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One Vote Made Thomas Jefferson President

May 18, 2016 in American History, general history, History, Legal History, Louisiana History

Claiborne and President Thomas Jefferson with a map of the Louisiana Purchase

Claiborne and President Thomas Jefferson with a map of the Louisiana Purchase

 

Astonishingly, only one vote from a very young Tennessee state representative handed Thomas Jefferson the presidency of the United States in the 1800 Election.

The 25-year-old who cast that ballot was William C. C. Claiborne, who as a direct result of his vote that spring of 1801 was appointed governor of the Territory of Mississippi a few months later by a grateful Jefferson. The Federalist governor in place, Winthrop Sargent, had faced heavy criticism for his authoritarian rule of the territory, and the residents there did not mourn his removal from office although Sargent bitterly complained in the press.

In the Presidential Election of 1800, the US Constitution had not required that electors should designate on their ballots the person they voted for as president, and the one voted for as vice president, but that the one having the highest number of votes should be president, and the one having the next highest should be vice president. This made the end vote of the Electoral College confusing, although the popular vote had given the Jefferson-Burr ticket a majority.

Incumbent President John Adams had lost the popular vote dramatically to candidates Thomas Jefferson and Aaron Burr, which threw the final decision into the Electoral College. But the Electoral College gave Jefferson and Burr an equal number of votes, so the House of Representatives had to decide which of them should be president, the choice to be made by ballot, and each state would have but one vote.

According to a historian writing in 1830, “the contest was extremely animated, for on this occasion the great federal and republican parties came into violent conflict…when they were returned with an equal number of votes to the house of representatives, it was supposed of course that the public voice would be obeyed, and Jefferson made president. The federal party, however, determined to support Colonel Burr; they knew very well the political sentiments of every member of the house of representatives, and they early ascertained that the election depended on the vote of Mr. Claiborne, the sole representative from the state of Tennessee.”

Claiborne was thought to be especially vulnerable to being influenced as he was young with grand ambitions, plus the most important factor was he was poor. Members of the Federalist Party sent several delegations to the holder of the key vote to try to bribe him with various offers. Claiborne refused all of them, saying he thought it proper and honorable to obey the public voice on the matter.

The ballots began to be cast in eary 1801, and the states were equally divided on the first ballot; several other ballots took place, and the result was the same, when the House adjourned.

News of the tied vote spread like wildfire. The importance of Claiborne’s vote was so critical to the contest that when Congress began voting again, he went armed to the House, as no one could predict what violence might erupt. The public was barred from the proceedings as a safety precaution.

For several days and sometimes long into the nights, the votes were the same. All in all, a total of 36 ballots had been cast, with the same number of votes for Jefferson and Burr. On every vote, Claiborne had voted for Jefferson, and declared that he felt satisfied that Jefferson was the choice of the people, and that he intended to stick with that vote, no matter what the consequences.

On the last vote, the Vermont representative turned in a blank ballot, voting for no one, and Claiborne had the tie-breaking vote for Jefferson.

A native of Virginia born in 1775, Claiborne did not have the advantages of inherited wealth like some of his fellow Virginians in the late 1700s, but he made up for that by careful studies and through associations with benefactors who helped him attain important political positions while he was still a very young man.

He had attended Richmond Academy, and the College of William and Mary, then worked as a clerical assistant studying law in Congress at New York City, and then at Philadelphia. Among the prominent people at Philadelphia who noted Claiborne’s industriousness was Thomas Jefferson, who offered to lend him some books for his studies.

Claiborne returned to Richmond where he passed the bar, then at the request of his friend and later Tennessee governor General John Sevier, Claiborne moved to Sullivan County, Tennessee, where he soon was named one of the five members of the Tennessee delegation to form the newly-minted state’s constitution. Gov. Sevier made one of his first acts the appointment of Claiborne as a judge of the supreme court of law and equity of the state, citing his universally acknowledged merits despite the fact Claiborne had not quite turned 22 years old.

Even at that young age, Claiborne set his sights high, aiming to become district judge of Tennessee. He asked his influential friends in Virginia  William Fleming and Edmund Randolph to recommend him to President George Washington for appointment in 1797. Fleming said in his letter to Washington that Claiborne’s “superior talents, great sobriety, and intense application to business distinguish him from the generality of young gentlemen of his age and should he be so fortunate as to succeed in his application, I am persuaded you will never have cause to regret the appointment.”

Claiborne did not get the district judge position as Tennessee Congressman Andrew Jackson told President Washington in his letter regarding the matter that “Mr. Claibourn (sic) is an amiable young Man, but perhaps not possessed of sufficient Experience to fill such an important office (district judge).”

Somewhat ironically, when Jackson vacated his representative seat to run for senator later in 1797, Claiborne successfully ran in the special election for Jackson’s former post in the House of Representatives, winning by a large majority over more seasoned and wealthier opponents. Only 22 years old, he was the youngest man who had ever appeared on the floor of Congress. He was re-elected to a full term in the House in 1798.

Jackson and Claiborne’s lives would intertwine more than a few times in subsequent years, and they never were on friendly terms. Jackson had been an enemy of Sevier, who was one of Claiborne’s mentors.

In 1803 at the transfer of Louisiana territory from France to the United States, President Jefferson furthered Claiborne’s prominence by naming him and General James Wilkinson to accept the transfer on the part of the US. From the outset, it was understood that Claiborne was tacit governor of the Territory of Orleans, and he moved from Natchez, Miss., to New Orleans.

In 1804, Jefferson officially appointed Claiborne governor of the Territory of Orleans, although he noted in his letter that Claiborne had not been his first choice for that honor. Jefferson had wanted his old friend, the Marquis de Lafayette, for the post, but Lafayette had turned him down. An earnest applicant for the governorship had been Andrew Jackson, who must have fumed that the young man he had considered inexperienced had won the job over him, in a large part due to that presidential vote.

When Louisiana became a state, in 1812, Claiborne had gained enough respect and admiration from the French and American citizens there that he easily became the first governor.

According to a biographical entry in “The National Portrait Gallergy of Distinguised Americans” when Louisiana was invaded by the British, Gov. Claiborne “voluntarily surrendered to General Jackson, when he arrived, the command of the militia of his state, and consented himself to receive his orders, a measure which he thought a just tribute to the military experience of General Jackson, and which he adopted, also, to avoid to his state all the expenses of the equipment and movements of her militia, which would have fallen upon her alone had he kept the command.”

Jackson made sure Claiborne and his select group of militia were nowhere near Chalmette, the main scene of the action which would culminate in the Battle of New Orleans on Jan. 8, 1815. On Dec. 23, 1814, Claiborne and his corps had received orders from Jackson to go to Gentilly to occupy the important pass of Chef Menteur as it was feared the British might try a diversion there. Claiborne and his group stayed there and fortified it, remaining at the spot through the whole contest and missing any action against the British.

Upon the expiration of his term as governor in 1817, Claiborne was elected to represent Louisiana in the Senate of the United States but before he could do so, he fell victim to liver disease on Nov 23, 1817, at the age of 42. He had lived a relatively brief life, but had left many legacies of his skill as both a statesman and patriot.

As a youth, Claiborne had written to President Washington that the “primary object of my life is to be useful to my Country,” and that “I shall labour to acquire the esteem of the present, and of after Ages for good and virtuous Actions.”

If Claiborne had been appointed district judge by Washington, he would not have been seated as a representative during the dramatic House vote of 1801. Burr, not Jefferson, may have won by a tie-breaking vote. The Louisiana Purchase may not have occurred. The Lewis and Clark Expedition would not have happened. Everything which evolved from Jefferson’s presidency would not have occurred, or would have happened differently. The value of one vote, and one man’s decision, in Claiborne’s case, was enormous.

 

 

Beverly Chew: the Man Behind the Curtain in Early New Orleans

November 19, 2015 in American History, general history, History, Legal History, Louisiana History, Nautical History, Texas History

Beverly Chew at the height of his power in New Orleans

Beverly Chew at the height of his power in New Orleans

Life was good for the New Orleans business firm of Chew & Relf in the early 1800s: young partners Beverly Chew and Richard Relf controlled a virtual monopoly of the banking, shipping, trading, insurance, and smuggling business in the port city until around 1809, when the Laffite brothers came to town, quickly and systematically cutting into the profits of Chew & Relf’s Gulf Coast network empire.

