The Congressional Globe, Volume 13, Part 2: Twenty-Eighth Congress, First Session Page: 44
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44
APPENDIX TO THE CONGRESSIONAL GLOBE.
Jan. 184A
28th Cong 1st Sess.
Fine on General Jackson—Mr. Douglass.
H. of Reps.
thorities; and that, too, when it is certain that
nothing* but the power of the military law can save
the civil laws and the Constitution of the country
from complete annihilation. If these are not the
positions assumed by gentlemen in so many words,
they are unquestionably the conclusion to which
their positions necessarily and inevitably conduct
us; for no man pretends to venture the assertion
that the city of New Orleans could, by any human
agency or effort, have been saved in any other
manner than the declaration and enforcement of
martial law. For one, I maintain that, in the
exercise of this power, General Jackson did
not violate the Constitution, nor assume to him-
self any authority which was not fully authorized
and legalized by his position, his duty, and the
unavoidable necessity of the case. Sir, I admit
that the declaration o£ martial law is the ex-
ercise of a summary, arbitrary, and despotic
power, like that of a judge punishing for contempt,
without evidence, or trial, or jury, and without
any other law than his own will, or any limit to
the punishment but his own discretion. The power
in the two cases is analogous; it rests upon the same
principle, and is derivable from the same source—
extreme necessity.
The gentleman from New York, [Mr. Barnard,]
in his legal argument to establish the right of Judge
Hall to fine General Jackson one thousand dollars
for contempt of court, without the forms of trial,
has informed us that this power is not conferred by
the common law, nor by statute, nor by any ex-
press provision of the Constitution; but is inherent
in every judicial tribunal, and every legislative body.
He has cited the decision of the Supreme Court of
the United States in support of this doctrine; and I
do not deem it necessary, for the purposes of this ar-
gument, to question its soundness. The ground
upon which it is held that this extraordinary
power is original and inherent in all courts and
deliberative bodies, is, that it is necessary to ena-
ble them to perform the duties imposed upon
them by the Constitution and laws. It is said that
the divine and inalienable right of self-defence ap-
plies to courts and legislatures, to communities, and
states, and nations, as well as individuals. The
power, it is said, is coextensive with the duty;
and, by virtue of this principle, cach of these bodies
is authorized not only to use the means essential
to the performance of the duty, but also to exercise
the powers necessary to remove all obstructions to
the discharge of that duty. Let us apply these
principles to the proceedings at New Orleans, and
see to what results they will bring us.
General Jackson was the legally and constitu-
tionally authorized agent of the Government and the
country to defend that city and its adjacent territory.
His duty, as prescribed by the Constitution mid
laws, as well as the instructions of the "War Depart-
ment, was to defend the city and country at every
hazard. It was then conceded, and is now eon-
ceded on all sides, that nothing but martial law
would enable him to perform that duty. If, then,
his power was commensurate with his duty, and (to
follow the language of the courts) he was author-
ized to use the means essential to its performance,
and to exercise the powers necessary to remove all
obstructions to its accomplishment,—he had a right
to declare martial law, when it was ascertained and
acknowledged that nothing but martial law would
enable him to defend the city and" the country.
This principle liai been recognised and actcd upon
by all civilized nations, and is familiar to those who
are conversant with military history !t does
not imply the right to suspend the laws and
civil tribunals at pleasure. The right grows
out of the necessity; and when the necessity
fails, the right ceases. It may be absolute or
qualified, general or partial, according to the
exigencies of the case. The principle is, that the
general may go so far, and 110 farther than is abso-
lutely necessary to the defence of the city or dis-
trict committed to his protection. To this extent
General Jackson was justifiable; if lie went beyond
it, the law was against lum. But in point of fact,
he did not aupri seae the laws, 1101* molest the pro-
ceedings of the civil tribunals, any farther than they
were calculated to obstruct the execution of his
plans for the defence of the city. In all other re-
spects, the laws prevailed, and were administered as in
times of peace, until the Legislature of the State of
Louisiana passed an act suspending them till the
month of May, in consequence of the impending
dnnger that threatened the city. There are exigen-
cies in the history of nations as well as individuals,
when necessity becomes the paramount law to which
all other considerations must yield. It is that great,
first law of nature, which authorizes a man to de-
fend his life, his person, his wife and children, at all
hazards, and by every means in his power. It is
that law which authorizes this body to repel aggres-
sion and insult, and to protect itself in the exercise
of its legislative functions; it is that law which ena-
bles courts to defend themselves and punish for con-
tempt. It was this same law which authorized
General Jackson to defend New Orleans by resort-
ing to the only means in his power which could ac-
complish the end. In such a crisis, necessity con-
fers the authority, and defines its limits. If it be-
comes necessary to blow up a fort, it is right to do
it; if it is necessary to sink a vessel, it is right
to sink it; and if it is necessary to burn a city, it
is right to burn it. I will not fatigue the com-
mittee with a- detailed account of the occurrences
of that period, and the circumstances sur-
rounding the general, which rendered the danger
immediate and impending, the necessity unavoid-
able, the duty imperative, and temporizing ruinous.
