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that the most punctual obedience was paid to own sublime eloquence, the poor children of the his orders, in not only saving all the women forest have been driven by the great wave which and children, but in sparing all the warriors has flowed in from the Atlantic Ocean almost to who ceased to resist; and that even when vig- the base of the Rocky Mountains, and, overorously attacked by the enemy, the claims of whelming them in its terrible progress, has left mercy prevailed over every sense of their own no other remains of hundreds of tribes, now exdanger, and this heroic band respected the lives tinct, than those which indicate the remote exof their prisoners. Let an account of murdered istence of their former companion, the maminnocence be opened in the records of heaven, moth of the new world! Yes, sir, it is at this against our enemies alone. The American sol- auspicious period of our country, when we hold dier will follow the example of his government, a proud and lofty station among the first nations and the sword of the one will not be against of the world, that we are called upon to sanction the fallen and the helpless, nor the gold of the a departure from the established laws and usages other be paid for scalps of a massacred enemy.'
." which have regulated our Indian hostilities. I hope, sir, the honorable gentleman will now and does the honorable gentleman from Massabe able better to appreciate the character and chusetts expect, in this august body, this enconduct of my gallant countrymen, than he ap- lighted assembly of Christians and Americans, pears hitherto to have done.
by glowing appeals to our passions, to make us But, sir, I have said that you have no right forget our principles, our religion, our clemency, to practise, under color of retaliation, enormi- and our humanity? Why is it that we have not ties on the Indians. I will advance in support practised toward the Indian tribes the right of of this position, as applicable to the origin of all retaliation, now for the first time asserted in relaw, the principle, that whatever has been the gard to them? It is because it is a principle custom, from the commencement of a subject, proclaimed by reason, and enforced by every whatever has been the uniform usage, coeval respectable writer on the law of nations, that and coexistent with the subject to which it re- retaliation is only justifiable as calculated to lates, becomes its fixed law. Such is the foun- produce effect in the war. Vengeance is a new dation of all common law; and such, I believe, motive for resorting to it. If retaliation will is the principal foundation of all public or inter- produce no effect on the enemy, we are bound national law. If, then, it can be shown that to abstain from it by every consideration of hufrom the first settlement of the colonies, on this manity and of justice. Will it, then, produce part of the American continent, to the present effect on the Indian tribes? No; they care not time, we have constantly abstained from retali- about the execution of those of their warriors ating upon the Indians the excesses practised by who are taken captive. They are considered them toward us, we are morally bound by this as disgraced by the very circumstance of their invariable usage, and cannot lawfully change it captivity, and it is often mercy to the unhappy without the most cogent reasons. So far as my captive to deprive him of his existence. The knowledge extends, from the first settlement at poet evinced a profound knowledge of the InPlymouth or at Jamestown, it has not been our dian character, when he put into the mouth of practice to destroy Indian captives, combatants a son of a distinguished chief, about to be led to or non-combatants. I know of but one devia- the stake and tortured by his victorious enemy, tion from the code which regulates the warfare the words: between civilized communities, and that was the destruction of Indian towns, which was sup
“Begin, ye tormentors! your threats are in vain :
The son of Alknomook will never complain.” posed to be authorized upon the ground that we could not bring the war to a termination but by Retaliation of Indian excesses, not producing destroying the means which nourished it. With then any effect in preventing their repetition, is this single exception, the other principles of the condemned by both reason and the principles laws of civilized nations are extended to them, upon which alone, in any case, it can be justiand are thus made law in regard to them. fied. On this branch of the subject much more
When did this humane custom, by which, in might be said, but as I shall possibly again alconsiderat of their ignorance, and our en- to it, I will pass from it for the present, to lightened condition, the rigors of war were mit- another topic. igated, begin? At a time when we were weak, It is not necessary, for the purpose of my arand they comparatively strong; when they were gument in regard to the trial and execution of the lords of the soil, and we were seeking, from Arbuthnot and Ambrister, to insist on the innothe vices, from the corruptions, from the reli- cency of either of them. I will yield for the gious intolerance, and from the oppressions of sake of that argument, without inquiry, that Europe, to gain an asylum among them. And both of them were guilty; that both had insti. when is it proposed to change this custom, to gated the war; and that one of them had led substitute for it the bloody maxims of barbarous the enemy to battle. It is possible, indeed, that ages, and to interpolate the Indian public law a critical examination of the evidence would with revolting cruelties? At a time when the show, particularly in the case of Arbuthnot, situation of the two parties is totally changed that the whole amount of his crime consisted in when we are powerful and they are weak—at his trading, without the limits of the United a time when, to use a figure drawn from their | States, with the Seminole Indians, in the accus
