Much to the satisfaction of the people of New Orleans in these exciting times, the Legislature met in that city on the 12th of January. Two days after, General Adair arrived from Tennessee, passing through the Choctaw Territory, and was the first to herald his own arrival, which took everybody by surprise. He reported that Colonel Burr, attended by a servant only, would be in New Orleans in three days.1 Whatever were the intentions of Adair, he had not much time left him to execute them. In the afternoon of his arrival, whilst he was resting from his journey, the hotel where he had stopped was surrounded by one hundred and twenty men of the United States troops, commanded by Lieutenant-Colonel Kingsbury, accompanied by one of Wilkinson's aids. General Adair was dragged from the dining-table, and conducted to headquarters, where he was put in confinement, to be shipped as soon as the opportunity should present itself.2 Strong patrols paraded through the streets, and several other persons were arrested, among whom were Workman, Kerr and Bradford. The commotion produced in the city may easily be imagined. p175Wilkinson, however, ordered Bradford to be released without further delay, and, on the following day, Workman and Kerr were discharged on a writ of Habeas Corpus granted by the District Court of the United States. On the 15th, Claiborne communicated these facts officially to the Legislature, and said:
"The state of things here for some time past has been most unpleasant; the judges are greatly dissatisfied, and there are many persons who much censure the General, and also myself for not opposing his measures with force. There are others again, perhaps a majority of the inhabitants of the city, who applauded the measures pursued, and think them such as could alone insure the general safety. For myself, I believe the General is actuated by a sincere disposition to serve the best interest of his country; but his zeal, I fear, has carried him too far. [. . .]
"My apprehensions of Mr. Burr and his associates have, in a great measure, subsided; but the security I now feel may be attributed to the preparations which have been made here to meet danger. My impressions are strong that there are many dissatisfied persons in this city. There are a few citizens whom I believe to be unjustly implicated — others to whom a charge of imprudence alone ought, probably in truth, to attach; but there is good reason to suppose that some persons here (from whose standing in society a contrary course was expected) meditated much mischief. They, however, are now unable to produce any."
On the 19th of January, the Governor sent to General Wilkinson a long communication, in which he submitted to him his plans to secure the complete protection of New Orleans.3 "From the influence of the President's proclamation," he said, "and of the present friendly disposition p176toward the General Government of the people of Kentucky and Ohio, as manifested by some late proceedings of their Legislatures, united with the preparations for offence and defence in this city, my impressions are that Colonel Burr will not descend the Mississippi in considerable force. [. . .] It seems to me that Colonel Burr, abandoning (from necessity) the idea of moving in force, may endeavor to introduce into this city and its vicinity (unobserved and as private adventurers) a number of partisans for the purpose of carrying the place by surprise. In this event, the regulations herein proposed must prove salutary." [. . .]
It is a remarkable fact that, at this critical conjuncture, Governor Folch, who had always been so inimical to the Americans, happened to arrive from Pensacola at the mouth of Bayou St. John, with four hundred men, ostensibly on his way to Baton Rouge, and wrote to Claiborne to obtain permission to proceed to New Orleans with the officers of his suite, and hence to continue his route to his place of destination. Claiborne replied: "I am sorry to oppose any obstacle to your Excellency's desires, but in the present state of affairs in this Territory, and to avoid all causes for rumors which, although unfounded, may add to that agitation in the public mind which has been occasioned by the news, this moment received, of the arrival of Burr and his associates in the Mississippi Territory, I am constrained to request that your Excellency would continue your voyage by water."4
On the same day, Claiborne and Wilkinson wrote jointly to the acting Governor of the Territory of Mississippi, Cowles Meade, in these terms: "Understanding p177that Aaron Burr has taken post within the Territory over which you preside, we cannot but express our solicitude, lest his pretensions to innocence, and the arts which he may employ to delude and seduce our fellow-citizens from their duty to their country, may be partially successful. We rely with confidence on your exertions to seize the arch-conspirator, and having done so, permit us to suggest for your consideration the expediency of placing him without delay on board one of our armed vessels in the river, with an order to the officers to descend with him to this city. Otherwise, if his followers are as numerous as they are represented to be, it is probable it may not be in your power to bring him to trial. We take this occasion to advise you confidentially to keep a strict eye upon the Spaniards. Governor Folch is proceeding to Baton Rouge with four hundred men."
On the 22d of January, the Legislative Council, in their response to the message by which the Governor had opened their session, said: "It is indeed difficult to believe that, in the bosom of a Government the most free that exists on earth, plots, the success of which must be fatal to liberty, should have been formed. If, however, it be true that the ambitious and depraved men who have conceived such criminal projects have found proselytes, the Legislative Council are convinced that it is not amongst the ancient inhabitants of this Territory, and that, notwithstanding the dissatisfaction which they once manifested openly when they thought themselves aggrieved, there is no perfidy, no treason to be apprehended from them by the General Government. If they do not yet possess all the privileges enjoyed by the American citizen, they already set so much value on the rights which have been granted to them, that their late privation of those rights in the present stormy circumstances have created among them the most serious p178alarms." The Council thus alluded to the high-handed measures lately enforced by General Wilkinson, and to his arbitrary arrest of citizens who were under the aegis of those civil authorities which military power had attempted to supersede. A more marked tone of discontent pervaded the address which the House of Representatives sent to Claiborne on the 26th of the same month: "With regard to the extraordinary measures," they said, "which have taken place for some time past in this Territory, although your Excellency has not thought proper to reveal to the Legislature the reasons which have led to them, yet this House considers it as a sacred duty which they owe to themselves and their fellow-citizens, fully to investigate those measures and the motives which have induced them, and to represent the same to the Congress of the United States."