That task has been performed with such felicity and
fidelity by the gentleman from Louisiana, [Mr. Sli-
dell,] as to make a recital of the facts entirely un-
necessary. The enemy—composed of disciplined
troops, exceeding our force four-fold in numbers—
were in the immediate vicinity of the city, ready
for the attack at any moment. Our own little flotilla
already destroyed; the city filled with traitors,
anxious to surrender; spies transmitting informa-
tion daily and nightly between these traitors and
the enemy's camp; the population mostly emigrants
from the different European countries, speaking
various languages, unknown to the general in com-
mand, which prevented any accurate information of
the extent of the disaffection; the dread of a servile
insurrection, stimulated by the proclamations and the
promises of the enemy , of which the firing of the
first gun was to be the signal;—these were some of
the reasons which produced the conviction in the
nnnds of all who were faithful to the country, and
desirous to see it defended, that their only salvation
depended upon the existence of martial law. The
Governor, the judges, the public authorities gener-
ally, and all the citizens who espoused the Ameri-
can cause, came forward, Mid earnestly entreated
General Jackson, for their sakes, to declare martial
law, as the only means of maintaining the suprema-
cy of the American laws and institutions over Brit-
ish authority within the limits of our own territory.
General Jackson, concurring with them in opinion,
promptly issued the order, and enforced it by the
weight of his authority. The city was saved. The
country was defended by a succession of the most
brilliant military achievements that ever adorned
the annals of this or any other country, in this or
any other age. Martial law was continued no longer
than the danger (and, consequently, the necessity)
existed. At the time when Louallier was imprison-
ed, and Judge Hall was sent out of the city, official
news of the signing_ of the treaty at Ghent had not
been received; hostilities had not ceased; nor had
the enemy retired. On the very day the writ of
habeas corpus for Louallier was returnable, Gen-
eral Jackson received official mstiuctions from the
War Department to raise additional troops, and pre-
pare for a vigorous prosecution of the war, Hearing
a rumor, on the same day, that a treaty of peace had
been signed, he sent a proposition to the British
general for a cessation of hostilities until official in-
telligence should be received; winch proposition was
'rejected by the English commander. It cannot be said,
therefore, that the war had closed, or the necessity
for martial law had ceased. All the considerations
which induced its dealaration, required its contin-
uance. If it was right to declare it, it was ri°-ht to
enforce and continue it. At all events. Judge Hall
and his eulogists arc estopped from denying the pow-
er or the propriety of the declaration or the enforce-
ment of martial law. He advised, urged, rnd soli-
cited General Jackson to declare it; and subsequently
expressed his approbation of the act. Yes even
that learned, that profound, that immaculate judge,
D. A. Hall, himself advised and approved of the
proceeding. Did he not understand the Constitu-
tion and laws which it was his duty to administer?
