The Congressional Globe, Volume 13, Part 2: Twenty-Eighth Congress, First Session Page: 36
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:
26
APPENDIX TO THE CONGRESSIONAL GLOBE.
Jan. 1844.
28th Gong 1st Sess.
Fine on General Jackson—Mr. Dickinson.
H. of Eeps.
Would be indirectly declaring that the commanding
fensral had no warrant for his course towards the
eceased judge.
But it had been said, in the course of this debate,
by the gentleman from New York, [Mr. Barnard,]
that this House could not "lick this bill into such
a shape" that it could be made to- pass through the
Senate. He (Mr. B.) did not think that the gentle-
man should thus have spoken of the Senate. Again:
the gentleman's 4anguage was not of that courteous
character that should be addressed to the people's
Representatives on this floor. Some of these words
imputed a degree of sycophancy, which, if used out
of this hall, might have subjected their author to a
different notice. He was governed by no such in-
fluence. He came there to vote with no party on
any such question; and he absolved himself from the
charge of such servile allegiance to any man. He
was an independent representative, whose rule of ac-
tion was his own judgment.
An honorable gentleman from Tennessee, [Mr.
Peyton,] in the course of his argument a few days
ago, said that the friends of this bill had, hyena-
like, gone into the grave and dug up the mortal re-
mains of the deceased judge. In this he was mis-
taken. The supporters of the bill had pursued a
wiser course. He (Mr. B.) asserted that it was the
opponents of the bill, who, hyena-like, nay, worse,
had been guilty of this. That ferocious animal (the hy-
ena) seeks only the mortal part of man; while they
(the gentleman and his friends) were exerting them-
selves to destroy that which should survive the tomb
a nd become immortal. The same honorable gentleman,
if he understood him correctly, had also said that
the design of this bill was to make political capital
for Mr. v an Buren in the approaching contest for the
presidency. For one, he (Mr. B.) demurred, to the
charge. He did not even know that he would vote
for Mr. Van Buren. He trusted that his (Mr. Van
Buren's) friends in the present Congress would so
adjust the tariff of 1842 as to enable him to do so.
He had given a pledge to his constituents, in a cer-
tain contingency, to vote for Mr. Van Buren, and
that pledge he would faithfully endeavor to carry
out, if the contingency should occur. He was not
unfriendly to Mr. Van Buren. For years he had
been his supporter; and if again he be nominated as
the candidate of the Democracy of the Union, to
carry out the Democratic creed adopted at Baltimore
in 1840, he would a third time be found in the ranks
of his friends, ready to share in their triumph, or to
suffer with them a common defeat.
Something had likewise been said about the hick-
ory and the misletoe, and the affinity of the one to
the other. Gen. Jackson has been compared to the
hickory, and Mr. Van Buren to the misletoe. In
his (Mr. B.'s) opinion, such argument did not pos-
sess even the merit of originality. It was an illus-
tration drawn from the oak and the ivy—yea, a part
of the political declamation of 1840, which politi-
_ cians have recently disinterred, in order that it might
" be again belched forth, with additional vituperation.
In entering (said Mr. B.) on the discussion of the
merits of the question, he should look closely to
the argument of the gentleman from New York,
[Mr. Barnard;] for, if he was not the leader of
those opposed to the bill, he at least aspired to that
unenviable distinction. The gentleman from New
York had opposed the bill on three grounds:
1st. That Gen. Jackson, when he suspended the
writ of habeas corpus, and declared martial law at
New Orleans, had no authority thus to act.
2d. That, when New Orleans was besieged by
the enemy, Gen. Jackson could not legally or con-
stitutionally force the citizens of Louisiana into the
defence of the city, against their will, but he was
bound to rely on his soldiers.
3d. That Gen. Jackson was guilty of a flagrant
contempt in disobeying the writ of habeas corpus,
and that the Judge acted correctly in imposing the
fine of SI,000 against him.
