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torpedo boats, or of other engines of destruction of the same nature; agreement not to construct in the future warships armed with rams.” The second, third, and fourth articles, . . seem lacking in praeticability, and the discussion of these propositions would probably prove provocative of divergence rather than unanimity of view. It is doubtful if wars are to be diminished by rendering them less destructive, for it is the plain lesson of history that the periods of peace have been longer protracted as the cost and destructiveness of war have increased. The expediency of restraining the inventive genius of our people in the direction of devising means of defense is by no means clear, and considering the temptations to which men and nations may be exposed in a time of conflict, it is doubtful if an international agreement to this end would prove effective. The dissent of a single powerful nation might render it altogether nugatory. The delegates are, therefore, enjoined not to give the weight of their influence to the promotion of projects the realization of which is so uncertain." (Instructions to the United States delegates to The Hague Conference, April 18, 1899, For. Rel. 1899, 511, 512.) "As to that portion of the work of the first committee which concerned the limitations of invention and the interdiction of sundry arms, explosives, mechanical agencies, and methods heretofore in use or which might possibly be hereafter adopted, as regards warfare by land and sea, namely, articles 2, 3, and 4, the whole matter having been divided between Captains Mahan and Crozier so far as technical discussion was concerned, the reports made by them from time to time to the American commission formed the basis of its final action on these subjects in the first committee and in the conference at large.

"The American commission approached the subject of the limitation of invention with much doubt. They had been justly reminded in their instructions of the fact that by the progress of invention, as applied to the agencies of war, the frequency, and, indeed, the exhausting character of war had been, as a rule, diminished rather than increased. As to details regarding missiles and methods, technical and other difficulties arose which obliged us eventually, as will be seen, to put ourselves on record in opposition to the large majority of our colleagues from other nations on sundry points. While agreeing with them most earnestly as to the end to be attained, the difference in regard to some details was irreconcilable. We feared falling into evils worse than those from which we sought to escape. The annexed reports of Captains Mahan and Crozier will exhibit very fully these difficulties and the decisions thence arising.' (Report of the United States delegates to The Hague Conference to the Secretary of State, July 31, 1899, For. Rel. 1899, 513, 515.)

The conference also adopted a declaration prohibiting the use of projectiles having as their sole object the diffusion of asphyxiating or deleterious gases. This, for reasons given in a special report, the American delegates did not sign. It was signed by sixteen delegations, as follows: Belgium, Bulgaria, Denmark, France, Greece, Mexico, Montenegro, the Netherlands, Persia, Portugal, Roumania, Russia, Siam, Spain, Sweden and Norway, and Turkey.

For. Rel. 1899, 513, 519-520.

A declaration was adopted by The Hague Conference prohibiting the use of bullets which expand or flatten easily in the human body, as illustrated by certain given details of construction. This, for technical reasons stated in a separate report, the American delegates did not sign. It was signed by fifteen delegations, as follows: Belgium, Bulgaria, Denmark, France, Greece, Mexico, Montenegro, the Netherlands, Persia, Roumania, Russia, Siam, Spain, Sweden and Norway, and Turkey.

For. Rel. 1899, 513, 520.

The Hague Conference adopted the following resolution: "The conference expressed the wish that questions relative to muskets and marine artillery, such as have been examined by it, should be made the subject of study on the part of the governments with a view of arriving at an agreement concerning the adoption of new types and

calibres."

The American delegates voted for this resolution, but a few powers abstained from voting.

For. Rel. 1899, 513, 520.

Cass of Arbuthnot and Ambrister.

(7) UNCIVILIZED WARFARE.

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"When at war (says Vattel) with a ferocious nation which observes no rules, and grants no quarter, they may be chastised in the persons of those of them who may be taken; they are of the number of the guilty; and by this rigor the attempt may be made of bringing them to a sense of the laws of humanity.' And again: 'As a general has the right of sacrificing the lives of his enemies to his own safety, or that of his people, if he has to contend with an inhuman enemy, often guilty of such excesses, he may take the lives of some of his prisoners, and treat them as his own people have been treated.' The justification of these principles is found in their salutary efficacy for terror and for example.

"It is thus only that the barbarities of Indians can be successfully encountered. It is thus only that the worse than Indian barbarities of European imposters, pretending authority from their governments, but always disavowed, can be punished and arrested.

"The two Englishmen executed by order of General Jackson were not only identified with the savages, with whom they were carrying on the war against the United States, but that one of them was the mover and fomenter of the war, which, without his interference, and false promises to the Indians of support from the British Government, never would have happened. The other was the instrument of war

against Spain as well as the United States, commissioned by McGregor, and expedited by Woodbine, upon their project of conquering Florida with these Indians and negroes; that, as accomplices of the savages, and, sinning against their better knowledge, worse than savages, General Jackson, possessed of their persons and of the proofs of their gulit, might, by the lawful and ordinary usages of war, have hung them both without the formality of a trial; that, to allow them every possible opportunity of refuting the proofs, or of showing any circumstance in extenuation of their crimes, he gave them the benefit of trial by a court-martial of highly respectable officers; that the defence of one consisted solely and exclusively of technical cavils at the nature of part of the evidence against him, and the other confessed his guilt."

Mr. Adams, Sec. of State, to Mr. Erving, min. to Spain, Nov. 28, 1818, 4 Am. State Papers, For. Rel. 539, 544; adopted and approved in Lawrence's Wheaton (1863) 588, note 185.

"The court-martial in the case of Arbuthnot and Ambrister consisted of Maj. Gen. E. P. Gaines, president; members, Colonel King, Colonel Williams, Lieutenant-Colonel Gibson, Major Muhlenberg, Major Montgomery, Captain Vashan, Colonel Dyer, LieutenantColonel Lindsay, Lieutenant-Colonel Elliott, Major Fanning, Major Minton, Captain Crittenden, Lieutenant Glassel.

“The commanding general approves the finding and sentence of the court in the case of A. Arbuthnot, and approves the finding and first sentence of the court in the case of Robert C. Ambrister, and disapproves the reconsideration of the sentence of the honorable court in this case.

"It appears from the evidence and pleading of the prisoner that he did lead and command, within the territory of Spain (being a subject of Great Britain), the Indians at war against the United States, these nations being at peace. It is an established principle of the law of nations, that any individual of a nation making war against the citizens of any other nation, they being at peace, forfeits his allegiance and becomes an outlaw and pirate. This is the case with Robert C. Ambrister, clearly shown by the evidence adduced.'

"If the ruling of the court-martial rests upon the reason given by General Jackson when affirming it, it cannot be sustained. It is not a violation of the law of nations for a subject of a peaceful neutral power to volunteer his services to a belligerent; nor does such a volunteer, by taking part in belligerent warfare, forfeit his allegiance or become an outlaw and pirate. There has been no war in which a part of the combatants on both sides have not been drawn from states at peace with both of the belligerents. This was eminently the case with the American Revolution; the British army be

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 assassi nation 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.

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"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

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