• TABLE OF CONTENTS
HIDE
 Front Cover
 Title Page
 Front Matter
 Half Title
 Copyright
 Dedication
 Preface
 Table of Contents
 Introduction
 Book I: Louisiana and Florida in...
 Book II: Military Government in...
 Book III: Alaska and Our Insular...
 Errata
 Index
 Back Matter














Group Title: Studies in history, economics and public law ; v. 20, no. 2
Title: A history of military government in newly acquired territory of the United States
CITATION THUMBNAILS PAGE IMAGE ZOOMABLE
Full Citation
STANDARD VIEW MARC VIEW
Permanent Link: http://ufdc.ufl.edu/UF00055170/00001
 Material Information
Title: A history of military government in newly acquired territory of the United States
Series Title: Studies in history, economics and public law
Physical Description: 334 p. : ; 23 cm.
Language: English
Creator: Thomas, David Y ( David Yancey ), 1872-1943
Publisher: The Columbia University Press
Place of Publication: New York
Publication Date: 1904
 Subjects
Subject: Military government of dependencies   ( lcsh )
Territorial expansion -- United States   ( lcsh )
History -- Louisiana   ( lcsh )
History -- Florida -- 1821-1865   ( lcsh )
West Florida   ( lcsh )
History -- New Mexico   ( lcsh )
History -- California   ( lcsh )
Genre: non-fiction   ( marcgt )
 Notes
Statement of Responsibility: by David Yancey Thomas.
 Record Information
Bibliographic ID: UF00055170
Volume ID: VID00001
Source Institution: University of Florida
Rights Management: All rights reserved by the source institution and holding location.
Resource Identifier: aleph - 000029617
oclc - 01972838
notis - AAD3456
lccn - 04019876

Table of Contents
    Front Cover
        Front page 1
        Front page 2
        Front page 3
    Title Page
        Page 1
    Front Matter
        Page 2
    Half Title
        Page 3
        Page 4
    Copyright
        Page 5
    Dedication
        Page 6
    Preface
        Page 7
        Page 8
        Page 9
        Page 10
    Table of Contents
        Page 11
        Page 12
        Page 13
        Page 14
    Introduction
        Page 15
        Page 16
        Page 17
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    Book I: Louisiana and Florida in Transition
        Page 21
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    Book II: Military Government in New Mexico and California
        Page 99
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    Book III: Alaska and Our Insular Possessions
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    Errata
        Page 330
    Index
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    Back Matter
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Full Text




STUDIES IN HISTORY
ECONOMICS AND
PUBLIC LAW




EDITED BY
THE FACULTY OF POLITICAL SCIENCE
OF COLUMBIA UNIVERSITY




VOLUME TWENTIETH


Ntmo lork
THE COLUMBIA UNIVERSITY PRESS
THE MACMILLAN COMPANY, AGENTS
LonDON: P. S. KING & So
1904





















UNIVERSITY OF FLORIDA UBRARiES






PK YONGE
LIBRARY \
OF
FLORIDA
HISTORY
.,< "'
















CONTENTS







CONTENTS


.4


i. Tax OmcC or Jusnac or THi PrAcK w EmarAo.-mAharks
Awsti Bard, P. D. .
a. A HmronY or MIUrrTa GovuRNMENT or NnmWY AcUMR=D
Tnanmuro or Tim UNTR SrATU-DVeidI Y. AJ*w,
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Sr'DIB tN MBTOMY, IOONOMIOS AMN PUBIO0 LA
RDlITD SY THE FACULTY OF POLITICAL SCIENIC OF
COLUMBIA UNIVERSITY

Vdlume XX] .* *[ Number


A HISTORY
or

MILITARY GOVERNMENT

IN NEWLY ACQUIRED

TERRITORY OF THE UNITED STATES,


BY
DAVID YANCEY THOMAS, Ph.D.
Sometime Univerftty Fellow in history in Columbia Underigity
Professor of HBitor and Poltiali SaenMe
Hendrix CoUseg

SMw et bewi, sieit pacisjura.-Lrvr


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THE COLUMBIA UNIVERSITY PRESS
THE MACMILLAN COMPANY, AGENTS
L LONDN: P. S. K~Od &SoN
1904


