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" To the Commanding Officer at Fort Hawkins: "DEAR SIR;

what did the preamble itself disclose? 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 state"Since the last war, after you sent word ment), that not one hostile chief signed the that we must quit the war, we, the red people, treaty. I have also heard that perhaps one or have come over on this side. The white people two of them did. If the treaty were really have carried all the red people's cattle off. made by a minority of the nation, it was not After the war, I sent to all my people to let obligatory upon the whole nation. It was void, the white people alone, and stay on this side considered in the light of a national compact. of the river; and they did so; but the white And, if void, the Indians were entitled to the people still continue to carry off their cattle. benefit of the provision of the ninth article Bernard's son was here, and I inquired of him of the treaty of Ghent, by which we bound what was to be done; and he said we must go ourselves to make peace with any tribes with to the head man of the white people and comwhom we might be at war on the ratifi- plain. I did so, and there was no head white cation of the treaty, and to restore to them man, and there was no law in this case. The their lands, as they held them in 1811. I do whites first began, and there is nothing said not know how the honorable Senate, that body about that; but great complaint about what the for which I hold so high a respect, could have Indians do. This is now three years since the given their sanction to the treaty of Fort Jack-white people killed three Indians; since that son, so utterly irreconcilable as it is with those time they have killed three other Indians, and noble principles of generosity and magnanimity taken their horses, and what they had; and which I hope to see my country always exhibit, this summer they killed three more; and very and particularly toward the miserable remnant likely they killed one more. We sent word to of the aborigines. It would have comported the white people that these murders were done, better with those principles to have imitated and the answer was, that they were people who the benevolent policy of the founder of Penn- were outlaws, and we ought to go and kill sylvania, and to have given to the Creeks, con- them. The white people killed our people first; quered as they were, even if they had made the Indians then took satisfaction. There are an unjust war upon us, the trifling consideration, yet three men that the red people have never to them an adequate compensation, which he taken satisfaction for. You have wrote that paid for their lands. That treaty, I fear, has there were houses burned; but we know of no been the main cause of the recent war. And, such thing being done; the truth, in such cases, if it has been, it only adds another melancholy ought to be told, but this appears otherwise. proof to those with which history already On that side of the river, the white people have abounds, that hard and unconscionable terms, killed five Indians, but there is nothing said extorted by the power of the sword and the about that; and all that the Indians have done right of conquest, serve but to whet and stim- is brought up. All the mischief the white peoulate revenge, and to give old hostilities, smoth-ple have done, ought to be told to their head ered, not extinguished, by the pretended peace, man. When there is any thing done, you write greater exasperation and more ferocity. A to us; but never write to your head man what truce, thus patched up with an unfortunate the white people do. When the red people people, without the means of existence, with- | send talks or write, they always send the truth. out bread, is no real peace. The instant there You have sent to us for your horses, and we is the slightest prospect of relief from such sent all that we could find; but there was some harsh and severe conditions, the conquered dead. It appears that all the mischief is laid party will fly to arms, and spend the last drop on this town; but all the mischief that has been of blood rather than live in such degraded bon-done by this town, is two horses; one of them dage. Even if you again reduce him to sub- is dead, and the other was sent back. The catmission, the expenses incurred by this second tle that we are accused of taking, were cattle war, to say nothing of the human lives that are that the white people took from us. Our young sacrificed, will be greater than what it would men went and brought them back, with the have cost you to grant him liberal conditions same marks and brands. There were some of in the first instance. This treaty, I repeat, was, our young men out hunting, and they were I apprehend, the cause of the war. It led to killed; others went to take satisfaction, and the the excesses on our southern borders which be- kettle of one of the men that was killed was found in the house where the women and two gan it. 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

Who first commenced them, it is, perhaps, difficult to ascertain. There 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.

by the English, and to them you ought to apply | despatched. But I regard the occurrence with for any thing about them. We do not wish our grief, for other and higher considerations. It country desolated by an army passing through was the first instance that I know of, in the anit, for the concern of other people. The Indians nals of our country, in which retaliation, by exhave slaves there also; a great many of them. ecuting Indian captives, has ever been deliberateWhen we have an opportunity, we shall apply ly practised. There may have been exceptions, to the English for them; but we cannot get but if there were, they met with cotemporanethem now. ous 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 the monsters. The gentleman, in the course of his remarks, alluded to the State from which I have the honor to come. Little, sir, does he know of the high and magnanimous sentiments of the people of that State, if he supposes they will approve of the transaction to which he referred. Brave and generous, humanity and clemency toward a fallen foe constitute one of their noblest characteristics. Amid 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 had 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.