Claiborne thus commented on these two addresses in a communication to the Secretary of State:5 "You will perceive by these two documents that the Legislature partakes in a great measure of that agitation which at present pervades the public mind, and that, although the measures lately pursued here, with a view to the public safety, are not openly censured, yet they are not approved. We, however, are assured of the fidelity of the ancient Louisianians to the United States, and of their attachment to the General Government. For myself, I believe that this declaration is correct so far as relates to a majority of the ancient Louisianians, and perhaps the whole, so far as to exempt them from all participation in Burr's conspiracy, but of that portion of our society whose native language is English, I cannot speak so favorably. Of the patriotism of many I have had abundant proofs; but there are others (and the p179number, I fear, is not inconsiderable) who, I verily believe, would most cordially have supported the views of Burr."
In the mean time, the news reached New Orleans that Burr had been arrested at Natchez, and had given bond for his appearance before the Territorial Court at its next term. Claiborne expressed again on this occasion his apprehension that the issue of the trial would be "most unfortunate." He said:6 "His acquittal will probably ensue, and this dangerous man will be left to continue (undisturbed) in this remote and exposed quarter his wicked intrigues against the Government of his country. I find that in Natchez also, as in this city, a considerable hue and cry is raised about the violation of the Constitution of the United States. I am persuaded that many good citizens complain from the very best motives, and with full conviction that there is just cause; but among the most clamorous are men who, I have some reason to believe, would not regret a dismemberment of the Union, or withhold their aid in the subversion of the Government and laws. These men, however, are now most profuse in their professions of attachment to constitutional rights, and many good people hang around them with the same affection as if they really possessed the merits of a Hampden or a Sydney."
On the 10th of February, Claiborne received a letter from John Graham, the Secretary of the Territory of Orleans, written from Frankfort in Kentucky, in which he was informed that Blannerhasset (made immortal by a celebrated passage in Wirt's speech on the trial of Aaron Burr), who had gone down the Ohio with about two hundred men and twenty boats, had proposed, in September, 1806, to one of Graham's friends, in whose veracity p180the fullest confidence was to be placed, to join him, Blannerhasset, and Colonel Burr, in a plan to bring about a dissolution of the Union, and that, after pointing out the advantages which would result to leading men from the erection of a separate government on this side of the Alleghanies, and after observing that the people were ripe for such a measure, he had said that their plan would be to go with an armed force to New Orleans, to seize that place, and after getting the money in the banks, the military stores and French artillery which had been left there, to force the country into a separation from the Atlantic States by operating on its commerce.7
"My solemn belief is," wrote Claiborne to the Governor of the Territory of Mississippi, "that the seizure of this city and her riches was the primary object of the conspirators, and the dismemberment of the Union the ultimate end of the leaders. I believe the horrible plot has been promoted by foreign influence; that Spain has furnished Burr with his pecuniary means; that the agents of that power in our vicinity were advised of his movements, and that the late events on the Sabine were intended to draw the attention of our Government from the real point of attack. The expedition to Mexico I believe to have been suggested by the arch leader, with a view of covering the real design, and inducing men (whose hearts would have revolted at the idea of arming against their country) to receive his orders. You will have seen by the Kentucky papers a disclosure of the project of the Spanish Court, in 1797, to sever the Western from the Atlantic States, and means which were proposed to effect it. In 1797, the Spanish Court desired to narrow the Western limits of the United States; in 1807, her object is the same; and to accomplish p181it, she endeavors to excite among us intestine divisions."
"Under these impressions," continued he, "I do not consider the danger as passed; and while it becomes us to guard against the arts of domestic traitors, we should also watch with care the movements of our Spanish neighbors."8
Apprehending such dangers, Claiborne sent a message to the Territorial Legislature, recommending to their consideration the expediency of suspending the privilege of the writ of Habeas Corpus. He immediately informed the Secretary of State, at Washington, of the step he had taken, and said to him:9 "If I can acquire possession of Burr, Blannerhasset, or Tyler, I shall take means to convey them to the City of Washington, for it is there that these great offenders will probably meet the punishment they deserve. The trial of Burr at Natchez will determine in his acquittal, and I shall be disappointed if (as was the case in Kentucky) the jury do not eulogize his conduct." Ten days later, returning to the subject, he wrote to the same functionary:10 "I have good reason to believe that Irujo, the Spanish Minister, under an impression that Burr's sole object was a division of the American Union, did give countenance and aid to the traitor. I am told by a person attached to the Spanish service that Irujo, early in the last year, advised the Governors of Havana, Pensacola and Baton Rouge of the designs of Burr, and that Folch and Grandpré were advised to place at the disposition of Burr such cannon, muskets, and ammunition as they could conveniently spare. My informer gives it as his opinion that, had Burr appeared before Baton Rouge three weeks ago, p182the fort would immediately have been surrendered to him; but that Irujo's last dispatches had given great alarm to the Spanish agents, and had put them upon their guard against the traitorous adventurers."
