You are browsing the archive for Edward Livingston.

The Letter That Tried to Scuttle the Baratarians’ Pardon

October 10, 2015 in American History, general history, History, Louisiana History

 

Poindexter Letter To Monroe

Poindexter Letter To Monroe

If George Poindexter had been Sec. of War or President during the end of the War of 1812, the Laffites and Baratarians would never have been pardoned for their past smuggling offenses even though they had given service and assistance to General Andrew Jackson at New Orleans.

Poindexter, who served as a volunteer aide de camp with Major General Carroll at Chalmette, took time away from his role as a judge at Natchez, Miss., to assist Jackson in defending New Orleans from invading British forces.

As soon as he returned home to Natchez, he wasted no time in firing off a confidential letter about his New Orleans experiences to his friend, Sec. of War James Monroe. The content about the pardon process is interesting as it contains some new information:

“Even a band of pirates was drawn into our ranks who were under prosecution of their crimes, and who had been invited to join the British while they occupied the Island near Lake Barataria. You will I hope sir, pardon me for stating to you, the manner, the circumstances of their transition from piracy to Patriotism, in the notorious Lafitte and his banditti. Edward Livingston, whose character is better known to you than myself, had contrived to attach himself and one or two of his adherents to the staff of Genl Jackson, as Volunteer Aids DeCamp (sic). The pirates had previously engaged him as their counsel to defend them in the District Court of the United States at New Orleans, and were by stipulation to give him the sum of twenty thousand dollars in case he succeeded in acquitting them. Knowing as he did that the evidence against them was conclusive, and that an impartial jury necessarily convict them, he advised the leaders of them to make a tender of their services to Genl Jackson in case he would come under a pledge to recommend them to the clemency of the Executive of the United States. Their services were accepted, and the condition acceeded to. How far the country is indebted to them for its safety it does not become me even to suggest an opinion. It is, however, a fact perfectly well known that their energy has been drawn by Mr. Livingston, their counsel; and there can be but little doubt that everything of an official stamp which is presented by the government respecting them, will emanate from the same source. If they are redeemed from  Judicial investigation of their crimes with which they stand charged, his reward will be twenty thousand dollars of their piratical plunderings.

What the practice of Civilized Governments has been on similar occasions I am not fully prepared to say, nor do I remember an instance where pirates falling into the Country and under the power of one belligerent, have been offered protection and pardon of their offences, in case they would take up arms against the other belligerent. They are considered as enemies alike to both belligerents but I have thought it a duty incumbent on me as a good citizen to state the facts which came within my knowledge, as to the motives which led to the employment of these men, without intending them to have any other, than the weight which is your Judgment they merit.

It would seem to be an obvious inference from the past conduct of this band of robbers that if Louisiana should be again invaded, and they are enlarged, they would be restrained by no moral obligation from affording facilities to the Enemy.

I indulge the hope that you will pardon the freedom with which I address you on the present occasion, from a recollection, that when I last had the honor of an interview with you in Washington, you were so good as to allow me the liberty of writing to you confidentially. In that light, I wish you will view this communication, in so far as it may conflict with the wishes and opinions of General Jackson, relative to the grant of a pardon to the pirates, whom he has thought fit to employ in our service.”

Signed, George Poindexter

Poindexter’s rather snippy revelation about Livingston’s fee for representing the Baratarians may or may not have been true. It could have just been battlefield hearsay. If the fee was really $20,000 in 1814 dollars, it would be the close equivalent to $200,000 today.

The letter implies but does not say that Livingston influenced Jackson to accept the Baratarians’ service as a way to ensure he would get his enormous fee. Poindexter hatefully says “it does not become me even to suggest an opinion” relative to the Baratarians’ contribution to the safety of the country. He conveniently forgets the vital contribution of the Laffite flints and powder to Jackson, plus the Baratarian cannoneers’ service. Without them, Poindexter likely would have found himself cooling his heels in a British prison ship on Feb. 5, 1815, instead of comfortably at home in his Natchez mansion.

Thankfully, however, Poindexter’s letter was much too late to even have a chance to stop the presidential pardons for the Baratarians. The same day Poindexter wrote his letter, Monroe sent a letter to Gov. Claiborne enclosing the signed pardons. They had been rushed through the pardon process at record speed, especially considering President James Madison and his cabinet were basically dislocated in Washington at the time and conducting business somewhat haphazardly from various houses. By the time Poindexter’s letter was in Washington, the pardons were in Gov. Claiborne’s hands.

