DEAR SIR:

Since the last war, after you sent word that we must quit the

war, we, the red people, have come over on this side. The white

people _have carried all the red people’s cattle off_. After the

war, I sent to all my people to let the white people alone, and

stay on this side of the river; and they did so; but the white

people _still continued to carry off their cattle_. Bernard’s

son was here, and I inquired of him what was to be done; and

he said we must go to the head man of the white people and

_complain_. I did so, and there was no head white man, and

_there was no law in this case_. The whites first began, and

there is nothing said about that; but great complaint _about

what the Indians do_. This is now three years since the white

people killed three Indians; since that time they have killed

_three other Indians_, and taken their horses, and what they

had; and this summer they killed _three more_; and very lately

they killed one more. We sent word to the white people that

these murders were done, and the answer was, that they were

people that were _outlaws_, and we ought to go and kill them.

The white people killed our people first; the Indians then took

satisfaction. There are yet three men that the red people have

never taken satisfaction for. You have wrote that there were

houses burnt; but we know of no such thing being done; the truth,

in such cases, ought to be told, but this appears otherwise.

On that side of the river, the white people have killed five

Indians, but there is nothing said about that; and all that the

Indians have done is brought up. _All the mischief the white

people have done, ought to be told to their head man._ When

there is any thing done, you write to us; but never write to

your head man what the white people do. When the red people send

talks, or write, they always send the truth. You have sent to us

for your horses, and we sent all that we could find; but there

were some dead. It appears that all the mischief is laid on this

town; but all the mischief that has been done by this town, is

two horses; one of them is dead, and the other was sent back.

The cattle that we are accused of taking, were cattle _that the

white people took from us_. Our young men went and brought them

back, with the same marks and brands. There were some of our

young men out hunting, and they were killed; others went to take

satisfaction, and the kettle of one of the men that was killed,

was found in the house where the woman and two children were

killed; and they supposed it had been her husband who had killed

the Indians, and took their satisfaction there. We are accused

of killing the Americans, and so on; but since the word was sent

to us that peace was made, we stay steady at home, _and meddle

with no person_. You have sent to us respecting the black people

on the Suwany river; we have nothing to do with them. They were

put there by the English, and to them you ought to apply for

any thing about them. We do not wish our country desolated by

an army passing through it, for the concern of other people. The

Indians have slaves there also; a great many of them. When we

have an opportunity, we shall apply to the English for them; but

we cannot get them now.

This is what we have to say at present.

Sir, I conclude by subscribing myself,

Your humble servant, &c.

September, the 11th day, 1817.

N. B. There are ten towns have read this letter, and this is the

answer.

_A true copy of the original._

WM. BELL, Aid-de-camp.

I should be very unwilling to assert, in regard to this war, that

the fault was on our side; I fear it was. I have heard that a very

respectable gentleman, now no more, who once filled the executive

chair of Georgia, and who, having been agent of Indian affairs in that

quarter, had the best opportunity of judging of the origin of this

war, deliberately pronounced it as his opinion, that the Indians were

not in fault. I am far from attributing to general Jackson any other

than the very slight degree of blame that attaches to him as the

negotiator of the treaty of Fort Jackson, and will be shared by those

who subsequently ratified and sanctioned that treaty. But if there be

even a doubt as to the origin of the war, whether we were censurable

or the Indians, that doubt will serve to increase our regret at any

distressing incidents which may have occurred, and to mitigate, in some

degree, the crimes which we impute to the other side. I know that when

general Jackson was summoned to the field, it was too late to hesitate;

the fatal blow had been struck, in the destruction of Fowl-town, and

the dreadful massacre of lieutenant Scott and his detachment; and the

only duty which remained to him, was to terminate this unhappy contest.

The first circumstance which, in the course of his performing that duty,

fixed our attention, has filled me with regret. It was the execution of

the Indian chiefs. How, I ask, did they come into our possession? Was

it in the course of fair, and open, and honorable war? No; but by means

of deception――by hoisting foreign colors on the staff from which the

stars and stripes should alone have floated. Thus ensnared, the Indians

were taken on shore; and without ceremony, and without delay, were hung.

Hang an Indian! We, sir, who are civilized, and can comprehend and feel

the effect of moral causes and considerations, attach ignominy to that

mode of death. And the gallant, and refined, and high-minded man, seeks

by all possible means to avoid it. But what cares an Indian whether you

hang or shoot him? The moment he is captured, he is considered by his

tribe as disgraced, if not lost. They, too, are indifferent about the

manner in which he is despatched. But I regard the occurrence with

grief, for other and higher considerations. It was the first instance

that I know of, in the annals of our country, in which retaliation,

by executing Indian captives, has ever been deliberately practiced.

There may have been exceptions, but if there are, they met with

contemporaneous condemnation, and have been reprehended by the just

pen of impartial history. The gentleman from Massachusetts may tell me,

if he chooses, what he pleases about the tomahawk and scalping knife;

about Indian enormities, and foreign miscreants and incendiaries.

I, too, hate them; from my very soul I abominate them. But I love

my country, and its constitution; I love liberty and safety, and

fear military despotism more, even, than I hate these monsters. The

gentleman, in the course of his remarks, alluded to the state from

which I have the honor to come. Little, sir, does he know of the high

and magnanimous sentiments of the people of that state, if he supposes

they will approve of the transaction to which he referred. Brave and

generous, humanity and clemency towards a fallen foe constitute one

of their noblest characteristics. Amidst all the struggles for that

fair land, between the natives and the present inhabitants, I defy the

gentleman to point out one instance, in which a Kentuckian has stained

his hand by――nothing but my high sense of the distinguished services

and exalted merits of general Jackson, prevents my using a different

term――the execution of an unarmed and prostrate captive. Yes, there

is one solitary exception, in which a man, enraged at beholding an

Indian prisoner who had been celebrated for his enormities, and who had

destroyed some of his kindred, plunged his sword into his bosom. The

wicked deed was considered as an abominable outrage when it occurred,

and the name of the man has been handed down to the execration of

posterity. I deny your right thus to retaliate on the aboriginal

proprietors of the country; and unless I am utterly deceived, it may

be shown that it does not exist. But before I attempt this, allow me

to make the gentleman from Massachusetts a little better acquainted

with those people, to whose feelings and sympathies he has appealed

through their representative. During the late war with Great Britain,

colonel Campbell, under the command of my honorable friend from Ohio

(general Harrison), was placed at the head of a detachment, consisting

chiefly, I believe, of Kentucky volunteers, in order to destroy the

Mississinaway towns. They proceeded and performed the duty, and took

some prisoners. And here is the evidence of the manner in which they

treated them.

