USA > Louisiana > The history of Louisiana : from the earliest period, Volume II > Part 28
Note: The text from this book was generated using artificial intelligence so there may be some errors. The full pages can be found on Archive.org (link on the Part 1 page).
Part 1 | Part 2 | Part 3 | Part 4 | Part 5 | Part 6 | Part 7 | Part 8 | Part 9 | Part 10 | Part 11 | Part 12 | Part 13 | Part 14 | Part 15 | Part 16 | Part 17 | Part 18 | Part 19 | Part 20 | Part 21 | Part 22 | Part 23 | Part 24 | Part 25 | Part 26 | Part 27 | Part 28
This last, and useless display of usurped power, as- tonished the inhabitants. They thought, that, if the general feared the return of the British, the safety of New Orleans would be better insured, by his recall of the militia, than by the banishment of the legitimate magistrate. It was the last expansion of light, and mo- mentary effulgence, that precedes the extinguishment of a taper.
At the dawn of light, on Monday, the 13th, an ex- press reached head quarters, with the despatch which had accidentally been misplaced, in the office of the secretary of war, three weeks before. The cannon soon
-
415
THE EIGHTEENTH.
1815]
announced the arrival of this important document, and Louallier was indebted for his liberation to the precau- tion, which Eaton says, the president of the United States had taken, to direct Jackson to issue a proclama- tion for the pardon of all military offences.
C
Eaton .- Latour .~ Archives .- Gazettes.
1 1
1
416
CHAPTER.
[1815
CHAPTER XIX.
A rule to show cause against an attachment for con- tempt, was issued against Jackson .- He showed cause .- The rule is made absolute .- He declines answering interrogatories, and is fined.
Hall's return to the city was greeted by the acclama- tions of the inhabitants. He was the first judge of the United States they had received, and they had admired in him the distinguishing characteristics of an American magistrate-a pure heart, clean hands, and a mind sus- ceptible of no fear, but that of God. His firmness had, eight years before, arrested Wilkinson in his despotic measures. He was now looked upon to show, that if he had been unable to stop Jackson's arbitrary steps, he would prevent him from exulting, in the impunity of his trespass.
Dick was anxious to lose no time, in calling the at- tention of the district court of the United States, to the violent proceedings, during the week that had followed the arrival of the first messenger of peace; but Hall insist- ed on a few days being exclusively given to the manifesta- tion of the joyous feelings, which the termination of the war excited. He did not yield to Dick's wishes till the 21st. The affidavits of the clerk of the district court, of the marshal of the United States, of the attorney of Louallier and of the commander at the barracks, were then laid before the court.
The case they presented, was this :- that Jackson, desirous to punish the author of a publication, which he
417
THE NINETEENTII.
1815]
called a false and corrupt libel, upwards of six weeks after the departure of the British, had yielded to the ad- vice of those who recommended that the publisher should be prosecuted, before a court martial, as a spy, and had him arrested. The prisoner sought legal advice, and was informed, that in case of conviction, sentence of death would inevitably, be passed on him-and that the court martial, by whom he was to be tried, was without jurisdiction. He implored the interference of the tribunal, especially charged with preventing a military court from stepping out of the bounds of its legitimate jurisdiction. The judge took the proper step, to have the complaint legally inquired into. With the view of obstructing the course of justice, and depriving his victim of the protection he had sought, Jackson had the judge arrested and imprisoned, till the trial was over. The clerk of the court was compelled to bring a record of the court, to head quarters, where it was taken and withheld from him. He and the marshal were threatened. Some of these transactions happened after accounts of the cessation of the state of war was received. The pro- ceedings did not appear to have the least semblance of necessity, or even utility.
On the motion of the attorney of the United States, a rule to show cause, why process of attachment should not issue against Jackson, was granted.
On the return day, Reid, one of the general's aids, accompanied him to the court house, and presented to the court a paper, sworn to by Jackson, as his answer to the rule.
In the preamble of this document, a solemn protest was made against the unconstitutionality and illegality of the prosecution-the authority of the attorney of the United States to institute it, was denied, as well as that of any court of the United States, to punish for a con- tempt. It averred that no criminal prosecution could VOL. II. 53
418
CHAPTER [1815
be carried on, in any of these courts, except upon a pre- sentment or indictment, or for an offence not created by a statute-it insisted on a trial by jury; it urged that the · contempt had not been committed in presence of the court, that the writ of habeas corpus was not returnable into court; and that the authority of the judge, who issu- ed it, was confined to the case of a prisoner under, or by colour of, the authority of the United States.
