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he applied through his counsel to Judge Hall for a writ of Habeas Corpus, which was ordered returnable the next day. At the Judge's request, Mr. Morel, Louaillier's counsel, informed General Jackson by letter of his order. The crisis had now arrived. The civil power was brought into direct conflict with the military, and the question was, whether General Jackson should take the necessary steps to vindicate his authority, or, forfeiting the respect and losing the obedience of those he commanded, see his army disbanded, and the approaches to the city thrown open to the enemy. Without a moment's hesitation, he ordered the arrest of the Judge, and was promptly obeyed. No man can read this brief narrative without perceiving that the arrest of both Louaillier and the Judge were the logical and necessary results of Martial Law, and absolutely indispensable to maintain its authority. The publication of Louaillier, and the order of the Judge, were both in defiance of that law, and if acquiesced in or submitted to there was an end of the military authority.
A man of General Jackson's vigilance, with the example of Fort Bowyer before him, would be very likely to construe such a letter into a probable stratagem to throw him off his guard. Every prudent man will say, that there was nothing, then known to General Jackson, which would justify relaxation, and that the causes which required the enforcement of Martial Law, though somewhat mitigated, still existed in commanding force.
The first American news of peace reached New Orleans on the 6th of March, the day after Judge Hall's arrest. An express arrived from Washington, with an open letter from the Postmaster-General, directed to the postmasters on the routes, instructing them to expedite his journey, inasmuch as he was despatched to convey the tidings of peace; but not a word of peace was there in the packet he delivered to General Jackson. A blunder had been committed in the War Department, and instead of the news of peace, General Jackson received instructions to raise more troops! He was at a loss how to act. That a treaty of peace had been concluded by the negotiators at Ghent, he had no doubt; but whether it had been or would be ratified, he had no means of knowing. To assume that a state of peace existed, and abandon his means of defence without more definite information, or an admission to that effect from the British commander in his vicinity, was palpably injudicious and unsafe. After deliberation, he determined to discharge so much of the Louisiana militia as had been levied en masse, with orders to hold themselves in readines to return at a moment's warning; to seek from the enemy a suspension of hostilities; and in every other respect maintain his military position until he received full information in relation to the treaty, or a favorable reply from the British commander. One or both he had a right to expect within a single week.
What more could he have done consistently with the high duties and responsibilities with which he was entrusted? With what promptitude he sought, upon receiving the first reliable information of peace, to release his countrymen from the rigors of Martial Law, is shown by the following extract of his letter to General Lambert,
Up to this time no news of peace had been received, except that which came from the British squadron. Af ter receiving that news, the British commanders had proceeded to take Fort Bowyer, and would they not more eagerly have seized upon New Orleans, had they found the American General off his guard, or his army broken up? What a consummation this would have been for the fairweather patriots who hid their heads when the thunders rolled, but when the lightnings appeared in the distance, filled the air with croakings of danger from the mighty mind which had shielded their country and themselves from the fury of the storm! At the moment of Judge Hall's arrest, General Jackson had every reason to believe, that the British force wanted but the opportunity, notwithstanding the rumor of peace which had reached them, to repeat upon New Orleans the game they had played upon Fort Bowyer. Admiral Cochrane had, indeed, the day after the surrender of the fort, addressed a letter to General Jackson, apprising him of this information, and congratulating him upon the event; but there was no suggestion in it tending towards a suspension of hostilities.
written the very day the express arrived, viz.:
"Head-Quarters, "March 6, 1815.
"SIR: "I have just received intelligence from Washington, which leaves little doubt in my mind that the treaty signed at Ghent, between the United States and Great Britain, has been ratified by the President and Senate of the United States; but by some unaccountable accident, a despatch on another subject has been substituted for the one intended to give me an official notice of this event. The one I have received, however, is accompanied by an order from the postmaster general, directing his deputies to forward the express carrying intelligence of the recent peace. Of this order I enclose a copy. And from other sources, to which I give credit, I learn that the same express brought official notice of the treaty to the Governor of Tennessee. I have deemed it a duty, without loss of time, to communicate the exact state of those circumstances, that you might determine whether they would not justify you in agreeing, by a cessation of all hostilities, to anticipate the happy return of peace between our two nations, which the first direct intelligence must bring to
us in official form."
General Jackson's motives for writing the foregoing are clearly developed by the following extract of a letter to the Secretary of War, written the same day, acknowledging the receipt of the packet brought by the express, viz.:
What more was it safe to do, until he had certain intelligence of the ratification of the treaty, or at least a reply from the British commander, assenting to a suspension of hostilities? Would any man so situated, and confident as General Jackson was, that a very few days would put an end to all uncertainty, have further changed the position he then occupied ?
Days passed away, and no reply came from the British commander, nor was there any further intelligence from Washington. Judge Hall remained under guard up to the 11th March, to be conveyed beyond the line of when an order was issued directing him the sentinels-that is to say, beyond the camp-which was about four miles above the city, and there set at liberty, with orders not to return "until the ratification of the treaty was regularly announced, or the British shall have left the southern coast." This order was executed on the 12th.
