JANUARY, 1819.

Seminole War.

H. of R.

of the artillery or corps of engineers of the Uni-case a reference to the information of another, 'ted States, and all officers and soldiers of any other troops, whether militia or others, being 'mustered and in pay of the United States, when 'acting in conjunction with the regular forces," and by a special act of Congress, "all spies."

who is not upon oath, is no evidence at all." Yet, in the case of Arbuthnot, the hearsay evidence of Indians, who, as the report of the select committee justly remarks, would not have been competent witnesses, if present, was received by the court.

"Facts are the subjects of evidence, not opin

evidence is regularly brought, and to form opinions of these is the province, not of the witness, but of the judge or juror who is to decide them. No party therefore in a trial is entitled to obtrude the opinions of a witness upon the court, or to call upon a witness to answer questions of opinion." Yet a witness, Hambly, a Spanish renegado, the personal and open enemy of the prisoner, is expressly and repeatedly invited by the court, on the trial of Arbuthnot, to give his opinion of the prisoner's guilt or innocence.

In this enumeration of persons subject to the cognizance of an American court martial, a search will be made in vain for a description correspond-ions." It is therefore "to the truth of facts that ing with Arbuthnot and Ambrister, after the former had been acquitted of being a spy. Even where a particular offence is cognizable by a court martial, the character "of the person determines' whether it may be tried by a civil or military tribunal. The harboring or concealing of deserters is a civil or military offence, according to the state or quality of the person who commits 'it." If by a soldier, it may be tried by a court martial; if by a citizen, a law of the United States expressly provides that it shall be tried by a civil court. The same doctrine is established by the Constitution, which provides, "that no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the เ militia, when in actual service, in time of war or public danger."

But, admitting the prisoners to have been legally tried by a court of competent jurisdiction, and legally condemned, the execution of Ambrister was in defiance of the sentence of the court, and a mockery of its authority. An honorable colleague of mine (Mr. SMYTH) has contended that there were two sentences in the latter case, and justifies the approval of the first, which condemned the prisoner to death, because the last was illegal. "The judgment of a court martial is always under its own control," says Macomb, until it is communicated to the officer by whom

But the mode of trial was not less exceptionable than the jurisdiction of the court. The proceedings of the court are marked alike by the exclusion of competent testimony offered by one of the accused, and by the admission of incompe-it is convened." In this case, the first judgment tent testimony against him. The following rules of evidence are laid down by the best American author on this subject an author to whom the Committee has referred us, as in common use and who is known to this House, from having received its thanks for his distinguished gallantry. "The evidence," says Macomb, "on trials by court martial, is the same that is required in civil prosecutions."

was reconsidered. The reconsideration restored the court and the prisoner to the same situation in which they had stood before any sentence whatever was pronounced; and the final judg ment was, therefore, the only judgment of the court. This judgment sentenced the prisoner to be whipped and to hard labor.

General Jackson "disapproved the reconsideration, approved the finding and first sentence of the court, and ordered Ambrister to be shot." Had he authority to do so? "With the appointment or constitution of the court martial," says the high authority I have already quoted, "the power of the officer over the prisoner ceases

"In all cases where a party would avail him'self of the incompetency of a witness, on account of his conviction of a crime, it is necessary that ' he should produce to the court the record of con'viction, or a sufficient proof of it." Yet, before any trial, the testimony of Ambrister was reject-until that court shall have pronounced judged as incompetent, when offered by Arbuthnot, in his defence.

ment. The President of the United States, or General, can no more interfere in the procedure at courts martial, in the execution of their

"Letters of correspondence and all familiar 'writings must be proved, upon oath, to be writ-duty, than they can with any of the fixed courts

ten by the person of whose handwriting they are alleged to be." Yet, the letters ascribed to Arbuthnot are received as evidence, without a shadow of proof., For the author, from whom this evidence is quoted, also adds, that, "even the 'comparison of handwritings, though it may be ' usefully employed in the detection of forgery, 'is no evidence to authenticate any writing what ever, as evidence, in a criminal prosecution."

