USA > Louisiana > The history of Louisiana : from the earliest period, Volume II > Part 27
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Seven distinct charges were exhibited, against the prisoner.
1. Mutiny. The specification, on this head, was that he did write, and cause to be published, the piece in the Courier de la Louisiane, of the 3d of March, 1815.
2. Exciting mutiny. The specification was the same as the preceding.
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3. General misconduct, The specification was as be- fore.
4. Being a spy. The specification was, that the pri- soner was found lurking about the fortifications and encampment of the army of the United States, in New Orleans, being much disaffected, and writing, and caus- ing to be published, as before.
5. Illegal and improper conduct, and disobedience to, orders.
Specification Ist. Violating the fifty-sixth article of the rules and articles of war, viz: "Whoever shall relieve the enemy with money, victuals, or ammunition, or shall knowingly harbour or protect an cnemy, shall suf- fer death, or such other punishment, as shall be ordered by the sentence of a court martial." This specification concluded with an averment, that the prisoner did write and cause to be published, &c. as before.
Specification 2d. Violating the 57th article, viz :- " Whosoever shall be convicted of corresponding with, or giving intelligence to, the enemy, either directly or in- directly, shall suffer death, or such other punishment as shall be ordered by the sentence of the court martial." The averment on this specification, was the same as the preceding.
6. Writing a wilful and corrupt libel.
7. Unsoldierlike conduct, and contrary to the procla- mation of martial law. The specification was, that the pri- soner did write, and cause to be published, the piece, &c.
The supreme court of the state being in session, ap- plication was made to it, for a writ of habeas corpus, in favour of Hollander. The two judges present, Derbigny and Martin, severally declared, they should not think them- selves justified in rejecting the application, on account of any proclamation of martial law, if they were con- vinced they had authority to issue the writ; and express- ed their readiness to hear an argument, if any gentleman
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of the bar had a doubt of the former decision of the tribunal, in the case of Laverty, the British subject, ar- rested by the marshal, during the preceding summer. This man claimed the citizenship of the United States, and wished to test his pretension by a writ of habeas corpus; but the court declined interfering, being of opi- nion, theirs was an appellate jurisdiction only, confined to civil cases, and they could not inquire into the legali- ty of an arrest, on criminal or political grounds. They permitted the case to be argued; but, before the argu- ment was concluded, information was received that Hollander had been discharged, by Jackson.
Dick, the attorney of the United States, made appli- cation to Lewis, one of the district judges of the state, who was serving as a subaltern officer, in the Orleans rifle company, and whose conduct during the invasion, had received Jackson's particular commendation. Be- lieving that his duty as a military man, did not diminish his obligation, as a judge, to protect his fellow-citi- zens from illegal arrest, Lewis, without hesitation, on the first call of Dick, laid down his rifle, and allowed the writ.
Information of this having been carried to head quar- ters, Jackson immediately ordered the arrest of Lewis and Dick.
Arbuckle, to whom Lewis' writ, in favour of Hall, was directed, refused to surrender his prisoner, on the ground he was committed by Jackson, under the autho- rity of the United States.
The orders for the arrest of Lewis and Dick were countermanded.
The court martial for the trial of Louallier, of which major-general Gaines was president, met on the 7th.
The prisoner's counsel confined his defence to a plea, to the jurisdiction of the court; contending that he was, as a member of the legislature, exempt from militia
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service; that the rules and articles of war, were express- ly established for the government of the army of the United States, and extended to the militia of the state, when in the service of the United States; that their client was neither of the army or militia, although, during the invasion, he had performed military duty in one of the volunteer companies, embodied for the maintenance of order in the city; that the proclamation of martial law, · made no one a soldier, who was not so before; that it vested no right in the general, nor imposed on any one, any obligation, which did not exist before.
The irritation of the public mind manifested itself, in the evening, by the destruction of a transparent paint- ing, in honor of Jackson, which the proprietor of the Exchange coffee-house displayed, in the largest hall.
