The Congressional Globe, Volume 13, Part 2: Twenty-Eighth Congress, First Session Page: 47

Jan. 1844.
28th Cong 1st Sess.
APPENDIX TO THE CONGRESSIONAL GLOBE.
Fine on General Jackson—Mr. A. V. Brown.
47
stituents and the country now stood in need of.
Why, said he, should we bring up this antiquated
and almost forgotten subject—the fine of General
Jackson, imposed almost thirty years ago? Surely
the gentleman and his party do not mean to plead
the statute of limitations?—to plead it in the face of
fourteen or fifteen millions of the people of this
country, who have commanded this thing to be
done? to plead it, too against a great act of national
justice and honor like this? Never, never, if you
are really in earnest in claiming any share in the
glory of that great man's achievements.
Mr. Chairman, (said Mr. B.,) I now wish to ad-
vert to some of the extraordinary arguments of one
of my colleagues, [Mr. Peyton,] the honored Rep-
resentative of the illustrious patriot who is the'sub-
ject of this debate. What, sii , did he tell us? Why,
that he should vote for this bill, but that it was the
greatest humbug of the age. And will the gentle-
man really vote for a humbug? First put down the
solemn declaration on the permanent records of the
nation, to go down the stream of time to all future
generations, that it is all a humbug, and yet that he
is willing to vote for it! But how did he make it
out a mere humbug? He said many fanciful things
about the ivy twining around some sturdy pillar for
support; and the misletoe drawing its nutriment
from some majestic hickory; and, finally, more than
insinuated that the whole purpose of this bill
was to advance the political fortunes of Martin
Van Buren. How, then, can he vote for it?
How call he vote for any bill brought forward
for the purpose of advancing the fortunes "of a
mere parasite," whom he despises and abhors?
■No, my colleague does injustice to the friends of
this bill, and to the people of this country. Their
purposes are open, direct, and avowed, to do justice
to the man who exposed his life and his all in de-
fence of his country, and was then fined one thousand
dollars for it. They ask for the passage of this bill
the unanimous vote of Congress—of all men, and
of all parties; and it never would have been, never
could have been a party measure, but for one of the
parties of this country having met it with such
fixed and never-dying opposition. That has made
it, and may continue to make it, a party measure;
but let not that be charged to the friends of this
bill. He complained that the fame of General Jack-
son was not likely to be best preserved by those
who had taken it in keeping. Would he have us
to put it in the keeping of the enemies of this bill?—
of the gentleman from Georgia, who had proposed
to amend it by eulogizing Judge Hall?—of the gen-
tleman from New York, or of Massachusetts, or
even my colleague himself, after the speech he has
made? God forbid that the good name and fame of
General Jackson should be entrusted to such guar-
dians as these. But my colleague says, that, as
those who set themselves up to be the especial
friends of General Jackson on this occasion desire
it, he will vote for it, although, m his opinion, it
will strike down the noblest monument of his fame.
Can it be possible that the gentleman would really
do that5 Would he remove even the smallest peb-
ble that lies at the base of that noble monument?
Let him but convince the gentleman from New
York [Mr. B irnard] and the gentleman from Mas-
sachusetts [Mr. Adams] that such will be the effect
of passing this bill, and they will instantly turn to
its support, and become coworkers with my col-
league in striking down that monument which, un-
til now, I had fondly hoped was dear and sacred to
every American bosom.
Mr. Chairman, there is something strange and
contradictory in the position of both my colleagues,
[Messrs. Peyton and Dickinson;] in reference to
this bill. They have both made speeches against,
and yet declare that they mean finally to vote for
it. Their speeches are one way, their votes are to
be another. How is this anomaly to be accounted
for? Sir, in making their speeches they have con-
consulted their heads; but in casting their votes they
have consulted their hearts—all the pulsations of
which tell them to give back this ill-gotten money.
I think, too, it may be accounted for on another
principle. In the State of Tennessee, whatever di-
visions of opinion may exist on the gieat political
questions of the day, there is everywhere and
amongst all classes, but one fixed, steady, and im-
movable sentiment of gratitude and devotion to tile
man "who has filled the measure of his country's
honor." These gentlemen cannot, will not—I had
almost said dare not—however insensible to fear, do
violence to this universal sentiment.
