p578  Chapter XII
Claiborne's Administration — Jackson's Quarrel with the French in New Orleans — He orders them out of the City with their Consul — Pamphlet of Louaillier — His Arrest — Judge Hall, Hollander and Dick also arrested — Conflict between Jackson and Claiborne — Louaillier's Trial — His Acquittal — Release of Judge Hall — Trial of General Jackson — His Departure.
1815.

The Legislature had adjourned on the 6th of February, with full confidence that Louisiana was free from danger; this impression was shared in by the people, and particularly by the militia, who, unused to the hardships and irksome discipline of camp life, were anxious to resume those industrious and profitable pursuits from which they derived their support, and the comforts with which they surrounded their families. The fall of Fort Bowyer they considered as of no importance, and as the last expiring effort of the enemy. Rumors that a treaty of peace had been signed between the United States and Great Britain were also rife and generally credited. This circumstance increased the impatience of the militia to be relieved from military duty. So excited the public became on the subject, that Jackson thought proper, on the 19th of February, to issue the following address:

These admonitions, although very proper and presented in an impressive manner, failed to produce the intended effect. The tide was ebbing fast in another direction from the one in which General Jackson wished it to run. The militia, as long as they thought that there  p580 was a necessity for their being in arms, were all enthusiasm and patriotism; they had been heroes when the country required it; now they wanted to be, as speedily as possible, farmers, merchants, brokers, mechanics, layers, doctors, anything else than a soldier. They were burning to be at home with their wives and children, far away from the tap of the drum, luxuriating, however, in the recollection of past perils and the consciousness of having done their duty. On the 22d, a Gazette of Charleston was received in New Orleans, announcing that the Treaty of Peace had been ratified by the British Government. This intelligence swelled to overflowing the joy which was filling every heart, and the clamor for the disbanding of the militia, or the greater number of them, became louder and louder. The French, who, with the approbation of their consul, Tousard,​a for they had not needed his instigation, had flocked to one man around the standard of the country they resided in, and had contributed so effectually to its defence, now that they thought their services no longer a matter of absolute necessity, now that they had enjoyed the satisfaction of seeing their hereditary foe fly utterly discomfited before them, were anxious to resume their independence. In the presence of the hated British flag they had forgotten that their own Government had become friendly to that of Great Britain; they had ceased to be Frenchmen; they had scorned to claim themselves aliens in order to avoid bearing arms; they had become Americans to fight the veterans of Wellington; but this object being once accomplished, they were Frenchmen again, and as such, they asserted their right to leave our ranks as freely as they had entered them. A number of them obtained certificates from Tousard as to their national character, which they presented to General Jackson by whom they were countersigned and the bearers permitted to be discharged.  p581 But, in a few days, so many of these certificates were issued, that Jackson suspected them of being improperly granted by Tousard. Remonstrances were made to the Consul, his replies or explanations were not deemed satisfactory, and, on the last day of February, General Jackson published a General Order, commanding all the French subjects to retire into the interior, to a distance not nearer than Baton Rouge. This measure was stated in the Order to have become indispensable by the frequent applications for discharges. The time allowed to leave the city was short; it did not exceed three days, after which, the French remaining in the city were to be registered and remain subject to his further orders. Tousard immediately applied to the Governor for the protection of the French subjects. His answer was, that the Executive of Louisiana had no control over the acts of the federal officer commanding the military district within which its inclosed. "Whether or not," he said, "the rights secured by treaties and the laws of nations to the subjects of His Christian Majesty residing within this State are violated by the General Order of which you complain, is a question not for me to determine. It properly belongs to the judicial power, and there can be no doubt but, on proper application, it will interpose its authority in such manner as justice and the laws shall prescribe." Tousard was, perhaps, preparing to act according to Claiborne's advice, when Jackson, considering that the French Consul was interfering with his authority as Military Commander, ordered him out of the city, which order was instantly obeyed. The French, who were already exasperated, thinking that such a treatment offered to their Consul was a national insult, were fired with indignation, and they talked and acted as people who are in such a state of feeling usually do. Was this the return for all their services tendered  p582 spontaneously and greedily accepted? Those who were blinded by passion even asserted that Jackson could have done nothing without the French, and that he had been guided entirely by French officers in all his measures of defence. Were not the fortifications planned by Lafon, Latour and others? Was not Captain St. Geme of the dismounted dragoons, always at his elbow, and suggesting all his military movements? Had not Flaugeac, Beluche, Dominique and Lafitte won the battle of the 8th of January with their artillery? General Jackson, if they were to be believed, could not command a company; he was even ignorant of the very terms used in military science. The saving of New Orleans, if not due to the French, was certainly not due to the capacity of General Jackson, but to the arrant stupidity of the British, who, if they had acted as they should, ought, on the 2d, to have caught the Commander-in‑Chief of the American forces in his bed. Language of this disparaging nature was but too freely used. "Let him treat his Kentuckians and Tennesseeans with his accustomed arrogance," said others, "but we shall teach him that we are not his subjects." These murmurs and threats could not but reach the ears of General Jackson. He was not slow in picking up the gauntlet which had been flung at his feet as soon as he could lay his hands on some responsible individual.