A general order on the 8th, announced that, although the commanding general had not yet received official information, that the state of war had ceased, by the ratification of the treaty, he had persuasive evidence of the fact, and credited it, at the risk of being misled by his wishes; and, under this impression, his first duty was to discharge from actual service, the body of the militia of the state, which had taken the field, under the order for the levy en masse.
The French subjects had remained perfectly quiet at home, regardless of the order of the 28th of February. Louallier's publication had opened the eyes of the com- munity, whose sympathy was enlisted in favor of these defenders of the country, and under the present excite- ment of the public mind, the execution of a sentence of exile against them, would have been dangerous. The governor, who, in Wilkinson's time, had been charged with a co-operation in his illegal measures, or at least with a dereliction of duty, appeared now disposed to act, in such a manner, as not to give room for a similar imputa- tion; and Eaton tells us, "he had been heard to declare,
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in words of mysterious import, that serious difficulties would be shortly witnessed in New Orleans." It was deemed most prudent, at head quarters, to make a vir- tue of necessity. With a view of enabling Jackson to do so, with a good grace, an address was procured from the officers and men, of the principal volunteer corps of the militia of the city, soliciting the suspension of the order of the 28th of February, and pledging themselves for the future good conduct of the French subjects. On receiving this address, a general order was issued, stating that, time having been given to the people, to consider whether they would avail themselves of their degrading exemption; at a distance from the camp, or enrol them- selves among those who defended the state; and the delay being expired, the order would have been strictly en- forced, had it not been for the application and guarantee of the officers and men of the volunteer companies. The execution of the order was therefore suspended, till the general's pleasure was further signified.
There is a manifest inconsistency between these two orders. Had the latter been penned by a friend of Jack- son's, the order of the 28th of February would have been rescinded, on the reason assigned in the first, viz: the persuasive evidence, which had reached head quar- ters, that the state of war had ceased. There would have been much more dignity, in this admission, than in the boast that the subjects of a friendly nation, entitled by treaty to peculiar privileges in Louisiana, could be exiled from New-Orleans and compelled to march to the dis- tance of one hundred and twenty miles, in time of peace, on the mere signification of any man's pleasure.
A number of officers had compelled the proprietor of the Exchange coffee-house, to exhibit a new transparent painting, and to illuminate the hall in a more than usual manner. They attended in the evening, and stood near the painting, with the apparent intention of indicating a
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determination, to resist the attempt of taking down the painting. It was reported, a number of soldiers were in the neighborhood, ready to march to the coffee-house, at the first call. This was not calculated to allay the ex- citement of the public mind. The prostration of the legitimate government; the imprisonment of the district judge of the United States, the only magistrate, whose interference could be successfully invoked, on an illegal arrest, under colour of the authority of the United States, the ascendancy assumed by the military, appeared to have dissolved all the bands of social order in New Or- leans.
It is not easy to say, to what extremity matters would have been carried, if the good sense of the most influen- tial characters in the city, had not induced them to inter- fere. They represented, to those who were disposed to run all hazards, that a few days, perhaps a few hours, would bring the official account of the exchange of the ratifications of the treaty; that Jackson's day of reckon- ing would then arrive; that Hall, with the authority (tho' now without the power) of checking the encroach- ments of the military, possessed the authority, and would soon have the power, to punish the violators of the law-presenting the idea without using the elo- quent language of Workman, in 1807: "the law is not dead, but sleepeth; the constitution is eclipsed indeed, but the dark bodies of hideous and ill-omened form, which have intercepted its light, and deprived us of its genial influence, will soon pass away, and we shall again behold the glorious luminary, shining forth in all its original splendour."
