHAP. XIII.-An Act to continue in force an act passed at the last session of
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the act, entituled "An act to regulate processes in the courts of the United States," passed on the twenty-ninth day of September last, shall be, and the same is hereby continued in force until the end of the next session of Congress, and no longer.
APPROVED, May 26, 1790.
Not to affect
of the act.
1791, ch. 24, § 1. 1796, ch. 43. STATUTE II.
May 26, 1790.
[Expired.] Act of Sept.
29, 1789, ch. 21.
CHAP. XIV.—An Act for the Government of the Territory of the United States, May 26, 1790. south of the river Ohio.(b)
SECTION 1. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the territory of the United States south of the river Ohio, for the purposes of temporary government, shall be one district; the inhabitants of which shall enjoy all the privileges, benefits and advantages set forth in the ordinance of the late Congress, for the government of the territory of the United States northwest of the river Ohio. And the government of the said territory south of the Ohio, shall be similar to that which is now exercised in the territory northwest of the Ohio; except so far as is otherwise provided in the conditions expressed in an act of Congress of the present session, entitled "An act to accept a cession of the claims of the State of North Carolina, to a certain district of western territory." SEC. 2. And be it further enacted, That the salaries of the officers, which the President of the United States shall nominate, and with the advice and consent of the Senate appoint, by virtue of this act, shall be the same as those, by law established, of similar officers in the government northwest of the river Ohio. And the powers, duties and emoluments of a superintendent of Indian affairs for the southern department, shall be united with those of the governor.
APPROVED, May 26, 1790.
Act of June
1, 1796, ch. 46. Act of April 7, 1798, ch. 26. Territory south of the Ohio, to
be one district;
its privileges and govern.
Act of August 7, 1789, ch. 8. Exceptions.
Act of April 2, 1790, ch. 6.
Salaries of the
(a) The decisions of the courts of the United States upon this act, and on subsequent acts, in pari materia, have been: M'Lean v. The United States, 6 Peters, 404. United States v. Morris, 10 Wheat. 246; 6 Cond. Rep. 90. Cross v. The United States, 1 Gallis. C. C. R. 26. The Margaretta, 2 Gallis. C. C. R. 515. The United States v. The Hunter, Peters' C. C. R. 10. The United States v. Lancaster, 4 Wash. C. C. R. 64.
(b) Ordinance for the government of the territory of the United States, northwest of the river Ohio, in note to page 51.