H. OF R.

Seminole War-Unauthorized Levies.

FEBRUARY, 1820.

serve, arrangements were made for mustering them of the chiefs raised, and an additional number of field

into service, and organizing them. These arrangements were, that the whole force was to be denominated a regiment, to consist of eighteen companies, to be officered according to the regulations of the Army of the United States; that William McIntosh, the principal war chief of the nation, should rank as full colonel, and the two chiefs, George Lovett and Noble Kennard, as majors. This arrangement was communicated to General Gaines, then at Hartford, who approved of the proceeding of Colonel Brearly, informing him, by a letter of the 29th day of January, 1818, that he would cheerfully accept the services of all the Indians who might be disposed to join him; which disposition Col. Brearly was directed to encourage as far as practicable. Pursuant to these instructions, one thousand five hundred and thirty-seven warriors were mustered into the service of the United States, on or about the 24th day of February, 1818, and served until the early part of the month of May thereafter. Including Onir Haujo, a chief of the Creek nation, and seventy-five warriors, who had been mustered into service on the 8th day of December, 1817, the whole number of Indian forces employed during this period amounted to one thousand six hundred and thirteen men. William McIntosh held the rank of brigadier general, and received, in that capacity, one hundred and four dollars per month pay, seventy-two dollars per month for subsistence, forty dollars per month for forage, and forty-two dollars and twenty-seven cents per month, allowance for servants; having received, for two months and fifteen days service, from the 24th day of February to the ninth day of May, 1818, the sum of six hundred and forty-five dollars and seventy-two cents. George Lovett, Noble Kennard, Samuel Hawkins, and - Blue, were assigned to the rank of majors, in which capacity they served from the 24th day of February until the 11th day of April, when the American army, under the command of Major General Andrew Jackson, then having arrived near to Suwaney river, after the capture of Fort St. Marks, in the Spanish province of East Florida, Lovett and Kennard were promoted to the rank of full colonels, and Hawkins and Blue to the rank of

and staff officers appointed, the committee have not been able, conclusively, to ascertain; but, as these various transactions appear on the regular pay-rolls of the corps, which have been passed to the credit of the officer who made the disbursement, and have been recognised at the War Department, it is presumed that they must have occurred with the sanction of some public agent. The promotions, which took place near Suwaney river on the 12th day of April, 1818, were made by order of Major General Jackson.

The sums paid to these Indian forces for their services amount to thirty thousand one hundred and twenty-seven dollars and forty-nine cents, including the sum of three thousand five hundred and forty-eight dollars and forty-eight cents, paid to the General, Field, and Staff. To ascertain out of what fund these disbursements were made, a letter was addressed to the Second Auditor of the Treasury, in whose office these accounts were audited, which, with his answer thereto, dated on the 14th ultimo, is submitted with this report. By this communication, it appears that it became questionable out of what fund these forces were to be paid; but, after examination, it was concluded by the Secretary of the War Department, for the reasons stated in the said letter, to carry the expenditure to the charge of the appropriation made by Congress for the pay of the Army of the United States for that year.

For the purpose of determining with certainty by what authority these forces were raised, the Secretary of the War Department was requested to furnish to the committee "copies of any orders (if any such existed) which might have issued from the War Department" to the commanding officers of the southern division of the army, "by virtue of which" these Indian forces were "raised, officered, and taken into service." The answer of the Secretary of that department, dated on the 22d ultimo, referring the committee to the documents therein stated, contains all the information relating to the subject of inquiry existing in the War Department, After careful and deliberate examination of these documents, the committee cannot

lieutenant colonels, in which capacities they respec-discover that any orders whatever are therein con

tively served until they were discharged from service. These persons received for their services during these periods, the full allowance made for pay, subsistence, forage, and servants, to officers of the like rank in the regular army. The vacancies occasioned in the regimental field and staff by these promotions, were, on the 12th day of April, 1818, partially filled, by the promotion to the rank of majors of two chiefs, John Bernard and Mattey, who had served as captains from the 24th day of February until that time. The general field and staff further consisted of one assistant adjutant general, who received per month sixty dollars pay, twenty-four dollars for subsistence, twenty-four dollars for forage, and twenty-eight dollars and eighteen cents allowance for servants. Four assistant commissaries of purchases were also appointed, who, respectively, received salaries at the rate of thirteen hundred dollars per annum. In addition to these, 28 captains, 28 first lieutenants, and 28 second lieutenants, were appointed; the whole force having been divided into 28 companies. These officers were, at the first organization of the corps, appointed by the Creek nation of Indians, under the sanction of the commanding General. By what authority the original arrangement for the organization was changed, the rank of several