On the 9th, the court martial sustained Louallier's plea to their jurisdiction, as to all the charges except the fourth; that of being a spy-manifesting, that all judicial institutions possess, in the United States, an essential purity and energy. They thought the rules and arti- cles of war, were expressly established by the congress,
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for the government of the army, and were not binding on any individual out of it-that neither the president, or any commander, can, by a proclamation of martial law, vest in himself any right, or impose on others any obligation, that did not exist before; nor render any thing lawful or unlawful, that was otherwise before.
They acquitted Louallier of the fourth charge. There was no evidence before them, that he was found lurking about any fortification or encampment of the army of the United States; none of his disaffection; and his conduct, in the legislature, had evinced that, in zeal and patriotism, he did not yield even to Jackson. If he had published a libel, it was the duty of the attorney general of the State to indict him, and the province of the grand jury to present him, if that officer . neglected his duty. He was placed before them as a person owing allegiance to, they knew he was a citizen, of the United States, and that government had in the beginning of the war, declared that a spy must essentially be an alien.
Jackson was greatly disappointed at the conclusion to which the court martial had arrived ; he, however did not release either of his prisoners, and on the tenth issued the following general order :
"The commanding general disapproves of the sentence of the court martial, of which major-general Gaines is president, on the several charges and specifications ex- hibited against Mr. Louaillier ; and is induced by the novelty and importance of the matters, submitted to the decision of that court, to assign the reasons of this disap- proval.
"The charges against the prisoner were mutiny, ex- citing mutiny, general misconduct, for being a spy, illegal and improper conduct, and disobedience of orders, writing a wilful and corrupt libel against the command- ing general, unsoldierly conduct, and conduct in viola- tion of a general order ; all which charges arc, on the
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face of them, proper to be inquired into by a Court Martial. The defendant pleaded to the jurisdiction of the court, and founded his exceptions on matters of fact, which exceptions, as to all the charges and specifications but one, the court sustained, without inquiring into the truth of the facts (which not otherwise could have ap- peared to them,) upon which those exceptions were bottomed.
The commanding general is not disposed, however, to rest his objections upon any informality in the mode of proceeding adopted by the court, but presuming that the court really believed the truth of the facts set forth in the exceptions, deems it his duty to meet the doubts as he supposes them to have existed. The character of the prisoner (a citizen not enrolled in any corps, and a mem- ber of the State Legislature, though that Legislature was not in session) probably, in the opinion of the court, placed him without their reach, upon the several charges on which they declined acting.
The enemy having invaded the country, and threaten- ing an attack on New Orleans, many considerations, growing out of this emergency, and connected with the defence of the city, rendered the adoption of the most energetic and decisive measures necessary. Martial Law, as the most comprehensive and effectual, was there- fore proclaimed by the commanding general-a state of things which made it the duty of every inhabitant, indiscriminately, to contribute to the defence of his country-a duty, in the opinion of the commanding general, more positive and more urgent than any result- ing from the common and usual transactions of private, or even public life. The occasion that calls it forth, in- volves, at once, the very existence of the government, and the liberty, property and lives of the citizens.
Martial Law being established, applies, as the com- manding general believes, to all persons who remain
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within the sphere of its operation ; and, claims exclusive jurisdiction of all offences, which aim at the disorganiza- tion and ruin of the army over which it extends. To a certain extent, it is believed to make every man a soldier, to !defend the spot, where chance or choice has placed him ; and to make him liable for any misconduct calcu- lated to weaken its defence.
