USA > Louisiana > Louisiana : its history as a French colony. Third series of lectures > Part 24
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PRESENTMENT OF THE ATTORNEY-GENERAL. 327
they had rendered ? How came his authority to be thus recognized in the sanctuary of justice ? If Ulloa, in the opinion of the colonists, was not clothed with legitimate authority, how came they, during two years, to be daily invoking that authority, and plying him with constant applications for the grant of protection, of privileges and of favors, and for the redress of wrongs? And, after having thus acted, how can they be so graceless as to turn round, and contradict themselves, by saying that he never had any authority ? How is it that no vessel was
allowed to sail from France to Louisiana, unless she had a passport granted by the Spanish authorities residing in that kingdom ? Is it not clear, then, that Louisiana was a Spanish province in the eye of France ? And if so for France, how could it be otherwise for the colo- nists? All these facts, which I have enumerated, are proved beyond doubt or cavil. Do they not constitute possession ? And could they have come to pass, had there not been previous and effectual possession, to all intents and purposes ? This ground of defence is, there- fore, not tenable.
"As to the plea of the want of credentials, and of their not having been duly registered in the archives of the province, why did not the colonists raise that objection, at the threshold, and refuse entrance to Ulloa into their territory, unless he exhibited the authority under which he pretended to act ? But, after having so long dispensed with the production of these credentials, after having recognized him as the representative of the King of Spain, after having allowed him, during two years, to exercise all the powers that he did, can they be permit- ted to argue, from the circumstance of Ulloa's having refused to exhibit his credentials and to have them regis- tered, that they were not bound to obey him as the au- thorized ministerial embodiment of Spain in the colony,
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PRESENTMENT OF THE ATTORNEY-GENERAL.
and, therefore, that they did not and could not commit rebellion against our gracious sovereign ? If this plea could ever have been good, they have precluded them- selves from its use by their own acts, and it is now too late to present it to this court as a shield to rebellious traitors. These acts demonstrate that Ulloa had taken possession of the colony, and that the King of Spain was exercising therein all the powers of sovereignty, when the insurrection of 1768 took place."
" But admitting, for the sake of argument, that Ulloa never took possession of Louisiana, is it to be inferred from this fact, that the province remained French ? Certainly not. The treaty of cession made it a Spanish domain, from the moment it was signed and approved by all the parties. The proof of it is to be found in the French king's letter to D'Abbadie, in which this officer was informed, that it was his Majesty's intention to abdi- cate all his rights in and to the colony, from the very moment of the cession. Another proof is, that, in this very same document, his most Christian Majesty desig- nates the colonists of Louisiana as the new subjects of his Catholic Majesty ; and a third proof is, that France gave effectual information to her officers in the colony, that, from the day of Ulloa's arrival at New Orleans, she would cease to be responsible for the expenses of the colonial administration. Clearly, then, the colony was no longer French. What was it, what could it be, if not Spanish? It is indeed ludicrous to maintain the contrary."
"But, say the accused: we had not taken the oath of allegiance to the King of Spain, and, therefore, we can- not be guilty of the crime of rebellion and high treason against him. This is the weakest kind of sophistry, and its refutation is easy. If the accused were not the sub- jects of his Catholic Majesty, they were, at least, resi-
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329
. PRESENTMENT OF THE ATTORNEY-GENERAL.
dents in his domain; and it is a legal doctrine, well set- tled, long ago, that those who are domiciliated in a foreign country, or who are mere travellers therein, although they are aliens and the subjects of another power, and have not taken the oath of allegiance to the sovereign of the country, in which they happen to be, are bound, during their residence in it, either perpetual or temporary, to be true and obedient to that sovereign, in return for the protection and security which is ex- tended over them ; and that they may be as much guilty of rebellion and high treason against him as his natural born subjects. It has even been determined that foreign ambassadors were obliged to abstain from doing any- thing derogatory to the respect due to the sovereign in whose court they were sent to reside, and could be dis- missed for any act done in violation of his rights, of his royal dignity and of the laws of his kingdom ; and, if cer- tain immunities on that ground have been granted to them, it is a matter of national courtesy and not of right, and should ambassadors proceed to any overt acts of violence against the sovereign, they would be liable to be punished according to the laws of the land."
