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code, by which such an offence may be punished, the I shall hold myself, however, completely dispensed character and functions of the ollicer, whose orders are from any obligation or necessity, to pursue further supposed to have been disobeyed, and the nature of the labyrinths into which this indefinite memher of such orders, are usually defined with all reasonable the charge might lead us: Since, I think, if any proprecision. In the 5th and 14th of our naval articles position can be made clear, by human evidence, it of war, this species of offence is defined in terms would be impossible, for the most vindictive accuser, nearly equivalent to the corresponding articles in the to find any pretext in the facts of this case, for pushdaval and military codes of Britain, and in our own ing the charge beyond a simple departure from the military articles of war. Our 5th' naval article of letter or spirit of the positive rule of action, supposed war is, in terms, restricted to the orders of a coin to have been prescribed to me, whether it be the manding officer, when preparing for, or joining in, or constitution of the United States, or the law of na. actually engaged in battle. But the 14th article, con- tions, or my instructions, that establishes the law or ceived in terms somewhat more comprehensive, en- rule which I am supposed to have “contravened" or acts that“no officer or private shall disobey the law- "violated.” If I have offended at all, it is in the sinful orders of his superior officer, or strike him, &c. gle transgression of that law or rule: “the head and while in the execution of the duties of his office." The front of my offending hath that extent, no more." I punishment of the offence, in either of its modes or shall, therefore, leave it to the court, without further degrees, is “death, or such other punishment as a remark, to decide, from the evidence, whether it coart martial sball inflict.” Then, if by the disobe- were possible to have conducted a military operation, dience of orders,” here charged, be intended any on neutral territory, with a more scrupulous regard offence known to the naval articles of war, and pun- to all the rights of person and property, which such ishable under them, it implies that I had received, an operation could, in the nature of things, have left from some superior officer, in actual command, inviolate. If the act were unlawful in itself, I must either while engaged, or about to be engaged in abide the consequence; but it lies not, I think, within battle, or otherwise "in the execution of the duties of the compass of human ingenuity or malice, to conhis office," some order which I had disobeyed: and so, tend that the act, as being either lawful in itself, was had brought myself in the danger of a capital offence, stripped of its legal sanctions, and had its quality of as every military offence is denominated, which is lawful changed to unlawful; or, as a sheer trespass, punishable either with death or cashiering, though it that it was inflamed beyond its intrinsic character be left to the discretion of a court martial to inflict any and degree, by any wanton aggravations or abuses in Jess punishment. When this general charge comes the manner and circumstances. to be deduced into particulars, in the form of a speci The question, then, is presented in the simply form: fication, no orders, either commanding or forbidding Whether the act complained of was, under the cirme to do any act whatever, are set fourth, either in cumstances and inducements that lead to it, an iosractorms or in substance. No commanding or superior tion, either of the constitution of the United States, or officer, from whom they are supposed to have issued, the law of nations, or of my instructions from the geis named or described. The specification simply sets vernment of the United States; and, in that order, I out the naked and insulated fact of a certain invasion, proceed to consider it. by force of arms, upon the territorial sovereignty of Whether a belligerant operation, in the course of Spain, accompanied by “divers acts of hostility against an authorized' war, be constitutional or not, is a questhe subjects and the property of that power;" and, tion which, if it have any significancy, or be capable instead of any averment that, in so doing, the orders of any determinate solution, may be considered as of my commanding or superior officer, were disobey- nearly identical with the other question suggested by ed, the conclusion of the specification branches out this charge; namely, whether it be consonant to the into a "contravention of the constitution of the Unit- I law of nations, supposing the law here intended to ed States, and of the law of nations, and a violation of consist of the conventional or customary rules, by instructions from the government of the United States." which civilized nations have agreed to control and Now, whether any “contravention of the constitution or mitigate the ferocity and the calamities incident to a of the law of nations," not involved in a disobedience / state of war, and which constitute what is called the of military orders, be an offence cognizable, under law of war. All that the constitution of the United this chargé, by a court martial; or, whether general States has to do with the matter is, that it has cominstructions from the government be identical with municated to the general government the unqualified the orders of a coinmanding or superior officer, and a vio- jurisdiction of war and peace. The power to carry lation of such instructions equivalent to a disobedience on war, offensive or defensive, involves, in its terms, of such orders, are questions of grave import; and will every right, immediately or reprotely, incidental to doubtless, in their due order, receive the deliberate that state and condition of hurnan society. In what consideration of the court. At present, however, we these incidental rights consiit, must be determined by are endeavoring to ascertain the essential character the known or necessary conditions and consequences and terms of the offence, actually intended to be of war. Whatever of tiese the most comprehensive charged; its legal attributes and consequences may be signification of the term may embraee, are necessarily separately considered.
