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River, not far from Fort Scott, reached a point where a large body of Seminoles were in ambush. A volley of shot was fired on the boat, by which Lieutenant Scott was killed and all his command either killed or wounded. The assailants, who had previously been not only unseen but unsuspected, plunged into the water and boarded the boat, which was close to the shore. Those on board who were still living were massacred, with the exception of one woman, who was carried away by the Indians, and of four men, who escaped by swimming to the opposite shore, two of them only, however, succeeding in reaching Fort Scott. All the others were scalped, and the children were snatched by the heels and their heads crushed by being dashed against the boat. Nor was this all. In the course of the following week an attack was made, in the same way, on other boats which were ascending the river, and it was not till after two men were killed and thirteen wounded, that the survivors succeeded in making their way to Fort Scott. This was the kind of "war" which Arbuthnot and Ambrister were charged with inciting. It was, therefore, an organized system of assassination and rapine, not war, and those who incited it might well be regarded, not prisoners of war, but accessories before the fact to such assassination and rapine, and justly condemned to death. Whether these two defendants were guilty of this offense is a question of fact, dependent, not merely on the evidence as reported to us, but upon conditions which were notorious at the time, and which, therefore, did not require proof. It was established that the savages not only received the arms by which their massacres were effected from foreign aid, but were under the belief that they were supported by Englishmen in their uprising; and in the evidence that is reported to us, there is much to show that Arbuthnot and Ambrister dexterously fanned the flames as well as supplied the fuel. Two important circumstances, also, are to be considered in forming our estimate of the finding of the court. First, the members of the court were men of high character, who, from their participation in this very campaign, were cognizant of the kind of warfare which the accused were charged with instigating; secondly, the British Government, after a careful investigation of the facts, if not acquiescing in the rightfulness of the action of the court-martial, at least made no complaint of it as involving a violation of international law.

Supra, § 243.

As to forfeiture of right to governmental protection by abandonment of allegiance, see supra, § 190.

"The necessity of my reviewing with particularity the proofs against each of these unhappy sufferers (Arbuthnot and Ambrister) had been superseded, I observed, by what had passed at our interview (Mr. Rush and Lord Castlereagh) on the seventh. This Government itself had acquiesced in the reality of their offenses. I would content myself with superadding that the President believes that these two individuals, in connection with Nicholls and Woodbine, had been the prime movers in the recent Indian war. That without their instigation it never would have taken place, any more than the butcheries which preceded and provoked it; the butchery of Mrs. Garrett and her children; the butchery of a boat's crew, with a midshipman at their head, deputed from a national vessel, and ascending in time of peace the Appalachicola on a lawful errand; the butchery in time of peace at one stroke, upon another occasion, of a party of more than thirty Americans, amongst which

were both women and children, with many other butcheries alike authentic and shocking."

Mr. Rush, minister at London, to Mr. J. Q. Adams, Sec. of State, Jan. 12, 1819.
MSS. Dispatches, Gr. Brit. See supra, § 216.

"As matters now stand, we shall have no difficulty whatever with the British Cabinet respecting these executions. I perceive, from some proceedings in Congress as well as in our newspapers, what might be considered as a little curious, had not analogous things occurred before in the history of parties with us. I mean a strenuous denunciation of these executions by some of our own people, at a time when the British Government itself is refusing to stretch out its hand in behalf of the offenders."

Mr. Rush, minister at London, to Mr. Monroe, President, Jan. 17, 1819 (unofficial). MSS. Monroe Pap., Dept. of State.

"The execution of Arbuthnot and Ambrister is also making much noise, I mean only out of doors; for I am happy to add, as yet, this Government has taken no part whatever, so far as is known to me, in these senseless and premature clamors."

Same to same, Aug. 13, 1818; ibid.

"Out of doors the excitement seemed to rise higher and higher. Stocks experienced a slight fall. The newspapers kept up their fire. Little acquainted with the true character of the transaction, they gave vent to angry declamation. They fiercely denounced the Government of the United States. Tyrant, ruffian, murderer, were among the epithets applied to their commanding general. He was exhibited in placards through the streets. The journals, without distinction of party, united in these attacks. The Whig, and others in opposition, took the lead. Those in the Tory interest, although more restrained, gave them countenance. In the midst of all this passion, the ministry stood firm. Better informed, more just, they had made up their minds not to risk the peace of the two countries on grounds so untenable. It forms an instance of the intelligence and strength of a Government, disregarding the first clamors of a powerful press, and first erroneous impulses of an almost universal public feeling. At a later day of my mission, Lord Castlereagh said to me that a war might have been produced on this occasion, if the ministry had but held up a finger.'"