" My preceding observations are sufficient to remove all the doubts which may have been raised by the alle- gations of the accused: that Ulloa had not taken pos- session of the colony, at the time when the crimes with which they are charged were alleged to have been com- mitted; that they had not sworn fealty to the King of Spain ; and that they had remained bound by their oath to the King of France, until they were absolved from it by the solemn ceremony which took place, shortly after General O'Reilly's arrival."
"The true statement of the case may be summed up in a very few words. After the treaty of cession, Lou- isiana had, for more than two years, been a Spanish pro-
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330
PRESENTMENT OF THE ATTORNEY-GENERAL.
vince in the eyes of the world, and the colonists them- selves, during all that time, had quietly submitted to the Spanish rule, when some factious, perverse and ambi- tious individuals, not satisfied with Ulloa's administra- tion, and regretting the loss of their former importance, seduced the rest of the people under false pretexts and by circulating the most infamous calumnies, and availed themselves of the irritation produced by a commercial decree unpalatable to the merchants of New-Orleans, to bring on the insurrection of the 29th of October 1768, under the delusive hope that they would thus disgust Spain with the new acquisition which had been tendered to her, and force France to take them back unto her bosom, in order to prevent their throwing themselves into the arms of England. The laws applicable to these criminal acts have been quoted and commented upon ; the facts of the case are so authentically proved, the defence of the accused is so futile, and the laws, whose majesty is to be vindicated, speak a language so posi- tive, so commanding and so clear, that what remains for me to do, is only to require, in the King's name, the judgment of the Court."
Don Felix del Rey took no notice of that part of the defence which rested on the ground, that the French laws having never been repealed, and the Spanish laws having never been put in force, the accused were to be tried and · judged according to the principles, forms and usages of French jurisprudence, and by those French authorities and tribunals that were competent to take cogitizance of their pretended offences, at the time they were alleged to have been committed. It was thought, no doubt, that the King had finally predecided this point, by sending a tribunal, ready formed, from Spain, with all the neces- sary instructions and powers, to try the authors of the insurrection of 1768. It was not for the members of
331
REMARKS ON THE PLEA OF THE ACCUSED.
this tribunal to set aside those instructions, on the ground of their illegality, and to question the authority with which, for a special purpose, they had been clothed by the sovereign, and to listen to arguments against their jurisdiction. This was a matter for the consideration of him from whom their powers originated. But, if Don Felix del Rey had not considered it useless to enter into the discussion of this plea, set up by the accused, he might have answered : That a distinction must be made between the civil and political laws, those which regulate the relations of citizens among themselves, and those which are established for the protection and security of the State. When a territory is acquired by a nation, the civil laws which existed there at the time, must undoubtedly continue in vigor, until they are abro- gated, or modified by the new sovereign. But with regard to the political and fundamental laws, as they are inherent to the sovereignty, they follow, ipso facto, its extension wherever it is carried, and are in force, at the very moment when that sovereignty is established. Thus, when in 1803, Gov. Claiborne took possession of Louisiana in the name of the United States of America, the civil laws of that province were not altered by this fact. But suppose the inhabitants of the country, as they did in 1768, had taken up arms, and violently resisted and expelled Governor Claiborne. This would have constituted the crime of rebellion or high treason against the United States. Would the trials, which would have been the inevitable consequences of such deeds of violence, have been conducted according to the forms, rules, customs and laws of France, or Spain, or in conformity with the laws of the United States, as applicable to such cases ? Clearly, in accordance with the last, which, almost as a component part of the flag of the United States, would have followed it into the .