"An attestation of a witness must be only to 'what he actually knows, from his own observa'tion of the facts in issue. He is not to be examined as to what he has heard, or been informed ' of by others; for his testimony being in that

6

of justice; nor, even after the court martial has pronounced its sentence, is it in the power of the President, General, or other officer ordering the court, to add to or alter that sentence in any one particular, unless a recommendation to that effect shall be therein contained. The Presi dent, or Commander-in-chief, in virtue of his prerogative of mercy, may entirely remit the punishment which the court has awarded, or, 'by disapproving the sentence, he may order the court to sit again, and to review their proceedings and judgment: but he can no more decree any particular alteration of their sentence than he can alter the judgment of a civil court, or

The general order of the 29th of April, commanding the immediate execution of Arbuthnot and Ambrister, uncondemned even to this day, nay, more than tacitly approved, is, Mr. Chairman, a stain on the records of the judicial proceedings of this nation, to the insecurity of the honor and life of every officer and soldier of the armies of the United States, and of every citizen of America, who may be legally, or otherwise, subjected to the judgment of a court martial; a proceeding which imperiously calls for the interposition of the authority of Congress, in order that, instead of being converted into a precedent for future imitation, it may be shunned as an object of abhorrence. Sir, it is no little cause of alarm to behold the highest military court of criminal justice, which should be the shield of innocence, converted into a rod of oppression. While I listened with equal attention and delight to the eloquent and able argument of my honorable friend from New York, I thought that even he underrated the security which a military court is designed to afford to an innocent prisoner. I thought he supposed that a military judge was not sworn to discharge the duties of his office with fidelity and impartiality. [Mr. STORRS arose to explain. He had remarked, he said, that the charges were not sworn to on which a prisoner was arrested.] I misunderstood my honorable friend, said Mr. MERCER; but even here the charge must be sanctioned by the honor of an officer. A general court martial derives its appointment from the sound discretion of the highest military authority in an army; its sentence is inoperative until it receives his approbation; and any officer who should seek, by the instrumentality of such a court, to gratify secret resentment or malignity, would render himself odious to his whole corps.

JANUARY, 1819.

'the verdict of a jury." Arbuthnot and Ambris-ponents have deemed it necessary to take a double ter were, therefore, tried by a court of incompe- ground; and, lest the judgment of the court martent jurisdiction. The former was condemned tial should not sustain the execution of the prisupon illegal evidence, and the latter executed by oners, they have resorted to the broad right of reorder of the commanding General, in defiance of taliation-which brings me to the last proposition the judgment of a court of his own appointment; that I undertook to maintain-that the accusall of whose proceedings he approved, except tomed clemency of this nation, manifested in all their single act of mercy-the reconsideration of former wars, has been disregarded in the late their sentence against Ambrister. Seminole campaign, by the execution in cold blood of unresisting captives, subjected to our arms by the chance of war. Without inquiring into the manner in which the two Suwanee chiefs were decoyed into our grasp by the use of the British flag, or Arbuthnot was dragged from beneath the protection of the neutral flag of Spainacts which, coupled with the succeeding tragedy, imbue its closing scene with deeper horror-I utterly protest against the application which has been made of the exploded usages of war to justify these barbarities. Nor will I distinguish between the treatment of our Indian and white prisoners-a distinction which, until this debate, was never heard within the councils, nor known until the late Seminole war, in the practice of this nation, or of any of the numerous States of which it is composed. The doctrine that Ambrister was not entitled to be regarded as a prisoner of war, because he had no commission from his own Sovereign, would have equally applied, as the select committee have remarked, to the most distinguished officers of our Revolution; men to whom the venerable Congress of that day voted statues and monuments, and whom our enemy, in all the pride of his power, dared not but respect. The other doctrine of my honorable colleague, (Mr. SMYTH,) that Ambrister had no commission from the Indian nation, to which he united his arms, is disproved by an authority which he himself will admit-by the charge to which the prisoner plead guilty, and upon which he was condemned to be shot by his prosecutor; the charge of leading and commanding the Lower Creek Indians in carrying on a war against the United States-unless, indeed, it be contended that he commanded and led his forces without their consent. The crime of aiding, abetting, and comforting them, on which the remaining charge was founded is evidently merged in the heavier accusation to which he plead guilty, and which he sought at least to justify. And if, sir, the war was defensive on the part of those unhappy Indians, a justification more complete in all its parts could not be well imagined. The benefit of that justification would alike extend to Arbuthnot, a mere trader in the usual subjects of Indian commerce, since they have laid down the bow and arrow, and resorted for subsistence as well as security to the musket and rifle, if he had not in fact discountenanced their resistance of a force that he saw must overwhelm them.