tained, which, by the most forced and artificial construction, could be deemed even to imply an authority from the War Department to muster into service, organize, or employ, the Indian forces under the command of William McIntosh and the chiefs of the Creek nation. The papers referred to contain no orders whatever addressed to General Gaines, and only one bears date previous to the issuing of the orders by that officer to Colonel Brearly for employing the Indian warriors. This order is addressed to Major General Jackson; and, so far as this communication and the answer of Gen. Jackson thereto, of the 29th January, 1818, furnish any aid to this branch of the inquiry, it is strongly to be inferred that the employment of these forces was neither in accordance with the views of the War Department, nor justified by any existing necessity. In the communication of the Secretary of War to General Jackson, of the 26th day of December, 1817, directing him to assume the command of the forces employed in the vicinity of Fort Scott, against the Seminole Indians, he was informed that "the regular force now there was about eight hundred strong,' and "one thousand militia of the State of Georgia were called into service;" "that General Gaines estimated the strength of the Indians at twenty-seven

"

hundred." The answer of General Jackson to the War Department, of the 26th January, 1818, informed that Department, that "the troops assembled on the southern boundary, reinforced with the Tennessee volunteers called into service," would enable him "to inflict speedy and merited chastisement on the deluded Seminoles." These Indian forces were not mustered into service until the 24th day of February thereafter. In the judgment, therefore, of the commanding officer of the southern division of the Army of the United States, the addition of this extraordinary force of six teen hundred and thirteen Indian warriors was not deemed necessary to the execution of the orders which had been issued for "a speedy and successful termination of the Indian war." In confirmation of the opinion that the employment of these forces was viewed in that light by the commanding General, the committee submit with this report the proceedings of a court martial convened by his order for the trial of Colonel David Brearly, who was arrested on the application of General Gaines on charges of alleged neglect of duty in not forwarding certain supplies from the Creek Agency, destined for the use of the troops of the United States and Georgia militia stationed near the Chehaw village and at Fort Scott. To these charges exhibited by General Gaines was added, by order of Major General Jackson, a charge of "unmilitary conduct," under which was specified an alleged offence, "that the said Colonel David Brearly did, in the month of February or March, 1818, muster into the service of the United States a large body of Indian warriors, at or near Fort Mitchell, thereby consuming a large quantity of the supplies laid in and destined for the relief of Fort Scott, and to furnish the Tennessee volunteers;" which act is therein alleged to have "tended manifestly to the injury of the service."

After an investigation of several days, Col. Brearly was honorably acquitted of all the charges preferred against him. The commanding General, by an order of the 5th day of August, 1818, approving the sentence of the court on this specification, observed that "they had, from the documents produced, properly found him not guilty, as it appeared from General Gaines's letter, bearing date the 29th of January, that he was ordered to accept all the Indians that might be disposed to join him." Notwithstanding the commission of this act, so "manifestly" injurious to the service, was thus directly traced to the superior officer of Colonel Brearly, no proceedings have been since instituted to fix the responsibility of the alleged offence on the officer from whom the order emanated.

The committee further report, that it appears from the documents to which they have been referred by the letter of the Secretary of War, of the 22d ultimo, that Major General Andrew Jackson having been di

rected by that Department, on the 26th of December,

1817, to assume the command of the forces in the vicinity of Fort Scott, was ordered to call on the Executives of the adjoining States for such additional militia force of the said States as he should deem it requisite to raise for the execution of his orders, to terminate the conflict then commenced with the Seminole tribe of Indians. Instead of obeying this order, he proceeded to levy an army from the people of the States of Tennessee and Kentucky, by circular letters, privately addressed to individual citizens of his own selection. In this circular address dated on the 11th day of January, 1818, the aid of one regiment only, to be composed of one thousand men, was re