In the conclusion, the proclamation of martial law was justified, on the report which the general had receiv- ed, of the disaffection and seditious disposition, of the French part of the population of Louisiana; and various extracts were given from letters of the governor, on the difficulties he had to encounter, the opposition he met with from the legislature, and the little dependence there was for success, except on a regular force, to be sent by the United States. The interference with the records in the clerk's office, was justified on the belief the defen- dant entertained, that it was within his authority. The proclamation of martial law was held to have made the publisher of the libel a soldier, and his offence cogniza- ble by a court martial: and the imprisonment of the judge was said to have been a measure of necessity.
The attorney of the United States, opposed the read- ing of this paper. He said that, in no case, the defendant was permitted to make evidence for himself, and justify himself, by swearing he was innocent; although, on a process of attachment, the defendant's answers to inter- rogatories, put by the officer who conducted the prosc- cution, were conclusive evidence.
In the present stage of the cause, the inquiry was con- fined to the sufficiency of the facts sworn to- whether they did constitute an offence, and one which did support a prosecution, by process of at- tachment. When the hearing would be on the merits, the defendant might avail himself of his answers to interroga-
-
1815]
THE NINETEENTH.
1 419
tories, to show that the facts, in the affidavits, on which the rule was obtained, were not truc. The judge took time to deliberate.
On the next day, he said-"The court has taken time to consider the propriety of admitting the answer, offer- ed yesterday. It was proper to do so; because it is the first proceeding, of any importance, instituted in a mat- ter like the present, since the establishment of the court; and because, by the constitution of the court, it is com- posed of one judge only; and it so happens, that one of the charges of contempt, is his imprisonment, and the consequent obstruction of the course of justice. This is no reason why the proceedings should not have been instituted, and be persevered in; but it is a good one for · much deliberation. No personal consideration ought, for a moment, to allow the abandonment of the defence of the laws, the support of the dignity of the tribunal, and of the rights of the citizen.
"I have considered the case, and I think I see a clear course.
"On a rule to show cause, the party called on may take all legal grounds, to show that the attachment ought not to issue. He may take exceptions to the mode of proceedings, and prove, from the affidavits on which the rule was obtained, that the facts do not amount to a contempt.
"If the court be convinced that the attachment may legally issue, it goes to bring the party into court-the interrogatories are propounded-he may object to any of them, as improper, or deny the facts charged, and purge himself of the contempt, on oath. His single testimony counteracts all other that may have been ad- duced.
"I will hear any of the exceptions taken in the answer, or any question of law that may be urged.
.
·
420
CHAPTER
[1815
Reid now expatiated on the unconstitutionality and illegality of a mode of proceeding, which deprived the defendant of the benefit of a trial by jury, and on the protestations, and exceptions in the preamble of Jack- son's answer. He dwelt on the necessity there was for the proclamation of martial law, and attempted the justification of the facts, stated in the affidavit, which were the basis of the prosecutions, by martial law.
The attorney of the United States stated his convic- tion, that it was now too late to speak of the unconsti- tutionality of the process of attachment ---- a construction and interpretation of the constitution, contemporaneous with that instrument, and cocval with the present gov- ernment, had received the sanction of the judiciary, and the house of representatives :- that no jury was called in, because the facts, if contested, were to be set- tled by the oath of the defendant, in his answers to in- terrogatories propounded to him, in behalf of the Unit- ed States ; it being the duty of their attorney, to draw forth, by these interrogatories, as by cross-examina- tion, in the audition of witnesses, the facts, which the defendant had an interest to conceal. After his con- science was thus probed, the evidence resulting, from his answers, counteracted all the testimony adduced against him.
The attorney urged, that he was willing to admit that the arrest of Louaillier was not made under any authority derived from the United States, but it was his duty to say, it took place, under colour of such an au- thority : and, in cither case, it was the duty of the ma- gistracy of the United States, to inquire into the legality of the arrest. He added, that with regard to such writs, which the judges were authorised to issue, at their chambers, it had never been doubted, that obedi- ence to them was to be enforced, and contempt of them punished, in the same manner as if the writ had been issued by the clerk,
$
421
THE NINETEENTH.
1815]
He' added that, when the case should be before the court, on the merits, the defendant would have every benefit that could be derived from martial law.
The rule was made absolute.
