recollection of the past circumstances of complaint, requisition for a detachment of Georgia milita to on the part of Georgia, and with the knowledge of first canie forth at his call, and the second see hier dissatisfaction of the ineffectual defence atford. process of time, detached and prepared to je da eri to her by the Union, the President could no lon. This force, united with his regular troops alone ser hesitate. Here then, said Mr. T. you see the friendly Indians, were concentrated at Fürtso corbined causes that called gen. Jackson into the Without the means or the possibility of transpc. field. Here you observe the inolives that induced tion, gen. Jackson, on the 26th of March, atas the President to delegate to him discretionary pow. only eight days' provision, having bravely detare er and ample authority to adope the necessary meus- ed "40 subsist on the enemy," look up the le wres to terminale the conflict with such chastisement- march from Fort Scott. He entered the uc with such merited prenishment—as would secure a red wilderness; he crossed the Florida lite speedy and permanent peace. Here too, sir, you dis. sought and found the Indian enemy in their les cover the causes which, in addition to general Jack. nesses; he vanquished them, and destroyed t-, son's known promptitude of character, induced him towns. In his pursuit of the embodied fegua to a firm and energetic performance of his orders. he found St. Marks was the source of their supplies Bili, sir, we are now told there has been too much and that its possession was threatened by bas eter promptitude and too much energy used by general He occupied that place, and from thence direct Jackson in his management of this war. We are bois march to Pensacola, from whencefe drove even told that he has usurped the power of this the Indians who had Aed there for shelter, r.. loouse, and violated the constitution, in making of for new supplies. He also occupied that placer fensive war on the Semmoles; and that, under his the fortress of Barancas; and on the 29th of instructions to chastise and punish, he has committed terminated a war which had, for more than efter cruelties which have stained the honor of our coun. months, ravaged your frontier, and was fast a: try. Sir, trom what source do we hear these accu. ing to other Indian tribes, Sir, said mr. Titan gations? It is from the representatives of Georgia. incidents of this campaign, so rapid in its pret It was only last wonder the honorable mover of ihe -so brilliant in its execution, and, in his op 02 resolutions for censure, asked and obtained from so replete with important and beneficial resulta this house a law, providing for extra pay and ra, that gives rise to the present discussion. in r tions to the Georgia mililia, which had been de progress, sir, a neutral territory has been enteredens tached in the Seminole war, Little did I then ex. posis of St. Marks and Pensacola have been tits pect to hear from that gentleman that this war was iwo Indian chiefs, and two British subjects, Arda offensive on our part. Lille could the president not and Ambrister, have been executed; mi, il have anticipated when he gave ordórs to cross the mr. T. I rejuice at these events. I honor rather tha; Florida line, and penetrate the wilderness, in the blame the general who had firinness to deterd' necessary defence of Georgia, that the representa, and give effect lo such measures. In aroving the tives of Georgia would be the first to complain, opinion, said he, I am confident I do but speak the Little could general Jackson have anticipated, opinion of our nation, when he encountered the fatigues and the perils of We have been called upon, said mr. T. to para the campaign-when he put his character and his duce the laws of nations which will justify these lite on its event, that the representatives of Georgia proceedings. I maintain, said he, that the prog would be the first to cast censure upon him for ples upon which the laws of nations between the too much energy in their defence; rather did he ex. free governments of Europe are founded, the pect that they, in common with his country, would rightly understood, do embrace and jastify all the luok with a benignant eye upon the performance of proceedings. But, said mr. 1°. I shall not under his liigh and critical duties; and that, instead of a take the labour of the argument in this point in jealous scrutiny of his conduct, where good inten. view. It is sufficient for my purpose to say, tha: tions were evident, they would rather applaud than that system of national laws, established by con Crnstire, and that where they could not justify, they mon consent of mankind, as a rule of activa bs would at least forgive. But, said Nir. T. if the tween tree, separate and independent government, right of this house to pronounce on peace and war, has no application to the present case, The hisle has been invaded; if the constitution hus been vio ry of Europe affords no parallel to the present ci: lared, it ought to be proclaimed to the cuuntry. Me cumstances, and could not be expected to have prin rejoiced there were gentlemen who possessed suf. vided a rule for the present case. There is nola ficient spirit and firmness to announce it; and that instance in Europe, where one nation, acling upon it was announced by the honorable gentleman froin its own usages, and claiming to have, as a nata, Georgia, (Mr. Cobo,) he did not mention as mai. the power of making peace and war, resided with. ter of accusation, but as cause for commendation in the limits and boundaries of any other sovereiga He pointed it out as a rare instance of political and independent nation. Sir, the Floridas were not integrity-of an excess in political virtue, which a neutral territory-it was the territory of your ede would not suffer our powers to be invaded- my. There he resided from there he issued from wirich would not even wink at a violation of the bis fastnesses, crossed the boundary lin:, and dsconstitution, although the cause of the invasion, predated your property, and murdered your cit. and the subject of the violation, should be the de- zens; and when you pursued him, it was there he fence of the constituents of that honorable gentle. Aed for safety. Sir, repeat, Florida was not a inan, his home, his family.