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Columbia Intversttp

FACULTY OF POLITICAL SCIENCE

Nicholas Murray Butler, LL.D., President. J. W. Burgess, LL.D., Pro-
fessor of Political Science and Constitutional Law. Munroe Smith, J.U.D.,
Professor of Comparative Jurisprudence. F. J. Goodnow, LLD., Professor of
Administrative Law. E. R. A. Sellgman, Ph.D., Professor of Political Economy
'I and Finance. H. L. Osgood, Ph.D., Professor of History. Win. A. Dunning,
Ph.D., Professor of History. J. B. Moore, LL.D., Professoi of International
Law. F Giddings, LL.D., Professor of Sociology. J. A. Clark, LL.D.,
Professor of Political Economy. J. H. Robinson, Ph.D., Proessor of History.
W. M. Sloane. L.H.D., Professor of History. H. R. Seaget, Ph.D., Adjunct
Professor of Political Economy. H. L. Moore, Ph.D., Adjunct Professor of
Political Economy. W. R. Shepherd, Ph.D., Instructor in History. A. S. John-
son, Ph.D., Instructor in Economics. H. A. Cushing, Ph.D., Lecturer in History.
J. T. Shotwell, Ph.D., Lecturer in History. G. W. Botsford, Ph.D., Lecturer in
History. G. J. Bayles, Ph.D., Lecturer in Sociology. V. Q. Simkhovitch,
Ph.D., Lecturer on History. C. A. Beard, Ph.D., Lecturer in History.

SCHEME OF INSTRUCTION
GROUP I. HISTORY AND POLITICAL PHILOSOPHY.
SUBJEcr A. European History, sixteen courses.
SUBJEcr B. American History, nine courses.
SuBjecr C. Political Philosophy, three courses.
SUBJETr D. Ancient History, seven courses.
GROUP II. PUBLIC LAW AND COMPARATIVE JURISPRUDENCE.
SUBECTr A. Constitutional Law, four courses.
SuBJECT B. International Law, four courses.
SUBJECT C. Administrative Law, seven courses.
SUBJECT D. Roman Law and Comparative Jurisprudence, seven courses.
GROUP III. ECONOMICS AND SOCIAL SCIENCE.
SUBJECT A. Political Economy and Finance, fifteen courses.
SUBJECT B. Sociology and Statistics, ten courses.
Most of the cohtise consist chiefly of lectures; a smaller number take the form
of research under the direction of a professor. In each subject is held at least one
seminar for the training of candidates for the higher degrees. The degrees of
A.M. and Ph.D. are given to students who fulfil the requirements prescribed by
the University Council. (For particulars, see Columbia University Bulletins o
Information, Faculty of Political Science.) Any person not a candidate for a de.
gree may attend any of the courses at any time by payment of a proportional fee.
University fellowships of $65o each, and University scholarships of S1So each
are awarded to applicants who give evidence of special fitness tp pursue advanced
studies. Several prizes of from $50 to 250o are awarded. The library contains
about 360,000 volumes, and students have access to other great collections in the
city.










1


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2i
A HISTORY OF MILITARY GOVERNMENT IN NEWLY
ACQUIRED TERRITORY OF THE UNITED STATES
I



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smaiDsI aI HShTORY, zooNOMIoa AnD P~1.IO A
EDITED BY THE FACULTY OF POLITICAL SCI NOS OF
COLUMBIA UNIVERSITY


Volume XX]


ENumber I


A HISTORY
OF

MILITARY GOVERNMENT
IN NWrLY AoQUrcoD


TERRITORY


DAVID
PrefUMaw


THE COLU
THE MA(
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OF THE UNITED STATES

TY
YANCEY WOMAS, Ph.D.
Ity FellFoe sW isA v COmvmdu OiUMH r' Bwr Itory and A Bteil inseoi
aindrd. College

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IMBIA UNIVERSITY PRESS
CMILLAN COMPANY, AGENTS
O~Noon P. & Kna & SoN
.1904


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DaDYAnCEYr, THO0 A


DAVMD YMNCEY MHOMMS


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To
MY MOTHER
AND O TH MEMORY O MoY USr sI

MARY VIRGINIA











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PREFACE
WHEN the Constitution of the United States w4 drafted
and adopted no specific provision was made for upansion.
In consequence of this, some have doubted whether we had
the power to acquire new territory, and especially o incor-
porate it with the old. In spite of this, however, we have
acquired a domain much larger than that comprised within
the boundaries of the original thirteen States. The govern-
ment of such territory before its incorporation has pre-
sented some interesting problems.
The framers of the Constitution probably thought that
they had subordinated the military to the civil power in
almost all cases, but a century has see a remarkable growth
in the scope of the former. It would be absurd to think of
a civil power in hostile territory superior to the military
power occupying the country; but upon the transfer of
sovereignty the territory ceases to be hostile, unless 4 serious
insurrection is raised, yet the military continues to admin-
ister affairs until Congress provides some form of govern-
ment. Even in territory acquired by treaties of purchase
in times of peace the military, or at least the Executive pre-
rogative, which is generally based upon military authority,
has played a more or less important part until such action
by Congress. For that reason the governments of Louisiana
and Florida in the transition stage have been included in
this study, though there may be some doubt as to whether
they were strictly military. At any rate they wee so re-
garded by some at the time, and perhaps they were more
military than civil.
191] 7





