USA > Louisiana > The history of Louisiana : from the earliest period, Volume II > Part 26
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A report, which now was afloat, that those who sur- rounded Jackson were labouring to induce him to arrest some individuals, alluded to in the general orders of the 28th of February, roused his indignation, to which (perhaps more honestly than prudently ) he gave vent in a publication, of which the following is a translation, in the Courier de la Louisiane of the 3d of March.
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"Mr. Editor-To remain silent on the last general orders, directing all the Frenchmen, who now reside in New Orleans, to leave it within three days, and to keep at a distance of 120 miles from it, would be an act of cow- ardice, which ought not to be expected from a citizen of a free country-and when every one laments such an abuse of authority, the press ought to denounce it to the people."
" In order to encourage a communication between both countries, the 7th and 8th articles of the treaty of cession secure, to the French who shall come to Louis- iana, certain commercial advantages, which they are to enjoy, during a term of twelve years, which are not yet expired. At the expiration of that time, they shall be treated in the same manner as the most favored nation. A peace which nothing is likely to disturb, uniting both nations, the French have until this moment been treated in the United States with that regard which a great people deserves and requires, even in its reverses, and with that good will, which so eminently distinguishes the Ameri- can Government in its relations with foreign nations. In such circumstances, what can be the motives which have induced the commander in chief of the 7th dis- trict, to issue general orders of so vexatious a nature? When the foreigners of every nation-when the Spani- ards, and even the English, are permitted to remain un- molested among us, shall the French alone be condemn- ed to ostracism; because they rendered too great services ? Had they remained idle spectators of the last events, could their sentiments towards us be doubted, then we might merely be surprised at the course now followed with regard to them. But now, are we to restrain our indignation, when we remember that these very Frenchmen, who are now exiled, have so powerfully contributed to the preservation of Louisiana? Without
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speaking of the corps, who so eminently distinguished themselves, and in which we see a number of French- men rank either as officers or privates; how can we for- get, that they were French artillerists, who directed and served a part of those pieces of cannon, which so greatly annoyed the British forces ? Can any one flatter himself that such important services could have sosoon been for- gotten ? No, they are engraved in everlasting charac- ters on the hearts of all the inhabitants of Louisiana, and they shall form a brilliant part in the history of their country; and when those brave men ask no other reward, but being permitted peaceably to enjoy among us the rights secured to them by treaties and the laws of Ameri- ca, far from sharing in the sentiments which have dictat- ed the general order, we avail ourselves of this oppor- tunity to give them a public testimony of our gratitude.
"Far from us be the idea, that there is a single French- man so pusillanirnous as to forsake his country merely to please the 'military commander of this district, and in order to avoid the proscription to which he has chosen to condemn them; we may, therefore, expect to see them repair to the consul of their nation, there to renew the act which binds them to their country-but suppos- ing that, yielding to a sentiment of fear, they should con- sent to cease to be French citizens, would they, by such an abjuration, become American citizens ? No, cer- tainly they would not : the man who would be power- ful enough to denationalize them, would not be power- ful enough to give them a country. It is better, there- fore, for a man to remain a faithful Frenchman, than to suffer himself to be scared even by the martial law, a law useless, when the presence of the foe and honor call us to arms, but which becomes degrading, when their shame- ful flight suffers us to enjoy a glorious rest, which fear and terror ought not to disturb.
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1 " But could it be possible, that the constitution and laws of our country should have left it in the power of the several commanders of military districts, to dissolve all at once, the ties of friendship, which unite America to the nations of Europe ? Would it be possible, that peace or war could depend upon their caprice, and the friend- ship or enmity they might entertain for any nation. We do not hesitate in declaring, that nothing of the kind ex- ists. The President alone has, by law, the right to adopt against alien enemies such measures as a state of war may render necessary, and for that purpose he must issue a proclamation; but this is a power he cannot dele- gate. It is by virtue of that law, and a proclamation, that the subjects of Great Britain were removed from our sea ports and sea shores. We do not know any law, authorizing general Jackson to apply to alien friends a measure which the President of the United States, him- self, has only the right to adopt against alien enemies.
