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ing largely manned by foreign auxiliaries, the Army of the United States taking some of its most eminent officers from France and Germany.

"It does not follow, however, that the action of General Jackson may not be sustained when applied to savage warfare. Such a warfare had been waging between the United States and the Indians whom the defendants were charged with inciting to war. On November 30, 1817, not five months before the court-martial, a boat, containing forty soldiers of the United States, under the command of Lieutenant Scott, seven soldiers' wives, and five little children, while on its way up the Appalachicola 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."

Wharton, Int. Law Digest, § 348a III. 328. See Parton, Life of Jackson,
II. ch. 34.

"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, min. at London, to Mr. J. Q. Adams, Sec. of State, Jan. 12, 1819.
MS. Despatches, Great Britain.

“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 among 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). MS. Monroe Papers.

"The execution of Arbuthnot and Ambrister is also making much nois, I mean only out of doors; for I am happy to add that, 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, under an apprehension of war with

the United States. 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 of London. The journals, without any distinction of party, swelled the general chorus; the Whig and others in opposition, taking the decided lead, whilst those in the Tory interest, although more restrained, gave them countenance. In the midst of all this din of 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 ground so untenable. It forms an instance, a remarkable one, of the intelligence and strength of a government, disregarding the first clamours 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."

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Rush, Memoranda of a Residence at the Court of London (1883), 450, 45. "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 protection 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 country 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 exempt from punishment; he had placed himself in the same position as if he bore arms. And it was on these considerations, that the above-mentioned motion was negatived."

2 Halleck's Int. Law (Baker's ed.), 70. The above is part of a note by Sir S. Baker.

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

In 6 Br. & For. State Papers (1818-19), 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.

10. QUESTION AS TO CONCENTRATION.

§ 1126.

See supra, § 1038.

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"The civilized code of war has been disregarded, no less so by the Spaniards than by the Cubans. The cruel policy of concentration was initiated February 16, 1896. The productive districts controlled by the Spanish armies were depopulated. The agricultural inhabitants were herded in and about the garrison towns, their lands laid waste and their dwellings destroyed. This policy the late cabinet of Spain justified as a necessary measure of war and as a means of cutting off supplies from the insurgents. It has utterly failed as a war measure. It was not civilized warfare. It was extermination. Against this abuse of the rights of war I have felt constrained on repeated occasions to enter the firm and earnest protest of this Government."

President McKinley, annual message, Dec. 6, 1897, For. Rel. 1897, xii.

"Referring to the conversation which the Assistant Secretary, Mr. Day, had the honor to have with you on the 8th instant, it now becomes my duty, obeying the direction of the President, to invite through your representation the urgent attention of the Government of Spain to the manner of conducting operations in the neighboring Island of Cuba.

"By successive orders and proclamations of the captain-general of the Island of Cuba, some of which have been promulgated while others are known only by their effects, a policy of devastation and interference with the most elementary rights of human existence has been established in that territory tending to inflict suffering on innocent noncombatants, to destroy the value of legitimate investments, and to extinguish the natural resources of the country in the apparent hope of crippling the insurgents and restoring Spanish rule in the island.

"No incident has so deeply affected the sensibilities of the American people or so painfully impressed their Government as the proclamations of General Weyler, ordering the burning or unroofing of dwellings, the destruction of growing crops, the suspension of tillage, the devastation of fields, and the removal of the rural population from their homes to suffer privation and disease in the overcrowded and ill-supplied garrison towns. The latter aspect of this campaign of devastation has especially attracted the attention of this Government, inasmuch as several hundreds of American citizens among the thousands of concentrados of the central and eastern provinces of Cuba were ascertained to be destitute of the necessaries of life to a degree demanding immediate relief through the agencies of the United States, to save them from death by sheer starvation and from the ravages of pestilence.

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"From all parts of the productive zones of the island, where the enterprise and capital of Americans have established mills and farms, worked in large part by citizens of the United States, comes the same story of interference with the operations of tillage and manufacture, due to the systematic enforcement of a policy aptly described in General Weyler's bando of May 27 last as the concentration of the inhabitants of the rural country and the destruction of resources in all places where the instructions given are not carried into effect.' Meanwhile the burden of contribution remains, arrears of taxation necessarily keep pace with the deprivation of the means of paying taxes, to say nothing of the destruction of the ordinary means of livelihood, and the relief held out by another bando of the same date is illusory, for the resumption of industrial pursuits in limited areas is made conditional upon the payment of all arrears of taxation and the maintenance of a protecting garrison. Such relief can not obviously reach the numerous class of concentrados, the women and children deported from their ruined homes and desolated farms to the garrison towns. For the larger industrial ventures, capital may find its remedy, sooner or later, at the bar of international justice, but for the labor dependent upon the slow rehabilitation of capital there appears to be intended only the doom of privation and distress. "Against these phases of the conflict, against this deliberate infliotion of suffering on innocent noncombatants, against such resort to instrumentalities condemned by the voice of humane civilization, against the cruel employment of fire and famine to accomplish by uncertain indirection what the military arm seems powerless to directly accomplish, the President is constrained to protest, in the name of the American people and in the name of common humanity. The inclusion of a thousand or more of our own citizens among the victims of this policy, the wanton destruction of the legitimate investments of Americans to the amount of millions of dollars, and the

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