This measure of expulsion adopted against the French was considered by many as harsh and impolitic. It was harsh, because "the people against whom it was directed," says Judge Martin, in his History of Louisiana, "were loyal; many of them had bled, all had toiled and suffered in the defence of the State. Need in many instances, improvidence in several, had induced the families of these people to part with the furniture of their houses to supply those immediate wants which the absence of  p583 the head of the family occasioned. No distinction, no exception was made. The sympathetic feelings of every class of inhabitants were enlisted in favor of these men; they lacked the means of sustaining themselves on the way, and must have been compelled on their arrival at Baton Rouge, then a very insignificant village, to throw themselves on the charity of the inhabitants." It was impolitic, because if the British returned, as General Jackson seemed to apprehend, he would discover that he had imprudently dismissed and alienated men whom he had found so useful as artillerists, engineers and soldiers. Thus reasoned those who blamed the General. On the other hand, those who supported him maintained that the French sounded and trumpeted their service too high. True, they were entitled to much gratitude, but, at the same time, they seemed to forget that many of them, although foreigners, had fought to protect their own property; that those who were domiciliated were bound, although aliens, to defend in case of invasion the country where they resided and which protected their persons, whether they had property or not; that those who were not residents, but mere transient persons, could not be permitted to remain within the lines, if they refused to serve; that New Orleans was a camp; and that in a camp all capable of bearing arms must be subject to military duty; that those who complained of the "order" and might suffer from it, had provoked it by their own impatience and want of subordination. It was their own fault. As foreigners, they might perhaps have claimed exemption from enlisting; they might not have volunteered their services; but, as they had, they were, after their services had been accepted, on the same footing with the natives and naturalized, and were bound to abide with them the decision of the Commander-in‑Chief as to the proper time for their discharge. What great  p584 hardship was it to wait a few days for the ratification of the treaty of peace? It could not possibly be delayed more than two or three weeks. To be retained in the ranks for so short a time, in a large city where they were among their friends and provided with many comforts, where they had the opportunity of seeing every day their families, who, although suffering privations, were assisted by the City Council, by Legislative appropriations, and by private liberality, and therefore far from starving, was not after all so intolerable a condition. But granting that they suffered as much as they represented, it was for the general good. Their sufferings were but a partial evil; better that, than the country should be endangered. Admitting that there was no necessity for so much caution on the part of General Jackson, could they not appreciate his motives; and if he erred, could they not have some indulgence for the chief who had led them to victory? What object of personal advantage could he obtain by insisting upon detaining them under arms for a few more days? The obvious reason was that he could not permit such a large number of men to leave the army; the rest would be disorganized and could not be kept together. It was further alleged that these manifestations of discontent would not have taken place, if the incident of the 28th of December had not occurred; and that the "French Party" in the Legislature, who had prevailed upon that body to abstain from voting thanks to General Jackson on account of the secret resentment which they felt against him for suspecting them of being traitors, had stirred up the French in the army to desert it. Such were the crimination and recriminations by which the public mind was still more inflamed.

Several respectable citizens called on General Jackson in the hope of inducing him to reconsider his determination  p585 to expel the French; but they found him inflexible. This intercession having failed, the French were advised to stay quietly at home. "Let us see," said their leaders, "what the tyrant will do. Let him arrest and drag from the bosom of their families, one by one, those who so lately exposed their lives for him and his country. Let him transport them by brute force where he pleases; let him assume that responsibility; but no expressed or implied assent must be given to this usurpation of authority. The French must protest in a body; they must apply to the judicial tribunals for protection and for the punishment of the man who, in his military arrogance, trampled on the laws of his country and the laws of nations." In the meanwhile, the Northern mail brought the news that the treaty of peace had arrived at Washington on the 14th of February. This grateful intelligence excited a general hope that Jackson would declare martial law at an end, but he was immovable, and remained determined to keep everything on the war footing until he received official notice of the ratification of the treaty by the President and the Senate of the United States. The discontent increased, the murmurs waxed louder and fiercer, and from headquarters there came a rumor that Jackson, far from being intimidated, was preparing to arrest some of the ring-leaders. Then the cry rose that Jackson hated the French; that he had never treated them with proper consideration; that he had always kept aloof from the Creole and French population, whose language he did not understand; that he had, notwithstanding his compliments and honeyed words dictated by policy, entertained against them the most insulting suspicions; that, on his arrival, he had systematically surrounded himself with the "new-comers" in the State, and taken as his confidential advisers men  p586 who were notorious for their prejudices against the old population.

To understand the force of this accusation, it must be known that, since thereupon had taken possession of Louisiana in 1803, there had always been in it two parties, designated as the "French" and "American" party, which were bitterly opposed to each other, and invariably pitted in hostile array, particularly in the Legislature. The French party had opposed with violence the annexation to the State of what was called the "Florida Parishes,"​1 because it increased the American population and consequently the American influence; and the American party, for the very same reason, hailed it with enthusiasm. It is difficult, at the present time, to convey an adequate idea of the virulence of feeling then entertained by these two parties, and of the jealousies, injustices, and collisions to which it gave rise. It embittered social intercourse, made a perpetual storm of political life, and, at one time, almost threatened the State with civil war.​2 It was lamentable, and a sad specimen of human infirmities, to see New Orleans, in the hour of triumph, suddenly transformed into an arena of strife and angry passions, where the citizens seemed ready to fly at each other's throats. In this state of excitement, Louaillier, a native of France, but a naturalized citizen, whom we have mentioned several times as one of the leading and most active members of the House of Representatives, and who, although residing in the county of Oppelousas, had remained in town since the adjournment of the Legislature, gave vent to his imprudent indignation in the following publication which appeared  p587 in one of the journals of New Orleans, on the 3d of March:

The very next day, the 4th, Jackson ordered the arrest of Louaillier, and, in explanation or in support of his order, the publication of the Second Section of the Act of Congress for establishing Rules and Articles of War, which reads as follows: "In time of war, all persons, not citizens of, or owing allegiance to, the United States, who shall be found lurking as spies in or about the fortifications or encampments of the armies of the United  p590 States, or any of them, shall suffer death, according to the laws and usages of nations, by sentence of a general court-martial." On Sunday, the 5th, at noon, near the Exchange Coffee House which was then a place of much resort, Louaillier was arrested. He instantly desired Morel, a member of the bar and a man of great energy, who happened to be near him, to adopt legal means for his relief. Morel immediately applied for a write of Habeas Corpus to Martin, who had, at last, been recently appointed with the consent of the Senate, to occupy the seat so long vacant on the bench of the Supreme Court on account of the persevering rejection by the Senate of all the nominations made by the Governor. But Martin refused to interfere on the ground that, in a previous case, the Court had already decided that, having only appellate jurisdiction, it could not issue the writ of Habeas Corpus, especially as it was alleged that the prisoner was arrested and confined for trial before a court-martial, under the authority of the United States.​3 Morel's next step was to apply to Hall, the District Judge of the United States, for a writ of prohibition, to stay proceedings against his client in the court-martial. As it was Sunday, the court was not in session; Judge Hall expressed a doubt of his authority to order such a writ in Chambers, and said he would take time to consider. Morel withdrew, but soon after returned with a petition for a writ of Habeas Corpus, which Hall ordered to be issued after exacting of Morel the promise that he would, before the serving of the writ, have the courtesy to give General Jackson information of his application for it, and of the order of the Court. Morel's communication produced one of those terrific explosions of anger to which, unfortunately, the General was but too much inclined. He immediately wrote to Colonel Arbuckle  p591 that, having received proof that Dominic A. Hall had been aiding, abetting and exciting mutiny in his camp, he desired that a detachment should be sent forthwith to arrest and confine him, and that a speedy report be made of the execution of the order. "You will, "said the General, "be vigilant, as the agents of our enemy are more numerous than we expected. You will be guarded against escape." Hall was an Englishman by birth, and this circumstance perhaps contributed to inflame the wrath of General Jackson.

The judge was arrested in his own house, at nine o'clock in the evening, on Sunday, and taken to the Barracks where he was confined in the same room with Louaillier. As soon as this was ascertained, an officer was sent to demand from the clerk of the District Court of the United States the surrender of Louaillier's petition, on the back of which Hall had written the order for issuing the writ of Habeas Corpus.​4 The clerk replied, that according to the rules of the court, he could not part with any original paper filed in his office, and that he was ignorant of any right in the Commander-in‑Chief to interfere with judicial records. After much solicitation, however, he was prevailed upon to accompany Jackson's emissary to headquarters, and carry with him the document for the inspection of the General. On his arrival, he was asked by Jackson whether it was his intention to issue the writ ordered by the imprisoned judge. The clerk firmly answered that, "It was his sworn duty to do so, and that he, most assuredly, would not fail to perform it." He was threatened with being treated like the judge, but he boldly persisted in his determination, and, on retiring, asked for the return of the petition which he had handed to Jackson for perusal. He met with a peremptory refusal; he was told that  p592 the paper was retained to convict the judge of forgery, because he had altered the date from the 5th, which was originally that of his order, to that of the 6th. This had been done on his reflecting that the fifth was Sunday. At this juncture, an express arrived from Washington, bringing intelligence that the treaty of peace had been ratified, and that the exchange of the ratifications had taken place on the 17th of February, but, "by some unaccountable accident, a dispatch on another subject had been substituted for the one intended to give an official notice of the event," as stated by General Jackson in a communication which he had addressed, some time since, to General Lambert, as already recorded in this History.

The exciting news of the arrival of the courier and of the arrest of Louaillier and Judge Hall had attracted a great crowd to headquarters. It was drawing late in the night. At 12 o'clock, Duplessis, the Marshal of the District Court of the United States, who, during the invasion, had acted as a volunteer Aid to General Jackson, made his appearance in the saloon of his Chief. On seeing him approach, Jackson walked to him hastily, saying: "I have shopped the Judge." Duplessis looked very grave, and uttered no words of approbation; this struck the General. "Is it possible," he said, "that you would have served the writ?" "Certainly," replied Duplessis; "I am the ministerial officer of the Court, and, as such, bound to execute any writ which it may direct to me. I have ever done my duty, and will continue to do so;" and, casting a stern look at the General,​5 whose frowning brows showed his displeasure, he added: "I will, without hesitation, serve the Court's writ on any man. Jackson pointed to a copy of the proclamation of martial  p593 law which was lying on a table, and said with emphasis: "I also will do my duty."

Having taken these energetic measures to give assurance to the public that he would permit no interference with what he thought his legitimate authority, Jackson was becoming more self-possessed, and his judgment was recovering the mastery over the natural heat of his temper, when an orderly-sergeant sent by Colonel Arbuckle, who had Judge Hall in custody, arrived and informed the General that the Judge wished to be permitted to make an affidavit before a magistrate, in order to resort to legal measures for his release, and that Colonel Arbuckle desired to know if the prisoner's application was to be granted. Jackson immediately fired up again at this attempt to resist him; he refused to permit the access of a magistrate to Hall, and ordered the arrest of Hollander, one of the principal merchants of New Orleans, for some reason which has never transpired, but soon after released him. Dick, the District Attorney of the United States, came to the assistance of Hall, and applied to Lewis, one of the District Judges of the State for a writ of Habeas Corpus on behalf of the Judge. Lewis was then acting as a subaltern officer in the Orleans Rifle-company, whose conduct during the invasion had received the special commendation of General Jackson. Lewis did not hesitate, he laid down his soldier's rifle, resumed his functions as Judge, and issued the writ. Jackson instantly ordered the arrest of Dick and Lewis; but Colonel Arbuckle to whom the writ issued by Lewis had been directed, having refused to surrender his prisoner on the ground that he had been committed by the Commander-in‑Chief, under the authority of the United States, Jackson countermanded his orders as to Lewis who had not yet been arrested.  p594 But Dick​6 was confined at the Barracks with Hall and Louaillier.

