ON THE SEMINOLE WAR.

ON THE SEMINOLE WAR.IN THE HOUSE OF REPRESENTATIVES, JANUARY 17, 1819.[THESeminoles were a tribe of Indians inhabiting Florida, and parts of the adjacent country. During the war between the United States and Great Britain, from 1812 to 1815, the Seminoles and Creek Indians made attacks upon our frontier settlements in the southwest, and in consequence, general Andrew Jackson, then a major-general of militia in Tennessee, was sent against them, at the head of a considerable force, by which, after a sanguinary contest, the Indians were subdued, and a treaty concluded with the Creek nation, in 1814. After the peace of 1815, the Seminoles, being sheltered in Florida, at that time a Spanish province, made frequent depredations upon the people of the United States. In December, 1817, the department of war ordered general Jackson, who in 1814 was appointed a major-general in the United States army, to assume the command of the forces in the southwest, and march against the Indians; also to adopt the necessary measures to terminate a conflict which has since been called ‘the Seminole war.’ In the early part of 1818, general Jackson took command of an army of regulars, militia, and friendly Creeks, and pursued the Seminoles into Florida, destroying their towns, and killing and capturing many Indians and run-a-way negroes. He also took possession of the Spanish fortresses ofSt.Marks, Pensacola, and the Barancas, during a period of peace between Spain and the United States. Two Indian traders, Arbuthnot, a Scotchman, and Ambrister, an Englishman, were taken prisoners, (being found among the Indians and Spaniards,) tried by a court martial, and executed by order of general Jackson. Two Indian chiefs, who were captured, were also put to death by his order, and sundry other cruel and high-handed acts committed, to which the attention of congress was called, at the session of 1818–19.The subject having been referred to the committee on military affairs, that committee brought in a report, concluding with the following resolution: ‘Resolved, that the house of representatives disapproves the proceedings in the trial and execution of Alexander Arbuthnot and Robert C. Ambrister.’ To this resolution,Mr.Cobb, of Georgia, moved to add others, disapproving of the execution of Indian captives, and declaring that the seizure of the Spanish posts was contrary to the constitution, and so forth. The discussion on these resolutions caused one of the most exciting and interesting debates ever known in congress. Thirty-one of the most distinguished members of the house participated in the debate, which was opened on the eighteenth of January, in committee of the whole, and concluded on the tenth of February, when the question on the resolutions was taken, and decided in the negative, by majorities varying from thirty to forty-six, in a house of one hundred and seventy members present. General Jackson, besides his own popularity, as the victor of New Orleans, had the advantage of being sustained by the influence and power ofMr.Monroe’s administration, the president being considered as implicated with him in some of his transactions in Florida, by having sanctioned the same. Among those who coincided withMr.Clay, in condemning these proceedings, wereMessrs.Cobb, of Georgia, Storrs, of New York, Colston, J. Johnson, T. M. Nelson, and Mercer, of Virginia, Hopkinson, of Pennsylvania, Williams, of Connecticut, Harrison, of Ohio, Tyler, of Virginia, (the two latter since presidents of the United States,) Lowndes, of South Carolina, and Reed, of Maryland; while, on the other side,Messrs.Holmes, of Massachusetts, Tallmadge, of New York, P. P. Barbour, and Floyd, of Virginia, Baldwin, of Pennsylvania, R. M. Johnson, of Kentucky, and others, made able speeches in support of the administration, and general Jackson’s military course in this campaign.Mr.Clay twice addressed the committee of the whole on the subject; the first speech only, is reported at length, as follows.]MR.CHAIRMAN:INrising to address you, sir, on the very interesting subject which now engages the attention of congress, I must be allowed to say, that all inferences drawn from the course which it will be my painful duty to take in this discussion, of unfriendliness either to the chief magistrate of the country, or to the illustrious military chieftain whose operations are under investigation, will be wholly unfounded. Towards that distinguished captain, who shed so much glory on our country, whose renown constitutes so great a portion of its moral property, I never had, I never can have, any other feelings than those of the most profound respect, and of the utmost kindness. With him my acquaintance is very limited, but, so far as it has extended, it has been of the most amicable kind. I know the motives which have been, and which will again be, attributed to me, in regard to the other exalted personage alluded to. They have been and will be unfounded. I have no interest, other than that of seeing the concerns of my country well and happily administered. It is infinitely more gratifying to behold the prosperity of my country advancing by the wisdom of the measures adopted to promote it, than it would be to expose the errors which may be committed, if there be any, in the conduct of its affairs. Little as has been my experience in public life, it has been sufficient to teach me that the most humble station is surrounded by difficulties and embarrassments. Rather than throw obstructions in the way of the president, I would precede him, and pick out those, if I could, which might jostle him in his progress; I would sympathize with him in his embarrassments, and commiserate with him in his misfortunes. It is true that it has been my mortification to differ from that gentleman on several occasions. I may be again reluctantly compelled to differ from him; but I will with the utmost sincerity, assure the committee, that I have formed no resolution, come under no engagements, and that I never will form any resolution, or contract any engagements, for systematic opposition to his administration, or to that of any other chief magistrate.I beg leave further to premise, that the subject under consideration, presents two distinct aspects, susceptible, in my judgment, of the most clear and precise discrimination. The one I will call its foreign, the other its domestic aspect. In regard to the first, I will say, that I approve entirely of the conduct of our government, and that Spain has no cause of complaint. Having violated an important stipulation of the treaty of 1795, that power has justly subjected herself to all the consequences which ensued upon the entry into her dominions, and it belongs not to her to complain of those measures which resulted from her breach of contract; stillless has she a right to examine into the considerations connected with the domestic aspect of the subject.What are the propositions before the committee? The first in order, is that reported by the military committee, which asserts the disapprobation of this house, of the proceedings in the trial and execution of Arbuthnot and Ambrister. The second, being the first contained in the proposed amendment, is the consequence of that disapprobation, and contemplates the passage of a law to prohibit the execution hereafter of any captive, taken by the army, without the approbation of the president. The third proposition is, that this house disapproves of the forcible seizure of the Spanish posts, as contrary to orders, and in violation of the constitution. The fourth proposition, as the result of the last, is, that a law shall pass to prohibit the march of the army of the United States, or any corps of it, into any foreign territory, without the previous authorization of congress, except it be in fresh pursuit of a defeated enemy. The first and third are general propositions, declaring the sense of the house in regard to the evils pointed out; and the second and fourth, propose the legislative remedies against the recurrence of those evils.It will be at once perceived, by this