tomed commodities which form the subject of our armies probably the subjects of almost Indian trade, and that he sought to ingratiate every European power. Some of the nations himself with his customers by espousing their of Europe maintain the doctrine of perpetual interests, in regard to the provision of the treaty allegiance. Suppose Britain and America in of Ghent, which he may have honestly believed peace, and America and France at war. The entitled them to the restoration of their lands. former subjects of England, naturalized and And if, indeed, the treaty of Fort Jackson, for unnaturalized, are captured by the navy or the reasons already assigned, were not binding army of France. What is their condition? upon the Creeks, there would be but too much According to the principle of General Jackson, cause to lament his unhappy if not unjust fate. they would be outlaws and pirates, and liable The first impression made on the examination to immediate execution. Are gentlemen preof the proceedings in the trial and execution of pared to return to their respective districts with those two men is, that on the part of Ambrister this doctrine in their mouths, and to say to there was the most guilt, but, at the same time, their Irish, English, Scotch, and other foreign the most irregularity. Conceding the point of constituents, that they are liable, on the continguilt of both, with the qualification which I gency supposed, to be treated as outlaws and have stated, I will proceed to inquire, first, if pirates ? their execution can be justified upon the princi- Is there any other principle which justifies ples assured by General Jackson himself. If the proceedings ? On this subject, if I admire they do not afford a justification, I will next in the wonderful ingenuity with which gentlemen quire, if there be any other principles authoriz- seek a colorable pretext for those executions, I ing their execution, and I will in the third am at the same time shocked at some of the place make some other observations upon the principles advanced. What said the honorable mode of proceeding.
gentleman from Massachusetts (Mr. Holmes), in The principles assumed by General Jackson, a cold address to the committee? Why, that which may be found in his general orders com- these executions were only the wrong mode of manding the execution of these men, is," that doing a right thing. A wrong mode of doing it is an established principle of the law of na- the right thing! In what code of public law; tions, that any individual of a nation making in what system of ethics; nay, in what rewar against the citizens of any other nation, spectable novel; where, if the gentleman were they being at peace, forfeits his allegiance, and to take the range of the whole literature of the becomes an outlaw and a pirate." Whatever world, will he find any sanction for a principle may be the character of individuals waging so monstrous ? I will illustrate its enormity by private war, the principle assumed is totally a single case. Suppose a man, being guilty of erroneous when applied to such individuals robbery, is tried, condemned, and executed, associated with a power, whether Indian or for murder, upon an indictment for that robbery civilized, capable of maintaining the relations merely. The judge is arraigned for having exof peace and war. Suppose, however, the ecuted, contrary to law, a human being, innoprinciple were true, as asserted, what disposi- cent at heart of the crime for which he was tion should he have made of these men? What sentenced. The judge has nothing to do to jurisdiction, and how acquired, has the military insure his own acquittal, but to urge the gentleover pirates, robbers, and outlaws? If they man's plea, that he had done a right thing in a were in the character imputed, they were alone wrong way! amenable, and should have been turned over The principles which attached to the cases of to, the civil authority. But the principle, I Arbuthnot and Ambrister, constituting them repeat, is totally incorrect, when applied to merely "participes” in the war, supposing them men in their situation. A foreigner connecting to have been combatants, which the former himself with a belligerent, becomes an enemy was not, he having been taken in a Spanish fortof the party to whom that belligerent is op- ress, without arms in his hands, all that we posed, subject to whatever he may be subject, could possibly have a right to do, was to apply entitled to whatever he is entitled. Arbuthnot to them the rules which we had a right to enand Ambrister, by associating themselves, be- force against the Indians. Their English chacame identified with the Indians; they became racter was only merged in their Indian characour enemies, and we had a right to treat them ter.. Now, if