Mr. Chairman, I desire now tc reply to the cx-
taordinary speech of the gentleman from New
Fi s Barnard,]—extraordinary for its gen-
era! bad temper. Why so hot and fiery on this oc-
casion, and yet so cold, and even stoical, on all
others. I fear the gentleman has grown jealous of
the venerable gentleman who sits near hint, [Mr.
Adasis,] and is determined hereafter to outrival
even lum in turbulence and violence. Why, too
was the gentleman so nearly presumptuous, if not
arrogant, m the language which he was pleased to
employ on this occasion? Addressing himself to
the known majority on this floor, (some of them of
his own party,) he proclaimed we should not pass
this bill ignorantly, or in our ignorance, or some
such courteous language as that. Sir, have seven-
teen or eighteen States of this Union instructed this
bill to be passed in ignorance? Are the people of
this country, nine-tenths of whom are in favor of it,
are they, too, in ignorance? Were that overwhelming
majority of this House, which the gentleman himself
said he knew could and would pass the bill,—were
they about to do it in ignorance? I submit it to
him whether there is not'danger that those who do
not know him personally—his great modesty—may
be ungenerous enough to consider such language as
presumptuous and even arrogant.
But whilst adverting _ to the gentleman's manner
and language, let me give you another specimen of
that high courtesy in debate which distinguishes an
American statesman. Addressing himself a^ain to
the known majority here, some of them lus own
party friends, he was pleased to say, "You cannot
lick tins bill into any shape that will make it ac-
ceptable to the other branch of Congress." How
chaste and elegant, and even classical, is such lan-
guage! "You cannot lick this bill into any shape!"
But I pass from all this to the matter and sub-
stance of that gentleman's speech.
With great earnestness, he demanded to know
why this fine was not remitted during the adminis-
tration of General Jackson or of Mr. Van Buren.
Let me answer him by putting to him another ques-
tion: Would he and his party have voted for it at
any time? _ Would the old Fedeial party have ever
voted for it? Would those who refused to cross a
State line, to meet and give battle to the enemy;
would those who, at midnight, on the high cliffs if
the ocean, hung out blue lights to guide the enemy
into our harbors, that they might burn our ships
and murder our people; woukfthose who had been
in secret conference with John Henry, the British
spy;—would they have voted for this bill at any
time, or under any circumstances? No, sir, never.
The glorious victoiy of New Orleans not only drove
the British army from our coast, but it drove a
British spy from the bosom of our country. It
not only suppressed the spirit of mutiny and revolt
ill a small poition of the people ofLouisiana, but it
routed and dispersed the more guilty traitors of
Hartford. All these would have opposed the re-
mission of this fine at any and all times. They
will oppose it now. They will resort to every de-
vice to defeat it. We cannot mould it, or, (in the
more elegant language of the gentleman from New
York,) we cannot lick it into any form which will
induce them to do justice to the greatest captain and
the noblest patriot of the age.
Vv ell, Mr. Chairman, after all, what is the great
constitutional argument of the gentleman a ainst
the passage of this bill? Tt, is, that General Jackson
had no right, under the Constitution, to declare mar-
tial law; that,consequently, he had no right to ar-
rest Louallier; and, having no right to arrest him,
he was bound to obey the writ of habeas corpus,
commanding him to bring the said Louallier before
the court; and for not so obeying, he was guilty of
a contempt of court.
Now, all this 1 deny; and maintain that, to the
extent General Jackson did dcclarc and enfoie mar-
tial law, he had n right to do it, under, or consist-
ently with, the Const'tution. Not that the Consti-
tution commands martial law to bo declared in an^
case, but that it permits, or allows it to be done, in
precisely such cases as occurred at New Orleans.
The city and its environs were within the military
encampment of General Jackson. His outposts
and sentinels were planted around it. Within the
bounds of eveiy encampment, military and not civil
law must prevail: in time of lepose and safety,
military law in its mildest and lowest grade, but
in time of war and invasion of the place so occu-
pied, military law in its highest and most rigor-
ous form—high and rigorous in exact propor-
tion as the peril was great and the danger im-
minent. This is the principle; let me give you
H. of Reps.
an illustration. A nation is about to be invaded;
you post your army at some mountain defile where
you can more successfully repel his advan-
ces. Within its lines are a few shepherds' huts.