Jean and Pierre Laffite successfully snatched away the market share of the smuggling business from Chew, Relf and their cohorts Daniel Clark, mainly because since they were getting their goods and slaves from privateers’ captured Spanish prizes, they paid nothing for their wares and consequently could sell them much cheaper because there was no middleman to pay.

The Laffites made an enemy for life of Chew in particular, and he would strike back like a snake when a prime opportunity presented itself eight years later. He wielded much more power in New Orleans than most people realized, and could carry a grudge for years. Along with his partner and other backers, he controlled business in the city for more than 30 years in the early 1800s. Through study of his business connections, deals, and political machinations it is evident that Chew, not Edward Livingston as commonly supposed, was the true power monger behind the curtain of New Orleans, with the help of Relf. Moreover, Chew stayed at the top of the exclusive business elite in New Orleans through the 1830s.

Historian John G. Clark said “The elite which emerged in New Orleans between 1803 and the War of 1812 possessed power and responsibilities unprecedented in the almost 100-year existence of the city.’ (The Business Elite of New Orleans Before 1815)

Born in Virginia in 1773, Chew moved to New Orleans in 1797 from Philadelphia, where he had been an apprentice for prominent merchant Daniel William Coxe and associates, and also had learned financial finagling from Natchez plantation owner William Dunbar, who had traded cotton through Coxe.

According to historian Arthur H. DeRosier Jr., Dunbar used Chew and Relf in the early 1800s to ship bales of cotton through New Orleans, for pre-negotiated prices to Liverpool, seldom taking specie alone for the transactions. Every shipment of cotton included a list of goods Dunbar wanted, which Dunbar would resell for more in the American markets. He floated the real money (gold and silver specie) like so many chess pieces among his agents to make purchases as needed, or to stall payment until goods were delivered from England. Knowing exactly where all the specie, cotton, and goods were took a very careful system of bookkeeping, which Dunbar did well. His protégé, Chew, implemented this system himself upon Dunbar’s death in 1810. (William Dunbar: Scientific Pioneer of the Old Southwest)

Chew and Relf both came to Louisiana about the same time shortly before the turn of the 19th century, in league with the well-known Irish land speculator and businessman Daniel Clark, believed to be one of the wealthiest men in America, and the notorious double-dealing General James Wilkinson, who often was complicit with Spanish authorities.

Chew counted among his personal and confidential close friends the adventurer Philip Nolan, clandestine agent of Wilkinson re Spanish land grant schemes in Louisiana territory. In 1797, before moving to New Orleans, Chew wrote Nolan that he could draw from the Spanish king’s coffers at New Orleans any sum he would have named on account of the General, and it was reported and pretty generally credited then that Nolan had indeed received as much as $5,000. In 1798, Chew wrote to Nolan that he was departing on a voyage to Bilbao, Spain, saying “respecting the connection we have so long contemplated, you will find my wishes for it undiminished, and will be able to make it much more advantageous on my part than when I last saw you.” Details about Chew’s dealings with the Spanish authorities have not been found.

In mid 1804, as President Thomas Jefferson sought input about who to recommend for positions in New Orleans, an unknown letter writer advised that “Beverly Chew of Virginia, connected with M.D. Clark, is a man of very respectable standing and most deservedly so_He loves his Country and is a zealot in its support__He has served Gov. Claiborne essentially.” One wonders if the writer happened to know that Jefferson was a distant cousin of Chew’s. Chew also was a kinsman of Mississippi territorial governor William C. C. Claiborne. Letters of the late 1700s and early 1800s between Jefferson, Coxe, and Dunbar make it look like Jefferson was at least partially responsible for placing Chew in New Orleans to assist Claiborne and learn about Spanish and French plans for the port city.

Claiborne named Chew a justice of the Court of Common Pleas at New Orleans in 1805, and a short time later, appointed him as first postmaster of New Orleans, a temporary position of a few months. This came after an incident in 1803 when the New Orleans City Council had barred Chew and Relf from importing West Indian slaves into the US, largely because when his own slaves were arrested for theft of some whiskey and tobacco from someone named Bond, Chew had admitted in court to accompanying the slaves that night. In 1805, Chew simply skirted the law by having slaves smuggled up the Bayou LaFourche to be sold  there, out of the court’s jurisdiction. The Laffites would later use the same bayou to transport both slaves and goods for smuggling into New Orleans, and may have studied the methods Chew had earlier employed.

“The firm of Chew & Relf …engaged in enterprises that circumvented the law. After the importation of African slaves was outlawed by federal law in 1808, they often acted as middlemen for other firms, some as distant as Charleston, S.C., that wished to import slaves….They used their business contacts with Spanish officials in West Florida to facilitate the landing of slave ships and the distribution of their cargoes at Mobile,” according to Junius P. Rodriguez, in The Louisiana Purchase: A Historical and Geographical Encyclopedia.

Chew counted among his close business associates John Forbes of West Florida, an internationally known trader of long-standing with the British. Forbes was a loyalist who had been with the well-entrenched West Florida frontier firm of Panton, Leslie & Co., earlier. He sold mostly trade goods which came from Britain, including guns, lead and gunpowder. He had a post at Mobile, from which goods could be sold to avoid the New Orleans duties. He was associated with Chew as both a personal friend and merchant through at least 1816.

Despite their often illegal smuggling and other questionable business activities, Chew and Relf never were charged with any crimes as they had their hands in almost every major New Orleans business: they were originators, original shareholders, and members of the board of directors of the New Orleans Insurance Co., insuring vessels, cargoes and specie. Plus they were exclusive agents of the London-based Phoenix Fire Insurance Co. Banking interests formed a major part of their portfolios: Chew was on the board of directors of the Bank of the United States New Orleans branch as well as major stockholder of the Bank of Louisiana. Additionally, in 1805, Chew was on the board of directors of the US Bank of Philadelphia branch at New Orleans along with his good friend Thomas Callender.

Phoenix Fire Insurance which Chew & Relf sold

Chew and Relf had started their New Orleans Anglo-American empire quite early, in 1801, when they joined with land speculator and business dynamo Clark. They dealt in goods for Reed and Forde of Philadelphia, freighted and leased vessels to St. Domingue, Bordeaux and London; received English goods on consignment, and bought and sold staples and groceries on their own account. In one deal, William Dunbar forwarded 3,000 pounds sterling in notes on London endorsed by Chew and Relf to a Charleston, S.C. slave trader as half down, with the balance paid to Chew and Relf. They had a store on St. Louis Street, between Royal and Chartres streets, which served as a “one-stop” shop for a myriad of needs.

According to historian Ernest Obadele-starks in Freebooters and Smugglers: The Foreign Slave Trade in the United States, “Chew and Relf were part of a solidly entrenched business circle that dominated the town (New Orleans) politically, set its social tempo, and controlled economic development by legal, extralegal or illicit means.”

Chew’s British business connections remained solid through all of the War of 1812, but oddly no one in New Orleans ever questioned his loyalties. When almost every other trader was financially hard hit by embargoes and British blockades of US seaports, Chew & Relf did not suffer major losses, not even when their financial backer, Daniel Clark, unexpectedly died in 1813.

In 1810, Chew had increased his political power in the city by marrying Maria Theodore Duer, a relative of the immensely powerful Livingston family of New York, and a cousin to Edward Livingston of New Orleans.

President James Madison appointed Chew as vice consul for Russia at New Orleans in July, 1812, to handle commercial reciprocity between US and Russia since Russia was said to take a favorable view of the American effort to defend neutral shipping rights. Madison either overlooked or was unaware of Chew’s ties to British concerns.

Sensing that the war between the US and England might prove problematic to his business interests, Chew tried to hedge his bets by pushing westward with land speculation in Louisiana. Rapides Parish records files of Oct. 24, 1812, show that Beverly Chew claimed a tract of four hundred acres of land on the left bank of Bayou Rapides, sold to him by a man named Fulton, with the land having been inhabited and cultivated as required by law of the time. No records are available regarding what use Chew made of this property, nor if he later sold it to someone else.

