James Madison Papers
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To James Madison from Alexander J. Dallas, 1 August 1815

From Alexander J. Dallas

1st. Aug. 1815.

Dear Sir.

I enclose a rough sketch of a letter to Genl Jackson.1 The nature of the subject, and the character of the man, have made it difficult to address him. After several essays, I have thought it best to take him at his word, that he acted from necessity; and to distinguish the law of necessity from the law of the land. Be so good as to favor me with instructions and amendments.

The Neptune arrived at Newcastle at 3 oClock this morning. Mr. Gallatin and Mr. Bayard are on board, the latter dangerously ill. Mr. Crawford and Mr. Clay are not in the Neptune. As I have not seen any of the Passengers, I can only state the fact of the arrival. You shall hear from me, as soon as I can collect any facts for communication. I am, Dr. Sir, most respectfully & faithfully Yrs.

A. J. Dallas

8 o’Clock in the evening.

The Neptune has reached the Wharff, Mr Crawford landed at Newcastle, and hastened to Washington. Mr Bayard was landed in a very desperate state.

But I am grieved to add, that Mr. Gallatin and Mr Clay have been left in London. They fixed a day for joining the vessel at Plymouth; and not coming on the day appointed, Capt. Jones, on the order of Mr. Bayard and Mr. Crawford sailed without them. This is the account of Mrs. Gallatin’s relative, young Nicholson, and Mr. Gallatin’s servant. All Mr. Clay’s and Mr. Gallatin’s baggage is in the Neptune. I will see Capt. Jones in the morning, and communicate his account. I presume, however, that Mr. Crawford will write to you.

A. J. D.

RC (DLC). Enclosure not found, but see n. 1.

1The letter that Dallas eventually sent to Maj. Gen. Andrew Jackson regarding the general’s declaration and enforcement of martial law in New Orleans (for the controversy, see Dallas to JM, 12 May 1815 [first letter], n. 3) was dated 1 July 1815, probably in compliance with JM’s request that it be given “as early a date as circumstances will permit” (JM to Dallas, 10 Aug. 1815). Dallas told Jackson that since JM fully believed in the patriotism of his motives, the president “would willingly abstain from any further remarks upon the subject, were he not apprehensive, that the principle of your example, and the reason of his silence, might be hereafter misunderstood, or misrepresented.” JM would have preferred to learn of Jackson’s measures from the general himself, Dallas wrote, and could “see no cause to censure” those who had reported them, as his actions “were of a nature to merit the attention of Government and even to involve the President of the United States (who is bound to take care that the Laws be faithfully executed) in a high constitutional responsibility.” Nevertheless, since “the exigency was great, and … the triumph has been compleat,” Jackson’s judgment “merit[ed] implicit confidence” in JM’s view. The president therefore “could feel no disposition to condemn the measures, that were adopted as indispensable, to rescue the Country from impending danger,” and did not “even deem it material, at this time, to enter into a critical examination of the evidence … adduced to prove the existence of the crisis.” But any argument presenting legal grounds for measures such as Jackson’s was worthless, Dallas wrote: an army officer who decided “to suspend the writ of Habeas Corpus, to restrain the liberty of the Press, to inflict military punishments, upon citizens who are not military men, and generally to supercede the functions of the civil magistrate … may be justified by the law of necessity, while he has the merit of saving his country, but he cannot resort to the established law of the land, for the means of vindication” (Smith et al., Papers of Andrew Jackson, 3:375–77). JM’s view of martial law as articulated here by Dallas had been anticipated in large part by one of Jackson’s attorneys, Edward Livingston, who advised the general that U.S. law, including the Constitution, offered no basis for the suspension of civil authority by military decree, and that such action could be justified only by necessity and undertaken solely on the responsibility of the commander and at his own risk. A second lawyer, Abner Duncan, argued in opposition that the Constitution’s provision for suspension of the writ of habeas corpus implicitly sanctioned the declaration of martial law when deemed necessary by an authorized officer (Matthew Warshauer, Andrew Jackson and the Politics of Martial Law: Nationalism, Civil Liberties, and Partisanship [Knoxville, Tenn., 2006], 23).

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