"Our laws protect strangers, who come to settle or re- side among us. To the sovereign alone belongs the right of depriving them of that protection ; and all those who kuow how to appreciate the title of an American citizen, and who are acquainted with their perogatives, will easily understand, that, by the sovereign, I do, by no means, intend to designate a Major-General, or any other military commander, to whom I willingly grant the power of issuing general orders like the one in question, but to whom I deny that of having them executed.
"If the last general order has no object but to inspire us with a salutary fear ; if it is only destined to be read ; if it is not to be followed by any act of violence ; if it is only to be obeyed by those who may chuse to leave the city, in order to enjoy the pure air of the country, wc shall forget that extraordinary order ; but should any thing else happen, we are of opinion that the tribunals
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will sooner or later, do justice to the victims of that illegal order.
"Every alien friend, who shall continue to respect the laws which rule our country, shall continue to be en- titled to their protection. Could that general order be applied to us, we should calmly wait until we were forced by violence to execute it, well convinced of the firmness of the magistrates, who are the organs of the laws in this part of the union, and the guardians of public order.
"Let us conclude by saying, that it is high time the laws should resume their empire; that the citizens of this State should return to the full enjoyment of their rights ; that in acknowledging, that we are indebted to general Jackson for the preservation of our city, and the defeat of the British, we do not feel much inclined, through gratitude, to sacrifice any of our privileges, and less than any other, that of expressing our opinion about the acts of his administration ; that it is time the citizens accused of any crime should be rendered to their natural, judges, and cease to be dealt with before special or mili- tary tribunals, a kind of institutions, held in abhorrence even in absolute governments; and that having done enough for glory, the moment of moderation has arriv- ed; and finally, that the acts of authority which the in- vasion of our country, and our safety may have render- ed necessary, are, since the evacuation of it by the enemy, no longer compatible with our dignity and our oath of making the constitution respected."
Man bears nothing with more impatience, than the exposure of his errors, and the contempt of his authority. Those who had provoked Jackson's violent measure against the French subjects, availed themselves of the paroxysms of the ire which the publication excited: they threw fuel into the fire, and blew it into a flame. They persuaded him Louallier had been guilty of an
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offence, punishable with death, and he should have him tried by a court martial, as a spy. Yielding to this sug- gestion, and preparatory to such a trial, he ordered the publication of the second section of the rules and articles of war, which denounces the punishment of death * against spies, and directed Louallier to be arrested and confined. Eaton is mistaken when he asserts that the section had been published before. "The adjutant's let- ter to Leclerc, the printer of the Ami des Lois, request- ing him to publish it, bears date of the fourth of March, the day after Louallier's publication made its appearance. The section was followed by a notice that "the city of New-Orleans and its environs, being under martial law, and several encampments and fortifications within its limits, it was deemed necessary to give publicity to the section, for the information of all concerned."
Great, indeed, must have been Jackson's excitement, when he suffered himself to be persuaded, that Louallier could successfully be prosecuted, as a spy. Eaton informs us, Louallier was prosecuted as one owing allegiance to the United States. The very circumstance of his ow- ing that allegiance, prevented his being liable to a prose- cution, as a spy. He was a citizen of the United States: his being a member of the legislature, was evidence of this. If he, therefore, committed any act, which would constitute an alien a spy, he was guilty of high treason, and ought to have been delivered to the legitimate ma- gistrate, to be prosecuted as a traitor.
The second section of the act of congress, for esta- blishing rules and articles of war, is in the following words :
"Sec. 2. In time of war, all persons, not citizens of, or owing allegiance to the United States, who shall be found, lurking as spies, in orabout the fortifications or encampments of the armies of the United States, or any of them, shall suffer death, according to the laws and . VOL. II. 50
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usages of nations, by sentence of a general court mar- tial."'