constitutional; ab'i the law of war, as it is called, is As to the second member of the general charge, in many respecís so vague, and so dependent upon "conduot unbecoming an officer;"- whether it be in- arbitary views of necessity or cspediency, to be tended to describe a mere incident to every act of judged of by hostile parties, as justified by an infinite military disobedience; or to impute some gratuitous and incalculable variety of peculiar circumstances, and superadded circumstances of aggravation, in the that it scarce furnishes a definite or intelligible rule mode and degree of it, in this particular instance, and by which it may be predicated of any military operato infame the guilt of simple disobedience, by any tion, that it is either constitutional or unconstitutionwanton abuse in the manner and circumstances at- al. The only constitutional question, therefore, in, tending the commission of the act, as in the "divers wbether the war itself were, itself, authorized that acts of hostility,"said to have been committed "against is, whether commenced or carried on by that authne the subjects and property of the king of Spain;" are rity to which the constitution has exclusively delequestions left in ihe characteristic obscurity and un- gated this high power. certainty which have veiled the “head and front of
This brings us to the consideraton of the second my offending," from any distinct view of it, that test, which, it is suggested, should be applied to my might have enabled me to perceive, or to divine its conduct, on the occasion in question and that is the extent
law of nations.
That branch of public law which determines the (Here the learned counsel quoted from v. 3, p. 95, correlative rights and duties either of the hostile sec. 4, in which he states the right to attack a ship belligerants, as between themselves, or of neutrals which has pirates, or a house which has robbers in and belligerants, as between themselves, or of allies or it, though some of the innocent may suffer therehy;. co-belligeranis, as between themselves, constitutes a but adds, that, though the right is clear, it is to be ex. voluminous code, which is perhaps, the theme of as ercised with a view
to moral as well as civil obligamuch undeterminate controversy, both as to its prin- tions, and with a leaning towards moderation and ciples and its authority, as any that ever undertook bumane seelings.) So far the rights of belligerants to preseribe rules of luanan conduct; and it would and the duties of neutrals are confined, and here ! scarce be practicable to deduce from it any definite may be permitted to remark, that, through the whole rule applicable to the infinitely varied circumstances course of conduct for which I am now called to of actual war, and by which a military officer might answer, 1 hare kept far within these limits. Neither be condemned for a presumed violation of the law. the person nor the property of any innocent persons In this case, however, it will not be necessary to having been wantonly injured. trouble the court with any reference to the more re I come now to the rights of a belligerant towards condite and theoretical definition of general rules; third party, which is not merely an ally, but a cobecause insofar as my conduct depends for its justi belligerant. Here the rights are apple, and are fication upon such rules, it may be referred to an au- pushed still farther than in the case last referred to. thoritative and practical exposition of them, as appli- What a neutral may lawfully do, is not, therefore, cable to the particular circunstances under which I lawful for an ally to do. So soon as he does, the com acted. The rights and duties incidental to a state of belligerant may seize upon his goods and territorywar, as it affects every party, directly or indirectly (bere he quoted Chilly on the law of nations, p. 10) concerned, have been the subject of such frequent --but it is unnecessary to pursue authorities further. and elaborate discussion in our own intercourse Our domestic documents are abundant to illustrate with foreign nations, and have received such lucid the doctrine. The language of Mr. Adams is emphatidefinition, and such various illustration from our cal, and is in perfect accordance with that of bis illusmost eminent statesmen, that we may be said to have trious predecessors—"There will need no citation compiled and digested from the best authorities and from printed treaties on international law, to prore the most enlighted views of the subject, a system of the correctness of this principle; it is engraved in frublic law, upon these topics, which, if it be not adamant on the common sense of mankind. Having generally adopied by the family of civilized nations, thus laid down the general rules which apply to the as the nioral and political influence of our esainple subject, I shall now proceed to inquire whether Spain extends, may at least be received, among our own stands to the United States in the relation of a neutral citizens, as superseding, to every practical purpose, or of an ally. The first question is, whether