the law regulating Indian hosas we could lawfully treat the Indians. These tilities be established by long and immemorial positions are so obviously correct, that I shall usage, that we have no moral right to retaliate consider it an abuse of the patience of the upon them, we consequently had no right to committee to consume time in their proof. retaliate upon Arbuthnot and Ambrister. Even They are supported by the practice of all na- if it were admitted that, in regard to future tions, and of our own. Every page of history, wars, and to other foreigners, their execution in all times, and the recollection of every mem- may Xave a good effect, it would not thence ber, furnish evidence of their truth. Let us follow that you had a right to execute them. look for a moment into some of the conse- It is not always just to do what may be advanquences of this principle, if it were to go to tagçous. And retaliation, during a war, must Europe, sanctioned by the approbation, express have relation to the events of that war, and or implied, of this House. We have now in | must, to be just, have an operation on that war,
and upon the individuals only who compose the by pointing to the cities sacked, the countries belligerent party. It becomes gentlemen, then, laid waste, the human lives sacrificed in the on the other side, to show, by some known, wars which he had kindled, and by exclaiming certain, and recognised rule of public or muni- to the unfortunate captive, You, miscreant, cipal law, that the execution of these men was monster, have occasioned all these scenes of justified. Where is it? I should be glad to devastation and blood! What has been the see it. We are told in a paper emanating from conduct even of England toward the greatest the Department of State, recently laid before instigator of all the wars of the present age? this House, distinguished for the fervor of its The condemnation of that illustrious man to eloquence, and of which the bonorable gentle- the rock of St. Helena, is a great blot on the man from Massachusetts has supplied us in part English name. And I repeat what I have bewith a second edition, in one respect agreeing fore said, that if Chatham, or Fox, or even with the prototype—that they both ought to be William Pitt himself, had been prime minister inscribed to the American public—we are justly in England, Bonaparte had never been so contold in that paper, that this is the “first” in- demned. On that transaction history will one stance of the execution of persons for the crime day pass its severe but just censure. Yes, alof instigating Indians to war. Sir, there are though Napoleon had desolated half Europe; two topics which, in Europe, are constantly although there was scarcely a power, however employed by the friends and minions of legit- humble, that escaped the mighty grasp of his imacy against our country. The one is an ambition ; although in the course of his spleninordinate spirit of aggrandizement—of covet- did career, he is charged with baving committed ing other people's good; the other is the treat- the greatest atrocities, disgraceful to himself ment which we extend to the Indians. Against and to human nature, vet even his life has been both these charges, the public servants who spared. The allies w.uld not, England would conducted at Ghent the negotiations with the not, execute him upon the ground of his being British commissioners, endeavored to vindicate an instigator of wars. our country, and I hope with some degree of The mode of the trial and sentencing of these
What will be the condition of future men was equally objectionable with the prinAmerican negotiators when pressed upon this ciples on which it has been attempted to prove head, I know not, after the unhappy executions a forfeiture of their lives. I know the laudable on our southern border. The gentleman from spirit which prompted the ingenuity displayed Massachusetts seemed yesterday to read, with a in finding out a justification for these proceedsort of triumph, the names of the commission- ings. I wish most sincerely that I could reconers employed in the negotiation at Ghent. cile them to my conscience. It has been atWill he excuse me for saying, that I thought he tempted to vindicate the general upon grounds pronounced, even with more complacency and which I am persuaded he would himself disown. with a more gracious smile, the first name in It has been asserted that he was guilty of a the commission, than he emphasized that of the mistake in calling upon the court to try them, humble individual who addresses you?
and that he might at once have ordered their
execution, without that formality. I deny that [Mr. Holmes desired to explain.]
there was any such absolute right in the com
mander of any portion of our army: The right There is no occasion for explanation ; I am of retaliation is an attribute of sovereignty. It perfectly satisfied.
is comprehended in the war-making power that
Congress possesses. It belongs to this body not [Mr. Holmes, however, proceeded to say that only to declare war, but to raise armies, and to his intention was, in pronouncing the gentle make rules and regulations for their governman's name, to add to the respect due to the ment. It is in vain for gentlemen to look to
the law of nations for instances in which renegotiator, that which was due to the Speaker taliation is lawful. The laws of nations merely of this House.]