332
QUOTATION FROM VATTEL.
province, and have been in force by the mere fact of possession, without requiring any special promulgation ; and all outrages, such as acts of rebellion or high trea- . son, against the collective sovereignty of the United States, would have been repressed, tried and punished according to the laws of these States, and by the tribunals of their own creation, and not according to the laws and by the tribunals established for the pro- tection of the sovereignties of Spain and France. This distinction between civil and political laws is essentially required by their very nature. Thus it seems that the plea set up by the accused in 1769, and on which I do not think it out of place to venture these few remarks, although Don Felix del Rey deemed it unworthy of notice, did not, in reality, rest on any solid foundation.
Be it as it may, it is certain that, if the colonists, instead of having accepted for two years the Spanish domination, had resisted it in the beginning, on the ground that they were no herd of cattle, and could not be transferred away without their consent, they would have presented a more plausible justification, by relying on the following passage of Vattel's law of nations .*
" If the nation has conferred the full sovereignty to its conductor, if it has intrusted to him the care, and, with- out reserve, given him the right, of treating and con- tracting with other States, it is considered as having invested him with all the powers necessary to make a valid contract. The prince is then the organ of the nation ; what he does is considered as the act of the nation itself; and though he is not the owner of the public property, his alienations of it are valid, as being duly authorized."
* Vattel's Laws of Nations, Chap. xxi. Of the alienation of the public pro- perty, or the domain, and that of a part of a State.
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333
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QUOTATION FROM VATTEL.
"The question becomes more distinct, when it re- lates, not to the alienation of some parts of the public property, but to the dismemberment of the nation or State itself-the cession of a town or a province that constitutes a part of it. This question, however, admits of a sound decision on the same principles. A nation ought to preserve itself-it ought to preserve all its members-it cannot abandon them; and it is under an engagement to support them in their rank as members of the nation. It has not, then, a right to traffic with their rank and liberty, on account of any advantages it may expect to derive from such a negotiation. They have joined the society for the purpose of being mem- bers of it-they submit to the authority of the State, for the purpose of promoting in concert their common wel fare and safety, and not of being at its disposal, like a farm or a herd of cattle. But the nation may lawfully abandon them in a case of extreme necessity; and she has the right to cut them off from the body, if the pub- lic safety requires it. When, therefore, in such a case, the State gives up a town or a province to a neighbour, or to a powerful enemy, the cession ought to remain valid as to the State, since she has a right to make it ; nor can she any longer lay claim to the town or province thus alienated, since she has relinquished every right she could have over them."
" But the province or town thus abandoned and dis- membered from the State, is not obliged to receive the new master whom the State attempts to set over it. Being separated from the society of which it was a member, it resumes all its original rights ; and if it be capable of defending its liberty against the prince who would subject it to his authority, it may lawfully resist him. Francis I. having engaged, by the treaty of Madrid, to cede the Duchy of Burgundy to the emperor Charles
334
THE JUDGMENT.
V., the states of that province declared, 'That, having never been subject but to the crown of France, they would die subject to it ; and that, if the King abandoned them, they would take up arms and endeavor to set themselves at liberty, rather than pass into a new state of subjection.' It is true, subjects are seldom able to make resistance on such occasions ; and, in general, their wisest plan will be to submit to their new master, and endeavor to obtain the best terms they can."
This, indeed, would have been the wisest course which the colonists, weak as they were, could have pursued, and it is much to be regretted that they did not do so. Blood would not have been uselessly shed, in an enter- prise in which success was materially impossible.
On the 24th of October, the Court found the prison- ers guilty, and O'Reilly, as its president, pronounced and signed the judgment, which read thus :
"In the criminal trial instituted by the order of the King, our Sovereign, to discover and punish the chiefs and authors of the conspiracy which broke out in this colony, on the 29th of October of the last year, (1768,) against its Governor Don Antonio de Ulloa, all the grounds of the accusation having been substantially in- vestigated, according to the due forms of law, between the parties,-on one side, the Licentiate Don Felix del Rey, a practising advocate before the royal courts of St. Domingo and Mexico, here acting in his capacity of Attorney General appointed by me for the King, accord- ing to the royal authority vested in me,-and on the other, Nicholas Chauvin de Lafrenière, ex-Attorney General for the King of France, and the senior member of the Superior Council, Jean Baptiste Noyan, his son- in-law, Pierre Caresse, Pierre Marquis, Joseph Milhet, an attorney to the memory of Joseph Villeré, on account of this culprit's demise in prison, Joseph Petit, Balthasar
335
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THE JUDGMENT.