I









PREFACE


The legal status of new territory, and the legal basis for
military government and its various administrative activi-
ties, must receive much attention in this book, but those
topics are not all that is included in the purpose of the
work. It is designed to present also an account of the
actual management of new acquisitions from the time of
occupation until the organization of territorial or state gov-
ernments. As to Louisiana, Florida, New Mexico, and
California, this plan involves practically a political his-
tory of those regions during that period. In the case
of Texas, there was no transition stage, strictly speaking.
In the case of Alaska, Hawaii, Porto Rico, the Phil-
ippines, and Samoa it has seemed unnecessary, not to say
improper, to go into details upon the same scale. The treat-
ment accorded to them is intended' to show the development
in military government since the Mexican War, or its ap-
plication under modern conditions; also to show how the
constitutional questions involved were met, that the reader
may compare recent action in this matter with earlier cases.
What has been the character of these later governments,
what they have accomplished for good or evil, is left, for
the most part, to the reader's memory of partisan accounts,
or to the researches of a later historian, when the air shall
have cleared and the evidence shall be complete and acces-
sible. Cuba is not included because not yet a part of the
United States, though she has felt the arm of our military
power.
Despite the fact that military government is coming to
be circumscribed more and more by rules and regulations,
the prejudice against it seems to be as strong to-day as ever.
This is true not only in the South, where the military
governments are remembered chiefly for the evil they
wrought, but throughout the country in general. The
author is unconscious of having started out with any pre-









193) PREPACE 9
conceived notions op prejudices one way or the other re-
garding the subject here treated. He has endeavored to
set forth in their proper relations the facts as found, that
they might tell their own story. What has been the char-
acter of military governments over occupied hostile territory
and over new cessions, except our latest, he hopes the reader
may be able to gather from a perusal of the following pages.
In making acknowledgments, the author cannot fail to
mention Professor Frederick W. Moore, Ph. D., of the Van-
derbilt University, who first suggested this field as a good
one for investigation. The Hon. M. A. Otero, Governor
of New Mexico, and the Hon. L B. Prince, President of
the New Mexican Historical Society, have been very cour-
teous in answering letters of inquiry. The officials of the
War and Treasury Departments at Washington also, especi-
ally the Hon. Charles E. Magoon, of the Bureau of Insular
Affairs, have been very kind in supplying information by
letter and through their official publications. Professor J. B.
Moore, LL. D., of Columbia University, has piloted the
author past several rocky shoals in the sea of international
law, and has rendered invaluable assistance in seeing the book
through the press. But thanks are due first of all t6 Pro-
fessor Wm. A. Dunning, Ph. D., of Columbia University,
who has taken an interest in the book from its inception, has
read the manuscript, and has made many valuable sug-
gestions. To him also, as well as to Dr. Alvin S. Jolnson,
of Columbia University, the author is indebted for assist-
ance in reading the proof.
Hnsax CouziE ARKANSAS, May I, 1904









i.





















TABLE OF CONTENTS

MAGM
INTRODUCTION .................. ... .

BOOK I
LOUISIANA AND FLORIDA IN TRANSITION

CHAPTER I
LOUISIANA
I. Taking Possession ....................... 23
II. Social and Political Condition of Louisiana ........ 2s
III. Constitutional Basis of the New Government.... . ... 3
IV. The Work of Administration and Its Effects ....... 38

CHAPTER II
THE ANNEXATION OF WEST FLORIDA
I. How the Conquest was Effected . . ... 45
II. Legal Aspects of the Annexation. . . . 49

CHAPTER III
THs CONQUEST OF EAST FLOaIA
I. Gradual Encroachment and Final Seizure . ... 54
II. Justification of the Seizure . ... . . 59
III. The Military Administration . . . . 6

CHAPTER IV
THE FINAL ACQtsrTIO OF FLORwA
I. Taking Possession of the Country. Its Condition. Rer-
ganization ....... .................. 65
II. Review of the Governor's Action . . ..... 72
i95S] xI











12 CONTENTS [196
PASGB
CHAPTER V
THa ADMINISTRATION OF AFFAIRs IN FLOIDA
I. The Callava-Fromentin Affair ... ........ ... 77
II. The Heirs of Vidal vs. Innerarity ...... .. .... 81
III. Opinions and Counter Opinions . . . 84
IV. East Florida and Other Affairs . . ....
V. Departure of Governor Jackson. Effects of His Adminis-
tration ................. ........ 94
VI. The Territorial Government Organized . ... 97




