The mode of the trial and sentencing 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 thegeneral 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 was 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 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-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 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 livesof 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 States—an 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 practiced, 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 was 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 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 havecommanded 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 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 that the general had a right to select either. Two sentences! Two verdicts! It was not so. The first being revoked, was as though it had never 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 ordered. 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.
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 liberties of Rome. I beseech the committee not to be so captivated with the charms of eloquence, and the appeals made to our passions and our sympathies, as to forget the fundamental principles of our government. The influence of a bad example will often be felt, when its authors and all the circumstances connected with it are no longer remembered. I know of but one analogous instance of the execution of a prisoner, and that has brought more odium than almost any other incident on the unhappy emperor of France. I allude to the instance of the execution of the unfortunate member of the Bourbon house. He sought an asylum in the territories of Baden. Bonaparte despatched a corps of gen-d’armes to the place of his retreat, seized him, and brought him to the dungeons of Vincennes.He was there tried by a court-martial, condemned, and shot. There, as here, was a violation of neutral territory; 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 appear 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 momentous 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 afflicted, and desolated, and ruined other countries. It was supposed, that before any war was declared, the nature of the injury complained of, would be carefully examined, and the power and resources of the enemy estimated, and the power and resources of our own country, as well as the probable issue and consequences of the war. It was to guard our country against precisely that species of rashness which has been manifested in Florida, that the constitution was so framed. If, then, this power, thus cautiously and clearly bestowed upon congress, has been assumed and exercised by any other functionary of the government, it is cause of serious alarm, and it becomes this body to vindicate and maintain its authority by all the means in its power; and yet there are some gentlemen, who would have us not merely to yield a tame and silent acquiescence in the encroachment, but even to pass a vote of thanks to the author.
On the twenty-fifth 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 twenty-fifth 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 head-quarters, 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 negroes, to occupy the fort, and declares his purpose to possess himself of it, in either of the two contingences, of its being in their hands, or in the hands of the Spaniards. He assumed a right to judge what Spain was bound to do by her treaty, and judged very correctly; but then he also assumed the power, belonging to congress alone, of determining what should be the effect and consequence of her breach of engagement. General Jackson generally performs what he intimates his intention to do. Accordingly, finding St. Marks yet in the hands of the Spaniards, he seized and occupied it. Was ever, I ask, the just confidence of the legislative body, in the assurances of the chief magistrate, more abused? The Spanish commander intimated his willingness that the American army should take post near him, until he could have instructions from his superior officer, and promised to maintain, in the mean time, the most friendly relations. No! St. Marks was a convenient post for the American army, and delay was inadmissible. I have always understood that the Indians but rarely take or defend fortresses, because they are unskilled in the modes of attack and defence. The threat, therefore, on their part, to seize on St. Marks, must have been empty, and would probably have been impossible. At all events, when general Jackson arrived there, no danger any longer threatened the Spaniards, from the miserable fugitive Indians, who fled on all sides, upon his approach. And, sir, upon what plea is this violation of orders, and this act of war upon a foreign power, attempted to be justified? Upon the grounds of the conveniency of the depôt and the Indian threat. The first I will not seriously examineand expose. If the Spanish character of the fort had been totally merged in the Indian character, it might have been justifiable to seize it. But that was not the fact; and the bare possibility of its being forcibly taken by the Indians, could not justify our anticipating their blow. Of all the odious transactions which occurred during the late war between France and England, none was more condemned in Europe and in this country, than her seizure of the fleet of Denmark, at Copenhagen. And I lament to be obliged to notice the analogy which exists in the defences made of the two cases. If my recollection does not deceive me, Bonaparte had passed the Rhine and the Alps, had conquered Italy, the Netherlands, Holland, Hanover, Lubec, and Hamburg, and extended his empire as far as Altona, on the side of Denmark. A few days’ march would have carried him through Holstein, over the two Belts, through Funen, and into the island of Zealand. What then was the conduct of England? It was my lot to fall into conversation with an intelligent Englishman on this subject. ‘We knew (said he) that we were fighting for our existence. It was absolutely necessary that we should preserve the command of the seas. If the fleet of Denmark fell into the enemy’s hands, combined with his other fleets, that command might be rendered doubtful. Denmark had only a nominal independence. She was, in truth, subject to his sway. We said to her, give us your fleet; it will otherwise be taken possession of by your secret and our open enemy. We will preserve it, and restore it to you whenever the danger shall be over. Denmark refused. Copenhagen was bombarded, gallantly defended, but the fleet was seized. Everywhere the conduct of England was censured; and the name even of the negotiator who was employed by her, who was subsequently the minister near this government, was scarcely ever pronounced here without coupling with it an epithet, indicating his participation in the disgraceful transaction. And yet we are going to sanction acts of violence, committed by ourselves, which but too much resemble it! What an important difference, too, between the relative condition of England and of this country! She, perhaps, was struggling for her existence. She was combating, single-handed, the most enormous military power that the world has ever known. With whom were we contending? With a few half-starved, half-clothed, wretched Indians, and fugitive slaves. And, whilst carrying on this inglorious war, inglorious as it regards the laurels or renown won in it, we violate neutral rights, which the government had solemnly pledged itself to respect, upon the principle of convenience, or upon the light presumption that, by possibility, a post might be taken by this miserable combination of Indians and slaves.
