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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 himself 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 of martial law is the exercise 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 express provision, 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 argument, 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 enable them to perform the duties imposed upon them by the Constitution and laws. It is said that the divine and inalienable right of self-defense applies 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, each 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 constitutionally authorized agent of the government and the country to defend that city and its adjacent territory. His duty, as prescribed by the Constitution and laws, as well as the instructions of the War Department, was to defend the city and country at every hazard. It was then conceded, and is now conceded 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 authorized to use the means essential to its performance, and to exercise the powers necessary to remove all obstructions necessary 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 has been recognized and acted upon by all civilized nations, and is familiar to those who are conversant with military history. It 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 no farther, than is absolutely necessary to the defense of the city or district committed to his protection. To this extent General Jackson was justifiable; if he went beyond it the law was against him. But, in point of fact, he did not supersede the laws, nor molest the proceedings of the civil tribunals, any farther than they were calculated to obstruct the execution of his plans for the defense of the city. In all other respects 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 danger that threatened the city. There are exigencies 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 defend 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 aggression and insult, and to protect itself in the exercise of its legislative functions; it is that law which enables courts to defend themselves and punish for contempt. It was this same law which authorized General Jackson to defend New Orleans by resorting to the only means in his power which could accomplish the end. In such a crisis, necessity confers the authority and defines its limits. If it becomes 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 committee with a detailed account of the occurrences of that period, and the circumstances surrounding the general, which rendered the danger immediate and impending, the necessity unavoidable, the duty imperative, and temporizing ruinous. That task has been performed with such felicity and fidelity by the gentleman from Louisiana (Mr. Slidell) as to make a recital of the facts entirely unnecessary. 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 information 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 command, which prevented any accurate information of the extent of the disaffection; the dread of a servile insurrection, stimulated by the proclamation 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 minds 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 generally, and all the citizens who espoused the American cause, came forward, and earnestly entreated General Jackson, for their sakes, to declare martial law, as the only means of maintaining the supremacy of the American laws and institutions over British 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 imprisoned 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, General Jackson received official instructions from the War Department to raise additional troops, and prepare 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 intelligence should be received, which proposition was rejected by the English commander. It can not be said, therefore, that the war had closed, or the necessity for martial law had ceased. All the considerations which induced its declaration required its continuance. If it was right to declare it, it was right to enforce and continue it. At all events, Judge Hall and his eulogists
are estopped from denying the power or the propriety of the declaration or the enforcement of martial law. He advised, urged, and solicited 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 Constitution and laws which it was his duty to administer? or, understanding them, did he advise General Jackson to do an act in direct violation of that Constitution which he was sworn to support and protect? Conscientious judge! Advise a military officer, when in 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 violation!
Rare specimen of judicial integrity! Perfidiously advise the general for the purpose of entrapping him into the commission of an unlawful act, that he 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. It is material to the formation 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 infamous, damnable perfidy, or he believed that General Jackson was acting within the scope of his rightful authority for the defense 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 committed in pursuance of it, and even if, under these circumstances, he had felt it his duty to vindicate 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 accomplished that object as effectually as one thousand dollars. In this view, it was not a case requiring exemplary punishment. He did not doubt-he would not doubt that the general had acted conscientiously, 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 afterward, 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 the competent power to punish the offense, 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 interrupted and obstructed the proceedings of the court. Was there ever a more fatal and egregious error? Every unlawful act is not necessarily a contempt of court. A man may be guilty of every offense upon the whole catalogue of crime, and thus obtain for himself an unenviable immortality, without committing a contempt of court. The doctrine 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-defense. 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 trial of all crimes, except in cases of impeachment, shall be by jury;" and also the amendment to the Constitution which requires 66 a presentment
or indictment of a grand 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 committed crimes, Judge Hall had no right to punish him by the summary process of the doctrine of contempts, without indictment, or jury, or evidence, or the forms of trial. It is incumbent upon those who defend and applaud the conduct of the judge to point out the specific act done by General Jackson which constituted a contempt of court. The mere declaration of martial law is not of that character. If it was improperly and unnecessarily declared, 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 no jurisdiction, and with which they had no concern, unless some specific crime had been committed or injury 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 Louallier on the charge of instigating treason and mutiny in the general's camp. It is immaterial for the purposes of this discussion whether he was actually guilty or not. He stood charged with the commission of high crimes, the punishment of which was death. He was believed to be guilty, and consequently there was probable cause for his arrest and commitment 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 hovering 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 offense at all, it was a case of false imprisonment, which was indictable before a grand jury and triable 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 obvious: they could not procure a verdict of "Guilty" from an honest and patriotic jury who had fought in defense of the city under the operation of that "terrible martial law," and who had witnessed the necessity for its declaration, and its glorious effects in the salvation of the country.
The next specification which gentlemen make against General Jackson is, that he did not appear before Judge Hall in obedience to a writ of habeas corpus issued by the judge for the liberation of Louallier, 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 General Jackson, or shown to him, until the evening afterward. 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 General Jackson. There was no command of the court remaining that could be obeyed, the time had elapsed. These facts were distinctly set forth by General Jackson, under oath, in his answer to the rule of court requiring him to show cause why he should not be punished for contempt; 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 General Jackson had committed no contempt of court; and, secondly, if he had, he fully purged himself of the alleged offense.
The next specification in the catalogue of crimes which gentlemen charge upon the hero of New Orleans 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 affidavit 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 been made, in the handwriting of the judge, not only in the writ, but also in the affidavit, without the consent of the man who had sworn to it. These alterations of themselves rendered the papers 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 originals 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 jury of his country, as guaranteed by the Constitution and laws? No; this was arbitrarily and unjustly 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 of arresting Judge Hall and sending him beyond 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 Louallier and the rest of that band of conspirators, who were attempting to defeat the efforts of the American general for the defense of the city. Their movements were dangerous, because they were protected by the power of 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 beyond the lines of his camp. The question arises, was this act a contempt of court? The court was not in session, he did not interrupt its proceeding, he did not obstruct its progress, but he did imprison the man who had been exercising the powers of judge. If that imprisonment had been unlawful, the general was liable to be indicted for false imprisonment, and, like any other offender, to be tried and condemned according to the forms of law. But the judge 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 crime, and oppression, and tyranny which have been charged upon General Jackson by his enemies upon this floor, in connection with his defense 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 authorize a summary infliction of punishment without evidence, trial, or jury? No gentleman has yet specified the act, and explained wherein the contempt consisted; and I presume no one will venture on 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 lawless 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 in their proper place. I do not wish to extenuate the one or depreciate the other; but when I hear gentlemen attempting to justify this unrighteous fine upon General Jackson upon the ground of non-compliance with rules of