The Congressional Globe, Volume 13, Part 2: Twenty-Eighth Congress, First Session Page: 60
viii, 784 p. ; 25 cm.View a full description of this book.
Extracted Text
The following text was automatically extracted from the image on this page using optical character recognition software:
60
APPENDIX TO THE CONGRESSIONAL GLOBE.
Jan. 1844.
28th Cong 1st Sess.
Fine on General Jackson—Mr. Dean.
H. of Reps.
the power of the writ of habeas corpus, to control
the military operations of the general within the
limits of his camp. That such necessity did exist,
we have the opinion of the Governor ana the Legis-
lature of the State >bf Louisiana, who not only ad-
vised and sanctioned those proceedings on the part
of the commanding general in declaring and enforc-
ing martial law within the city of New Orleans, but
did themselves shut up the courts of Louisiana, un-
til the dangers of the times should pass by. There
was no one, sir, at this time, who was on the side
of his country, that denied the necessity for martial
law. All the magistrates of the city, Judge Hall in-
cluded, and all the citizens, advised the adoption
and enforcement of martial law. There was none—
no, not a dissenting voice to be heard in opposition
to the measure. All concurred in the necessity and
in the propriety of its adoption at the time. And,
sir, I am fully persuaded that the lapse of time,
since that transaction, has served only to strengthen
and confirm the conviction of that necessity, and the
propriety of the measure. Sir, at this time, at this
very moment, the whole Democracy of the nation
is rising up as one man, and with the strongest de-
monstrations of their opinions, are applauding, jus-
tifying, and sanctioning the conduct of General
Jackson on that occasion; and, with demonstrations
equally clear and strong, are condemning, in the most
unequivocal language, the conduct of Judge Hall.
The judgment of posterity has been right upon this
subject. The people are now moving in their ma-
jesty in this matter. They have decreed that this
long-deferred justice to their gallant general shall
now be performed; and that, too, speedily.
I will now, sir, pass from the consideration of
martial law to the civil law and facts of the case;
with the utmost confidence and certainty that, if
they are examined and judged with that desire to
elicit the truth which the merits of the case require,
there will be no division of opinion (at least, among
lawyers) that General Jackson was never amena-
ble to the jurisdiction of Judge Hall for a contempt,
and that the infliction of the penalty of one thousand
dollars by Judge Hall upon General Jackson was
without law, without right, and contrary to justice.
But before I proceed to examine minutely the law
and the facts connected with this fine, 1 may as well
dispose of another objection urged by gentlemen on
the other side—that is, by restoring this fine to Gen.
Jackson, we shall not only justify him in violating
the Constitution, but we shall set a precedent calcu-
lated to bring the judiciary of our country into con-
tempt. Sir, has it come to this, that, when a man
who has done-so much for his country as General
Jackson has, falls under the displeasure of a judge,
and is unjustly fined one thousand dollars for
contempt of court, that fine cannot be refunded
without implicating the judiciary of our country,
and inflicting a fatal wound upon the Constitution?
I can see no good reason why this unjust judgment
against one of the "noblest men that ever lived in the
tide of time" should be as unalterable as the laws of
the Medes and Persians. I go, eir, for revoking and
annulling that unjust judgment, by restoring to
General Jackson every farthing, with interest, that
has been thus wrongfully extorted from him; and,
by this legislative judgment, to wipe out the least
stain, the least imputation that may have attached, by
reason of this fine, to the fair fame of Gen. Jackson.
And in doing so, I cast no imputation upon the judi-
ciary of my country, nor upon the sacredness of the
writ of habeas corpus; but the judgment of this
Dominick A. Hall shall not be shielded by the sanc-
tity of the judiciary from a thorough and searching
investigation. His malice and his motives shall be
exposed in all their naked deformity. Gentlemen, it
seems, on the other side, are willing to sacrifice the
fame of an old hero, and a defender of our country—
not openly, but covertly—by taking shelter behind
the decision of this unjust judge, and making him
the instrument of stabbing, fatally stabbing, the fair
fame of General Jackson, and then attempting to
shield themselves and their favorite under the sanc-
tity of the judiciary of our country. Sir, I hare as
high a regard for the judiciary of our country as their
merit deserves; but I have yet to learn that that oral
of our Government will ever consent to lend its aid
to protect itself, or any person or party in this coun-
try, in acts of inhumanity and outrage that would
shock the moral sense of every patriot in the
nation. Sir, the restoring of this fine to General
Jackson will affect no one injuriously; nor will it vi-
olate any rule or principle of common or constitu-
tional law; but, on the contrary, it will be restoring
back to the old hero that winch is his, and winch
never rightfully belonged to us. Sir, if the oppo-
nents of this bill are willing to ally their fame with
that of Judge Hall, let them do' it; I, for one, shall
never envy them the inheritance of such a legacy.
