Thirty Years' View (Vol. II of 2)

The brave and faithful Downes pulled through the fire of the enemy in an open boat to take the orders of his captain; but his light guns could be of no service, and he was directed to look to his own ship. Twice more the Essex endeavored to close upon the British frigate, but she edged away each time, keeping the distance which was safe to himself and destructive to the Essex. By this time half the whole crew were killed or wounded, and the ship on fire. Capt. Porter then attempted to run her on shore; but the wind failed when within musket shot of the land. Leave was then given to the crew to save themselves by swimming, which but few would do. At last the surrender became imperative. The Essex struck, and her heroic commander and surviving men and officers became prisoners of war. Thousands of persons – all Valparaiso – witnessed the combat. The American consul, Mr. Poinsett, witnessed it and claimed the protection of the fort, only to receive evasive answers, as the authorities were now favorable to the British. It was a clear case of violated neutrality, tried by any rule. First, the Essex was within the harbor, though not at the usual anchoring place, which she could not reach; secondly, she was under the guns of the detached fort, only half a mile distant; thirdly, she was within the territorial jurisdiction of Chili, whether measured by the league or by the range of cannon, and no dispute about either, as the shore was at hand, and the British balls which missed the Essex hit the land.

After the surrender some arrangements were made with Capt. Hillyar. Some prisoners were exchanged upon the spot, part of those made by Capt. Porter being available for an equal number of his own people. Essex Junior became a cartel to carry home himself and officers and others of his men on parole; but this man of daring deeds was not allowed to reach home without another proof of his determined spirit. When within thirty miles of New York, Essex Junior was brought to by the British razee Saturn, Capt. Nash, who denied the right of Capt. Hillyar to allow the cartel, and ordered her to lie by him during the night. Capt. Porter put off in a whale-boat, and, though long chased, saved himself by the chance of a fog coming to the aid of hard rowing.

And thus ended this unparalleled cruise – ending with a disaster. But the end could not efface the past; could not undo the captures which had been made; could not obscure the glory which had been acquired; cannot impair the lesson which its results impress on the minds of statesmen. It had lasted eighteen months, and during that time the little frigate had done every thing for itself and the country. It had lived and flourished upon the enemy. Not a dollar had been drawn from the public Treasury, either for pay or supplies; all came from the foe. Money, provisions, munitions, additional arms, spars, cordage, rigging, and vessels to constitute a little fleet, all came from the British. Far more than enough for all purposes was taken and much destroyed; for damage as well as protection was an object of the expedition – damage to the British, protection to Americans; and nobly were both objects accomplished. Surpluses, as far as possible, were sent home; and, though in part recaptured, these accidents did not diminish the merit of the original capture. The great whale trade of the British in the Pacific was broken up, the supply of oil was stopped, the London lamps were in the condition of those of the "foolish virgins," and a member of Parliament declared in his place that the city had burnt dark for a year.

The personal history of Commodore Porter, for such he became, was full of incident and adventure, all in keeping with his generous and heroic character. Twice while a lad and serving in merchant vessels in the West Indies, he was impressed by the British, and, by his courage and conduct made his escape, each time. A third attempt at impressment was repulsed by the bloody defeat of the press-gang. The same attempt, renewed with increased numbers, was again repulsed with loss to the British party – young Porter, only sixteen, among the most courageous defenders of the vessel. He was upwards of a year a prisoner at Tripoli, being first lieutenant on board the Philadelphia when she grounded before that city and was captured. He was midshipman with the then Lieutenant Rodgers, when the two young officers and eleven men performed that marvel of endurance, firmness, steadiness, and seamanship, in working for three days and nights, without sleep or rest, on the French frigate Insurgent, guarding all the time their 173 prisoners, and conducting the prize safe into port – as related in the notice of Commodore Rodgers.