Jackson's advisers now found he could not be de- fended on the merits, with the slighest hope of success, as the attorney of the United States would probably draw from him by interrogatories, the admission, that both Louaillier and the judge were kept in prison, long after persuasive evidence had been received at head- quarters, of the cessation of the state of war. They therefore recommended to him not to answer the inter- rogatories, which would authorise the insinuation that he had been condemned unheard.
It appears that some of his party, at this period, en- tertained the hope that Hall could be intimidated, and prevented from proceeding further. A report was ac- cordingly circulated, that a mob would assemble in and about the court-house-that the pirates of Barataria, to whom the judge had rendered himself obnoxious before the war, by his zcal and strictness, in the prose- cution that had been instituted against several of their ringleaders, would improve this opportunity of humb- ling him. Accordingly, groupes of them took their stands, in different parts of the hall, and gave a shout when Jackson entered it. It is duc to him to state, that, it did not appear that he had the least intimation that a disturbance was intended, and his influence was hon- estly exercised to prevent disorder.
On his being called, he addressed a few words to the court, expressive of his intention not to avail himself of the faculty he had to answer interrogatorics ;- a deter- mination, which he said was grounded on the court's refusal to allow his answer to the rule, being read.
The court informed him, every indulgence had been extended to him, which the law authorised.
--
422
CHAPTER [1815
The attorney of the United States now rose, and said that his task was much simplified by the course the de- fendant had taken. The defendant stood charged with having obstructed the course of justice, and prevented the interference of the court, in order that an illegal pro- secution, for a capital offence, might be carried on, be- forc a military tribunal, against a citizen absolutely un- connected with the army or militia. His protestations and exceptions, had already been disposed of. The greatest part of the paper, which he had produced on his first coming into court, was filled with extracts of letters, and arguments, by which his issuing a procla- mation of martial law, was intended to be justified .- No one had ever seen any degree of guilt in this act .- It was very proper, in the beginning of an invasion, for the commander of the army raised to oppose it, to warn, by a solemn appeal, his men and all his fellow-citi- zens around him, that circumstances required the exer- tion of the faculties of all, to repel the enemy-and that the martial law of the United States, i. e. the system of rules established by the acts of" congress and the laws and usages of nations, with regard to martial matters, would be strictly enforced.
The words of Judge Bay, of the supreme court of South Carolina, in Lamb's case, were quoted :- "If by martial law is to be understood that dreadful system, the law of arms, which in former times was exercised by the King of England and his lieutenants, when his word was the law, and his will the power, by which it was exer- cised, I have no hesitation in saying that such a monster could not exist in this land of liberty and freedom. The political atmosphere of America would destroy it in embyro. It was against such a tyrannical monster that we triumphed in our revolutionary conflict. Our fa- thers sealed the conquest by their blood, and their pos- terity will never permit it to tarnish our soil by its un-
1815]
THE NINETEENTH. 423
hallowed feet, or harrow up the feelings of our gallant sons, by its ghastly appearance. All our civil institu- tions forbid it; and the manly hearts of our countrymen are stecled against it. But, if by this military code are . to be understood the rules and regulations for the gov- ernment of our men in arms, when marshalled in defence of our country's rights and honor, then I am bound to. say, there is nothing unconstitutional in such a system."
The attorney of the United States candidly admit- ted, that, although the acts of the defendant could not, by any means, be justified by his proclamation; they could certainly be so, by necessity, which justifies any act it commands-and the defendant was entitled to every benefit under the plea of necessity : and, on the part of the United States, success in the prosecu- tion, was neither expected nor wished, if that necessity could be shown.
To show that no necessity existed, to authorise the acts of violence complained of, the attorney stated, that the defendant had admitted that "most of the acts mentioned in the rule took place, after the enemy had retired, from the place he had at first assumed-after they had met with a signal defeat-and, after an unofficial account had been received of the signature of the trea- ty." This had been verified by the affidavit of the de: fendant, that the material facts contained in his answer, he believed to be true-but the general had not sworn that his answer contained the whole truth, and the coun- sel by whom the document was prepared, had carefully suppressed some most material circumstances. The
charges, which were the basis of the illegal proceedings, which it was the bounden duty of the court to arrest, were exhibited, after several confirmations of the ac- . count of the signature of the treaty were received-af- ter the ratification of that treaty by the Prince Regent had been announced-after it was known that the trea-
,
.
