The Congressional Globe, Volume 13, Part 2: Twenty-Eighth Congress, First Session Page: 209
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iPeb. 1844.
APPENDIX TO THE CONGRESSIONAL GLOBE.
209
28th Cong 1st Sess.
Fine on General Jackson—Mr. Barnard.
H. of Reps.
But what Congress and the President, Parliament
and the King, could not do, General Jackson has
done. And there are those in an American Con-
gress—too many of them—who can stand up to justi-
fy the proceeding in the face of the world. Charity
obliges me think that they acting in some degree
under a misapprehension of the true facts of the
cnse, and certainly under a blind devotion to a man
and a party. Surely they have not fully considered
what sort of martial law it was that was attempted
to be enforced, or the period of time and the circum-
stances when the attempt was made. The original
proclamation of martial law on the 15th of Decem-
ber, though without strict warrant of law, was noth-
ing. As marking the spirit and energy with which
General Jackson entered on the defence of New Or-
leans, it was such as every good citizen might have
agreed to—and it is said Judge Hall himself and
many others did assent to it. It placed New Or- .
leans and its environs under a kind of military in-
spection, to guard against surprise, and against the
ingress and egress of spies and emissaries, or agents
acting in behalf of the enemy. Let gentleman look
at the order for martial law and the rules accompa-
nying it, and they will see at once that there was
nothing in them to alarm the friends of law and or-
der. Not an authority was proposed to be exer-
cised but such as was compatible with the continued
existence of the civil power, and such as might
have been used in aid of the civil power. Under
that martial law, in point of fact, the laws did reign.
The legislature of the State was m session and was
not distuibed. The courts were not suppressed.
The legislature had suspended civil proceedings in
courts for a limited time, but their criminal jurisdic-
tion remained. The habeas corpus was not sus-
pended; nothing of the sort was attempted. Nor
was this the martial law that was complained of, and
which led to the fine imposed on General Jackson.
It was another martial law, set up at a different time,
when all excuse or apology, for its existence, even in
the mildest form had been taken away. It was a mar-
tial which distinctly proposed to abroga te, for the time,
at discretion, the whole body of constitution and
laws, and every vestige of civil authority, and sub-
stitute in their place the military power—the person-
al and irresponsible will of the commander of an
army. It was a self-created dictatorship that was
proposed and attempted—an absolute, unmitigated,
unregulated, unrestrained military despotism. This
was what General Jackson attempted, and this is
what gentlemen on this floor justify and applaud.
But, Mr. Chairman, the plea of necessity is in-
terposed—the ready plea of all tyrants, and the most
dangerous of all grounds on which to admit a justi-
fication of tyranny. And I desire to be understood
distinctly, in the first place, as denying, in the broad-
est terms, that the crime of suppressing the civil
power and government of the country in any quar-
ter, by military authority and the substitution of the
military power, admits of justification by any plea,
or on any ground of necessity whatever. Remem-
bering always that this was precisely the kind and
degree of martial law, so called, which was attempt-
ed at New Orleans in February and March, 1815,
I deny that martial law of that sort admits of any
justification. The very plea of necessity admits,
and, in iny opinion, aggravates the crime.
Bv the constitution, Congress is forbidden to sus-
pend the habeas corpus, unless in a given exigency.
But if the habeas corpus were suspended, this would
not suspend the civil power; and Congress is not
authorized, in any exigency, to suspend the civil
Sower and set up the military authority in its place.
Co necessity could justify Congress in proclaiming
this kind of martial law. To do it would bo to at-
tempt a military revolution. How, then, can a mil-
iary commander justify the like attempt, on a plea
of necessity?