lay down the principle or rule; it belongs to
the government to constitute the tribunal for To return to the case of Arbuthnot and Am- applying that principle or rule. There is, for brister. Will the principle of these men having example, no instance in which the death of a been the instigators of the war, justify their captive is more certainly declared by the law execution? It is a new one; there are no land- of nations to be justifiable, than in the case of marks to guide us in its adoption, or to pre- spies. Congress has accordingly provided in scribe limits in its application. It William Pitt the rules and articles of war, a tribunal for the had been taken by the French army, during the trial of spies, and consequently for the applicalate European war, could France have justi- tion of the principle of the national law. The fiably executed him on the ground of his having Legislature has not left the power over spies unnotoriously instigated the continental powers defined, to the mere discretion of the comto war against France ? Would France, if she mander-in-chief, or of any subaltern officer in had stained her character by executing him, the army. For, if the doctrines now contended have obtained the sanction of the world to the for were true, they would apply to the comact, by appeals to the passions and prejudices, mander of any corps, however small, acting as
a detachment. Suppose Congress had not proceed under the rules and articles of war. legislated in the case of spies, what would have The extreme number which they provide for is been their condition? It would have been a thirteen, precisely that which is detailed in the
casus omissus;" and although the public law present instance. The court proceeded not by pronounced their doom, it could not be ex- a bare plurality, but by a majority of two-thirds. ecuted, because Congress had assigned no tribu- In the general orders issued from the adjutantnal for enforcing that public law. No man general's office, at head-quarters, it is described can be executed in this free country without as a court-martial. The prisoners are said, in two things being shown—first, that the law con- those orders, to have been tried "on the followdemns him to death ; and, secondly, that his ing charges and specifications." The court undeath is pronounced by that tribunal which is derstood itself to be acting as a court-martial. authorized by the law to try him. These prin- It was so organized, it so proceeded, having a ciples will reach every man's case, native or judge advocate, hearing witnesses, and the foreign, citizen or alien. The instant quarters written defence of the miserable trembling are granted to a prisoner, the majesty of the prisoners, who seemed to have a presentiment law surrounds and sustains him, and he cannot of their doom. And the court was finally disbe lawfully punished with death without the solved. The whole proceeding manifestly shows, concurrence of the two circumstances just in- that all parties considered it as a court-martial, sisted upon. I deny that any commander-in-convened and acting under the rules and artichief, in this country, has this absolute power cles of war. In his letter to the Secretary of of life and death, at his sole discretion. It is War, noticing the transaction, the general says, contrary to the genius of all our laws and in- “ these individuals were tried under my orders, stitutions. To concentrate in the person of one legally convicted as exciters of this savage and individual the powers to make the rule, to negro war, legally condemned, and most justly judge and to execute the rule, or to judge and punished for their iniquities.” The Lord deliver execute the rule only, is utterly irreconcilable us from such legal conviction and such legal conwith every principle of free government, and is demnation! The general himself considered the very definition of tyranny itself; and I the laws of his country to have justified his trust that this House will never give even a proceedings. It is in vain then to talk of a powtacit assent to such a principle. Suppose the er in him beyond the law, and above the law, commander had made even reprisals on prop- when he himself does not assert it. Let it be erty, would that property have belonged to the conceded that he was clothed with absolute aunation, or could he have disposed of it as he thority over the lives of those individuals, and pleased? Had he more power, will gentlemen that, upon his own fiat, without trial, without tell me, over the lives of human beings than defence, he might have commanded their exeover property? The assertion of such a power cution. Now, if an absolute sovereign, in any to the commander-in-chief is contrary to the particular respect, promulgates a rule, which practice of the government.
he pledges himself to observe, if he subsequentBy an act of Congress which passed in 1799, ly deviates from that rule, he subjects himself vesting the power of retaliation in certain cases to the imputation of odious tyranny. If Genin the President of the United States—an act eral Jackson had the power, without a court, which passed during the quasi war with France to condemn these men, he had also the power to -the President is authorized to retaliate upon appoint a tribunal. He did appoint a tribunal, any of the citizens of the French republic, the and became, therefore, morally bound to obenormities which may be practised, in certain serve and execute the sentence of that tribunal. cases, upon our citizens. Under what adminis- In regard to Ambrister, it is with grief and tration was this act passed? It was under that pain I am compelled to say, that he was which has been justly charged with stretching executed in defiance of all law; in defiance the constitution to enlarge the executive pow of the law to which General Jackson had ers.
Even during the mad career of Mr. voluntarily, if you please, submitted himself Adams, when every means was resorted to for and given, by his appeal to the court, his imthe purpose of infusing vigor into the executive plied pledge to observe. I know but little of arm, no one thought of claiming for him the military law, and what has happened has cerinherent right of retaliation. I will not trou- tainly not created in me a taste for acquiring a ble the House with reading another law, which knowledge of more; but I believe there is no passed thirteen or fourteen years after, during example on record, where the sentence of the the late war with Great Britain, under the ad- court has been erased, and a sentence not proministration of that great constitutional presi- nounced by it carried into execution. It has dent,the father of the instrument itself, by which been suggested that the court had pronounced Mr. Madison was empowered to retaliate on two sentences, and the general had a right to the British in certain instances. It is not only select either. 'Two sentences! Two verdicts ! contrary to the genius of our institutions, and It was not so. The first being revoked, was as to the uniform practice of the government, but though it never had been pronounced. And it is contrary to the obvious principles on there remained only one sentence, which was which the general himself proceeded; for, in put aside upon the sole authority of the comforming the court, he evidently intended to 1 mander, and the execution of the prisoner or
dered. He either had or had not a right to mentons character, as it regards the distribudecide upon the fate of that man, with the in- tion of the powers of government. tervention of a court. If he had the right he Of all the powers conferred by the Constituwaived it, and having violated the sentence of tion of the United States, not one is more exthe court, there was brought upon the judicial pressly and exclusively granted, than that administration of the army a reproach, which which gives to Congress the power to declare must occasion the most lasting regret.