If Martial Law, when necessity shall have justified a resort to it, does not operate to this extent, it is not easy to perceive the reason or the utility of it. Ifa man, who shall, from choice,remain within the limits of its operation, and whose house is without these limits, and there labor by means in his power to stir up sedition and mutiny among the soldiery, inspire them with distrust towards the commanding officer, and communicate to the enemy intelligence of the disaffection and discontent, which he himself has created, he may safely avail himself of what he may please to call his constitutional rights and continue his dangerous machinations with impunity; the com- manding general believes he cannot easily conceive, how a. man thus influenced and thus acting, might render the enemy more important services, and do his country more injury, than he possibly could, by entering the ranks of the enemy, and aiding him in open battle. Why is Martial Law ever declared? Is it to make the enlisted or drafted soldier subject to it? He was subject to it before. It is, that the whole resources of a country, or of that district over which it is proclaimed, may be suc- cessfully applied for its preservation. Every man, therefore, within the limits to which it extends, is subject to its influence. If it has not this operation, it is surely a perfect nulity. Apply this view of the subject to the case before the court-and how is it? After the adjourn- · ment of the Legislature, of which the defendant claims to be a member, he remained within the camp of the American army, and within the limits, which are de- VOL. II. 52
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clared to be embraced by Martial Law. How does he there deport himself ? Instead of contributing to the de- fence of his country ; instead of seeking to promote that unanimity, which a love of country, and the important trust which had been reposed in him, might have led us to expect, we behold him endeavoring to stir up discord, sedition, mutiny-laboring to disorganize and destroy an army, which had so lately defended his country, and might so soon again be necessary for its defence. Not only inviting the enemy to renew his attempt, but con- tributing his utmost to enable him to succeed, if he should obey the invitation. Is there no power to res- train the efforts, or to punish the wickedness of such a man ? If he aids and comforts the enemy, by communi- ting to him information of the mutinous and seditious spirit, of the distraction and confusion, which he himself has created-why this is treason, and he cannot be punished by a court martial. If he excites mutiny, disobedience to orders, and rebellion among the soldiery, he is not attached to the army and cannot be restrained ! Why is he not attached to the army ? Why, at such a moment, when he remains within it, is he not subject to its rules and regulations ? If the enemy comes, may he fold his arms and walk unconcernedly along the lines, or remain inactive in his room? Can he not be called upon for his exertions? May he not only refuse to render any assistance himself, but without fear or re- proach, do all in his power to render ineffectual the ex- ertions of others-of that army which, in the most threatening crisis, is fighting for the liberty and safety of that country, whose liberty and safety he professes to have so much at heart ? May he, at such a moment, proclaim to the enemy, that we are dissatisfied with our general, tired of the war, determined no longer to bear the restrictions which it imposes ; in a word, disaffected and disunited, and ready to yield to him on his first ap-
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proach. May this man, a foreigner, retaining the predi- lections for the country which gave him birth, and boast- ing of those predilections ; may such a man, under such circumstances, excite sedition and mutiny, division and disorganization in our army ; and when he is called be- fore the court martial, to answer for his crimes, say- Gentlemen, you have no right to take cognizance of the offences of which I am charged ? Decide with the ace cused, no army can be safe, no general can command; disaffection and disobedience, anarchy and confusion must take place of order and subordination, defeat and shame, of victory and triumph. But the commanding general is persuaded, that this is a state of things which the government of no country can or does tolerate. The constitution of the United States secures to the citizen the most valuable privileges; yet, the same constitution contemplates the necessity of suspending the exercise of the same, in order to secure the continuance of all. If it authorises the suspension of the writ of habeas corpus in certain cases; it, thereby, implicitly admits the oper- ation of Martial Law, when in the event of rebellion or invasion, public safety may require it. To whom does the declaration of this law belong ? To the guardian of the public safety ; to him who is to conduct the oper- ations against the enemy, whose vigilance is to descry danger, and whose arms are to repel it. He is the only authority present to witness and determine the emer- gency which makes such a resort necessary and posses- sed of the means to make suitable provisions for it. For the correctness of his conduct, under the circum- stances which influenced him, he stands responsible to his government."
The court martial consoled themselves, by the reflec- tion, that their sentence, though disapproved by Jack. son, was in perfect conformity with decisions of the
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President of the United States, and of the supreme court of the state of New York, in similar cases.