‘But the character of this gallant detachment, exhibiting, as

it did, perseverance, fortitude, and bravery, would, however,

be incomplete, if, in the midst of victory, they had forgotten

the feelings of humanity. It is with the sincerest pleasure that

the general has heard, that the most punctual obedience was paid

to his orders, in not only saving all the women and children,

but in _sparing all the warriors who ceased to resist_: and that

even when vigorously attacked by the enemy, the claims of mercy

prevailed over every sense of their own danger, and this heroic

band _respected the lives of their prisoners_. Let an account of

murdered innocence be opened in the records of heaven, against

our enemies alone. The American soldier will follow the example

of his government, and the sword of the one will not be raised

against the fallen and the helpless, nor the gold of the other

be paid for scalps of a massacred enemy.’

I hope, sir, the honorable gentleman will now be able better to

appreciate the character and conduct of my gallant countrymen, than he

appears hitherto to have done.

But, sir, I have said that you have no right to practice, under color

of retaliation, enormities on the Indians. I will advance in support of

this position, as applicable to the origin of all law, the principle,

that whatever has been the custom, from the commencement of a subject,

whatever has been the uniform usage, coeval and coexistent with

the subject to which it relates, becomes its fixed law. Such is the

foundation of all common law; and such, I believe, is the principal

foundation of all public or international law. If, then, it can be

shown that from the first settlement of the colonies, on this part

of the American continent, to the present time, we have constantly

abstained from retaliating upon the Indians the excesses practiced

by them towards us, we are morally bound by this invariable usage,

and cannot lawfully change it without the most cogent reasons. So far

as my knowledge extends, from the first settlement at Plymouth or at

Jamestown, it has not been our practice to destroy Indian captives,

combatants or non-combatants. I know of but one deviation from the code

which regulates the warfare between civilized communities, and that was

the destruction of Indian towns, which was supposed to be authorized

upon the ground that we could not bring the war to a termination but

by destroying the means which nourished it. With this single exception,

the other principles of the laws of civilized nations are extended

to them, and are thus made law in regard to them. When did this

humane custom, by which, in consideration of their ignorance, and our

enlightened condition, the rigors of war were mitigated, begin? At a

time when we were weak, and they comparatively strong; when they were

the lords of the soil, and we were seeking, from the vices, from the

corruptions, from the religious intolerance, and from the oppressions

of Europe, to gain an asylum among them. And when is it proposed

to change this custom, to substitute for it the bloody maxims of

barbarous ages, and to interpolate the Indian public law with revolting

cruelties? At a time when the situation of the two parties is totally

changed――when we are powerful and they are weak――at a time when, to

use a figure drawn from their own sublime eloquence, the poor children

of the forest have been driven by the great wave which has flowed in

from the Atlantic ocean almost to the base of the Rocky mountains,

and, overwhelming them in its terrible progress, has left no other

remains of hundreds of tribes, now extinct, than those which indicate

the remote existence of their former companion, the mammoth of the new

world! Yes, sir, it is at this auspicious period of our country, when

we hold a proud and lofty station among the first nations of the world,

that we are called upon to sanction a departure from the established

laws and usages which have regulated our Indian hostilities. And does

the honorable gentleman from Massachusetts expect, in this august

body, this enlightened assembly of christians and Americans, by glowing

appeals to our passions, to make us forget our principles, our religion,

our clemency, and our humanity? Why is it that we have not practiced

towards the Indian tribes the right of retaliation, now for the first

time asserted in regard to them? It is because it is a principle

proclaimed by reason, and enforced by every respectable writer on the

law of nations, that retaliation is only justifiable as calculated to

produce _effect_ in the war. Vengeance is a new motive for resorting

to it. If retaliation will produce no effect on the enemy, we are bound

to abstain from it by every consideration of humanity and of justice.

Will it then produce effect on the Indian tribes? No; they care not

about the execution of those of their warriors who are taken captive.

They are considered as disgraced by the very circumstance of their

captivity, and it is often mercy to the unhappy captive to deprive him

of his existence. The poet evinced a profound knowledge of the Indian

character, when he put into the mouth of a son of a distinguished chief,

about to be led to the stake and tortured by his victorious enemy, the

words:

‘Begin, ye tormentors! your threats are in vain:

The son of Alknomook will never complain.’

Retaliation of Indian excesses, not producing then any effect in

preventing their repetition, is condemned by both reason and the

principles upon which alone, in any case, it can be justified. On this

branch of the subject much more might be said, but as I shall possibly

again allude to it, I will pass from it, for the present, to another

topic.

It is not necessary, for the purpose of my argument in regard to

the trial and execution of Arbuthnot and Ambrister, to insist on

the innocency of either of them. I will yield for the sake of that

argument, without inquiry, that both of them were guilty; that both had

instigated the war; and that one of them had led the enemy to battle.

It is possible, indeed, that a critical examination of the evidence

would show, particularly in the case of Arbuthnot, that the whole

amount of his crime consisted in his trading, without the limits

of the United States, with the Seminole Indians, in the accustomed

commodities which form the subject of Indian trade, and that he sought

to ingratiate himself with his customers by espousing their interests,

in regard to the provision of the treaty of Ghent, which he may have

honestly believed entitled them to the restoration of their lands.