simple statement of the propositions, that no other censure is proposed against general Jackson himself, than what is merely consequential. His name even does not appear in any of the resolutions. The legislature of the country, in reviewing the state of the union, and considering the events which have transpired since its last meeting, finds that particular occurrences, of the greatest moment, in many respects, have taken place near our southern border. I will add, that the house has not sought, by any officious interference with the doings of the executive, to gain jurisdiction over this matter. The president, in his message at the opening of the session, communicated the very information on which it was proposed to act. I would ask, for what purpose? That we should fold our arms and yield a tacit acquiescence, even if we supposed that information disclosed alarming events, not merely as it regards the peace of the country, but in respect to its constitution and character? Impossible. In communicating these papers, and voluntarily calling the attention of congress to the subject, the president must himself have intended, that we should apply any remedy that we might be able to devise. Having the subject thus regularly and fairly before us, and proposing merely to collect the sense of the house upon certain important transactions which it discloses, with the view to the passage of such laws as may be demanded by the public interest, I repeat, that there is no censure any where, except such as is strictly consequential upon our legislative action. The supposition of every new law, having for its object to prevent the recurrence of evil, is, that something has happened which oughtnot to have taken place, and no other than this indirect sort of censure will flow from the resolutions before the committee.Having thus given my view of the nature and character of the propositions under consideration, I am far from intimating that it is not my purpose to go into a full, a free, and a thorough investigation of the facts, and of the principles of law, public, municipal, and constitutional, involved in them. And, whilst I trust I shall speak with the decorum due to the distinguished officers of the government whose proceedings are to be examined, I shall exercise the independence which belongs to me as a representative of the people, in freely and fully submitting my sentiments.In noticing the painful incidents of this war, it is impossible not to inquire into its origin. I fear that it will be found to be the famous treaty of Fort Jackson, concluded in August, 1814; and I must ask the indulgence of the chairman while I read certain parts of that treaty.‘Whereasan unprovoked, inhuman, and sanguinary war, waged by the hostile Creeks against the United States, hath been repelled, prosecuted, and determined, successfully on the part of the said states, in conformity with principles of national justice and honorable warfare: andwhereasconsideration is due to the rectitude of proceedings dictated by instructions relating to the reëstablishing of peace: Be it remembered, that, prior to the conquest of that part of the Creek nation hostile to the United States, numberless aggressions had been committed against the peace, the property, and the lives of citizens of the United States, and those of the Creek nation in amity with her, at the mouth of Duck river, Fort Mimms, and elsewhere, contrary to national faith, and the regard due to an article of the treaty concluded at New York, in the year 1790, between the two nations; that the United States, previous to the perpetration of such outrages, did, in order to insure future amity and concord between the Creek nation and the said states, in conformity with the stipulations of former treaties, fulfil, with punctuality and good faith, her engagements to the said nation; that more than two thirds of the whole number of chiefs and warriors of the Creek nation, disregarding the genuine spirit of existing treaties, suffered themselves to be instigated to violations of their national honor, and the respect due to a part of their own nation, faithful to the United States, and the principles of humanity, by impostors, denominating themselves prophets, and by the duplicity and misrepresentations of foreign emissaries, whose governments are at war, open or understood, with the United States.Article 2. The United States will guaranty to the Creek nation the integrity of all their territory eastwardly and northwardly of the said line, (described in the first article,) to be run and described as mentioned in the first article.Article 3. The United Statesdemandthat the Creek nation abandon all communication, and cease to hold intercourse with any British post, garrison, or town; and that they shall not admit among them any agent or trader, who shall not derive authority to hold commercial or other intercourse with them, by license from the President or other authorized agent of the United States.Article 4. The United Statesdemandan acknowledgment of the right to establish military posts and trading houses, and to open roads within the territory guarantied to the Creek nation by the second article, and a right to the free navigation of all its waters.Article 5. The United Statesdemandthat a surrender be immediately made, of all the persons and property taken from the citizens of the United States, the friendly part of the Creek nation, the Cherokee, Chickasaw, and Choctaw nations, to the respective owners; and the United States will cause to be immediately restored to the formerly hostile Creeks all the property taken from them since their submission, either by the United States, or by any Indian nations in amity with the United States, together with all the prisoners taken from them during the war.Article 6. The United Statesdemandthe caption and surrender of all theprophetsand instigators of the war, whether foreigners or natives, who have not submitted to the arms of the United States, and become parties to these articles of capitulation, if ever they shall be found within the territory guarantied to the Creek nation by the second article.Article 7. The Creek nationbeing reduced to extreme want, and not at present having the means of subsistence, the United States, from motives of humanity, will continue to furnish gratuitously the necessaries of life, until the crops of corn can be considered competent to yield the nation a supply, and will establish trading houses in the nation, at the discretion of the president of the United States, and at such places as he shall direct, to enable the nation, by industry and economy, to procure clothing.’I have never perused this instrument until within a few days past, and I have read it with the deepest mortification and regret. A more dictatorial spirit I have never seen displayed in any instrument. I would challenge an examination of all the records of diplomacy, not excepting even those in the most haughty period of imperial Rome, when she was carrying her arms into the barbarian nations that surrounded her, and I do not believe a solitary instance can be found of such an inexorable spirit of domination pervading a compact purporting to be a treaty ofpeace. It consists of the most severe and humiliating demands—of the surrender of a large territory; of the privilege of making roads through the remnant which was retained; of the right of establishing trading-houses; of the obligation of delivering into our hands their prophets. And all this of a wretched people reduced to the last extremity of distress, whose miserable existence we have to preserve by a voluntary stipulation to furnish them with bread! When did the all-conquering and desolating Rome ever fail to respect the altars and the gods of those whom she subjugated? Let me not be told that these prophets were impostors, who deceived the Indians. They weretheirprophets; the Indians believed and venerated them, and it is not for us to dictate a religious belief to them. It does not belong to the holy character of the religion which we profess, to carry its precepts, by