On the 8th, perhaps as a set-off to the rigor of these proceedings, and as an act of conciliation, Jackson issued the following "general order," disbanding the militia of the State:

This was again another full tribute paid to the patriotism of the Louisianians and a complete vindication, if they had needed any, against all those rumors of disaffection and treason which had been circulated against them:

This was a plain allusion to those against whom he was contending. He then asseverated that a zealous wish for the prosperity of the interesting country in whose defence he had been instrumental by the blessing of Heaven, had induced him "to give this admonitory caution, which those who court popularity might represent to the people as being unnecessary." He, however, valued no popularity but that which arises from a faithful discharge of duty. He assured the Louisianians that, in performing that duty, his sole object had been to secure their happiness, and that he would always consider it as one of the most fortunate incidents of his life, to have contributed by his exertions to the prosperity of their country.

This was very soothing language, and, as he seemed now to be in a relenting mood, he suspended, until his pleasure should be further signified, the order of expulsion he had issued against the French, who, regardless of it, had all remained quietly at home. He stated that he granted that favor at the solicitation of the principal militia companies of the city, who had pledged themselves for the future good conduct of the French subjects. This was pouring some oil on the stormy waves which were every moment lashing themselves into greater fury. But it was too late, and it was not enough. The excitement was too intense, and nothing would have appeased it but the immediate release of the prisoners and the revocation of the proclamation of martial law,  p596 and Jackson was not disposed to yield to that extent, if disposed to yield at all. Those who were most indignant against the General, and were the loudest in the expression of their feelings, were encouraged by the knowledge that Claiborne, who had been accused of timidity and of bending too much under the federal rod, was now disposed to show more energy, and to use what authority he had for the protection of the citizens. The Executive of the State had long been on bad terms with General Jackson, by whom he thought that he had been treated with studied neglect.

When the appointment of the volunteer Aids-de‑Camp to General Jackson, and that of the Judge Advocate, appeared in the "general order" of the 17th of December, 1814, Claiborne had observed to his Aid, Colonel Shaumburgh: "These men will do me much harm, if the General suffers himself to be imposed upon."​7 It seems that Claiborne's apprehensions were soon verified. "From that moment," wrote Shaumburgh to Claiborne, "the intercourse between you and the General became less frequent, and I know also that the General often found fault with you; but whether it proceeded from the intrigues of those gentlemen, I am not able to determine; I am, however, aware that were every one your enemy." On the 23d of December, when the troops were marching from the city to meet the British on Villeré's plantation, Claiborne, at the head of three regiments of militia was moving rapidly in that direction, when he received the order from General Jackson to turn back and occupy the Gentilly road. This order dampened the enthusiasm of the men, as all of them were anxious to meet the enemy, and produced for a moment among them a feeling of discontent, which broke out into murmurs. On that occasion, Claiborne  p597 turned to Shaumburgh and said: "Do you see that, sir? This is the beginning of a plan devised to keep me in the background." Shaumburgh disagreed with the Governor, and expressed the opinion that it was highly necessary that the Gentilly road should be strongly guarded, as the landing of the enemy below the city might be merely a false attack. Claiborne retained his first impression, however, and the coolness between him and Jackson sunk every day to a lower degree of refrigeration. On the 24th of February, he had ventured to send to Jackson the following communication:

Claiborne does not appear to have had any reason to congratulate himself on the manner in which his suggestions were received, and, on the same day, addressed this communication to Mazureau, who had succeeded Martin as Attorney-General for the State:

Claiborne also took the rather extraordinary step of sending to Governor Shelby of Tennessee and other persons in authority, a circular,​8 in which he said:

All these proceedings seemed to indicate preparations to resist the federal authority exercised by Jackson. The public mind was, therefore, much agitated at the prospect of such a conflict. Claiborne​9 had been heard to declare in words of mysterious import: "That serious difficulties would be shortly witnessed in New Orleans." Large meetings of citizens were held; some suggested that a formal request should be addressed to the Governor, to put himself at the head of the militia of the State, and that Duplessis, the Marshal to United States District Court, be invited to call out the posse comitatus of the district, to support the authority of the judiciary. Fortunately, the counsels of moderation prevailed, and no other act of violence was perpetrated than the destruction of a transparent portrait of General Jackson, which had been displayed in the main hall of the Exchange Coffee House. A number of officers immediately assembled, and compelled the proprietor of the Coffee House to exhibit a new transparent like the preceding one, and illuminate the hall in more than the usual manner.​9 They took their stand near the obnoxious painting, with the obvious intention of resisting by force any attempt to pull it down. It is even said that troops were in readiness to march to the Coffee House on the first summons. New Orleans had become like a magazine of gunpowder; the least spark might have produced an explosion.