And if, indeed, the treaty of Fort Jackson, for the reasons already

assigned, were not binding upon the Creeks, there would be but too much

cause to lament his unhappy if not unjust fate. The first impression

made, on the examination of the proceedings in the trial and execution

of those two men, is, that on the part of Ambrister there was the most

guilt, but, at the same time, the most irregularity. Conceding the

point of guilt of both, with the qualification which I have stated,

I will proceed to inquire, first, if their execution can be justified

upon the principles assumed by general Jackson himself. If they do

not afford a justification, I will next inquire, if there be any other

principles authorizing their execution; and I will in the third place

make some other observations upon the mode of proceeding.

The principle assumed by general Jackson, which may be found in his

general orders commanding the execution of these men, is, ‘that it is

an established principle of the law of nations, that any individual

of a nation making war against the citizens of any other nation, they

being at peace, forfeits his allegiance, and becomes an outlaw and a

pirate.’ Whatever may be the character of individuals waging private

war, the principle assumed is totally erroneous when applied to such

individuals associated with a power, whether Indian or civilized,

capable of ♦maintaining the relations of peace and war. Suppose,

however, the principle were true, as asserted, what disposition should

he have made of these men? What jurisdiction, and how acquired, has

the military over pirates, robbers, and outlaws? If they were in the

character imputed, they were alone amenable, and should have been

turned over, to the civil authority. But the principle, I repeat, is

totally incorrect, when applied to men in their situation. A foreigner

connecting himself with a belligerent, becomes an enemy of the party

to whom that belligerent is opposed, subject to whatever he may be

subject, entitled to whatever he is entitled. Arbuthnot and Ambrister,

by associating themselves, became identified with the Indians; they

became our enemies, and we had a right to treat them as we could

lawfully treat the Indians. These positions are so obviously correct,

that I shall consider it an abuse of the patience of the committee to

consume time in their proof. They are supported by the practice of all

nations, and of our own. Every page of history, in all times, and the

recollection of every member, furnish evidence of their truth. Let

us look for a moment into some of the consequences of this principle,

if it were to go to Europe, sanctioned by the approbation, express or

implied, of this house. We have now in our armies probably the subjects

of almost every European power. Some of the nations of Europe maintain

the doctrine of perpetual allegiance. Suppose Britain and America in

peace, and America and France at war. The former subjects of England,

naturalized and unnaturalized, are captured by the navy or army of

France. What is their condition? According to the principle of general

Jackson, they would be outlaws and pirates, and liable to immediate

execution. Are gentlemen prepared to return to their respective

districts with this doctrine in their mouths, and to say to their Irish,

English, Scotch, and other foreign constituents, that they are liable,

on the contingency supposed, to be treated as outlaws and pirates?

Is there any other principle which justifies the proceedings? On this

subject, if I admire the wonderful ingenuity with which gentlemen seek

a colorable pretext for those executions, I am at the same time shocked

at some of the principles advanced. What said the honorable gentlemen

from Massachusetts (Mr. Holmes), in a cold address to the committee?

Why, that these executions were only the wrong mode of doing a right

thing. A wrong mode of doing a right thing! In what code of public law;

in what system of ethics; nay, in what respectable novel; where, if

the gentleman were to take the range of the whole literature of the

world; will he find any sanction for a principle so monstrous? I will

illustrate its enormity by a single case. Suppose a man, being guilty

of robbery, is tried, condemned, and executed, for murder, upon an

indictment for that robbery merely. The judge is arraigned for having

executed, contrary to law, a human being, innocent at heart of the

crime for which he was sentenced. The judge has nothing to do, to

insure his own acquittal, but to urge the gentleman’s plea, that he

had done a right thing in a wrong way!

The principles which attached to the cases of Arbuthnot and Ambrister,

constituting them merely _participes_ in the war, supposing them to

have been combatants, which the former was not, he having been taken

in a Spanish fortress, without arms in his hands, all that we could

possibly have a right to do, was to apply to them the rules which we

had a right to enforce against the Indians. Their English character

was only merged in their Indian character. Now, if the law regulating

Indian hostilities be established by long and immemorial usage, that

we have no moral right to retaliate upon them, we consequently had

no right to retaliate upon Arbuthnot and Ambrister. Even if it were

admitted that, in regard to future wars, and to other foreigners, their

execution may have a good effect, it would not thence follow that you

had a right to execute them. It is not always just to do what may be

advantageous. And retaliation, during a war, must have relation to the

events of that war, and must, to be just, have an operation on that

war, and upon the individuals only who compose the belligerent party.

It becomes gentlemen, then, on the other side, to show, by some known,

certain, and recognised rule of public or municipal law, that the

execution of these men was justified. Where is it? I should be glad to

see it. We are told in a paper emanating from the department of state,

recently laid before this house, distinguished for the fervor of its

eloquence, and of which the honorable gentleman from Massachusetts has

supplied us in part with a second edition, in one respect agreeing with

the prototype――that they both ought to be inscribed to the American

public――we are justly told in that paper, that this is the _first_

instance of the execution of persons for the crime of instigating

Indians to war. Sir, there are two topics which, in Europe, are

constantly employed by the friends and minions of legitimacy against

our country. The one is an inordinate spirit of aggrandizement――of

coveting other people’s goods; the other is the treatment which we

extend to the Indians. Against both these charges, the public servants

who conducted at Ghent the negotiations with the British commissioners,

endeavored to vindicate our country, and I hope with some degree of

success. What will be the condition of future American negotiators,

when pressed upon this head, I know not, after the unhappy executions

on our southern border. The gentleman from Massachusetts seemed

yesterday to read, with a sort of triumph, the names of the

commissioners employed in the negotiation at Ghent. Will he excuse me

for saying, that I thought he pronounced, even with more complacency,

and with a more gracious smile, the first name in the commission, than

he emphasized that of the humble individual who addresses you?

[Mr. Holmes desired to explain.]