"This is what we have to say at present. "Sir, I conclude by subscribing myself, "Your humble servant, etc. "September, the 11th day, 1817. "N. B. There are ten towns have read this letter, and this is the answer.

"WM. BELL, Aid-de-camp. "A true copy of the original."

I should be very unwilling to assert, in regard to this war, that the fault was on our side; I fear it was. I have heard that a very respectable gentleman, now no more, who once filled the executive chair of Georgia, and who, having been agent of Indian affairs in that quarter, had the best opportunity of judging of the origin of this war, deliberately pronounced it as his opinion, that the Indians were not in fault. I am far from attributing to General Jackson any other than the very slight degree of blame that attaches to him as the negotiator of the treaty of Fort Jackson, and will be shared by those who subsequently ratified and sanctioned that treaty. But if there be even a doubt as to the origin of the war, whether we were censurable or the Indians, that doubt will serve to increase our regret at any distressing incidents which may have occurred, and to mitigate, in some degree, the crimes which we impute to the other side. I know that when General Jackson was summoned to the field, it was too late to hesitate; the fatal blow had been struck, in the destruction of Fowl-town and the dreadful massacre of Lieutenant Scott and his detachment; and the only duty which remained to him, was to terminate this unhappy

contest.

The first circumstance which, in the course of his performing that duty, fixed our attention, has filled me with regret. It was the execution of the Indian chiefs. How, I ask, did they come into our possession? Was it in the course of fair, and open, and honorable war? No; but by means of deception-by hoisting foreign colors on the staff from which the stars and stripes should alone have floated. Thus ensnared, the Indians were taken on shore; and without ceremony, and without delay, were hung. Hang an Indian! We, sir, who are civilized, and can comprehend and feel the effect of moral causes and considerations, attach ignominy to that mode of death. And the gallant, and refined, and high-minded man, seeks by all possible means to avoid it. But what cares an Indian whether you hang or shoot him? The moment he is captured, he is considered by his tribe as disgraced, if not lost. They, too, are indifferent about the manner in which he is

"But the character of this gallant detachment, exhibiting, as it did, perseverance, fortitude, and bravery, would, however, be incomplete, if in the midst of victory, they had forgotten the feelings of humanity. It is with the sincerest pleasure that the general has heard,

that the most punctual obedience was paid to his orders, in not only saving all the women and children, but in sparing all the warriors who ceased to resist; and that even when vigorously attacked by the enemy, the claims of mercy prevailed over every sense of their own danger, and this heroic band respected the lives of their prisoners. Let an account of murdered innocence be opened in the records of heaven, against our enemies alone. The American soldier will follow the example of his government, and the sword of the one will not be 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 practise, under color of retaliation, enormities on the Indians. I will advance in support of this position, as applicable to the origin of all law, the principle, that whatever has been the custom, from the commencement of a subject, whatever has been the uniform usage, coeval and coexistent with the subject to which it relates, becomes its fixed law. Such is the foundation of all common law; and such, I believe, is the principal foundation of all public or international law. If, then, it can be shown that from the first settlement of the colonies, on this part of the American continent, to the present time, we have constantly abstained from retaliating upon the Indians the excesses practised by them toward 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 changedwhen 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 enlighted 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 practised toward the Indian tribes the right of retaliation, now for the first time asserted in regard to them? It is because it is a principle proclaimed by reason, and enforced by every respectable writer on the law of nations, that retaliation is only justifiable as calculated to produce effect in the war. Vengeance is a new motive for resorting to it. If retaliation will produce no effect on the enemy, we are bound to abstain from it by every consideration of humanity and of justice. Will it, then, produce effect on the Indian tribes? No; they care not about the execution of those of their warriors who are taken captive. They are considered as disgraced by the very circumstance of their captivity, and it is often mercy to the unhappy captive to deprive him of his existence. The poet evinced a profound knowledge of the Indian character, when he put into the mouth of a son of a distinguished chief, about to be led to the stake and tortured by his victorious enemy, the words:

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

Retaliation of Indian excesses, not producing then any effect in preventing their repetition, is condemned by both reason and the principles upon which alone, in any case, it can be justified. On this branch of the subject much more might be said, but as I shall possibly again allude to it, I will pass from it for the present, to another topic.

It is not necessary, for the purpose of my argument in regard to the trial and execution of Arbuthnot and Ambrister, to insist on the innocency of either of them. I will yield for the sake of that argument, without inquiry, that both of them were guilty; that both had instigated the war; and that one of them had led the enemy to battle. It is possible, indeed, that a critical examination of the evidence would show, particularly in the case of Arbuthnot, that the whole amount of his crime consisted in his trading, without the limits of the United States, with the Seminole Indians, in the accus

tomed 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 principles assumed by General Jackson, which may be found in his general orders commanding the execution of these men, is, "that it is an established principle of the law of nations, that any individual of a nation making war against the citizens of any other nation, they being at peace, forfeits his allegiance, and becomes an outlaw and a pirate." Whatever may be the character of individuals waging private war, the principle assumed is totally erroneous when applied to such individuals associated with a power, whether Indian or civilized, capable of maintaining the relations of peace and war. Suppose, however, the principle were true, as asserted, what disposition should he have made of these men? What jurisdiction, and how acquired, has the military over pirates, robbers, and outlaws? If they were in the character imputed, they were alone amenable, and should have been turned over to, the civil authority. But the principle, I repeat, is totally incorrect, when applied to men in their situation. A foreigner connecting himself with a belligerent, becomes an enemy of the party to whom that belligerent is opposed, subject to whatever he may be subject, entitled to whatever he is entitled. Arbuthnot and Ambrister, by associating themselves, became identified with the Indians; they became our enemies, and we had a right to treat them as we could lawfully treat the Indians. These positions are so obviously correct, that I shall consider it an abuse of the patience of the committee to consume time in their proof. They are supported by the practice of all nations, and of our own. Every page of history, in all times, and the recollection of every member, furnish evidence of their truth. Let us look for a moment into some of the consequences of this principle, if it were to go to Europe, sanctioned by the approbation, express or implied, of this House. We have now in

our armies probably the subjects of almost every European power. Some of the nations of Europe maintain the doctrine of perpetual allegiance. Suppose Britain and America in peace, and America and France at war. The former subjects of England, naturalized and unnaturalized, are captured by the navy or army of France. What is their condition? According to the principle of General Jackson, they would be outlaws and pirates, and liable to immediate execution. Are gentlemen prepared to return to their respective districts with this doctrine in their mouths, and to say to their Irish, English, Scotch, and other foreign constituents, that they are liable, on the contingency supposed, to be treated as outlaws and pirates?

Is there any other principle which justifies the proceedings? On this subject, if I admire the wonderful ingenuity with which gentlemen seek a colorable pretext for those executions, I am at the same time shocked at some of the principles advanced. What said the honorable gentleman 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 the right thing! In what code of public law; in what system of ethics; nay, in what respectable novel; where, if the gentleman were to take the range of the whole literature of the world, will he find any sanction for a principle so monstrous? I will illustrate its enormity by a single case. Suppose a man, being guilty of robbery, is tried, condemned, and executed, for murder, upon an indictment for that robbery merely. The judge is arraigned for having executed, contrary to law, a human being, innocent at heart of the crime for which he was sentenced. The judge has nothing to do to insure his own acquittal, but to urge gentleman's plea, that he had done a right thing in a wrong way!