"This letter was of date the 14th ult., and you may imagine my surprise after seeing it, to find in the packet nothing but the letter and enclosures above mentioned. I still remain in uncertainty whether the exchange of ratifications has taken place, and am, therefore, at a loss how to dispose of the militia now under my command. It is my intention, however, to discharge immediately those which have been called out en masse, and to retain the volunteers and drafted militia until the expiration of their terms of service, which is near at hand, or until I receive certain intelligence that the treaty has been ratified. I lament, if this event has taken place, that the intelligence has not been officially communicated to me, as well on account of the inconvenience and hardship to the soldiery, who must be longer detained, as of the expenses of the government."
On the 13th March, the much desired official intelligence of the ratification of the Treaty of Peace was received in camp, by another express from Washington. The news was announced in the following general order, viz. :
"Head-Quarters, 7th Military District, "Adjutant-General's Office.
"The commanding General, with the most lively emotions of joy, and of gratitude to Heaven, announces to the troops under his command, that a treaty of peace
between the United States and Great Britain was ratified and exchanged at Washington, on the 17th February last.
"In consequence whereof, he loses not an instant in revoking and annulling the general order issued on the 15th day of December last, proclaiming Martial Law, which is hereby revoked, annulled, and countermanded; and he orders all hostilities immediately to cease against the troops and subjects of the United Kingdom of Great Britain and Ireland.
"And in order that the general joy attending this event may extend to all manner of persons, the commanding General proclaims and orders a pardon for all military offences heretofore committed in this district, and orders that all persons in confinement, under such charges, be immediately discharged. ("By order,)
"ROBERT BUTLER, "Adjutant-General." "New Orleans, March 13th, 1815.
Here was an end of Martial Law, and of all proceedings under it. On the same day, General Jackson communicated the fact to the British commander, and on the next discharged his whole militia force.
what was passing at Washington. To appreciate his conduct, we must place ourselves in his position and throw out of view all that subsequent developments have brought to our knowledge. Who is there that can confidently say, he could have done better, or so well? If any one, let him vote to keep in the Treasury the Old Soldier's money.
Long as it is, we cannot close this part of our exposition without further notice of Judge Martin's History, so called, on which Senator Conrad relies No man for his facts and opinions. can read so much of this book as relates to General Jackson, without perceiving that the heart of its author is imbued with a hatred which renders his head incapable of doing justice. Almost every page is stained with gall so palpably and deeply, as to drive truth from its lines and all faith from Of many the mind of its reader. points we select one only, to illustrate the fidelity of the history and the character of its author.
After detailing the arrest of Louaillier and Judge Hall, on the 5th of March, and the sending to the Clerk of the Court for the petition on which the Habeas Corpus was ordered, Martin proceeds in these words:
About a week afterwards, the General received General Lambert's reply, dated the 16th March, to his letter of the 6th, proposing a suspension of hostilities. What was that reply? Not that the proposition was acceded to, but that his instructions would not allow him to enter into any written stipulation, or to give publicity officially in any way to a cessation of hostilities, until he received the intelligence from an accredited person from the British government, of the treaty having been ratified and exchanged, authorizing him to carry it into execu
We wish to fix the reader's attention to a few leading facts herein established, viz. :
1. The original necessity for enforcing Martial Law.
2. The necessity of continuing it after the embarkation of the British army, until it was certain they did not intend to repeat their attacks, upon New Orleans.
3. That the British, when they took Fort Bowyer, had the same news of peace which General Jackson had when he arrested Judge Hall; and had more reason to confide in it, because with them it came from friends, but with him from enemies.
4. That promptly on receiving the first reliable news of peace, General Jackson sought to obtain a suspension of hostilities in order that he might, in anticipation of official intelligence, relieve the government from expense, the militia from an arduous service, and the citizens of New Orleans from the restraints of Martial Law.
5. That he did not succeed in obtain ing a suspension of hostilities, and that up to the 13th of March, 1815, a state of war actually existed in that region, as perfect as that in which was fought the battle of the 8th of January.
After events had fully developed themselves, it was easy to perceive how General Jackson might have done otherwise than he did; but highly and greatly as the man was gifted, he was not gifted with prescience, nor with the power of knowing in New Orleans
"In the meantime, an express from the Department of War had arrived, with intelligence that the President of the United States had ratified the treaty, and an exchange of ratifications had taken place at Washington on the 17th of February, the preceding month. By an accident which was not accounted for, another packet had been put into the hands of the messenger, instead of the one containing the official information of the exchange of ratifications. But the man was bearer of an open letter from the postmaster to all his deputies on the road, to expedite him with the utmost celerity, as he carried information of the recent peace. He declared he had handed an official notice of this event to the Governor of the State of Tennessee."
Now, the assertion of this historian ofthat this express was sent with " ficial information of the exchange of ratifications," is totally unfounded. He neither bore nor reported any such intelligence. The despatch which was intended for him was in the following words, viz. :
"Department of War,
"It is with great satisfaction I in-
official notice of the
"I give you this information that hostilities may immediately cease between our troops and those of Great Britain.