Much to the mortification of Claiborne, the Territorial Legislature refused to suspend, or to put under any restriction whatever, the writ of Habeas Corpus, on the ground that it would be a violation of the Federal Constitution. On the 3d of March, however, he was relieved by the news that Burr, who had fled from the Territory of Mississippi, had been again arrested near Fort Stoddard, in Alabama, by Lieutenant Gaines. But he retained a considerable degree of alarm as to the effect which his course of action might have produced on many influential men in the United States, whose opposition, or animadversion, he was not willing to encounter — among others, Andrew Jackson, since so famous, to whom he wrote on the 31st of March: "Doctor Claiborne can also state the reasons which influenced my conduct during the late interesting crisis. I have been the more solicitous to advise the Doctor of particulars, in order that he might the more readily assure my friends of Tennessee that the purest motives of honest patriotism continue to direct all my acts."11
He was particularly solicitous about justifying his application to the Legislature for the suspension of the writ of Habeas Corpus, and thus attempted to conciliate the approbation of Andrew Jackson, whose future importance he seems to have foreseen: "The inclosed paper will furnish you with copies of the addresses and answers referred to in my last letter, as also a copy of my message of the 10th of February to the Legislature, recommending a suspension of the writ of Habeas Corpus. p183This message will probably draw down upon me the censure of some whose good opinion I am solicitous to retain, but the man who (regardless of personal consequences) will not do that which his judgment approves, is unworthy of confidence, either public, or private. You should judge of my conduct by the magnitude of the danger as it appeared to me, not as it has turned out to be. Thus keep this consideration in view, and I am fully persuaded that you will be among those of my friends who will not condemn me. With respect to the expediency of suspending the Habeas Corpus at the period the message was communicated, and with regard to the powers of the Legislature to do so, I have no doubt. The judges, however, and the District Attorney, Mr. Brown, say, they have examined the ordinance by which the Territory is governed, and unite in opinion that the Legislature thereof has not the power to suspend the writ of Habeas Corpus. But, if the gentlemen had carried their researches a little further, and examined also the Constitution of the United States, I am inclined to think that their opinion would have been otherwise. The ordinance was passed in 1787; its language is: That the people shall always be entitled to the privilege of the writ of Habeas Corpus and the trial by jury. It is therefore conceded that, until the Constitution was adopted and became the supreme law of the land, the power nowhere existed to suspend the Habeas Corpus in the North-western Territory. But the Constitution declares that the Habeas Corpus shall not be suspended except in times of rebellion, or danger of invasion. Here then a power to suspend is recognized, nor is it among those powers exclusively delegated to Congress, or prohibited to the State; hence it follows that (by the amendments to the Constitution) the power is reserved to the States. If a State, therefore, p184can suspend the Habeas Corpus, I contend that a Territorial Legislature can do likewise, for their powers extend to all the rightful subjects of legislation, and those are rightful which the supreme law of the land (the Constitution) recognizes." It is evident from what precedes that there was in those days an approximation to that doctrine of Territorial embryo Sovereignty, which has lately been the subject of so much discussion. Claiborne addressed also a letter of the same import to George Poindexter, whose approbation of his course he was desirous to obtain in the Burr conspiracy.
On the 2d of April, Claiborne forwarded to the Secretary of the Treasury a list of the public buildings, and lots owned or claimed in New Orleans by the United States.12
He added, that he would endeavor to procure a survey of the lots, accompanied with a drawing which would show their situation, and that he would forward the same in due time.
The excitement produced by Burr's conspiracy and by the arrests made by the military power in New Orleans was beginning to subside, when the same power soon gave rise again to a great deal of discontent, which came very near generating tumults and disorder. Several gun-boats of the United States were anchored in the Mississippi, opposite to New Orleans, and near to the western bank. On the 4th of July, a planter in their vicinity was correcting a female slave, whose cries being heard by the officers and crews of the gun-boats, three of the young officers, accompanied by a few sailors, entered the planter's inclosure, and released by force his slave. The effect produced in the community by such an act may easily be supposed, and the public effervescence p185could, at first, hardly be kept down, but fortunately, the appeals made to the sober judgment of the people prevailed against passion, and the case was calmly submitted to the investigation and decision of a court of justice.
