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Stedman and Hutchinson, comps. A Library of American Literature:
An Anthology in Eleven Volumes. 1891.
Vols. IX–XI: Literature of the Republic, Part IV., 1861–1889

For the Humane Treatment of Captive Indians

By Henry Clay (1777–1852)

SIR, I have said that you have no right to practise, under color of retaliation, enormities on the Indians. I will advance in support of this position, as applicable to the origin of all law, the principle, that whatever has been the custom, from the commencement of a subject, whatever has been the uniform usage, coeval and coexistent with the subject to which it relates, becomes its fixed law. Such is the foundation of all common law; and such, I believe, is the principal foundation of all public or international law. If, then, it can be shown that from the first settlement of the colonies, on this part of the American continent, to the present time, we have constantly abstained from retaliating upon the Indians the excesses practised by them towards us, we are morally bound by this invariable usage, and cannot lawfully change it without the most cogent reasons. So far as my knowledge extends, from the first settlement at Plymouth or at Jamestown, it has not been our practice to destroy Indian captives, combatants or non-combatants. I know of but one deviation from the code which regulates the warfare between civilized communities, and that was the destruction of Indian towns, which was supposed to be authorized upon the ground that we could not bring the war to a termination but by destroying the means which nourished it. With this single exception, the other principles of the laws of civilized nations are extended to them, and are thus made law in regard to them. When did this humane custom, by which, in consideration of their ignorance, and our enlightened condition, the rigors of war were mitigated, begin? At a time when we were weak, and they comparatively strong; when they were the lords of the soil, and we were seeking, from the vices, from the corruptions, from the religious intolerance, and from the oppressions of Europe, to gain an asylum among them. And when is it proposed to change this custom, to substitute for it the bloody maxims of barbarous ages, and to interpolate the Indian public law with revolting cruelties? At a time when the situation of the two parties is totally changed—when we are powerful and they are weak—at a time when, to use a figure drawn from their own sublime eloquence, the poor children of the forest have been driven by the great wave which has flowed in from the Atlantic ocean almost to the base of the Rocky mountains, and, overwhelming them in its terrible progress, has left no other remains of hundreds of tribes, now extinct, than those which indicate the remote existence of their former companion, the mammoth of the new world! Yes, sir, it is at this auspicious period of our country, when we hold a proud and lofty station among the first nations of the world, that we are called upon to sanction a departure from the established laws and usages which have regulated our Indian hostilities. And does the honorable gentleman from Massachusetts expect, in this august body, this enlightened assembly of Christians and Americans, by glowing appeals to our passions, to make us forget our principles, our religion, our clemency, and our humanity? Why is it that we have not practised towards the Indian tribes the right of retaliation, now for the first time asserted in regard to them? It is because it is a principle proclaimed by reason, and enforced by every respectable writer on the law of nations, that, retaliation is only justifiable as calculated to produce effect in the war. Vengeance is a new motive for resorting to it. If retaliation will produce no effect on the enemy, we are bound to abstain from it by every consideration of humanity and of justice. Will it then produce effect on the Indian tribes? No; they care not about the execution of those of their warriors who are taken captive. They are considered as disgraced by the very circumstance of their captivity, and it is often mercy to the unhappy captive to deprive him of his existence. The poet evinced a profound knowledge of the Indian character, when he put into the mouth of a son of a distinguished chief, about to be led to the stake and tortured by his victorious enemy, the words:

Retaliation of Indian excesses, not producing then any effect in preventing their repetition, is condemned by both reason and the principles upon which alone, in any case, it can be justified.