I can imagine cases where, in a limited district,
the authority of the government should be already
overturned by invasion or insurrection; where an-
archy reisrns, or where a foreign enemy or a domes-
tic foe has already set up a provisional or military
power; in which an American general, being there
with his army for the purpose of reconquering that
territory, and bringing it back under the rightful au-
thority of lus country, might, in the meanwhile,
wherever he could maintain himself, and as far and
as fast as his reconquest proceeded, govern by the
law of arms and the military power, awaiting the
return of security and tranquillity to surrender up
his conquest to the government to which it rightful-
ly belonged. But that would be a very different
thing from a direct and arbitrary suppression of the
(14)
civil power where it actually exists, for the sake of
setting up the military power m its place. This ad-
mits of uo justification, and no conceivable necessity
ever can exist for it. No threat or prospect of in-
vasion, however imminent—no suspicion of disaffec-
tion, however violent, can make such a necessity.
Surely it is quite soon enough for the government
to be overturned by the invasion or by the rebellion.
But for a military commander first to make a milita-
ry conquest of his own country, or any part of it,
on pretence of a necessity, in order to defend it
against another conquest from without or from with-
in, is, in my judgment, equally bold and unprinci-
pled.
An American commander must defend the Amer-
ican soil with the arms and the means which the
constitution and laws put into his hands for that
purpose. His army must be composed of his regu-
lar troops, the militia, and the volunteers. Exempts
and non-combatants by law cannot be forced into
the field. He has no authority (as General Jackson
claimed) to make every man a soldier. And if, with
such forces as the constitution and laws afford him,
he cannot make good his defence, the constitution
expects him to yield. The constitution contem-
plates the possibility that, in the fortunes of war,
American cities and American soil may be surren-
dered—but it docs not contemplate the possibility
hat itself can ever be surrendered.
No doubt the violation of individual rights by
military commanders—rights of person and of prop-
erty—often takes place m time of war, and especial-
ly when hostile armies meet each other in the field—
oftener, much oftener, I have the highest military
authority for believing, than is at all necessary. But
these are individual cases, and, whatever may be the
apparent or real necessity, they are all eases of tres-
pass for which the law holds the commanders per-
sonally responsible. The government will relieve
them, as it has often done, if it believes them to have
been actuated by an honest sense of duty and a
spirit of iust forbearance, while it will leave them to
suffer, as they ought, for all acts which have been
marked by a wanton disregard of the laws, or by
vindictiveness and cruelty. But in all this there is
no analogy to the wholesale dealings of General
Jackson under his martial law, and the claim of
right which he set up, and under which he acted,
and which he and his friends vindicate and justify—
the claim of right wholly to suppress and abrogate
for the time the civil authority and government of
the country, and to make his will, backed by his
soldiery, the law of the time and the place. This,
I say again, admits of no justification. A necessity
for such a proceeding is an impossibility—at least in
this country.
But, while I wholly deny that the crime of sup-
pressing the government and laws, and the substitu-
tion of martial law after the manner of General
Jackson, admits of justification on any plea of ne
cessity whatever, I must also go further m this case,
and deny that any apparent necessity or any proba-
ble cause existed to render that sort of martial law,
at the period and the only period when it was at-
tempted to be enforced, either important or in the
least degree useful to the defence of the country. I
mean to say that the plea of necessity was a mere
pretence set up to cover and defend acts in which an
arbitrary and imperious disposition and will on the
part of the commander, and mere personal malice
and vindictiveness, niisrht have been [gratified, but
which did not and could not tend in any way to ad-
vance the public service or the public interests.
This is my conviction; and the course of the friends
of General Jackson and of this bill has forced me
into this plain avowal, and compels me to the argu-
ment and the proof. I do not shrink from the posi-
tion and the task, though I should have been belter
satisfied not to have been obliged ever to name Gen.
Jackson again, except in connexion with those pas-
sages of his career which all agree have been both
brilliant and valuable to the country.
In order to undeistaii^ what it was that is com*
plained of in the conduct of General Jackson at New
Orleans, and how little pretence of necessity theie
was to justify it, it is important that dates should be
distinguished with critical accuracy.
