FEBRUARY, 1819.

Seminole War.

H. OF R.

These warriors do not, indeed, compared with the statute law, but is only ascertained by referthe tribes we have formerly engaged,

"With tougher sinew bend the bow; Nor flies the tomahawk swifter to its mark, Launch'd from the vigor of a Puant's arm." But the warriors of these tribes are proverbially braves. Flight is admitted as a principle of their tactics, never as the effect of fear. Their prejudices and feelings are not in our favor. In short, the materials are all provided-the train is laid it requires only the touch of that master Power which has wielded, with so much address, the torch of discord both in Europe and America to produce the explosion.

ence to the custom of war. The legality of an order, for the disobedience of which the life and honor of an officer may be endangered, is to be tested only by a similar reference. A general officer sees a platoon officer, with a command of men, in a situation wich he deems ineligible, and directs him to change it. The officer refuses, alleging that he commands a camp guard. At a little distance further the same General meets with another platoon officer at the head of a detachment, to whom also he gives an order, which is likewise disobeyed, upon the ground that the detachment was acting under an order coming immediately from the Commander-in-chief. Both With this impression, whatever may be my these officers are arrested, and brought to trial. opinion with regard to the circumstances under There is nothing in the written law to distinwhich one of the individuals was executed, I am guish the two cases; but under the custom of persuaded that their punishment will do much war the first will be acquitted with honor, upon good: it will make others of their character more the principle that an officer on guard receives cautious, and may prevent the British traders orders only from the officer of the day; whilst from involving us in a war before the policy of the latter may be cashiered or shot for not obeytheir nation shall authorize it. Shall I be told, ing an order which even countermanded one sir, that we shall derive future security from In- coming from the Commander-in-chief, upon the dian wars, from the altered character of the principle that the last order, coming from a suBritish councils? Where is the evidence of this perior on the spot, countermands or repeals those alteration? Is it to be found in the treatment of which may have been previously received. The that great but unfortunate man whom they have case of the officer on guard is an exception to made the object of their vengeance, when he can this general rule. The custom of war then bebe no longer the object of their fears? They ing established as the law by which our armies have chained him to a rock! No vulture indeed are governed, except where it is not controlled feasts upon the liver of their victim; that perhaps by statute, it remains only to show what that cuswould have been mercy. Their efforts are di-tom is, in relation to persons situated as Ambrisrected to wound and lacerate his feelings-to ter and Arbuthnot, and that there is no statute humble and debase that lofty spirit whose "awe law which puts their case out of the military did bend the" European world, and caused the jurisdiction. It may however be necessary to monstrous system of legitimacy to totter to its say a few words as to the manner of ascertainfoundation. ing what is the custom of war. It is ascertained by the precedents which are to be found in our own army and other civilized nations, and the military principles which are to be found in military authors, and those which are kept alive in our own army, by being daily acted upon. If an objection is made to precedents, drawn from other nations, whose forms of Government are so different from ours, and where the sovereign authority and that of commanders-in-chief are frequently found in the same person; I answer that the military common law, like the civil common law, is to be tested by reason, and that those principles which are incompatible with our form of Government are of course rejected.

I come now, sir, to consider my second proposition, viz: Did the right to punish Ambrister and Arbuthnot appertain to the military authority, under existing laws?

I have no doubt it did. To determine this question, it will be necessary to inquire what is the military code of this country. The few pages which I hold in my hand, and which are called the Articles of War, cannot be supposed to contain this code, or to provide for those numerous contingencies which are forever happening in an army, growing out of the relations which the soldier bears to the officer-the officers to each other-the commanding General to his Government, to his army, and to those whom the fortune of war places in his power.

The deficiencies in our statute laws are provided for by an unwritten common law, as extensive perhaps as the civil common law, and founded upon the same principle of reason. This unwritten code is recognised by our statute, under the denomination of "custom of war;" "rules and discipline of war." To this unwritten code military men are obliged so constantly to refer, that an army could not exist a day without it. This must be evident from the single fact that the rank or command attached to each grade of commission is nowhere to be found in

The precedents which justify the punishment of the two individuals to whom the resolution refers, by the military authority, are so numerous as to put the matter beyond dispute, and have been so often referred to as to make it unnecessary to repeat them. An additional evidence, however, of the light in which the subject was viewed by our Revolutionary Army, will be found in an address to General Greene, by the officers of the Southern army, of the 20th August, 1781, published in the appendix to Ramsay's History of the Revolution in South Carolina.

