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commanders of armies all those powers thing in the laws of the country which derived from the customs and usages of would make such an act murder ? war.
When, in the presence of an enemy, What written law is there which the commander takes possession of a authorizes the commander of an army farm house and makes it his heador detachment to put out sentinels and quarters without the consent of the piquets with orders to arrest, and, if owner, is there any law which will need be, to shoot any person, friend or punish him for trespass? There is foe, who attempts to pass without another farm house which obstructs his giving the countersign? Here is a shot, and protects the enemy, and by power of life and death exercised by his order it is burnt-will the law every commander; and yet no trace of hold him responsible for damages? it can be found in the acis of Congress, His sentinels stop the farmer and his or even in any rules prescribed by the family, occupants of a farm house President or Secretary of War. What within the line of sentinels, from passwritten law is there which authorizes ing and repassing, even on his own a military commander on his march in farm, lest intelligence might be contime of war, to encamp on the farm of veyed to the enemy. Could the farmer a citizen, pull down his fence, and maintain an action of trespass or false occupy his houses? No such author- imprisonment against either the sentiity is conferred by Congress, and yet nel or the General ? Would it make it is constantly exercised. What writ- any difference, were the occupants of ten law is there which authorizes the the house a lawyer, a judge, or even commander of the garrison in a be- the governor of a State? sieged city, to destroy any buildings, The principle that the civil magisthe property of private citizens, which trate cannot penetrate a military camp may intercept his own fire, or protect for the purpose of making an arrest, is the enemy in his advances ? Yet this recognized by the rules and articles of power is constantly exercised, not only war prescribed by Congress. Those by the commanders of garrisons, but articles require all commanding officers, by besiegers and by armies operating “ upon application duly made by or in against an enemy in the open field. behalf of the party or parties injured, What written law is there authorizing to use their utmosi endeavors to deliver a military commander to impress over such accused person or persons,” teams and their drivers, and even seize being any commissioned officer or provisions and supplies for his army, soldier," who shall be accused of a when necessary to his movements and capital crime, or of having used viooperations? Yet the exercise of this lence, or committed any offence against power
is frequent, and sometimes abso- the persons or property of any citizen lutely necessary in time of war. of the United States;" and also to
Innumerable are the acts which the be aiding and assisting to the officers commander of an army may rightfully of justice in apprehending and securing perform, especially in time of war, the person or persons so accused, in without responsibility to any subordi- order to bring him or them to trial.” nate branch of the civil power. Can The penalty for wilfully neglecting or a judge, by Habeas Corpus or any refusing, is cashiering. other process, arrest the sentinel at his Can any civil officer drag the soldier post ?' Would it not be this sentinel's from his ranks in the midst of battle, or duty to shoot down the marshal, the arrest the General in command ? Is it sheriff, the constable, or any other in the power of the judge, or any other officer, even the judge himself, who civil magistrate, thus, or in any other should attempt to seize him? Could way, to do the work of the enemy and any officer of the law pass the sentinel lay the country at his feet? There is into the camp for the purpose of no such supremacy of the civil power; arresting any one therein, without per. there is no such subordination of the mission of the commanding officer? military. If he attempted to do so, without When Congress declared war in giving the countersign, would it not 1812, they by that act invested the be the sentinel's duty to arrest him, or, military commanders with all the auif absolutely necessary, to shoot him thority derived from the common law down upon the spot? Is there any. of war as well as statute law, and the
regulations founded thereon. General civil authority existed in his camp only Jackson, like the rest, was vested, in by sufferance. Is not this
true certain contingencies, with the power principle and sound law ? Is it not of life and death; with power to seize true that New Orleans was a military property or to destroy it, to establish a camp? Is it not lawful for a General camp, and prevent all persons from to establish a police for his camp, inentering or departing from it under any compatible with the entire liberty of pretences whatever. With all these the citizen, and for the time subversive powers he marched to New Orleans. of the civil power, or at least suspendThe object of the enemy was to take ing its ordinary exercises ? Was not the city; his duty was to defend it. the mind of Mr. Livingston, and has He made it his head-quarters, and not the public mind since, been led stretched his line of sentinels around it. away from the true ground by the fact, The city and its immediate environs that on this occasion a city, with all became his camp. By the laws of war its people and magistracy-the capital he had a right to order his sentinels to of a State, with its governor, legislaarrest, or, if need be, to shoot down, ture, and judges, together