neutral territory. It was ihe country of your ence Sir, saiu mr. T. gen. Jackson received his orders, my, used and occupied by him; and, as such, you requiring him to take command, at Nashville, on had a right, and it became your duty to enter il, the 12th of January, 1818. This great military the pursuit, and for the subjugation of that enemy. Cuplain immediately commenced his operations; and But if gentlemen will insisi on calling this & neue such, said mr. T. has been the rapidity of his mea. tral country, I ask, what are its consequences' la sures, and the velocity of his movements, that the every page of those nalional law's, upon which so tongue of the narrator cun scarcely keep pace with much reliance has been placed, the government of his march. He iminediately announced an appeal a neutral country nade res, nusible for the Coll. to the patriotism of the Tennessee volunteers, to duct of persons within its limits. If such gwert, accompany him in his expedition; and he made a munt authorizes any acts of hostile aggress.on,

1

omes just cause of war. I unauthorizei and of your American seamen was tarred and burut ulive. ivowed hostile incursions are made from its ter. Its friendly aspect and well known co-operation in ries, it is so cause of war; but is considered as this neutral country, may have readily tended to deden irruptions bursting forth upon an adjoining ceive these Indian chiefs on board an American gun ion, who from the circumstances and necessity boat. Mr. T. said, they were the chiefs of our enethe case, is vesied with full riglit and ample allo my—they fled to that flag for shelter and supplies; srity to use the requisite means and force to pre- and, for his part, he had no disposition to find fault it such irruptions, and provide for their own with their mistake. It might at least teach their ety and defence. As a neutral territory, there: tribe that a British Aug in a Spanish territory might

e, we had a right to enter it in self-defence, and not always be a sure cover for hostilities upon the : our own safety. Gentlemen may not agree on American people. wat ground it was entered. It is sufficienį for my Bui, sir, these two Indian chiefs were taken on arposes, to say, that on either or both these shore and executed. The honorable speaker (mr.

ounds we did enter this territory, and my heart Clay) tells us that it fills him with the deepest reoproves of the result. Sir, mark the coincidence gret. I, 100, sund mr. T. am not without regret. rdiscordant circumstances. Arbuthnot and Am. But, sir, my regret is at the causes which rendered Tister, two English emissaries, in a neutral Spanish their ex-cution necessary and proper-and not that <erritory, instigating a savage war upon a peaceful general Jackson had firmness to perform bis duly, Atnerican state! When our government complain, and make an example useful to us and salutary to

he British minister aitswers they have not jurisdic. the Indian nation. Sir, in the person and charachion out of their own country, and cannot prevent ter of Humuthlemicco was found the Indian chief

he evil. The Spanish governor says he has not the who presuded at he mhuman murder of lieut. Scott

power to control Indians and English subjects, and and his party. A vleed more brutal and savage cancity worthy gentlemen on this floor, tell us it is a neu. not be found in the annals of Indian warfare. Sir,