Livingston, the great jurist, who was one of the Aids, the confidential adviser, and the bosom friend of General Jackson, was suspected of not disapproving, if he had not sanctioned or suggested the proceedings to which  p600 Jackson had resorted. He had become an object of execration to many; he truckles now, they said, to that very tyranny which he so courageously opposed in 1806, when he confronted General Wilkinson. Are we not now in the very same circumstances which he described "as so new in the history of our country, 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, 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 circumstances that must command attention, and excite corresponding sentiments of great indignation and contempt." Such was his language in former days. He then said:

What more appropriate in the present state of things than the emphatic expressions used by him in identical circumstances:

How comes the same man, it was asked, to act so differently from his antecedents? How comes he now to be found in the proconsul's office? Is it because General Wilkinson was then thwarting his views, and General Jackson is now favoring them? But if he does not continue true to the liberties of the people, said those who denounced him, we shall profit by his former advice, and "give no pretext" to General Jackson for indulging in his favorite acts of violence.

The multitude were therefore advised to be satisfied with giving vent to their indignation in words, but to abstain carefully from any outbreak or riot, and whilst waiting a few days longer for the official news of the restoration of peace, to repeat to General Jackson and his advisers what the eloquent Workman had said to Wilkinson in similar circumstances:

Meanwhile the Court-martial had met, and, presided by General Gaines, was proceeding with the trial of Louaillier. There were seven charges against him:— 1. mutiny; 2. exciting mutiny; 3. general misconduct; 4. being a spy; 5. illegal and improper conduct and disobedience to orders; 6. writing a willful and corrupt libel; 7. unsoldierlike behavior and violations of  p602 the proclamation of martial law. All these charges rested on one single fact — the publication of the 3d of March — and show what varieties of guilt could be extracted from it. The prisoner, when brought to the bar and arraigned, refused to answer, and the plea of not guilty was ordered to be entered. His counsel pleaded to the jurisdiction of the Court, on the ground that the accused was a member of the Legislature, and, as such, exempt from militia duty; that the rules and articles of war were expressly established for the government of the Army and Navy of the United States, and were not binding on any individual out of it; that his 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;​10 that the proclamation of martial law made no one a soldier who was not so before; that the proclamation of martial law was a mere warning that it would be enforced as it previously existed, and not the creation or introduction of something new. What was martial law in the United States? It was no more than that code of regulations by which their martial affairs were to be governed. By what authority was that code to be established? By the Legislative power alone, and by that power accordingly it had been framed and made binding upon the land. Congress had prescribed rules and articles of war, and the President of the United States himself, as Commander-in‑Chief, could not add anything to their provisions nor modify them in the slightest degree. He could no more make martial law, than he could fiscal, commercial, or criminal law. It is the province of the Legislature to enact a law; it is the  p603 exclusive right of the Executive to proclaim and to enforce it. In the establishment of the rules and articles of war as prescribed by Congress and in their legal application there was nothing, it was alleged, incompatible with the rights of the citizen, and the independence and ordinary authority of the Judiciary. On the other hand, it was maintained that, by universal usage, when martial law is proclaimed in a place, all the citizens are subjected like the soldiers to the severity of military regulations, and that Louaillier could not therefore claim any exemption from them; that he was in Jackson's camp, and as long as he remained there, and the proclamation of martial law was not revoked, all his acts were liable to be tried by a court-martial in conformity with the rules and articles of war existing in the United States. The Court sustained Louaillier's plea to its jurisdiction as to all the charges, except that of being a spy. The ground of this decision was, that Louaillier, not being in the service of the United States, could not be tried by a court-martial in relation to the other charges submitted to their consideration; but they declared themselves competent to take cognizance of the accusation brought against him of being a spy.

The decision of the Court was manifestly wrong as to the last part of it; they had no authority, under the 2d section of the rules and articles of war, to try Louaillier as a spy, because he was a citizen of the United States, to which he owed allegiance. In the case of Elijah Clark, condemned, in 1812, to be hung as a spy at Buffalo, in the State of New York, by sentence of a court-martial, the execution being suspended by General Hull until the pleasure of the President of the United States should be known, 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 court-martial as a spy, the President  p604 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." In case of Smith, a naturalized Scotchman, claiming damages for false imprisonment, the Supreme Court of the United States decided, that, "as he was an American citizen, he could not be chargeable with such an offence as that of being a spy; that he might be amenable to the civil authority for treason, but could not be prosecuted under martial law, as a spy." The Court, however, although maintaining that they had jurisdiction to try Louaillier as a spy, acquitted him of the offence, on the ground that there was no evidence before them of his being found "lurking about any fortification or encampment of the Army of the United States." Whatever may be said of the other charges brought against Louaillier, it must be admitted that the one which placed him before the Court-Martial as a spy was most extraordinary, for it was a matter of public notoriety that he was a member of the Legislature, in which he had acted a conspicuous part; therefore a citizen of the United States; and not only was he not found lurking about any fortification or encampment, but he had openly taken an attitude of defiance against the Commander-in‑Chief, whom he had attacked by a publication which was destined to meet that commander's eye immediately after its appearance. But, setting aside the rules and articles of war as established in the United States, what is a spy in the common acceptation of the word? "It is a person​11 sent into an enemy's camp to inspect their works, ascertain their strength and their intentions, to watch their movements, and secretly communicate intelligence to the proper officer." Certainly, it is difficult to imagine how General Jackson, even when laboring under the greatest  p605 excitement, could persuade himself that this definition of a spy could apply to Louaillier's character and position. On his being informed of the decision of the Court, which was given on the 9th, he had another of his explosions of wrath. He refused to release the prisoner, and, on the next day, issued the following General Order:

It seems, from the language and conduct of General Jackson, that his understanding of martial law was very different from the one entertained by the jurists; that he had concluded that the proclamation of martial law carried within itself, as a necessary consequence, the suspension of the Habeas Corpus, of all civil laws and constitutional privileges within the sphere of its action; that it vested absolute authority in the Commander-in‑Chief, and was a thing so plastic and comprehensive that it embraced and meant whatever the "sole guardian of the public safety" deemed expedient — an opinion which is generally favored by military men in such circumstances.

