The Congressional Globe, Volume 13, Part 2: Twenty-Eighth Congress, First Session Page: 45
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Jan. 1844.
28th Cong 1st Sess.
APPENDIX TO THE CONGRESSIONAL GLOBE.
4S.
Fine on General Jackson—Mr, Douglass.
H. of Reps.
tiny in the general's camp. It is immaterial, for the
purposes of this discussion, whether he was actu-
ally guilty or not. He stood charged with the com-
mission of high crimes, the punishment of which was
death. He was believed to be guilty, and consequent-
ly there was probable cause for his arrest and commit
merit for trial, according to the doctrine of the courts.
If permitted to go at large, he might have matured
and executed his plans of mutiny and treason, by
the aid of the British army, which was then hover-
ing around the city. But supposing this arrest to
have been contrary to law, as gentlemen contend:
yet it was no contempt of court. If it was an of-
fence at all, it was a case of false imprisonment,
which was indictable before a grand jury, and tri-
able by a petit jury. Why did they not proceed
against General Jackson according to law, and give
him a trial by a jury of his country, and obtain a
verdict according to evidence? The answer is ob-
vious: they could not procure a verdict of "guilty"
from an, honest and patriotic jury $ who had fought in
the defence of the city under the operation of that
"terrible martial law,'1 and who had witnessed the ne-
cessity for its declaration, and its glorious effects in
the salvation of the country.
The next specification which gentlemen make
against Gen. Jackson is, that he did not appear be-
fore Judge Hall in obedience to a writ of habeas cor-
pus, issued by the judge for the liberation of Loual-
lier, who was in confinement on a charge of mutiny
and treason. A simple statement of the facts of this
case will carry with it the general's justification.
The evidence shows that the writ was issued on the
fifth of the month, and made returnable on the sixth
before Judge Hall, at eleven o'clock in the morning,
and that it was never served on Gen. Jackson, or
shown to him, until the evening afterwards. Hence
it was impossible for him to have complied with the
injunctions of that writ, if he had desired to do so.
The writ had spent its force; had expired; was
functus officio before it reached Gen. Jackson. There
was no command of the court remaining that could
be obeyed; the time had elapsed. These facts were
distinctly set forth by Gen. Jackson, under oath, in
his answer to the rule of court requiring him to
show cause why he should not be punished for con-
tempt; and they have never been denied In fact,
there is an abundance of corroborative evidence to
the same effect. From these facts, it is clear—first,
that Gen. Jackson had committed no contempt of*
court, ana, secondly, if he had, he fully purged him-
self of the alleged offence.
The next specification in the catalogue of crimes
•which gentlemen charge upon the hero of New Or-
leans, is, that he forcibly seized and retained posses-
sion of the writ, and the affidavit on which it was
issued. The facts are, that when the writ and af-
fidavit were brought to him for service, after the
time for its return had elapsed, and it had become a
nullity, he discovered that a material alteration
had beea made, in the handwriting of the judge;
not only in the writ, but also in the affidavit, with-
out the consent of the man who had sworn to it.
These alterations of themselves rendered the pa-
pers void, even if they had been originally valid,
and had not expired of their own limitation; but as
they contained the evidence upon their face of the
crime of forgery, it was important that General
Jackson should retain possession of them, lest they
should be destroyed, and the evidence lost.
With this view, the general did retain the origi-
nals, and furnish certified copies to the judge.
These transactions did not occur in the presence of
the judge, or his court, nor when his court was in
session; and of course could not legally be punished
by the summary process of contempt. If they were
illegal, why not give the benefit of a fair trial by a
jary of his country, as guarantied by the Constitu-
tion and laws5 No: this was arbitrarily and un-
justly withheld from him; thereby denying him the
privilege of proving his innocence.