The immortal convention who formed However guilty these men were, they should that instrument, had abundant reason, drawn not have been condemned or executed with from every page of history, for confiding this out the authority of the law. I will not dwell, tremendous power to the deliberate judgment at this time, on the effect of these precedents of the representatives of the people. It was in foreign countries; but I shall not pass un- there seen, that nations are often precipitated noticed their dangerous influence in our own into ruinous war, from folly, from pride, from country. Bad examples are generally set in ambition, and from the desire of military fame. the cases of bad men, and often remote from the It was believed, no doubt, in committing this central government. It was in the provinces great subject to the legislature of the Union, we that were laid the abuses and the seeds of the should be safe from the mad wars that havo ambitious projects which overturned the liber- afflicted, and desolated, and ruined other counties of Rome. I beseech the committee not to tries. It was supposed, that before any war be so captivated with the charms of eloquence, was declared, the nature of the injury comand the appeals made to our passions and our plained of, would be carefully examined, and sympathies, as to forget the fundamental prin- the power and resources of the enemy esticiples of our government. The influence of mated, and the power and resources of our own bad example will often be felt, when its authors country, as well as the probable issue and conand all the circumstances connected with it are sequences of the war. It was to guard our no longer remembered. I know of but one country against precisely that species of rashanalogous instance of the execution of a pris- ness which has been manifested in Florida, that oner, and that has brought more odium than the constitution was so framed. If, then, this almost any other incident on the unhappy Em- power, thus cautiously and clearly bestowed peror of France. I allude to the instance of upon Congress, has been assumed and exercised the execution of the unfortunate member of by any other functionary of the government, it the Bourbon house. He sought an asylum in is cause of serious alarm, and it becomes this the territories of Baden. Bonaparte dispatch- body to vindicate and maintain its authority by ed a corps of gen-d'armes to the place of his all the means in its power ; and yet there are retreat, seized him, and brought him to the some gentlemen, who would have us not merely dungeons of Vincennes. He was there tried to yield a tame and silent acquiescence in the by a court-martial, condemned and shot. There, encroachment, but even to pass a vote of thanks as here, was a violation of neutral territory; to the author. there, the neutral ground was not stained with On the 25th of March, 1818, the President of the blood of him whom it should have protect the United States communicated a message to ed. And there is another most unfortunate Congress in relation to the Seminole war, in difference for the American people. The Duke which he declared, that although, in the prosed'Enghein was executed according to his sen-cution of it, orders had been given to pass into tence. It is said by the defenders of Napoleon, the Spanish territory, they were so guarded as that the duke had been machinating not merely that the local authorities of Spain should be reto overturn the French government, but against spected. How respected? The President, by the life of its chief. If that were true, he the documents accompanying the message, the might, if taken in France, have been legally ex- orders themselves which issued from the Deecuted. Such was the odium brought upon partment of War to the commanding general, the instruments of this transaction, that those had assured the legislature that, even if the persons who have been even suspected of par- enemy should take shelter under a Spanish ticipation in it, have sought to vindicate them fortress, the fortress was not to be attacked, but selves from what they appeared to have con- the fact to be reported to that department for sidered as an aspersion, before foreign courts. further orders. Congress saw, therefore, that In conclusion of this part of my subject, I most there was no danger of violating the existing cheerfully and entirely acquit General Jackson peace. And yet on the same 25th day of March of any intention to violate the laws of the (a most singular concurrence of dates), when country, or the obligations of humanity. I am the representatives of the people received this persuaded, from all that I have heard, that he solemn message, announced in the presence of considered himself as equally respecting and the nation and in the face of the world, and in observing both. With respect to the purity of the midst of a friendly negotiation with Spain, his intentions, therefore, I am disposed to allow does General Jackson write from his headit in the most extensive degree. Of his acts, quarters, that he shall take St. Marks as a necesit is my duty to speak, with the freedom which sary depot for his military operations! The belongs to my station. And I shall now pro- general states, in his letter, what he had heard ceed to consider some of them, of the most mo-l about the threat on the part of the Indians and