New Orleans, in those days, was never long in a state of quietude, and it was soon again thrown into commotion.a Edward Livingston, a native of New York, a man who had speedily risen to be at the head of the bar of New Orleans, and whose acknowledged talents, coupled with his supposed rapacity, gave great uneasiness to the community at the time, early after his arrival in the Territory had become concerned in the purchase of a parcel of ground fronting the upper suburb of New Orleans, and commonly called the Batture — a piece of land of comparatively recent alluvial formation. It had been occupied as a common by the city for many years previous, and the title which the city had to it was, in the opinion of the inhabitants, unquestionable. It had happened, however, that Livingston had prosecuted with success his claim, and, in pursuance of a decree of the Superior Court of the Territory, the plaintiff had been put in possession by the sheriff. A few days afterwards, Livingston employed a number of negroes to commence the "digging of a canal" which he projected to make in a part of the land decreed to him by the court, but the citizens assembled in considerable force and drove him off. On the day following, Livingston went again to the land in question with a view to exercising his rights of ownership, but was again opposed by the citizens. These events had taken place during a temporary absence of Claiborne from the city. On his return, which was on the 1st of September, he found the public mind in a great state of agitation. Livingston immediately claimed the Governor's interference in his favor, and the p186City Council, on the other hand, passed a Resolution requesting that functionary to lose no time in taking measures to prosecute the claim of the United States to the Batture, which was considered by the Council as indisputable.
"I must confess," wrote Claiborne to the Secretary of State, on the 3d of September,13 "that I feel much embarrassed what course to pursue. The opposition on the part of the people to a decision of the court is in itself so improper, and furnishes a precedent so dangerous to good order, that it cannot be countenanced. But the opposition on the present occasion is so general, that I feel myself compelled to resort to measures the most conciliatory, as the only means of avoiding still greater tumult, and, perhaps, bloodshed. For myself, I have supposed that the court was in error in awarding the property in question to the plaintiff. My opinion is, that the title is in the United States, but the court, probably, are better acquainted than myself with the merits of the case. Mr. Brown, the attorney for the United States, was one of Mr. Livingston's counsel in the cause, and may feel a delicacy in prosecuting the claim of the United States, but, under existing circumstances, I have esteemed it my duty to urge his doing so."
"The assembly of the people on the Batture was unlawful, and the opposition to Mr. Livingston and his negroes may be considered as a riot — an offense properly cognizable by our courts, and as they are open, I see no real necessity for Executive interference, unless, indeed, I should think proper to issue a proclamation advising the people to desist from further opposition to Mr. Livingston's claim, and warning them of the consequences p187— a measure much desired by the claimant — but I have as yet declined doing so for several reasons, one of which is, it might make an impression in the United States that the people were disposed for insurrection, which is not true.
"In my next letter I will acquaint you more particularly with the merits of the Batture case. It is indeed a question highly interesting to the inhabitants of this city. From it (the batture) has been taken all the earth for constructing the Levee that protects New Orleans from the inundations of the river. It has also furnished the earth used in public and private buildings and for improving the streets."
"In high water the Batture is entirely covered. If reclaimed, it is feared the current of the Mississippi will in some measure change its course, which will not only prove injurious to the navigation, but may occasion depredations on the levees of the city, or those in its vicinity."
In the meantime Livingston had instituted civil actions against the most prominent citizens who had opposed his taking possession of the Batture. But still the people retained that possession, and, on the 15th of September, the Governor went in person to persuade them outb of the course which they were pursuing. At noon of that day, ten or twelve white laborers, employed by Livingston who seemed determined not to shrink before any exhibition of popular fury, began to work on the Batture. At 4 o'clock, the sound of a drum was heard in the streets, the excited citizens rushed out of their houses, and collected to the number of several hundred, most of them being natives of Louisiana, or France. Being early advised by the sheriff of the assemblage of the people, and in consequence of the sheriff's apprehension that the public peace would be greatly disturbed, the Governor repaired p188to the spot, and addressed the multitude in these words:
"Permit me, fellow-citizens, to claim your attention, and, as your governor and your friend, to submit to your consideration a few observations:
"Whatever may be the redress desired, believe me, the mode you have adopted is improper. It cannot possibly avail you, and, if you persist in it, will injure yourselves and your cause.
"It is the duty of us all to yield submission to the laws. The Superior Court of this Territory has pronounced this Batture to be the property of Mr. John Gravier, and he, Mr. Livingston, (who claims under Gravier) has been put peaceably in possession thereof by the sheriff. The Supreme Court derives its authority from the government of the United States, and its decrees must therefore be obeyed.
"It is no less my duty than sincere desire to promote, by all the means in my power, the interests of my fellow-citizens. To the President of the United States who expects from me a faithful relation of whatever concerns the welfare of this Territory, I have already transmitted such information as I could obtain relative to the conflicting claims to the Batture, nor will I omit laying before him such further representations on the subject as may be furnished me. The decision of the Supreme Court is for the present conclusive; it does not preclude (in my opinion) all further inquiry as to the right of property to the Batture. But such inquiry must be commenced and conducted in submission to the Government and conformably to the laws.