The next, and the last, of these high crimes and
misdemeanors imputed to Jackson at New Orleans,
is that ot arresting Judge Hall, and sending him be-
yond the limits of the city, with instructions not to
return until peace was restored. The justification
of this act is found in the necessity which required
the declaration of martial law, and its continuance
and enforcement until the enemy should have left
our shores, or the treaty of peace should have been
ratified and published. The judge had confederated
with Loualhcr and the rest of that hand of conspira-
tors who were attempting to defeat the efforts of the
American general for the defence of the city. Their
tvrov*nr er,te were dongerous; because ihey were pro-
tected by the power of the civil law, in the person of
Judge Hall, by a perversion of the privileges of the
writ of habeas corpus. The general was driven to
an extremity, in which he was compelled either to
abandon the city to whatever fate the conspirators
might choose to consign it, or to resolutely maintain
his authority by the exertion of his own power.
He took the responsibility, and sent the judge be-
yond the lines of his camp. The question arises,
was this act a contempt of court5 The court was
not in session; he did not interrupt its proceeding;
he did not obstruct its process; but he did imprison
the man who had been exercising the powers of
judge. If that imprisonment was unlawful, the
general was liable to be indicted for false imprison-
ment; and, like any other offender, to be tried and
condemned according to the forms of law. But the
iudge had no right to say, "vengeance is mine," and
I will visit it upon the head of my enemy until the
measure of my revenge is full. Now, sir, I have
disposed of all the specifications of ciime and op-
pression and tyranny which have been charged up-
on General Jackson by his enemies upon this floor, in
connexion with his defence of New Orleans. I
have endeavored to state the facts truly, and fairly
apply the principles of law to them. I will thank
the most learned and astute lawyer upon this floor
to point out which one of those acts was a contempt
of court, in the legal sense of that term, so as to au-
thorize a summary infliction of punishment, without
evidence, trial, or jury. No gentleman has yet spe-
cified the act, and explained wherein the contempt
consisted; and I presume no one will venture upon
so difficult a task. It is more prudent to deal in
vague generalities, and high sounding declamation—
first, about the horrors of arbitrary power and law-
less violence; then the supremacy of the laws, and
the glorious privileges of the writ of habeas corpus.
These things sound very well, and are right m their
proper place. I do not wish to extenuate the one, or
depreciate the other. But when I hear gentlemen at-
tempting to justify this unrighteous fine upon Gen-
eral Jackson, upon the ground of non-compliance
with rules of court and mere technical formalities, I
must confess that I cannot appreciate the force of the
argument. In cases of war and desolation, in times
of peril and disaster, we should look at the substance,
not the shadow of things. I envy not the feelings
of the man who can reason coolly and calmly about
the force of precedents and the tendency of examples
in the fury of the war-cry, when "booty and beau-
ty" is the watchword. Talk not to me about rules
and forms in court, when the enemy's cannon are
pointed at the door, and the flames encircle the cu-
pola! The man whose stoicism would enable him
to philosophize coolly under these circumstances,
would fiddle while the Capitol was burning, and
laugh at the horror and anguish that surrounded
him in the midst of the conflagration! I claim not
the possession of these remarkable qualities. I con-
cede them all to those who think that the saviour of
New Orleans ought to be treated like a criminal for
not possessing them in ahigher degree. Their course
in this debate has proved them worthy disciples of
the doctrine they profess. Let them receive all the
encomiums which such sentiments are calculated to
inspire.
But, sir, for the purposes of General Jackson's jus-
tification, I care not whether his proceedings were
legal or illegal, constitutional or unconstitutional,
with or without precedent, if they wire necessary to
the salvation of that city. And I care as little whether
he observed all the rules, and forms, and technicali-
ties, which some gentlemen seem to consider the per-
fection of reason and the essence of wisdom. There
was but one form necessary on that occasion, and
that was, to point cannon and destroy the enemy.
