About Savannah daily republican. (Savannah, Ga.) 1818-1824 | View Entire Issue (Jan. 28, 1819)
tEB.i rR on THE SEMI A OLE IFJH •HOUSB OF BEPUBSr.NTAtlVBS. Monday. Jon. 8 In comn-i'lM of Ore whole on the slate fof the Union, the following revelation, re ported by the committee on military <f- I fairs, was under Consideration, viz: jResobtrd, That- the House of Represen tatives of the United States disapproves the proceedings in the trial and execution of Alexander Arbuthnot and Robert C. Atnbristcr. 'Mr. COBB, of Georgia, commenced the debate, by observing, that although he concurred in Opinion with the military committee, as expressed in their report under consideration, yet he thought they had not .gone far enough. There were other matters, arising out of the late Se minole war, which be thought of infinitely greater importance, -and, in compatison with which, indeed, the trials of Arbuth- cot and Ambrister were objects of but secondary consideration. As highly, there fore, as ne disapproved the proceedings in the trial of these men, yet as, by t le report, the matters to which he had'allu eion were not presented for consideration, he held in his hand certain resolutions which it was his intention* to propose, by way of amendment to tlie report of the military committee. £.Mr.-Cobb here read the amendment which he subsequently moved.} From these resolutions, the com mittec of the whole would observe that it was his intention to open the whole field • of debate, and to prcscirt for discussion, not only the tri lls of these men, but the capture of tktSpanush posts of St. Marks, . J'eiisarola, and-iiaraucas, in which, he be lieved, thece -had been a most flagrant breach of the (^nstitutioc of the United ’ States. But as notwithstanding the a tnendment he’ was about ,to propose, the (resolution of the military committee wouid Stand first in order,,he-would proceed to tnak'- a few remarks ias to the subject matter of that resolution. He thought he. could promise that the committee should Dot be Jong 'detained by the observations which he (night have the honor to make either upon-this resolution ori those which be would lay upon the tahlc, as, at that early period of the discussion, it was not ••necessary to present to the committee any -firm" more than what he considered the leading points, reserving to himself the Tight of speaking, as to particulars, at ?ome future period, if he should find it •necessary. * . In attending to (he trial by court mar tial of those- two Englishmen, the first ob ejects for consideration which presented /Aemsclves, were the charges exhibited a gainst theip. Reasoning upon the snppo ■oition that they were true, he was:- per- •fcetly at * loss.to know what law, martial, municipal, -or national, was violate^. A- • gainst what law had they oftendedf He nvas not certain .that he perfectly liader etood whaj was national law in this coun try. Were- he to view it in the light that it had been''explained -and enfbrtcd by some, he must be. com pelted to con.Tder it as paramount authority indeed; so high in its nature' 'as: (hat it could be made to suspend the constitution itself. He had not yet obtained -his consent to give it this omnipotent effect, and he hoped he never 'should. He had thought, an/1 yet bel-eved, .until he could have soov; proofs to the contraiy, .that-it-was contained in that body of laws established Ijrv the Congress of the United Stetes for the government of the army, cemmonly called the "Rules and Articles of War.” If he was correct in this opinion, (and he presumed no gentleman would controvert It,) he had searched in vain, (and he had used no little industry to discover) for that clause against which Arbuthnot and Ambrister bad offended, in the commission of the acts charged against them, and for which they were convicted. It was true, there was a clause subjecting to death those who should be convicted of being “spies.” But, although these men, or one of them, was charged with this, vet he was acquit ted of that charge, and for that reason it •would be unnecessary to take farther no- tice of it The offence for which they were convicted and suffered death, was that of “exciting and stirring up the Creek In- dians to War against the United States and her citizens they being subjects of Great Britain, with whom the United States are at peace;” “of aiding, abetting, and comforting the enemy, and supplying them with the means of war;” “and lead ing and commanding the Lower Creeks , in carrying on war against the United States.” Admit the troth of the facts con tained in these charges, are they declared penal in any part of the Rules and Articles of War? Or are thiy therein declared to be proper subject matters for trial before a court martial? If they were not, it fol lowed, as a consequence, that the com manding general had transcended his pow ers in ordering the court, and that the court itself had stretched its powers to an unwarrantable length, in acting upon mat ters not cognizable before them. It would