There also happened to be another reason the pardons were accelerated: Monroe was secretly something of an ally to the Laffites and their men, through their mutual friend, Fulwar Skipwith, president of the Louisiana State Senate in 1814, and former President of the short-lived Republic of West Florida in 1810.

Along with Magloire Guichard, Speaker of the House of Representatives in the Louisiana state legislature, Skipwith had sponsored a resolution to grant amnesty to “the privateers lately resorting to Barataria, who might be deterred from offering their services for fear of persecution.” This was done around mid December 1814, not long before General Jackson shut the legislature down due to civil unrest within it. Skipwith must have informed Monroe about this very soon after it happened, with Jackson accepting the services of the Baratarians who were freed from prison, plus others who had not been caught in the September 1814 raid on Barataria, like the Laffite brothers. Due to wartime blockades of sea traffic by the British, letters had to be sent by post rider back east, with the time to delivery often being as much as a month or more. The request for presidential pardons from James Madison must have been made before the Battle of New Orleans, given that Monroe enclosed the pardons in his letter to Claiborne on Feb. 5, 1814.

The real reason the presidential pardons were fast-tracked lies in an understanding of the web of influence and political power between the Laffites, Skipwith, and Monroe. Even if Poindexter’s letter trying to defuse any possibility of pardons for the Baratarians had been received in time for consideration, in all probability it would never have been read by President Madison.

Monroe and Skipwith were old friends, from at least their days together in France, where Monroe was ambassador in 1795 when he named Skipwith to be the US Consul-General to France. Both men worked in the Napoleonic court together, fine tuning the Louisiana Purchase. Both men were Masonic brothers. Also, both men shared strong ties to Thomas Jefferson, Skipwith by relation as a distant cousin, and Monroe as a neighbor and very close friend.

There is a question of how Skipwith became associated with the Laffites. The most likely manner occurred not long after the Virginian moved to a plantation in Spanish West Florida in 1809. He started running privateers, at about the same time the Laffites were setting up their own smuggling and privateering business. No paper proof has been found linking them, but the actions of Skipwith in 1814 favorable to the Laffites would seem to indicate that they were, indeed, associates of some kind. Thus the Laffites had friends in some very high places.

Only a handful of Baratarians ever retrieved their pardons. The Laffites never applied or received any. Nor did Dominique Youx, the main gunner at Battery No. 3, or Renato Beluche, also a gunner at Battery No. 3.

As for what happened to George Poindexter, the man who wanted to deny pardons to the Baratarians despite their service to Jackson, he became the second governor of Mississippi and had a moderately successful political career.

Skipwith and Monroe kept up their correspondence for several years and apparently were lifelong friends.

For further reading about the hidden gems of early American history, I heartily recommend perusing Daniel Preston’s fine “A Comprehensive Catalogue of the Correspondence and Papers of James Monroe.” Thanks go to him for providing the Poindexter letter copy from the Monroe Papers. For more about Fulwar Skipwith, the man with the memorable name, and the Republic of West Florida, see William C. Davis’ “The Rogue Republic, How Would-Be Patriots Waged the Shortest Revolution in American History.”

 

 

 

 

 

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/

Jean Laffite’s Curious Payment of Attorney Fees for the John Andrew Whiteman Defense

November 29, 2013 in American History, general history, Louisiana History

Jean Laffite regularly employed attorneys in the course of  his business, and legal fees were a big part of his ordinary expenses. How big a part we may never know, as we don’t have access to his ledger books. He does not usually mention attorney fees in his journal, even when recounting events that involved having Edward Livingston or John Grymes represent him and his interests in court.

One exception appears on p. 151 of the Journal of Jean Laffite, in which he laments having spent $9000 on the defense of “Jn Whitman” who despite all this effort on his behalf was nevertheless found guilty and hanged on March 2, 1818.

WhitmanEpisodeLaffitep151

“On the second of March Jn Whitman was hanged at New Orleans for having slain an officer of the confederate [sic] army in 1813. His trial had dragged out at length, until finally he could not acquit himself of the charge of having shot first. His lawyers cost me $9,000. The execution of Jn Whitman gave the newspapers a pretext to publish extensive false information about my commune.”

Who was “Jn Whitman”? What was he hanged for? Why was Jean Laffite willing to spend a small fortune to defend him? (Nine thousand dollars in the currency of the day would be worth well over $100,000 today.) I wanted to know!