the a reference to the more general and less applicable United States are a belligerant power engaged in a doctrines of elementary writers. Our discussions lawful war? Some doubt has been started on this with the powers of Europe, while they were belli- subject from the want of a formal declaration of var: gerant and we were neutral, have settled for our- it has also been suggested, that the pursuit of pirates səlves, the positive rights of neatrals; and our more is a matter of domestic police rather than of war; recent discussions and collisions with one of those but, on this subject, the practice of our own goveropowers, while we were belligerant and she neutral, ment is fully and to the point. Though the United have equally well settled the positive duties of neu- States have almost never since their independence, trals. The rule to be deduced from the latter, is so been fully and perfectly at peace; yet, in all that much the more i:telligible in its doctrine, and obvious period, there has existed but one formal 'declaration and practical in its application, since it has grown war: I allude to that with Great Britain; with the out of collisions and discussions of the belligerant Barbary powers, our government has bad years of rights of the United States, as correlative to the neu- active warfare. Captures have taken place both of cral duties of this very power, Spain, whose territo- enemy's property and of that belonging to neutrals, rial sovereignty I am charged with having violated; there have been blockades of ports and interruptions and more especially of her neutral duties, as deter- of trade and by what authority? Only by force or mined by the peculiar circumstances of her colonial the fact, that an armament has been placed in the Jependencies, in one of which the scene of my sup- Mediterranean by the president of the United States, posed transgression is laid.
as a protection against pirates. On the ground of an The extent of these correlative rights and duties, act merely incidental to a qualified warfare, has all between a belligerant and friendly power, must be this taken place. So in regard to the Indian tribes; determined, in a great measure, by the position of there has been no declaration of war, nor bas war the friendly power, either as strictly neutral or as co ever been formally recognized. The constitution belligerant; and how far it may act, not as an enemy, has delegated to congress alove the power of declarbut as the assistant of an enemy.' I shall first con- ing war and calling out the militia. Under this last sider the third party as a mere neutral. The rule power alone has the president conducted all our for bim in that case is, that if, while in the ex wars with the Indian tribes. There has occurred no ercise of sovereign authority, either by connivance, instance where it has not been produced by an invaor through mere weakness, he converts his privileges sion of the Indians, actual or apprehended. As to the si a neuiral to the aid of the enemy, he forieits those war with the pirates, in 1823, I had the same auprivileges. They are, for the time, suspended, and thority as the commanders of our fleets in the MediThe belligerant has a right to invade his territory or terranean, or as the generals of our armies. The 10 seize his shipping; these circumstances justify in- force ordered, in 1819, to defend our commerce vasion or an arrest of trade and commerce. For ob- against pirates, was, in its nature and authority, the vious reasons, I shall not cite foreign authorities in same as those before ordered against the Barbary support of this position: it is written in every page powers. of the law of nations: in the forcible language of Mr. I shall refer to our domestic documents for the Adams, “it is engraved in adamant on the common practical rules to be observed toward foreign states, senge oimankind. No writer, upon the law of nations, whether neutral or allied. And ist, in our Indian eror pretended to contradict it; none of any reputation wars: they all originated, not in the declaration of or authority ever omitted to insert it.” In illustration, war, but in an invasion repelled. In 1914, during I shall only refer to one, who may be termed the fa- our war with Great Britain, general Jacksod was ter of the law of nations, the 'venerable Grotius. I ordered to take Pensacola, if he found that the lo