be arguing to little purpose to prove, that the crimes contained in these charges , were not embraced in the rules and arti cles of war. It would be sufficient, at present, simply to deny that they were, until those who differed from him in o- pinion attempted to prove the affirmative of the question. Mr. C. thought it would be an attempt equally fruitless to prove that the matters charred arainst these individuals consti tuted an offence against national law, for whicb they were answerable before a martial. He did not profess to be r read jn the law of nations. He had, searched, in the hope that he Enid find some justification for this most JotcJ proceeding, all the writers on that •nhject, upon whose works he had been rfble to lay his hands. H^had commenced and prosecuted this search under the most anxious wi|h for success. It had been an object-of great solicitude with him to res- , cue both th^ court and the general who l it,’from the imputation of injustice- man had been fortunate, he should rejoice, to learn it He certainly could have no. wish' to remain in error. Tue nex point iilcljiifd by Mr. Cobb was av to llie-evidei.ee under which butl or one of these men, were convicted, H «houM no: say much op-ic it. Curjie did nut intend to anal it* it: He had understood and ou doubt c«t redly, that the rules cv drnce, in courts martial, differed ve little, in principle, from those established in the courts of common law. It was do< • ired, he bt-uei ed by the oniy American authority, (Macomb on martial law, j that he knew any thing of, ou that subject. 11 presumed it would not be denied. But sir, said he, if we trettheevidence pr 'doer in those trie s by these rules, we shall blush at the snamelul perversion ut justice there in displayed. The evidence of papers, not produced or accounted for the belief of persons whose testimony of facts ought to have been doubted, hearsay and tk.t of Indians, negroes or others who, had they been present, could not have been sworn were all indiscriminately admitted and and ac'ed upon. MiseraDle,. indeed, will be the precedents established by this court mertiai fur others winch may be hereaflei be formed! Meie need cot to be said on this subject Mr. C. next called the attention of the committee to the sentence under which Ambrister was executed. He had stron doubts whether, upon giving a fair con -trucuci* to the rules and articles of war, the proceedings o.‘ the court martial ought no*, to have been laid before the president ol the United Stales before the sentence was carried into effect. But he waived t‘ examination of this question. It seem that the court first sentenced Aiabi ister to be shot: but une of the members having asked a reconsideration of trie s*-ii‘tc-i.c before tlie proceedings were submitted the commanding general, it was allowed and another punishment uwaided, as igao minces in its nature as imagination could well conceive but winch yet spared life — Now, will it be contended that this-rerun •“deration and change of sentence did not lo all intents and purposes render null utid void the first sentence? Cun it be said witii any truth, that there was any utlie* aentence than the one last passed, in the Case? But,unfortunately, the first sentence was not erassed from tlu- proceedings t.f the court. It is there found by the geii I, when they were submitted.tonun, ami by a. high stretch of power, lie avails turn self ol it—“approves the finding and firs sentence—disapproves of the reconsider.* tion and last sentence,” and directs ,t • man to be executed! To me, sir, said Mr C. this proceeding has upon its fax-e cruelty that excites my greatest tlisappm •ation. The last thing to which Mr. C would call the attention of the cmnnntb was the principle by which the command ng grueral ptofesses to have been govern ed in ordering the execution of AtuOt ister; and which, in its extent, as contended by the report of the committee under consjq- i ation, applied witii I'-qurhl force to the ca-e of Arbuthnot. It is in these words; •it is an established nrinciple-of the law >f nations, that any individual of a nation H iking war against the citizens of another nation, they being at peace, forfeits his al l.-giance, and bocomcs an outlaw and a pirate.” The military committee, in then- report, have very properly denied the es t iblishnicnt of any such principle in the law of nations. Sir, said Mr. C. I boldly ■to desist, If any other gcatle-- challenge any man of common sense to prove the existence of such a principle, ti the extent it is here laid down. Reason, propriety, justice, and humanity, all cry aloud agamst such a principle! ‘ So far a* iny researches have gone, it is absolutely deni-. d by the writers on national law; anti, I sincerely hope, wiit be absolutely denied by every member of this committee. If this principle was true, then Li Fayette. Da Kalb, Pulaski, and a large host of for eigners, who joined the standard of our fathers in the revolution, and, by their blood, and at the expense of their lives, aided in the establishment of the indepen- lenceof this nation, were “outlaws and pirates;” and, had they been captured, were subject to have been tried and sen enced to an ignominous death by a court martial. For, when they entered our se;- ice, they were “individuals of a nation at peace” with England, and they, after they joined otsr arms “made v.ar upon England id her citizens, and thereby forfaited tlteir allegianee.” Sir, is the committee prepin-d to brand these men with the ti es of “outlaws and pirates,” by their net oil to this principle? 