The ingenuity of my honorable colleague (Mr. SMYTH) will in vain attempt to discover an analogy between this trial and any event in the judicial history of this nation. The board of officers who reported Major Andre to be a spy were not constituted a court martial, but if they had been, their sentence was not disregarded. The gentleman will turn in vain to the annals of the Revolution for a precedent to extenuate the enormity of this whole proceeding. We have been asked, "whence this sympathy for two British prisoners?" Sir, my sympathy is not with them, but with our violated laws. The people have seated us by the fountain of justice, and charged us to preserve its purity from contamination. Extra ordinary and alarming as are the doctrines of martial law maintained in this debate, there is yet some consolation in perceiving that our op

Who, sir, were the other captives condemned to death? It has been said of some of the Suwanee chiefs, that he was the author of the massacre of Scott's detachment, destroyed, as I have proved, in that Indian territory which our army was not only preparing to invade, but had,

JANUARY, 1819.

Seminole War.

H. OF R.

to look beyond these fields of slaughter, to the peace which followed them, the only object of a just war. From the battle of Point Pleasant to the present day, Indian hostilities have ceased in Virginia. The victories of Wayne led to the treaty of Greenville, and was followed by a peace of eighteen years. The treaties of Hopewell, of New York, and of Colerain, preceded by no battles, were succeeded by a peace, which, with the Creeks and Seminoles, it required, after the lapse of nineteen years, another British war to disturb; and which, with the Choctaw and Chickasaw Indians, endures to this moment. While the splendid victory of Talapoosa, and the treaty of Fort Jackson, have not yet, it is said, secured to us peace, although aided by our new code of retaliation, and its practical commentary, the execution, in cold blood, of four Indian captives.

Mr. Chairman, it has been justly remarked, that the only lawful end of retaliation is lost on an Indian foe. Death has no terrors for a North American savage. Hunting and war are his delight. He hates labor. You may punish him by requiring him to construct another wigwam, by laying waste his cornfields, or destroying the fruits of his harvest. So far our retaliation has hitherto gone. And the peace which it has purchased has evinced its efficacy. The Indian is as generous as he is brave. In our past intercourse we have sometimes conciliated his friendship by presents; and, by kindness, softened his ferocity. Why not persevere ? With him revenge is lawful. By departing from the maxims observed in all former wars, we shall rival our savage foe in cruelty, without his apology to