It is certain the article applies only to aliens; persons who are not citizens of the United States, nor owing temporal allegiance to them. A spy gives aid to the enemy: and he, who owing allegiance (perpetual or tem- poral) to the United States, adheres to their enemies; giving them aid or comfort, is not a spy, but a traitor.
This distinction has been recognised by the depart- ment of war of the United States. In the beginning of the last war, a natural born citizen of the United States, who before the declaration of war had removed his domi- cil into Canada, was found lurking about as a spy, near a fortification of the United States, arrested, tried and convicted by a general court martial, and condemned to death, as a spy. The President disapproved of the sentence, on the ground that as the culprit was a citizen of the United States, and owed allegiance to them, he could not be a spy; he was accordingly, by order of the secretary of war, surrendered to the legitimate magis- trate, to be dealt with according to law.
Louallier was arrested on Sunday, the fifth day of March, at noon, near the Exchange Coffee-house. He immediately desired Morel, a gentleman of the bar, who was near him, to adopt legal means for his relief.
Application was made to one of the members of the supreme court, Martin, who being prevented by the imperfection of his sight to be otherwise useful, had enrolled himself in one of the companies of veterans, organised for the maintenance of order in the city. That court had determined in the preceding year, in the case of a British subject, arrested by the marshal for the pur- pose of being sent into the interior, that its jurisdiction being appellate only, it could not issue the writ of habeas corpus. Morel was, therefore, informed that the judge did not conceive he could interfere; especially as it was
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alleged the prisoner was arrested and confined for trial, before a court martial, under the authority of the United States.
Morel, having consulted other gentlemen of the pro- fession, applied to Hall, the district judge of the United States for a writ of prohibition, to stay proceedings against his client, in the court martial. Hall expressed a doubt of his authority to order such a writ at chambers, and said he would take some time to deliberate. Morel withdrew, but soon after returned with a petition for a writ of habeas corpus, on which the judge gave his fiat, after having received Morel's promise, that he would inform the general of his application for the writ, and the order made for issuing it.
On receiving Morel's communication, the ebullition of Jackson's anger was such, that reason appeared to have lost its control. Those who had suggested the harsh measure against the French citizens, and the still more harsh one against Louallier, imagined the moment was come, when their enmity towards Hall might be gratified. We have seen that a number of individuals, who had hitherto sustained a fair character, were now known as accomplices of the Barrataria pirates. Prose- cutions had been commenced against some of them, and Hall manifested that stern severity of character, which appals guilt. The counsel of these men had con- ceived the idea that he did not view their efforts to screen their clients, with the liberality and indulgence they de- served. The opportunity now offered of humbling this worthy magistrate, was not suffered to remain unim- proved; and Jackson was assured that Hall, like Loual- lier, was guilty of an offence punishable with death.
The general's attention was drawn to the seventh sec- tion of the rules and articles of war, which denounces the last punishment against persons aiding or abetting mutiny; and he was pressed to prosccute the judge be-
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fore a court martial. As a preparatory step, with that promptitude of decision, which Eaton says is a leading trait in his character, he signed an instrument at once, the warrant for the arrest, and the mittimus for the impri- sonment of Hall. He wrote to colonel Arbuckle, who commanded at the barracks, that having received proof that Dominic A. Hall had been aiding, abetting, and exciting mutiny in his camp, he desired that a detach- ment might be ordered forthwith, to arrest and confine him; and that a report might be made as soon as he was arrested. "You will," as it is said in the conclusion of this paper, "be vigilant; as the agents of our enemy are more numerous than we expected. You will be guard- ed against escapes."
The prosecution of the judge was intended to be grounded on the seventh section of the articles of war, which is in these words :- "Any officer or soldier, who shall begin, cause, excite or join in, any mutiny or se- dition, in any troop or company, in the service of the United States, or in any post, detachment or guard, shall suffer death, or any other punishment, as by a court martial shall be inflicted."