In the summer of 1813, and while his backer Clark was ill, Chew decided to make a trip back east to visit relatives and business concerns in the Philadelphia and Virginia areas. On July 24, 1813, Chew, his wife, and their daughter arrived at Philadelphia from New Orleans on board the brig Astra, making the voyage following a stop in Havana in only eight days. They passed the British blockading squadron around the Cape Henlopen side, without incident as the ship was in ballast.

While Chew was gone from New Orleans, Relf took care of Clark, who died suddenly after appearing to be getting better. A second will which Clark had made disappeared immediately after his death, leaving his original 1811 will, which named Chew and Relf as his co-executors. Clark’s mother, Mary, was named sole inheritor in the original will, but she never received a penny of the estate. Chew and Relf claimed after paying debts and expenses due to wartime, there was no money left, but their business did not suffer any such losses, and no formal accounting of the estate expenses was ever made. The second, missing, will had named different executors and had given a major bequest to Daniel’s sole heir, a daughter named Myra. The controversy over the Clark estate and what happened to all the money would be the focus of an extended and famous Supreme Court battle waged by the Clark daughter, Myra Clark Gaines, in later years.

During the British invasion of Louisiana in 1814-1815 and subsequent Battle of New Orleans, Chew served as a volunteer rifleman under General Andrew Jackson in Beale’s Rifles.

In late 1816, Chew was appointed customs collector for the Mississippi River port at New Orleans following the resignation of P.L. B. Duplessis. He set to his new role with a special fervor against smuggling interests other than the ones which boosted his own bottom line.

Chew must have felt elated in August 1817 that finally he could do something to strike back at the Laffite brothers, considering they had interfered with his business concens for years in the New Orleans and Gulf Coast area. Now that they had set up a privateering enterprise just outside US territory at Galveston, Chew saw a way to convince Secretary of Treasury William H. Crawford to get rid of the Laffite threat to commercial shipping heading to and from New Orleans.

The customs collector felt confidant he could sway Washington politicos to his wishes because for several years, he had been the top leader among the handful of business elite that controlled New Orleans and all the trade that plied the Gulf Coast of Louisiana. His new role as customs collector was only the tip of the iceberg in terms of what he manipulated directly or indirectly through banking, insurance, shipping, and trade interests.

In his lengthy letter to Crawford of August 1817, Chew pointed out, “I deem it my duty to state that the most shameful violations of the slave act, as well as our revenue laws, continue to be practiced, with impunity, by a motley mixture of freebooters and smugglers, at Galveston, under the Mexican flag; and being, in reality, little else than the re-establishment of the Barrataria (sic) band, removed somewhat more out of the reach of justice.…Among the most conspicuous characters…at Galveston, were many of the notorious offenders against our laws, who had so lately been indulged with a remission of the punishment, who so far from gratefully availing themselves of the lenity of the government to return to, or commence an orderly and honest life, seem to have regarded its indulgence almost as an encouragement to the renewal of their offences. You will readily perceive I allude to the Baratarians, among whom the Lafittes may be classed foremost, and most actively engaged in the Galveston trade, and owners of several cruisers under the Mexican flag. Many of our citizens are equally guilty, and are universally known to be owners of the same kind of vessels.”

(The Baratarians had been given presidential pardons for their aid and service to General Andrew Jackson in the concluding battles of the War of 1812, culminating with the Jan. 8, 1815, Battle of New Orleans, a decisive victory against the British forces, due in no small part to the skill of the Baratarian gunners and the flints and powder provided by the Laffites.)

Chew proceeded to go on at length about the supposed crimes and revenue avoidance perpetrated by the Galveston parties, which is ironic, as it is a case of the pot calling the kettle black. No one in Washington knew it, but Chew himself had long been a very successful coordinator of smuggling slaves and goods in the New Orleans area, West Florida territory, and southern seaboard. He had started early: between 1804 and 1807, he and his longtime business partner Relf had sold around 430 slaves, many of which were obtained via illegal channels. Almost all had been smuggled.

As a customs agent, Chew benefitted from the fees collected at customs, while at the same time he also participated in his own smuggling operations. He frequently overlooked slave importations any time he could profit personally. Although he ordered that all ships arriving from the Laffites’ base at Galveston be searched, it was not because they were importing goods into New Orleans, but because he suspected that they were not authorized by the Mexican government as privateers. Without a valid letter of marque or commission, the ship and cargoes could be seized by the customs agents, and Chew, of course, would profit.

Secretary of Treasury William Crawford outlined specific instructions for the conduct of US revenue officers which Chew zealously overstepped whenever it suited him. Crawford wrote “While I recommend, in the strongest terms, to the respective officers, activity, vigilance, and firmness, I feel no less solicitude that their department may be marked in prudence, moderation and good temper. Upon these last qualities, not less than the former, must depend the success, usefulness, and consequently, the continuance of the establishment, in which they are included. They will always remember to keep in mind, that their countrymen are freemen and, as such, are impatient of every thing that bears the mark of the domineering spirit. They will, therefore, refrain, with the most guarded circumspection, from whatever has the semblance of haughtiness, rudeness, or insult…They will endeavor to overcome difficulties, if any are experienced, by a cool and temperate perserverance in their duty__by address and moderation rather than by vehemence or violence.” Crawford’s express intent that smugglers be treated in a gentlemanly manner was blithely ignored by Chew.

Chew’s series of letters to Crawford about the Laffite problem at Galveston went on to discussion at Washington, with Congress reviewing documents in January 1818 consisting mostly of Chew’s complaints about Jean Laffite’s occupation of Galveston Island and how he was using it as a base to launch attacks against shipping in the Gulf of Mexico, plus the “pirates” were engaged in smuggling slaves into the United States. John Quincy Adams followed Chew’s invective avidly, agreeing that after Louis Aury left, Galveston became, “indisputedly” piratical in nature. Adams further went on to publish diatribes in the press under his pen name Phocion in which he called Galveston an “association of adventurers, renegades and desperadoes from the four corners of the earth, whose sole aim was the indiscriminate plunder of commercial shipping.” Adams asserted the right of the US to “constitute itself the protector of its own seas and protest the renewal of the scenes of horror such as when ‘Lafitte’ held Barataria.”

Monroe came out with a presidential proclamation about Galveston and Aury’s new base at Amelia Island, but he repeatedly suspended orders to seize Galveston, which must have made Chew apoplectic with anger.

When US authorities finally did move against Galveston in early 1820, it was not with warships, but diplomacy through Commodore Daniel T. Patterson of New Orleans, with encouragement to end the privateering establishment there. Beset by turmoils within and without Galveston from others, the Laffites left voluntarily, with a safe conduct pass from Patterson. They didn’t leave because the US wanted them to go: they went because privateering was becoming much less profitable and the captains who served them were turning more unmanageable.

Chew’s friends back in New Orleans, however, took the news as a sign of their custom agent’s political clout to get things done. Even two years later, in 1822, his friends were still crowing about how Chew had almost single-handedly vanquished Galveston, as evidenced in this editorial in the Louisiana Advertiser:

“The banditti who infested Galvestown (sic), and the coast of Western Louisiana have been driven away by the vigilance of our officers and, we do not believe, there is at this moment a piratical rendezvous from the Cape of Florida to the Isthmus of Darien…They have been totally expelled from the American shore by the vigilance of our collector, his subordinate officers, and our small naval force. As resulting from the prostration of the ancient system of smuggling and the breaking up of the haunts of the villains who were engaged in it, the principles of an honourable and legitimate commerce begin to flourish. We have thus traced the progress of this improvement in our character, and amelioration of our commercial morality; and for their instrumentality in producing such results we openly affirm that Beverly Chew, and the officers under the control of his department, are eminently entitled to the lasting gratitude of the citizens of New Orleans, and of every honest inhabitant of the Gulf of Mexico.”

Chew did not stop engaging in  illegal activities just because he had become a well-respected port collector. According to Obadele-starks, “In June 1824 Chew authorized the ship Ceres to enter New Orleans with slaves despite the fact its crew presented no manifest. In 1825, he informed the New Orleans major of his intent to allow a free African family from Port au Prince into Louisiana although they lacked the legal documents to enter the country.” Additionally, Chew turned a blind eye to some other slave cargoes in that time, especially when the owners were friends and fellow church members of his.