1
424
CHAPTER [1815
ty had arrived at Washington, and the Senate had ad- vised its ratification-after the President had ratified it, and the mutual exchange of the ratifications. It was admitted that the official annunciation of all these cir- cumstances had not been received by the defendant, but to use his own words, in an official document, he had persuasive evidence of these facts, and he credited them. The untoward accident, which had prevented his receiving the despatch of the secretary of war contain- ing the official intelligence, was known to him. He even confessed the state of war no longer existed-that his duty forbad him to persist in measures, which the return of peace rendered unnecessary and illegal. Un- der this impression, he proposed a suspension of hos- tillities to Lambert-he discharged the militia of the state, and consented that the French subjects, residing in New-Orleans, should no longer be required to return to his camp.
In the conclusion of his argument, Dick observed, that credulity itself could not admit the proposition, that persuasive evidence that the war had ceased, and belief that necessity required that violent measures should be persisted in to prevent the exercise of the judicial power of the legitimate tribunal, could exist, at the same time, in the defendant's mind.
The general made a last effort to avert the judgment of the court against him, by an asseveration, he had imprisoned Dominick A. Hall, and not the judge : his attention was drawn to the affidavit of the marshal, in which he swore Jackson told him "I have shopped the judge."
The court, desirous of manifesting moderation, in the punishment of the defendant for the want of it, said that, in consideration of the services the general had rendered to his country, imprisonment should make no part of the sentence, and condemned him to pay a fine of one thousand dollars and costs, only.
.
425
THE NINETEENTH.
1815]
A check was immediately filled by Duncan, signed by Jackson, and handed to the marshal, who accepted it in discharge of the fine and costs.
On Jackson's coming out of the court house, his friends procured a hack, in which he entered, and they dragged it to the Exchange coffee-house, where he made a speech, in the conclusion of which he observed that, "during the invasion, he had exerted every faculty in support of the constitution and laws-on that day, he had been called on to submit to their operation, un- der circumstances, which many persons might have deemed sufficient to justify resistance. Considering obedience to the laws, even when we think them unjust- ly applied, as the first duty of the citizen, he did not hesi- tate to comply with the sentence they had heard pro- nounced;" and he entreated the people, to remember the example he had given them, of respectful submission to the administration of justice.
A few days after he published. in the Ami des Lois, the answer he had offered to the district court, preceded by an exordium, in which he complained, that the court had refused to hear it. He added, that the judge "had indulged himself, on his route to Barvou Sarah, in mani- festing apprehensions as to the fate of the country, equally disgraceful to himself, and injurious to the inte- rest and safety of the state," and concluded-"should judge Hall deny this statement, the general is prepared to prove it, fully and satisfactorily."
The gauntlet did not long remiin on the ground, and the following piece appeared in the Louisiana Courier:
"It is stated in the introductory remarks of general Jackson, that 'on the judge's route to Bayou Sarah, he manifested apprehensions as to the safety of the coun- try, disgraceful to himself, and injurious to the state.' Judge Hall knows full well, how casy it is for one, with the influence and patronage of general Jackson, to pro-
VOL. II, 51
426
CHAPTER [1815
cure certificates and affidavits. He knows that men, usurping authority, have their delators and spies; and that, in the sunshine of imperial or dictatorial power, swarms of miserable creatures are easily generated, from the surrounding corruption, and rapidly changed into the shape of buzzing informers. Notwithstanding which, judge Hall declares, that on his route to Bayou Sarah, he uttered no sentiment disgraceful to himself, or injurious to the state. He calls upon general Jackson, to furnish that full and satisfactory evidence of his asser- tion, which he says he is enabled to do."
The pledge was never redeemed. The general's si- lence showed, that those, on whose reports he had ven- tured to charge Hall, could not enable him to adminis- ter proof of what they had advanced. The accusation appeared as destitute of foundation, as the charge brought against the legislature, of having entertained the idea of proposing a capitulation. Never was a virtuous com- munity, more gratuitously charged with disaffection, sedition and treason, than the population of Louisiana. Time has shown, that, in patriotism, zeal and courage, it did not yield to that of any state in the confede- racy. Before danger was impending, they canvassed every measure that was proposed to them; they inves- tigated every claim on their services. But, as soon as it was necessary to act, they did so, promptly and ef- fectually. All the resources of the state, were put at the disposal of Jackson-every branch of government, with all its might, seconded him-the people submit- ted to every privation, every duty, which circumstan- ces imposed.