General Jackson arrived at New Orleans early in
December. The great battle was fought on the 8th
of January, when the enemy met with a most com-
plete and signal discomfiture. From that moment
the enemy thought of nothing but escape. On the
18th of January, ten days after the battle, his shat-
tered forces were embarked, and disappeared. On
the 21st, three days afterwards, the mam army of
the victorious general was withdrawn from the lines
below New Orleans, where the battle had been-
fought and won. On the next day after the disap-
pearance of the enemy, the 19th, he wrote himself
to the Secretary of War in these terms:
"There is, in my mind, very little doubt that his
(the enemy's) last exertions have been made,' in
this quarter at any rate, for the present season."" ''I
believe you will not think me too sanguine in the
belief that Louisiana is now clear of its enemy."
On the 27th of January, he addressed a letter to
the mayor of New Orleans, in which he declared
himself "deeply impressed, since his arrival, with
the unanimity and patriotic zeal displayed by the
citizens;" and speaks of "the exalted sense he en-
tertains of their patriotism, love of order, and at-
tachment to the -principles of our excellent constitu-
tion." And, finally, upon his representation it was,
no doubt, that Congress, on the 22d of February,
passen resolutions expressive of their "high sense of
the patriotism, fidelity, zeal, and courage with
which the people of the State of Louisiana promptly
and unanimously stepped forth, under circumstances
of imminent danger from a powerful invading army,
in the defence ofall the individual, social, and political
rights held dear by man."
To all this, it is important to add, that news of
the treaty of peace concluded at Ghent, reached New
Orleans on the 18th of February, throwing the whole
city, as the same news did the countiy everywhere,
into one universal ecstacy of joy. This news was
brought from the British fleet, then off Mobile,
where it had been obtained from a London newspa-
per received by way of Jamaica. It was not doubt-
ed by anybody. General Jackson himself did not
doubt that a treaty of peace had been concluded, for
he so declared in a letter addressed to the Louisiana
Gazette on the 21st of February; though he sug-
gested that peace must not be considered as estab-
lished until the treaty was confirmed—a suggestion
made, no doubt, for the purpose of preserving, aa
far as possible, the order and discipline of the troops
under his command until it should be proper to dis-
band them.
Now, let it be observed that, in all this period,
from the entrance of General Jackson into New Or-
leans, early in December, through all the trying-
scenes of the invasion and the battle, and down to
the last days of February, no enforcement of martial
law was attempted which has been made the subject
of complaint by anybody. No such martial law, in
fact, existed as was afterwards to be exercised. The
constitution and laws reigned; the public authorities
were respected and obeyed. The habeas corpus was
not suspended. It was not till the 28th day of Febru-
ary that the first act was committed in that series of
outrages which proceeded on the ground that the
laws had ceased to reign, and that the military pow-
er was supreme. And long before that day, as we
have seen—that is to say, fifty days before—the great
battle had been fought and won; and forty daysbefore,
the routed enemy had disappeared for that quarter,
which he did not again approach within one hundred
and fifty miles, and General Jackson had declared him-
self satisfied on two important points, first, that the
enemy's last attempt had been made in that quarter,
and second, that there was not the slightest ground
to suspect the patriotism and fidelity of the people of
New Orleans. Add to this that before that day, (the
28th of February)—ten days before—the undoubted
news of peace had arrived at New Orleans, and the
citizens were in the midst of rejoicing and festivities
for that happy event.
The strange, eventful drama, then, of martial law,
opened with the first act on the 28th of Februan .
At the period of the invasion of Louisiana, near New
Orleans, there were resident in that city certain
French citizens and subjects, enjoying certain pei-
sonal and commercial privileges under the treaty of
cession. These French citizens, although owing no
allegiance to the United States, volunteered to sene
in the ranks of the American army, in defence of
the city of their residence and affection, and tliey be-
haved in that defence, as the general himself de-
clared in public orders, with distinguished bravery.
They were, of course, in the lines below New Or-
leans; and when the regular and main army was
withdrawn from these lines, and placed in healthy
and comfortable quarters in and above the city,
which was done a very few days afier
the battle, (the 21st of January,) these French
citizens—not soldiers by profession—were left
in the field, and in the performance of regular
military and camp duty. Many of them were left
in exposed and unhealthy positions, and whej-^
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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/m1/219/: accessed April 26, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.