Chew had served as collector for over 12 years when new President Andrew Jackson refused to re-appoint him, naming another New Orleanian in his place in 1829. Jackson’s chief of surgery during the campaign against the British, New Orleans physician Dr. David C. Kerr, recalled that “So virulent was Chew in his opposition to Jackson, that he even refused permission to hoist a flag on the church of which he was vestryman or to have bells rung on the 8th of January” in honor of Jackson’s great victory. The antipathy between the men could possibly be explained by the fact that in 1828 while still customs collector, Chew had been unanimously elected president of the United States Bank of New Orleans. Jackson was extremely opposed to the US Bank.

Even though Chew was employed as a bank president after his dismissal, his cronies lamented Jackson’s cruelty in casting him aside in his old age. According to the May 18, 1829 issue of the Courrier de la Louisiane, a group of Chew’s friends gathered together at the Exchange Coffeehouse to express their “regrets at the removal of that gentleman as collector” with Thomas Urquhart acting as chairman and John Hagan, secretary. They lauded Chew to the highest degree, saying he was a skillful, able and efficient officer as collector at the port of New Orleans; that he always had at heart the interest of the government, and the punctual observance of the laws; and that he had endeared himself to the public by his constant and strict attention to these interests; and by his gentlemanly deportment.

The friends said “we sympathize with him that after so many years devoted to the public service, he retires into private life without fortune, and with a large family, dependent upon everyone, that at his late period of life, must find new channels, through which to earn them a support,” and agreed to gather subscriptions from the public sufficient to offer Chew a suitable present upon which shall be inscribed “what their hearts may dictate as our feeling and their judgment.”

Chew stayed in the banking industry, resigning from the Second Bank of the U.S. to become cashier of Canal and Banking Co. of Louisiana in 1831. A year later, in 1832, he assumed the presidency of that financial institution.

He still kept his old ways about meddling in land speculation while he had some money and power, as in 1836, he was a member of the Texas filibusters group called the Native American Association, involved in the Texas revolution to seize lands from Spain.

From 1834 until the end of his life, in 1851, Chew would be plagued with lawsuits and trials over the Daniel Clark will and the unsettled rights of Daniel’s daughter, Myra Clark Gaines, to her inheritance. The tangle of legal testimony and lawyers would reach all the way to the Supreme Court and become one of the longest running cases in history (it ended in 1891), but neither Chew nor Relf would ever present a word of testimony in court, letting their attorneys handle it all.

The collective attorney fees and court expenses ate through whatever financial gains Chew had had, so that by his death, he had hardly anything in his estate to leave his heirs. Probate records show that Chew died with no funds to afford his children a “liberal education,” and advised them to sell ten lots of land in Lafayette, Jefferson Parish. The land speculator who had once held the purse-strings of New Orleans and ruled the city’s business for over 30 years died virtually broke.

In a coda to this story, Chew’s remains are not still at rest in the Girod Street Cemetery in New Orleans where he was entombed. Due to severe vandalism, in 1957 that cemetery was deconsecrated and all the remains were relocated in an anonymous mass tomb at Hope Mausoleum in New Orleans. The site of Chew’s first tomb is now beneath the Superdome parking garage.

John Dick’s Letter To Monroe Honoring the Baratarians

August 4, 2015 in American History, general history, History, Legal History, Texas History

 

John Dick letter to James Monroe

John Dick letter to James Monroe

John Dick, US District Attorney for Louisiana in 1815, was a man with a conscience, a strong devotion to what was fair and just, even when it conflicted with an earlier opinion that he had fostered. He had a keen sense of respect for those who had earned special consideration, like the Laffites and the Baratarians with their service and supplies in the battles against the British below New Orleans.

Even after President James Madison gave a blanket pardon to all the Baratarians who had served, Dick wanted to make sure that the powers that be in Washington knew exactly the extent of the privateersmen’s help, so he sat down at his New Orleans desk on March 17, 1815, and wrote a letter detailing the events to Secretary of State James Monroe.

It is nothing less than astonishing that Dick wrote about the Baratarians at all, considering when he had been a practicing attorney earlier, they had been thorns in his side in courtroom battles, to the extent that a man of lesser character would be loath to praise at all those from the “Isle of Barataria.” Dick had, after all, been the attorney for Commodore Daniel T. Patterson and Col. George T. Ross in their court actions the fall of 1814 for proceeds from ships and goods seized during the US raid against Grande Terre of September 1814. Moreover, Ross was Dick’s best friend.

Plus during that same fall of 1814 as the winds of war blew toward New Orleans from Great Britain, Dick had grown so exasperated by the actions of former district attorney John Grymes who had chosen to represent the Baratarians, that he openly insulted Grymes by accusing him of having been “seduced out of the path of honor and duty by the bloodstained gold of pirates.” Grymes responded by challenging him to a duel, in which both were wounded, Dick with a shot to one thigh, and Grymes with a shot to one calf.

Thus not only had Dick been against the Baratarians in court, he had even been wounded in a duel because he had insulted their attorney!

So why did Dick write to Monroe in favor of the Baratarians in March of 1815, most particularly since his friend Ross had just left New Orleans for Washington to petition Congress for monies acquired from the raid on Barataria? At the time, the Laffites were seeking restitution of these same monies in New Orleans court.

Dick heard the Laffites and Baratarians’ side in the court system,and although he took no action in New Orleans in their favor, he deliberately wrote to the secretry of state and went against the stance of Ross, who had just left New Orleans for Washington to petition Congress for monies acquired from the September 1814 US raid on Barataria. The district attorney obviously thought Ross’ motives for profiting off of the raid were personally unsettling, and wanted Washington to know the truth, least that truth be lost in the flurry of post-battle self-aggrandisements among others who had served with Major General Andrew Jackson at the plains of Chalmette. It reflects great resolve on Dick’s part that he took such an action considering he had a permanent limp from that duel he had fought regarding his insult to the Baratarians’ lawyer just a few months’ previous.

Dick’s letter to Monroe, now in the National Archives, came to light some 200 years later during a search for another research topic. Daniel Preston, editor of the wonderful annotated Complete Catalogue of the Correspondence and Papers of James Monroe (2001), kindly made a full copy of Dick’s letter available.

Dick begins his letter by acknowledging receipt of a letter from Monroe of Feb. 8, 1815, along with a copy of James Madison’s presidential pardon of the Baratarians.

“The measures which have already taken place with respect to some of the persons connected with the association lately existing at Barataria, and the reasons and authority upon which these measures were founded I should like the liberty to lay before you__

At the period of the late invasion of Louisiana, when the danger was imminent, and it had become necessary to call forth the whole means of the state to repel the invaders, strong appeal was made to Majr. General Jackson by the individuals composing the French volunteer companies on behalf of the Baratarians then in confinement. (Ed. Note: these men were taken during the Sept. 1814 raid on Grande Terre, Barataria, by the US forces under Patterson and Ross) These companies formed the most efficient force of the city, and they had, on this occasion, displayed great zeal, and manifested dispositions highly patriotick (sic). It was important that this spirit should be fostered and extended and no circumstance, it was imagined, could contribute more to these desirable ends than a compliance with the wishes thus expressed. [The Baratarians], although culpable, were brave, skilfull, and enterprising, and their associates were numerous, and their connexions (sic) extensive; it was felt, that, if to be depended upon, their personal exertions might be eminently useful, while their ardour and example would inspirit (sic) others.”

Dick continued that for the Baratarians’ conduct and reliability, “we had the assurances of a large and respectable portion of the community, guaranteed by their own national antipathies, domestic feelings, and private interests.”

After the state legislature passed a resolution along the same views as the French volunteers, Dick said on Dec. 18, 1814, everyone in confinement with offences “growing out of the unlawful association at Barataria” were freed.

“I need not say that the conduct of these men (Baratarians), throughout our late arduous and distinguished struggle, did not violate the confidence that was thus reposed in them. The commanding general has noticed their services,, and has done justice to them notwithstanding their circumstances.”

Dick said when he took office as district attorney in February 1815, he faced an unpleasant quandary as he felt it incumbent upon himself to prefer indictments upon presentments of the grand jury against the Baratarians, and it would have meant re-imprisoning those who had just served to help win the Battle of New Orleans. Dick wrote Monroe that such a move by the courts would have excited discontent in the community re the Baratarians “whose gallantry and patriotism had won the highest praise, and who deserved favors and indulgence even in their mistaken sympathies and opinions.”