There is no occasion for explanation; I am perfectly satisfied.

[Mr. Holmes, however, proceeded to say that his intention was,

in pronouncing the gentleman’s name, to add to the respect due

to the negotiator that which was due to the speaker of this

house.]

To return to the case of Arbuthnot and Ambrister. Will the principle

of these men having been the instigators of the war, justify their

execution? It is a new one; there are no landmarks to guide us in

its adoption, or to prescribe limits in its application. If William

Pitt had been taken by the French army, during the late European war,

could France have justifiably executed him on the ground of his having

notoriously instigated the continental powers to war against France?

Would France, if she had stained her character by executing him,

have obtained the sanction of the world to the act, by appeals to

the passions and prejudices, by pointing to the cities sacked, the

countries laid waste, the human lives sacrificed in the wars which

he had kindled, and by exclaiming to the unfortunate captive, you,

miscreant, monster, have occasioned all these scenes of devastation and

blood? What has been the conduct even of England towards the greatest

instigator of all the wars of the present age? The condemnation of

that illustrious man to the rock of St. Helena, is a great blot on the

English name. And I repeat what I have before said, that if Chatham, or

Fox, or even William Pitt himself, had been prime minister in England,

Bonaparte had never been so condemned. On that transaction history will

one day pass its severe but just censure. Yes, although Napoleon had

desolated half Europe; although there was scarcely a power, however

humble, that escaped the mighty grasp of his ambition; although in the

course of his splendid career, he is charged with having committed the

greatest atrocities, disgraceful to himself and to human nature, yet

even his life has been spared. The allies would not, England would not,

execute him upon the ground of his being an instigator of wars.

The mode of the trial and sentencing these men was equally

objectionable with the principles on which it has been attempted to

prove a forfeiture of their lives. I know the laudable spirit which

prompted the ingenuity displayed in finding out a justification for

these proceedings. I wish most sincerely that I could reconcile them

to my conscience. It has been attempted to vindicate the general upon

grounds which I am persuaded he would himself disown. It has been

asserted, that he was guilty of a mistake in calling upon the court

to try them, and that he might have at once ordered their execution,

without that formality. I deny that there was any such absolute right

in the commander of any portion of our army. The right of retaliation

is an attribute of sovereignty. It is comprehended in the war-making

power that congress possesses. It belongs to this body not only to

declare war, but to raise armies, and to make rules and regulations

for their government. It is in vain for gentlemen to look to the law

of nations for instances in which retaliation is lawful. The laws of

nations merely lay down the _principle or rule_; it belongs to the

government to constitute the tribunal for applying that principle

or rule. There is, for example, no instance in which the death of

a captive is more certainly declared by the law of nations to be

justifiable, than in the case of spies. Congress has accordingly

provided, in the rules and articles of war, a tribunal for the trial

of spies, and consequently for the application of the principle of

the national law. The legislature has not left the power over spies

undefined, to the mere discretion of the commander-in-chief, or of

any subaltern officer in the army. For, if the doctrines now contended

for were true, they would apply to the commander of any corps, however

small, acting as a detachment. Suppose congress had not legislated

in the case of spies, what would have been their condition? It would

have been a _casus omissus_, and although the public law pronounced

their doom, it could not be executed, because congress had assigned

no tribunal for enforcing that public law. No man can be executed in

this free country without two things being shown――first, that the law

condemns him to death; and, secondly, that his death is pronounced

by that tribunal which is authorized by the law to try him. These

principles will reach every man’s case, native or foreign, citizen or

alien. The instant quarters are granted to a prisoner, the majesty of

the law surrounds and sustains him, and he cannot be lawfully punished

with death without the concurrence of the two circumstances just

insisted upon. I deny that any commander-in-chief, in this country, has

this absolute power of life and death, at his sole discretion. It is

contrary to the genius of all our laws and institutions. To concentrate

in the person of one individual the powers to make the rule, to judge

and to execute the rule, or to judge and execute the rule only, is

utterly irreconcilable with every principle of free government, and

is the very definition of tyranny itself; and I trust that this house

will never give even a tacit assent to such a principle. Suppose the

commander had made even reprisals on property, would that property

have belonged to the nation, or could he have disposed of it as he

pleased? Had he more power, will gentlemen tell me, over the lives of

human beings than over property? The assertion of such a power to the

commander-in-chief is contrary to the practice of the government. By an

act of congress which passed in 1799, vesting the power of retaliation

in certain cases in the president of the United States――an act which

passed during the _quasi_ war with France――the president is authorized

to retaliate upon any of the citizens of the French republic, the

enormities which may be practiced, in certain cases, upon our citizens.

Under what administration was this act passed? It was under that which

has been justly charged with stretching the constitution to enlarge

the executive powers. Even during the mad career of Mr. Adams, when

every means was resorted to for the purpose of infusing vigor into the

executive arm, no one thought of claiming for him the inherent right

of retaliation. I will not trouble the house with reading another law,

which passed thirteen or fourteen years after, during the late war with

Great Britain, under the administration of that great constitutional

president, the father of the instrument itself, by which Mr. Madison

was empowered to retaliate on the British in certain instances. It

is not only contrary to the genius of our institutions, and to the

uniform practice of the government, but it is contrary to the obvious

principles on which the general himself proceeded; for, in forming the

court, he evidently intended to proceed under the rules and articles of

war. The extreme number which they provide for is thirteen, precisely

that which is detailed in the present instance. The court proceeded

not by a bare plurality, but by a majority of two thirds. In the

general orders issued from the adjutant general’s office, at head

quarters, it is described as a _court-martial_. The prisoners are

said, in those orders, to have been _tried_, ‘on the following _charges

and specifications_.’ The court understood itself to be acting as a

court-martial. It was so organized, it so proceeded, having a judge

advocate, hearing witnesses, and the _written_ defence of the miserable

trembling prisoners, who seemed to have a presentiment of their doom.