BOOK II

MILITARY GOVERNMENT IN NEW MEXICO AND
CALIFORNIA

CHAPTER I
THE OCCUPATxON 01 NEW MEXICO
I. The Conquest and Reorganization . . ... .. zo
II. The Conquest in Congress. Acts of the Conqueror Reviewed. 106
III. The Conquered Country. Its New Government .... 114
IV. The Revolt and Reconquest . . . ..... 117

CHAPTER II
THE MILITARY ADMINISTRATION OF NEW MEXIco
I. The Struggle for a Free Government ........... .. 128
II. Review of the Military R6gime . . . 14

CHAPTER III
THn OCCUPATION OF CALIFORNIA
I. The First Conquest and Reorganization ... ... ... 59
II. California at the Time of the Conquest ...... . .. 168
III. The Revolt and Reconquest . . ..... .. 72










197] CONTrNTS 13

CHAPTER IV
DivIson or THI SpomLs r
I. The Quarrel of the Victors ... ........... 6
II. Fremont's Administration ... ............. 18
III. Fremont Ousted by Kearny .............. 1.85
CHAPTER V
THi FINAL R1onOAMIZATION
I. Setting up the "Civil" Government . .. .
II. The Regulation of Foreign Trade ........... 105
III. The Status of California before and after the Treaty .. 03

CHAPTER VI
T=H MIuTAnY ROVLx I CAItORNmIA
I. The Administration of the Customs and the Civil Fund 18
II. Internal Administration: a. Legislative Decrees. b. Courts
and Municipalities. c. The Indian, Mission, and Land
Policy of the Occupants . . . 8
III. Efficiency of the Military Government . . .. 23

CHAPTER VII
THn END or TBu MILITARY RtaEMx
I. Manifestations of Discontent and the Call for a Constitutional
Convention ................ . 254
II. Formation of the State Government . . .



BOOK III
ALASKA AND OUR INSULAR POSSESSIONS

CHAPTER I
ALASKA ..... .............. . . 279

CHAPTER II
HAWAn ........ .............. .... .




*I











14 CONTENTS [198

CHAPTER III

Tim PHILIPPINES, PORTO RICO, SAMOA, AND PANAMA
I. The Occupation of the Philippines ......... . 8
II. Military Rule in the Philippines ......... ..28
III. Military Rule in Porto Rico . . ... .. ... 30
IV. The Occupation and Government of Tutuila, Samoa. 3x1
V. The Panama Canal Zone . . . .... 314
VI. The Instruments of Government . . . 318
CHAPTER IV

THE POLITICAL STATUS OF A4D CIVIL RIGHTS IN OUR NLw Pos.
SESSIONS ......... .. ........... 32















INTRODUCTION

THE United States have acquired new territory in set-
eral different ways: by treaties of purchase, by conquest
followed by treaties of cession, and by occupation and par-
tition. In practically all important acquisitions of territory,
except in the case of Texas and Hawaii, there was a transi-
tion stage, during which the new territory was held and gov-
erned in a manner not expressly provided for in the Con-
stitution. In most cases the transition stage has ended in
some form of territorial government; in one case it ended
in a state government. During the transition stage the new
territory was held under what is commonly called military
government This fact necessitates at the very beinnin
of this study an examination of what is meant by military
government.
Chief Justice Chase has attempted to define three kinds
of military jurisprudence: military law, military govern-
ment, and martial law proper. The first consists of the rules
and articles of war as used for the regulation of armies in
the field. His definitions of the other two are almost too
vague for formulation, but he makes the secowidabpy to
occupied hostile territory, the third to domestic territory in
time of invasion or special danger.'
It is only within the last century that the distinction
between military law and martial law has been clearly drawn
in England and America. The difference has been well
1 Dissenting opinion, Ex port Milligan, 4 Wall., 141 et seq.
991 IS