After his return from the Pacific, he was employed in suppressing piracy in the West Indies, which he speedily accomplished; but for punishing an insult to the flag in the island of Porto Rico, he incurred the displeasure of his government, and the censure of a court martial. His proud spirit would not brook a censure which he deemed undeserved; and he resigned his commission in the navy, of which he was so brilliant an ornament. The writer of this View was a close observer of that trial, and believed the Commodore to have been hardly dealt by, and considered the result a confirmation of his general view of courts martial where the government interferes – an interference (when it happens) generally for a purpose, either to convict or acquit; and rarely failing of its object in either case, as the court is appointed by the government, dependent upon it for future honor and favor, acts in secret, and subject to the approval of the Executive.

Stung to the quick by such requital of his services, the brave officer resigned his commission, and left the country which he had served so faithfully, and loved so well, and took service in the Republic of Mexico, then lately become independent and desirous to create a navy. But he was not allowed to live and mourn an exile in a foreign land. President Jackson proposed to restore him to his place in the navy, but he refused the restoration upon the same ground that he had resigned upon – would not remain in a service under an unreversed sentence of unjust censure. President Jackson then gave him the place of Consul General at Algiers; and, upon the reduction of that place by the French, appointed him the United States Charge d'Affaires to the Sublime Porte – a mission afterwards raised to Minister Resident by act of Congress for his special benefit. The Sultan Mahmoud – he who suppressed the Janissaries, introduced European reforms, and so greatly favored Christians and strangers – was then on the throne, and greatly attached to the Commodore, whose conversation and opinions he often sought. He died in this post, and was brought home to be buried in the country which gave him birth, and which no personal wrong could make him cease to love. A national ship of war, the Truxton, brought him home – a delicate compliment in the selection of the vessel bearing the name of the commander under whom he first served.

Humanity was a ruling feature in his character, and of this he gave constant proof – humane to the enemy as well as to his own people. Of his numerous captures he never made one by bloodshed when milder means could prevail; always preferring, by his superior seamanship, to place them in predicaments which coerced surrender. Patriotism was a part of his soul. He was modest and unpretentious; never seeming to know that he had done things of which the world talked, and of which posterity would hear. He was a "lion" nowhere but on the quarter-deck, and in battle with the enemies of his country. He was affectionate to his friends and family, just and kind to his men and officers, attaching all to him for life and for death. His crew remaining with him when their terms were expiring in the Pacific, and refusing to quit their commander when authorized to do so at Valparaiso, were proofs of their devotion and affection.

Detailed history is not the object of this notice, but character and instruction – the deeds which show character, and the actions which instruct posterity; and in this view his career is a lesson for statesmen to study – to study in its humble commencement as well as in its dazzling and splendid culmination. Schools do not form such commanders; and, if they did, the wisdom of government would not detect the future illustrious captain in the man before the mast, or in the boy in the cabin. Born in Boston, the young Porter came to man's estate in Baltimore, and went to sea at sixteen in the merchant ship commanded by his father – the worthy father of such a son – making many voyages to the West Indies. There he earned his midshipman's warrant, and there he learned the seamanship which made him the worthy second of Rodgers in that marvellous management of the Insurgent, which faithful history will love to commemorate. Self-made in the beginning, he was self-acting through life, and will continue to act upon posterity, if amenable to the lesson taught by his life: the merchant service, the naval school, cruisers, the naval force, separate commands for young men. With a little 32 gun frigate, all carronades except a half-dozen stern chasers, and they only twelve-pounders, he dominated for a year in the vast Pacific Ocean; with a 44 and her attendant sloop-of-war, brig, and schooner, he would have dominated there to the end of the war. He was the Paul Jones of the "second war of Independence," with a more capacious and better regulated mind, and had the felicity to transmit as well as to inherit the qualities of a commander. The name of Porter is yet borne with honorable promise on the roll of the American navy.

CHAPTER CXIX.