with the any person,-judge, governor, legis- Federal judges and other civil officers lator, city magistrate, or private citizen, were embraced in the camp, and came who should attempt to pass his lines within the jurisdiction of its police? without giving the countersign. He Yet, in principle and in law, what is a had a right to prescribe rules for pre- city more than a farm house? Wbat serving order in his camp, to establish are governors, legislators, judges, and patrols to enforce them, to arrest any magistrates, more than the humble citizen violating them, to confine bim farmer and his family ? Our arguor send him beyond his lines. All the ment assumes that New Orleans was citizens of New Orleans were in the a military camp, and as such might be condition of the occupants of a farm lawfully subjected to such police as the house which might be included within defence of the country and the safety an encampment in the vicinity of an and discipline of the army, in the enemy. The Commanding General opinion of the Commanding General, had a right to let them go beyond his urgently required. To establish and lines or require them to remain within; enforce it, required no declaration of to let them remain within or to send Martial Law, that being already the law them out; to let them go at large or of the camp, and consequently the law restrain them, as he might find neces of the city. Every person therein was, sary or most conducive to the defence ipso facto, the subject of such law, and of the city. He inight, as he did, for the powers of all civil magistrates inthe same purpose, seize and use, or compatible with it were suspended. destroy the property of the citizen; and The Commanding Officer, as the yet he violated no law.
administrator of Martial Law, could “Silent leges inler arma" is as true compel any individuals, or the whole now as it was in the days of conquere population, to remain within his lines ing Rome. There are occasions when or retire beyond them; could require the military power knows no superior them to retire from the streets within among the inferior magistrates of the certain hours; could prevent their cor. country. The law itself, for such respondence with all the world beyond emergencies, places it above the local the lines, and probibit all acts within civil magistracy, which is silent at its them tending to produce want, disconcommand. It could not punish General tent, or mutiny, or in any way weaken Jackson for destroying the buildings on the military arm. Nay, he could Chalmette's plantation lying between seize or destroy their property, as the his lines and those of the enemy; it could emergencies of the service might not hold him responsible for the damage require, compel them to render personal done to McCarty's house, which he services, and restrain the refractory or occupied as his head quarters; it could treacherous by placing them in connot rightfully amerce him for restraints finement. Is it not so ? Has not a imposed on those who chose to remain General all these powers over his camp, within his camp. There his power whether it be in the open field in the was, for the occasion, lawfully su- presence of the enemy, in a beleaguered preme; while that occasion lasted, entrenchment, or in a besieged city?
If this view of the subject be correct, required the arrest of the one, demandGeneral Jackson's declaration of Mar- ed with a louder voice the restraint of tial Law should be considered merely the other. The Judge was kept unin the character of a notice of his der guard few days, and then sent intention to exercise the powers vested out of the camp, and set at liberty. in him by the laws of war. It gave The subsequent trial of Louaillier by him no new powers, nor did it impose a Court Martial, has nothing to do with on the citizen any additional obliga- the legality of the arrest either of that tions.
individual or the Judge. To that step Did General Jackson actually exer- General Jackson was no doubt led by cise any powers, by virtue of this the last clause in Mr. Livingston's declaration, which he was not author- opinion above quoted, which seems to ized to exercise by the recognized laws consider the declaration of Martial of war?
Law the source of the power he exerLet us look at that series of acts cised. In the law itself, we find nowhich ended in the arrest of Judge thing to justify any step not necessary Hall, and gave occasion for the impo- to put a stop io the mischief; and we sition of the fine in question.
are inclined to think the Court Martial Many Frenchmen born, for the pure right in the decision that they had no pose of securing exemption from mili- jurisdiction in the case. tary duty, procured certificates from The power of the General, under the French Consul, declaring them to Martial Law, seems to be altogether be subjects of the King of France. preventive, except in cases where the These certificates were given in the law itself provides for punishment. In midst of the General's camp, and tend- this case, it seems to us, that the preed to weaken bis means of defence, by ventive power can only be exercised by taking effective soldiers from his ranks, keeping the mischief-maker in confineand producing dissatisfaction and a ment, or sending him beyond the limits spirit of mutiny among those who re- of the camp. In effect, this was the mained. Might not ihe General, in result in the case of Louaillier, and strict conformity with military law, nothing beyond it was attempted in have placed boih the Consul and his the case of Judge Hall. protegés in confinement ? He adopt These facts and reasons lead us to ed the milder expedient of ordering the conclusion, that in ordering French them out of his camp.