?tral country, and, therefore, we cannot help our he wus not executed as an enemy only, but as a = selves. 'Were ever doctrines advanced so prepos-base murderer marked with every cruelty and staiu

terous? Had gen. Jackson listened to such reasoned with the blood of your countrymen.
ing-had be returned with such arguments as the Ihillis Hujo, the other chief, was also hung. The
only result of his campaign, what would bave been honorable speaker (mr. Clay) said he regarded the
the language of our bleeding frontier? And, be occurrence with grief; and with great indignation
cause he did not, a vote of censure is solemnly pro he exclaimed, “Hang an Indian! Hang an Indian!”
posed.

Hing an Indian! No, sir, said mr. T. general Jack-
But, sir, St. Marks, a Spanish post, has been ta. son did not hang an Indian Higher destinies a.
ken. Advert to the documents on this point, and waited this chiet. He had ceased to be an Indian:
it will clearly appear that this place was in use, and, he had recently been home to old England: he had
in fact, a fiere depot for Indian supplies, and was, approuched "the throne of his royal highness:" and
in addition, so weak and ineffectually garrisoned, while there was commissioned Brigudier General.
that there was just cause to apprehend ihe Indian Yes, sir, he was a British Brigadier General; he
army would take possession of it. A belligerent is wore a red coat; and by way of special favor and
clearly entitled "o seize, ani temporarily lo occupy pre eminence over all others of the saine rank, he
and even garrison, a post of a neutral country, in or was furnished with three epaulettes Therefore,
der to prevent the designs of his enemy in seizing gen. Jackson did not hang an Indian. He hung a
the place, whenever the sovereign of the country is British brigadier general. I honor him for it, said
not able to defend it." This principle alone, said mr. T. and who is offended? It was in the terrritory
mr. T. would justify the occupation of St. Marks. of Spain; but as she was a neutral power, she was
But the case is much strengthened when we consi. no cause for complaint And, does England com-
der it as a post of a neutral country, between whose plain? Disgrace upon her, if she does not. She is
sovereign and ourselves is a treaty, in which Spain bound by every tie of honor to come forward and
had sulemnly pledged herself to keep in subjection own her favorite general, Hillis Hajo. I hope she
the Indians within its limits, and to prevent any will, said mr. T. And whenever England does
hostilities from them, upon our frontier. Every ob. complain, if my voice can control, her complaint
ligation of national law, as well as the faith of trea. shall be handed over for adjustment to our naval
ty stipulation, bound her to the performance of this heroes; those gallant sons who have borne your
duty. If her imbecility prevented the observance cannon upon the deep; who have held their steady
of her obligations, or the unauthorized conduct of march upon the mountain wave, and triumphantly
its governor, allowed hostilities to be carried on a- displayed to an admiring world the banners of your
gainst us from the territory, every principle of self. country; they would gladly adjust the account.
defence would justify the occupation of this post, But, sir, in the person of this same Hillis Hajo,
and even the whole country, as far as it contributed when his name is translated, we find Francis the
to the supplies of our enemy, and his warlike occu. Prophet, a man commissioned by Great Britain,
pation.

tricked off in all the trappings of military dress; Connected with the occupation of St. Marks, was furnished as a present from the Prince Regent, with the capture of the two Indian chiefs. One of our a tomahawk, scalping knife and a rifle, and sent

gunboats came into the Appalachicola river, and, back to his tribe, to inculcate of course, that religion
• while there, kept up the British flag. This circum. and that superstition which we have been so loudly

stance is said to have decoyed them on board the called upon to "spare,” because it was their reli-
bout. Sir, this deception is now matter of great of gion and their superstition. Sir, this one of the
fence