It is true, the general assembly did not join Jackson in the belief, that the suspension of the writ of habeas corpus, was a proper measure. They knew, better than he, the population of their country-they did not err, when they concluded it could be trusted. They
-
-
-
1815]
THE NINETEENTH. 427
remembered the time of Wilkinson, and experienced that his violent measures and those of Jackson, after danger had ceased to exist, were absolutely ill timed- productive of disorder and confusion, and unattended · by any advantage: and the people, as soon as danger was over, manifested their determination, not to submit to oppression or unnecessary hardships. The French subjects had shown, they were not afraid of the enemy; they showed they did not fear the general. Nothing but the certainty, that the day of retribution was at hand, and that the insult, offered to the court of the United States, was about to be avenged, prevented those serious difficulties, which Claiborne, as Eaton informs us, believed would soon be witnessed in New. Orleans.
The national council rendered to Louisiana, that - justice, which she ought to have received at the head- quarters of the seventh military district.
Congress passed a resolution, expressive of the high sense they entertained, of the patriotism, zeal, fidelity and courage, with which the people of Louisiana had promptly and unanimously stepped forward, under cir- cumstances of imminent danger, from a powerful in- vading enemy, in defence of all the individual, social and political rights, held dear to man. A like sense was also expressed of the generosity, benevolence and humanity displayed by the inhabitants of New-Orleans, in voluntarily affording the best accommodations in their power, and giving their best attentions. to the wounded, not only of the army of the United States, but also to the wounded prisoners of a vanquished foe.
In receiving this testimonial of the approbation of the legislature of the Union, well might the people of Louisiana exclaim, laus laudari a te. It was cal- culated to induce them to disregard, as it effectually counteracted, the assertions and insinuations of Jack- son's advisers and panegyrists.
428
CHAPTER [1815
If, on the arrival of O'Reilly, at New-Orleans, in 1769, he had attended to the maxim, in the motto of his coat of arms, Fortitudine et prudentia, the lives of five individuals, in whose attachment to their former sovereign, he should have seen a pledge of their future devotion to his own, would have been spared. If Jackson had been as prudent after the invasion, as he had been brave during its continuance, he would have spared to himself and others, very disagreeable conse- quences. May his conduct during one period, be a pattern, and, during the other, a warning to future com- manders !
It is the duty of history to record the virtues and errors of conspicuous individuals. In free govern- ments, dangerous precedents are to be dreaded from good and popular characters only. Men of a different cast can never obtain sufficient sanction for their mea- sures, to make their acts an example for others. Hence, the necessity of exposing the false grounds of the ac- tions of the former, and pointing out the evil conse- quences to which they lead.
The history of every age, and every country, shows that, the higher man is placed in authority, the greater the necessity of his bridling his passions, lest others should believe, anger and resentment, have prompted measures, which should have had no other motive but public utility-and that a temper, which can bear no contradiction, and a will spurning all control, are the characteristics of a man in power. It teaches us how BupoRaut it is, he should not select for his advisers, men who have enfisted themselves in the ranks of those who oppose the mea tre of government-men having private interests to subserve, private enmities to gratify, and private injuries to avenge-that he should abstain from acting personnally, in cases, which present great latitude for the improper indulgence of his feelings; and
.
-
-
-
429
THE NINETEENTH.
1815]
leave to dispassionate tribuuals, the punishment of those who have wounded his pride, by setting his au- thority at defiance ; refraining to become the prosecutor and arbiter of his own grievances, and to place himself in situation, in which, reason having but little control, he may do great iujustice; and suspicion always, and cen- sure often, attach to his determination.
May the citizens of these states ever find in the an- nals of their country, reasons to cherish and venerate;that branch of government, without the protection of which it is in vain that the invader is repelled-the benign in- fluence of which, man feels before he enters the portals of life-which guards the rights of the unborn child- throws its broad shield over helpless infancy-the solicitude of which, watches over man's interests, when- ever disease or absence, prevents his attention to them-to which the woodsman confidently commits his humble roof and its inmates, in the morning, when shouldering his axe, he whistles his way to the forest, assured it will guard them from injury,and secure to him the produce of his labour-from which the poor and the rich are sure of equal justice-which neither the ardor civium prava jubentium, nor the vultus instantis ty- ranni, will prevent from coming to the relief of -the oppressed-which secures the enjoyment of every do- mestic, social and political right, and does not abandon man after he has passed the gates of death-leaving him in the grave, the consoling hope that the judiciary pow- . er of his country, will cause him to hover a while, like a beneficent shade, over the family he reared-direct- ing the disposition of the funds his care accumu- lated for their support, and thus, by a sort of magic, allow him to continue to have a will, after he has ceased to have an existence.
Records-Gazettes.
THE END.
F 876.53
6114 1
Need help finding more records? Try our genealogical records directory which has more than 1 million sources to help you more easily locate the available records.