REFUNDING OF GENERAL JACKSON'S FINE

During his defence of New Orleans in the winter of 1814-'15, General Jackson was adjudged to have committed a contempt of court, in not producing the body of a citizen in obedience to a writ of habeas corpus, whom he had arrested under martial law which he had proclaimed and enforced for the defence of the city. He was fined for the contempt, and paid it himself, refusing to permit his friends, and even the ladies of New Orleans who presented the money ($1,000), to pay it for him. He submitted to the judgment of the court, paying the amount before he left the court room, but protesting against it as an illegal exaction, and as involving the imputation of illegality on his conduct. This conveyed a reproach under which he was always sensitive, but to relieve himself from which he would countenance no proceeding while he was still on the theatre of public action, and especially while he was President. His retirement to private life removed the obstacle to the action of his friends and soon thereafter Mr. Linn, a senator from the State of Missouri, brought in a bill for refunding the fine. This was a quarter of a century after it had been imposed. On getting notice of this proceeding General Jackson wrote a letter to Senator Linn, of which the leading paragraphs are here given.

"Having observed in the newspapers that you had given notice of your intention to introduce a bill to refund to me the fine (principal and interest) imposed by Judge Hall, for the declaration of martial law at New Orleans, it was my determination to address you on the subject; but the feeble state of my health has heretofore prevented it. I felt that it was my duty to thank you for this disinterested and voluntary act of justice to my character, and to assure you that it places me under obligations which I shall always acknowledge with gratitude.

"It is not the amount of the fine that is important to me: but it is the fact that it was imposed for reasons which were not well founded; and for the exercise of an authority which was necessary to the successful defence of New Orleans; and without which, it must be now obvious to all the world, the British would have been in possession, at the close of the war, of that great emporium of the West. In this point of view it seems to me that the country is interested in the passage of the bill; for exigencies like those which existed at New Orleans may again arise; and a commanding-general ought not to be deterred from taking the necessary responsibility by the reflection that it is in the power of a vindictive judge to impair his private fortune, and place a stain upon his character which cannot be removed. I would be the last man on earth to do any act which would invalidate the principle that the military should always be subjected to the civil power; but I contend, that at New Orleans no measure was taken by me which was at war with this principle, or which, if properly understood, was not necessary to preserve it.

"When I declared martial law, Judge Hall was in the city; and he visited me often, when the propriety of its declaration was discussed, and was recommended by the leading and patriotic citizens. Judging from his actions, he appeared to approve it. The morning the order was issued he was in my office; and when it was read, he was heard to exclaim: 'Now the country may be saved: without it, it was lost.' How he came afterwards to unite with the treacherous and disaffected, and, by the exercise of his power, endeavored to paralyze my exertions, it is not necessary here to explain. It was enough for me to know, that if I was excusable in the declaration of martial law in order to defend the city when the enemy were besieging it, it was right to continue it until all danger was over. For full information on this part of the subject, I refer you to my defence under Judge Hall's rule for me to appear and show cause why an attachment should not issue for a contempt of court. This defence is in the appendix to 'Eaton's Life of Jackson.'

"There is no truth in the rumor which you notice, that the fine he imposed was paid by others. Every cent of it was paid by myself. When the sentence was pronounced, Mr. Abner L. Duncan (who had been one of my aides-de-camp, and was one of my counsel), hearing me request Major Reed to repair to my quarters and bring the sum – not intending to leave the room until the fine was paid – asked the clerk if he would take his check. The clerk replied in the affirmative, and Mr. Duncan gave the check. I then directed my aide to proceed forthwith, get the money, and meet Mr. Duncan's check at the bank and take it up; which was done. These are the facts; and Major Davezac, now in the Assembly of New York, can verify them.

"It is true, as I was informed, that the ladies did raise the amount to pay the fine and costs; but when I heard of it, I advised them to apply it to the relief of the widows and orphans that had been made so by those who had fallen in the defence of the country. It was so applied, as I had every reason to believe; but Major Davezac can tell you more particularly what was done with it."