Masan, Julien Jerome Doucet, Pierre Hardy de Bois- blanc, Jean Milhet and Pierre Poupet, accused of hav- ing participated in the aforesaid crime and in the subse- quent seditions which broke out against the Spanish government and nation ; having perused the information, depositions and other documents inserted in the procès verbal of this case ; having compared the confessions of the accused with the papers found in the possession of some of them, and by them acknowledged as theirs ; the accused being heard in their defence, and the charges brought against them being accompanied with their re- spective proofs ; having heard the conclusions of the Attorney-General in his bill of indictment; all being examined and considered, either in point of fact or of law, in a case replete with circumstances so grave and so extraordinary ; and taking into consideration all that results from said trial, to which I refer, I have to declare and I declare, that the aforesaid Attorney General has completely proved what he had to prove, and that the accused have not proved and established the allegations set up in their defence ; that they have made out no ex- ception which frees them from the crime imputed to them, and still less saves them from the penalties which, according to our laws, they have incurred for their re- spective shares in the excesses which have been enume- rated by the Attorney General Don Felix del Rey ; so that, from the present, I have to condemn and I do con- demn the aforesaid Nicolas Chauvin de Lafrenière, Jean Baptiste Noyan, Pierre Caresse, Pierre Marquis and Joseph Milhet, as being the chiefs and principal movers of the aforesaid conspiracy, to the ordinary pain of the gallows, which they have deserved by the infamy of their conduct, and ipso jure, by their participation in so horrible a crime, and to be led to the place of execu- tion, mounted on asses, and each one with a rope round
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336
THE JUDGMENT.
his neck, to be then and there hung until death ensue, and to remain suspended to the gallows until further orders ; it being hereby given to be understood that any one having the temerity of carrying away their bodies without leave, or of contravening, in whole or in part, the execution of this very same sentence, shall suffer death. And, as it results also from said trial, and from the declarations of the aforesaid Attorney General, that the late Joseph Villere stands convicted, likewise, of having been one of the most obstinate promoters of the aforesaid conspiracy, I condemn, in the same manner, his memory to be held and reputed for ever infamous ; and, doing equal justice to the other accused, after hav- ing taken into consideration the enormity of their crime, as proved by the trial, I condemn the aforesaid Petit to perpetual imprisonment in such a castle or fortress as it may please his Majesty to designate ; the aforesaid Bal- thasar Masan and Julien Jerome Doucet, to ten years' imprisonment ; and Pierre Hardy de Boisblanc, Jean Milhet and Pierre Poupet to six years' imprisonment ; with the understanding that none of them shall ever be permitted to live in any one of the dominions of his Ca- tholic Majesty, reserving to myself the care to have every one of these sentences provisionally executed, and to cause to be gathered up together and burnt by the hand of the common hangman, all the printed copies of the document entitled ' Memorial of the planters, mer- chants, and other inhabitants of Louisiana on the event of the 29th of October, 1768,' and that all other publi- cations relative to said conspiracy be dealt with in the same manner ; and I have further to decree, and I do decree, in conformity with the same laws, that the pro- perty of every one of the accused be confiscated to the profit of the King's treasury ; and judging definitively, I pronounce this judgment, with the advice of Doctor
337
APPEALS TO O'REILLY.
Don Manuel Jose de Urrutia, Auditor of war and of the navy, for the harbor and city of Havana, and the special assessor named by me, for this cause, under the royal authority ; and his fees, as well as those of the officers employed in this trial, shall be paid out of the confiscated property, in the manner prescribed by law."
Signed, Countersigned,
ALEXANDER O'REILLY. MANUEL JOSE DE URRUTIA. .