H. oF R.

quested. At a meeting, however, of the citizens who were to command, as officers, this corps of levies, on the 19th day of January, thereafter, General Jackson accepted the services of two regiments, to be raised by voluntary enlistments, which were accordingly assembled together, consisting of one thousand two hundred and eighty-six citizens of those States, who were organized as auxiliaries, into an army of mounted gunmen. The organization of the officers commanding these regiments was made under the authority and sanction of the commanding General, and consisted of one assistant adjutant general, one assistant inspector general, one assistant deputy quartermaster general, one judge advocate, one chaplain, two colonels, four lieutenant colonels, four majors, four adjutants, one forage master, one assistant forage master, two surgeons, four surgeons' mates, two quartermasters, and eight non-commissioned staff. To this organization of the general regimental field and staff, were added twenty captains, twenty first lieutenants, twenty second lieutenants, eleven third lieutenants, and seventeen cornets. The additional lieutenant colonel and major to each regiment was made in consequence of an agreement for that purpose originally made by General Jackson. The ruinous tendency of these unauthorized proceedings is forcibly illustrated by the fact, that, on the assembling of these forces for the purpose of being mustered into service, at Fayetteville, they brought with them into camp no less than forty captains. The reason given by the Inspector General of the southern division of the Army, who mustered them into service, by order of General Jackson, for appointing an extraordinary number and grade of company officers, appears in a letter addressed to the Secretary of War, by that officer, of the 9th February, 1818. In this letter Colonel Hayne observes, that to "merge the lesser fractions into the larger, and thus amalgamate them into single companies, to cut down captains, to leave out subalterns, and yet to satisfy and secure to us all the men, has been a very difficult

task indeed. To effect this object, I have been obliged, in a number of cases, to give an additional lieutenant and cornet to the companies." On the assembling of these troops, General Jackson proceeded to direct the disposition for their use of the funds placed in the hands of the regularly appointed officers of the Army of the United States, imposed on Major Fanning, of the corps of artillery, the temporary duties of deputy quartermaster general, and vested him with authority to draw on the Quartermaster General for any additional sums wanted for supplies. To facilitate their march, he also authorized the Inspector General of the southern division of the Army to draw, either on the Secretary of War or the Quartermaster General at Fort Scott, for such funds as might be found necessary. These troops, thus mustered into service, and

organized, served from the 31st day of January, 1818,

until the 25th day of June thereafter, and have received from the public funds the pay and allowances made to the regular armies of the nation.

The committee further report that two companies of rangers, under the command of Captains Boyle and Gist, consisting of about one hundred and forty-five men, were called into service by order of Major General Jackson, during the Seminole war. It does not appear that these forces were mustered into service pursuant to any requirement on any civil or executive officer of any State or Territory. By the letter of William W. Bibb, Governor of the Alabama Territory,

H. or R.

Seminole War - Unauthorized Levies.

dated on the 15th day of April, 1818, it appears that at the date he was "ignorant of the views of the Government with respect to Florida," that he "knew not the orders which had been issued to General Jackson," and that he was "not acquainted, in any degree, with the arrangements on the part of the United States for prosecuting the war against the Seminole Indians. The answer of the Secretary of War to Governor Bibb, communicating the information of those arrangements in reply to his inquiries, was transmitted from the War Department on the 13th day of May, 1818. No muster or pay-rolls of these forces have yet been received at the War Department, and no documents can be furnished in the public offices, by which the number of these forces, the period of their enlistment or discharge, the mode in which the officers were appointed, or by whom, can be satisfactorily determined. The communication addressed to the committee by the Secretary of War, on the 19th instant, contains all the information existing in the War Department relative to these companies of rangers. The object for which these forces were raised, appears in the letter of General Jackson to the War Department, dated on the 2d day of June, 1818, and the instructions issued to them were to scour the country between the Mobile and Apalachicola rivers, exterminating every hostile party who should dare to resist, and would not surrender and remove with their families above the thirtyfirst degree of latitude. Excepting this letter, the only information relative to these forces, which exists in the War Department, is found in the papers referred to in the letter of the Secretary of War of the 19th instant. From them it appears, that Captain John B. Hogan, paymaster of the 4th regiment of infantry, was directed by Colonel King, on the 18th day of September, 1818, to prepare an estimate of the amount of funds necessary to pay them off. This estimate is submitted with this report, and it appears thereby, that the sum required for this purpose amounts to nineteen thousand eight hundred and sixty-seven dollars and ninety-two cents, including eight thousand five hundred and sixty-three dollars, for pay, seven hundred and twenty dollars for subsistence, and ten thousand five hundred and eighty-four dollars allow

ance for the use and risk of horses.