But, sir, a law, passed under the Administra

tration of Mr. Adams, and another in the Spring of 1813, have been brought forward to show that, in the opinion of Congress, a law was necessary to authorize retaliation; but a stricter examination of these laws will show that they contain no evidence of such an opinion, as the first law provides for retaliation before a declaration of war, and the latter for one case in which the military had certainly no power to act, and for another case where the authority was very equivocal. The first was intended to give authority to the Executive to retaliate for the punishment, by the civil courts of Great Britain, of persons taken in arms against them, and who were born in that country, upon their principle of perpetual allegiance; and the second section of the bill authorizes retaliation upon the subjects of Great Britain, for depredations committed by Indians in their employment.

FEBRUARY, 1819.

the practice of European armies, regard must be had to a circumstance which gave to some commanders there a power which a General of the United States could never have. It is the case when the Sovereign personally commands his own army, and which gives him, of course, the power to alter the martial law whenever he chooses; a power which, in the United States, can only be exercised by Congress. But in the present case, we have no occasion to travel out of our own country; many precedents having established the mode of punishing persons in the situation of Ambrister and Arbuthnot, to be precisely that which General Jackson used; that is, by trial before a special court or board of officers ordered for the purpose. The gentlemen who have contended for the right of the General to punish these men, of his own authority, have been led into the error by referring for the powers There can be no question, then, but the right of the General to the law of nations, as explained of retaliation, in time of war, is vested in the by Vattel, or the law of war, as treated of by military authority; and there can, I should sup- Bynkershoek. They might as well have exampose, be as little doubt of the propriety of its ined those authors to discover to which of our being so vested. Retaliation, to answer any ben-courts belong the jurisdiction over piracies. The eficial purpose, should be prompt and decisive. international law does not, it cannot, define the Indeed, in all the instances that I have heard of, mode by which a nation may exercise a right where it was delayed, it was given up; and, if which it gives. It is satisfied with giving the two armies were acting in opposition to each right to punish certain crimes, leaving to the other, the one possessing within itself the right nation itself the mode of punishment. Hence, of retaliation for injuries not sanctioned by the in all the countries of Europe, England excepted, laws of war, and the other obliged to recur to a piracy is punished in a court composed of one or distant Power for authority to retaliate, the first more judges, without a jury; but in the United would have great advantages over the other; for, States a jury is necessary. No single nation in some cases, a threat of immediate retaliation can change the international law, but every nais of itself sufficient to suspend an unjust execution is competent to change the mode of punishtion, and to save a victim over whom the arm of power has already been extended. To complete my examination of the first resolution, it remains for me to consider,

3dly. Whether the punishment of Arbuthnot and Ambrister was right, both as to principle and form.

I have a peculiar opinion upon this subject. My friend from South Carolina thinks that the punishment of Arbuthnot was illegal-that of Ambrister not so. My conclusions are directly the reverse. But, before I proceed to mark the circumstances which discriminate the two cases, I will answer the arguments of those who contend that the punishment of both were legal, upon the ground that the decision of their case depended upon the will of the General alone, or upon that of the President, as Commander-inchief; that the court which tried them had no power to give an opinion which the General or President might not annul or alter, at their pleasure. Sir, this is not the martial law of this country. The commander of an American army possesses no such power over the lives of his prisoners.

In the preceding argument I have, I think, established that the military code of this country consists of the articles of war and the custom and discipline of war established by the practice of our own armies and those of other civilized nations. But, in searching for precedents from

ing any particular offence against that law. The United States have, for instance, changed the mode of ascertaining the guilt of a spy. Contrary to former practice, a statute law has directed that persons charged with being spies shall be tried by a court martial. With respect, therefore, to the two individuals to whom the resolution refers, you are to look first into authors on the laws of nations, to determine whether you can punish them, and then to our own laws to ascertain how to punish them. Our statute law being silent, we are obliged to refer to the mode of punishment which custom has established, and which I have already proved to be the law of this country. An examination of the principles which have been established by this custom will show that the martial law of this country is not such as gentlemen have supposed. If it is severe, it is in cases where severity is necessary; if it is apparently harsh, it is yet discriminating-it leaves as little as possible to the passions of individuals, and it decides that imputed guilt is to be ascertained by careful investigation. In the hour of battle, however, everything bends to the exigency of the moment. The power of a commander over the lives of his prisoners, and even of his own men, has no limit but his opinion of the necessity of sacrificing them. My gallant friend, General Jesup, at the battle of Niagara, then a Major, and acting with a single battalion upon the flank of Scott's brigade, had made

prisoners equal in number to his own command: they were leaving him each moment, and probably returning again to the conflict; in such a case the laws of war would have authorized his destroying them; but, generous as brave, he declined to exercise his right. To prevent the contagion which a single example frequently spreads to a dangerous extent, the recreant who turns from the bayonet of his foe, is arrested by the ball of his comrade. Nay, a regiment, even a whole line, may be directed by a commander to fire upon another who hesitates to advance upon the enemy, or by a shameful flight, to destroy the hopes of victory. But the battle once over, the indiscriminate and furious Mars is banished from the camp; its councils are directed by the more interesting attribute of his warrior sister. No blood is shed but upon the altar of justice, and not until her discriminating and equal eye has passed over the circumstances of the imputed guilt, and she has deliberately pronounced the sentence; punishment is only to follow convic tion, and conviction after a thorough examination before a competent tribunal. I will not say, sir, that there is no exception to this rule; but the exceptions are such as most strongly confirm the general principle.