the force of the bayonet, into the bosoms of other people. Mild and gentle persuasion was the great instrument employed by the meek founder of our religion. We leave to the humane and benevolent efforts of the reverend professors of christianity to convert from barbarism those unhappy nations yet immersed in its gloom. But, sir, spare them their prophets! spare their delusions! spare their prejudices and superstitions! spare them even their religion, such as it is, from open and cruel violence. When, sir, was that treaty concluded? On the very day, after the protocol was signed, of the first conference between the American and British commissioners, treating of peace, at Ghent. In the course of that negotiation, pretensions so enormous were set up by the other party, that, when they were promulgated in this country, there was one general burst of indignation throughout the continent. Faction itself was silenced, and the firm and unanimous determination ofall parties was, to fight until the last man fell in the ditch, rather than submit to such ignominious terms. What a contrast is exhibited between the contemporaneous scenes of Ghent and of Fort Jackson! what a powerful voucher would the British commissioners have been furnished with, if they could have got hold of that treaty! The United Statesdemand, the United Statesdemand, is repeated five or six times. And what did the preamble itself disclose? That two thirds of the Creek nation had been hostile, and one third only friendly to us. Now I have heard, (I cannot vouch for the truth of the statement,) that not one hostile chief signed the treaty. I have also heard that perhaps one or two of them did. If the treaty were really made by a minority of the nation, it was not obligatory upon the whole nation. It was void, considered in the light of a national compact. And, if void, the Indians were entitled to the benefit of the provision of the ninth article of the treaty of Ghent, by which we bound ourselves to make peace with any tribes with whom we might be at war on the ratification of the treaty, and to restore to them their lands, as they held them in 1811. I do not know how the honorable senate, that body for which I hold so high a respect, could have given their sanction to the treaty of Fort Jackson, so utterly irreconcilable as it is with those noble principles of generosity and magnanimity which I hope to see my country always exhibit, and particularly toward the miserable remnant of the aborigines. It would have comported better with those principles, to have imitated the benevolent policy of the founder of Pennsylvania, and to have given to the Creeks, conquered as they were, even if they had made an unjust war upon us, the trifling consideration, to them an adequate compensation, which he paid for their lands. That treaty, I fear, has been the main cause of the recent war. And, if it has been, it only adds another melancholy proof to those with which history already abounds, that hard and unconscionable terms, extorted by the power of the sword and the right of conquest, serve but to whet and stimulate revenge, and to give old hostilities, smothered, not extinguished, by the pretended peace, greater exasperation and more ferocity. A truce, thus patched up with an unfortunate people, without the means of existence, without bread, is no real peace. The instant there is the slightest prospect of relief from such harsh and severe conditions, the conquered party will fly to arms, and spend the last drop of blood rather than live in such degraded bondage. Even if you again reduce him to submission, the expenses incurred by this second war, to say nothing of the human lives that are sacrificed, will be greater than what it would have cost you to grant him liberal conditions in the first instance. This treaty, I repeat it, was, I apprehend, the cause of the war. It led to those excesses on our southern borders which began it. Who first commenced them, it is perhaps difficult to ascertainThere was, however, a paper on this subject, communicated at the last session by the president, that told, in language pathetic and feeling, an artless tale; a paper that carried such internal evidence, at least, of the belief of the authors of it that they were writing the truth, that I will ask the favor of the committee to allow me to read it.To the Commanding Officer at Fort Hawkins:DEARSIR: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 peoplehave 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 peoplestill 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 andcomplain. I did so, and there was no head white man, andthere was no law in this case. The whites first began, and there is nothing said about that; but great complaintabout what the Indians do. This is now three years since the white people killed three Indians; since that time they have killedthree other Indians, and taken their horses, and what they had; and this summer they killedthree 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 wereoutlaws, 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 cattlethat 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, the11thday, 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 inthat 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 andclemency 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 insparing 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 bandrespected 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 thecolonies, 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 produceeffectin 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 humanityand 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 othernation, 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 ofmaintainingthe 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 hefind 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 merelyparticipesin 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 thefirstinstance 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 thecommissioners 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 ofSt.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 thegeneral 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 theprinciple 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 acasus 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 livesof 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 thequasiwar 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 ofMr.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 whichMr.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 acourt-martial. The prisoners are said, in those orders, to have beentried, ‘on the followingcharges 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 thewrittendefence 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,legallyconvicted as exciters of this savage and negro war,legallycondemned, 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 havecommanded 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 executedaccording 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 hisacts, 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 takeSt.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, findingSt.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 onSt.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 examineand 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 fromSt.Marks, that he shall march for the Suwaney river; the destroying of the establishmentson 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 ofSt.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 empoweredto 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 ofSt.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 thinkSt.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 inSt.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 fromthe 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 ofSt.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. Againstthe 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 momentof 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.