After the decision of the Court-Martial in the case of Louaillier, the General foresaw that he had nothing to hope from the trial of Hall for aiding, abetting and exciting mutiny in his camp. The sentence of the Court would, of course, have been a foregone conclusion. Therefore he gave up the idea of a criminal prosecution, and, putting the prisoner under a strong guard, ordered him, on the 11th of March, to be led several miles beyond the limits of the city, where he was left, with a prohibition to return "before the ratification of treaty of peace should have been regularly announced, or the British should have departed from the Southern coast."  p609 On the 18th, early in the morning, the inhabitants of New Orleans were awakened by the firing of cannon, repeated at measured intervals. They rushed into the streets for inquiry, and in gladsome expectation of hearing the official news of the ratification of the treaty of peace. They were not disappointed; a courier had arrived, at the dawn of light, with the important document which had been so long desired, and with instructions from the President, directing General Jackson to issue a proclamation for the pardon of all military offences. There could be no longer any excuse for retaining Louaillier in custody; the doors of his prison were thrown open; the proclamation of martial law was revoked; the French Consul came back to resume his functions, and Judge Hall returned to town amidst the acclamations of the citizens. He was greatly and universally esteemed, and was described​12 "as a magistrate of pure heart, clean hands, and a mind susceptible of no fear but that of God."

General Jackson communicated "with satisfaction" to the troops under his command the testimonials which had been sent him of the "just sense which the President of the United States entertained of their patriotism, valor and good conduct," and congratulated them particularly on "their being able to receive this applause with the consciousness of having deserved it." In the communication which James Monroe, Secretary of State, had addressed on the subject to Jackson in the name of the President, were the following lines, which were received with pleasure, as making amends for suspicions which ought never to have been entertained: "To our newly adopted fellow-citizens of Louisiana you will give assurance of his great sensibility to the decided and honorable proof which they have given of their attachment  p610 and devotion to the Union, and of their manly support of the rights of their country."

On the 14th, General Jackson began to take the necessary measures to disband the troops, and to restore to their usual peaceful avocations, and to their respective States, Tennessee, Kentucky, Louisiana, and to the Territory of Mississippi, the brave men who had acted such a distinguished part in the war which had just terminated. Those who could not be removed without imminent danger of their lives were to be well accommodated, and supplied with hospital stores, and a sufficient number of surgeons were retained to attend them. Contractors were to furnish provisions to the troops on their return march, on the re­quisition of their respective commanding officers, who were instructed to use every care and attention to prevent depredations on private property, and who were admonished that they would be held personally responsible to indemnify the sufferers, agreeably to the regulations of the War Department, for all damages done or property injured or destroyed by their commands. His farewell address to his late companions-in‑arms was dignified in tone, tender and affectionate in sentiment:

Two days after, on the 16th, the "City Battalion of Uniform Companies" presented to General Jackson an address glowing with a warmth of feeling which seemed to attest its sincerity. This address was signed by seventeen officers, all of whom, with the exception of two,  p612 were French, or of French origin,​13 which shows that the whole of that population was not alienated from General Jackson by the course which he had lately pursued against those with whom they were connected by language and the pride, communion, and endearments of race:

We shall give in full the reply of General Jackson, because it is evidently written with great care and intended as a vindication of those energetic measures which he had lately adopted, and which had produces such a commotion in the city of New Orleans:

It appears by this document that General Jackson unequivocally admitted that he had violated the Constitution and the laws, but alleged in his justification that it had been done as a matter of necessity for the protection and safety of the country. There were many who were convinced that this necessity had never existed, that a dangerous precedent had been established, and who were determined that the prestige of history should not shield against punishment the man who, in their opinion, had wantonly trampled on the dearest rights  p616 and privileges of his fellow-citizens. With these views, Dick, the District Attorney for the United States, immediately after the return of Hall, lost no time in calling the attention of the Court to those proceedings which had culminated in closing by violence one of the tribunals of United States. The Judge, however, refused to entertain any such proposition for the present, stating that the laws would assert their majesty and supremacy in due time, but that, to celebrate the restoration of peace, a few days of public rejoicings should be allowed to pass by without any interruption of an unpleasant nature. But, on the 21st of March, Dick was permitted to proceed against General Jackson. He represented to the Court that, more than six weeks after the enemy had evacuated Louisiana, there had been a publication animadverting on the official conduct of the Commander-in‑Chief; that the author of it had been arrested as a spy and for other crimes, and a court-martial assembled to pass sentence on him; that the prisoner, thinking that his arrest was illegal, that the Court had no jurisdiction over him, being deprived of liberty and threatened with death in case of conviction, had applied to that tribunal which, under the Federal Constitution, had specially been established to prevent such abuses, and give him the protection to which he was entitled; that the Judge presiding in that tribunal, on taking the proper steps, according to the petition of the plaintiff, to investigate the matter, was himself arrested by order of the defendant, and thereby the course of justice obstructed; that the clerk of the Court had been compelled to carry a record of the Court to headquarters, where it was taken and withheld from him; that the said clerk and the marshal of the Court had been threatened also with arrest if they performed their duty; that these transactions had taken place when there was not the least prospect of the renewal  p617 of hostilities, or the least appearance of danger from any quarter, but, on the contrary, after "persuasive" information had been received from various sources as to the existence of a lately signed treaty of peace between Great Britain and the United States; whereupon, the District Attorney, having laid before the Court the necessary affidavits, moved for a rule to show cause why process of attachment should not issue against General Jackson for contempt of Court. The motion was granted, and on its return day, Reid, one of the General's Aids, accompanied him to the court-house, and presented a paper sworn to by the General, as his answer to the rule. It was a solemn protest against the unconstitutionality and illegality of the proceedings; a denial of the authority of the District Attorney to institute it, as well as that of the Court to punish him for the alleged contempt. General Jackson further maintained that, if he was accused of any statutory offence, the prosecution should be carried on by presentment or indictment; and that in such a case he could not be deprived of a trial by jury. As to the charge of contempt, he counsel urged that it had not been committed in Court; and several other technical objections were also presented.