These various forces, forming no part of the Military Establishment of the United States authorized by Congress, and not having been called into service by virtue of any law providing for calling forth the militia of the several States, the committee, in obedience to the resolution of the House, which has imposed on them the duty of reporting whether any of the appropriations for pay and subsistence of the regular Army of the United States have been applied to the support of any army or detachment of troops raised without the consent of this House, or the authority of Congress, deeming that on the preservation of the Constitutional powers of Congress the chief security of the people of these United States against all encroachments on their liberties must for ever depend, and that on the firmness, independence, and fidelity of their immediate Representatives, they justly rely for the protection of the solemn trust confided to their charge, do unreservedly express to the House their opinion, that the levying of these forces, their organization and employment in the public service, was in violation of the Constitution of the United States, and a dangerous infringement on the powers of Congress.

To attempt seriously to establish, by argument, that

FEBRUARY, 1820.

Congress alone possesses the power to raise armies, instead of partaking of the nature of an inquiry how extensive the breach sustained by the Constitution has been, would rather imply that it might be doubted whether we have any Constitution at all. In no instance of the delegation of sovereignty to the Federal Government have the people manifested greater caution and wisdom, than in confiding to their immediate Representatives the exercise of this power, which, above all others, is susceptible of the most alarming abuses in every government. The experience of all nations had uniformly taught them that their only security from violence and rapacity was to be found in the careful restraint of its exercise. In the elective franchise an adequate remedy was provided for the redress of most of those abuses which originate from the temptations of avarice and the love of power; but they well knew, that whenever their liberties should be directly assailed, the physical force of the Government alone could be resorted to, for the successful accomplishment of the designs of ambition. The unlimited power of supporting any military establishment whatever is denied, even to Congress; and the term of appropriations for this object has been wisely restricted to the Constitutional period of service of the members of this House. So highly fraught with danger has the raising of troops, and their maintenance, been considered, that, except in time of war, actual invasion, or imminent danger, these powers have been withheld from the State Legislatures; sovereigntieswhose jurisdictions are more comprehensive and indefinite than any known to our institutions. To levy armies, without the authority of Congress, is, therefore, to substitute the arbitrary pleasure or caprice of individuals, in the place of the national will, and to violate all those securities which the people have provided for their safety.

The nature or character of this assumption of power derives no exemption from the application of these principles, by reason of the particular description of the forces originally called into service by General Gaines, and subsequently commanded by General Jackson. As lawfully might a commanding officer in the army, of his own authority, receive into the service of the United States, as auxiliaries, the forces stationed in the neighboring provinces of Great Britain, as to embody and organize into regular armies, and associate with his command, the Indian tribes residing within our jurisdictional limits. In relation to forces of this latter description, the Constitution has heretofore received a practical exposition from Congress; which, whether we consider the period of its enactment, or the character of the distinguished patriot and statesman, from the history of whose administration this illustration is derived, is entitled to the greatest consideration and respect. So clearly does it seem to have been at that time considered that the power of employing Indian forces in the public service, even for the protection of the frontier, had not been vested even in the Executive Department, that, in the act entitled "An act making further and more effectual provision for the protection of the frontiers of the United States," approved on the 5th day of March, 1792, it was found necessary to derive that power from the authority of Congress; and the President of the United States was, by the 15th section of the said act, authorized by Congress to employ, in the public service of the nation, that description of forces, in case he should deem the

FEBRUARY, 1820.

Seminole War-Unauthorized Levies.

measure to be expedient. This act was repealed by Congress, and the authority, thus conferred, ceased on the 3d day of March, 1795.

The appointments of the officers of this corps of Indians, and the promotion which took place by order of General Jackson, were also, in the opinion of the committee, an infringement on the powers confided to the Executive of the United States and to the Senate. It is scarcely more than to repeat a mere political truism, to say that the exercise of all power whatever, not derived from the will of the people, is not only in itself unlawful, but contrary to the fundamental principles of every free government, and the orderly administration of its public concerns. The declared will of the nation has intrusted to the President and Senate alone the power of appointment to all offices, not otherwise provided for by the Constitution. The prudence and wisdom of these eminent and distinguished functionaries of the Government, were the guaranties on which the people relied for the careful selection of those subordinate agents to whom the sword of the nation was to be intrusted. The assumption, therefore, by others, of the responsibility of exercising this power, is self-created-unrecognised by our institutions, and tends to the most pernicious and alarming disorders in the administration of the Government. In the case of military appointments, the most powerful as well as the most obvious considerations especially demand that this power should not be wrested from the hands of those on whom alone the Constitution has imposed this high responsibility.