IN THE HOUSE OF REPRESENTATIVES, JANUARY 17, 1819.

[THESeminoles were a tribe of Indians inhabiting Florida, and parts of the adjacent country. During the war between the United States and Great Britain, from 1812 to 1815, the Seminoles and Creek Indians made attacks upon our frontier settlements in the southwest, and in consequence, general Andrew Jackson, then a major-general of militia in Tennessee, was sent against them, at the head of a considerable force, by which, after a sanguinary contest, the Indians were subdued, and a treaty concluded with the Creek nation, in 1814. After the peace of 1815, the Seminoles, being sheltered in Florida, at that time a Spanish province, made frequent depredations upon the people of the United States. In December, 1817, the department of war ordered general Jackson, who in 1814 was appointed a major-general in the United States army, to assume the command of the forces in the southwest, and march against the Indians; also to adopt the necessary measures to terminate a conflict which has since been called ‘the Seminole war.’ In the early part of 1818, general Jackson took command of an army of regulars, militia, and friendly Creeks, and pursued the Seminoles into Florida, destroying their towns, and killing and capturing many Indians and run-a-way negroes. He also took possession of the Spanish fortresses ofSt.Marks, Pensacola, and the Barancas, during a period of peace between Spain and the United States. Two Indian traders, Arbuthnot, a Scotchman, and Ambrister, an Englishman, were taken prisoners, (being found among the Indians and Spaniards,) tried by a court martial, and executed by order of general Jackson. Two Indian chiefs, who were captured, were also put to death by his order, and sundry other cruel and high-handed acts committed, to which the attention of congress was called, at the session of 1818–19.