And the court was finally dissolved. The whole proceeding manifestly

shows, that all parties considered it as a court-martial, convened

and acting under the rules and articles of war. In his letter to the

secretary of war, noticing the transaction, the general says, ‘these

individuals were tried under my orders, _legally_ convicted as exciters

of this savage and negro war, _legally_ condemned, and most justly

punished for their iniquities.’ The Lord deliver us from such legal

conviction, and such legal condemnation! The general himself considered

the laws of his country to have justified his proceedings. It is in

vain then to talk of a power in him beyond the law, and above the law,

when he himself does not assert it. Let it be conceded that he was

clothed with absolute authority over the lives of those individuals,

and that, upon his own fiat, without trial, without defence, he might

have commanded their execution. Now, if an absolute sovereign, in

any particular respect, promulgates a rule, which he pledges himself

to observe, if he subsequently deviates from that rule, he subjects

himself to the imputation of odious tyranny. If general Jackson had the

power, without a court, to condemn these men, he had also the power to

appoint a tribunal. He did appoint a tribunal, and became, therefore,

morally bound to observe and execute the sentence of that tribunal. In

regard to Ambrister, it is with grief and pain I am compelled to say,

that he was executed in defiance of all law; in defiance of the law to

which general Jackson had voluntarily, if you please, submitted himself,

and given, by his appeal to the court, his implied pledge to observe.

I know but little of military law, and what has happened, has certainly

not created in me a taste for acquiring a knowledge of more; but I

believe there is no example on record, where the sentence of the court

has been erased, and a sentence not pronounced by it carried into

execution. It has been suggested that the court had pronounced two

sentences, and that the general had a right to select either. Two

sentences! Two verdicts! It was not so. The first being revoked, was

as though it had never been pronounced. And there remained only one

sentence, which was put aside upon the sole authority of the commander,

and the execution of the prisoner ordered. He either had or had not

a right to decide upon the fate of that man, with the intervention

of a court. If he had the right, he waived it, and having violated

the sentence of the court, there was brought upon the judicial

administration of the army a reproach, which must occasion the most

lasting regret.

However guilty these men were, they should not have been condemned or

executed without the authority of the law. I will not dwell, at this

time, on the effect of these precedents in foreign countries; but I

shall not pass unnoticed their dangerous influence in our own country.

Bad examples are generally set in the cases of bad men, and often

remote from the central government. It was in the provinces that

were laid the abuses and the seeds of the ambitious projects which

overturned the liberties of Rome. I beseech the committee not to be so

captivated with the charms of eloquence, and the appeals made to our

passions and our sympathies, as to forget the fundamental principles of

our government. The influence of a bad example will often be felt, when

its authors and all the circumstances connected with it are no longer

remembered. I know of but one analogous instance of the execution

of a prisoner, and that has brought more odium than almost any other

incident on the unhappy emperor of France. I allude to the instance of

the execution of the unfortunate member of the Bourbon house. He sought

an asylum in the territories of Baden. Bonaparte despatched a corps

of gen-d’armes to the place of his retreat, seized him, and brought

him to the dungeons of Vincennes. He was there tried by a court-martial,

condemned, and shot. There, as here, was a violation of neutral

territory; there, the neutral ground was not stained with the blood

of him whom it should have protected. And there is another most

unfortunate difference for the American people. The duke d’Enghein was

executed _according to his sentence_. It is said by the defenders of

Napoleon, that the duke had been machinating not merely to overturn

the French government, but against the life of its chief. If that were

true, he might, if taken in France, have been legally executed. Such

was the odium brought upon the instruments of this transaction, that

those persons who have been even suspected of participation in it, have

sought to vindicate themselves from what they appear to have considered

as an aspersion, before foreign courts. In conclusion of this part of

my subject, I most cheerfully and entirely acquit general Jackson of

any intention to violate the laws of the country, or the obligations

of humanity. I am persuaded, from all that I have heard, that he

considered himself as equally respecting and observing both. With

respect to the purity of his intentions, therefore, I am disposed to

allow it in the most extensive degree. Of his _acts_, it is my duty to

speak, with the freedom which belongs to my station. And I shall now

proceed to consider some of them, of the most momentous character, as

it regards the distribution of the powers of government.

Of all the powers conferred by the constitution of the United States,

not one is more expressly and exclusively granted, than that which

gives to congress the power to declare war. The immortal convention who

formed that instrument, had abundant reason, drawn from every page of

history, for confiding this tremendous power to the deliberate judgment

of the representatives of the people. It was there seen, that nations

are often precipitated into ruinous war, from folly, from pride, from

ambition, and from the desire of military fame. It was believed, no

doubt, in committing this great subject to the legislature of the union,

we should be safe from the mad wars that have afflicted, and desolated,

and ruined other countries. It was supposed, that before any war was

declared, the nature of the injury complained of, would be carefully

examined, and the power and resources of the enemy estimated, and

the power and resources of our own country, as well as the probable

issue and consequences of the war. It was to guard our country against

precisely that species of rashness which has been manifested in

Florida, that the constitution was so framed. If, then, this power,

thus cautiously and clearly bestowed upon congress, has been assumed

and exercised by any other functionary of the government, it is cause

of serious alarm, and it becomes this body to vindicate and maintain

its authority by all the means in its power; and yet there are some

gentlemen, who would have us not merely to yield a tame and silent

acquiescence in the encroachment, but even to pass a vote of thanks

to the author.

On the twenty-fifth of March, 1818, the president of the United States

communicated a message to congress in relation to the Seminole war, in

which he declared, that although, in the prosecution of it, orders had

been given to pass into the Spanish territory, they were so guarded as

that the local authorities of Spain should be respected. How respected?