The principles which attached to the cases of Arbuthnot and Ambrister, constituting them merely "participes" in the war, supposing them to have been combatants, which the former was not, he having been taken in a Spanish fortress, without arms in his hands, all that we could possibly have a right to do, was to apply to them the rules which we had a right to enforce against the Indians. Their English character was only merged in their Indian character. Now, if the law regulating Indian hostilities be established by long and immemorial usage, that we have no moral right to retaliate upon them, we consequently had no right to retaliate upon Arbuthnot and Ambrister. Even if it were admitted that, in regard to future wars, and to other foreigners, their execution may have a good effect, it would not thence follow that you had a right to execute them. It is not always just to do what may be advantageous. And retaliation, during a war, must have relation to the events of that war, and must, to be just, have an operation on that war,

and upon the individuals only who compose the | by pointing to the cities sacked, the countries belligerent party. It becomes gentlemen, then, laid waste, the human lives sacrificed in the on the other side, to show, by some known, wars which he had kindled, and by exclaiming certain, and recognised rule of public or muni- to the unfortunate captive, You, miscreant, cipal law, that the execution of these men was monster, have occasioned all these scenes of justified. Where is it? I should be glad to devastation and blood! What has been the see it. We are told in a paper emanating from conduct even of England toward the greatest the Department of State, recently laid before instigator of all the wars of the present age? this House, distinguished for the fervor of its The condemnation of that illustrious man to eloquence, and of which the honorable gentle- the rock of St. Helena, is a great blot on the man from Massachusetts has supplied us in part English name. And I repeat what I have bewith a second edition, in one respect agreeing fore said, that if Chatham, or Fox, or even with the prototype-that they both ought to be William Pitt himself, had been prime minister inscribed to the American public-we are justly in England, Bonaparte had never been so contold in that paper, that this is the "first" in-demned. On that transaction history will one stance of the execution of persons for the crime day pass its severe but just censure. Yes, alof instigating Indians to war. Sir, there are though Napoleon had desolated half Europe; two topics which, in Europe, are constantly although there was scarcely a power, however employed by the friends and minions of legit- humble, that escaped the mighty grasp of his imacy against our country. The one is an ambition; although in the course of his spleninordinate spirit of aggrandizement of covet- did career, he is charged with having committed ing other people's good; the other is the treat- the greatest atrocities, disgraceful to himself ment which we extend to the Indians. Against and to human nature, vet even his life has been both these charges, the public servants who spared. The allies would not, England would conducted at Ghent the negotiations with the not, execute him upon the ground of his being British commissioners, endeavored to vindicate an instigator of wars. our country, and I hope with some degree of success. What will be the condition of future American negotiators when pressed upon this head, I know not, after the unhappy executions on our southern border. The gentleman from Massachusetts seemed yesterday to read, with a sort of triumph, the names of the commissioners employed in the negotiation at Ghent. Will he excuse me for saying, that I thought he pronounced, even with more complacency and with a more gracious smile, the first name in the commission, than he emphasized that of the humble individual who addresses you?

The mode of the trial and sentencing of these men was equally objectionable with the principles on which it has been attempted to prove a forfeiture of their lives. I know the laudable spirit which prompted the ingenuity displayed in finding out a justification for these proceedings. I wish most sincerely that I could reconcile them to my conscience. It has been attempted to vindicate the general upon grounds which I am persuaded he would himself disown. It has been asserted that he was guilty of a mistake in calling upon the court to try them, and that he might at once have 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

[Mr. Holmes desired to explain.]

the law of nations for instances in which re

There is no occasion for explanation; I am of retaliation is an attribute of sovereignty. It perfectly satisfied. 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 taliation is lawful. The laws of nations merely lay down the principle or rule; it belongs to the government to constitute the tribunal for applying that principle or rule. There is, for example, no instance in which the death of a captive is more certainly declared by the law of nations to be justifiable, than in the case of spies. Congress has accordingly provided in the rules and articles of war, a tribunal for the trial of spies, and consequently for the application of the principle of the national law. The Legislature has not left the power over spies undefined, to the mere discretion of the commander-in-chief, or of any subaltern officer in the army. For, if the doctrines now contended for were true, they would apply to the commander of any corps, however small, acting as

[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,

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