"I have come among you singly and with confidence. I look to yourselves for support; we must all aid in the preservation of good order. I am persuaded that no individual in this assembly could wish to raise his arm against the Government, and, when, fellow-citizens, your p189Chief Magistrate unites to a command an earnest entreaty that you should forthwith retire in peace to your respective homes, no one, I am certain, will be found in opposition."14
The Governor was received and heard with respectful attention. After this discourse, Colonel Macarty, who stood near him, proceeded to state the serious uneasiness which the decision of the Court had excited; the long and undisturbed possession of the Batture by the city, as well under the French as the Spanish Government; and the great injury which would result to the inhabitants if the land should be built upon and improved."º The Governor replied "that the decision of the Court could not be controlled by him, that its authority was sanctioned by the Government, and that its decrees must not be opposed by the people." A person in the crowd observed, "And in the mean time no work must be done on the Batture." Many voices exclaimed, "That is the general wish." Claiborne took the occasion to observe, "That the American Government was wise and just — that it was a government of laws and not of men — that the laws reigned and the citizens must be subservient thereto — that he was ready and desirous to transmit to the Government such representations as should be furnished him relative to the conflicting claims to the Batture." Colonel Bellechasse, another influential man, who also stood near Claiborne, stated in a concise manner his reasons for believing the Batture to be the property of the public. He expressed his readiness to go to Pensacola in search of documents to prove that the Batture had always been considered by the Spanish Government as Spanish property — and asked whether the Governor had any objection to the people nominating an agent to carry p190to the President of the United States a statement of their grievances. "None," answered the Governor, "provided the representation should be respectful." "Will you recommend our agent to the President?" was the immediate inquiry. Claiborne assured the crowd that he would, provided the agent should be a man of respectability, and Colonel Macarty was then chosen by universal acclamation. It being now understood that the whole management of the affair was left to Colonel Macarty, the citizens withdrew in peace to their respective homes.
Claiborne, in relation to this popular excitement, during which he had behaved with commendable forbearance and judgment, addressed these reflections to Mr. Madison, the Secretary of State: "It is deemed a misfortune that the Superior Court of the Territory should be a court of dernier resort. I wish not to reflect upon our Territorial Judges. But I do think that the citizens can justly claim of Congress provision for appeals, in certain cases, from the Court of this Territory to the Supreme Court of the United States, or if this be considered improper, that a High Court of Appeals, with official powers for this and the adjoining Territory, be created by law. In these two Territories suits of immense importance are frequently brought, involving many intricate questions of law, and in the determination of which all Judges may sometimes err." But whilst the case was pending before the Federal Government, Livingston had quietly taken possession of the Batture, and in the month of November was making improvements on it.
In the month of December, war rumors became current in New Orleans, and a collision was daily expected between the United States and England, on the questions of impressment of sailors, the right of search, and the protection claimed to be afforded by the American flag p191to those vessels which sailed under it. Claiborne wrote to Madison, strongly approving the course of the administration in resisting the pretensions of Great Britain, and said: "I consider the Louisianians very generally as being well affected to the Government, but, in the event of an English war, they will with enthusiasm rally round our standard."
During this year, Claiborne, in the exercise of certain prerogatives which he thought belonged to the Executive, had come into conflict with the judiciary. He seemed to have felt it keenly, and thus addressed the Secretary of State: "In cases of collision between the judiciary and the Executive, where the former shall evidence a manifest disposition to embarrass the Executive, and to prevent the execution of a law enacted by the Territorial Legislature, must the Executive yield implicit obedience to the judiciary, or is he authorized to take measures to carry (the opinion of the judges notwithstanding) the will of the Legislature into effect? Your opinion, sir, on this subject will be thankfully received." The inquiry was a curious one, and it would have been interesting to see the answer of Madison, but it has not been my good fortune to lay my hands on that document.
On the 29th of December, 1807, Claiborne wrote to the Secretary of State: "General Moreau is expected here in a few days. For myself, I attach no suspicion to the movements of that great but unfortunate man, etc., [. . .] General Dayton is on his way hither, and Bollman is said to be near the city. I fear we shall have 'so many choice spirits' among us during the winter, that it will be found expedient to order to New Orleans a greater number of regular troops."
1808. On the meeting of the Territorial Legislature, Claiborne, on the 18th of January, said to them in the p192annual Executive Message with which the sessions of such bodies are generally opened: "A University has been established by law, but is left to the precarious support of private bounty. In behalf of so valuable an institution, the liberality of the citizens was with confidence appealed to, but without the smallest success." He advised the Legislature to provide for this neglect, and he recommended also the establishing of one or more free schools in each parish, under the direction of a board of trustees.15
On the 24th (January), Claiborne received a communication from the President of the United States in relation to the Batture, which was taken possession of, in obedience to received instructions, by the Marshal of the United States. Many of the Americans, among whom Livingston had many partisans, affected to censure severely the orders of the Federal Executive, but the Louisianians, on the contrary, were much gratified, and the Legislature passed a vote of thanks to the president. The Batture became a source of endless and protean litigation which occupies a conspicuous place in the annals of our jurisprudence.
From the beginning of the organization of the Territorial Government the Louisianians had been restive under the obligation of paying taxes to which they were not accustomed, and the Legislative Council, addressing Claiborne on his late message, made these observations: "The Council has learned with pleasure that the actual impositions are more than sufficient to defray the public expenses. The people of Louisiana, formerly accustomed to pay none apparently, felt the establishment of taxes as a great hardship, and would probably see the augmentation of them with concern."
p193 On appointing one of his own kinsmen to office, Major Richard Claiborne, the Governor sent him written instructions which do equal credit to the mind and heart of their author.16
"You are about entering" said he, on an arduous task. The duties which your office enjoins require reflection and attention rather than labor. The members of a community are more concerned in the jurisprudence of a country than perhaps in any other part of the Government. The business transacted in courts of justice comes home to every man's feelings and fireside, and the petty contests and domestic broils which arise in a village or neighborhood excite more interest than all the differences of whatever kind in which the rest of the world may be engaged.
