Phenix gazette. [volume] (Alexandria [D.C.]) 1825-1833, 1825-08-09

with the Governors Of the Spanish ISL
ands-they recognised the meritorious
character of the war we were carrying
on, and promised every aid and coop
Grafton on their part to advance it: thus
voluntarily making themselves parties,
as allies or co-belligerants. The case
is perfectly clear. The United States
represented by officers are bound to
treat the Spanish simply as allies trans
crossing their duty. 1t may, perhaps,
be thought that there is difference in
this respect between the power of the
President of the United States, and
those who act in subordinate COM
mands. 1t has already been stated that
we act not against Spain; but simply
repel the attack of the enemy through
her. The President of the U. S. has
of himself no authority to make war.
That power is delegated by the consti-
tuition to Congress alone. The Presi-
dent may, indeed, under the authority
of the act of Congress, giving him that
power, call out the force of the nation
to suppress instructions, and to repel
invasions; in the exercise Of which last
power, almost all the belligerant opera
lions of the country, since The exist
ence ofthe present government, have
been carried on. The exercise OF the
belligerant right, now in question, is,
in no degree, the exercise Of juris-
diction Of peace or war; but a merely
Incidental right of actual war, and as
fully vested in the lowest subaltern, to
whose hands the arms of our republic
are committed, as in the President
himself. The only difference is, that
the President, being commander in
chief, may restrain or modify, at plea
sure, the exercise Of any belliserant
right, by those in command under him;
but, in absence of such restraining or
der, these high belligerant rights exist,
to their whole extent, in the person OF
the commanding officer, whatever his
rank.
This brings ME to the question, whe-
ther, in my operation upon Foxardo,
l have transgressed my orders. Before
such transgression can be proved,
some order must be shewn, forbidding
me to exercise the otherwise clear
right, then vested in me, of executing
that highly expedient, necessary, and
in all public results, most fortunate
measure.
My justification requires no order
either commanding or authorizing it..
The incidental power, to the fullest ex-
tent, was inherent to my command
My instructions of the lst Feb. 1928,
are to be looked to, not for evidence Of
my authority, but for prohibition, ex-
press or implied, against the exertion
of it. Here he quoted the instruc-
tons. Now I contend not only that
there is the absence Of any such prohi-
bition, but that there is positive in
junction on me to proceed asI did. If
I had neglected, should not only have
basely betrayed the high and sovereign
rights of war, upon which the gloty
and the safety of the nation mainly de
pend, but should actually have violated
my instructions by course of conduct
directly opposite to that which is now
said to have constituted violation OF
the same instructions. Now LIST, IN re-
gard to those parts of my instructions,
which command what is to be done.
(Here he quoted at large.)
In Interpreting these orders, l shall
Law down certain general rules which
prevail in the construction of all SINH
lar instruments. The court will per
ceive that these instructions command
duties to be performed. They require
an exertion Of power, and they lay
down limits for its exertion.
!. We must resort to the reason or
final cause which was had in view by
the expedition. What was this final
cause? The suppression Of piracy, and
the protection of the commerce and
the citizens Of the United States, col
lectively and Individually. Whatever
would conduce to this end, l was not
only authorized but bound to do
Next, l inquire, was the great object OF
the expedition to be defeated by strict
and overstrained construction! Were
not nv orders to be explained by pre-
cedent and contemporary practice? The
Court will see, by reference to the re-
ports from my squadron, accompany
ing the Presidents message Of I'd Dec.
1928, the arts of the pirates in evasion
their DISCUSSES as fishermen, as drog-
ers, as pedlars, sc. &c. To detect these
DISCUSSES, resort must be had to a thou
sand different ways. At various times
officers and parties of men landed in
Cuba-they found persons under va
rious disguises-they carried on hos.
tilities against them-they even burned
whole villages. A village was thus
destroyed to leeward Of Baya Honda.
1t. Kearney landed in Cayo Blanche,
DESTROYED the huts he found there, and
burned the houses. 1t. Sloat had also
an action at place in Porto Rico, call