In the concluding part of this document, the proclamation of martial law, says Martin in his History, was justified on the report which the General had received of the disaffection and seditious disposition of the French portion 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 defendant entertained, that it was within his authority.  p618 The proclamation of martial law was held to have made the publisher of the libel a soldier, and his offence cognizable by a court-martial, and the imprisonment of the Judge was said to have been a matter of necessity.

"The Attorney of the United States opposed the reading 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 interrogatories put by the officer who conducted the prosecution were conclusive evidence.

"In the present stage of the cause, the inquiry was confined to the sufficiency of the facts sworn to — whether they did constitute an offence — and one which did support a prosecution by process of attachment. When the hearings would be on the merits, the defendant might avail himself of his answers to interrogatories, to show that the facts in the affidavits on which the rule was obtained were not true. The Judge took time to deliberate."

On the next day he said:

Arguments of counsel were therefore patiently listened to on all the "exceptions taken, and on all the questions of law" which incidentally arose; after which the rule was made absolute, and the case ordered to be tried on its merits on a particular day. On that day the excitement was intense in the city; the timid expected bloodshed, and, being haunted by imaginary terrors, confined themselves to their homes; the greater part of the population, however, was not of this disposition, and an immense crowd assembled at an early hour round the court-house. Many were moved by curiosity; others by feelings of sympathy for the General, or resentment and indignation against the Judge. Among the most ardent against the latter were remarked the Baratarians, who were said to nourish toward him the bitterest hostility, on account of his having been very strict on several occasions, when prosecutions had been instituted against some of their leaders. They were represented as panting for an opportunity to  p620 wreak their vengeance on the magistrate whose inflexible rigor they had experienced to their cost. Distinct threats would occasionally burst from the impatient crowd; and one voice was heard to exclaim, "Let the General say but one word, and we will pitch into the river the Judge, the lawyers, and the court-house itself." This sentiment was greeted with fierce shouts of applause. At last, the long-expected hour had arrived. The General, followed by a numerous escort of officers, entered the hall of judgment, which was crowded to suffocation. The dense multitude had opened before him as he advanced and then closed again in deep silence; but when he reached the bar where he was to stand as a culprit, and confronted the Judge on his seat, one wild yell of defiance, which was echoed by the multitude outside, swept over the building and seemed to shake the roof and walls against which it reverberated. Jackson looked round with an expression of calm and august majesty, which was long remembered by those who saw his commanding features on that occasion; he only waved his hand in rebuke, and instantly order and silence were re-established. Then turning to the Judge, he slightly bowed his head, as if he meant to say: I am here in obedience to your command. The Judge looked as serene and impassible as if nothing unusual had happened. There was a grandeur in the scene which struck all the bystanders. Presently the clear voice of the Judge was heard: "Mr. Clerk, proceed with the business of the Court." The Clerk called the case: "The United States vs. Andrew Jackson." The General rose, and, with much dignity, signified to the Court his intention to decline answering interrogatories — a determination to which he said he had come, on account of the Court having refused his answer to the rule to be read. The Court replied, that it was for him to decide on the proper course  p621 to be pursued in his own defence, and that every indulgence had been extended to him which the law authorized.

The District Attorney of the United States now rose to address the Court;​14 we give a synopsis of his remarks:

We regret to record, that General Jackson so far forgot what was due to his personal dignity and to his national reputation, as to allow himself to be persuaded to resort to a petty quibble, in order to avert the judgment of the Court. He was made to asseverate that his intention had been to imprison Dominick A. Hall, and not the Judge. Dick coolly referred him to the affidavit of his own Aid, Duplessis, the Marshal of the Court,  p625 who swore to his having used these words: "I have shopped the Judge."

The case was closed, and sentence remained to be passed. The Court said that it was becoming to manifest moderation in the punishment of the defendant for the want of it; and that, in consideration of the services the General had rendered to his country, imprisonment should make no part of the sentence, which was limited to a fine of one thousand dollars and costs. It was instantly discharged, and the General, on his coming out of the court-house, entered his carriage; the horses were removed, and the people enthusiastically dragged it to the Exchange Coffee House, where he addressed a large crowd in a manner worthy of himself. "I have," he said, "during the invasion, exerted every one of my faculties for the defence and preservation of the Constitution and the laws. On this day, I have been called on to submit to their operation under circumstances which many persons might have thought sufficient to justify resistance. Considering obedience to the laws, even when we think them unjustly applied, as the first duty of the citizen, I did not hesitate to comply with the sentence you have heard pronounced, and I entreat you to remember the example I have given you of respectful submission to the administration of justice." The citizens insisted on refunding to him the amount of the fine he had paid, on the ground that they considered it their own debt; but he peremptorily refused.