"Recollect that the people among whom you are going to reside differ from those with whom you have been accustomed to associate — differ from each other. The population of that, as well as every other, part of this Territory, is composed of Creoles, Europeans and emigrant citizens of the United States, all of them adhering to the peculiar prejudices acquired in their respective countries. Perhaps among materials so jarring and discordant it may be difficult to preserve harmony and mutual good-will. But to this end all your efforts must tend. Exert yourself to render them satisfied with each other — satisfied with yourself. Mildness in the administration of the laws, a general acquiescence in their received and usual habits, are of the most essential importance. Where principle is not concerned, indulge even their follies and prejudices. As this, on the one hand, will exempt you from a charge of fastidiousness, so on the other, it will insure respect and consideration, when you shall find it necessary to act in opposition to their wishes.
p194 "In deciding upon the rights and liberties of the citizens, let your conduct be marked with deliberation and firmness, eradicate from your bosom, as far as the fallibility of our nature will allow, those passions and prepossessions often unjust in private life, but always fraught with ruin and misery when influencing our public acts. Cultivate a general acquaintance with the people, instruct them in the principles of our Constitution and inculcate an attachment to the Union. Be yourself on your guard, and warn them against the designs of base men who pervade the Territory in all directions, poisoning the community with false and malignant statements, and industriously fomenting distrust and dissatisfaction toward the American Government."
In the month of March, the City Council requested the Governor to consent to the demolishing of Fort St. Louis and the filling up of the trenches surrounding it, "inasmuch as it impeded the communication between the town and the suburb St. Mary, and the trenches were receptacles of stagnant water and of all manner of filth which engender disease — and the further request was that the materials of said fort be left at the disposal of the Council for the use of the city." Claiborne consented to the first part of the request, but ordered that the materials of the demolished fort be left at the disposal of the military agent of the United States who would employ them elsewhere for public uses.17
Claiborne informed the Secretary of State, on the 14th of March, that the Legislature of the Territory was still in session, but that "they had done little, and were not likely to do more;" that New Orleans, the seat of faction and intrigue, was illy calculated for the residence of the legislative body, and that a "resolution" had passed p195the House of Representatives to remove the seat of government to a little village on the Mississippi, •about one hundred miles above the city, but that he feared the measure would not be approved by the Council.
On the 31st of March the Legislature adjourned, after having adopted a Digest of the civil laws then in force in the Territory of Orleans, with alterations and amendments adapted to the present form of Government. It had been prepared by Moreau Lislet and Brown, two distinguished members of the bar, who had been appointed, in 1805, to that effect. "This work," wrote Claiborne to Madison, "will be of infinite service to the magistrates and the citizens. Heretofore a knowledge of the laws by which we were governed was extremely confined. The lawyers who avowed themselves to be civilians told the judges what the law was, and the citizens, in the most common transactions of life, needed the aid of counsel; but this state of insecurity and uncertainty will, for the future, be in a great measure remedied."
His approbation, however, was far from being unqualified, for he added: "I see much to admire in the Civil Law; but there are some principles which ought to yield to the Common Law doctrine. Indeed it has been with me a favorite policy to assimilate as much as possible the laws and usages of this Territory to those of the States generally, but the work of innovation could not be pursued hastily, nor with safety, until the existing laws were fully presented to our view."
Considering the probability of a war between the United States and Great Britain, the Federal Government thought of erecting fortifications to protect the entrance of the Mississippi, and consulted Claiborne on the subject. "Calculate," said he to the Secretary of War, "the expense of a similar work in any State of the p196Union, and then make an addition of fifty per cent, and you will fall far short of the real expenditure at Plaquemine. A work at the English Turn is desirable. The Fort at Plaquemine may, with a leading breeze and under cover of the night, be passed. But, under no circumstances, could a vessel evade a battery at the English Turn."
By this time the celebrated "embargo measure," adopted by the United States in consequence of their foreign unfriendly relations, was in full operation, and Claiborne, in addressing the President of the United States on that subject, said: "The provisions of the new Embargo Act are calculated to give efficacy to a measure the most dignified and the most salutary which, under existing circumstances, could have been resorted to, for, as you have well observed, in replying to the Columbian Order of New York: There can be no question in a mind truly American, whether it is best to send our citizens and property into certain captivity and wage war for their recovery, or to keep them at home."
The militia of the Territory had relapsed into a state of great inactivity and indifference, which was particularly to be regretted at a time of apprehended collisions with foreign nations. To rouse the Louisianians from their apathy and revive their military ardor, Claiborne bethought himself of sending a circular to all the officers who were in command of regiments. It was a spirited address, and invited all those who were subject to militia duty, to repair with pleasure and promptitude to the field of exercise, "for," said he, "without some previous military discipline and knowledge of tactics, a band of citizen-soldiers, however courageous and patriotic, are illy calculated to combat with success veteran armies. This Territory, from its peculiar local situation, is exposed on all sides to perilous casualties, and in p197the first moments of danger, whether from within, or without, we must depend upon ourselves for the means of defence. Adequate succor would most unquestionably be promptly afforded from the Western and Atlantic States, but, in our remote and isolated position, it behooves us to be prepared to resist the first onset."