. We are told by the lionorable speaker, (mr. order of those pious prophets, whose surrender our
Clay) that your stars and your stripes should have country demanded in the treaty of Fort Jackson.
floated there. Sir, I freely admit, that the waving A prophel, the crucifix of whose religion is the ice
of the British flag may have operated to deceive the mahawk'und the sculping knife; the libalions to whose
Indian chiefs. The British Aug was familiar to ibeir worship is the blood of the white man. Ask the
observation, although the neutral territory of friend. mothers of your country if they consent to be sur.
ly Spain. It was this British flag which had waved rendered with their children as the willing sacri.
it llie Negro l'ort; and at the foot of whose staffone I fices to the ceremonies of such a superstition? And,

Cat

to the officer charged with their execution, rea- inanplicable to us, because they are inceaz.
sons for the restraints wliich they impose on luis au will the genius of our free constittiin.
thority. “Thestate of our neg ciutiors with Spain, Alike extraordinary is the coorlucion cí
and the temper manifested by the principal Euro league, that because the president is t':arg (3)
pean pwers, make it impolitic, in the opinion of the execution of our laws, an! ireales ,
the president, to move a force at this time,” four-preme law of the land, he may execute sita y
teen days only before the order which Ilave quotierritories of Spain the provisions of a Scania
ed "into the Sp:nisl possessions, for the mere pur tv; or the yet more extraord nary doctrine the

pose of chastising ihe Semin les for the depre. the powers of this government, which meyer
.dations which thay lave lieretofore committed." lime be exercised beyond the limits of the t.
And if policy required this abstinence, what shall States, are concentered in tlie hands of the A;
be snid of the seizure of the capital of West Flori. dent. This commitlee will pause before it's
de when these Fidians had been chastised, and all tions doctrines, alike subversive of the an
the professerl objects of the invasion of their terri. dence and laws of other nations, and of the the
tory attained? Such, sir, was the exposition given and maxims of our own constiturion,
of his orders by the president himself, in announc. There is one objection urged to the adopsi
ing to congress that he had authorised the Ameri- the resolutions, which I deem it proper to $2
can ariny to cross the Florida line; and, not with betire l q::it this branch of my enquiry.
standing his refusal to censure gen. Jackson for been said by our opponenis, lai without into
disobeying them, sich must have been the con- it, we are throwing the weight of our opinios;
struction given to them, by the president, when, the scale of a foreign nation between who at,..
on the 14h of August last, be ordered the restora goverament a n-gociation is depending, which :
tion of the conquered posts and territory to Spain. volves questions of great importance to the pe