The gentleman from New York, [Mr. Barnard,]
to whose speech I have had occasion to refer so fre-
quently, has informed us that this bill is unprece-
dented. I have no doubt this remark is technically
true, according to the most approved forms. I pre-
sume no case can be found on record, or traced by
tradition, where a fine, imposed upon a general for
saving his country, at the peril of his life and repu-
tation, has ever been refunded. Such a case would
furnish a choice page in the history of any country. I
grant that it is unprecedented; and for that reason we
desire, on this day, to make a precedent, which shall
command the admiration of the world, and be
transmitted to future generations as an evidence that
the people of this age, and in this country, were
not unjust to their great benefactor. This bill is
unprecedented, because no court ever before imposed
a fine under the same eirc unifctanccrf. lx\ this respect,
Judge Hall himself stands unprecedented. The
fentleman from Louisiana [Mr. Dawson] who ad-'
ressed the committee the other day, told us that
General Wilkinson declared martial-law at New
Orleans, and enforced it, at the time of Burr's con-
spiracy. Where was Judge Hall then, that he did
not vindicate the supremacy of the laws and the
authority of his court? Why did he not then in-
flict the penalty of the law upon the perpetrator of
such a gross infraction of the Constitution which
he was sworn to defend and support? Perhaps his,
admirers here will tell us that he did not advise,
and urge, and entreat General Wilkinson to declare
martial-law. I believe that feature does distin-
tinguish the two cases, and gentlemen are entitled to
all the merit they can derive from it. I am informed,
that, in one of those trying cases, during the last
war, which required great energy and nerve, and
self-sacrificing patriotism, General Gaines had the
firmness to declare martial-law at Sackett's harbor;
and when, after the danger had passed, he sub-
mitted himself to the civil authorities, he received
the penalty of the law in the shape of a public
dinner, instead of a vindictive punishment. I doubt
not many other cases of a similar nature may be
found, if any one will take the trouble of examin-
ing the history of our two wars with Great Britain.
But if the gentleman from New York intended to
assert that it was unprecedented for Congress to
remunerate military and naval commanders for
fines, judgments, and damages, assessed against
them by courts for violating the laws in the honest
discharge of their public duties, I must be permitted
to inform him that he has not examined the legisla-
tion of his country in that respect. If the gentle-
man will read the speech of the pure, noble, and
lamented Linn, in the Senate, in May, 1842, he will
there find a long list of cases in which laws of this
kind have been passed. He said:
"There were precedents innumerable where offi-
cers have been found guilty of breaches oflaw in the
discharge of their public duty, and, therefore, call
ing for the interference of a just government. Of
these, it is only necessary to introduce a few where
the Government did interpose and give relief to the
injured officer. These cases commenced as early
as August, 1790, and have continued down to the
present time. Thus, in April, 1818, Major General
Jacob Brown was indemnified for damages sus-
tained under sentence of civil law, for having con-
fined an individual found near his camp suspected
of traitorous designs. At the same session, Cap-
tain Austin and Lieutenant Wells were indemni-
fied against nine judgments, amounting to upwards
of $6,000, for having confined nine individuals sus-
pected of treachery to the country. In this case, it
was justly remarked by the Secretary of War (John
C. Calhoun) that, 'if it should be determined that no
law authorized' the act, 'yet I would respectfully
suggejgt that there may be cases in the exigencies
of war, in which, if the commander should transcend
his legal power, Congress ought to protect him, and
those who acted under him, from consequential dam-
ages.'
"In the case of General Robert Swartwout, in
1823, the committee by whom it was reported,
stated that 'it is considered one of those extreme
cases of necessity in which an over-stepping of the
established legal rules of society stands fully justi-
fied.' "
I will not occupy the time of the committee with
further quotations, but will refer those who may
wish to examine the subject to the speech itself, and
the cases there cited. These cases fully sustain
the position I have taken, and prove that the Gov-
ernment has repeatedly recognised and sanctioned
the doctrine that, m cases of "extreme necessity, the
commander is fully justified" in superseding the
crwl laws; and that Congress will always "make
remuneration when they arc satisfied he acted with
the sole view of promoting the public interests con-
fided to his command." The principle, deducible
from all the cases, is, that when the necessity is ex-
treme and unavoidable, the commander is fully jus-
tified; and when it is less imperative, he is excu-
sable, provided he acted in good faith; and in either
event, Congress will always make remuneration.
Then, sir, I trust I have shown to the satisfaction
of all candid men, that, instead of this bill being
unprecedented, thf- opposition—the fiercc, bitter, vin-
dicative opposition to its passage, is unprecedented
in the annals of American legislation. Are gentle-
men desirous of making General Jackson an excep-
tion to those principles of justice which have pre-
vailed in all other c&stfs.5 Th'vy mistake the
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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/m1/55/: accessed April 23, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.