The subject having been referred to the committee on military affairs, that committee brought in a report, concluding with the following resolution: ‘Resolved, that the house of representatives disapproves the proceedings in the trial and execution of Alexander Arbuthnot and Robert C. Ambrister.’ To this resolution,Mr.Cobb, of Georgia, moved to add others, disapproving of the execution of Indian captives, and declaring that the seizure of the Spanish posts was contrary to the constitution, and so forth. The discussion on these resolutions caused one of the most exciting and interesting debates ever known in congress. Thirty-one of the most distinguished members of the house participated in the debate, which was opened on the eighteenth of January, in committee of the whole, and concluded on the tenth of February, when the question on the resolutions was taken, and decided in the negative, by majorities varying from thirty to forty-six, in a house of one hundred and seventy members present. General Jackson, besides his own popularity, as the victor of New Orleans, had the advantage of being sustained by the influence and power ofMr.Monroe’s administration, the president being considered as implicated with him in some of his transactions in Florida, by having sanctioned the same. Among those who coincided withMr.Clay, in condemning these proceedings, wereMessrs.Cobb, of Georgia, Storrs, of New York, Colston, J. Johnson, T. M. Nelson, and Mercer, of Virginia, Hopkinson, of Pennsylvania, Williams, of Connecticut, Harrison, of Ohio, Tyler, of Virginia, (the two latter since presidents of the United States,) Lowndes, of South Carolina, and Reed, of Maryland; while, on the other side,Messrs.Holmes, of Massachusetts, Tallmadge, of New York, P. P. Barbour, and Floyd, of Virginia, Baldwin, of Pennsylvania, R. M. Johnson, of Kentucky, and others, made able speeches in support of the administration, and general Jackson’s military course in this campaign.

Mr.Clay twice addressed the committee of the whole on the subject; the first speech only, is reported at length, as follows.]

MR.CHAIRMAN:

INrising to address you, sir, on the very interesting subject which now engages the attention of congress, I must be allowed to say, that all inferences drawn from the course which it will be my painful duty to take in this discussion, of unfriendliness either to the chief magistrate of the country, or to the illustrious military chieftain whose operations are under investigation, will be wholly unfounded. Towards that distinguished captain, who shed so much glory on our country, whose renown constitutes so great a portion of its moral property, I never had, I never can have, any other feelings than those of the most profound respect, and of the utmost kindness. With him my acquaintance is very limited, but, so far as it has extended, it has been of the most amicable kind. I know the motives which have been, and which will again be, attributed to me, in regard to the other exalted personage alluded to. They have been and will be unfounded. I have no interest, other than that of seeing the concerns of my country well and happily administered. It is infinitely more gratifying to behold the prosperity of my country advancing by the wisdom of the measures adopted to promote it, than it would be to expose the errors which may be committed, if there be any, in the conduct of its affairs. Little as has been my experience in public life, it has been sufficient to teach me that the most humble station is surrounded by difficulties and embarrassments. Rather than throw obstructions in the way of the president, I would precede him, and pick out those, if I could, which might jostle him in his progress; I would sympathize with him in his embarrassments, and commiserate with him in his misfortunes. It is true that it has been my mortification to differ from that gentleman on several occasions. I may be again reluctantly compelled to differ from him; but I will with the utmost sincerity, assure the committee, that I have formed no resolution, come under no engagements, and that I never will form any resolution, or contract any engagements, for systematic opposition to his administration, or to that of any other chief magistrate.