Mr. Belser here examined into the origin of the
writ of habeas corpus, and stated that, at a certain
period in English history, which existed prior to the
formation of the American Union, the too easy
suspension of this writ of liberty had been the
means of oppressing the subject; that, in order to
guard against such an evil 'in this Republic, the
framers of the Constitution of the United States
had incorporated in it a provision declaring that the
privilege of the writ should not be denied "unless
when, in cases of rebellion or invasion, the public
onfety may require it." This limitation (Mr. B.
contended) was in perfect harmony with another
. ojiir>ii of the same instrument, which guarantee* to
every State of the Union "a republican form of
Government," and also protection to each-of them
"from invasion."
On the point of martial law, Mr. B. gave it as his
opinion that no commander had the right to de-
clare it while he could, without danger to his charge,
consult the constituted authorities of his country.
He admitted that there were but few cases which
would justify a suspension of the writ of habeas
corpus by the declaration of martial law. But
there were such cases, and when they did occur,
they were above human regulations, and controlled
only by the great rule of nature. These rights
were inherent in man; they existed antecedent to
the formation of governments or the adoption of
constitutions. They rested on the principle of
self-defence, and their exercise depended on an evi-
dent and impending necessity at the time when they
were put in force.
In continuation of this branch of the question, he
(Mr. B.) would cite some cases analogous in principle,
and illustrative of the great right for which he was
contending. He would take up the doctrine of
self-preservation, as applicable to individuals; and
he hoped that his hearers would apply the exam-
ples furnished by him, to commanders entrusted
with the defence of a country. Comparatively
speaking, such a case, for instance, as would in ex-
tremis justify a physician to destroy the life of an
infant to save its mother; as would authorize one
man at sea, while on a plank which could not bear
up more, than his own weight, to push a weaker
man off, to save his own existence; or that would
justify a crew, when exposed to the ravages of hun-
ger, to kill one of their number in order that his
flesh might save the rest from famishing; or, to
bring it nearer to the subject under consideration,
such a case as would impel a discreet general, sta-
tioned with his troops in and around this city, when
the enemy was marching on it, the people disaffected
towards the Government, and Congress not in ses-
sion, to use every exertion to keep up subordina-
tion in his command, and to provide the proper
means of defenee. In the language of Mr. Jefferson,
such an example as the last, intended for the se-
curity of Government, "constituted a law of necessity
and self-preservation, and rendered the salus populi
supreme over the written law."
Whether the facts, as they existed at New Or-
leans, created such a case of necessity as above con-
templated, it was not his purpose to say; but he would
tell honorable gentlemen, who were opposingthis
bill on the ground that the commanding general
was guilty of an arbitrary exercise of power in de-
claring martial law, that they might as well attempt
to turn the course of the majestic Mississippi as to
endeavor to change the public verdict, which had
already been rendered by the representatives of the
people of seventeen of the States of this Union, in
general assembly convened, on this subject. The
decision was manifestly in favor of the conduct of the
commanding general. The matter was already ad-
judicated.
But (said Mr. B.) the honorable gentleman
from New York [Mr. Barnard] has assumed the
position that the commander, in times of invasion,
must rely on his own soldiers for the defence of the
country, and not on. citizens. He asked the gentle-
man from New York, from what source did he ob-
tain his idea on this particular branch of the subject.
Mr. Barnard responded, from the Constitu-
tion of the United States.
Mr. Belser resumed his remarks, and denied
the correctness of his [Mr. Barnard's] views. He
contended, that the right to receive protection from
the Government carried with it the right of being
compelled to furnish it protection; and that those
who, in times of peace, took refuge under its Kgis,
in times of necessity might be brought to its defence.
Whenever the Usalus populi" was at stake, he (Mr.
B.) contended, without the fear of successful con-
tradiction, that a commanding general could call to
his aid the entire physical force within his reach;
that he could take private property and use it; that
he could order into sen ice citizens and apprentices—
persons in a state of guardianship, and persons in a
state of pupilage; the Indian tribes and the slave
population; and, if the exigency demanded it, even the
women (who never refuse to render service to their
country when called on) might be made to run
bullets, as did the wives and daughters of the
patriots of the Revolution, during that stormy period
"which tried mens souls."