He went on to say that he was “relieved from the embarassment arising from this apparent conflict of duty with policy and justice by the permit of a letter from the Attorney General of the United States addressed to his excellency Governor Claiborne, in relation to the Baratarians,which worked very satisfactorily and unequivocably, a disposition to lenity on the part of the President, even before the latter inducements to it existed.”

With such assurances of policy, Dick declared nolle prosequi in nine cases, including those of the Laffites and Dominique Youx, for offences growing out of the “unlawful establishment at Barataria.” (Nolle prosequi is the abandonment by a prosecutor of all or part of a suit or action in court.)

“It is a very Sensible Satisfaction to me to believe that my conduct in this subject has corresponded with the wishes and intentions of the Government; and that it has received, in addition to the sanction which immediately declared it, that contained in the President’s proclamation of the 6th of February,” Dick concluded.

A couple of weeks before Dick wrote his letter, and after the Baratarian indictments were dropped, Ross left New Orleans in March 1815 for Washington, D.C. to petition Congress with the help of a Congressional friend for the monies from the Barataria raid. The bill for the relief of Ross and Patterson was read for the first time in Congress on April 1816, a month before the sickly Ross died at a relative’s home in Pennsylvania. Jean Laffite went to Washington, too, but not until December 1815, when he wrote a letter to President Madison on Dec. 27 seeking recovery of the raid monies. Madison’s response is unknown, but at that time, he was not in Washington. On Feb. 22, 1817, President Madison signed into law an amended bill supported by Congress that directed the secretary of the treasury to pay Ross and Patterson $50,000 from the proceeds of the Barataria raid. It was, of course, too late for Ross. In his will, Ross directed Dick to see that the sum granted him from Barataria was paid to his wife and children in New Orleans, but proof that that happened is non-existent.

Dick quickly turned about once more in his estimation of the Baratarians and Laffites following the afterglow of the Battle of New Orleans, mostly due to piratical actions in the spring of 1815 by one of Laffite’s men, Vincent Gambie, who had been wounded in fighting on Jan. 8, 1815. He was unsuccessful in bringing Gambie to justice due to sympthetic jurists, but in late 1817 Gambie’s own men beheaded him with an axe following a dispute over money.

In 1819, prompted by an increasing turn of New Orleans public sentiment against the Laffites at their new base at Galveston, and the US capture of the Laffite’s newly acquired ship Le Brave after it seized a Spanish ship carrying American cargo  near La Balize, Dick successfully brought piracy charges against the captain and crew, the first time a Laffite ship had officially been found guilty of piracy. The captain and most of the crew were hanged in 1820, not long after the Laffites abandoned Galveston.

Dick married Mary Farar of Laurel Hill near Natchez in January 1820. By November of the same year, she died along with their stillborn child and her mother at the Dick’s vacation home at Bay St. Louis, victims of yellow fever. Dick also had it but recovered. Grief-stricken, he resigned his position as US Attorney and moved out of his opulent New Orleans house as it bore too many memories of his wife. However, US District Judge Dominick Hall died the next month , creating an opening, and President Monroe appointed Dick federal judge in New Orleans in 1821. In 1823, he married his first wife’s second cousin, Frances Ann Kenner. Their marriage would not last long. John Dick died April 23, 1824, of consumption.

In one of the strangest twists of the John Dick story, although he had felt the Baratarians deserved better treatment after their role in the Battle of New Orleans, he did not feel so warm-hearted to Jackson at the time, possibly due to his unconstitutional use of martial law in New Orleans, and the incarceration of Judge Hall. As soon as peace was declared, Dick indicted Jackson on charges of obstruction of justice for imprisoning Judge Hall when he had charged Jackson with contempt of court. When Jackson appeared in court for the indictment, he refused to answer interrogations, received a fine of $1,000, paid it and left the court, carried away by a cheering crowd of Baratarians. Years later, Jackson remembered Dick as his “sworn enemy,” but Dick actually revered Old Hickory. In his will, Judge Dick left a personal library which included four portraits on the walls, depicting George Washington, President James Monroe, Napoleon, and Jackson. Dick was a complex man with mutable ideals.

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Andrew Jackson’s Fine and the Place of Martial Law in American Politics

November 21, 2014 in American History, general history, History, Legal History, Louisiana History

 

Andrew Jackson by Thomas Sully From Wikimedia Commons

Andrew Jackson resented mightily the fine imposed on him by Judge Dominick Hall in New Orleans in 1815 for contempt of court. At the very end of his life, with death approaching, Jackson campaigned for the return of the thousand dollar fine through an act of Congress, and his efforts were rewarded. “He viewed the return of his fine as a larger statement about the legitimacy of violating the constitution and civil liberties in times of national emergency.” (Warshauer, p.6) That is the crux of the problem presented in Matthew Warshauer’s Andrew Jackson and the Politics of Martial Law: Is it ever all right to violate the constitution? Did Andrew Jackson set a precedent that it was, a precedent later followed by Abraham Lincoln and every wartime president since?

The fine was levied by the Federal District Court in 1815. It was refunded to Jackson by Congress in 1844. But did this refund really serve as a justification of martial law? Or was it just a sign of appreciation for a dying former president and national war hero?

The term “martial law” was at one time a synonym to “military law” and used to describe the legal tradition of absolute law – one characterized by a lack of civil liberties – that applied to those who served in the military while they were in active service. Only later, after the Congressional debates concerning the refunding of the Jackson fine, did “martial law” come to mean giving the military absolute authority over civilians in times of emergency. (Warshauer, p. 17).

Nationalism, according to Warshauser, was the force that allowed the constitutional limits on military authority to be breached, not just in the case of Andrew Jackson, but for every member of the executive branch since who has invoked emergency powers:

To many, Jackson represented the pinnacle of American nationalism. The Battle of New Orleans had invested him with the highest claims of patriotism and devotion to country… Jackson’s understanding of his nationalist appeal is one of the items that made him a formidable politician and president. Subsequent presidents have embraced the same political use of nationalism. Lincoln focused on the sanctity of the Union during the Civil War and … embraced martial law. Consider also the nationalism fomented by Franklin Roosevelt in the midst of the Great Depression. He utilized the overwhelming nationalist support of the 1936 election to challenge the Supreme Court’s threats to his New Deal legislation. … [E]ngagement in World War II was impossible without nationalist sentiment … in the form of … Pearl Harbor…Similarly, George W. Bush could not possibly have engaged in a war against Iraq … or curtailed civil liberties with the Patriot Act without the nationalism spawned by [9/11]. (Warshauer p. 18)

Did Andrew Jackson really invent American nationalism? Did it not exist before that moment in 1814 when he arrived in New Orleans? When exactly did American nationalism come into being? And what does the term mean in this context? Is it just a another word for patriotism? Or does it mean loyalty to one’s nation of origin?

It was not that sense of nationalism that led to the American Revolution. Abigail Adams, writing to her husband John, on November 12, 1775 referred to the common origin of the Americans and the British: “Let us separate, they are unworthy to be our Brethren. Let us renounce them and instead of supplications as formerly for their prosperity and happiness, Let us beseech the almighty to blast their counsels and bring to Nought all their devices.” Notice that there is no question that the British were the brethren of the American colonists. It was just that they weren’t worthy! If on national grounds alone, the Americans and the British were one people. But the American colonists’ insistence on the civil liberties secured to all Englishmen applying also to themselves was the reason for the separation. If anything, this was anti-nationalism. Civil liberties trumped national unity.

Andrew Jackson, while still a minor, served in the Revolutionary War. He defied the British, his brethren, at the risk of his life. When exactly did he become a nationalist? Could it be when he entered the City of New Orleans and realized that he would need to get Edward Livingston to translate everything he said to French before he could address the people of the city and hope to be understood?

To an ill-educated boy from the rural south, New Orleans was cosmopolitan and foreign. It was filled with people who had just recently been French and only a little earlier had belonged to Spain, and it was more foreign by far than the invading British forces! “Concerns over spies and dissent within the largely foreign city prompted Jackson to proclaim martial law.” (Warshauer p. 19). Jackson did not trust the people of New Orleans precisely because they were not his brethren!