The president, by the documents accompanying the message, the orders

themselves which issued from the department of war to the commanding

general, had assured the legislature that, even if the enemy should

take shelter under a Spanish fortress, the fortress was not to be

attacked, but the fact to be reported to that department for further

orders. Congress saw, therefore, that there was no danger of violating

the existing peace. And yet, on the same twenty-fifth day of March,

(a most singular concurrence of dates,) when the representatives of

the people received this solemn message, announced in the presence

of the nation and in the face of the world, and in the midst of a

friendly negotiation with Spain, does general Jackson write from his

head-quarters, that he shall take St. Marks as a necessary depot for

his military operations! The general states, in his letter, what he

had heard about the threat on the part of the Indians and negroes, to

occupy the fort, and declares his purpose to possess himself of it,

in either of the two contingences, of its being in their hands, or

in the hands of the Spaniards. He assumed a right to judge what Spain

was bound to do by her treaty, and judged very correctly; but then he

also assumed the power, belonging to congress alone, of determining

what should be the effect and consequence of her breach of engagement.

General Jackson generally performs what he intimates his intention to

do. Accordingly, finding St. Marks yet in the hands of the Spaniards,

he seized and occupied it. Was ever, I ask, the just confidence of

the legislative body, in the assurances of the chief magistrate,

more abused? The Spanish commander intimated his willingness that

the American army should take post near him, until he could have

instructions from his superior officer, and promised to maintain,

in the mean time, the most friendly relations. No! St. Marks was a

convenient post for the American army, and delay was inadmissible.

I have always understood that the Indians but rarely take or defend

fortresses, because they are unskilled in the modes of attack and

defence. The threat, therefore, on their part, to seize on St. Marks,

must have been empty, and would probably have been impossible. At

all events, when general Jackson arrived there, no danger any longer

threatened the Spaniards, from the miserable fugitive Indians, who

fled on all sides, upon his approach. And, sir, upon what plea is

this violation of orders, and this act of war upon a foreign power,

attempted to be justified? Upon the grounds of the conveniency of the

depôt and the Indian threat. The first I will not seriously examine and

expose. If the Spanish character of the fort had been totally merged in

the Indian character, it might have been justifiable to seize it. But

that was not the fact; and the bare possibility of its being forcibly

taken by the Indians, could not justify our anticipating their blow.

Of all the odious transactions which occurred during the late war

between France and England, none was more condemned in Europe and in

this country, than her seizure of the fleet of Denmark, at Copenhagen.

And I lament to be obliged to notice the analogy which exists in the

defences made of the two cases. If my recollection does not deceive me,

Bonaparte had passed the Rhine and the Alps, had conquered Italy, the

Netherlands, Holland, Hanover, Lubec, and Hamburg, and extended his

empire as far as Altona, on the side of Denmark. A few days’ march

would have carried him through Holstein, over the two Belts, through

Funen, and into the island of Zealand. What then was the conduct of

England? It was my lot to fall into conversation with an intelligent

Englishman on this subject. ‘We knew (said he) that we were fighting

for our existence. It was absolutely necessary that we should preserve

the command of the seas. If the fleet of Denmark fell into the enemy’s

hands, combined with his other fleets, that command might be rendered

doubtful. Denmark had only a nominal independence. She was, in truth,

subject to his sway. We said to her, give us your fleet; it will

otherwise be taken possession of by your secret and our open enemy. We

will preserve it, and restore it to you whenever the danger shall be

over. Denmark refused. Copenhagen was bombarded, gallantly defended,

but the fleet was seized. Everywhere the conduct of England was

censured; and the name even of the negotiator who was employed by her,

who was subsequently the minister near this government, was scarcely

ever pronounced here without coupling with it an epithet, indicating

his participation in the disgraceful transaction. And yet we are

going to sanction acts of violence, committed by ourselves, which but

too much resemble it! What an important difference, too, between the

relative condition of England and of this country! She, perhaps, was

struggling for her existence. She was combating, single-handed, the

most enormous military power that the world has ever known. With whom

were we contending? With a few half-starved, half-clothed, wretched

Indians, and fugitive slaves. And, whilst carrying on this inglorious

war, inglorious as it regards the laurels or renown won in it, we

violate neutral rights, which the government had solemnly pledged

itself to respect, upon the principle of convenience, or upon the

light presumption that, by possibility, a post might be taken by this

miserable combination of Indians and slaves.

On the eighth of April, the general writes from St. Marks, that he

shall march for the Suwaney river; the destroying of the establishments

on which will, in his opinion, bring the war to a close. Accordingly,

having effected that object, he writes, on the twentieth of April,

that he believes he may say that the war is at an end for the present.

He repeats the same opinion in his letter to the secretary of war,

written six days after. The war being thus ended, it might have been

hoped that no further hostilities would be committed. But on the

twenty-third of May, on his way home, he receives a letter from the

commandant of Pensacola, intimating his surprise at the invasion of the

Spanish territory, and the acts of hostility performed by the American

army, and his determination, if persisted in, to employ force to repel

them. Let us pause and examine the proceeding of the governor, so

very hostile and affrontive in the view of general Jackson. Recollect

that he was governor of Florida; that he had received no orders from

his superiors, to allow a passage to the American army; that he had

heard of the reduction of St. Marks; and that general Jackson, at

the head of his army, was approaching in the direction of Pensacola.

He had seen the president’s message of the twenty-fifth of March,

and reminded general Jackson of it, to satisfy him that the American

government could not have authorized all those measures. I cannot read

the allusion made by the governor to that message, without feeling that

the charge of insincerity, which it implied, had at least but too much

the appearance of truth in it. Could the governor have done less than

write some such letter? We have only to reverse situations, and to

suppose him to have been an American governor. General Jackson says,

that when he received that letter, he no longer hesitated. No, sir,

he did no longer hesitate. He received it on the twenty-third, he was

in Pensacola on the twenty-fourth, and immediately after set himself

before the fortress of San Carlos de Barancas, which he shortly reduced.

_Veni, vidi, vici._ Wonderful energy! Admirable promptitude! Alas,

that it had not been an energy and a promptitude within the pale of the

constitution, and according to the orders of the chief magistrate. It

is impossible to give any definition of war, that would not comprehend

these acts. It was open, undisguised, and unauthorized hostility.