1 will not yet believe it. But, it may be said that these English men having ••joined a savage nation, who observe no rules, and give no quarter," ive have a right to treat them precisely as we might treat the savages whom they have joined, and that he would have a right put the savages to death, upon p tncipie of retaliation- Let this yo~ turn lor a moment be admitted, ml yet it will he 'vident *.!iat Mie principle under which he should proceed would be a very different one—to wit,that of retaliation. For, even savages cannot gularly be put to death, until they re fuse ‘*to observe rules or give quarter.”— In order that the principle established by general Jackson may be applied, it must ndergo a material amendment. Instead >f thewordsin whichit is couched, itshould -ead thus—“Itxs an an established princi ple of the law of nations, that any indi vidual of.i nation joining savages and bar barians who observe no rules and give no quarter, and making war against the citi zens of another nation, they being at peace, becomes himselj a savage and bar barian, and may be treated as such ’’— Under such a principle, there would have been mote justice, (humanity being nut ot be question) in putting Ambrister and Vrbutliout to death. Mr. C. then proceeded to enquire whether the commanding general of the American army possessed the power to ex ercise the right of retaliation? If in its ex- erase there U any responsibility, he con ned Jh* happiness df act oniy the present generation, but, es I would fondly believe; of myriads of our posterity, yet unborn! But to the point. That part of tlie con stitution whiih i believe'to have been vio lated by the capfuie of the Spanish posts, in the one vesting in congress solely the power of declaring *.var. It is necessary to enter upon a course of reasoning to prove the jjoliey of vesting this 0 jwer in congress, or in other Words in ti.e people i would fondly hope that there is no man upon this flo-.r, who wishes to see it chan ged; and I feel (hat I should be doing them an injustice did I even su-pect them of such a wish. So clear, so self-evident, is the policy of placing it where the constitu tion has left it, if I am tint mistaken; the immortal authors of the letters ol Publius, would not condescend to consume une mo ment of time, u. waste one solitary argu ment in the proof of it But suen a dis cussion is now too late- it would be fruitless;—the point is settled. It is ves ted in congress—in the people; and the true question is, will you preserve it to them inviolate? Si', so long as it is pre served to the people, we have the best se curity .gainst the ambition of individuals tve need fear no tyrants. It it is once lust runt is the consequence. And permit me here to observe, that from no portion of the people have we so much cause to fear the loss of tins great prerogative of peace and war; as tiom the milnary. If it should ever Oc usurped depend upon it it will be by a military man (' ifl natural to the puhne mind to admire warlike deeds. In the splendor of miht'- ly achievements, our eyes are blinded, ami our reason is obscured. We become so ml ;tu-xted with the man that we lose sight f principle, and we are offering him our worship, before we are aware that ae have made him a God. Sir, 1 much lear that this spiric of adulation has already perva ded the mind, of the people of this coun ty to a most injurious extent. But to the proof of a violation of the constitution.—-This question might at once be put to rest, by shewing that a war has been commenced and prosecuted . to a conclusion, and calling upon those who conducted it for their authority in doing so. Sir, no such authority can be found in your statute book. Will it be denied that war has been prosecuted against the Spanish authorities in Florida? What is war,* but the exercise “of force, of violence between nations, in the prose cution of their rights,” whether real or imaginary? Such, gentlemen will find to be its definition, whether their own reasou or the best writers upon this subject be consulted. Such it is defined to be in the work which I hold in my hand (Vattel.) That the Spanish posts were captured by the exercise of this force by the army of the United States, is most evident, from the communications of General Jackson with the war department. In his letter of 5th of May, 1818, speaking of the cap ture of St. Marks, he says, he entered it by “violence.” In his letter of 2d June following, detailing