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?

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 princi- Is there any other principle which justifies ples assumed by General Jackson himself. If the proceedings? On this subject, if I admire they do not afford a justification, I will next in- the wonderful ingenuity with which gentlemen quire, if there be any other principles authoriz-seek a colorable pretext for those executions, I ing their execution; and I will in the third am at the same time shocked at some of the place make some other observations upon the principles advanced. What said the honorable inode of proceeding. 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 the gentleman's plea, that he had done a right thing in a wrong way!

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

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,

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 toward the greatest instigator of all the wars of the present age? The condemnation of that illustrious man to the rock of St. Helena, is a great blot on the English name. And I repeat what I have before said, that if Chatham, or Fox, or even William Pitt himself, had been prime minister in England, Bonaparte had never been so condemned. On that transaction history will one day pass its severe but just censure. Yes, although Napoleon had desolated half Europe; although there was scarcely a power, however humble, that escaped the mighty grasp of his ambition; although in the course of his splendid career, he is charged with having committed the greatest atrocities, disgraceful to himself and to human nature, vet 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.

and upon the individuals only who compose the | by pointing to the cities sacked, the countries belligerent party. It becomes gentlemen, then, on the other side, to show, by some known, certain, and recognised rule of public or municipal law, that the execution of these men was justified. Where is it? I should be glad to see it. We are told in a paper emanating from the Department of State, recently laid before this House, distinguished for the fervor of its eloquence, and of which the honorable gentleman from Massachusetts has supplied us in part with a second edition, in one respect agreeing with the prototype-that they both ought to be inscribed to the American public-we are justly told in that paper, that this is the "first" instance of the execution of persons for the crime of instigating Indians to war. Sir, there are two topics which, in Europe, are constantly employed by the friends and minions of legitimacy against our country. The one is an inordinate spirit of aggrandizement-of coveting other people's good; 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 The mode of the trial and sentencing of these success. What will be the condition of future men was equally objectionable with the prinAmerican negotiators when pressed upon this ciples on which it has been attempted to prove head, I know not, after the unhappy executions a forfeiture of their lives. I know the laudable on our southern border. The gentleman from spirit which prompted the ingenuity displayed Massachusetts seemed yesterday to read, with a in finding out a justification for these proceedsort of triumph, the names of the commission-ings. I wish most sincerely that I could reconers 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.]

cile 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

There is no occasion for explanation; I am of retaliation is an attribute of sovereignty. It 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,

is comprehended in the war-making power that Congress possesses. It belongs to this body not only to declare war, but to raise armies, and to make rules and regulations for their government. It is in vain for gentlemen to look to the law of nations for instances in which retaliation is lawful. The laws of nations merely lay down the principle or rule; it belongs to the government to constitute the tribunal for applying that principle or rule. There is, for example, no instance in which the death of a captive is more certainly declared by the law of nations to be justifiable, than in the case of spies. Congress has accordingly provided in the rules and articles of war, a tribunal for the trial of spies, and consequently for the application of the principle of the national law. The Legislature has not left the power over spies undefined, to the mere discretion of the commander-in-chief, or of any subaltern officer in the army. For, if the doctrines now contended for were true, they would apply to the commander of any corps, however small, acting as

a detachment. Suppose Congress had not legislated in the case of spies, what would have been their condition? It would have been a "casus omissus ;" and although the public law pronounced their doom, it could not be executed, because Congress had assigned no tribunal for enforcing that public law. No man can be executed in this free country without two things being shown-first, that the law condemns him to death; and, secondly, that his death is pronounced by that tribunal which is authorized by the law to try him. These principles will reach every man's case, native or foreign, citizen or alien. The instant quarters are granted to a prisoner, the majesty of the law surrounds and sustains him, and he cannot be lawfully punished with death without the concurrence of the two circumstances just insisted upon. I deny that any commander-in-convened and acting under the rules and artichief, in this country, has this absolute power of life and death, at his sole discretion. It is contrary to the genius of all our laws and institutions. To concentrate in the person of one individual the powers to make the rule, to judge and to execute the rule, or to judge and execute the rule only, is utterly irreconcilable with every principle of free government, and is the very definition of tyranny itself; and I trust that this House will never give even a tacit assent to such a principle. Suppose the commander had made even reprisals on property, would that property have belonged to the nation, or could he have disposed of it as he pleased? Had he more power, will gentlemen tell me, over the lives of human beings than over property? The assertion of such a power to the commander-in-chief is contrary to the practice of the government.