In August, 1812, Elijah Clark was condemned to be hung as a spy, at Buffalo, in the state of New York, by sentence of a court martial. "It appeared that he was born in the state of New Jersey, and that he continued to reside in the United States, as a citizen thereof, until within about eight months, when he removed to Canada, and there married; that his wife and proper- ty are yet in Canada, and within the dominion and alle- giance of the king of the united kingdom of Great Britain and Ireland. For these reasons, the court was of opinion, that (although the said Elijah Clark wasa native born citizen of the United States, and was yet holden un- der the allegiance, which, as such citizen, he owed to the United States) he was nevertheless liable to be tried and convicted, as a spy in the United States, for his acts of a spy, committed during the continuance of such tem- porary allegiance to the king of the united kingdom of Great Britain and Ireland, with whom the United States were at war.
General Hull suspended the execution, till the plea- sure of the President of the United States was known.
On the 2d of October, the secretary of war wrote to the general, that Clark, "being considered a citizen of the United States, and not liable to be tried by a court martial as a spy, the President directed, that unless he should be arraigned by the civil court, for treason, or a minor crime, under the laws of the state of New York, he must be discharged."
One Smith, a naturalized citizen of the United States, and a Scotchman by birth, was arrested during the last war, and imprisoned in the barracks at Sackett's Har- bour, on the charge, among others, of his being a spy. On the restoration of peace, he brought his action of false imprisonment, against the commanding officer of
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the garrison. The case was brought before the su- preme court; where it was argued, on the part of the defendant, that, on the principle of natural and perpetual allegiance, he remained a British subject, he was a spy, and could be treated as such; and at all events, the offi- cer, who detained him, was justifiable in doing so, until by a due investigation in a court martial, it could be ascertained whether he was a citizen or an alien. For the plaintiff, it was insisted, that a naturalized citizen enjoys all the rights and privileges of a native born, who is entitled, in every possible case, to protection from military power. The authority of Sir Matthew Hale was quoted, that even in England, martial law is no law, but something indulged as a law; and the opinion of Lord Loughborough was relied on, that martial law, even, as described by Sir Matthew Hale, does not exist at all. The court said, "the defendant's conduct does not appear harsh or offensive; but it is the principle in- voked, that renders the result so important. None of the offences, charged against the plaintiff, were cogniza- ble before a court martial, except that which relates to his being a spy; and, if he was an American citizen, he could not be chargeable with such an offence. He might be amenable to the civil authority for treason; but could not be prosecuted, under martial law, as a spy." One of the judges dissented, on the ground, that the officer was justifiable in detaining the plaintiff, till it was ascer- tained whether he was a citizen; but the judge expressly admitted, that if he was a citizen, he was not liable to be tried as a spy.
It is evident, that by the expression, martial law, in the last part of the opinion of the court, reference is made to the second section of the act of congress, for esta- blishing rules and articles of war, for the government of the armies of the United States, in which the punishment of death is denounced against spies.
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The independent stand, taken by the court martial, had left no glimpse of hope, at head quarters, that the prosecution of Hall, on the charge of mutiny, on which he had been imprisoned, could be attempted with any prospect of success-the futility of any further proceed- ings against Louallier was evident-Jackson, therefore, put an end to Hall's imprisonment on Saturday, the 11th of March. The word imprisonment is used, because Eaton assures his readers, that "Judge Hall was not imprisoned; it was merely an arrest." Hall had been taken from his bed chamber, on the preceding Sunday, at 9 o'clock in the evening, by a detachment of about one hundred men, dragged through the streets, and con- fined in the same apartment with Louallier, in the bar- . racks. Three days after it had been officially announced to the inhabitants of New Orleans, that Jackson was in possession of persuasive evidence, that a state of peace existed, and the militia had been discharged, the door of Hall's prison was thrown open, but not for his release. He was put, under a guard, who led him sev- eral miles beyond the limits of the city, where they left him, with a prohibition to return, "till the ratification of the treaty was regularly announced, or the British shall have left the southern coast."
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