H. or R.

the horns of a large number of oxen. But the unfortunate guide was crucified. If the case of Colonel Hayne, who was executed at Charleston, in the Revolutionary war, is quoted against me, I answer, that the Commander-in-chief, Lord Cornwallis, had previously issued an order directing persons taken under the circumstances in which Colonel Hayne was supposed to be in, should be punished with death, and a court of inquiry was held for the purpose of ascertaining the fact. But this precedent will not be relied upon, when it is known how much and how severe censure has been cast upon the perpetrators of that bloody deed, in England as well as in America. Indeed, all the circumstances which attended the case serve to show that a complete trial upon all such occasions is essentially necessary to prevent the shedding of innocent blood. Colonel Hayne was charged with having borne arms against the British, after having taken a protection as a British subject. This is an offence of a similar character to that of breaking a parole, or one's fighting against the nation to whom he is a prisoner of war. The court satisfied themselves of the two facts of his having received a protection, and afterwards being taken in arms. Those facts were, I believe, not denied by the Colonel; but, in an address to Lord Rawdon, after he was sentenced, the Colonel declared that, if he had had a fair trial and allowed to send for witnesses, he would have been able to justify his conduct. This, the historian, Ramsay, admits he might have done, and considers him a victim to British vengeance. In a note to the history of South Carolina, the opinion of a British lawyer upon Colonel Hayne's case is given [Mr. H. here read the following passage: "No enemy can be sentenced to death in consequence ' of any military article or any other martial process that I know of, without a previous trial,

expressly debarred from that right."] I have already shown that the case of Captain Asgill, which was introduced by the gentleman from Kentucky, (Mr. JOHNSON,) and much relied upon by a gentleman from Virginia, (Mr. SMYTH,) does not controvert the principle which I maintain.

The principle for which I contend is not, that I know of, to be found in any author, but it is as well ascertained by reference to the precedents; and all those warrant me in giving the opinion that, in all cases where the punishment is intended to be inflicted for some crime committed by a man in his individual capacity, that then a trial is necessary, by a special court or board of officers appointed for the purpose. But where the punishment is to be inflicted upon an individual who is himself innocent of any crime, as in the case of Captain Asgill, but who suffers in retaliation for the act of another, no trial is necessary, for no guilt is to be ascertained; no mode'except spies, who, by the articles of war, are or degree of punishment is to be determined upon; because it is already fixed by the act for which he is to atone. In such a case, a selection by lot, in pursuance of an order from the commanding General, is the proper course. In every other case where the punishment of a prisoner is a deliberate act, I challenge gentlemen to show a single precedent occurring in our own army to contradict the opinion I have given. That which appears to be most opposed to it, is the case of false guides, who are instantaneously punished for leading an army in a wrong direction, and very often when they do not deserve it. A remarkable instance of this kind is to be met with as far back as the days of Hannibal. That General directed an Italian to conduct his army to a place called Cassalinum. Pronouncing it with his foreign tongue, the guide misunderstood him, and conducted him to Cossinum, a place surrounded by mountains. His ever watchful antagonist, Fabius, immediately occupied all the passes of the mountains and garnished their summits with his legions. The Carthagenian relieved himself from this cul de sac, by the well known stratagem of lighted fagots tied upon

In all the cases which have been mentioned in the course of the debate, where an individual enemy was punished, one excepted, which occurred at New Orleans, and which I shall hereafter refer to, it was sanctioned by the opinion of a military court. My friends from Kentucky and Virginia (Messrs. JOHNSON and STROTHER) have very triumphantly introduced two cases in support of their opinion of the omnipotency of a commander. The first is the case of the two British sergeants who, in the Revolutionary war, attempted to seduce the Pennsylvania line; and the latter, of a British officer, who was shot in South Carolina, for a somewhat similar offence. Now, it happens, unfortunately for their argument, that the Drumhead court which tried these men, is to all intents and purposes a court martial; ordered in the same way, and constituted in the same way as