When this sentence was known, the effects which it produced can easily be conceived. The most strenuous efforts were made, to obtain from O'Reilly that its exe- cution be suspended until an appeal be made to the royal clemency of Charles III. With the same gentleness of manner which characterized all his acts, but with the marked expression of unshakable determination, he re- plied : "That the Court had given its decision, and that it was final ; that he had merely presided over the Court, but that, according to his plighted faith and well-known assurances, he had acted no other part in the trial than that of taking care that the accused be as favorably treated as possible ; that he had strictly and honorably kept his word ; that he could do no more ; that he had instructions which he could not disregard, and which he had communicated to Aubry, to the accused and to their friends; that those instructions ordered him to proceed to an immediate execution of the sentence of the Court, whatever it might be, and that he would do so, in con- formity with his duty, however painful it might be to his feelings." Some of those French ladies whose husbands, fathers or brothers had remained faithful to the Spanish cause, thought that, owing to this circumstance, they might, perhaps, exercise some influence over General O'Reilly ; and, finding their way to him, they made a pas- sionate appeal in favor of the condemned-such an ap-
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338
HIS INFLEXIBILITY.
peal as the female heart alone can inspire. There were more than one Lady Margaret and one Miss Edith Bel- lenden, who, with frames trembling with anxiety, poured out their souls in supplications to O'Reilly. Like Graham of Claverhouse, whose character bore consider- able affinity to his own, he resisted their intercessions with the most exquisite politeness, but with an inexora- ble temper, although he was, at that time, hardly more than thirty-four years old, therefore in the prime of life, and still at that age when the soul of man is not yet to be supposed steeled against the tears of woman and the soft emotions of pity and generosity. It is said that some of the Spanish officers, and particularly Loyola, Gayarre and Navarro, acting under the influence of their own feelings, and the promptings of those friends, whom, during a residence of nearly three years in the colony, they had made to themselves among the French population, advised O'Reilly to assume the responsibility of suspending the execution of the Court's judgment, until further orders be received from Spain ; but all their applications remained fruitless, and it was soon ascer- tained that the doom of the accused was sealed. The sentence had been rendered on the 24th of October, and it became known that those who were condemned to death, would be executed on the next day.
If tradition is to be believed, O'Reilly, although in- flexible in appearance, was secretly moved to compas- sion in favor of Noyan, the son-in-law of Lafreniere. This gentleman had lately been married, and his youth, his inexperience and other circumstances, pleaded as strongly in his favor as the numerous friends who left no means untried to save him. Certain words which dropped from the General's mouth gave it to be under- stood that the escape of this prisoner would be connived at. But Noyan, on being informed of it, heroically re-
339
1
THE NEGRO JEANNOT.
fused to avail himself of this favorable circumstance, and said that he would live or die with his associates.
Dumont, who wrote a work on Louisiana in 1753, relates that, when the Province was under the adminis- tration of the great India Company, it was found out that, in a civilized government, it was necessary that the office of hangman be regularly and permanently filled up ; and that this office was tendered, with all its privileges and perquisites, to a slave of the company, named Jean- not. The grant of his freedom was to be the reward of his acceptance. But Jeannot was a high-spirited black, and peremptorily refused the favor. Yet, when he saw that the French were determined to force him to act in that capacity, he appeared to consent at last, and only begged that he might be permitted to go to his cot. There, seizing a hatchet, he struck off his right arm ; then returning to the place where he was waited for to act as hangman, he showed to the assembled multitude the impossibility in which he was, to perform the func- tions assigned to him. The French were struck with admiration, and Jeannot was appointed overseer of all the negroes belonging to the company. Since that time a negro had always acted as hangman in the colony.
But it was thought that it would be too great an outrage against the feelings of the community, and, at the same time, a very impolitic act, considering the peculiar elements of the population of Louisiana, to have some of its most distinguished citizens hung by a negro. It was therefore necessary to find out a white man, who might be willing to discharge these functions. None, however, although a high reward was offered, presented himself to claim it. Consequently, the Attorney General, Don Felix del Rey, laid before O'Reilly, on the morn- ing of the 25th, a petition in which he informed him of this fact, and begged him, on account of the impossibility
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