While Jackson’s feelings of being outnumbered by foreigners in a city whose defense was chiefly his responsibility might be quite understandable, both retrospectively in 1842 when the congressional refund debates began and maybe even prospectively in 1814, the situation he was placed in came about through the extra-constitutional machinations of Thomas Jefferson in 1803.

There was no provision in the constitution for new territories –and the human population that lived within them– to be bought and sold at taxpayer expense . The provision for new states to be brought into the Union presupposed that the majority of those living there would petition to join of their own free will. And it was probably presumed, at the time of the writing, that these new people would be brethren who had colonised large wilderness areas and had come to outnumber the natives who were there first.

But Anglo-Americans in New Orleans were outnumbered by French Creoles and Cajuns, free blacks, Spanish merchants, Catholic clergymen and nuns, both French and Spanish, whose oath of loyalty was to the Pope before any State or monarch, and any number of other “foreigners” or at the very least, people who sounded and looked foreign, even though they were now legally American citizens, Louisiana having just joined the Union as a state in 1811.

Would Andrew Jackson ever have considered imposing martial law if he had been stationed in a state such as South Carolina during the beginning of the War of 1812? There, it was the local free white males who had failed to obey the orders of their governor, Joseph Alston, thereby leaving the state without a defense force during the beginning of the war. A writ of habeas corpus had been issued to free deserters from the militia, because the possibility of dying of malaria was felt to be much more real than any just-declared war against Britain. 

 The unusual state of affairs in New Orleans due to the Louisiana Purchase is one of the factors that led to Jackson’s decision to invoke martial law. He did not trust the citizens of New Orleans, because they seemed foreign. It is not, however, something that comes into the legal argument that was derived from this precedent, which was later applied against his own brethren by President Lincoln in the context of a civil war.

Andrew Jackson was not, in fact, the first American general to attempt to impose martial law on New Orleans, although he was the first to make it stick as a legal precedent. The first to impose martial law in American held New Orleans was General James Wilkinson, who was also, at the time, the Governor of Louisiana Territory, and his purpose in so doing was not to repel a foreign invasion, but to apprehend and disenfranchise Aaron Burr and his friends Erich Bollman and Samuel Swartwout, whom he accused of plotting to take over the Western territories and separate them from the United States.

At the time, Edward Livingston, also a friend of Burr’s, had just barely escaped being summarily arrested as well. Writs of habeas corpus were ignored and the attorneys presenting them threatened with arrest. Deprived of the right to counsel, the prisoners were transported by the military branch of the government and kept without right to trial. As it happens, James Wilkinson had been a Spanish spy, and it was in his capacity of an agent of Spain that he acted to repel Aaron Burr’s attempt to filibuster his way through Texas and Mexico. Which is a reminder that a person does not necessarily need to be a foreigner to serve as both a spy and a traitor.

Andrew Jackson was aware of these past events, for he, too, just like Bollman and Swartwout and Edward Livingston, was a good friend of Aaron Burr and a supporter of his would-be venture against Spanish held Mexico. He stood by Burr during the treason trial in Richmond, and he was aware of the Supreme Court decision in Ex Parte Swartwout and Ex Parte Bollman that stated that the right to habeas corpus may not be infringed by the executive branch unless Congress passed a law suspending the writ of habeas corpus. Thomas Jefferson had wanted to pass such a measure through Congress in his eagerness to foil Burr, but Congress did not grant his wishes.

So here was Andrew Jackson, like James Wilkinson before him, suddenly declaring an emergency and suspending the writ of habeas corpus. What would be the right course of action for anyone disagreeing with Andrew Jackson’s imposition of martial law? To file a motion for a writ of habeas corpus? It was exactly the right so to do that had been suspended. To openly rebel against the armed forces of the United States? Even if successful, that would open anyone so doing to a charge of treason.

The right to a writ of habeas corpus and to be free of martial law is one of those things that get hammered out in a court of law after the fact. They cannot under normal circumstances be resolved in the heat of the moment. Even in Ex Parte Bollman first the right to habeas corpus was suspended, and only later was this ruled to be unconstitutional.

One difference between the two cases was that the United States was not in fact at war when James Wilkinson tried to suspend the writ, so that the Supreme Court was still sitting, and it was possible to appeal directly to the highest court on a question of jurisdiction, even if lower court judges were imprisoned for speaking up in New Orleans. But America was under siege in 1814, and in August of that year the capital had been burned by the British. Government buildings were still in shambles at the time of the Battle of New Orleans.

Before the Battle of New Orleans the pragmatics of the situation and the extreme gravity of the British threat allowed Jackson to do whatever he chose without real resistance. Any checks and balances to his actions of a constitutional nature could only come too late and after the fact. This meant that restitution and/or a fine could be levied against Jackson later, but nobody could get an injunction to prevent him from doing whatever he chose to do right then.

Jackson was fully aware of this state of affairs. He asked the counsel of two legal advisors before he took this step:

 Jackson’s advisors, Edward Livingston and Abner Duncan, ultimately concluded that martial law suspended all civil functions and placed every citizen under military control. The lawyers disagreed, however, on the legality of the proclamation. Livingston believed that it was “unknown to the Constitution or laws of the U.S.”… (Warshauer p.23)

On December 16, 1814 Andrew Jackson issued his proclamation imposing martial law on the City of New Orleans. “All who entered or exited the city were to report to the Adjutant General’s office. Failure to do so resulted in arrest and interrogation. All vessels, boats and other crafts desiring to leave the city required a passport, either from the General or Commodore Daniel T. Patterson. All street lamps were ordered extinguished at 9:00 p.m., and anyone found after that hour without a pass was arrested as a spy. New Orleans was officially an armed camp and General Jackson the only authority.” (Warshauer p.24)

It was ironic that Daniel T. Patterson was given almost equal authority with Andrew Jackson, since if there was ever a British sympathizer in the city of New Orleans, he, rather than the French speaking populace, must surely have been guilty. It was after all Patterson who attacked the Baratarian privateers, destroying their base, and capturing their ships, when Jean Laffite informed him that the British were anchored off Mobile Point and about to attack Fort Bowyer and offered to help him fight the British. But Daniel T. Patterson was an American naval officer, and Jackson trusted him implicitly. There was nothing foreign about him.

Among other powers that Jackson summarily granted himself with this proclamation of martial law was the power to draft into the militia or impress into naval service any person and to confiscate property, which included fencing, the wood in the walls of “negro houses”, muskets and flints, and even bales of cotton. Nothing taken was paid for, though receipts acknowledging the confiscations were provided.

 Every slave, horse, ox, and cart was requisitioned for military use, and the general authorized the enlistment of all Indians within the district to serve on the same footing as the militia. Mayor Nicholas Girod received orders to “search every house and Store in the City for muskets, Bayonets, Cartridge boxes, Spades, shovels, pick axes and hoes”…

From the point of view of second amendment rights, it seems interesting that arms were being confiscated from their owners, rather than the owners simply being enlisted in the militia and asked to bring along their own weapons in the service of their country. This does not seem like the well-regulated militia contemplated by the second amendment. Instead, arms were taken from the people who owned them and being redistributed to other people who were considered more trustworthy.

While all this conscription and confiscation was going on under the guise of martial law, the thing that truly saved the city came in the form of a donation freely given. Jean Laffite and his Baratarian artillery unit were eager to serve and happy to donate flints and powder and artillery – if only the General would allow them to enter the city! As there were not enough flints available in the city, this donation was indispensable. It was in grudging cooperation with the Baratarians that Jackson was able to win the Battle of New Orleans and with that the undying gratitude of the nation. The glorious battle culminating in an American victory on January 8, 1815 led to much rejoicing, including public displays in the the Place d’Armes in which Baratarians alongside other American volunteers marched proudly, and at a banquet for high ranking officials, Jean Laffite stood side by side with Andrew Jackson as an honored hero. And then… everything should have gone back to normal, only it didn’t.