Hall was not an officer, in the sense of the act of con- gress-he was not a soldier, in the ordinary meaning of that word; but, according to the jurisprudence of head quarters, the proclamation of martial law had transform- cd every inhabitant of New Orleans into a soldier, and rendered him punishable under the articles of war.
The judge was accordingly arrested in his own house, at nine o'clock, and confined in the same apartment with Louallier, in the barracks.
As soon as this was reported at head quarters, major Chotard was despatched to demand from Claiborne, the clerk of the district court of the United States, the sur- render of Louallier's petition, on the back of which Hall had written the order for issuing the writ of habeas
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corpus. It has been seen that there was not any officer of the State government, nor of the United tsates, out of the army, who imagined that a proclamation of mar- tial law gave the general any right, nor imposed on others any obligation, which did not exist before. The clerk accordingly answered that there was a rule of court, which forbade him to part with any original paper lodged in his office; and he was ignorant of any right, in the commander of the army, to interfere with the records of the court. He however was, after much solicitation, prevailed on to take the document in his pocket, and accompany Chotard to head quarters.
In the meanwhile, an express from the department of war had arrived, with the intelligence that the President of the United States had ratified the treaty, and an ex- "change of the ratifications had taken place at Washing- ton, on the 17th of February, the preceding month. By an accident, which was not accounted for, a packet had been put into the hands of the messenger, instead of the one containing the official information of the exchange of the ratifications. But the man was bearer of an open order of the Postmaster, to all his deputies on the road, to expedite him with the utmost celerity, as he carried information of the recent peace. He declared he had handed an official notice of this event to the governor of the state of Tennessee.
On the arrival of the clerk at head quarters, Jackson asked him whether it was his intention to issue the writ: he replied it was his bounden duty to do so, and he most assuredly would. He was threatened with an arrest, but persisted in his asseveration that he would obey the judge's order. He had handed Louallier's petition to Jackson, and, before he retired, demanded the return of it; this was peremptorily refused, and the paper was withheld. It appears the date of the fifth of March had been originally on this document, and that being Sun-
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day, Hall had changed it to that of the following day, the sixth. The idea had been cherished, that this alter- ation might support an additional article, in the charges against Hall. It is not extraordinary, that those who imagined that, as Louallier might be tried for a libel, in a court martial, Hall might for forgery. Thus one in- consistency almost universally leads to another.
Duplessis, the marshal of the United States, had vo- lunteered his services, as an aid to Jackson; a little after midnight he visited head quarters. The imprisonment of Hall, and the accounts from Washington, had brought a great concourse of people near the general; who, clated by the success of the evening, met the marshal at the door, and announced to him, he had shopped the judge. Perceiving that Duplessis did not show his exultation, he inquired whether he would serve Hall's® writ. The marshal replied, he had ever done his duty, which obliged him to execute all writs directed to him by the court, whose ministerial officer he was; and, looking sternly the person who addressed him, added, he would execute the court's writ, on any man. A copy of the proclamation of martial law, that lay on the table, was pointed to him, and Jackson said, he also would do his duty.
A large concourse of people had been drawn to the Exchange coffee-house, during the night, by the passing events, which were not there, as at head quarters, a sub- ject of exultation and gratulation. The circumstances were not unlike those of the year 1806, which Living- ston describes as "so new in the history of our coun- try, that they will not easily gain belief, at a distance, and can scarcely be realized by those who beheld them. A dictatorial power, assumed by the commander of the American army-the military arrest of citizens, charged with a civil offence-the violation of the sanctuary of justice. An attempt to overawe, by denunciations,
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those who dared, professionally, to assert the authority of the laws-the unblushing avowal of the employment of military force, to punish a civil offence, and the hardy menace of persevering in the same course, were circum- stances that must command attention, and excite the corresponding sentiments of grief, indignation and con- tempt."
