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