his operations against Pensacola, he says, “he demanded the sur render of that place, and entered it only with a show of resistance.” Barrancas he regularly invested; “mounted batteries against it;” “commenced offensive opera tions;” forced the Spanish garrison to “capitulate,” and granted them “more favorable terms than a conquered enemy would have merited.” Here, then, is furnished most abundant evidence of that very circumstance, or force, necessary to constitute tear. Of the capture of the Spanish posts by war, then, there i3 no doubt. But this is not all. It was an of fensive war.' To give it tlie character of a defensive war, it must appear that our country had been invaded, or was in immi nent. danger of invasion by the Spanish forces in East Florida, or efsewhere. Or, if this was not the case, it ought, at least, to be made to appear, that our army, w’liifh had neen marched into East Florida, in pursuit of our Indian enemy, had been attacked by the Spaniards; or that they had arrayed themselves against us, for the purpose of preventing that pursuit of our*oemy. None of these cases appear to have happened. The Spanish authori ties spoke the language of peace. The minister of Spain was here. We had a minister at Madrid; peace prevailed be tween the two nations, and negociations of a friendly kind were going on. Not a Spanish soldier had raised nis hand, or pointed his musket against us, until the American army satdown before St. Marks and Pensacola, for the purpose of captur ing them. To call it a defensive war, therefore, is idle. It is an outrage upon common sense. It was an offensive v.ar to all intents and purposes. We had no territory in East Florida to claim Trom Spain. Itmust, f; '-re Tore, have been prosecuted to punish some wrong or prevent some threatened danger. These arc the leg tiniate objects of offtn- • .. , - ... ,, . , a. ve wars. They are so declared to he by permit to pass uunoticed the exercise of a * * ■’ „ „r -n * r iT-.l ths writers on the subject ol war. lhat tended it was platvti upon the nation. Ttier were accountable-to all other nations for the manner in which they conducted their wars* To the nation, therefore, it bif! ooged, to establish the rules of icnr, (>} which it w-uld be goverheiSf.and the au thority by which they were to be establish ed, was that in whose hands was vested the right of declaring war. in their es tablishment, the character of the natiou for jastice, for humanity, etc. was deeply involved Who, he asked, were the.legi- tiniate guardians of the character of tins nation, but congress—the war declaring powe,?—Mr. C. thought he was not singu lar in this opinion. He believed that the late president of the United States, the vii tuous James Madison, was if the same opinion. For when, during the late war, it was thought necessary to apply the re taliai's-y principle, did lie believe himself clothed with power t-> do it. although com mander in cli'of? No—hebclieved it was in congress alone. T<» cong'ess he appli ed for the power, and, by a special act, they conferred it ou liiiti. Mr. C. thought this case should be considered as conclu sive authority. But he would enquire how long this re taliating principle, even upon savages, had bjeep.in operation tliij country? So far as Ills memory seriiifd him, the Seminole war afflrdecl the first instance in which il had been exercisrd, from the time ot the establiihmeot of the provincial governments, up to this day In the In dian wa*s ill the south, and in the north wi^t.in the years 1*93-4-5, he recollect ed to have heard of nu instance of it.— Paring tlie late war with Eagatml white- men were ruptured alter B e massacre at tlit- river Rasin, wbild fighting by he side ail the savage, and were not put to death.— Viy, general Jackson himsrlf had in hi- htndi the vciy leaders of the merciless bind, who bu-clie'erlthe hundreds of hi countrymen: whose bones afe now muul- let ing underTire saint of fort Mims, and did. not put them lo deatii! Where then was his nvvngiug-arm? . Why did lie not then brandish tlie ovvopd of retaliating justice? No! He had not then clothed himself with such mighty powers. But now, when the United Slates have no other enemies to contend vflth than the small tribe soft lie.Seminole Indians, aid ed by a lew negroes and Upper Creeks, it has become, all. af ouce, necessary, after tliev have lit-eu defeated and dispersed, jo.i'tVifhe tu\vn$ destroyed, toexeicise re i Ifcrtibnf In une ’day has the fair charae- er of this nation been blasted! That haracter for justice and mercy in wiri I: we thought ourselves pre-eminent, and ot which we hail so proudly boasted to the the? nations of the earth, is now prostrat- J as low B9 theirs,. They can now say to ur, boast n<> more —you are not less erne, 'had other natiiois. But, sir, said Mr. C l have done vviltf fhhi duiagi ceable subject r turn . with kly&ust Him this nauseous scene. >.!- itr -Cobb th *n submitted -the resol u - (ions he had b.Ta.