Much, Mr. Crairman, has been said, in the lic prosp. rity.
course of this debate, of the motives which induc. On t'ie otier hand, several honorable genilo,
ed the American commander to depart from liis on the same side of this question with the
orders. An hon. colleague of inine, (M". Barbour] seem to bave regarded it, as a duty to thesizers
while he has asserted, that necessity would have to disavow the direction thus given to their ap:
justified gen. Jackson, has adınitted, although he ments and to expr’ss sentiments bordering, äikes
means to vote against the resolutions on your iable, on hostility to San
that there existed no such necessity for seizing ei. Allow me, also, Mr. Chairman, to say, thr,,
ther St. Marks or Pensacola. He has told us, althoug!!1Spain, in my opinio, has given us is
that there are degrees of necessity which would cause of war, I am decidedly opposed to a des
warrant the seizure of a neutral fortress by a mili-ration of hostilities against her. We claim, I notes
tary coin nander. Sir, necessity, which is without s'and, as our western boundary, the territori F
law, can know no degrees: and my honorable col of the Mississippi, as far as the Rio de la Vane
league might as well attempt to resolve duration in If by treaty it is ours, let it be occupied by os
to time, or infinity into space, as such n-cessity into arms; and having laken possession of that wté
degrees. With the motives of gen. Jarkson, ex belorgs to us, let us tender to Spain the eserye
cept as they illustrate his acis, this hollse have of that part of it, adjaceat to her dlesican posss.
nothing to do. The conformity of those acts to sions, for Florida, whici se does not wani, and
the constitution of the United Siates, is the subject which would be to us, of great value. If she :
of our present engiry. We are in the hall of them a ráj ct tbis proposition, the time oust speed
representatives of the people, asserting their rights, arrive wien she will perceive it to be her inter!
to have the constitution administered according to to accede to it. So far would I go, ar.d no fartic
its true spirit. The course of argument of my co!- Not from any apprehension of the power of Sper,
league would be strictly pertinent on an indici. but for reasons of policy, too obvious to require te
ment for murder. He might reduce the offence to be enforced A war, even with Spain, wouid eriz.
manslaughter, or to excusable homicide. Our ple that commerce, on the prosperity of alca
present purpose is not the trial of a public often materially depends the fuiure growth of our set
der, but the maintenance of our own constitution. infant navy. In such a war, we would have to cała
al powers. Sir, the very worst acts have been tend, not with Spain alone, but to encounter, under
done with the very best motives. Political and rt the disguise of a Spanish flag, the enterprize and
ligious enthus:asm have at times subverted the fair resources of France, of England, and, I grady
est constitutions of government, and shrouded re fear, of some of the most abandoned of our or
lision herself in blood. I repeat it, sir, I look, in citizens.
this enquiry, to higher objects than the character Having, Mr. Chairman, consumed so much of
and motives of gen. Jackson-to our constitution the time of the comunittee on the first proposilice,
and laws-10 the character and genius of the Ame- which I proposed to sustain, I shall pass, with more
rican people.

brevity, over the last, which involves the character The doctrines of our opponents, on this question, rather than the constitution of our goverrideal. are more alarming, if possible, than the acis which in the enquiry whether the rules of judicial prothey seek to justify or excuse. 19, 18 my honorable ceeding in the trial of military officers have been colleague contended, who addressed the commit- wantonly disregarded in the trial and execution tee some days ago, (gen. Smyth) a declaratian, of of Arbuthnoi and Ambrister, an unexpected dif. war is nothing more than a recognition that war ficulty is started by our opponents, who question exists;" what becomes of the constitutional aliho. whether the special couri which tried them, rity of congress-of all tbe restrainis, which the a court martial, or a mere board of officers ? ! constitution has sought to impusejon ambition, im- has wot sufficed, it seems, that general Jackson providence, and corruption, by vesting the power informed the secretary of war "thai Arbuthnot of declaring war in the representatives of the na- and Imbrister were tried under his orders by : tion? The example derived from the practice of special court of select officers, legally convicted other nations, arnong whoin declarations of war, it legally condemned; and most justly punished," is remarked by Variel, have fallen into disuse, arelor, that he calls the court, a court martial where:

1

SEN

2

ver be speaks of i , whether in his letters or his i tence a prisoner to death without the concurrence
eneral orders. His friends, acknowledging their of two-thirds of its members. A concurrence of

iter incapacity to defend him, on his own grounds, two-thirds of the court is here certifier.
ersist in lenominating the court a mere board of I was a general court martial, convened in virtue
fiers.

Its proceediigs, they recarsi ag subject of a general order, "for the purpose of investigat. o no legal restrain'; its ju bent, is mere counsel'ing the charges exhibited against Arbuthnoi and

or advice, s'ibmitted to the liscretion of the gane.. Ambrister, and much others, sinilarly situatat, He is their view tlien, si", correct? Were A butint denominale!, by 8.9. Jackson, "a sperid! cuir.

ul, to be altered or estended, at his mere pleisure. as might be broug'it before it." It is, theret ipp, a and Ambrister tried by a court martial, or merely | All its proceedings were approved by sen, Jek.

pxarained by a board of officers ? A corre martial son; and his app oval showed that his order ha!