dians were furnished by the fort there with ammuni- would have been inconsistent to go on and take Si. tion and means of offence against the United States. Augustine. This precedent alone is sufficient to justify me in all Such are the principles which have regulated our that I hare done. In 1817, the establishments at military operations against the British, the Indians Amelia Island and Galveston were forcibly suppress- and the pirates of Barbary. Having stated these facts, ed. Amelia Island was in undisputed possession of it may be useful to put the court in possession of the Spain-Galveston was in the possession of Spain, but circumstances under which these orders were giveu within the contested limits of Louisiana. "Tlie for- and the subsequent transactions which took place; mer was taken possession of by adventurers, pre- and here ! may appeal to the able and elaborate justitending some authority from one of the South Ame- lication given by Mr. Adams, in his despatches to our fican states. They had committed no depredation ministers at Madrid. These are complcte on this on the commerce or possessions of the United States, head; and I have now only to enquire whether, in but the president apprehended that they would be 1823 and 1824, the government of Spain stood toward the means of establishing an extensive systena of the United States in the same obligation, or greater, bncaniering; and, in anticipation of piracy, he suppress than in the Indian war. ed the establishment by force of arms and military I have adverted to the act of congress patting the occupation. (To illustrate this statement, the coun- squadron under my command. Pirates are declared sel quoted from Niles' Register, 13 vol. p. 237, a part to be the enemies of the human race-enemies of the president's message to congress, and another equally to all men; all men are justly considered as message in January, 1819, idem, p. 238.) In these against them. Here there is no belligerant and neumessages the principle is laid down, that the weak- tral; all are belligerant; nor is there any attribute of ness of Spain was no reason why the United States war that does not apply to them. It is unnecessary, should submit to injuries, through abuses of her ter- in support of this doctrine, to reser 10 authorities; 1 ritorial rights; the jurisdiction of Spain ceasing at is fully laid down in my instructions, though in 8 the point where her weakness failed to maintain her condensed form. (Here he quoted the following authority. The principle is thus broadly enumerat- passage from the letter of secretary Thompson, on ed, which justified the United States, as a belligerant, whose legal acumen and attainments he passed a destanding in danger of injury, in taking forcible means served compliment, dated 1st February, 1823:] to prevent it. The principle is more fully illustrat “You will announce your arrival and object to the ed and confirmed by the proceedings of gen. Jack- authorities, civil and military, of the island of Cuba, son in Florida. The war there consisted of a mere and endeavor to obtain, as far as shall be practicable, defence of our frontier, from the incursions of cer- their co-operation, or, at least, their favorable and tain savages, called Redsticks or Seminoles. It was friendly support, giving them the most unequivocal soon found necessary to depart from the strict line assurance, that your sole object is the destruction of defensive operations, and to pursue the savage to of pirates. his fastnesses within the Spanish territory.
"The system of piracy which has grown up in the This was the ordinary case of irregular Indian hos- West Indies, has obviously arisen from the war betility, without any declaration, or other concomi- tween Spain and the new governments, her late protant of war, more formal than what subsisted in that vinces in this hemisphere, and from the limited presented against the pirates in the West Indies and force in the islands and their sparse population, Gulf of Mexico. These savages are pushed, by their many portions of each being entirely uninhabited victorious pursuers, to the vicinity of the regularly and desolate, to which the active authority of the garrisoned Spanish fortress of St. Marks; which, be government does not extend. It is understood that ing well ascertained by the general to be a resort for establishments have been made by parties of these the savages, where they found aid and comfort, was banditti in those uninhabited parts, to which they entered by our troops by violence, and occupied carry their plunder, and retreat in time of danger. see Niles' Register, 15 vol, page 311, 312.)
It cannot be presumed that the goveroment of any A British subject domociliated under the protec- isiand will afford any protection or countenance to tion of the Spanish law, who had acted as a spy and such robbers. It may, on the contrary, confidently incendiary, was executed. The general then car be believed, that all governments, and particularly ried his victorious arms to Pensacola, which he those most exposed, will afford all the means in their seized without opposition; the garrison having re- power for their suppression. Pirates are considered, treated to the neighboring fort of Barancas, which by the law of nations, the enemies of the human was fiercely attacked, and, when on the point of be- race. It is the duty of all nations to put them down; ing stormed, capitulated. Thus in possession of the and none, who respect their own character or inte. capital, and all the strong places of the province, it rest, will refuse to do it, much less afford them an was treated as a conquered country: a civil and mili- asylum and protection. The nation that makes the tary goveroor was appointed; and every arrangement greatest exertions to suppress such banditti, has the usual after a conquest.