In the beginning of April, there were again in New Orleans several riots and disturbances which gave some anxiety to Claiborne. They consisted in serious affrays between the American sailors and the French, Spaniards and Italians of the same class. They appeared on the Levee in battle array, and had skirmishes which were severe, and in which considerable damage was done to life and limb. Many supposed that the foreign sailors had been stimulated to this quarrel with a view of covering a more dangerous conspiracy. The Mayor even designated to the Governor a person supposed to be in the pay of a foreign government, who had in the city a complete company of men ready to obey his orders. At one time the situation of the city became really alarming,18 and Claiborne wrote to Colonel Sparks, who was in command of the United States troops in the Mississippi Territory, to have additional companies of regulars sent down to New Orleans. These disturbances had happened during the absence of Claiborne, who had been on a visit to the County of Opelousas. He speedily returned, and, on the 31st of August, he wrote to the Secretary of State that the city was quiet, "but," said he, "we have, however, to lament the residence among us, and particularly in this city, of a number of abandoned individuals who render the greatest vigilance on the part of the police essential to the general safety. Among those individuals are many persons who have p198deserted the service of Spain, or fled from the punishment which awaited their crimes."
The "Digest of the Civil Laws" having at last been printed and being ready for delivery, Claiborne sent a copy of it to every Parish Judge, with this circular, dated on the 22d of October:19
"Previous to the receipt of this letter, there will have been delivered to you a copy of the 'Digest of the Civil Laws.' It being understood by our courts of justice that the principles of the civil law (except in criminal cases) were in force throughout the Territory, it became expedient to place them before the public. Heretofore, few citizens had a knowledge of the civil law. It was spread over innumerable volumes, and was for the most part written in a language which few could read. The uncertainty of the laws was a source of great embarrassment, not only to private individuals, but to the magistrate who was to administer it. By the adoption of the digest one desirable object is at least effected. The laws are rendered more certain, and, if in their operation they should be found unjust, the Legislature will, I am persuaded, lose no time in making the necessary amendments.
"Indispensable as (under existing circumstances) has been the adoption of the 'Digest,' it will, nevertheless (I suspect) be much censured by many native citizens of the United States who reside in the Territory. From principle and habit they are attached to that system of jurisprudence prevailing in the several States under which themselves and their fathers were reared. For myself, I am free to declare the pleasure it would give me to see the laws of Orleans assimilated to those of the States generally, not only from a conviction that such laws are for the most part wise and just, but from the p199opinion I entertain that in a country where a unity of government and interests exists, it is highly desirable to introduce throughout the same laws and customs. We ought to recollect, however, the peculiar circumstances in which Louisiana is placed, nor ought we to be unmindful of the respect due the sentiments and wishes of the ancient Louisianians who compose so great a proportion of the population. Educated in a belief of the excellencies of the civil law, the Louisianians have hitherto been unwilling to part with them, and, while we feel ourselves the force of habit and prejudice, we should not be surprised at the attachment which the old inhabitants manifest for many of their former customs and local institutions. The general introduction, therefore, into this Territory of the American laws must be the effect of time; the work of innovation must progress slowly and cautiously, or otherwise much inconvenience will ensue, and serious discontents will arise among a people who have the strongest claims upon the justice and the liberality of the American Government.
"I fear you will continue to experience difficulty in the faithful discharge of your official duties. The aversion of the ancient Louisianians to our courts of justice, and particularly their dislike of lawyers, the mutual jealousy between the French and American population, together with the great dislike of the latter to the principles of the civil law (which will for the present be your guide) cannot fail to render your situation unpleasant. But I must pray you to persevere in your honest endeavors to render the Government acceptable to the people, and to administer the laws with justice and in mercy."
In relation to the adoption of the "Digest of Laws" by the Territorial Legislature, Judge Martin, whose opinion on the subject is entitled to so much authority, remarks p200in his History of Louisiana:20
"Although the Napoleon Code was promulgated in 1804, no copy of it had as yet reached New Orleans; and Moreau Lislet and Brown availed themselves of the project of that work, the arrangement of which they adopted, and, mutatis mutandis, literally transcribed a considerable portion of it. Their conduct was certainly praiseworthy; for, although the project is necessarily much more imperfect than the code, it was far superior to anything that any two individuals could have produced early enough to answer the expectations of those who employed them. Their labor would have been much more beneficial to the people than it has proved, if the Legislature to whom it was submitted had given it their sanction as a system, intended to stand by itself, and be construed by its own context, by repealing all former laws on matters acted upon in this Digest.
"Anterior laws were repealed so far only as they were contrary to, or irreconcilable with, any of the provisions of the new. This would have been the case, if it had not been expressed.
"In practice, the work was used as an incomplete digest of existing statutes which still retained their empire; and their exceptions and modifications were held to affect several clauses by which former principles were absolutely stated. Thus the people found a decoy in what was held out as a beacon.