is either a general court for the irial of all offences 'no: been disobe; el. And yet, hat this been a 51€ obyeelam trial of offences not capital. The former misi consist to nake exception to their on jurisdiction over

whatever, or are siinental or garriso: court for the board of ofüce s, iary woull not have presunel Hats b. latter cannot exceed three. A prisoner was here by the commanding general; nor would they have

of five, and may consist of thirteen officers. The any maiter, upon whick, their opinan was asked sentenced to death, and the assemblage of otSicers invite I the prisoner to challenge any one of their

who sentenced him to that pomishment consiite! sumber. A S'Dernumerary officer would not have a free martial, or no court at all. A general court inar. ' been wiib open doors; a Concilrrence of two third

of thirteer; it was, therefore, either a general court een ap viste?; their proceedings would not here
tial is required by the rules and articles of war to i would not have been require to be certified; nor
consist of "any fiumber of commissioned officers would an extension of upeir hours of sitting, hy a
from five to thirteen; but it shall not consist of loss general order, have been att all necessery.
than thirteen, where that number can be convened Conformning in so many particulars to the articles
without manif-sti jury to the service.” The court and usages of war, it is to bi' greatly deplored thit
which tried Arbutlinoi and Ambrister consisted of this co'irt martial and the general who convenel
thirteen officers, with a supernumerary appointed it, departed from both in the aost important
to act, in case of unforeseen absence, or incapacity essentials of justice for neither the arlicles of
of any one of that number. A general court mar. war, nor the treatis? on courts miril, authorize!
tial is required to have a judge advocate, whose the trial of Artsutun or Arnbrister, lry the con!
dury it is to administer to the officers the oath which tried them. Fort e perso 15, says Macomb,
prescribed by the 69th article of war, anel to act "who are subjact to the military laws of the Unit.
as counsel for the accused as well as the court .e:! States, and arsenable to be tried by court mat.
The court which tried Arbuthnot and Anbris' er 'tial, are all persons wiro are commissioned, or on
had a judge alvocate, who administered the orth pay, as oiers, or who are enlisted, or in par,
required ny law, and interrogated the winesses.us non.com missioned officers, or roldiers. 'Ail
The prisoner may challenge any member of a gesitlers and retainers to the camp, and all persons
neral court martial appzied to try hin. Arbuth.' wha'soever, serving with the arinies of the Unit.
not and Ambrister were called upon to exercise ed States in the field, though not enlisted solliers,
this privilege. The prisoner before a court mar. all military store-keep-rs, commissaries, military
tial is regularly arraigned upon churges and speci.. agents, surgeons, surgeon's mates, pay-masters,
fications filed against him. So were Arbuthnot quarter-neas'ers, chaplains; all otlicers, cond:-
and Ambrister. He is entitled to counsel if befors, gunners, inałrosées, drivers, or other per.
requires it. Arbuthnot made application for coun. 'sons, whatsoever, receiving pay or hire in the
sel, and counsel was allowed him. A court mar. 'service of the artillery or corps of engineers of
lial sits with open doors, except when it decides the United States, and all otticers and s»:jers of
a question; and then, the doors are closer. So any other troops, whether militia or others, being
proceeded the court which tried these prisoners.'ins ered and in pay of the Uniter! States, when
A court martial has only a limited juris liction both acting in conjunction with the regular forces,"
as to offences and persons. Sy this court decided, and, by a special act of congress, "all spies.”
for, of the 3d charge and specification against Ar.