aliens and the French Consul beyond Then came the publication of Lou- the limits of his camp, in arresting and aillier, harshly censuring this order as confining Louaillier for an open attempt an act of tyranny, and openly advising within his camp to produce discontent disobedience. This publication, be it and disobedience, and in confining and remembered, was made in the midst of sending out of his camp Judge Hall for the camp. Its direct and manifest ob- attempting to sustain Louaillier, Genject was to bring the military authority eral Jackson trampled on no constituinto contempt.
tion, and violated no law; but, on the The arrest of the author was, in our contrary, faithfully executed the powview of the General's lawful authority ers vesied in him by the constitution over his camp, not only a matter of and laws as a military commander, for right, but of indispensable duty. In- the preservation of order in his camp, stead of violating the constitution and the safety of his army, and the defence laws of his country, he but performed of his country. the solemn obligation of executing If, in any case, he transcended that them by preserving the just authority authority, it was not in those acts for of its military commanders over its which he was fined. armies and their encampments.
We come now to the last head, viz.: Yet it was for this act that Judge 4. THE IMPOSITION OF THE FINE BY Hall, himself at that moment the sub- JUDGE HALL WAS ILLEGAL. ject of military law, and abiding in the Those who assent to the conclusion midst of the camp, issued his writ of that the acts of General Jackson were Habeas Corpus. “This was making legal, need no further argument to himself the accomplice of Louaillier in satisfy them that the fine, so far as stirring up disconient and mutiny in founded on those acts, was illegal. If the camp; the same principles which by law the military power is raised
above the subordinate civil magistrate it has been confined to a few cases. in any case, it follows that in such Some years ago, Judge Peck, of Miscase the Judge who attempts to put souri, was impeached before the down that power under color of his United States' Senate, and came near civil authority, is himself the violator being removed from office, for proceedof the laws, and deserves the punish- ings analogous to those of Judge Hall ment he would inflict.
at New Orleans. The facts and prinBut there is another view of this ciples there brought under considerasubject more general, and perhaps not tion, induced Congress immediately less important. It is in the assump- thereafter to pass a declaratory act, tion of power by the Judge to deter- defining the law of contempt in the mine what constituted a contempt, following words, viz. : and to punish it at his discretion. This is the legislative, judicial, and “ Be it enacted by the Senate and House executive power united, which con- of Representatives of the United States of stitutes a perfect despotism. In this America in Congress assembled, That the case it was the worse, because it was power of the several courts of the United a case in which the Judge's own honor States to issue attachments, and inflict and reputation were deeply concerned. summary punishment for contempts of He undertook to create the offence and court, shall not be construedto extend prescribe the penalty ; to inquire into
to any cases except the misbehavior of the facts and find the verdict; to pro- the said courts, or so near thereto as to
any person or persons in the presence of nounce the sentence and cause it to be obstruct the administration of justice; enforced ; and all this in vindication the misbehavior of any of the officers of of his own wounded feelings and of the said courts in their official transacfended dignity! There is not a word tions; and the disobedience or resistance, in the constitution and laws of the by any officer of the said courts, party, country vesting such a power in a juror, witness, or any other person or perJudge. It was never vindicated, ex
sons, to any lawful writ, process, order, cept on the ground of necessily. Shall rule, decree, or command of the said necessity justify the assumption of un courts." granied power by every judicial tribunal in the country, and shall not a This act did not alter the law, but stronger necessity justify a military simply declared what it was. Applied commander in exercising similar pow- to the facts of General Jackson's case, ers to preserve the country from con- it declares that Judge Hall's proceedquest, and those very tribunals from ings were in violation of the law. destruction ? But General Jackson did Imprisoning a Judge is not by this act, not exercise similar powers. He as a contempt of court ; nor is wresting sumed no power to try and condemn an original order from the hands of the those whom he had arrested. Martial clerk; and as for disregarding a writ Law had its courts; and this very Lou- of Habeas Corpus, it was not served aillier, whose arrest caused the inter- upon him until the time for its return ference of Judge Hall, was not tried and had passed. Besides, the writ was not punished by General Jackson, but was lawful writ," a Judge having no tried and acquitted by a Court Martial. rightful power to set up the judicial Which is most fearful, Martial Law against the military power in the midst administered by a Court Martial, or of a camp. We have, then, not only Judicial Law where the court, often as the absence of all delegation of power in this case, composed of one man, to Judge Hall, authorizing him to immakes the rule, judges of its infraction, pose the fine on the grounds stated, but and inflicts the punishment? The also the express declaration of Con. General is but the executor of a written gress that he did not possess it. Need code, under the decisions of an inde. we go further to prove that the impopendent court; the Judge has no rule sition of this fine was illegal? Is it but his will, and assumes to himself not enough, that there was not only no the power of the Turkish Sultan. legal authority, but that Congress has