greatest merit. In making such oxertions, it has a All this is esplained, and most amply vindicated, right to the aid of every other power, to the extent not as an act of hostility against Spain, but as done of its means, and to the enjoyment, under its sancvirtually with her consent: it being presumed that tion, of all its rights in the pursuit of the object. Ja her weakness, and not her will, had tolerated the the case of belligerants, where the army of one hostile acts complained of by general Jackson. Thus party enters the territory of a neutral power, the become possossed of one entire Spanish province, its army of the other has a right to follow it there. capital and forts, and thinking the Indian hostilities "In thc case of pirates, the right of the armed effectually checked, the general retired from the force of one power to follow them into the territory field. But hearing fresh accounts of renewed or of another, is more complete. In regard to pirates, threatened hostilities from the savages, and abuses of there is no neutral party; they being the enemies of Spanish territory, to our prejudice, he ordered gen. the human race, all nations are parties against them, Gaines to take St. Augustine, the capital of another and may be considered as allies.” province. But as gen. Gaines was on his march lo It is unnecessary to go further here is the docosecute this order, he was stopped by orders from the trine and the illustration, and in reference expressly war department, not from any disapprobation of to those against whom I was to act; but I did not what had been done, but only in consequence of an rest in this--in compliance with what I deemed the arrangement with the Spanish minister to restore St. spirit of my instructions, I established an understandSlarka, Pensacola and the Barancas; after which, it ling with the local governments, for which I refer the
court to my official correspondence with them, under great object of the expedition to be defeated by a date of ind December, 1823. I lost no time in es strict and overstrained construction? Were not uy tablishing a specific understanding with the govern- orders to be explained by precedent and contempo ors of the Spanish islands—they recognized the rary practice? The court will see, by reference to meritorious character of the war we were carrying the reports from my squadron, accompanying the on, and promised every aid and co-operation, on president's message, of 2nd December, 1923, the arts their part, to advance it: thus voluntarily making of the pirates in evasion-their disguises as fisherthemselves parties, as allies or co-belligerants. The men, as drogers, as pedlers, &c. &c. To detect these case is perfectly clear. The United States, repre- disguises, resort must be had to a thousand different sented by o:cers, are bound to treat the Spanish sim. ways. At various times officers and parties of mea ply as allies transgressing their duty. Ji may, per- landed in Cuba-they found persons, under various haps, be thought that there is a difference in this re- disguises--they carried on hostilities against thenspect between the power of the president of the they even burned whole villages. A village was thus United States, and those who act in subordinate com destroyed to leeward of Baya Honda. Lieutenant mands. li bas already been stated that we act not Kearney landed in Cayo Blancho, destroyed the buts against Spain, but simply repel the attack of the he found there, and burned the houses. Lieutenant enemy through her. The president of the United Sloat had also an action at a place in Porto Rico, States has, of himself, no authority to make war. called Boca del Jpferno-how these cases, (which all That power is delegated by the constitution to con- received the implicit sanction of the government), gress alone. The president may, indeed, under the are to be distinguished from the landing at Foxar authority of the act of congress, giving him that do, I cannot perceive. I landed there in search of power, call out the force of the nation to suppressin- pirates-upon information the most credible, and surrections, and to repel invasions; in the exercise which I should have been criminal if I had disre. of which last power, almost all the belligerant ope- garded, that such persons were then there. rations of the country, since the existence of the pre The court cannot but have remarked the abundant gent governcient, have been carried on. The exer- evidence on which I drew the conclusion that Foxarcisc of the helligerant right, now in question, is, in ne do and its vicinity syas the haunt and refuge of pidegree, the exercise of a jurisdiction of peace or war: rates. A party of these wretches had committed de huia merely incidental rignt of actual war, and as predations on the property of an American citizen át fully vested in the lowest subaltern, to whose hands St. Thomas's. An officer of my squadron, who west the arms of our republic are committed, as in the pre- to recover that property, and to detect and punish sident bimself. The only difference is, that the pre- the depredators, was insidiously enticed withio theis sident, being commander-in-chief, may restrain or power, and asterwards seized and maltreated. modify, at pleasure, the exercise of any belligerant Could I suppose, was it my duty to presume, that right, by those in command under him; but, in ab- this had been done with the knowledge and approba sence of such restraining order, these high bellige- tion of the local goveroment of Porto Rico I had ranis rights oxist, to their whole extent, in the per-established a friendly correspondence with the local son of the commanding officer, whatever his rank. governments both of Porto Rico and Cuba, (as will
This brings me to the question, whether, in my appear by reference to the president's message to operation upon Fosardo, I have transgressed my or congress and the report of the secretary of the navyje ders? Before such a transgression can be proved, and I was aware that this habit in the pirates, of formsome order must be shewn, forbidding me to exercise ing establishments on land, in the less frequented the otherwise clear right, then vested in me, of exe parts of the islands, was well known to these goverzcuting that highly expedient, necessary, and, in all meots; could I then conclude that what happened at its public resulis, most fortunate measure.
