The Argument Against Conscription and Confiscation

It is all well and good to stand for liberty, but if you  cannot fight to defend it, all your pretty words are meaningless. It is all very good to be a hawk in the protection of your country, but if you overlook the liberties you are fighting for in your eagerness to win the fight, then you are ultimately no patriot. It is a rare man who is both good at war and still remembers during the din of battle what he is supposed to be defending.

That Joseph Alston, as Governor of South Carolina during the War of 1812, was not a great leader of men is true. When he called up the militia, they came, but they refused to follow his orders, and eventually went home. And when he wanted to court martial their leaders, he was thwarted by a writ of habeas corpus that required him to let the men go.

http://www.historiaobscura.com/governor-joseph-alstons-record-in-the-war-of-1812/


Now, a charismatic man like Andrew Jackson would not have stood for that. He would have declared martial law, incarcerated the judge, put away any journalists who spoke up against his tyrannical actions, and created an armed camp out of the city he was visiting.

http://www.historiaobscura.com/andrew-jacksons-fine-and-the-place-of-martial-law-in-american-politics/

Though Alston was no great hero, and there is much to criticize in his handling of the war, he at least recognized the rule of law. Jackson was a good military leader, but he did not live by the rule of law, and so ultimately his actions served to undermine the constitution for which he should have been fighting.

Today, people on either side of the left/right divide argue about when it is necessary to force people at the point of the gun to contribute to the war effort, either through conscription or through taxation. But there is one great American hero from the War of 1812 who was in favor of neither: Jean Laffite.

http://www.historiaobscura.com/commemoration-of-a-hero-jean-laffite-and-the-battle-of-new-orleans/

Jean Laffite did not merely volunteer to fight for America and bring along with him many other volunteers that fought in the Battle of New Orleans. He also supplied artillery, gunpowder and flints without which the battle could not be won.

A real American, one who fights for our liberty, does so at his own expense and not by sacrificing the freedom of others. He obeys the constitution and respects the rights of others to their property and their persons. But he does disregard unconstitutional laws that result in confiscation and conscription. Because if the only way to save the country is to jettison the constitution, what is the point in fighting at all?

The Looted Ships in the Navy Docks

Pam Keyes has just published a very interesting article about the Battle of Lake Borgne.

http://www.historiaobscura.com/pattersons-mistake-the-battle-of-lake-borgne-revisited/

The article describes a number of tactical and strategic mistakes made by Commodore Daniel T. Patterson and those under his command that not only lost the United States Navy some badly needed gun boats but also made those same gun boats available to the British to use against the American forces.

The article also touched obliquely on the fate of the ships confiscated at Barataria during the Patterson-Ross raid.

Patterson’s small navy had been reduced to the Carolina schooner and Louisiana sloop, both at New Orleans, and one gunboat at Ft. St. Phillip on the Mississippi River. Six fast armed schooners taken in the Patterson-Ross raid of Jean Laffite’s Barataria sat idle at the Navy yard in New Orleans, but couldn’t be used for two reasons: there were no sailors to man them, and they were still awaiting judgment in admiralty court, so it was like they weren’t even there. The Louisiana also couldn’t be used initially due to a lack of men. Only the Carolina boasted a full crew of New Englanders who had arrived with the ship in August 1814. Patterson’s unpopularity with sometime privateer crews made him anathema for them to want to work for his navy.

 One wonders, since Andrew Jackson had declared martial law and was conscripting men and impressing sailors and confiscating property and ignoring court orders, according to the book by Matthew Warshauer, why Jackson could not simply take over the Baratarian ships in the Navy dockyard and assign Baratarian volunteers under his command to man them.

Could it be because the Navy and the Army were separate entities, and there was no Secretary of the Navy in office, and Jackson was not sure he could make his martial law stick against Daniel T. Patterson?

Consequences of the Louisiana Purchase

I have finished reading Matthew Warshauer's book and have posted a review on Amazon.

Andrew Jackson and the Politics of Martial Law Review

In looking back on what I learned from reading about the refund debates, the biggest thing that stands out was what a mistake the Louisiana Purchase was and what a very big price we paid for it in both the loss of life in a war fought to keep it, the loss of our civil liberties under martial law imposed during the Battle of New Orleans and in the financial shenanigans that bankrupted our economy right after the War of 1812.