every other court martial. The only difference is, that the process is conducted with more celerity. It is called a Drum-head court, because, being generally in the field where there is no table, the judge advocate writes upon two drums, one placed upon the other; around which the president and members of the court assemble. I have seen two such courts ordered by General Wayne; one for the trial of an American soldier, who was sentenced by it to be shot for cowardice, and the other for the trial of Antoine Lassalle, a Frenchman, who was taken within the lines of our army, after the action of the 20th of August, 1794, and who had fought with the Indians on that day. The better to understand this subject, it may be necessary briefly to name the several tribunals that are acknowledged by our military code. They are, first, the ordinary courts martial of offences committed by our own officers and soldiers, and which are either general courts martial for the trial of capital or other high crimes, or regimental, detachment, or garrison courts, for the trial of inferior offences. Second, courts of inquiry, which report facts only, unless required to give an opinion, but which pronounce no sentence, and is therefore only an intermediate court. Third, boards of war, or special courts martial. And, fourth, councils of war.

The powers and duties of the two first are pointed out in the articles of war. The authority to order the two last, is a prerogative of every commanding General, given to him by the cus tom of war. Distinctly marked as the powers and duties of the two last are, I was astonished to hear them confounded, not only by other gentlemen, but by the gentleman from Virginia, (Mr. SMYTH) himself a military man, who has given to his country a very valuable compendium of field tactics. The first is a criminal tribunal; the latter exclusively confined to the purpose of advising the General as to the course he is to pursue, with regard to the operations of

his army.

FEBRUARY, 1819.

lighter punishment than that which the sentence of the court directs, if it is a punishment of a different kind. He cannot, for instance, substitute whipping for death, nor cashiering for death; nor can there be any possible reason why he should have any greater power over the special criminal tribunals, ordered by him, than over the ordinary courts. But whether there can be any reason given for it or not, the martial law gives him no other powers, and I defy gentlemen to show a single precedent for their opinion. Adye on Courts Martial, page 38: "Courts martial are at present held by the same authority as the other courts of judicature of the kingdom, and the King and his Generals, (when empowered to appoint them,) has the same prerogative of moderating the rigor of the law, and pardoning and remitting punishment, but he can no more add to, nor alter the sentence of a court martial than he can a judgment given in the courts of law. The King has an undoubted right to dismiss an officer or soldier from his service, without a trial, but this power cannot bias a court martial, in a matter left to their decision, if men most solemnly sworn to be guided by their consciences, and to administer justice without partiality, favor, or affection, can be ' trusted."

It is, I understand, a prerogative of the Crown of Great Britain, to order a special court of oyer and terminer. But the King has no authority over the sentence that such courts may pass, which he has not over the sentences of other courts. I anticipate the objection which may be made, that this commission is directed to persons who are already judges. Sir, this is precisely the case with the military tribunals; all the officers of an army are, by law, military judges, and when the ordinary courts are constituted, they are taken indiscriminately by regular detail. In the cases of special courts, the practice is, I believe, to designate, as it is in the civil courts, and as the term quorum seems to imply. A reference to It is, as the gentleman has said, in the power the origin of courts martial, as well as the pracof the General to adopt or reject their opinion, tice, will show that I am correct. All the duties either on the whole, or in part, as he chooses. of courts martial were originally performed in His power over the criminal military tribunals England by the court of chivalry, composed of is much more limited. By the articles of war, two judges; this continued until the civil wars the sentence of a court martial cannot be carried between the Parliament and Charles I., when into effect without the approbation of the Gen- a designation of a particular number of officers, eral who has ordered the court, and he may dis- by name, was made by act of Parliament, from approve the sentence and direct the prisoner to whom twelve were to be taken to form courts be discharged, or approve it, and then pardon the martial. By the subsequent act, called the mucriminal. Custom has also given him the power tiny bill, passed in 1689, after the Revolution, to send back the proceedings and direct the court all the officers were made liable to sit on courts to re-examine the case, and he may recommend martial, and the practice has been continued in a different sentence-one more severe, if he thinks England, and adopted by us, to the present day. it a case requiring severity, and point out any From the whole of these premises, I am authorerror that he conceives they may have commit-ized to draw the following conclusions: ted. But the court are not bound by his recommendation-but are always at liberty to pass the sentence in conformity with their own views of propriety. This sentence he may either execute or not, as he pleases, or he may execute a part and remit the balance, but he cannot change the sentence for one more severe, or even inflict a

1st. That prisoners of war, in this country, are not at the arbitrary disposal of the commanding General, or the President of the United States, but, that they are under the protection of laws, or of customs having the authority of laws. In addition to the precedents to which I have referred, I find in Adye, p. 5, that the rights of pris