-e read in his la.ee, prcla- five to the capturaroUthf Spanish posts in East Florida, as on amendment to the re port of. the military committee. Upon these resolutions be presumed the door fr.r a discussion, a* w.de as cowid be, wa» opened. The fic.t resolution pointed to an act of legislation, growing out ot the doptinn of the -resolution submitted by the military committee, l'he second dis approved the capture of the Spanish pnsts. oncoustitutiiirial, and the third pointed to a legislative act arising out of such dis approval. A subject involving a breach of the constitution, said Mr. C. must at all times be an interesting one, to the nation and to ConsrPi*. Such he considered the one now presented to the committee of the whole. It ought to be discussed with calm deliberation, but with firmness. He hoped j he had not yet travelled out of this rule. ] If, contrary to his intention, he had done so, and thereby done injury to tin-feelings of any, he regretted it;.and would repair the injury by any means in his power. Towards General Jackson, Sir. Cobb said, hope I have not used language unneces sarily severe, or unsuited to the dignity of tins house. Such was not my intention. If I have betrayed a want of'eaution or cahnness, I hone the committee will be lieve it proceeded more from the unre flecting warmth of hurried debate, than from a wanton desire unnecessarily to as sail feelings. To me Genera! Jackson is personally a stranger. It is impossible, therefore, that I can entertain for him any personal enmity. I know him only as a public man—and it is oniy in his public character that I have censured his con duct. In doing so I have no personal wishes to gratify, no disappointed hopes to revenge, and’no interests to promote, but those of the people. Sir, I love my country—-I love her character—I love her constitution. As the representative of the people of Georgia upon this floor, I should feel mysell criminal were I to power, which in its operations, has a ten dency to sap the fair fabric of this sacred instrument, established at the expense of so much blood aind treasure. Against the usurpation of such a power, by any indi vidual, I feel it ray duty to raise both my hand and my voice. - No man can more highly appreciate the distinguished ser vices of General Jackson than I do-. So far as those services have been virtuous and legal, I have joined mv countrymen in crying “well done; good and faithful servant;” and in bestowing upon him my plaudits and warmest thanks. For suen services 1 am still willing to join in crowd ing laurels upon his head, until it bends under the weight of thfm. But, if they are to be acquired by his trampling upon the constitution, and the best interests of tliis country, then shall I wish to see each leaf of these laurels fade, and fall in ruin to the ground.. Nayt the very brow which tiieyeadrcle sink ; ■‘ jSf 3j “To the vile duct from whence It sprang, “Unwept, unhonnred, and unsung.”— Sir, upon the preservation of this instru ment in its purity, depends the freedom such precisely were nur objects in the at tack upon the Spanish post», is evident from the documents on our table. Not that we had much threatened danger t-* fear fiom them, far they threatened nonr— what could we fear from such a handful of soldiers as Spain there had—but because they had done u» great wrongs, which it was our intention to punish. The presi dent’s message, and gen. Jackson’s letters are filled with th“ details of these wrongs. Such of them as are mged as affording rea sons for the attack of St. Marks and Pen sacola, are as follow^. “That Spain had broken her treaiy,by which she was bound to restrain the Indians within her territory from attacking us,” that, so far from doing this, she departed from a“neu>ral conduct” and supplied the savages with arms, am munition, etc. “encouraged them to make War on us,” “gave them refuge and pro-' tection.’'“protested against the invasion to East Florida, and threatened In resist froce by force,” “sent menacing letters to • Vattel, B. 3f« 1- gen. Jackson,” i^'fir.aiiybectkirseit wasfexr- i d “the Spanish posts might fall into the 'lands of Indians.” These reasons are soma of thura ridiculous irt themselves,and such as. to say the most of them, hut cau ses of war. They contain, wrongs which demand punishment. But who, Mr. Chairman, authorised or directed this war? That congress, tnc constitutional power, declared it( will not ue pretended. The executive had no pow er, had he been disposed. The president, in his message disclaims any such power ••it belongs to congress alone,” says he, to charge the relations existing between Spain and the -United States. But this is not all. If all the orders issued to the gen eral commanding are laid before us, it is evident to me that the executive did not authorise this war upon the Spanish authorities expressly, or by implication Far be it from me to entertain the slightest wish to charge the. executive with duplici ty. 1 will not say that all the orders and correspondence between the executive and general