Can these go in and out as they please? Can they
pass the sentinels of your army without permission,
ajid so carry, if they please, secret intelligence to
the enemy? Cannot the commanding general guard
against such danger, by suspending, for the time be-
ing, their constitutional right of locomotion? I do
not say that he can by the command, of the Constitu-
tion, but I maintain that he may by its permission.
So if his encampment include a village, or town, or
great city, as was New Orleans. Let me now sub-
mit another case to illustrate my opinions. Suppose,
during the seige, the owners of all the cotton bales^
anticipating from his orders that he contemplated
their use in the formation of breastworks, had ap-
plied to Judge Hall, or some State judge, for an in-
junction to prevent their removal from the ware-
houses, alleging that they were private property, of
such great value that the commanding general's pri-
vate fortune would be totally inadequate to the pay-
ment of their probable damage or destruction; sup-
pose General Jackson to have refused obedience, as
he assuredly would, and an attachment for contempt
had been iseued, returnable on the memorable 23d
of December, the time of the first battle: on that
day, and within that encampment, what law was to
govern? The civil law, which commanded him to
be present in court' or the military law, which com-
manded him to be present on the lines, cheering and
directing his army to triumph and to victory? Sir,
m that case, or in any similar one, if the civil law
was to govern, your commanding general might
have been pming in a dungeon for a contempt°of
court, whilst the enemy was thundering with his
artillery against the city.
But,' sir, it matters not to pursue this cjuestion of
constitutional right any farther; for the gentleman ex-
pressly admitted that tile right to declare martial
law might be sustained m some cases under the
great law of necessity. But I contend that m no case
does the law of necessity abrogate the Constitution.
It only rises above it,, but yet stands consistent
with it. However this may he, still the admission
of the gentleman goes the whole length of the vindi-
cation of Genera] Jackson. It is under this law of
necessity that we may do many things not affirma-
tively warranted by the Constitution, but yet entire-
ly consistent with it. What right have I, affirma-
tively, under the Constitution, rudely to seize the
gentleman from Ohio, (who has just closed his
speech against this bill,) and rescue him by the hair
of his head from a watery grave? What right have
I, affirmatively, under the Constitution, to blow up
my neighbor's dwelling with a train of gunpowder?
Yet, if I do so to arrest the progress of devouring
flames, the law of necessity rises higher than the
Constkution, but still consistently with it, and justi-
fies the act. So, to save a city from capture, or a na-
tion from subjugation, we may go far beyond the
express letter of the Constitution, and suspend ma-
ny of the personal rights secured to individuals. No
one has ever sustained this doctrine more ably than
Mr. Jefferson. He says in one of his letters, vol. 4,
p. 150, of his works, as follows:
"The question you propose, whether circumstan-
ces do not sometimes occur which make it a duty
m officers of high trust to assume authomies beyond
the law, is easy of solution on principle, but some-
times embarrassing in practice. A strict observance
of the written law is doubtless one of the high duties
of a good citizen; but it is not the highest. The laws of
necessity, of self-preservation, of saving our country
when m danger, are of higher obligation. To lose
our country by a scrupulous adherence to the \\ rit-
ten law, would be to lose the law itself, with life, lib-
erty, property, and all those who are enjoying them
with us: thus absurdly saeiificing the end to the
means. When, m the battle of Germantown, Gen-
eral Washington's army was annoyed from Chew's
house, he did not hesitate to plant his cannon
against it, although the property ofa citizen. When
he besieged Yorktown, he levelled the suburbs, feel-
ing that the laics of property must be postponed to
the safety of the nation. While the army was be-
fore York, the Governor of Virginia took horses,
carriages, provisions, and even men, by force, to
enable that army to stay together till it could master
the public enemy; and he was justified. * * *>,
All these constituted a law of necessity and self-
preservation, and rendered the :;(dv.'i 'popsdi supreme
over the written law. The officer who is called to
act on this superior ground, does, indeed, risk him*