On the eighth of April, the general writes from St. Marks, that he shall march for the Suwaney river; the destroying of the establishmentson which will, in his opinion, bring the war to a close. Accordingly, having effected that object, he writes, on the twentieth of April, that he believes he may say that the war is at an end for the present. He repeats the same opinion in his letter to the secretary of war, written six days after. The war being thus ended, it might have been hoped that no further hostilities would be committed. But on the twenty-third of May, on his way home, he receives a letter from the commandant of Pensacola, intimating his surprise at the invasion of the Spanish territory, and the acts of hostility performed by the American army, and his determination, if persisted in, to employ force to repel them. Let us pause and examine the proceeding of the governor, so very hostile and affrontive in the view of general Jackson. Recollect that he was governor of Florida; that he had received no orders from his superiors, to allow a passage to the American army; that he had heard of the reduction of St. Marks; and that general Jackson, at the head of his army, was approaching in the direction of Pensacola. He had seen the president’s message of the twenty-fifth of March, and reminded general Jackson of it, to satisfy him that the American government could not have authorized all those measures. I cannot read the allusion made by the governor to that message, without feeling that the charge of insincerity, which it implied, had at least but too much the appearance of truth in it. Could the governor have done less than write some such letter? We have only to reverse situations, and to suppose him to have been an American governor. General Jackson says, that when he received that letter, he no longer hesitated. No, sir, he did no longer hesitate. He received it on the twenty-third, he was in Pensacola on the twenty-fourth, and immediately after set himself before the fortress of San Carlos de Barancas, which he shortly reduced. Veni, vidi, vici. Wonderful energy! Admirable promptitude! Alas, that it had not been an energy and a promptitude within the pale of the constitution, and according to the orders of the chief magistrate. It is impossible to give any definition of war, that would not comprehend these acts. It was open, undisguised, and unauthorized hostility.
The honorable gentleman from Massachusetts has endeavored to derive some authority to general Jackson from the message of the president, and the letter of the secretary of war to governor Bibb. The message declares, that the Spanish authorities are to be respected wherever maintained. What the president means by their being maintained, is explained in the orders themselves, by the extreme case being put of the enemy seeking shelter under a Spanish fort. If even in that case he was not to attack, certainly he was not to attack in any case of less strength. The letter to governor Bibb admits of a similar explanation. When the secretary says, in that letter, that general Jackson is fully empoweredto bring the Seminole war to a conclusion, he means that he is so empowered by his orders, which, being now before us, must speak for themselves. It does not appear that general Jackson ever saw that letter, which was dated at this place after the capture of St. Marks. I will take a momentary glance at the orders. On the second of December, 1817, general Gaines was forbidden to cross the Florida line. Seven days after, the secretary of war having arrived here, and infused a little more energy into our councils, he was authorized to use a sound discretion in crossing or not. On the sixteenth, he was instructed again to consider himself at liberty to cross the line, and pursue the enemy; but, if he took refuge under a Spanish fortress, the fact was to be reported to the department of war. These orders were transmitted to general Jackson, and constituted, or ought to have constituted, his guide. There was then no justification for the occupation of Pensacola, and the attack on the Barancas, in the message of the president, the letter to governor Bibb, or in the orders themselves. The gentleman from Massachusetts will pardon me for saying, that he has undertaken what even his talents are not competent to—the maintenance of directly contradictory propositions, that it was right in general Jackson to take Pensacola, and wrong in the president to keep it. The gentleman has made a greater mistake than he supposes general Jackson to have done in attacking Pensacola for an Indian town, by attempting the defence both of the president and general Jackson. If it were right in him to seize the place, it is impossible that it should have been right in the president immediately to surrender it. We, sir, are the supporters of the president. We regret that we cannot support general Jackson also. The gentleman’s liberality is more comprehensive than ours. I approve with all my heart of the restoration of Pensacola. I think St. Marks ought, perhaps, to have been also restored; but I say this with doubt and diffidence. That the president thought the seizure of the Spanish posts was an act of war, is manifest from his opening message, in which he says that, to have retained them, would have changed our relations with Spain, to do which the power of the executive was incompetent, congress alone possessing it. The president has, in this instance, deserved well of his country. He has taken the only course which he could have pursued, consistent with the constitution of the land. And I defy the gentleman to make good both his positions, that the general was right in taking, and the president right in giving up, the posts.