Having disposed, as I think, of all the constitu-
tional objections urged by the gentlemen on the
other side of the question, I will now take up the
law, and the facts connected with the assessment of
this fine; and if I shall be able to strip them of those
metaphysical distinctions and fine-spun subtleties
thrown about them by the gentlemen on the other
side, and shall be able to get at the facts and the
law, so as to present them m their naked truth and
purport, I shall have no fear butthat this committee—
yes, sir, every patriot in this country, who takes truth
for his guide, and justice for his standard, will agree
with me, that the law and the facts, as well as equi-
ty and justice, are on the side of General Jackson,
and that they call loudly upon us to do him, imme-
diately, that long-deferred justice which he so rich-
ly deserves. Sir, what are the facts, m this case?
They are, that on the 5th of March, 1835, General
Jackson ordered a Mr. Louallier to be arrested and
put upon his trial before a court martial, for having
published a communication in one of the newspa-
pers of the city of New Orleans, calculated to stir
up mutiny in the camp of General Jackson; that a
Mr. Morel, counsel for Louallier, on the same day,
about seven o'clock, p. m., applied to Judge Hall,
and obtained an order from the said judge, directed
to the clerk of his court, to issue a writ of habeas
corpus, which was made returnable before the said
judge at eleven o'clock on the next day. On the re-
ceipt of the order, the clerk testifies that he discover-
ed that the order, and affidavit on which the order
was granted, were dated on the 6th; that he imme-
diately returned the order and affidavit to the judge,
who altered the date, both of the order and affidavit, to
the 5th, and this, too, without the consent of either
Louallier or his counsel. General Jackson had been
apprized of the proceedings of Judge Hall, and imme-
diately, on the same day, about 9 o'clock at night, or-
dered the judge to be arrested and placed in confine-
ment. About 12 o'clock at night of the same day, Gen.
Jackson was shown the bill, affidavit, and order, by
the clerk of the court; and, perceiving that the dates
of the affidavit and order had been altered, and sus-
pecting something unfair in the transaction, the gen-
era] retained the papers, against the remonstrance of
the clerk, who informed him that, by an order of
Judge Hall, he was forbidden to permit any original
paper to be taken from the files of the court; but the
general observed that he would take the responsibil-
ity of keeping the papers, and gave the clerk a certi-
fied copy of them: upon which the clerk issued his
writ of habeas corpus, agreeably to 'the judge's or-
der; but, for some cause not sufficiently explained,
the marshal did not serve the writ on General Jack-
son until between 5 and 6 o'clock of the next day,
and several hours after the return time of the writ.
That the judge was in prison, and that there was
no court held on the day on which the writ was re-
turnable; that, shortly after this time, Judge Hall
was sent out of the city, and did not return until
the 14th of March, when this suit was instituted
against General Jackson for contempt of court, in
which he was fined a thousand dollars.
These, sir, are substantially the facts, as disclosed
in this transaction. Now, what is the law arising
upon this state of the facts? I admit that the court
possesses the inherent power to punish fur con-
tempts, and that it may be done by them without
the aid or intervention of a jury: and, in order to
define the law upon this subject, it is only necessary
to refer to the act passed March 2, 1831—which
provides that "the power of the courts to inflict
summary punishment for contempts of court, shall
not be-construed to extend to any cases, except the
misbehavior of any person or persons in the pres-
ence of said courts, or so near thereto as to obstruct
the administration of justice, &e., and the disobedi-
ence of any of the officers, &«., or any other person
or persons, to any lauj'ul writ, process, order, rule,
decree, or command of the said courts." This act
is simply declaratory of the common law. It nei-
ther enlarges nor restricts the power and authority
which the courts possessed before its passage, but
simply declares what the law was. It prescribes no
new rule; neither does it enlarge or restrict the well-
settled principles of this inherent power of courts,
as understood and practised by the courts in this
country.