Foxardo was sanctioned by them? If there is any My justification requires no order either command-thing specific in the charges at all, it is, that I did not ing or authorizing it. The incidental power, to the pay proper respect to the local government of Porto fillest extent, was inherent to my command. My Rico. But with whom did I meet, when I entered the instructions of the 1st February, 1823, are to be look- bay of Foxardo? With an undefined, unknown, uncdio, not for evidence of my authority, but for a pro- armed, uncharacterised mob-who, without waitLibition, express or implied, against the exertion of ing for a word even of parley, commenced acts of it. Mere he quoted the instructions.) Now I con- hostility against me. They were wholly the aggrestend vot only that there is the absence of any such sors no injury, no act of hostility whatever, bad probibition, but that there is a positive injunction on been committed by my squadron, or by any person me to proceed as I did. Im I had neglected, I should on board of it, when they commenced training their Jiot only have bäsely betrayed the high and sovereign ! guns upon my vessels. What conceivable reason rigits of war, upon which the glory and the safety of I had I to think that these were the lawful agents of the nation mainly depend; but should actually have the local government any more than lieut. Carson, violated my instructions, by a course of conduct di- lieut. Kearney, or lieut. Sloat, had to suppose whom rectly opposite to that which is now said to have con- they found, and whose establishments they burnt to the stituted a violation of the same instructions. Now, ground, were lawful agents of government? I knew ini, in regard to those parts of my instructions which that the pirates were always to be found under the command what is to be done. (Here he quoted at guise of honest men--and i leave it to the court to large.]
say whether, when I approached Foxardo, a place · In interpreting these orders, I shall lay down cer- notorious throughout all the vicinity as a principal tain general rules which prevail in the construction baunt of bandilti, when I found a motley collection of all similar instruments. The court will perceive of ill looking wretches armed, and training their that these instructions command duties to be per- guns upon me, engaged in unprovoked hostility formed. They require an exertiou of power, and against a force known to be engaged in the suppresthey lay down limits for its exertion.
sion of piracy, I was bound to believe them to be act1. We must resort to the reason or final causeing under the authority of the local government of which was had in view by the expedition. What Porto Rico. Surely, I was justified in landing and was this final canse? The suppression of piracy, dispersing them indeed the only doubt which crosand the protection of the commerce and the citizens scd my mind was, whether I did enough in so doing? of the United States, collectively and individually. I only deprived them of the power oř doing injury, Whatever would conduce to this end, I was not oniy and then to prosecute further inquiry, marched a fete authorized but bound to do. Next, I inquire, was the miles up into the country. Here, indeed, I found
certain officers of the place-but, so far from claim-, at length.) I will use to my instructions the same ing to be the local government of Porto Rico, or acting process of illustration which was applied to those. under its sanction, they excused themselves for the given to gen. Jackson concerning his expedition in abuse of my officer by alleging that they had acted the Seminole war; and if it shall appear, that the under an external compulsion in so doing—and by powers granted to him, were less, or at least not hinting that there was something mysterious and un- greater than those to me, it will followy, that I was divulged in the necessity which induced them to act bound to expound the terms of mine as going to the .contrary to their duty. So far then as the evidence same extent with his: for so great an opprovium is goes, there appears to have been no violation of the not to be supposed as that, when the government has authority of the government of the island; but it ap- given the same powers to two diffrent officers, and pears, on the contrary, that that government was in they exercise these powers to the same extent, tho no wise concerned in the affair. I was warranted to one shall be excused and praised while the other is acbelieve, that those whom I found at Foxardo were act- cused and condemned. Let us, then look at the terpis ing against its authority, not by its authority-that that under which gen. Jackson invaded and took posses. authority was exerted to suppress piracy, not to en-sion of two whole provinces of the Spanish domicourage and defend it; and, therefore, no malter to nions, produced a state of things which he himself what extreme I had proceeded against those persons, says was equivalent to an actual cession of those prothe circumstances were such as to have justified me. vinces, and established, not only military, but civil