[Mr. Holmes explained. We took these posts, he said, to keep them from the hands of the enemy, and, in restoring them, made it a condition that Spain should not let our enemy have them. We said to her, here is your dagger; we found it in the hands of our enemy, and, having wrested it from him, we restore it to you in the hope that you will take better care of it for the future.]
The gentleman from Massachusetts is truly unfortunate; fact or principle is always against him. The Spanish posts were not in the possession of the enemy. One old Indian only was found in the Barancas, none in Pensacola, none in St. Marks. There was not even the color of a threat of Indian occupation as it regards Pensacola and the Barancas. Pensacola was to be restored unconditionally, and might, therefore, immediately have come into the possession of the Indians, if they had the power and the will to take it. The gentleman is in a dilemma from which there is no escape. He gave up general Jackson when he supported the president, and gave up the president when he supported general Jackson. I rejoice to have seen the president manifesting, by the restoration of Pensacola, his devotedness to the constitution. When the whole country was ringing with plaudits for its capture, I said, and I said alone, in the limited circle in which I moved, that the president must surrender it; that he could not hold it. It is not my intention to inquire, whether the army was or was not constitutionally marched into Florida. It is not a clear question, and I am inclined to think that the express authority of congress ought to have been asked. The gentleman from Massachusetts will allow me to refer to a part of the correspondence at Ghent different from that which he has quoted. He will find the condition of the Indians there accurately defined. And it is widely variant from the gentleman’s ideas on this subject. The Indians, inhabiting the United States, according to the statement of the American commissioners at Ghent, have a qualified sovereignty only, the supreme sovereignty residing in the government of the United States. They live under their own laws and customs, may inhabit and hunt their lands; but acknowledge the protection of the United States, and have no right to sell their lands but to the government of the United States. Foreign powers or foreign subjects have no right to maintain any intercourse with them, without our permission. They are not, therefore, independent nations, as the gentleman supposes. Maintaining the relation described with them, we must allow a similar relation to exist between Spain and the Indians residing within her dominions. She must be, therefore, regarded as the sovereign of Florida, and we are, accordingly, treating with her for the purchase of it. In strictness, then, we ought first to have demanded of her to restrain the Indians, and, that failing, we should have demanded a right of passage for our army. But, if the president had the power to march an army into Florida, without consulting Spain, and without the authority of congress, he had no power to authorize any act of hostility against her. If the gentleman had even succeeded in showing that an authority was conveyed by the executive to general Jackson to take the Spanish posts, he would only have established that unconstitutional orders had been given, and thereby transferred the disapprobation fromthe military officer to the executive. But no such orders were, in truth, given. The president acted in conformity to the constitution, when he forbade the attack of a Spanish fort, and when, in the same spirit, he surrendered the posts themselves.
I will not trespass much longer upon the time of the committee; but I trust I shall be indulged with some few reflections upon the danger of permitting the conduct on which it has been my painful duty to animadvert, to pass without a solemn expression of the disapprobation of this house. Recall to your recollection the free nations which have gone before us. Where are they now?
‘Gone glimmering through the dream of things that were,