When I began investigating, the first question was what given name was the abbreviation in the journal meant to stand for. “Jn” is what Jean Laffite used in his own signature. He used it to stand for his given name, which in French was “Jean”, but could also be spelled “John” in English or “Juan” in Spanish. Later, when Laffite changed his name to Lafflin, he signed it Jn Lafflin, Jn standing for “John”. Being trilingual, it is likely that Jean Laffite used whatever version of the Biblical given name suited him at the moment, and he considered what all three names had in common to be what identified the name: starting with a J and ending with an n. It seemed reasonable that the same abbreviation was used for the name of someone in his employ, and since Whitman sounds like an English name, John Whitman was the name intended.

I consulted with Pam Keyes on this question, and she replied there was no John Whitman among Jean Laffite’s captains. There was an Andrew Whiteman who turned state’s evidence. However, in very short time Pam Keyes was able to locate this article from the April 27, 1818 Issue of the Washington Review and Examiner of Washington, PA,  which told of the life, trial and hanging of Andrew Whiteman.

“New Orleans,March 4 (1818).
 On Monday last the awful sentence of the law was executed on Andrew Whitman, who had been convicted before the district court of the state of shooting at one M’Key with intent to commit the crime of murder, an offence which is made capital by statute.
       Whitman was a native of Philadelphia, where his connections, though not wealthy, are respectable. From the age of fifteen years, when he first went to sea in a merchant vessel, till he committed the crime for which he suffered death, his life has been a series of perilous adventures and moving accidents by flood and field. He served some time in the American squadron which in the year 1805 humbled the pirates of the Mediterranean; after receiving his discharge, he again betook himself to the merchant service, and was impressed into the British frigate La Virginie; being transferred to another vessel, he soon contrived to effect his escape to the United States. About the year 1812 he joined the piratical establishment at Barrataria, and it was under the banners of John Lafitte that he shot a custom house officer in the execution of his duty. In 1814 he deserted these his worthy associates, and betrayed Pierre Lafitte to the marshal. About this time he enlisted in the 44th United States regiment of infantry, and was in all the battles which took place during the invasion of Louisiana. Since the peace and subsequent reduction of the army, his career has been extremely vicious; his associates have commonly been the most abandoned villains who fly to New Orleans in order to escape the hand of justice at home; his residence has been in brothels and catalan shops, those sinks of iniquity and receptacles of plunder, where the experienced malefactors may find patrons and coadjutors and the uninitiated are sure to meet with prompters and instructors.
        We hope that the example of Whitman will convince the gang of assassins who infest the city of New Orleans, and whose crimes cry aloud to Heaven for punishment, that Justice, though slow, is sure. and will at last assuredly overtake them, although they may triumph in their wickedness and laugh at the idea of detection; above all, we hope it will convince them that the criminal laws of the states are equally just and terrible in their inflictions, and not a mere cobweb to be evaded by the ingenious or prostrated by the powerful.”

It appears that this Andrew Whitman must be the John Whitman to whom Jean Laffite referred in his journal, and in fact the man’s full legal name was John Andrew Whiteman. But this news item raises many more questions than it answers. If Whiteman, after serving the Laffites, betrayed them and gave information that led to the capture and imprisonment of Pierre Laffite in 1814, why would Jean Laffite spend a fortune on his defense in 1818? Also, if all the Baratarians who served in the Battle of New Orleans were pardoned for any crimes committed in contravention of the Revenue Laws, why would Andrew Whiteman be tried at all for something that happened in 1813 and should have been covered by the pardon?

Could it be that because Whiteman enlisted in 44th United States regiment of infantry prior to fighting in the Battle of New Orleans, he was not eligible for President Madison’s pardon? If he had stayed loyal to his original employers, the Laffites, would he have been immune from prosecution for something that he did in 1813 while in their employ? And if he was in fact a member of the 44th regiment, was he present at the Patterson-Ross raid, on the government’s side? If so, how could Jean Laffite see his way clear to helping such a man in any way?

The answers to these questions may in fact be linked to Daniel T. Patterson’s own double dealings with the British, which are detailed in the article by Pam Keyes:

http://www.historiaobscura.com/daniel-todd-pattersons-secret-visits-to-dauphin-island-in-1814/

Could John Andrew Whiteman have known something that might have implicated Daniel T. Patterson in treason? Was he threatening to tell? Is this why the powers that be decided he must die? Is that why Jean Laffite wanted him kept away from the hangman’s noose?

The matter is currently under investigation by Pam Keyes.  I am looking forward to seeing what else may be found to shed light on this mystery.

 

Edward Livingston: A Famous Man That Few Have Heard Of

April 9, 2013 in American History, general history, History

Many people are born into obscurity, lead undistinguished lives, and die in obscurity. They never arrive at prominence, and neither do they feel any particular need to appear in the limelight. No statues are erected in their honor, no streets are named after them.   And neither they nor their descendants feel at all slighted that there is nary a mention in the history books of their dear departed. The fact is that most people expect to be forgotten, because even in life they are not well known, except to a handful of their friends and relatives.