From these facts, there can he no doubt but that
the judge acted without the authority of law in in-
flicting upon General Jackson a fine for contempt of
court. But it is claimed that General Jackson was
guilty of a contempt of court for saying that he
"shopped" the judge. I think, however, that his
friends will not find sufficient inherent power in any
court to punish for such an offence. The general's
remark that he had "shopped" the judge, was no
more a crime or an offence than if he had said that
he had "shopped" any other person._ From this
examination of the law and the facts, it is perfectly
clear to my mind, and I think it must be satisfactory
to all, that General Jackson has, in no instance,
throughout this whole transaction, violated the law,
either in act or intent, in a manner that would sub-
ject him to be punished by the summary process of
contempt. Wherein, then, let me ask, did General
Jackson do ally act against the dignity of Judge
Hall's court, or any act which disturbed the judge
while holding court, or in any manner obstruct the
process, order, decree, or command, of said court,
by which he should be subjected to the jurisdiction
of said court, and liable to be arraigned and pun-
ished for contempt?
Judge Hall was not, at the time of his arrest,
holding court; for it was on Sunday evening, and he
was at his usual residence, in a private house; and,
consequently, any wrong done him there, must
have been punished as any offence of a like nature
against any other person—that is, by indictment
and trial by jury. This is so plain a principle of
law, -that it does not seem to me necessary to pro-
duce any other argument in its support than simply
to state the facts. For a judge, when he is not in
actual session, holding court, has no more power
than any other man to punish, by this "summary
mode of contempts," any wrong or injury that may
have been done him.
We will now, for a moment, examine the facts
under the second clause of the act just cited, and see
if General Jackson did, in any manner, "obstruct
the writ, order, decree, or command of said court."
That General Jackson detained from the clerk the
original affidavit of the party, and the order of the
judge, is true, but he, at, the same time, gave the
clerk of the court a true transcript of all the papers
which he detained; and the clerk of the court pro-
ceeded to issue the writ in the same manner, and the
writ was of the same effect, as if the papers detained
by General Jackson had been on file in the clerk's
office. So there was, in fact, no obstruction of the
torit, order, decree, or command of the court. And if
the general had been guilty of any wrong in detain-
ing those papers, he was liable, only as any other
person would have been, to indictment and trial, by
jury; but not subjected to the jurisdiction of Judge
Hall, or liable to be punished by him, in the exer-
cise of his inherent power, for contempt. If this state-
ment of the facts be true—and I aver that they are
taken from the published records of the trial, and
that I believe that they are true—can there be a ques-
tion or a doubt upon the mind of any unprejudiced
person, but that General Jackson was fined by Judge
Hall without authority of few?
General Jackson never insulted the court, nor dis-
turbed it while sitting as a court; nor did he, in any
manner, ohstruct its writ, order, decree, or command;
and consequently was not legally amenable to
Judge Hall for contempt of his court. But let us
analyze this part of the case a little more minutely.
The writ was served several hours after the time had
expired for its return, and consequently was of no
effect: besides, the judge had been "shopped," and
there was no court open, or in session, before which
General Jackson could appear. The date of the affi-
davit had been altered by the judge, without the con-
sent of the person who made it, and was, therefore,
void, as well as the writ, and all other proceeding
which had been had upon it; and, sir, if the altera-
tion of that affidavit was not a forgery, it was such,
at least, as to vitiate and destroy its legal effect.
I will not pursue the subject of this fine any far-
ther. I think I have sufficiently shown, from the
law and the facts, that this judge acted arbitrarily,
unjustly, and without law or right, in inflicting this
penalty upon General Jackson; and I believe it is
for these reasons, and many others that might be
assigned, (did time permit,) that the people through-
out this country are demanding of us to do justice
to the old hero by revoking this unjust judgment in
restoring to him the amount of this fine, with interest.
Sir, let me tell those gentlemen who pretend to have
so much regard for the Constitution, and such a ho-
ly horror of a military chieftain, that there is less
danger to be apprehended to our rights from an ar-
my of citizen soldiers, led on by a gallant and chiv-
i alrouB commander, boldly avowing his intentions,
Upcoming Pages
Here’s what’s next.
Search Inside
This book can be searched. Note: Results may vary based on the legibility of text within the document.
Tools / Downloads
Get a copy of this page or view the extracted text.
Citing and Sharing
Basic information for referencing this web page. We also provide extended guidance on usage rights, references, copying or embedding.
Reference the current page of this Book.
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/m1/70/: accessed April 24, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.