The refunding of the fine in the sense of a pecuniary retribution, was altogether refused and repulsed both by General Jackson and his friends. He would only have it upon the ground of an illegal exaction – as a wrongful exercise of authority – and as operating a declaration that, in declaring martial law, and imprisoning the citizen under it, and in refusing to produce his body upon a writ of habeas corpus, and sending the judge himself out of the city, he was justified by the laws of the land in all that he did. Congress was quite ready, by a general vote, to refund the fine in a way that would not commit members on the point of legality. It was a thing constantly done in the case of officers sued for official acts, and without strict inquiry into the legality of the act where the officer was acting in good faith for the public service. In all such cases Congress readily assumed the pecuniary consequences of the act, either paying the fine, or damages awarded, or restoring it after it had been paid. General Jackson might have had his fine refunded in the same way without opposition; but it was not the money, but release from the imputation of illegal conduct that he desired; and with a view to imply that release the bill was drawn: and that made it the subject of an earnestly contested debate in both Houses. In the Senate, where the bill originated, Mr. Tappan of Ohio, vindicated the recourse to martial law, and as being necessary for the safety of the city.

"I ask you to consider the position in which he was placed; the city of New Orleans was, from the necessity of the case, his camp; the British, in superior force, had landed, and were eight or nine miles below the city; within three hours' march; in his camp were many over whom he had no control, whom he could not prevent (or punish by any process of civil law) from conveying intelligence to the enemy of his numbers, means of defence or offence, as well as of his intended or probable movements; was not the entire command of his own camp necessary to any efficient action? It seems to me that this cannot be doubted. In time of war, when the enemy's force is near, and a battle is impending, if your general is obliged, by the necessities of his position, and the propriety of his operations, to occupy a city as his camp, he must have the entire command of such city, for the plain reason that it is impossible, without such command, to conduct his operations with that secrecy which is necessary to his success. The neglect, therefore, to take such command, would be to neglect the duty which his country had imposed upon him. I perceive but two ways in which General Jackson could have obtained the command of his own camp; one was by driving all the inhabitants out of the city, the other by declaring martial law. He wisely and humanely chose the latter, and by so doing, saved the city from being sacked and plundered, and its inhabitants from being outraged or destroyed by the enemy."

But this arrest of a citizen, and refusal to obey a writ of habeas corpus, was after the British had been repulsed, and after a rumor of peace had arrived at the city, but a rumor coming through a British commander, and therefore not to be trusted by the American general. He thought the peace a probable, but by no means a certain event: and he could not upon a probability relax the measures which a sense of danger had dictated. The reasons for this were given by the General himself in his answer to show cause why the rule which had been granted should not be made absolute.

"The enemy had retired from their position, it is true; but they were still on the coast, and within a few hours' sail of the city. They had been defeated, and with loss; but that loss was to be repaired by expected reinforcements. Their numbers much more than quadrupled all the regular forces which the respondent could command; and the term of service of his most efficient militia force was about to expire. Defeat, to a powerful and active enemy, was more likely to operate as an incentive to renewed and increased exertion, than to inspire them with despondency, or to paralyze their efforts. A treaty, it is true, had been probably signed, but yet it might not be ratified. Its contents even had not transpired; so that no reasonable conjecture could be formed whether it would be acceptable; and the influence which the account of the signature had on the army was deleterious in the extreme, and showed a necessity for increased energy, instead of relaxation of discipline. Men who had shown themselves zealous in the preceding part of the campaign, became lukewarm in the service. Wicked and weak men, who, from their situation in life, ought to have furnished a better example, secretly encouraged the spirit of insubordination. They affected to pity the hardships of those who were kept in the field; they fomented discontent, by insinuating that the merits of those to whom they addressed themselves, had not been sufficiently noticed or applauded; and disorder rose to such an alarming height, that at one period only fifteen men and one officer were found out of a whole regiment, stationed to guard the very avenue through which the enemy had penetrated into the country. At another point, equally important, a whole corps, on which the greatest reliance had been placed, operated upon by the acts of a foreign agent, suddenly deserted their post. If, trusting to an uncertain peace, the respondent had revoked his proclamation, or ceased to act under it, the fatal security by which they were lulled, would have destroyed all discipline, dissolved all his force, and left him without any means of defending the country against an enemy instructed by the traitors within our bosom, of the time and place at which he might safely make his attack. In such an event, his life, which would certainly have been offered up, would have been but a feeble expiation for the disgrace and misery into which his criminal negligence would have plunged the country."

