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.