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who addresses you. [Mr. Holmes desired to explain. Mr. Clay said there was no occasion for explanation ; he was 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 hiin, have obtained the sanction of the world to the act, by appeals to the passions and prejudices, by pointing to the cities sacked, the countries 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 towards 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. although Napoleon had desolated half Europe; al. though 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, yet even his life has been spared. The allies would not, Eng

15

Yes,

VOL. III.

land would not, execute him, upon the ground of his being an instigator of wars.

The mode of the trial and sentencing these men is 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 have at once ordered their execution, without that formality. I deny that there is any such absolute right in the commander of any portion of our army. The right of retaliation is an attribute of sovereignty. It 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 are true, they will 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 condi

tion ? 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 second, that his death is pronounced by that tribunal which is authorized by the law to try him. These principles would 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-chief, 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 irreconcileable 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. By an act of Congress, which passed in 1799, vesting the power of retaliation, in certain cases, in the President of the United Statesan act which passed during the quasi war with France, the President is authorized to retaliate upon any of the citizens of the French republic, the enormities which may be practised, in certain cases, upon our citizens. Under what administration was this act passed ? It was under that which has been justly charged with

stretching the constitution to enlarge the executive powers. Even during the mad career of Mr. Adams, when every means were resorted to for the purpose of infusing vigor into the executive arm, no one thought of claiming for him the inherent right of retaliation. I will not trouble 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 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 adjutant general'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, convened and acting under the rules and articles 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 condemnations! 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 subsequently deviates from that rule, he subjects himself to the imputation of odious tyranny. If general Jackson had the power, without a court, to condemn these men, he had also the power to appoint a tribunal. He did appoint a tribunal, and became, therefore, morally bound to observe and execute the sentence of that tribunal. In regard to Ambrister, it is with grief and pain I am compelled to say, that he was executed in defiance of all law; in defiance of the law to which general Jackson had voluntarily, if you please, submitted himself, and given, by his appeal to the court, his implied pledge to observe. I know but little of military law, and what has happened has certainly not created in me a taste for acquiring a knowledge of more; but I believe there is no example on record, where the sentence of a court has been erased, and a sentence not pronounced by it carried into execution. It has been suggested that the court pronounced two sentences, and that the general had a right to select either. Two sentences! Two verdicts! It was not

The first being revoked, was as though it had never been pronounced. And there remained only one sentence, which was put aside upon the cole authority of the commander, and the execution of the prisoner ordered. He either had or had not a right to decide upon the fate of that man, without 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

SO.

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