The citizenry of New Orleans may have grumbled, but they were by and large accepting of Jackson’s actions imposing martial law prior to the Battle of New Orleans. Despite his suspicion of them, most did not want to submit to the British and did everything they could to support the defense of the city. It was only after the American victory and when rumors that a peace treaty had been signed began to circulate that people started to openly rebel and inquire as to why it was that in peacetime martial law had not yet been lifted. “Desertions and mutiny among American troops prompted even more arrests. No longer perceiving a threat to their city after the January 8 victory, the citizens of New Orleans demanded a return to their former lifestyles.” (Warshauer p.31)

Businesses had been neglected. All commerce had ceased. Families lost their breadwinner. All this was acceptable during the thick of war, but the sooner things went back to normal once the war was over, the less suffering to the citizenry. Jackson, however, held onto wartime measures without any compunction for the suffering he was inflicting, long after the danger from the enemy was past. He ordered deserters imprisoned, then shot. One man, Pvt. James Harding, who deserted to help his wife who had been evicted from their home, was granted a reprieve from execution only at the last moment. These deserters were not career military, but ordinary citizens who had been glad to serve their country when the help was needed, but who had obligations in civilian life that were now pressing. Many residents of New Orleans of French and Spanish origin who had been happy to serve in the thick of battle were now starting to ask the French and Spanish consuls to provide them with exemptions on the grounds that they were really French or Spanish citizens. Everything that had united the residents in defense against the enemy was now conspiring to separate them in light of the continued iron rule of Andrew Jackson’s martial law. (Warshauer pp. 32-33.)

In mid-February, more than a month after the British had retreated for good, boarded their ships and disappeared, Jackson attempted to scare the citizenry into obedience by saying that “the enemy is hovering around us and perhaps meditating an attack.” (Warshauer p.32). Rather like an incompetent parent conjuring up the bogeyman to get children to obey, Jackson needed an invisible enemy to keep the people of New Orleans in line.

On February 24 Governor Claiborne wrote to exiled Attorney General Stephen Marerceau: “I can no longer remain a Silent Spectator of the prostration of the Laws. – I therefore request you, Sir, without loss of time to repair to this city… and resume your official duties…. And on receiving any information of any attempt of the Military to seize the person of any Private Citizen, not actually in Military Service of the United States, you are specially instructed to take for his protection, and for avenging the Injured Laws of this State such measures as your knowledge of the laws will point out.” (Warshauer p.34)

On March 3, an article appeared in the Louisiana Courier signed anonymously by “A Citizen of Louisiana of French Origin”:

 [I]t is high time the laws should resume their empire; that the citizens of this state should return to the full enjoyment of their rights; that in acknowledging that we are indebted to General Jackson for the preservation of our city and the defeat of the British, we do not feel much inclined, through gratitude, to sacrifice any of our privileges, and less than any other, that of expressing our opinion of the acts of his administration….

The article was penned by state senator Louis Louaillier, and one of the chief acts of the administration that he complained of was bringing citizens before military tribunals “a kind of institution held in abhorrence even in absolute governments.” Two days after the article appeared, Jackson had Louaillier arrested and warned that any person serving a writ of habeas corpus to free Louiaillier would also be imprisoned.

If Jackson wanted to prove himself a tyrant, then there could have been no better way to do it. A request for a writ of habeas corpus had in fact already been made before Federal Disrict Court Judge Dominick Hall. Hall, who had been appointed by none other than Thomas Jefferson in 1804. Hall equivocated momentarily on the issue of jurisdiction – was this a Federal or a State matter? – then granted the request. No sooner had Judge Hall granted the motion for a writ of habeas corpus, then Andrew Jackson had him arrested for “aiding and abetting and exciting mutiny within my camp.” In Jackson’s mind, the entire city of New Orleans was his camp and every citizen, from Federal Judges to state senators to the lowliest householder – was a soldier at his beck and call. (Warshauer pp.35-36)

And this might never have ended, if not for the arrival of an official notification on March 13 to Andrew Jackson of the ratification of the Treaty of Ghent.

Signing of the Treaty of Ghent
Wikimedia

But as soon as the treaty, which had already been signed on December 24, 1814, while the Battle of New Orleans was ongoing, by Ambassador John Quincy Adams for the Americans and by Admiral of the Fleet James Gambier, and that was ratified by the Prince Regent ( aka George IV) on January 30, 1815, was also ratified by the U.S. Senate on February 18, 1815, it was in fact the law of the land. There was only one problem: Jackson had not been told about it through proper channels. Yes, he’d heard about it. But not through official channels. And Andrew Jackson always went by the book.

As soon as Jackson received notification of the peace of Ghent being ratified by all parties, he revoked martial law and all the many prisoners were released, those exiled were allowed to come back to the city, and the case against Jackson was brought to court. United States v. Major General Andrew Jackson was what it was called, Judge Hall presided, and when all the legal arguments were settled Andrew Jackson was found in contempt of court and fined one thousand dollars, which, without admitting any wrongdoing, he paid.

Jackson was not forced to spend a single day in prison, despite the many he imprisoned. He was not forced to undergo any corporal punishment such as a flogging that many an impressed sailor had to undergo, he was not court martialed, nor executed summarily like the men had shot, he was not stripped of rank and dignity, he was not forced to go into exile like Aaron Burr after his acquittal for treason, and he did not lose his military pension. For violating the most important provisions of the constitution, including the first and second amendments, while in the pay of the United States, it was a mere slap on the hand.

But to Jackson it rankled, and so he hoped that one day he would be vindicated. In fact, he has been, not merely by the Congressional award in 1844 of his fine with interest, but by the political reality and even by the narrative that is told today by historians.

The argument on either side has always been a question of constitutionality versus necessity, as first formulated by Edward Livingston. Those who felt Jackson’s imposition of martial law was not constitutional to this very day seem to argue that it was nevertheless necessary. Matthew Warshauer is certainly one example: “Can one violate civil liberties if doing so saves the government that provides those civil liberties? …However much one might like to disdain Jackson for military rule, he did in fact save the city in a victory that was unprecedented and perhaps impossible without martial law.” (Warshauer pp. 44-45.)

Do governments provide civil liberties? Or do the best of them merely stand aside and not infringe on civil liberties that the people are already endowed with? The declaration of independence seems to argue for the latter and to deny the former. Is the rise of American  nationalism referred to earlier in the text by Warshauer in fact just a rise of statism, having nothing to do with nationality or patriotism, but with the state’s supremacy over individual citizens?  And did Jackson win the Battle of New Orleans because he imposed martial law or despite his unpopular and unconstitutional wielding of absolute power? This depends on whether one acknowledges the contributions of Jean Laffite and the Baratarians.

 

James Wilkinson — What a real spy looks like

Warshauer distinguishes between unfortunate excesses to be deplored — the jailing of a Federal judge and a state senator in time of peace for expressing opinions or issuing writs — and the need for thwarting spies and saboteurs. But the belief that martial law is a good deterrent against spies or saboteurs (today known as terrorists) is misguided. In a war against the British, the enemy looked and acted just like us. It would not have been possible to tell who was a British sympathizer based on their place of origin or the accent they used when they spoke, the clothes they wore, their twirling mustaches or their overall manner. The man issuing passes was just as likely to be a British sympathizer as the lowliest citizen with a foreign accent. Foreign-sounding names like Louaillier and Laffite did not necessarily imply lack of loyalty, when real spies during that era had names like Arnold or Wilkinson, and British sympathizers were often called something like Patterson. The color of a person’s skin meant nothing when real spies — whether for England or Spain — had the rosy complexions and the clean shaven faces of Englishmen. You simply could not look at someone and tell that he was a spy, and while there were in fact spies (it was not all paranoia), no spy was ever caught thanks to the unconstitutional measures imposed by martial law.

It is true that when Andrew Jackson entered the city in December of 1814, there was a spirit of disaffection between the people of New Orleans and their American-imposed government, but it was not because they were sympathetic to the British. On the contrary, they hated the British fiercely, and it was only to the extent that the Americans behaved like the British that this disaffection carried over. Tax collectors and revenuers, men of the Revenue Cutter Service, were thwarting the commerce of the United States, first under the color of the Embargo Act, and later the Non-Intercourse Act,  laws which were in fact unconstitutional and contrary to the spirit of the American revolution. Governor Claiborne’s real difficulty was in getting rid of smugglers and privateers who fought the British and then sold their goods to the citizens of New Orleans at a fraction of the cost. This was galling both to the tax collector and to the American merchants who had bought British goods at full price despite the embargo, but it was in fact a service to nation in its fight against the British. The crux of the disagreement between the people of New Orleans and their state Governor and with Commodore Patterson of the Federal government was who should pay for waging war.  But to suggest that the citizens of New Orleans would not have fought to defend their city from the British unless they were conscripted under Jackson’s martial law is deeply misleading and offensive. 