"The Fuero Viejo, Fuero Juzgo, Partidas, Recopilaciones, Leyes de las Indias, Autos accordadosº and Royal Schedules remained parts of the written law of the Territory, when not repealed expressly, or by a necessary implication.
"To explain them, Spanish commentators were consulted, and the corpus juris civilis and its own commentators were resorted to; and to eke out any deficiency, the lawyers who came from France or Hispaniola, read Pothier, D'Aguesseau, Dumoulin, etc.
"Courts of Justice were furnished with interpreters of the French, Spanish and English languages. These translated the evidence and the charge of the court when necessary, but not the arguments of the counsel. The case was often opened in the English language, and then the jurymen who did not understand the counsel were indulged with leave to withdraw from the box into the gallery. The defence being in French, they were recalled, and the indulgence shown to them was enjoyed by their companions who were strangers to that language. All went together into the jury-room — each contending the argument he had listened to was conclusive, and they finally agreed on a verdict in the best manner they could."
In the month of November, the community of Pointe Coupée, an important settlement, had gradually become so divided into parties, and the jealousy between the American and Creole population had become so intense, that Claiborne endeavored to allay the excitement. His appointment, as sheriff, of an individual named Petrony had been a cause of great discontent to the Americans, or rather to the "modern Louisianians," as Claiborne called them in contradistinction to the "ancient Louisianians." In the hope of restoring harmony, Claiborne wrote in the following strain to Charles Morgan, one of the most prominent citizens of Pointe Coupée: "As relates to the Sheriff, Mr. Petrony, I can only say p202that he came well recommended to me, as a man of honesty, probity and good demeanor. The circumstance of his not having been born 'an American' is not considered an objection to him. I certainly feel for my countrymen, the native citizens of the United States, a sincere and ardent attachment, nor is it possible for me, in any situation, or under any circumstances, to be unjust toward them. But, in my official character, I can acknowledge no other distinction between the inhabitants of the Territory who, by birth, or the treaty of cession, are entitled to the rights of citizenship, than personal merit. In making appointments, therefore, I have been desirous to select the most worthy and the most capable, keeping in view the expediency of dividing the offices as near as may be between the ancient and modern Louisianians, as one means of lessening the existing jealousy and distrust between these two descriptions of citizens." This occurrence shows a state of feeling which was almost universal in the Territory. Ex uno disce omnes.
A quota of militia having been required of the Territory by the President of the United States, which were preparing for an anticipated war, Claiborne wrote to the Secretary of State on the 27th of December: "I hope and believe that the number called for may be obtained by voluntary enlistment; but I nevertheless perceive a reluctance on the occasion, which mortifies me exceedingly. It arises, on the part of the Creoles, from an apprehension that they may probably be ordered out of the Territory, and on the part of the native Americans, from a fear lest they may be placed under the command of officers of the regular army; and these impressions are much encouraged by the opinions and discourse of a wretched, discontented faction (composed principally of the partisans of Burr) which has so long infested this Territory."
p203 Ever since the cession of Louisiana to the United States, great losses had been experienced by the inhabitants of those parts of the Territory which bordered on Spanish possessions, and principally on Texas, in consequence of the frequent flight of negroes who ran away from their masters, and resorted to the protection of a foreign flag, under which they were induced to believe that their condition would be improved. This had given rise, every year, to a long correspondence between Claiborne and the Spanish Governors, but no satisfactory result had been obtained, so that the discontent in Louisiana grew every day greater as to this state of things, and, on the 14th of December, Doctor Sibley, of Natchitoches,º wrote to Governor Claiborne: "Nothing important has occurred here lately since the desertion of about thirty negroes; things cannot long remain in this state; it would be better (the people say) for them to be under the Government of Spain than thus situated. How long their allegiance to our Government will remain without protection, I know not. The negroes were furnished with Spanish cockades at Nacogdoches, a dance given them, and since they have been marched off to the Trinity River, singing 'Long live Ferdinand the Seventh.' "
1 Claiborne's communication to several members of Congress, p3, Executive Journal, vol. 3.
2 Martin's History, p234, vol. 2.
3 Executive Journal, p6, vol. 2.
4 Executive Journal, p10, vol. 3.
5 Executive Journal, p19, vol. 3.
6 The history of his subsequent trial and acquittal at Richmond in Virginia is well captain.
7 Executive Journal, p23, vol. 3.
8 Executive Journal, p24, vol. 3.
9 Executive Journal, p25.
10 Executive Journal, p27.
11 Executive Journal, p43, vol. 3.
12 Executive Journal, p47, vol. 3.
13 Executive Journal, p102, vol. 3.
14 Executive Journal, vol. 3, page 110.
15 Executive Journal, p151, vol. 3.
16 Executive Journal, p166, vol. 3.
17 Executive Journal, p181, vol. 3.
18 Executive Journal, p283, vol. 3.
19 Executive Journal, p303, vol. 3.
20 Martin's History of Louisiana, p291, vol. 2.
b The printed text reads the mout rather than them out. The word mout is a possibility, if quite rare and archaic: an alternate spelling of the noun moot, in the sense of "a deliberative or judicial assembly; an argument or discussion". The sense, however, at least by my lights, seems to require them out.
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