Please understand, I am not saying that the states which were once part of the Louisiana Purchase should not be part of the union. On the contrary, I think that they inevitably would have been, had we followed a constitutional course of action, But you cannot "purchase" land for mere money, and a country committed to civil liberties cannot possibly maintain ideological purity when it buys not only the land but the people who live on it.

The corrupting influence of the Louisiana Purchase can be seen in Andrew Jackson's belief that the people of Louisiana were not faithful to the United States, and hence there was a necessity to impose martial law on an unwilling population. He made it seem that if not for his heavy handed, dictatorial treatment of everyone in the city, the non-English speaking population would have embraced the British invaders.

It wasn't true. The people of Louisiana did not want the the British to win. Those of French descent particularly hated Britain and everything it stood for. The Battle of New Orleans was won through the voluntary donations and exertions of the French speaking Baratarian volunteers, Jean Laffite chief among them.

But sometimes the hidden sense of guilt that we have for being a conqueror can make us paranoid, because deep down inside we feel that if anyone had done to us what we did to our subject population, we ourselves would rebel. That's what happened to Andrew Jackson, and for a few months he ran roughshod over an entire population, just in case there might be some spies or turncoats or terrorists or saboteurs among them. And twenty-nine years later he returned to Congress and asked for an endorsement of those actions. And he got it! This precedent was in turn used to subdue civilian populations during the Civil War and during World War II and after 9/11 and ever since.

But there's also an economic price for the Louisiana Purchase that we are paying to this very day. The original notes for the purchase were made out to France, but Napoleon turned around and sold them to a British Bank, and when the payments came due, we paid almost all our gold and silver reserves to Britain, precipitating the Panic of 1819.

Today, people who are against a strong monetary system point at the business cycle's ups and downs and say that being off a hard specie standard is what keeps us from having crises like the one in 1819. But it was not the free market that caused the Panic of 1819. It was the Louisiana Purchase all over again.

So how should we go about getting new territories? The colonization of Texas by independent Americans is one example. Filibustering is the American way. It allows independent individuals to pursue their own interests, while keep the government out of it. This way any war that occurs is a private war, waged only by those who stand to gain from it.

The Neutrality Act should never have been passed. Americans should have been free to settle anywhere and fight for independence from European empires. Then, years later, when everyone who lived in the territory actually wanted to join the United States, they could petition to join the union.

This is how a government by the consent of the governed operates. It does not  put the union above the people. It waits to be asked nicely to join. And if we had lived by this creed of consent of the governed,  we would have been left free both in the economic sphere and in the matter of civil liberties  That's why I think repealing the Neutrality Act is the first step in regaining our freedom.

Private Command Structure versus Public

Most sensible people do recognize that having a command structure with authority for those at the top to make decisions is good for the overall functioning of any social unit. Even among chimpanzees there are dominance hierarchies, and this is something that would not exist in nature if it did not serve a function.

Military units need military discipline, and even seemingly unimportant details can help. Lawrence, who works with my chimpanzee Bow, was in the service, and he was talking to me the other day about how requiring new recruits to keep their uniform clean was not really about keeping the uniform clean, but about maintaining overall discipline. If recruits were disciplined for tiny, unimportant infractions, then they learned to obey every command by the time they were faced with actual combat.

People who join the service understand that they are giving up most of their civil liberties when they sign up. In many other organizations, people also give up the right to express themselves when they join, Many companies require employees not to speak or publish about certain topics that are considered sensitive to the business of the company. Women who had the right to vote in New Jersey in the 18th century lost that right when they got married. But they didn't have to marry, unless they were sure they trusted their husband to vote the way they thought was right.

Freedom does not mean the freedom to do anything at all at someone else's expense. Free men and women give up rights every day in order to receive certain benefits from other people, to whom they cede their rights. Speaking up for freedom does not necessarily imply that we are against command sturctures in social units. It does not mean that we don't understand the value of discipline.

As long as there is a choice whether to join or not, there is nothing unconstitutional or wrong in the curtailment of those rights set forth in the constitution and bill of rights by a unit of society. But what if a general rode into your American  town and imposed martial law on everyone, without asking permission? Could that ever be constitutional? And if it is unconstitutional, could it ever be necessary or useful?

That is the topic of today's article on Historia Obscura. It's not that military law is bad -- it just needs to stay in the military. Martial law is not for civilian populations. That was one of the basic beliefs that led to the American revolution.

Just as a parent may have the right to discipline his own child but not the neighbor's child, a military commander needs to understand that he can discipline those under him, but not everyone else. It's a very simple proposition.