I beg leave further to premise, that the subject under consideration, presents two distinct aspects, susceptible, in my judgment, of the most clear and precise discrimination. The one I will call its foreign, the other its domestic aspect. In regard to the first, I will say, that I approve entirely of the conduct of our government, and that Spain has no cause of complaint. Having violated an important stipulation of the treaty of 1795, that power has justly subjected herself to all the consequences which ensued upon the entry into her dominions, and it belongs not to her to complain of those measures which resulted from her breach of contract; stillless has she a right to examine into the considerations connected with the domestic aspect of the subject.

What are the propositions before the committee? The first in order, is that reported by the military committee, which asserts the disapprobation of this house, of the proceedings in the trial and execution of Arbuthnot and Ambrister. The second, being the first contained in the proposed amendment, is the consequence of that disapprobation, and contemplates the passage of a law to prohibit the execution hereafter of any captive, taken by the army, without the approbation of the president. The third proposition is, that this house disapproves of the forcible seizure of the Spanish posts, as contrary to orders, and in violation of the constitution. The fourth proposition, as the result of the last, is, that a law shall pass to prohibit the march of the army of the United States, or any corps of it, into any foreign territory, without the previous authorization of congress, except it be in fresh pursuit of a defeated enemy. The first and third are general propositions, declaring the sense of the house in regard to the evils pointed out; and the second and fourth, propose the legislative remedies against the recurrence of those evils.

It will be at once perceived, by this simple statement of the propositions, that no other censure is proposed against general Jackson himself, than what is merely consequential. His name even does not appear in any of the resolutions. The legislature of the country, in reviewing the state of the union, and considering the events which have transpired since its last meeting, finds that particular occurrences, of the greatest moment, in many respects, have taken place near our southern border. I will add, that the house has not sought, by any officious interference with the doings of the executive, to gain jurisdiction over this matter. The president, in his message at the opening of the session, communicated the very information on which it was proposed to act. I would ask, for what purpose? That we should fold our arms and yield a tacit acquiescence, even if we supposed that information disclosed alarming events, not merely as it regards the peace of the country, but in respect to its constitution and character? Impossible. In communicating these papers, and voluntarily calling the attention of congress to the subject, the president must himself have intended, that we should apply any remedy that we might be able to devise. Having the subject thus regularly and fairly before us, and proposing merely to collect the sense of the house upon certain important transactions which it discloses, with the view to the passage of such laws as may be demanded by the public interest, I repeat, that there is no censure any where, except such as is strictly consequential upon our legislative action. The supposition of every new law, having for its object to prevent the recurrence of evil, is, that something has happened which oughtnot to have taken place, and no other than this indirect sort of censure will flow from the resolutions before the committee.

Having thus given my view of the nature and character of the propositions under consideration, I am far from intimating that it is not my purpose to go into a full, a free, and a thorough investigation of the facts, and of the principles of law, public, municipal, and constitutional, involved in them. And, whilst I trust I shall speak with the decorum due to the distinguished officers of the government whose proceedings are to be examined, I shall exercise the independence which belongs to me as a representative of the people, in freely and fully submitting my sentiments.

In noticing the painful incidents of this war, it is impossible not to inquire into its origin. I fear that it will be found to be the famous treaty of Fort Jackson, concluded in August, 1814; and I must ask the indulgence of the chairman while I read certain parts of that treaty.