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 adjutantgeneral's office, at head-quarters, it is described as a court-martial. The prisoners are said, in those orders, to have been tried " on the following charges and specifications." The court understood itself to be acting as a court-martial. It was so organized, it so proceeded, having a judge advocate, hearing witnesses, and the written defence of the miserable trembling prisoners, who seemed to have a presentiment of their doom. And the court was finally dissolved. The whole proceeding manifestly shows, that all parties considered it as a court-martial, cles of war. In his letter to the Secretary of War, noticing the transaction, the general says, "these individuals were tried under my orders, legally convicted as exciters of this savage and negro war, legally condemned, and most justly punished for their iniquities." The Lord deliver us from such legal conviction and such legal condemnation! The general himself considered the laws of his country to have justified his proceedings. It is in vain then to talk of a power in him beyond the law, and above the law, when he himself does not assert it. Let it be conceded that he was clothed with absolute authority over the lives of those individuals, and that, upon his own fiat, without trial, without defence, he might have commanded their execution. Now, if an absolute sovereign, in any particular respect, promulgates a rule, which he pledges himself to observe, if he subsequentBy an act of Congress which passed in 1799, ly deviates from that rule, he subjects himself vesting the power of retaliation in certain cases to the imputation of odious tyranny. If Genin the President of the United States-an act eral Jackson had the power, without a court, which passed during the quasi war with France to condemn these men, he had also the power to -the President is authorized to retaliate upon appoint a tribunal. He did appoint a tribunal, any of the citizens of the French republic, the and became, therefore, morally bound to obenormities which may be practised, in certain serve and execute the sentence of that tribunal. cases, upon our citizens. Under what adminis- In regard to Ambrister, it is with grief and tration was this act passed? It was under that pain I am compelled to say, that he was which has been justly charged with stretching executed in defiance of all law; in defiance the constitution to enlarge the executive pow- of the law to which General Jackson had Even during the mad career of Mr. voluntarily, if you please, submitted himself Adams, when every means was resorted to for- and given, by his appeal to the court, his imthe purpose of infusing vigor into the executive plied pledge to observe. I know but little of arm, no one thought of claiming for him the military law, and what has happened has cerinherent right of retaliation. I will not trou-tainly not created in me a taste for acquiring a ble the House with reading another law, which passed thirteen or fourteen years after, during the late war with Great Britain, under the administration of that great constitutional president, the father of the instrument itself, by which Mr. Madison was empowered to retaliate on the British in certain instances. It is not only contrary to the genius of our institutions, and to the uniform practice of the government, but it is contrary to the obvious principles on which the general himself proceeded.; for, in forming the court, he evidently intended to

ers.

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 the general had a right to select either. Two sentences! Two verdicts! It was not so. The first being revoked, was as though it never had 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 or

dered. 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.

mentous 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

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 liber-afflicted, and desolated, and ruined other counties of Rome. I beseech the committee not to tries. It was supposed, that before any war be so captivated with the charms of eloquence, was declared, the nature of the injury comand the appeals made to our passions and our plained of, would be carefully examined, and sympathies, as to forget the fundamental prin- the power and resources of the enemy esticiples of our government. The influence of mated, and the power and resources of our own bad example will often be felt, when its authors country, as well as the probable issue and conand all the circumstances connected with it are sequences of the war. It was to guard our no longer remembered. I know of but one country against precisely that species of rashanalogous instance of the execution of a pris-ness which has been manifested in Florida, that oner, and that has brought more odium than the constitution was so framed. If, then, this almost any other incident on the unhappy Em- power, thus cautiously and clearly bestowed peror of France. I allude to the instance of upon Congress, has been assumed and exercised the execution of the unfortunate member of by any other functionary of the government, it the Bourbon house. He sought an asylum in is cause of serious alarm, and it becomes this the territories of Baden. Bonaparte dispatch- body to vindicate and maintain its authority by ed a corps of gen-d'armes to the place of his all the means in its power; and yet there are retreat, seized him, and brought him to the some gentlemen, who would have us not merely dungeons of Vincennes. He was there tried to yield a tame and silent acquiescence in the by a court-martial, condemned and shot. There, encroachment, but even to pass a vote of thanks as here, was a violation of neutral territory; to the author. there, the neutral ground was not stained with the blood of him whom it should have protected. And there is another most unfortunate difference for the American people. The Duke d'Enghein was executed according to his sentence. It is said by the defenders of Napoleon, that the duke had been machinating not merely to overturn the French government, but against the life of its chief. If that were true, he might, if taken in France, have been legally executed. Such was the odium brought upon the instruments of this transaction, that those persons who have been even suspected of participation in it, have sought to vindicate themselves from what they appeared to have considered as an aspersion, before foreign courts. In conclusion of this part of my subject, I most cheerfully and entirely acquit General Jackson of any intention to violate the laws of the country, or the obligations of humanity. I am persuaded, from all that I have heard, that he considered himself as equally respecting and observing both. With respect to the purity of his intentions, therefore, I am disposed to allow it in the most extensive degree. Of his acts, it is my duty to speak, with the freedom which belongs to my station. And I shall now proceed to consider some of them, of the most mo

On the 25th 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 25th 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 headquarters, that he shall take St. Marks as a necessary depot for his military operations! The general states, in his letter, what he had heard about the threat on the part of the Indians and