Rush's Residence at Court of London, etc., 304 ƒ, 338.

The most favorable view of Arbuthnot's character and conduct, in connection with the offenses for which he was tried, is that which is given by Mr. Parton, in the second volume of his Life of Jackson, ch. 34 ff. (See also 6 Hildreth's United States, 643.) For a whole generation the trial of Arbuthnot and Ambrister was a party issue; and the opponents of General Jackson and of his administration made the alleged atrocity of the proceedings one of the chief grounds of opposition to General Jackson's election, and to his subsequent administration. In times of such great bitterness of political feeling as then existed, it was difficult for the opponents of General Jackson, who embraced most of the men of cultivation and literary power in the land, to take an unbiased view of the procedure. But now, when these events have receded into history, it may be safely said that, while General Jackson's reason for affirming the action of the court is badly expressed, the action of the

court was in itself right, and the execution sustainable under the law of nations.

Arbuthnot's forfeiture of British protection is considered supra, § 190; his loss of title to protection by misconduct, supra, § 243.

As to atrocities to prisoners by Indians in the British service in the war of 1812, see 6 Hildreth's United States, 394.

"The only question for the British Government was, if the case was one which called for retribution, and whether they should interfere for the protection of British subjects who engage, without the consent of their Government, in the service of states at war with each other but at peace with their Government. Any British subject who engages in such foreign service, without permission, forfeits the protec tion of his country and becomes liable to military punishment if the party by whom he is taken chooses to carry the rights of war to that cruel severity. This is a principle admitted by the law of nations, and which, in the policy of the law of nations, has been frequently adopted. It is obvious that if it were to be maintained that a coun try should hold out protection to every adventurer who enters into foreign service, the assertion of such a principle would lead it into interminable warfare. The case of Ambrister stands on the ground that he was taken aiding the enemy, and although General Jackson's conduct was most atrocious in inflicting upon him a capital punishment, and contrary to the sentence of the court-martial, that was a question between the general and his Government. Arbuthnot's case stands on a different ground. He was not taken in arms, but he was proved-as a political servant rather than as a military agent-to have afforded equal aid and assistance to the enemy, and could not be held to be ex· empt from punishment; he had placed himself in the same position as if he bore arms. And it was on these considerations that the abovementioned motion was negatived."

2 Halleck's Int. Law (Baker's ed.), 70. The above is part of a note by Sir S. Baker. See, also, snpra, §§ 190, 243.

For a full vindication of General Jackson's action, see Mr. J. Q. Adams' instruction to Mr. Erving, of Nov. 28, 1818, quoted in part at the beginning of this section.

In the Brit. and For. St. Pap. for 1818-'19 (vol. 6), 326, will be found the correspondence with Great Britain relative to the war with the Seminole Indians, in which the proceedings against Arbuthnot and Ambrister are reviewed. The extracts include (inter alia) the instructions of Mr. Adams, Sec. of State, to Mr. Erving, Nov. 18 and Dec. 2, 1818, General Jackson's letter to the governor of Pensacola, together with full notes of the trial of Arbuthnot and Ambrister, letters from Arbuthnot, and subsequent correspondence with General Jackson and General Gaines.

(c) REPRISALS IN WAR OF 1812.
§ 348b.

Retorsion and reprisal, in their general relations, are considered in a prior section, supra, § 318.

The British Government, having sent to England, early in 1813, to be tried for treason, twenty-three Irishmen, naturalized in the United States, who had been captured in vessels of the United States, Congress authorized the President to retaliate. Under this act, General Dearborn placed in close confinement twenty-three prisoners taken at

Fort George. General Prevost, under the express directions of Lord Bathurst, thereupon ordered the close imprisonment of double the number of commissioned or uncommissioned United States officers. This was followed by a threat of "unmitigated severity against the American citizens and villages" in case the system of retaliation was pursued. Mr. Madison having retorted by putting in confinement a similar number of British officers taken by the United States, General Prevost immediately retorted by subjecting to the same discipline all his prisoners whatsoever. The difficulty was aggravated by the denunciation by leading New England Federalists of "this policy of exposing our own citizens to imprisonment and death for the sake of a set of foreign renegades, as they were bitterly described," "and the escape of some of the imprisoned British officers from Worcester jail gave very general satisfaction." (6 Hildreth's Hist., U. S., 446.) (Mr. Hildreth's attachment to the Federalists, it must be remembered, gives to statements such as this peculiar weight.) In Massachusetts this sentiment took effect in a statute forbidding the use of the State jails to the United States for prisoners of war; and the jailers were directed to discharge all prisoners of war after thirty days' confinement. An act of Congress was at once passed authorizing the United States marshals, when the State jails were refused, to provide other places of confinement, and the legislature of Pennsylvania at once granted its prisons for this purpose. A better temper, however, soon came over the British Government, by whom this system had been instituted. A party of United States officers, who were prisoners of war in England, were released on parole, with instructions to state to the President that the twentythree prisoners who had been charged with treason in England bad not been tried, but remained on the usual basis of prisoners of war. This led to the dismissal on parole of all the officers of both sides.