in fact, invaded; and the participation of this chief in the bloody massacre which closed this scene, is unsustained by any proof whatever. As to his unfortunate comrade, the Indian Prophet, what are his imputed crimes? That he was, himself, the victim of superstition; that he deluded his wretched followers. Such was the guilt, sir, of all the augurs and soothsayers of the ancient republics, sometimes Prætors, Consuls, and Dictators, not to Rome alone, but to a conquered world. A guilt, in which lies still involved three-fourths of the human race; many of whom yet groan, in cities, in palaces, and temples, beneath a superstition, compared with which, the religion of the wandering inhabitants of our western wilds is simple, peaceful, and consolatory. Or did his guilt consist, in returning home with a foreign commission, after having crossed the Atlantic in quest of aid, to sustain the sinking fortune of his tribe? Has it, then, become a crime, in our day, to love our country; to plead her wrongs; to maintain her rights; or to die in her defence? Sir, had not the God I worship, a God of mercy as well as truth, taught me to forgive mine enemies, did he, as the Great Spirit whom the Seminole adores, allow me to indulge revenge; were I an Indian, I would swear eternal hatred to your race. What crimes have they committed against us, that we have not, with superior skill, practised upon them? Whither are they gone? How many of them have been sent to untimely graves! How many driven from their lawful possessions? Their tribes and their very names are almost extinct. My honorable colleague, (Mr. BARBOUR,) who differs from us on this question-plead in its extenuation. my honorable friend I will call him, for he inspired that sentiment, while he eloquently described the wrongs and sufferings of this unhappy race-will not condemn in a poor Seminole Indian that love of country, of which, if it be indeed a crime, no man is more guilty than The law of nations sanctions no such pretenhimself. But it seems he was an Indian. The sions. Two of our Indian treaties furnish a more Suwanee chief, his comrade, was so too. Ar- correct exposition of this law, than our adversabuthnot and Ambrister, who inspired their coun-ries have done. "It is understood (said the old sels and led them to combat, are to be regarded Congress and their Indian allies) that the punas themselves, and, under the law of retaliation, ishment of the innocent, under the idea of retalthey were all liable to suffer death, at the plea-iation, is unjust." "A nation (says Vattel) may sure of General Jackson. And thus, Mr. Chair-punish another, which has done her an injury, man, the clemency which has been observed, if the latter refuses to give her a just satisfacfor two centuries, in all our conflicts with the tion; but she has not a right to extend the penaborigines of America, is at length discoveredalty beyond what her safety requires. Reialito have been an impolitic abandonment of the rights which we derive from the laws and usages of war. Nay, sir, the victories of all our former commanders, in all other Indian wars, are cast into the shade, in order to magnify the effect of this new policy. In the hard-fought battle of Point Wherever this humane writer seems to conPleasant, in which I have heard that three hun-tradict this doctrine, as when he sanctions the dred Virginians fell, my colleague (Mr. SMYTH) departure from the usages of civilized warfare, tells us, that only eighteen Indian warriors were to retaliate on nations who disregard them, it is found dead on the field. Before the impetuous to bring those nations back to reason and concharge of the gallant Wayne, but twenty fell. science. If this be impossible, the retaliation is At Tippecanoe, but thirty. On the banks of the unjustifiable. Tallapoosa, General Jackson left eight hundred Indians dead. Sir, it is consolatory to humanity

I admit the power of a military commander to put his prisoners to death, but I deny his right. No man has a right, derived from God or nature, to practise cruelty or injustice; and all needless severity is both unjust and cruel.

ation, which is unjust between private persons, would be more so between nations; because it would, in the latter case, be difficult to make the punishment fall on those who had done the injury."

Would you make slaves of Algerine captives because the Turks enslave their christian prison

ers? Europe has never thus retaliated on the States of Barbary. How speedily would the practice of this doctrine replunge the world in barbarism. In refusing to wage war for revenge, and blending martial courtesy with valor, a nation advances her true glory. That enemy is most to be dreaded, who conquers by his clemency as well as his sword. "Who, though the lion in combat, the battle once ended, has the heart of a lamb." Such has ever been the character of an American soldier, and such, I trust, Mr. Chairman, will continue to be the boast of our arms.

JANUARY, 1819.

a prisoner of war, on the supposition that he may be tried by a court martial, extends the security for human life very little farther than the present articles of war. Following the American army every where, they now require that no judgment of a court martial, in time of peace, inflicting capital punishment, shall be executed, until it has received the approbation of the President.

Mr. COLSTON said that he rose at that late period of the debate, trusting that the Committee would excuse his trespassing, for a short time, upon their attention, whilst he discharged his duty to himself, his constituents, and his country, by expressing his sentiments on this important question, involving, as it did, the Constitution and laws of the country. In the investigation of it, he would not be deterred from expressing his opinion freely, either by the declarations of those high in authority, that General Jackson's conduct must be defended, or by the character of the individual who was the subject of this investigation, or by any of those means which had been used to prevent the expression of disapprobation by those who thought his conduct censurable.