In this enu neration of persons siibject to the buthnot, the court decided, "upon the suggestion cogn zange of an American court martial, a search of a member, after mature deliberation, that it had will be made in vain, for a descrip ion corraspond. no jurisdiction.” A court martial can sit, unless ing with Arbuthnot und Ambrisier, after the former by es press permission from the other creating it, had been acquiite:l of being a spy. Even were a only between certain hours of the day. This court particular oferice is cognizable by a couri inruil, was by order allowed to sit without regard to the character "f the person determines wether hours. In the organization of a general cotiri marjit may be tried by a civil or military tribunal

. tial, the members are seated al:ernately, according. The harborii g or cond

oncealing of deserlers is a civil, to rank, on each side of the president. So was this or military offence, according to the stute or court arranged. A court martial records, along quelity of the person who commits it.” Riny a with a minute of its proceelings, all the tes:imony soldier, it may be tried by a court marial. If by Jail before it so dil this court. It is its speciali a citizen, a law of the United Sirles expressly province lo decide on the guilt or innocence of the provides that it shall be tried by a civil couri accused, and on the punishment, if any, which the same doctrine is esixblished by the constit:e. shall be in Aicted upo.i 'trem. So was this court tion, which provides, what no person siia!! be held required 19 do, and so it did. A general court to answer for a capital, or otherwise infamos martial is required to pronounce upon every charge crime, ...ess on a preseatment or icliciment of and specification exhibited against a prisover: This agind jury, excep: in cases arising in the land or court obeyed this requisition by acquirting the naval forces, or in the inilisia, when ia actual ser. prisoner, Arbutinot, of being a spy, and respon 1. vice, in lime of war or public danger." ing to all the charges and specifications against

Bui the mode of trial was not less exceptionable, him except that, of which they disclaimed any than the jurisdiccion of the court. The proceed. jurisdiction. A general court martial cannot sen lings of the court are marked, alake, by s4 escu

ssiesinpi, as far a
is it is O'ls, het

haring iako
ous, let uten
art of it, ad CEO

Fiorida, o
ould be to us, olgreita

this propose
ia sie will pertete
Eloite So far salt
! Any apprebenuada
casons of poi cj,
ed A war,
commerce, Gate
vy depends the functie
ry. In such a 19, nema
with Spain alat, amit
rise of a Spanoh

of France, of Engine ome of the East

Mi Chairman, ovat
of the committed
proposed to sustan, la's
over the last, mis
han the constituire
aquiry whether the main
in the trial of Elitan

disregarded in the trai
haoi and Abnor,
Started by our opp
the special courses
partial, or a mere bats
suffi:ed, it seemi, tai jos

the secrelan si
brister were the cout
court of select frozen bereits
condemned; and as

6

sion of competent testimony offered by one of the the court, and ordered Ambrister to bt accused; and by the admission of incompetent Had he authority to do so? "With the testimony against him. The following rules of ment or constitution of the court martial evidence are laid down by the best American author the high authority I bave already quotetgo on this subject, an author to whom the committee power of the officer over the prisona, ce has referred us, as in common use, and who is l' until that court shall have pronounced jedgar known to this house, from having received its The president of the United States, ore thanks for his distinguished gallantry. “The evi dence,” says Macomb, "on trials by court martial, courts martial, in the execution of their is the same that is required in civil prosecutions." than they can with any of the fixed cours

"In all cases, where a party would avail himself justice; nor even after the court martial tayo of ibe incompetence of a witness, on account of |. nounced its sentence, is it in the power os his conviction of a crime, it is necessary that he president, general, or other ofñicer orderings should produce to the court the record of convic. court, to add to or alter that sentence in any stion, or a sufficient proof of it.” Yei, before any particular, unless a recommendation to that Trial, the testimony of Ambrister was rejected as shall be therein contained. The presides incompetent, when offered by Arbuthnot, in his commander in chief, in virtue of his pretoria defence.

of mercy, muy entirely remit te punistes “Letters of correspondence and all familiar writ.' which the court has awarded, or, by disappies *ings must be proved, upon oath, to be written the sentence, he may order the court 10 sit sa * by the person, of whose hand writing they are and to review the proceedlings and judgmert a

alleged to be." Yet, the letters ascribed to Arif he can no more decree any particular aliec buthnot are received as evidence, without a shadow of their sentence, than be can alter the judge of proof. For the author, from whom this evi- of a civil court, or the verdict of a jury dence is quoted, also adds, "that even the com. buthnot and Ambrister were, therefore, tried b, * parison of hand writings, ihough it may be use court of incompetent jurisdiction—the former fully employed in the detection of forgery, is no condemned upon illegal evidence, and the lates

evidence to authenticate any writing whatever, as executed by order of the commanding general, e * evidence, in a criminal prosecution."