Or, understanding them, did he advise General Jack-
son to do an act in direct violation of that Constitu-
tion which he was sworn to support and protect'
Conscientious judge! Ad\ssea military officer, when
ill the discharge of a high and responsible duty, to
violate the Constitution, and then arrest and punish
him, without evidence or trial, for that very viola-
tion! Rare specimen of judicial integrity! Perfidious-
ly advise the general, for the purpose of entrapping
him into the commission of an unlawful act, that ho
might wreak his vengeance upon him according to
the most approved forms of the Star chamber! I
would like to hear from his most ardent admirers on
this floor, upon that point, ft is material to the for-
mation of a correct judgment upon the merits of this
question. One of two things is necessarily true in
this matter: either he was guilty of the most infa-
mous, damnable perfidy; or he believed that
General Jackson was acting within the scope
of his rightful authority, for the defence of the
country, its Constitution, and laws. In either
event, his conduct was palpably and totally
indefensible. Having advised the course which
General Jackson pursued—even if he had changed
his opinion as to the correctness of that advice,
and the legality of the acts which had been com-
mitted in pursuance of it; and even if, under these
circumstances, he had felt it his duty to vindi-
cate the supremacy of the laws and the authority
of his court, by inflicting the penalty of the law,—
yet a mere nominal fine (one cent) would have ac-
complished that object as effectually as one thousand
dollars. In this view, it was not a case requiring
exemplary punishment. He did not doubt—he
could not doubt—that the general had acted con-
scientiously, under a high sense of duty; and if he
had exceeded his authority—if he had committed
an error—it was an error into which he had been
led by the advice of that very judge, whose duty it
was to know the law, and advise correctly; and
who afterwards, with the shameless perversity of
his nature, enforced a vindictive penalty. I boldly
assert that the judgment was vindictive; because
the amount of the fine, under the circumstances of
the case, is conclusive upon that point.
But if I should grant, for the sake of argument,
(that which I do not admit,) that General Jackson
exceeded his authority, and thereby violated the
Constitution and laws, and that Judge Hall was
clothed with competent power to punish the offence,
still I am prepared to show that, even in that event,
the judgment was unjust, irregular, and illegal.
The champions of Judge Hall on this floor have
debated the question as if the mere declaration of
martial law, of itself, was a contempt of court,
without reference to the fact whether it actually in-
terrupted and obstructed the proceedings of the
court. Was there ever a more fatal and egregious
error? Every unlawful act is not necessarily a con-
tempt of court. A man may be guilty of every
offence upon the whole catalogue of crime, and
thus obtain for himself an unenviable immortality,
without committing a contempt of court. The doc-
trine of contempts only applies to those acts which
obstruct the proceedings of the court, and against
which the general laws of the land do not afford
adequate protection. It is this same doctrine of
necessity, conferring power, and at the same time
restricting its exercise within the narrow limits of
self-defence. The rights of the citizen, the liberties
of the people of this country, are secured by that
provision of the Constitution of the United States,
which declares that "the tried of all crimes, except in
cases of impeachment, shall be by jury;" and also
the amendment to the Constitution, wiiieh roouires
"apresentment or indictment of a%rur,d jury. General
Jackson, as well as the humblest citizen and the
vilest criminal, was entitled to the benefit of these
constitutional provisions. If he had violated the
Constitution, and suspended the laws, and com-
mitted crimes, Judge Hall had no right to punish
him by the summary process of the doctrine of
contempts, without indictment, or jury, or evidence,
01* the forms of trial. It is incumbent upon those
who deifcnd and applaud the conduct of the judge,
to point out the specific act done by General Jack-
son, which constituted a contempt"of court. The
mere declaration of martial law is not of that char-
acter. If it was improperly and unnecessarily de-
clared, the. general was liable to be tried by a court
martial, according to the rules and articles of war,
established by Congress for that purpose. It was a
matter over which the civil tribunals had 110 juris-
diction, and with which they had no concern, un-
less some specific crime had been committed, or in-
jury done; and not even then, until it was brought
before them, according to the forms of law. Some
specifications have been made in the speeches of
gentlemen against General Jackson, which I will
notice in their proper order.
The first is, the arrest and imprisonment of Lou-
allier, on the charge of instigating treason and ma-
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United States. Congress. The Congressional Globe, Volume 13, Part 2: Twenty-Eighth Congress, First Session, book, 1844; Washington D.C.. (https://texashistory.unt.edu/ark:/67531/metapth2368/m1/54/: accessed April 19, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.