A newspaper in the city published an inflammatory article, assuming the peace to be certain, though not communicated by our government, inveighed against the conduct of the General in keeping up martial law as illegal and tyrannical, incited people to disregard it, and plead the right of volunteers to disband who had engaged to serve during the war. Louallier, a member of the General Assembly, was given up as the author of the article: the General had him arrested and confined. Judge Hall issued a writ of habeas corpus to release his body: General Jackson ordered the Judge out of the city, and sent a guard to conduct him out. All this took place on the 10th and 11th of March: on the 13th authentic news of the peace arrived, and the martial law ceased to exist. Judge Hall returned to the city, and Mr. Tappan thus relates what took place:

"Instead of uniting with the whole population, headed by their venerable bishop, in joy and thankfulness for a deliverance almost miraculous, achieved by the wisdom and energy of the General and the gallantry of his army, he was brooding over his own imaginary wrongs, and planning some method to repair his wounded dignity. On this day, twenty-seven years ago, he caused a rule of the district court to be served on General Jackson, to appear before him and show cause why an attachment should not issue against him for: – 1st. Refusing to obey a writ issued by Judge Hall. 2d. Detaining an original paper belonging to the court. And 3d, for imprisoning the Judge. The first cause was for the General refusing to obey a writ of habeas corpus in the case of Louallier; the second for detaining the writ. The whole of these three causes assigned are founded on the hypothesis, that instead of General Jackson having command of his camp, he exercised a limited authority under the control of the civil magistracy. I trust I have satisfied you that martial law did in fact exist, and of necessary consequence, that Judge Hall's authority was suspended. If he was injured by it, surely he was not the proper person to try General Jackson for that injury. The principal complaint against General Jackson was for imprisoning the Judge. The imprisonment consisted in sending an officer to escort him out of camp; and for this, instead of taking the regular legal remedy, by an action for assault and false imprisonment, in the State court, which was open to him as well as every other citizen, he called the General to answer before himself. He went before the Judge and proffered to show cause; the Judge would not permit him to do this, nor would he allow him to assign his reasons in writing for his conduct, but, without trial, without a hearing of his defence, he fined him one thousand dollars. You all know the conduct of the General on that occasion; he saved the Judge from the rising indignation of the people and paid his fine to the United States marshal. These proceedings of Judge Hall were not only exceedingly outrageous, but they were wholly illegal and void; for, as says an eminent English jurist, 'even an act of parliament cannot make a man a judge in his own cause.' This was truly and wholly the cause of the Judge himself. If a law of Congress had existed which authorized him to sit in judgment upon any man for an injury inflicted upon himself, such a law would have been a mere dead letter, and the Judge would have been bound to disregard it. It was the violation of this principle of jurisprudence which aroused the indignation of the people and endangered the life of his contemptible judge. I am aware of the law of contempt; it is the power of self-preservation given to the courts; it results from necessity alone, and extends no further than necessity strictly requires; it has no power to avenge the wrongs and injuries done to the judge, unless those wrongs obstruct the regular course of justice. I am aware also of the manner in which the law of contempt has been administered in our courts where no statute law regulated it, and it was left to the discretion of the judges to determine what was or was not a contempt. In one case a man was fined for contempt for reviewing the opinion of a judge in a newspaper. This judge was impeached before this body and acquitted, because not quite two-thirds of the Senate voted him guilty. Some senators, thinking probably that as Congress had neglected to pass a law on the subject of contempt, the judge had nothing to govern his discretion in the matter, and therefore ought not to be convicted. Congress immediately passed such a law, and no contempts have occurred since in the United States courts."