As it regarded the contempt, of which it had been
said that GeneiM JacWii was juiky, h« (Mt.B,)
had something to say. According to his view, the
power to fine for contempt was equally as despotic
as the power to suspend the writ of liberty by the
declaration of martial law. It had been%aid that the
"common law was a nursing mother," and that the
"statute law was a ruling tyrant;" yet this law of
punishing for contempt was above either; it existed
inherently in the courts, to be exercised by them on
fit occasions, with a due regard to the responsibility
of their acts.
The great question first to be determined by the
committee is, did the circumstances in which Gen-
eral Jackson was placed, present such an extremity
as authorized a suspension of the written law? If
they make out such a case, then Judge Hall, while
martial law was in force, had no right to send a
writ of habeas corpus into the limits of General Jack-
son's camp. In such an emergency there could bo
no contempt offered him, because the writ was nu-
gatory. A case of public invasion to a State had
occurred, sufficient, for a time, to set aside the civil
authority; and when, in such a trying emergency,
he attempted to interfere with the discipline of the
camp, he was, to all intents and purposes, an intrur
der, if not a greater aggressor.
Again: in regard to this doctrine of contempt of
court, the charges made against an offender (Mr. B.
contended) must be specific in their character. A
bill of discovery could not be filed in a case of con-
tempt, to make a man give evidence against himself;
for, if it were permitted, one of the dearest principles
of the law would be violated. General Jackson re-
fused to answer the interrogatories propounded to
him, on the information filed at the instance of
Judge Hall; and, in the refusal to respond, was
properly and fully sustained by the Constitution
and laws of his country.
Besides, General Jackson did not act on his own
opinions, but acted under the advice of Mr. Livings-
ton, an eminent jurist; and that of itself ought, in
a doubtful case, to excuse him before this committee.
Suppose an action is brought by a plaintiff against
a defendant, for a malicious prosecution, on a charge
of larceny, where the plaintiff had been discharged
by the proper tribunal: suppose further, that the
defendant, to show that he was not governed hy mal-
ice, was to prove to the court and jury that he had
such reasons as would convince a reasonable mind
that the case should be inquired into by the coun-
ty; and that, before he commenced the prosecution,
he had been advsied by a lawyer of eminence to do
so, upon a fair statement of the facts: think you,
Mr. Chairman, that, on evidence like this, a jury
could render a vindictive verdict against hint? No,
sir; the law would sanction no such proceeding. Let
us now (said Mr. B.) just imagine to ourselves
that General Jackson was on trial before us on
a charge of fake imprisonment, or for an assault and
battery committed on the pe.rson of Judge Hall:
could this committee, with such facts staring them
in the face, render a verdict of §1,000 against him
in behalf of the Government' If we did, sir, there is
not a court in Christendom but*what would be bound
to grant a new trial in the cause. The damages would
have been vindictive; and even in cases of tort, this
would authorize a court to set aside a verdict.
"With respect to the judiciary, Mr. B. disclaimed
any intention of speaking lightly of that depart-
ment of the Government. He had been too long
accustomed to see it dispense "equal and exact jus-
tice," to speak irreverently of it. If there was any
one thing more pleasing than another to him, it was
to behold a firm judge walking in the paths of the
law. In his opinion, the judiciary was the right
arm of the Republic. Destroy its force and efficacy,
and the balance of the Government would be for-
ever lost.
As for himself, he would vote for the bill precisely
as it was offered by the gentleman from Pennsyl-
vania. He desiied to see nothing taken from it,
and nothing added to it. He was not prepared to
say that Judge Hall did not act conscientiously;
and he would not, therefore, vote for anything
which would serve to throw discredit on his mem-
ory. All that he desired was to render an act of
justice to the living general.
REMARKS OF MR. DICKINSON,
OP TENNESSEE.
InZthe House of Representatives, January 6, 1844—
On the bill to refund Gen. Jackson's fine.
Mr. DICKINSON next obtained the floor, and
spoke as follows:
The bit] that it uadci* cohiikkiaiion (stiid Mr. D.)
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/m1/46/?rotate=270: accessed May 7, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.