When is Martial Law Justified? Who Can Impose it?

I am reading a book entitled Andrew Jackson and the Politics of Martial Law by Matthew  Warshauer. Of course, the first thing I do is turn to the index and look for Aaron Burr. The index lists just one mention, on page 21.

The turmoil in New Orleans was, of course, not the first time that conspiracies and plots presented a danger to the city. Aaron Burr's infamous attempt to separate the southern portion of the newly acquired Louisiana Territory in 1805-7 had prompted concerns. As a result of the warnings over Burr, Gen. James Wilkinson, who was also a longtime friend of his and a co-conspirator, attempted to suspend the writ of habeas corpus and proclaim martial law.

Channeling Theodosia, I am tempted to fling the open book across the room. But since I'm not Theodosia, and I love books of all sorts, I just put it gently down on the table, on top of a bunch of other books I am also reading. Outside, Bow is enjoying the crisp autumn day.

Why is it that so many historians still have swallowed whole the entire "Burr Conspiracy" story, which was concocted by James Wilkinson and embraced by Thomas Jefferson? Even if we know nothing at all about the history of the falling out between Jefferson and Burr, even if we don't realize that Burr was exonerated of the charge of planning to separate the western territories and only convicted for violating the Neutrality Act, which was because he was going to war with Spain as a private American citizen -- not unlike Sam Houston  in his day --  then surely the words in the paragraph quoted above themselves would put us on notice that something does not tally.

We are told that James Wilkinson was a friend and a co-conspirator of Burr's and that when he heard "warnings about Burr" he attempted to suspend the writ of habeas corpus and impose martial law. On whose behalf was he doing it? Not for Burr. He was arresting Burr and all his friends and depriving them of their right to a day in court. He was doing this for the sake of Thomas Jefferson and also for his Spanish employers. It is a well established fact that Wilkinson was in the employ of Spain, and that he betrayed Burr at the behest of his Spanish employers, who did not want Burr to succeed in conquering Mexico or liberating Texas. Yet if we read the paragraph not knowing this, we might have supposed that Wilkinson was imposing martial law to help Burr with his "conspiracy".

 Nevertheless, I calm down and pick the book back up, to see what I can learn about Wilkinson's attempt to impose martial law.

The result of  of Wilkinson's defiance of the writ of habeas corpus was the 1807 Supreme Court decision of  Ex Parte Bollman and Swartwout, which declared that only the legislature can suspend the writ. Prior to this decision, who exactly could suspend the writ of habeas corpus was in some question. 

This is all just preparation for the discussion later on in Warshauer's book of what happened when Andrew Jackson declared Martial Law in New Orleans before the Battle of New Orleans and kept it in effect even after a peace treaty was known to have been signed, officially ending the war, and all without getting congress to approve the suspension.

Is the imposition of Martial Law ever really done by voting about it? An essentially undemocratic action, is it ever democratically brought about? Is it ever left for the people or their representatives to decide on, or is it not something that by its nature is imposed by the executive branch, acting on its military prerogatives, constitutional or not? I will have to read the rest of the book to find out.

But before I start reading, I can't help but check the index for Jean Laffite. There is just one mention, pages 22-23.

Old Hickory ultimately solved the ... problem by invading the city [Barancas]  in November 1814 and driving the English from the area, but in the meantime they had arrived below New Orleans and approached the Baratarian pirate, Jean Laffite, to enlist his aid in capturing the city. Laffite had cleverly stalled the British and informed members of the Louisiana legislature of the enemy's plan. Yet the British infiltration in the area alarmed the general, and on December 15 he published an address to the citizens... '...The rules and articles of war annex the punishment of death to any person holding secret correspondence with the enemy.'

Warshauer notes that these rules were traditionally applicable to soldiers only, but Jackson was applying them to all the residents of New Orleans.

This book seems kinder to Jean Laffite than to Aaron Burr, even though the word "pirate" is used, but I will have to read it in its entirety to see how fairly it treats Andrew Jackson, and what we can learn about the roots of martial law and suspension of habeas corpus under which we live today. Where exactly do no-knock warrants or the siege of Mt. Carmel fit into the general scheme of our constitutional freedoms? What about the NDAA or the "sheltering at home" required in Boston after the Marathon bombing? If a general rode into your town today and declared that anyone not for him is against him and subject to the penalty of death for speaking with "the enemy", what recourse would you have against that?

I will post a full report on the book once I have had a chance to read and digest it.