"I have the honor to be, sir, with great respect, your most obedient servant. "JAS. MONROE. "Major-General ANDREW JACKSON."
The news sent was merely the facts, that a treaty had been signed and received at Washington; not that it had been ratified and exchanged, as our careful historian asserts. Is this an unintentional mistake? Charity might think so but for another consideration: General Jackson, as we have seen, immediately communicated the news brought by the express of the 6th to the British commander, of which Judge Martin gives the following account, viz.:
"One of his first acts on the sixth, was a communication to Lambert which Latour has preserved. It is in the following words," &c.
After giving so much of the letter as detailed the facts connected with the express, he continues his extract as follows, viz.:
"From other circumstances to which I give credit, I learn that the same express brought official notice of the ratification of the treaty to the Governor of Tennessee."
General Jackson's Letter Book being within our reach, we examined it and found this passage recorded as follows, viz. :
"And from other sources to which I give credit, I learn that the same express brought official notice of the treaty to the Governor of Tennessee."
To see who is responsible for this alteration of an official letter, we re
curred to Latour, where at pages 94 and 95 of the Appendix, we find the letter in full. It is evidently copied from General Jackson's Letter Book, and the foregoing passage corresponds with that book to the letter:
"From other circumstances to which I give credit, I learn that the same express brought of ficial notice of the ratifi cation of the treaty to the Governor of Tennessee."
The words " of the ratification," not being found in the original record nor in Latour's copy, must have been interpolated by Judge Martin, who has committed the double crime of falsifying the letter and making Latour responsible for it!
In the paragraph asserting this falsehood there is a further error which shows how little confidence is to be placed in this "History." It is, that the treaty was ratified on the 17th of February. The despatch which Martin falsely says announced this event; was dated on the 14th, and that which really did announce it, was dated on the 16th, and began as follows, viz. :
destroy all confidence in his statements. But how an honest man can alter and interpolate an official letter, at the same time professing to take it from another book in which it stands accurately recorded, remains for Judge Martin or his friend Senator Conrad to explain. The bearing of the falsehood and interpolation is, to impress it strongly on the mind of the reader, that this first express brought news of the ratification of the treaty, and that General Jackson, well apprised of the fact, still kept Judge Hall in confinement from the 6th to the 12th of March.
"On the nature and effect of the proclamation of Martial Law by Major-General Jackson, my opinion is, that such proclamation is unknown to the Constitution and laws of the United States.
"1st. That it is to be justified only by the necessity of the case; and that, therefore, the General proclaims it at his risk and under his responsibility, both to the Government and to individuals. When the necessity is apparent, he will meet reward instead of punishment from his Government; and individual claims for damages must be appreciated by the same rule under the discretion of a jury. Should they, in the opinion of the Government, decide falsely against officer, they have a right, which they have frequently exercised, of indemnifying him for the disinterested responsibility he has
"2d. That the effect of a proclamation of Martial Law, de facto, is to bring all persons who may happen to be within the district comprised in the proclamation under the purview of such law, and, therefore, all persons capable of defending the country, within the district, are subject to such law by virtue of the proclamation, and may be tried during its continuance by virtue thereof."
Livingston being at that time one of General Jackson's Aids. By the views contained in this paper, the General appears to have been governed at the time; and it was probably the fountain of the opinions expressed and acted on by him and his friends ever since. For the crudities of this paper its author should not be censured; for the circumstances of the moment prevented that deliberate consideration which so new and complicated a question demanded.
We agree with Mr. Livingston, that the proclamation of Martial Law is "unknown to the Constitution and laws." It cannot confer upon the General who makes it, any power whatsoever which he would not possess without it. If intended to do so, it is an assumption of power which, as Mr. Livingston says, can "be justified only by the necessity of the case.' But did General Jackson, at New Orleans, assert or exercise any substantial power under his proclamation which he did not possess without it?
Martial Law exists, in this country as in all others, wherever there is an army and a camp. It is not arbitrary, but, as in civil cases, is regulated by the Constitution and statute laws, by rules established by the Executive under authority of Congress, and by customs and usages which constitute a sort of Common Law of war. It marches with an army and encamps with it. It covers the ground on which the army treads, and pervades its camp, the limits of which are marked by its lines of sentinels. Although a state of war enlarges its scope, it exists in time of peace.
Martial Law at New Orleans did not spring from General Jackson's proclamation; it went there with his army, and its jurisdiction was co-extensive with his camp.
This opinion is without date; but it evidently preceded or soon followed the proclamation of Martial Law, Mr.
The supremacy of the civil power axiom. But it does not follow that the over the military, is a republican supreme civil power cannot and does not make the military in some cases superior to inferior civil magistrates and tribunals.
The civil power vested in the President and Congress, has established by statute the rules and articles of war. It is the same power exercised by the same agents which declares war, and by such declaration vests in the