Who fights better, conscripts or volunteers? You can lead a man to battle, but can you force him to fight? How helpful were the bales of cotton, the fencing and the muskets and cartridges that were confiscated, when not placed in the willing hands of their owners to do battle for New Orleans? How many men who wanted to serve were alienated by being forced to serve?  How many “foreigners” were sacrificed so that native born double dealers like Daniel Patterson could make money off stolen goods from Barataria? Wasn’t the Battle of New Orleans won largely through the generosity of Jean Laffite who donated flints and powder, artillery and trained men, who had learned professional shooting as privateers and could make important contributions to both tactics and strategic planning? Didn’t Andrew Jackson himself commend the dedication of Dominique You and Renato Beluche?

We don’t have to question the good intentions of  Andrew Jackson to note that what he did was wrong. The excesses under martial law that we deplore are the natural and inevitable consequence of absolute power, and even the most well-intentioned man will fall into them as a result of wielding that power. When President Madison asked that Congress approve a declaration of war against Britain, it was impressment of sailors by the British that served as a pretext. Can impressment of sailors by Andrew Jackson be justified as a response to that? Or was the willing contribution of privateers to the success of the Battle of New Orleans the real reason the war was won?

References

Davis, William C. 2005. The Pirates Laffite: The Treacherous World of the Corsairs of the Gulf. Harcourt.

Hunt, Charles Havens. 1864. Life of Edward Livingston. D. Appleton and Co.: New York.

Kennedy, Roger. 1999. Burr, Hamilton and Jefferson: A Study in Character. Oxford University Press.

Warshauer, Matthew. 2006. Andrew Jackson and the Politics of Martial Law. Knoxville: University of Tennessee Press.

http://www.revolutionary-war-and-beyond.com/abigail-adams-reveals-anger-toward-great-britain.html

http://www.historiaobscura.com/commemoration-of-a-hero-jean-laffite-and-the-battle-of-new-orleans/

Talk at Laffite Society Meeting October 14, 2014

October 12, 2014 in Legal History

There will be a talk about the effect of the changing laws about privateering on the career of Jean Laffite  October 14, 2014 at 6 pm at the Laffite Society Meeting at the Meridian Towers in Galveston, Texas.

 

FlyerLaffiteSocietyKatz

The Effect of the Changing Laws Concerning Privateering on the Career of Jean Laffite

Today, very few people have a clear idea of what privateering is and how it differs from piracy, despite the fact that the United States constitution still has a provision for the issuing of letters of marque and reprisal. Many people think that the word “privateer” is a synonym for “pirate”. But before the War of 1812 privateering was a respectable way of life, and this perception changed after the war. Jean Laffite, who had been both a smuggler and a privateer under a letter of marque from Cartagena suffered considerably from a misperception that he was a pirate.

Some of the laws covered will include The Neutrality Act of 1794, the Embargo Act of 1807, the Non-Intercourse Act of 1809 and the Neutrality Act of 1817.

The talk will be preceded by a meeting of the Laffite Society at 6pm and will actually begin at 7pm.

The Meaning of Treason: United States v. Aaron Burr

February 1, 2014 in American History, general history, History, Legal History

Under the English common law, treason was an inexact and nebulous charge, one that could be leveled at almost anyone by association. Speaking against the government might be treason. Having friends who were traitors might be treason. A person might never have raised a hand in anger against his King or the state and yet still be hanged as a traitor. But under the United States constitution, treason is a well-defined and very limited offense.

Article Three of the United States Constitution

Article Three of the United States Constitution

Article 3, Section 3 of the United States Constitution defines and limits treason as follows:

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

Notice that the word “only” is part of the definition of treason. That means that the drafters of this section of the constitution wanted a very strict construction of their words to apply. They realized that case law often adds to or changes a statutory definition, but they did not want this to happen in the case of treason. Treason was to be what they said and no less than that should ever be allowed to pass for treason in an American court, nor could the definition of treason be changed by statute or case law. Only an amendment to the constitution could ever overturn the expressed desires of those who drafted this clause.

Why did the drafters of the Constitution feel so strongly about this? Because each and every one of them, by British law,  had been a traitor against Britain, long before ever they levied war against their mother country, and each of them remembered how it felt. They wanted people to be free to rise up against an oppressive government,  to speak against it, censure unjust rulers and seek redress for wrongs, before it became necessary to rise up in arms.

The people who wrote this section of the constitution were still alive at a time when one of their own decided to use a different definition of treason. That man was Thomas Jefferson, and he was at the time the President of the United States. He wanted Aaron Burr found guilty of treason, declared him in public to be a traitor in advance of trial by his peers, ignored the right to habeas corpus and used the military to arrest persons who were material witnesses in the trial and to hold them without access to an attorney until they had confessed.

Thomas_Jefferson_by_Rembrandt_Peale_1805_cropped

Thomas Jefferson by Rembrandt Peale 1805
From the Wikimedia Commons

Here is a brief factual description leading up to the case. In 1800 Thomas Jefferson and Aaron Burr had been tied for the presidency. They had both run on the same ticket. Eventually Jefferson had become the president, and Aaron Burr was his vice president. However, when Jefferson ran for a second term, he did not choose Aaron Burr as his running mate. Burr then devised a scheme whereby he intended to attack Mexico and acquire land in Texas. His ally in this plan was American General James Wilkinson, but Wilkinson, unbeknownst to Burr,  was being paid by Spain to protect its territorial interests. In pursuance of the best interests of Spain, James Wilkinson informed Thomas Jefferson that Aaron Burr was planning to use his army against the Western territories held by the United States. Thomas Jefferson declared Aaron Burr a traitor, and he used the United States army, under the command of General Wilkinson, to arrest various people whom he believed to be aiding and abetting Aaron Burr to commit treason. Among these people were Erich Bollman and Samuel Swartwout. Although they were arrested in Louisiana Territory, they were transported to Washington City, where the president took it upon himself to personally interrogate them.

John_Marshall_by_Henry_Inman,_1832

Chief Justice John Marshall painted by Henry Inman in 1832

A writ of habeas corpus was eventually ruled upon by John Marshall in the case of Ex Parte Bollman and Ex Parte Swartwout. Although Bollman and Swartwout were set free  for want of evidence against them and also because the Federal Court in the District of Columbia was not the Court before which they should have been brought, some of the obiter dicta in his published opinion later came to haunt John Marshall when he was presiding over the treason trial of Aaron Burr.

Namely, it was this part of the opinion that could be argued to expand the constitutional definition of treason beyond what the founders intended and to bring the American law on treason into a closer agreement with English common law:

 When war is levied, all those who perform any part, however minute or however remote from the scene of action, and who are actually leagued in the general conspiracy, are traitors.

Aaron Burr had at no time levied war against the United States. Neither had any of the persons who supported his scheme to conquer Mexico and acquire land in Texas. However, at one point, on Blennerhassett’s Island, when a United States officer had come to arrest some of the men who were planning to help Burr with his conquest of Mexico, the men refused to be arrested and pointed their muskets at the poor man, who then backed down. This was the “act of levying war” on the United States that the prosecution and the Jefferson administration were basing their case on. However, when this happened, Aaron Burr had been nowhere near Blennerhassett’s Island and was not a direct participant in this “act of war”, which in fact might more accurately be described as resisting arrest.

The great legal question that had to be resolved by John Marshall in the trial of Aaron Burr was this: which definition of treason holds, the one spelled out clearly in the constitution or the one he himself had set forth in Ex Parte Bollman and Ex Parte Swartwout.

A very nice dramatization of the decision before John Marshall can be found in the video below:


 

John Marshall’s  decision at the time was unpopular. He decided to abide by the constitution, even if it seemed that he was reversing his earlier ruling. Aaron Burr had not levied war against the United States government and no evidence that he had had been presented in court. Marshall instructed the jury on the definition of treason as set forth in the constitution, and the jury found Aaron Burr not guilty.

The Constitution of the United States is still the law of the land. Anyone charged with treason over actions not defined as treason in that document is not a traitor. This is as true today as it was in 1807.

 

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