As to treatment of prisoners of war in the war of 1812, see 3 Am. St. Pap. (For.
Rel.), 630. See Lawrence com. sur Wheat., 3, 229.

The correspondence between Vice-Admiral Cochrane and Mr. Monroe, in 1814,
as to reprisals, is given supra, § 318.

(d) DARTMOOR PRISONERS.

§ 348c.

On the announcement of the ratification of the treaty of Ghent there was naturally some disorder among the American prisoners of war confined at Dartmoor, near Plymouth, who were not as yet released. On April 6, 1815, there was some slight disturbance, and indications of an attempt, at least of one or two, to break loose. The captain on guard directed the alarm bell to be sounded, which caused a rush of prisoners, most of whom had no part whatever in the disorder, to the place of alarm. He then ordered the prisoners to their yards, and directed a squad of soldiers to charge them. The crowd of prisoners was great; they would not, and indeed, in the crush of the narrow passage in which they were, could not, immediately retreat; and it was said by some of the witnesses that stones were thrown from among them at the soldiers, though this last fact was negatived by a great preponderance of testimony. An order to fire was given, though by whom it was not clearly shown, and this firing, on a perfectly defenseless crowd, was continued until seven persons were killed, thirty dangerously and thirty slightly wounded. A commission consisting of Mr. F. S. Larpent, representing the British Government, and Mr. Charles King, deputed by the Amer

can mission in London, having visited the scene of action and examined into the facts, reported that "this firing (at the outset) was justifiable in a military point of view," but that "it is very difficult to find any justification for the further renewal and continuance of the firing," which is attributed to "the state of individual irritation and exasperation on the part of the soldiers who followed the prisoners into their yards." Lord Castlereagh, on receiving this report, expressed, on May 22, 1815, the "disapprobation" of the Prince Regent at the conduct of the troops, and his desire "to make a compensation to the widows and families of the sufferers." Mr. Monroe, Secretary of State, on being informed of this action, sent on December 11, 1885, to Mr. Baker, British chargé d'affaires at Washington, a note in which he said: "It is painful to touch on this unfortunate event, from the deep distress it has caused the whole American people. This repugnance is increased by the consideration that our Governments, though penetrated with regret, do not agree in sentiment respecting the conduct of the parties engaged in it. Whilst the President declines accepting the provision contemplated by His Royal Highness the Prince Regent, he nevertheless does full justice to the motives which dictated it.”

The evidence taken in the case is given in 4 Am. St. Pap. (For. Rel.), 24 ff. In a prior section the case of the Dartmoor prisoners is discussed in connection with the question of apology and satisfaction. Supra, § 315c.

(e) CASES IN MEXICAN WAR.

§ 348d.

"Prisoners of war are to be considered as unfortunate and not as criminal, and are to be treated accordingly, although the question of detention or liberation is one affecting the interest of the captor alone, and therefore one with which no other Government ought to interfere in any way; yet the right to detain by no means implies the right to dispose of the prisoners at the pleasure of the captor. That right involves certain duties, among them that of providing the prisoners with the necessaries of life and abstaining from the infliction of any punishment upon them which they may not have merited by an offense against the laws of the country since they were taken."

Mr. Webster, Sec. of State, to Mr. Ellis, Feb. 26, 1842. MSS. Inst., Mex. The Government of the United States having acknowledged the independence of Texas, and Texas being at war with Mexico, if a citizen of the United States captured when with a Texas army by Mexican forces should be treated in Mexico as a rebel and not as a prisoner of war, on the ground that Mexico had not acknowledged Texas as a belligerent, "after his release had been demanded by this Government, consequences of the most serious character would certainly arise."

Mr. Webster, Sec. of State, to Mr. Thompson, Apr. 5, 1842. MSS. Inst., Mex.
For acknowledgment of liberation of such prisoners, see same to same, Sept. 5,

1842.

As protesting against the Mexican doctrine that all "foreigners" invading Mexico with the Texan armies should be granted no quarter, see Mr. Upshur, Sec. of State, to Mr. Thompson, July 27, 1842.

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