Jackson have uot been laid before us. But. candor compels me to say, that there is sonn thing a little mysterious to me upon the face of the documents before us. I will proceed ta slate the grounds ot this mystery. In the first piacc i cannot a* count for the perfect con fidence which General Jackson shows, throughout his correspondence, in the cor rectness of his proceedings, in which he had clearly violated his orders, as 1 will hereafter show. H c never expresses a doubt that his conduct will be approved. Acting as he did, manifestly contrary to orders, he never eveu attempts to r.rruse - himself. He does not seem to think that, he has overleaped his orders. He has no apprehensions, no fears, as to the opinion the Executive might form of his proceed ings. And yet, if the orders on our table are all that tie received, it appears to me he must have known that he had violated them. But I am somewhat staggered at another fact, if I have made no mistake. In his letter of the 5th ofi May, 1818, which is the only one in which he conde scends to notice his instructions, he says that his measures have been adopted in pursuance of instructions from the War Department, and under a firm conviction that they alone were calculated to insure “peace and security to the Southern fron tier of Georgia.” These last words are given to us as a quotation, and, one would believe, from the general’s orders. 1 have not seen any order either to Gen. Gaines or Gen. Jackson containing these expres sions. But, yet I may be mistaken. Again, taken in connection witii these, may be the letter from tlie Secretary at IVar to Gov. Bibb. In that the Secreta ry says, that “Gen. Jackson is vested witii full powers to conduct the war in the man ner he may judge best.” This letter is dated more than a month after the capture of St. Marks. Certainly no “full pow ers” as against tlie Spanish authorities ape laid before us; and yet no intimation is given that Gen. Jackson had exceeded his authority until orders Were given to General Gaines to restore Pensacola and Barrancas in the August following—-and then it is not noticed, otherwise than by directing restoration. The last circumstance which I shall no tice as inexplicable to me, is the fact that General Jackson has never been called to account for his transcending hfe orders.— All those circumstances do stagger me. But I shall be glad if they can be explain-, ed by gentlemen differing from me in opinion, and who have taken abetter view oT the documents. I have no wish to be lieve that there is any mystery in these proceedings. Reasoning upon the presumption that all the orders ever issued in relation to this war have been communicated to us, there is abundant cause to say not only that Gen. Jackson was not ordered to at tack the Spanish posts, but was expressly forbidden to do so. It is fairly to be in ferred from the message, that he acted without orders. And, if we can be per mitted to refer to the unofficial expose is sued last summer, which every body . .. knows contained the views of administra- * tion on tliis subject, and therefore ought to be viewed almost as an official paper, he is there expressly said to have acted “on his own responsibility.” The orders themselves afford ample proof that he did. I presume no one will attempt to argue that the orders laid before congress were not obligatory upon Gen. Jackson, because they were directed to Gen. Gaines. The President, in his messages of 25th March, and at the opening of this session, has settled that question, and I see from the intimations given me by some gentlemen, who I know differ in opinion with me up on this interesting subject, that they will not deny it. It would be useless to do so. Let us see what those orders were. There were several of them. But the most effi cient one was that of the lth December, 1817. In this, he is authorised to “cross < the Florida line, and attack the Indians within its limits, unless they should shel ter themselves under a Spanish fort. In the last event, you will immediately notify this department.” Now, so far from this order’s giving any authority to attack the Spanish forts, it must be considered as containing an express prohibition. And why was this prohibition laid upon him? For the best possible reasons—1st. be cause the President knew he could not give such an order, leading directly to war, without the authority of congress and, Silly, to put Spain'in the wrong.— Had the' Indians been protected by a Spanish fort, there would have been im mediate cause afforded; and upon which, when added to the long list of other wrongs, congress might, if they chose, de clare war. Sir, Ut us next examine the grounds on which genera! Jackson excuses or justifi es himself,.and cn which the executive have refused “to censure him,” and may • therefore be said to justify him. They have been already enumerated. They are : " that Spain did not observe her treaty, aid ed and abetted the Indians in war,excited' them ta wat, furnisngd them with the