‘Whereasan unprovoked, inhuman, and sanguinary war, waged by the hostile Creeks against the United States, hath been repelled, prosecuted, and determined, successfully on the part of the said states, in conformity with principles of national justice and honorable warfare: andwhereasconsideration is due to the rectitude of proceedings dictated by instructions relating to the reëstablishing of peace: Be it remembered, that, prior to the conquest of that part of the Creek nation hostile to the United States, numberless aggressions had been committed against the peace, the property, and the lives of citizens of the United States, and those of the Creek nation in amity with her, at the mouth of Duck river, Fort Mimms, and elsewhere, contrary to national faith, and the regard due to an article of the treaty concluded at New York, in the year 1790, between the two nations; that the United States, previous to the perpetration of such outrages, did, in order to insure future amity and concord between the Creek nation and the said states, in conformity with the stipulations of former treaties, fulfil, with punctuality and good faith, her engagements to the said nation; that more than two thirds of the whole number of chiefs and warriors of the Creek nation, disregarding the genuine spirit of existing treaties, suffered themselves to be instigated to violations of their national honor, and the respect due to a part of their own nation, faithful to the United States, and the principles of humanity, by impostors, denominating themselves prophets, and by the duplicity and misrepresentations of foreign emissaries, whose governments are at war, open or understood, with the United States.

Article 2. The United States will guaranty to the Creek nation the integrity of all their territory eastwardly and northwardly of the said line, (described in the first article,) to be run and described as mentioned in the first article.

Article 3. The United Statesdemandthat the Creek nation abandon all communication, and cease to hold intercourse with any British post, garrison, or town; and that they shall not admit among them any agent or trader, who shall not derive authority to hold commercial or other intercourse with them, by license from the President or other authorized agent of the United States.

Article 4. The United Statesdemandan acknowledgment of the right to establish military posts and trading houses, and to open roads within the territory guarantied to the Creek nation by the second article, and a right to the free navigation of all its waters.

Article 5. The United Statesdemandthat a surrender be immediately made, of all the persons and property taken from the citizens of the United States, the friendly part of the Creek nation, the Cherokee, Chickasaw, and Choctaw nations, to the respective owners; and the United States will cause to be immediately restored to the formerly hostile Creeks all the property taken from them since their submission, either by the United States, or by any Indian nations in amity with the United States, together with all the prisoners taken from them during the war.

Article 6. The United Statesdemandthe caption and surrender of all theprophetsand instigators of the war, whether foreigners or natives, who have not submitted to the arms of the United States, and become parties to these articles of capitulation, if ever they shall be found within the territory guarantied to the Creek nation by the second article.

Article 7. The Creek nationbeing reduced to extreme want, and not at present having the means of subsistence, the United States, from motives of humanity, will continue to furnish gratuitously the necessaries of life, until the crops of corn can be considered competent to yield the nation a supply, and will establish trading houses in the nation, at the discretion of the president of the United States, and at such places as he shall direct, to enable the nation, by industry and economy, to procure clothing.’