A reaction had taken place in favor of General Jackson, even among his most violent opponents, on account of the propriety and nobility of his late deportment. It would have been well for him to have permitted things to remain as they stood; but, either guided by some malignant adviser, or goaded by the rashness of his own temper, he published, a few days after, in one of the  p626 journals of New Orleans, the answer he had offered to the District Court, preceded by an exordium,​15 in which he complained that the Court had refused to hear it. He added, that the Judge "had indulged himself, on his route to Bayou Sara when driven out of the city, in manifesting apprehensions as to the fate of the country, equally disgraceful to himself, and injurious to the interest and safety of the State," and concluded: "Should Judge Hall deny this statement, the General is prepared to prove it fully and satisfactorily."

This provocation and this reopening of the conflict did not remain long unnoticed, and the following piece appeared in answer:

The General probably discovered, but too late for his honor, that he had imprudently taken a position which he could not sustain; for he remained silent, and thus left all the advantage with his adversary. It must have been to him a source of deep humiliation to retire from the conflict which he had invited, without redeeming the word which he had pledged with such solemnity. It  p627 gratified the malice of his enemies, and it mortified his friends. He soon after departed from the theatre of his glory. We now dismiss him from the pages of this History, after having represented his acts and character with those lights and shades which appertain to them, and observed that strict impartiality of truth which we have considered as our sacred duty. He lived to be twice elected President of the United States, and to exercise over the destinies of his country an influence which was still felt long after he had descended into the grave. He would have saved himself from many difficulties and painful struggles, if the iron bar, to which his indomitable will was compared, had been lined with silk or velvet, and if he had not neglected those arts of conciliation which are not incompatible with the utmost firmness of purpose and rectitude of conscience. But he always preferred to break through, than to go round, any obstacle. Such as he was, however, he commanded more than any other man ever did the instinctive sympathies of that vigilant, restless, thoroughly democratic commonwealth among which his lot had been cast, and whatever his faults were, his country remembers only his virtues, his patriotism and his glory.

The following Resolutions, complimentary to the people of Louisiana, and of New Orleans in particular, were unanimously adopted by Congress:

The President of the United States issued a proclamation declaring "a free and full pardon" of all offences committed in violation of any act or acts of Congress touching the revenue, trade and navigation of the United States, or touching the intercourse and commerce of the United States with foreign nations, at any time before the 8th of January, in the year eighteen hundred and fifteen, by any person or persons whatsoever, being inhabitants of New Orleans and the adjacent country, or being inhabitants of the Island of Barataria and the places adjacent, in the State of Louisiana.

Before the end of the Spring, Louisiana, which had been so recently in a condition of tumultuous agitation,  p629 had returned to the unruffled calmness of a state of profound peace. There were hardly any traces left of the late invasion, save angry discussions which would occasionally arise in relation to those misunderstandings which had existed between General Jackson, the Legislature, the Governor, Judge Hall and other prominent individuals. It was the remaining, but subsiding turbulence of the waters, after the storm had swept away. Claiborne had been severely blamed by some for having put the whole militia of the State under the command of a Federal officer, and for having thereby made of her Executive a nullity for the protection of her citizens. At the next session of the Legislature, he noticed this charge in these terms, in his annual message:

Availing himself of this opportunity to express his views in relation to the perturbation in New Orleans that had been produced by the course which General Jackson had deemed proper to pursue, after the retreat of the invaders, the Governor further said:

The annual messages of our Governors, for some time after the formation of the State, used to be responded to, as the speech from the throne, on the opening of the sessions of the British Parliament, calls for an address from that body. This usage has since been discontinued. On this occasion, in reply to that part of the Governor's message in which he alluded to the violent measures pursued by General Jackson, the House of Representatives said: "Great indeed is the cause for patriotic exultation in the glorious defence of this country, and the rescue of this capital from the manifold dangers with which it was menaced. To Heaven, to the hero who led our forces, and to the brave men composing them, we owe the greatest gratitude; and where there is so much to admire, we are not disposed to dwell upon some deeds which we cannot approve."

---

The Author's Notes:

1 See page 273.

2 See the testimony given before the Committee to investigate the causes which gave rise to a military interference with the Legislature on the 28th of December, 1814.

3 Martin's History, p394, vol. 2, Do. p395.

4 Martin's History of Louisiana, p397.

5 Martin's History of Louisiana, p398, vol. 2.

6 Claiborne's Letter to the Secretary of State, March 10, 1815. Executive Journal.

7 Executive Journal, Correspondence between Claiborne and Shaumburgh.

8 Executive Journal.

9 Martin's History, p405, vol. 2.

10 Martin's History, p404, vol. 2.

11 Webster's Dictionary.

12 Martin's History of Louisiana, p416, vol. 2.

13 Their names were J. B. Plauché, St. Geme, M. White, A. Guibert, Hudry, P. Roche, St. Jean, Coeur de Roy, De St. Romes, N. Thompson, C. Fremont, Duhulquod, L. Pillé, Benetaud, Huet, Lemounier.

14 Martin's History of Louisiana, p422, vol. 2.

15 Martin's History of Louisiana, p425, vol. 2.

---

Thayer's Note:

a Louis de Tousard, though a French citizen, was not quite as French as it might seem here. A soldier by profession, he served in the American Army during the Revolution, and has half a claim to being the founder of the United States Military Academy. His background and his proposal to the American Secretary of War (1798) for a military school are examined in some detail in "The Forgotten 'Founder' of West Point", Military Affairs 24:177‑188.

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