The honorable gentleman from Massachusetts has endeavored to derive

some authority to general Jackson from the message of the president,

and the letter of the secretary of war to governor Bibb. The message

declares, that the Spanish authorities are to be respected wherever

maintained. What the president means by their being maintained, is

explained in the orders themselves, by the extreme case being put of

the enemy seeking shelter under a Spanish fort. If even in that case he

was not to attack, certainly he was not to attack in any case of less

strength. The letter to governor Bibb admits of a similar explanation.

When the secretary says, in that letter, that general Jackson is fully

empowered to bring the Seminole war to a conclusion, he means that he

is so empowered by his orders, which, being now before us, must speak

for themselves. It does not appear that general Jackson ever saw that

letter, which was dated at this place after the capture of St. Marks.

I will take a momentary glance at the orders. On the second of December,

1817, general Gaines was forbidden to cross the Florida line. Seven

days after, the secretary of war having arrived here, and infused a

little more energy into our councils, he was authorized to use a sound

discretion in crossing or not. On the sixteenth, he was instructed

again to consider himself at liberty to cross the line, and pursue the

enemy; but, _if he took refuge under a Spanish fortress, the fact was

to be reported to the department of war_. These orders were transmitted

to general Jackson, and constituted, or ought to have constituted, his

guide. There was then no justification for the occupation of Pensacola,

and the attack on the Barancas, in the message of the president, the

letter to governor Bibb, or in the orders themselves. The gentleman

from Massachusetts will pardon me for saying, that he has undertaken

what even his talents are not competent to――the maintenance of directly

contradictory propositions, that it was right in general Jackson to

take Pensacola, and wrong in the president to keep it. The gentleman

has made a greater mistake than he supposes general Jackson to have

done in attacking Pensacola for an Indian town, by attempting the

defence both of the president and general Jackson. If it were right

in him to seize the place, it is impossible that it should have been

right in the president immediately to surrender it. We, sir, are the

supporters of the president. We regret that we cannot support general

Jackson also. The gentleman’s liberality is more comprehensive than

ours. I approve with all my heart of the restoration of Pensacola.

I think St. Marks ought, perhaps, to have been also restored; but

I say this with doubt and diffidence. That the president thought the

seizure of the Spanish posts was an act of war, is manifest from his

opening message, in which he says that, to have retained them, would

have changed our relations with Spain, to do which the power of the

executive was incompetent, congress alone possessing it. The president

has, in this instance, deserved well of his country. He has taken

the only course which he could have pursued, consistent with the

constitution of the land. And I defy the gentleman to make good both

his positions, that the general was right in taking, and the president

right in giving up, the posts.

[Mr. Holmes explained. We took these posts, he said, to keep

them from the hands of the enemy, and, in restoring them, made

it a condition that Spain should not let our enemy have them.

We said to her, here is your dagger; we found it in the hands of

our enemy, and, having wrested it from him, we restore it to you

in the hope that you will take better care of it for the future.]

The gentleman from Massachusetts is truly unfortunate; fact or

principle is always against him. The Spanish posts were not in the

possession of the enemy. One old Indian only was found in the Barancas,

none in Pensacola, none in St. Marks. There was not even the color of

a threat of Indian occupation as it regards Pensacola and the Barancas.

Pensacola was to be restored unconditionally, and might, therefore,

immediately have come into the possession of the Indians, if they had

the power and the will to take it. The gentleman is in a dilemma from

which there is no escape. He gave up general Jackson when he supported

the president, and gave up the president when he supported general

Jackson. I rejoice to have seen the president manifesting, by the

restoration of Pensacola, his devotedness to the constitution. When the

whole country was ringing with plaudits for its capture, I said, and I

said alone, in the limited circle in which I moved, that the president

must surrender it; that he could not hold it. It is not my intention

to inquire, whether the army was or was not constitutionally marched

into Florida. It is not a clear question, and I am inclined to think

that the express authority of congress ought to have been asked. The

gentleman from Massachusetts will allow me to refer to a part of the

correspondence at Ghent different from that which he has quoted. He

will find the condition of the Indians there accurately defined. And

it is widely variant from the gentleman’s ideas on this subject. The

Indians, inhabiting the United States, according to the statement of

the American commissioners at Ghent, have a qualified sovereignty only,

the supreme sovereignty residing in the government of the United States.

They live under their own laws and customs, may inhabit and hunt their

lands; but acknowledge the protection of the United States, and have

no right to sell their lands but to the government of the United

States. Foreign powers or foreign subjects have no right to maintain

any intercourse with them, without our permission. They are not,

therefore, independent nations, as the gentleman supposes. Maintaining

the relation described with them, we must allow a similar relation to

exist between Spain and the Indians residing within her dominions. She

must be, therefore, regarded as the sovereign of Florida, and we are,

accordingly, treating with her for the purchase of it. In strictness,

then, we ought first to have demanded of her to restrain the Indians,

and, that failing, we should have demanded a right of passage for our

army. But, if the president had the power to march an army into Florida,

without consulting Spain, and without the authority of congress, he

had no power to authorize any act of hostility against her. If the

gentleman had even succeeded in showing that an authority was conveyed

by the executive to general Jackson to take the Spanish posts, he would

only have established that unconstitutional orders had been given, and

thereby transferred the disapprobation from the military officer to

the executive. But no such orders were, in truth, given. The president

acted in conformity to the constitution, when he forbade the attack of

a Spanish fort, and when, in the same spirit, he surrendered the posts

themselves.

I will not trespass much longer upon the time of the committee; but

I trust I shall be indulged with some few reflections upon the danger

of permitting the conduct on which it has been my painful duty to

animadvert, to pass without a solemn expression of the disapprobation

of this house. Recall to your recollection the free nations which have

gone before us. Where are they now?

‘Gone glimmering through the dream of things that were,

A school-boy’s tale, the wonder of an hour.’