defiance of the judgment of a court of his own "An attestation of a witness must be only to what pointment; all of whose proceedings he approre, • he actually knows, from his own observation of except their single act of mercy, the re-considera

the facts in issue. He is not to be examined as tion of their senience against Anbrister. "to what he has heard, or been informed of by The general order of the 29tb of April, com * others, for his testimony being, in that case, a manding the immediate execution of Arbutisa: * reference to the information of another, who is and Ambrister, uncondemned even to this day, *not upon oath, is no evidence at all." Yet, in the nay, more than tacitly approved, is Mr. Chairma, case of Arbuthnot, the hearsay evidence of Indians, a stain on the records of the judicial proceedings who, as the report of the select committee justly of this nation, to the insecurity of the bonor mi remarks, would not have been competent wilnesses, life of every officer and soldier of the armies of if present, is received by the court.

the United States, and of every citizen of America

, "Facts are the subjects of evidence, not opinions" who may be legally, or otherwise, subjected to the It is, therefore, "to the truth of' facts that evidence judgment of a court martial; a proceeding stick

is regularly brought, and, to form opinions of imperiously calls for the interposition of ile 18'these, is the province not of the witness but of thority of congress, in order that, instead of being "the judge or juror who is to decide them. No converted into a precedent for future imitatien, 'party, therefore, in a trial, is entitled to obtrudc may be shunned as an object of abhorrence. Si ihe opinions of a witness upon the court, or to it is no little cause of alarm to behold the bigdest call upon a witness to answer questions of opi- military court of criminal jus ice, which should Onion;" yet a witness, Hambly, a Spanish renegado, be the shield of innocence, converied into a med the personal and open enemy of the prisoner, is of oppression. While I listened with equal attet. expressly and repeatedly invited by the couri, on tion and delight to the eloquent and able argument the trial of Arbuihnot, to give his opinion of the of my honorable friend from New.Yo-k, I thought prisoner's guilt or innocence.

that even he underrated the security which a mili But, admitting the prisoners to have been legally tary court is designed to afford to an innocent pri tried by a court of competent jurisdiction, and soner. I thought he supposed that a military judge legally condemned, the execution of Ambrister was not sworn to discharge the duties of his office was in defiance of the sentence of the court, and a with fidelity and impartialiiy. (Mr. Scorra arose mockery of its authority. An hon. colleague of to explain. He had remarked, he said, that als mine (gen. Smyth) has contended that there were charges were not sworn to, on which a prisoner two sentences in the latter case, and justifies the arrested.) I misunderstood my honorable friend, approval of the first, which condemned ihe prisoner said Mr. Mercer; but even bere, the charge must to death, because the last was illegal. "The judg. be sanctioned by the honor of an officer. A gene * ment of a court martial is always under its own ral court martial derives its appointment from the

control,” says Macomb, "until it is communicated sound discretion of the liighest military authoris to the officer by whom it is convened.” In this in an army. its sentence is inoperative until ! case, the first judgment was re-considered. The receives his approbation; and any olicer who should re-consideration restored the court and the pri- seek, by the instrumentality of such a court, 13 soner to the same situation in which they had stvo! gratify secret resentment or malignity, would ren before any sentence whatever was pronounced; and der himself odious to his whole corps. the final juilgment was, therefore, the only judg. The ingenuity of my hon. collcague (gen. Smyth? ment of the court. This judgment sentenced the will in vitin attempt to discover an analogy between prisoner to be whipped and to bard labor. This trial and any event in the judicial history of

General Jackson "disapproved the re-considera this nation. The board of officers who reported ption-approved the finding and first sentence of major Andre to be a spy, were not constiluled a