And then there is another class of people: those who are known, but nobody quite knows what they are known for. The people who have streets named after them, or colleges and universities, or at least buildings on campus, but they have not done anything all that remarkable, and people assume they must have simply bought their fame. They were born into rich families, and they donated a lot of money, so their name is there, but they didn’t do anything to deserve their fame. And in fact, they are not famous, even though their names have been preserved.

And then there is a third class of people: the ones who are famous and rightfully so, but hardly anyone except for historians has ever heard of them. Edward Livingston (May 28, 1764 – May 23, 1836) is one of those!

Born into a prominent family, and always involved in public affairs throughout his life, Edward Livingston made valuable contributions in matters of law, diplomacy and warfare. His level of civic involvement was greater than normal for a public figure, and he demonstrated independent thinking, tact, courage in a crisis, loyalty to friends who were in trouble and personal responsibility that went above and beyond the call of duty. Nevertheless, his rise to positions of power was cut short on a number of occasions due to events that were outside his control. In each case, whenever he suffered a difficult loss, Edward Livingston picked himself back up, took responsibility for his own actions and of those who served under him, and managed to work himself back up the ladder. But each such event cost him dearly.

He served as Mayor of New York, United States Attorney for the State of New York, United States Senator from the State of Louisiana, as Secretary of State under President Andrew Jackson and United States Minister to France. Any one of those offices, if held by another person, might have represented an honorable culmination of a successful career.  But somehow, after following Edward Livingston’s life story, one has the feeling that these were all consolation prizes, and that if he hadn’t so often landed in impossible situations by reason of events outside his control, Edward Livingston might easily have been elected president of the United States.

     Livingston’s Ancestry 

 The Livingston family had been prominent for many generations, even before they moved to the new world. Edward Livingston’s ancestor, Sir Alexander Livingstone, was appointed as one of two joint regents during the minority of James II of Scotland, and after the death of James I in 1437. Sir Alexander Livingstone was named as “Keeper of the King’s Person” while his rival, Lord Crichton was made Chancellor. However, Crichton kidnapped the young King and Alexander Livingstone was able, through various “strategems” to restore him to his mother the Queen Dowager. Later, Crichton and Alexander Livingstone became reconciled, and they are even known to have plotted the death of a young Earl of Douglas. (There is a poem about it:)

The Livingstons had a long tradition of maintaining good relations with people from many walks of life. Even before Edward Livingston’s association with Jean Laffite, it was said that it was a Livingston who represented Blackbeard.

 A Fall From Grace

 Edward Livingston’s early life was marked with great success. He graduated from Princeton, passed the New York bar and ran for public office. He stood against the Alien and Sedition Act, which was the equivalent of today’s Patriot Act under the Adams administration.  Livingston was a good friend of Aaron Burr, and was elected a U.S. Representative from the party that elected Jefferson and Burr to office in 1800 (the Democratic-Republicans). He received an appointment from President Jefferson to the post of United States Attorney for the State of New York, at the same time as he was elected as Mayor of New York City. And then a terrible thing happened. An epidemic of yellow fever descended on the the City of New York. Going beyond the call of duty, Livingston went the rounds of the city, seeing if there was anything he could do to relieve the suffering and put a stop to the spread of the disease. In the process, he fell gravely ill himself. When he awoke from his fever, he found that an underling of his had absconded with all the funds of the United States District Attorney office that was under his direction.

Unlike the politicians of today, Edward Livingston understood that anything that was done on his watch was his responsibility, even if he was sick at the time and was not able to supervise. Livingston resigned from both his offices, sold all his possessions, remitted all his fortune to the United States Treasury and pledged to spend the rest of his life earning enough money to pay off the remainder of the debt. Then he left New York and traveled to Louisiana Territory, where he hoped to make his fortune.

Livingston worked hard building a law practice in New Orleans. He married a refugee from St. Domingue. He made new friends in Louisiana Territory and kept up his contact  with old friends. When Aaron Burr went on a tour of Louisiana Territory, drumming up support for his projected expedition into Mexico, one of his hosts was Edward Livingston.

However, when General James Wilkinson charged Burr with plotting treason against the United States, and Thomas Jefferson declared Burr’s guilt in advance of trial, Livingston very narrowly escaped suspicion himself. Because he had owed some money to Aaron Burr, and when presented with a draft drawn on him by Burr to the credit  of Erich Bollman, he immediately paid the debt, Edward Livingston was seen as being financially involved in “the Burr Plot.” Erich Bollman was whisked away to the capital to be interrogated personally by the President without benefit of counsel, but Edward Livingston escaped such a fate.

