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parture from the established laws and usages which have regulated our Indian hostilities. And does the honorable gentleman from Massachusetts expect, in this august body, this enlightened assembly of Christians and Americans, by glowing appeals to our passions, to make us forget our principles, our religion, our clemency, and our humanity? Why is it that we have not 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 the 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 :
Retaliation of Indian excesses, not producing then any effect in preventing their repetition, is condemned by both reason and the principles upon which alone, in any case, it can be justified. On this branch of the subject much more might be said, but as I shall possibly again allude to it, I will pass from it, for the present, to another topic.
It is not necessary, for the purpose of my argument, in regard to the trial and execution of Arbuthnot and
Ambrister, to insist on the innocency of either of them. I will yield, for the sake of that argument, without inquiry, that both of them were guilty; that both had instigated the war; and that one of them had led the enemy to battle. It is possible, indeed, that a critical examination of the evidence would show, particularly in the case of Arbuthnot, that the whole amount of his crime consisted in his trading, without the limits of the United States, with the Seminole Indians, in the accustomed commodities which form the subject of Indian trade; and that he sought to ingratiate himself with his customers, by espousing their interests, in regard to the provision of the treaty of Ghent, which he may have honestly believed entitled them to the restoration of their lands. And if, indeed, the treaty of Fort Jackson, for the reasons already assigned, were not binding upon the Creeks, there would be but too much cause to lament his unhappy, if not unjust fate. The first impression, made on the examination of the proceedings in the trial and execution of those two men, is, that on the part of Ambrister, there was the most guilt, but at the same time, the most irregularity. Conceding the point of the 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 are any other principles authorizing their execution; and I will, in the third place, make some observations upon the mode of proceeding.
The principle, assumed by general Jackson, which may be found in his general orders commanding the execution of these men, is, “ that it is an established principle of the law of nations, that any individual of a nation, making war against the citizens of any 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 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 should 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 say to their Irish, English, Scotch and other foreign constituents, that you are liable, on
the contingency supposed, to be treated as outlaws and pirates ?
Is there any other principle which justifies the proceeding? On this subject, if I admire the wonderful ingenuity with which gentlemen seek a colorable pretext for these 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 a right thing! In what code of public law; in what system of ethics; nay, in what respectable novel; where, if the gentleman were to take the range of the whole literature of the world, will 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 ensure his own acquittal, but to urge the gentleman's plea, that he had done a right thing in a wrong way!
The principles, which attached to the cases of Arbuthnot and Ambrister, constituting them 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
Arbuthnot and Ambrister. Even if it were admitted that, in regard to future wars, and
to other foreigners, their execution may have a good effect, it would not thence follow that you had a right to execute them. It is not always just to do what may be advantageous. And retaliation, during a war, must have relation to the events of that war, and must, to be just, have an operation on that war, and upon the individuals only who compose the belligerent party. It becomes gentlemen, then, on the other side, to show, by some known, certain and recognized rule of public or municipal law, that the execution of these men is 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 goods. The other is the treatment which we extend to the Indians. Against both these charges, the public servants, who conducted at Ghent the negotiations with the British commissioners, endeavored to vindicate our country, and I hope with some degree of success. What will be the condition of future American negotiators, when pressed upon this head, I know not, after the unhappy executions on our southern border. The gentleman from Massachusetts seemed on 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 named in the commission, than he emphasized that of the humble individual