I have never perused this instrument until within a few days past, and I have read it with the deepest mortification and regret. A more dictatorial spirit I have never seen displayed in any instrument. I would challenge an examination of all the records of diplomacy, not excepting even those in the most haughty period of imperial Rome, when she was carrying her arms into the barbarian nations that surrounded her, and I do not believe a solitary instance can be found of such an inexorable spirit of domination pervading a compact purporting to be a treaty ofpeace. It consists of the most severe and humiliating demands—of the surrender of a large territory; of the privilege of making roads through the remnant which was retained; of the right of establishing trading-houses; of the obligation of delivering into our hands their prophets. And all this of a wretched people reduced to the last extremity of distress, whose miserable existence we have to preserve by a voluntary stipulation to furnish them with bread! When did the all-conquering and desolating Rome ever fail to respect the altars and the gods of those whom she subjugated? Let me not be told that these prophets were impostors, who deceived the Indians. They weretheirprophets; the Indians believed and venerated them, and it is not for us to dictate a religious belief to them. It does not belong to the holy character of the religion which we profess, to carry its precepts, by the force of the bayonet, into the bosoms of other people. Mild and gentle persuasion was the great instrument employed by the meek founder of our religion. We leave to the humane and benevolent efforts of the reverend professors of christianity to convert from barbarism those unhappy nations yet immersed in its gloom. But, sir, spare them their prophets! spare their delusions! spare their prejudices and superstitions! spare them even their religion, such as it is, from open and cruel violence. When, sir, was that treaty concluded? On the very day, after the protocol was signed, of the first conference between the American and British commissioners, treating of peace, at Ghent. In the course of that negotiation, pretensions so enormous were set up by the other party, that, when they were promulgated in this country, there was one general burst of indignation throughout the continent. Faction itself was silenced, and the firm and unanimous determination ofall parties was, to fight until the last man fell in the ditch, rather than submit to such ignominious terms. What a contrast is exhibited between the contemporaneous scenes of Ghent and of Fort Jackson! what a powerful voucher would the British commissioners have been furnished with, if they could have got hold of that treaty! The United Statesdemand, the United Statesdemand, is repeated five or six times. And what did the preamble itself disclose? That two thirds of the Creek nation had been hostile, and one third only friendly to us. Now I have heard, (I cannot vouch for the truth of the statement,) that not one hostile chief signed the treaty. I have also heard that perhaps one or two of them did. If the treaty were really made by a minority of the nation, it was not obligatory upon the whole nation. It was void, considered in the light of a national compact. And, if void, the Indians were entitled to the benefit of the provision of the ninth article of the treaty of Ghent, by which we bound ourselves to make peace with any tribes with whom we might be at war on the ratification of the treaty, and to restore to them their lands, as they held them in 1811. I do not know how the honorable senate, that body for which I hold so high a respect, could have given their sanction to the treaty of Fort Jackson, so utterly irreconcilable as it is with those noble principles of generosity and magnanimity which I hope to see my country always exhibit, and particularly toward the miserable remnant of the aborigines. It would have comported better with those principles, to have imitated the benevolent policy of the founder of Pennsylvania, and to have given to the Creeks, conquered as they were, even if they had made an unjust war upon us, the trifling consideration, to them an adequate compensation, which he paid for their lands. That treaty, I fear, has been the main cause of the recent war. And, if it has been, it only adds another melancholy proof to those with which history already abounds, that hard and unconscionable terms, extorted by the power of the sword and the right of conquest, serve but to whet and stimulate revenge, and to give old hostilities, smothered, not extinguished, by the pretended peace, greater exasperation and more ferocity. A truce, thus patched up with an unfortunate people, without the means of existence, without bread, is no real peace. The instant there is the slightest prospect of relief from such harsh and severe conditions, the conquered party will fly to arms, and spend the last drop of blood rather than live in such degraded bondage. Even if you again reduce him to submission, the expenses incurred by this second war, to say nothing of the human lives that are sacrificed, will be greater than what it would have cost you to grant him liberal conditions in the first instance. This treaty, I repeat it, was, I apprehend, the cause of the war. It led to those excesses on our southern borders which began it. Who first commenced them, it is perhaps difficult to ascertainThere was, however, a paper on this subject, communicated at the last session by the president, that told, in language pathetic and feeling, an artless tale; a paper that carried such internal evidence, at least, of the belief of the authors of it that they were writing the truth, that I will ask the favor of the committee to allow me to read it.

To the Commanding Officer at Fort Hawkins:

DEARSIR:

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 peoplehave 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 peoplestill 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 andcomplain. I did so, and there was no head white man, andthere was no law in this case. The whites first began, and there is nothing said about that; but great complaintabout what the Indians do. This is now three years since the white people killed three Indians; since that time they have killedthree other Indians, and taken their horses, and what they had; and this summer they killedthree 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 wereoutlaws, 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 cattlethat 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, the11thday, 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 inthat 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 andclemency 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 insparing 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 bandrespected 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 thecolonies, 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 produceeffectin 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 humanityand 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.’

‘Begin, ye tormentors! your threats are in vain:The son of Alknomook will never complain.’

‘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 othernation, 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 ofmaintainingthe 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 hefind 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 merelyparticipesin 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 thefirstinstance 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 thecommissioners 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 ofSt.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 thegeneral 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 theprinciple 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 acasus 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 livesof 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 thequasiwar 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 ofMr.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 whichMr.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 acourt-martial. The prisoners are said, in those orders, to have beentried, ‘on the followingcharges 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 thewrittendefence 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,legallyconvicted as exciters of this savage and negro war,legallycondemned, 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 havecommanded 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 executedaccording 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 hisacts, 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 takeSt.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, findingSt.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 onSt.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 examineand 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 fromSt.Marks, that he shall march for the Suwaney river; the destroying of the establishmentson 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 ofSt.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 empoweredto 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 ofSt.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 thinkSt.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 inSt.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 fromthe 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.’

‘Gone glimmering through the dream of things that were,A school-boy’s tale, the wonder of an hour.’

‘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 ofSt.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. Againstthe 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 momentof 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.

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