And how have they lost their liberties? If we could transport

ourselves back to the ages when Greece and Rome flourished in their

greatest prosperity, and, mingling in the throng, should ask a Grecian

if he did not fear that some daring military chieftain, covered with

glory, some Philip or Alexander, would one day overthrow the liberties

of his country, the confident and indignant Grecian would exclaim,

no! no! we have nothing to fear from our heroes; our liberties will

be eternal. If a Roman citizen had been asked, if he did not fear that

the conqueror of Gaul might establish a throne upon the ruins of public

liberty, he would have instantly repelled the unjust insinuation. Yet

Greece fell; Cæsar passed the Rubicon, and the patriotic arm even of

Brutus could not preserve the liberties of his devoted country! The

celebrated Madame de Stael, in her last and perhaps her best work, has

said, that in the very year, almost the very month, when the president

of the directory declared that monarchy would never more show its

frightful head in France, Bonaparte, with his grenadiers, entered the

palace of St. Cloud, and dispersing, with the bayonet, the deputies

of the people, deliberating on the affairs of the state, laid the

foundation of that vast fabric of despotism which overshadowed all

Europe. I hope not to be misunderstood; I am far from intimating that

general Jackson cherishes any designs inimical to the liberties of the

country. I believe his intentions to be pure and patriotic. I thank

God that he would not, but I thank him still more that he could not

if he would, overturn the liberties of the republic. But precedents,

if bad, are fraught with the most dangerous consequences. Man has

been described, by some of those who have treated of his nature,

as a bundle of habits. The definition is much truer when applied

to governments. Precedents are their habits. There is one important

difference between the formation of habits by an individual and by

governments. He contracts it only after frequent repetition. A single

instance fixes the habit and determines the direction of governments.

Against the alarming doctrine of unlimited discretion in our military

commanders when applied even to prisoners of war, I must enter my

protest. It begins upon them; it will end on us. I hope our happy

form of government is to be perpetual. But, if it is to be preserved,

it must be by the practice of virtue, by justice, by moderation, by

magnanimity, by greatness of soul, by keeping a watchful and steady eye

on the executive; and, above all, by holding to a strict accountability

the military branch of the public force.

We are fighting a great moral battle, for the benefit not only of

our country, but of all mankind. The eyes of the whole world are

in fixed attention upon us. One, and the largest portion of it, is

gazing with contempt, with jealousy, and with envy; the other portion,

with hope, with confidence, and with affection. Everywhere the black

cloud of legitimacy is suspended over the world, save only one bright

spot, which breaks out from the political hemisphere of the west, to

enlighten, and animate, and gladden the human heart. Obscure that,

by the downfall of liberty here, and all mankind are enshrouded in

a pall of universal darkness. To you, Mr. Chairman, belongs the high

privilege of transmitting, unimpaired, to posterity, the fair character

and liberty of our country. Do you expect to execute this high trust,

by trampling, or suffering to be trampled down, law, justice, the

constitution, and the rights of the people? by exhibiting examples of

inhumanity, and cruelty, and ambition? When the minions of despotism

heard, in Europe, of the seizure of Pensacola, how did they chuckle,

and chide the admirers of our institutions, tauntingly pointing to the

demonstration of a spirit of injustice and aggrandizement made by our

country, in the midst of an amicable negotiation. Behold, said they,

the conduct of those who are constantly reproaching kings. You saw

how those admirers were astounded and hung their heads. You saw, too,

when that illustrious man, who presides over us, adopted his pacific,

moderate, and just course, how they once more lifted up their heads

with exultation and delight beaming in their countenances. And you saw

how those minions themselves were finally compelled to unite in the

general praises bestowed upon our government. Beware how you forfeit

this exalted character. Beware how you give a fatal sanction, in this

infant period of our republic, scarcely yet two score years old, to

military insubordination. Remember that Greece had her Alexander, Rome

her Cæsar, England her Cromwell, France her Bonaparte, and that if we

would escape the rock on which they split, we must avoid their errors.

How different has been the treatment of general Jackson, and that

modest, but heroic young man, a native of one of the smallest states

in the union, who achieved for his country, on lake Erie, one of the

most glorious victories of the late war. In a moment of passion, he

forgot himself, and offered an act of violence which was repented

of as soon as perpetrated. He was tried, and suffered the judgment

to be pronounced by his peers. Public justice was thought not even

then to be satisfied. The press and congress took up the subject.

My honorable friend from Virginia (Mr. Johnson), the faithful and

consistent sentinel of the law and of the constitution, disapproved

in that instance, as he does in this, and moved an inquiry. The public

mind remained agitated and unappeased, until the recent atonement

so honorably made by the gallant commodore. And is there to be a

distinction between the officers of the two branches of the public

service? Are former services, however eminent, to preclude even

inquiry into recent misconduct? Is there to be no limit, no prudential

bounds to the national gratitude? I am not disposed to censure

the president for not ordering a court of inquiry, or a general

court-martial. Perhaps, impelled by a sense of gratitude, he determined,

by anticipation, to extend to the general that pardon which he had

the undoubted right to grant after sentence. Let us not shrink from

our duty. Let us assert our constitutional powers, and vindicate the

instrument from military violation.

I hope gentlemen will deliberately survey the awful isthmus on which

we stand. They may bear down all opposition; they may even vote the

general the public thanks; they may carry him triumphantly through this

house. But, if they do, in my humble judgment, it will be a triumph

of the principle of insubordination, a triumph of the military over

the civil authority, a triumph over the powers of this house, a triumph

over the constitution of the land. And I pray most devoutly to Heaven,

that it may not prove, in its ultimate effects and consequences, a

triumph over the liberties of the people.

A Biography of Henry Clay, the Senator from Kentucky Containing Also, a Complete Report of All His Speeches; Selections From His Private Correspondence; Eulogies in the Senate and House; and a Poem, by George D. Prentice, Esq. · 第 64 / 250 题