How gratifying will it hereafter be to the feelings of this nation, in looking back on the course of this debate, when all its irritation shall have subsided, to perceive that the most laborious research into the past history of our country, from the first period at which our fathers landed on this continent, down to the late Seminole war, has not been able to furnish a solitary example of the execution of an Indian captive, in cold blood. Usage is the best expositor of national law, and the usage of two centuries excludes this new law of retaliation from the humane code of America. It has been urged by one of my honorable colleagues, (Mr. SMYTH,) to whose argument I have often had occasion to advert, in the course of this debate, that the glory of a nation consists of the fame of its great men. I had thought it more comprehensive. That it embraced all the blessings, moral and physical, with which the munificence of Heaven has crowned the lot of any people. The extent of their territory, the salubrity of their climate, the fertility of their soil, the multitude and variety of its productions, the scenery of their country, its capacious bays, its noble rivers, its lofty mountains; their commerce, their arts of peace as well as of war, their manners, their customs, their institutions, their laws, their morality and piety, and the wide diffusion of their happiness. With us, sir, the security of all these blessings, that which stamps on them their durable value, is our excellent constitution of Government. This is the cement of our Union, the spring of our commerce, the shield of Sir, had an ordinary man said that the Goverour security, the pledge of our peace, the guardian nor of an independent State had no right to issue of our freedom. Whatever other sources of dis- a military order to the militia of that State, untinction we may possess, they will be found to der his command, whilst an officer of the United be contained, at last, in our liberty. From this States was in service, we should have smiled at source, distinguished men have doubtless sprung, his ignorance of our peculiar form of Governand will be multiplied in all future time. But let ment; but the same doctrine, coming from Genus not mistake the fruit for the tree; and, attract-eral Jackson, becomes dangerous. Had one indied by the lustre of the one, leave the other to per-vidual indulged in the same style of correspondish by neglect.

In the progress of my argument, I perceive, Mr. Chairman, that I have anticipated my last proposition, and have removed, I trust, the necessity of offering any further reasons in support of the resolutions on your table. Of those which are immediately practical, one will, I hope, furnish an additional sanction to the acknowledged law of nations, which forbids a belligerent to enter a neutral territory, without permission, except in fresh pursuit of a flying enemy; and the other, which requires the assent of the President of the United States to sanction the execution of

He would not deny that, in the defence of New Orleans, General Jackson had rendered important military services, and had thus acquired a high reputation with his countrymen; but this rendered it the more necessary strictly to scrutinize his conduct, for the history of the world would show, that wherever the liberties of a nation had been subverted, it was always done by those the splendor of whose actions had screened from censure their first violations of the laws and constitution of their country. He should, therefore, proceed to the investigation of General Jackson's conduct in the Seminole war; and if, in the course of it, he found that he had violated the Constitution, infringed the laws, disregarded his orders, and adopted, as a rule of nations, principles at variance with those laws, and to all the received opinions of this people, he should not hesitate to express his most decided disapprobation.

ence with another individual, which is used in the letters to the Governor of Georgia, we should have considered it rude; but, coming from a General in the service of the United States, and that officer General Jackson, it has an awful squinting towards the degradation of State authorities-the prostration of State sovereignties, with the preservation of which is connected the best interests of this nation. And, finally, had a man unknown to fame executed two individuals, without any law of this nation to justify it, we should have found no difficulty in giving to the deed a name; but, when it is done under claim

of military authority, it constitutes a political offence of a much higher and more dangerous nature. Such acts, he must confess, roused all his jealousy of military power and military usurpations.

Mr. C. said he would have occupied the floor at an earlier period of the debate, had it been practicable; but the very able views which had been taken of the general subject, particularly by the honorable Speaker, the gentleman from New York, (Mr. STORRS,) and his friend who had preceded him, whilst it left him little to say, gave him reason to rejoice that his wishes had not been gratified. He would not fatigue the Committee by going over the ground that had been so ably occupied, but would principally confine himself to such views as had, from the hurry of debate, escaped those gentlemen who had preceded him, or not been sufficiently urged by them, from a want of time.