The Congress of the United States alone is vested with the general authority to organize the militia, and to provide for calling them forth for the purposes expressed in the Constitution. These powers have been executed. Not only the organization, but the rank and description of the officers of the militia has been prescribed by the act of Congress of the 8th day of May, 1792, and the act of the 2d day of March, 1803. Neither of these acts contain any authority for the appointment of those descriptions of officers selected for the command of the corps of volunteers, who were respectively invested with the rank of Assistant Adjutant General, Assistant Inspector General, and Assistant Deputy Quartermaster General. These offices have been created only in the regular Army of the United States. The extraordinary assignation of an additional lieutenant colonel and major to each regiment, and a third lieutenant and cornet to each company, is also unknown to the laws providing for the organization of the militia. With whatever force the propriety or necessity of varying these laws may be urged, until the Congress of the United States, who are the Constitutional judges of the utility of such a measure, and who have the exclusive right to provide for calling forth the militia, and the sole power to establish regulations for their government, shall, by the authority with which they have been thus invested, revise the present system, there is no power known to our institutions which can lawfully execute any schemes of reformation or improvement in the established organization of the military force of the nation.

By the further provisions of the Constitution, the appointment of the officers of the militia is expressly reserved to the States. The object of this reservation of power was to provide for the security of the people against the success of any design which might be formed to alienate the militia from the allegiance which they owed to their respective States. So "necessary

H. OF R.

to the existence of our Union, and a free government, has the preservation of the rights of individual States, in their full extent, according to a just construction of the principles of our Constitution," been considered by Congress, that the utmost extent of power to call forth the militia, conferred by the act of the 28th of February, 1795, even on the Executive, has only authorized the issuing of orders for that purpose to the "officers of the militia." Neither the Executive, by virtue of any authority which has been conferred by this act, or much less an officer of the regular Army, of his own authority, can, without the assumption of powers repugnant to the principles of the Constitution, and of the most dangerous tendency, proceed to levy armies by enlistment from the citizens of the respective States. When it is further considered that the authority of the States over their militia "ceases when they are called into the service of the General Government;" that they "constitute a part of the national force for the time, as essentially as the troops of the regular Army;" that, "like the regular troops, they are paid by the nation; like them, their operations are directed by the same government;" and that their superior commander may be designated by the Executive of the United States, it is evident that the chief reliance of the States for the preservation of this great bulwark of their liberties, must essentially consist in scrupulously retaining the selection of those officers to whose authority their citizens are to be immediately subjected. From whatever source, therefore, the officers selected for the command of these volunteer forces might have received their rank, the power to appoint them was self-assumed, inasmuch as the appointments were not made, and they held no commissions by virtue of any authority for that purpose, derived from any of the States.

The committee submit to the House with this report, a vindication of the proceedings of General Gaines, addressed by that officer to the Department of War, dated at Augusta, in the State of Georgia, on the 17th day of October, 1819. This document chiefly relates to the result of the measures adopted by the Senate of the United States at the last session of Congress; and, although the committee do not consider that subject to be directly connected with their duties, as prescribed by the resolution of the House, yet they are impelled by a sense of that justice which is due to an officer whose proceedings are the subject of inquiry, to furnish all the information within their power, however remotely affecting the investigation confided to their charge.

It does not appear to the committee at what time General Gaines made known to the War Department. his proceedings in relation to the assembling and organization of the Creek warriors, under the command of William McIntosh. In a letter addressed to that Department, on the 15th day of December, 1817, he observes, that the steps which he had taken were "known to the Department of War;" but the date of this letter was several days antecedent to the first order issued to Colonel Brearly for the mustering of these forces.

That a crisis of such great public peril and imminent danger to the nation, might exist, as to palliate, if not in a great measure justify, a commanding General in departing from the strict rules of subordination and obedience, the committee most readily admit; but they believe that a careful examination of the circumstances under which these Indian forces were assem

Seminole War-Unauthorized Levies.