But let us look to subsequent events for a still government there. By reference to the memorial clearer illustration. Has the acts of the local au- presented by that officer to the senate, in reply to a thorities at Foxardo ever been espoused and vindi- report of a committee, it will be seen that. an order cated by the government of Porto Rico? One would had been given to gen. Gaines, who preceded him in imagine that if those authorities had been warranted the command, authorizing him to pursue the Indians in what they did by their superiors, the acts of the over the boundary line of the United States into the squadron would have brought down the indignation territory of Florida--but if they took refuge under both of the people and the government of the island: any of the fortresses, belonging to the Spanish gobut no such thing--so far from it, they are followed vernment, he must there arrest the pursuit, and by the most lively and distinguished applause. forth with acquaint his government. This order it When an officer of the squadron soon afterwards, visit was maintained by the committee, was equally binded some of the neighboring towns of Porto Rico, he ing on general Jackson, his successor in command. and his party were received and treated with marked But general Jackson, disclaiming this inference, and respect and hospitality. The governor of the island in opposition to it, quotes and insists on his own ge.. holds the most friendly correspondence with lieut. neral orders-especially on that clause in them Sloat. The people and the authority of Ponce, a where he is directed to take all proper means to bring town not 40 miles from Fosardo, though they knew the war to a speedy and effectual issue. He justifies that one of the officers was the same person whose his whole course in entering the Spanish provinces, treatment at Foxardo had occasioned the visit of the attacking and storming the forts, with all the other squadron to that place, received him with distin- acts which followed these, as being the means best guished kindness—gave him a public dinner and adapted to accomplish the general objeet of his isshowed the strongest solicitude to acquit themselves structions, by bringing the war to a speedy and effecof having had the least connivance with the conduct tual issue. He does not even pretend that his instrucof the neighboring authorities. And it is worthy of tions contained any express order to seize on St. reinark, that the minds of people at St. Thomas, at Mark's, Pensacola or the Barancas--but justifies tha Porto Rico, and throughout the peighborhood gene-whole on the broad principle of self defence. rally, were simultaneously impressed with the same Another document of interest, in expounding yene. conviction of the necessity and propriety of what I ral Jackson's particular authority for his acis in was about to do. I preserved, myself, the most guard. Florida, and of the more interest on this occasion, ed silence as to what were my intentions in going to because it issues from the same high authority and Poxarıo, yet all expected and all approved what uses the same terms as my own instructions. Illere took place there; a fact which could arise only from the council quoted from Niles' Register, vol. xv, p. their own convictions of its being proper and neces-213, the instructions issued by the president to gen. sary. I had not, at the time, the most distant cause Jackson, laying stress on the expression that the au10 conclude thail was violating the authority of the thority of Spain was not fell beyond the limits of Aulocal government; I had not afterwards, nor have I gustine and Pensacola-ihe rest of the territory be
There were not, as in the case of gen. Jack- ing filled with wandering Indians, and persons of all son's entry of Florida, any vehement complaints nations, &c. He quoted, also, general Jackson's refrom the government of Spain, that her territory had marks in vindication of his conduct, in which he been violated; no official complaint of any kind has maintains, that, by entering the province, &c. lie had ever been made, so far as the public know: It can not committed any encroachment on the rights of not, therefore, be said that, instituting the present Spain; that the officers of the Spanish forts were hostrial, the government has acted from any necessity tile to the government of the United States, and that arising out of the preservation of peace with Spain, he should have totally failed in the object of the exor giving satisfaction to the government of Porto pedition, if he had not deprived the Indians of that Rico.
protection in which they relied, and by which they Having thus shown, that the act for which I am ac were emholdened to persevere in their depredations. cused was in consistency with the final cause for the readiness with which the provinces were surren. which the expedition was fitted out; and, also, that dered, as soon as there was a proper force to receive it was in accordance with preceding and with con- and defend thom, proved, that no violation was intemporary practice, in the cases of general Jackson, tended of our peace with Spain, &c. The counsel lieutenants Kearney, Carson, and Sloat, I will now also quoted, with emphasis, the order to "respect the apply to my instructions another rule of interpreta- Spanish authorites wherever they exist and are inaiia. tion, applicable to every instrument in writing, what- lained.”] ever, viz; the comparison of any given passage with It now remains to look at the circumstances under the context preceding and following it, and with the which the instructions to general Jackson, and thoye circumstances under which it was written. [In il
. to myself, were respectively given, and to compare Justration of the propriety of such a rule, the learned the authority by which he entered Florida and I loscounsel esferred to Gortius, !I, 145, irhich he quotod lardo. It will be perceived that this authority was