The power of declaring war had, for the wisest reasons, been confided, by the framers of the Constitution, to Congress; and yet we have seen the province of a nation, with whom we were at peace, invaded; her fortresses besieged and stormed; her towns taken; the blood of her citizens shed; her Government subverted; her laws abrogated; the civil power usurped, and those soldiers who had been placed there to preserve her authority and enforce her laws, sent off from the province they were intended to defend, and all this without any act of Congress to warrant it.

H. OF R.

a law. The wars which have heretofore been waged against Indian nations have always been against those within our acknowledged territorial limits. The use of the army against them has resembled more the case of suppressing an internal enemy, than waging a foreign war. The President, therefore, has, under the authority of a general law, exercised the power of calling out the militia, and sending against them the military force of the United States, without a particular law to authorize it; but surely the case is very different in relation to Indian nations without our territorial limits, and, as far as regards us, to all intents and purposes independent. With regard to these, he had no doubt the assent of Congress to the war was as necessary by the Constitution as in any other war whatever, although he had no doubt the omission to obtain that assent arose from the former practice of the Government, and their not having reflected upon the change in circumstances, which, in the present instance, required a change of that practice. He was never disposed to blame, upon slight grounds, the Executive Magistrate of the Government. But these two last questions were entirely of a domestic nature, and were only differences of opinion as to the mode of exercising a right unquestionably belonging to the nation; and, as he before observed, that Spain had no right to complain of the entrance into Florida, so also she has no right to inquire into the legality of this war against the Seminoles. But, with regard to other acts in the progress of this war, of which Spain had just reason to complain, which might have involved this nation in a foreign war, and which did, in effect, amount to a war on her part against Spain, let us again recur to the original question, whether they proceed from the Executive, or were the acts of General Jackson, upon his own responsibility.

If these were not acts of war, he knew not what were; and yet, as he before observed, Congress had not been consulted. He had no hesitation in saying, that this was the most flagrant and palpable violation of the Constitution-the most violent encroachment upon the rights of that House, which had ever occurred in this country; an encroachment, too, not depending upon a literal construction of the Constitution, To ascertain this, let us examine his orders. but was the assumption of a power expressly They were given to General Gaines on the 16th withheld from any other branch of the Govern- of December, 1817, and are referred to in the ment than Congress; as such, he entered his pro-order directing General Jackson to take the comtest against it, and expressed for it his most entire disapprobation. The Constitution then, sir, has been violated; let us see whether this violation has proceeded immediately from the Executive or from General Jackson.

mand of the army. In those orders the Executive strictly conforms to the established laws of nations; they permit the army to cross the Florida line, if necessary, but expressly direct that, if the Indians should even take shelter under a With regard to entering Florida, much national Spanish fort, and be protected by them, not to law had been quoted to justify the measure; but attack the place, but to report it to the War Deall those principles apply to sovereign Powers, partment, and wait for further orders. Did Genand only serve to show that this nation, in its eral Jackson obey these orders? Let St. Marks, high sovereign capacity, would have had a right Pensacola, and the Barancas answer. But I am to order its armies into that province, without not disposed to censure General Jackson unjustly; giving just cause of offence to Spain. But where there may have been some reason for his taking is this sovereign power lodged by the Constitu- St. Marks, notwithstanding his orders. As far tion of this country? In Congress, unquestion-as the laws of nations are concerned, it might ably, and not in the Executive. I am not prepared, however, to say that, being once involved in war with the Seminoles, the Executive had no right, even under our form of Government, to order the troops into Florida, without the consent of Congress, as an incident to that war. But here another question will arise as to the power of the Executive to enter into that war, without

certainly be justified by a milder code than that from which he has drawn his definition of a pirate. But where was the necessity of taking Pensacola and the Barancas? General Jackson himself shows that there was none; for, in his letter of the 20th of April, he states that the war may be considered at an end-that only a few Red Sticks, &c., remained, who were not a for