Jan. 6. 1806.
Colo. Hawkins has put into my hands the papers respecting the claim of the Creek nation on behalf of Emantlau Thlucco, from whom two horses have been stolen, within the Indian limits, by Harries & Allen, citizens of the US. the former of whom has fled out of the US. and leaving no property, & the other is insolvent. he communicated to me also the Attorney General’s opinion on the case. this case being of importance as a precedent, I have considered it maturely under the law, the treaty, and the principles which prevail between independant nations: the Creeks being in law, as well as in fact, an independant nation.
The opinion of the Attorney General is unquestionable, considering the case as it relates to the offending individuals. the laws have reserved to all our citizens charged within our jurisdiction with any crime or misdemeanor, wheresoever committed, a right of being tried by a jury, before a court of competent authority, before they can be punished. whether prosecuted capitally or for the penalty of double value, the sentence of a court could alone subject them to either. accordingly the 15th. section of the act of Congress provides expressly how & where the offender may be tried, convicted and punished; & evidently confines it’s views to the proceedings against the citizen solely.
But when death, flight, insolvency, or other accident puts the offender out of the way, it then becomes a question between nation & nation, between whom the municipal laws of evidence of either can have no bearing on the other. the same law therefore, in it’s 4th. section, only declares that if the offender be unable to pay for the property he has taken from an Indian, the US. shall pay, without saying where the fact shall be tried, or on what evidence. and, in it’s 14th. section, enacts that if an Indian shall take property within our limits, the superintendant being furnished with the necessary documents & proofs, shall demand satisfaction from the Indian nation, without specifying that these must be such documents & proofs as would be required by our municipal law, to which the Indian is not at all subject. the proofs then of course are to be such as are usually resorted to between nation & nation, that is to say, public documents, depositions, affidavits, certificates, letters, parol evidence, or even common report. all of these are freely adduced between nations, each of them is weighed, in the scales of reason & experience, & according to the aggregate impression they make on the common sense of mankind, they are estimated in determining the belief or disbelief of the fact. neither party thinks of calling the other to a trial of the fact in a court of it’s own, where it would be both party & judge. the constitutional organs for foreign relations of the two nations compose jointly the competent tribunal.
The instruction therefore given originally by a former Executive to the Agent for Indian affairs, appears to have been well weighed, when it directs him to ascertain, by the best evidence in his power, the value of the property taken: and of course authorises him to recieve, as well the testimony of red men, given in what they deem the most solemn manner, as such other evidence as can be obtained, and may be of any weight in the common judgment of mankind towards producing a belief or disbelief of the fact in question. this is the only practical construction which can be given of the act of Congress, which never could be carried into execution in this part, if a strict conformity, with our municipal laws were requisite; because such evidence as is required by our courts of justice between citizen & citizen, could never be had in the cases now under consideration. the law therefore wisely & justly avoids specifying the evidence, & leaves the fact to be settled agreeably to the usage of nations. here then the Creeks affirm that property has been taken from one of their nation, that this cannot be recovered in our courts of justice by the individual injured, because one offender is dead, the other fled, and no property of either existing; and the law says, if the offender is unable, paiment shall be made out of the Treasury of the US. the Superintendant therefore according to his instructions is to ‘ascertain the facts affirmed by the Creeks, by the best evidence in his power, and make report of the same & of the case to the department of war that justice may be done.’ I do not see any cause for changing the course of proceeding so established; but on the contrary I believe it to be right & lawful, & that it ought to be pursued in this instance.
DNA: RG 107—LRUS—Letters Received by the Secretary of War, Unregistered Series.