That the exercise of this terrible declared, after solemn consideration, power was so long tolerated by the that no such power was ever vested in United States, can be accounted for a Judge or a court under such circumonly from the fact that in practice stances? If the Judge's arrest was
illegal, he had the same remedy as hands of the Clerk, but that the Clerk, any other citizen. Instead of assum- on his sending for it, voluntarily carried ing to punish the act himself, he should it and put it into the General's hands. have brought an action, and submitted Thus far, most certainly, no punishable his case to a disinterested court and offence was committed. If any wrong jury. If wresting an order from the was done, it was in the detention of Clerk was illegal, there was a remedy the paper. Does the law provide no for the recovery of the paper, other- remedy for this short of the assumpwise than by process for contempt. tion of despotic power by the Judge ?
In reference to this paper, it is due Judge Hall's conduct in this case was to General Jackson that the facts should the more extraordinary, because he did be understood. Louaillier was arrested not deem it his duty to demand or on the 5th March. He obtained an exact a restoration of the paper. He order for a writ of Habeas Corpus on admitted that no harm had been done, the same day. General Jackson was by quietly leaving the original paper informed of the order immediately af- in the hands of the General.
It was ter it was made, and forthwith issued no part of his decision that the paper his order for the arrest of the Judge, should be restored, but he contented which was promptly executed. On himself with imposing a fine for taking the same evening he was informed it. Ought he not, upon the principles that the date of the Judge's order had assumed by him, to have required a been altered to the 6th March, where- return of the paper under pain of by the record of the court would be further fine and imprisonment ? made to show that the order for the In view of these facts and principles, Habeas Corpus was not made until we do not hesitate to say, that so far the day after the Judge's arrest. To as relates to this point, the fine was satisfy his own mind he sent for the illegal; first, because there was no paper; it was brought and put into illegal taking of the paper; secondly, his hands by the Clerk of the court. because there was another remedy for That paper is now before us. It is a its detention if proved to be wrongful; petition for a Habeas Corpus addressed and thirdly, because the judges haveneto Judge Hall by P. L. Morel, as coun ver possessed constitutional or legal ausel for Louaillier, sworn 10 by Morel, thority to punish either the peaceful and on the back is Judge Hall's order. taking or detention of such a paper by On looking at them, no man can doubt process for contempt, as was virtually that both the affidavit and order were decided by Congress in the case of originally dated March 5th, and that Judge Peck. the figure 6 was afterwards written We might enlarge upon the illeover the 5 in another hand, and with gality of Judge Hall's proceedings ; blacker ink. With this paper is a let- but it is not necessary, To us it ter from Morel to General Jackson seems incontrovertibly clear, that the dated the 5th, written in the same act of the Judge in imposing the fine hand, and evidently with the same ink, was unconstitutional and flagrantly and there is other evidence that the illegal. If so, how can Congress jusoriginal dates of the petition and order tify themselves to the country or the were the 5th March.
world, for longer keeping in the TreaGeneral Jackson, seeing that the sury the money thus wrongfully exrecord of the court was likely to be torted from one of their fellow-citizens ? made false, with the effect, if not the We have materials for a more exdesign, to show that he had arrested tended exposition of the conduct of Judge Hall for acts which had not yet Judge Hall; but deeming it unnecessary been performed, deemed it essential to at present as a means of doing justice to his own safety, to keep this paper in General Jackson, we refrain from the his possession. This he did, furnish- ungrateful task. A few more words ing a certified copy, and the record relating to the conduct of General was made to speak the truth.
Jackson personally, shall conclude this Was he not right? No just man paper, which has already transcended will answer nay. But if he were not the limits within which we had hoped right, was a process for contempt the to confine it. It will probably reach proper remedy? The proof was, not the hands of most of the readers of the ihat he wrested this paper from the Democratic Review, on or before the