There were some who recommended, that application should be made to Claiborne, to put himself at the head of the militia of the state, and to Duplessis, to call out the posse comitatus of the district, to support the autho- rity of the judiciary; but the sentiment of those pre- vailed, who, harangued the people in the strains of Livingston's address to his fellow-citizens, about eight years before. "We must suffer the evils to which we are exposed. Let us, however, do it with fortitude, and never be tempted to any act, which may enlist us, on the side of those, who trample on our constitution, sport with our liberties, and violate our laws. Let us remem- ber, that the day of retribution will arrive, and is not far distant, when a strict account will be taken, as well of the wanton abuses, as of the shameful dereliction which permits them. But, let us strive by our zeal in the support of our country, by our submission to law- ful authority, by our opposition to every foreign or domestic foe, that there is no pretext for the dictatorial power that is assumed over us."
"I have said that we must suffer. Never were two words more applicable to our situation: it is one the most dreadful to an independent mind, of any that can be imagined-subject to the uncontrolled will of a sin- gle man, to whom the hearsay tales of slander are proofs; and who, on his own evidence, arraigns, condemns and punishes, the accused; dooms him to imprisonment, by whom the tribunals are insulted, What state of things can be worse? No caution can protect ! no conscious-
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ness of innocence secure. The evidence is taken in private: malicious, cowardly informers, skulk around the proconsul's office. Their tales give food to pre- existing enmity, and avenge their own quarrels by secret denunciations of guilt. The objects of official suspicion are confined."
Repose having restored calmness to Jackson's mind, and the intelligence of peace depriving his measures of the only ground on which they could be justified-necessi- ty-he acted on the suggestions of his own reflections, and considering the British as no longer the enemies of his country, he determined on an attempt to anticipate, as much as in him lay, the blessings of returning peace. With this object in view, one of his first acts on the sixth, was a communication to Lambert, which Latour has preserved. It is in the following words: "I have just received intelligence from Washington, which leaves little doubt, in my mind, that the treaty, signed at - Ghent, between the United States and Great Britain, has been ratified by the president of the senate of the United States. But, by some unaccountable accident, a despatch, on another subject, has been substituted for the one intended to give me official notice of this event. The one I have received, is accompanied by an order from the postmaster general, desiring his deputies to for- ward the express, carrying intelligence of the recent peace. Of this order I enclose a copy. From other circumstances, to which I give credit, I learn that the same express brought official notice of the ratification of the treaty, to the governor of Tennessee. I have deem- ed it my duty, to communicate the exact state of these circumstances, without loss of time, that you might determine whether they would not justify you, in agree- ing to a cessation of hostilities, to anticipate the happy return of peace between our two nations, which the first direct intelligence must bring to us, in an official form."
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Jackson now paused to deliberate, whether these cir- cumstances did not require him, by a cessation of all measures of violence, to allow his fellow-citizens in New Orleans, to anticipate this happy return of peace, the account of which, the first direct intelligence, was to bring to him, in an official form-the untoward arrival of an orderly sergeant, with a message from Arbuckle, to whom the custody of Hall had been committed, pre- vented Jackson coming to that conclusion, which his unprejudiced judgment would have suggested. The · prisoner had requested, that a magistrate might be per- mitted to have access to him, to receive an affidavit, which he wished to make, in order to resort to legal measures, for his release. Arbuckle desired to know the general's pleasure, on this application. Naturally im- patient of any thing like control or restraint, the idea of a superior power to be employed against his decisions, threw Jackson into emotions of rage. Before they had sufficiently subsided to allow him to act on the message, some of his ordinary advisers came in, to recommend the arrest of Hollander, a merchant of some note. What was the offence of this man, has never been known; but Jackson's temper of mind was favorable to the views of his visitors. He ordered the arrest of the merchant, and forbade the access of the magistrate to Hall; the idea of allowing his fellow citizens to anticipate the happy return of peace, was abandoned, and measures were di- rected to be taken for the trial of Louallier.
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