Nevertheless, Jefferson, who even after Burr’s acquittal, did not relent against his former Vice President, also held a grudge against Livingston. When Livingston received a plot of land called the Batture de Sainte Marie as part of his payment on a title suit he won for a client, Jefferson intervened and confiscated the land, saying that it did not belong to Livingston. When Livingston appealed to the Supreme Court to have the matter adjudged, the case was dismissed for lack of jurisdiction.

Livingston was still trying to pay his off his debt to the United States Treasury. Any money he would have made on the sale the Batture would have been remitted forthwith to the United States government. And yet Jefferson was determined to rob him of any such opportunity to pay down his debt to the nation. Even after Jefferson was no longer the president of the United States, he still published a pamphlet at his own expense to defend his actions against Livingston.

 

Edward Livingston, even under the most desperate situations, was known for his droll sense of humor. He replied to Jefferson’s tract in a pamphlet of his own, which you can purchase even today on Amazon.com. It is well reasoned and not a little funny.

Edward Livingston’s Contributions During the War of 1812

When the War of 1812 broke out, during James Madison’s presidency, New Orleans was a hotbed of political corruption, ethnic strife and at times complete lawlessness.As a result of the Embargo Act, which outlawed international commerce for Americans, and the somewhat less extreme No Intercourse Act that followed it, many smugglers and foreign privateers had made their base in the vicinity, among them Jean and Pierre Laffite. While their initial contribution to the local economy had been to smuggle goods whose exportation and importation had been outlawed, later on the Laffites specialized in privateering against British and Spanish vessels. Instead of commending the privateers for battling against their common enemies, the local authorities, including the Governor and the Revenue Service, deplored the fact that duty was not paid on the goods that the Laffites sold at auction, undercutting local merchants and depriving the United States Treasury of an income.

The British turned to the Laffites for help in capturing New Orleans, but the privateers relayed a copy of the British offer to the Americans, hoping to join forces with them in fighting the British. The local governor turned this information over to Commodore Patterson of the United States Navy, who went on an expedition against the Laffites. Refusng to fight the Americans, the Baratarian privateers retreated and went into hiding and asked for help from the one man who would listen to them: Edward Livingston.

Edward Livingston, unlike most other politicians in New Orleans, recognized the true value of the help offered by the Laffites. He organized a committee of citizens and made direct contact with President Madison and General Andrew Jackson, bypassing the local corruption and negotiating for a concerted effort against the British. Without Edward Livingston’s fair, far sighted intervention, the Battle of New Orleans would in all likelihood have been lost.

Edward Livingston as Jurist and Statesman

Following the war, Livingston was elected to the Louisiana state legislature. From 1821 to 1826, Edward Livingston spent much of his creative and intellectual effort on devising a code of  criminal law for the State of Louisiana. Written in both English and French, it covered the following legal subjects: crimes and punishments, evidence, procedure, and reform. While the “Livingston Code” became well known in Europe  and South America as a model criminal code, it was never passed into law in Louisiana.

Andrew Jackson never forgot Edward Livingston’s service during the War of 1812, and when he became president he appointed him Secretary of State (1831-1833). Livingston also served as minister plenipotentiary to France from 1833 to 1835.

The Legacy of Edward Livingston

Edward Livingston did pay his debt to the Federal Treasury in full. He is an example of a virtuous man and a public servant who actually put public service ahead of any other goal. In an age of corruption, he was able to cut through the labels that were placed on other people (traitor, pirate, criminal) and to see what good there was in each person. Without his help, a lot of innocent men would have been much worse off. Without his help, the country would have fallen to the British.

Is Edward Livingston remembered today? The answer is: yes and no.

The town of Livingston, Guatemala is named after him, largely a result of the popularity of the Livingston Code abroad. Livingston County, Illinois, Livingston County, Michigan, Livingston Parrish, Louisiana, Livingston County, Tennessee and Livingston County, Missouri are all named after Edward  Livingston. Edward Livingston Middle School in New Orleans and Fort Livingston are also named after him. But does anybody remember why? Because if they don’t, he might as well be just another fat cat rich donor who bought his way to fame.

Edward Livingston is one of those famous people that few have heard of who actually did some good. If you want to see an example of a virtuous man in public life, study the life and career of Edward Livingston.

 References and Related Links

http://legal-dictionary.thefreedictionary.com/Edward+Livingston

Skip to toolbar