stated by Chief Justice Chase, and it is hardly necessary to
add anything here to what he has said on the subject But
the vagueness of his distinction between military govern-
ment and what he styles martial law proper renders doubt-
ful the propriety of his divisions. Indeed, it can be shown
that what the learned judge has endeavored to set off into
two distinct classes are but different manifestations of one
and the same thing. With military law we shall have no
further concern.
Neither the Constitution nor the statutes of the United
States give us much help in the definition of martial law,
for it is not mentioned in either, at least in a definitive way.
" According to eyery definition of martial law," said Attor-
ney-General Cushing, "it suspends, for the time being, all
the laws of the land, and substitutes in their place no law-
that is, the mere will of the commander." Such was the
old view, probably based on a similar statement by the Duke
of Wellington. Such is practically the view to-day also;
but of late there has been a tendency to move away from the
bald statement that martial law is the mere will of the mili-
tary commander, and to justify it by the common law of
acts done by necessity for the defense of the commonwealth
where there is war within the realm."" Martial law is the
basis of military government, and necessarily applies in
occupied hostile or foreign territory. It may be applied to
domestic territory under certain conditions, but its applica-
tion in the one case differs materially from that in the other.
The latest authoritative declaration of what is allowable in
the former may be found in the second convention of the
Hague Conference, where it is said that "the occupant
shall take all steps ii his power to re-establish and insure,
a Opinions of Attorneys-General (Cushing), viii, 374-
SPollock in London Times, March zo, xoa.


INTRODUCTION


[200










201] INTRODUCTION I1
as far as possible, public order and safety, while respect-
ing, unless absolutely prevented, the laws in force in the
country." 1
This simply means that the machinery of government
falls into the hands of the military occupant, who may
permit it to continue in operation, or alter it, or abolish
it altogether. If the local laws remain and the native
officials continue in office, it is only by his direc-
tion, or on sufferance. It is true that only extreme
necessity, the welfare and safety of the army of occu-
pation, will justify violent changes, but the occupant
is practically the judge of the necessity. In any case, the
responsibility for the management of the government de-
volves upon the commanding general. The last century
has seen a decided tendency to limit his powers, and this
has found expression in the quotation from the Hague
Convention. While he is still left rather 'free under the
law of necessity, he must be able to substantiate the neces-
sity under the laws of nations. The course of this study
will show that measures have been taken by military occu-
pants within the last century which could not be justified
under this rule. In addition to these limitations, the gen-
eral may be, but commonly is not, limited by special laws
enacted by the legislature of the country to which his army
belongs. Such a system we call military government.
After the acquisition of conquered territory, the military
government continues de facto until altered by the new
sovereignty.
The nearest approach which the Constitution makes to
a mention of martial law is in that clause which authorizes -
1Article xliii. Holls, The Peace Conference at The Hague, 447. A
more elaborate statement may be found in the "Instructions for the
Government of the United States Armies in the Field," issued April
24, 1863. Office. Rec. (Reb.), Serial no. 124, pp. 148 et seq.










INTRODUCTION


the suspension of the privilege of the writ of habeas corpus
when in cases of rebellion or invasion the public safety
may require it. Such a suspension does not bring about
a complete state of martial law. On the other hand, the
proclamation of martial law suspends the writ, whether
any mention is made of the suspension or not; for the will
of the commander can never be supreme so long as the
writ may be used against him. These facts might produce
some doubts as to whether it was intended that martial
law should ever be proclaimed on domestic territory. When
any part of the country has, by insurrection or rebellion,
defied and thrown off the home government, such region is,
for the time being, no longer domestic territory, but has, to
all intents and purposes, become hostile or foreign. The
enforcement of martial law over such a district, when con-
quered, until the civil power can be re-established, cannot
be questioned. But martial law is often proclaimed over
territory confessedly domestic. Such must inevitably be
the case where an insurrection covers the entire area of a
state. In this instance the proclamation is but the an-
nouncement that the civil authorities are insufficient to cope
with the disorders, and must be supported by the military.
Again, martial law has been proclaimed in territory not in
insurrection at all, but threatened by foreign invasion, as'
at New Orleans by General Jackson. Finally it has been
enforced, at least certain features of it, where there was
neither insurrection nor danger of invasion, as in the North-
ern States during the Civil War, and in the Southern States
long after the insurrection was declared at an end. In all
these cases the ostensible purpose was to uphold the de jure
government.
And herein lies the distinction between military govern-
ment and martial law on domestic territory. The former
supplants the existing government, whether it be de jure


[202










INTRODUCTION


or de facto; the latter professedly supports the de fri
government. In giving this support the military commander
rises superior to the laws of ordinary times. He may arrest
and detain individuals not connected with his army, and
even punish them; he may interfere with the established
courts; he has even gone so far as to disperse a state legise
lature; but he does not formally assume the management
of civil affairs. These go on as before, except in the par-
ticular cases in which he interferes. But his will is supreme
wherever he sees fit to make it so. Such a condition in
France is known as the "state of war," and is recognized
in the French law.1 That it has no distinctive name in
American and English jurisprudence is the fault of our
nomenclature-or of our jurists.
While recognizing the fact that, in England and America,
martial law on domestic territory is, and can be, regulated
by no constitutional or statutory law, commentators say
that it must be exercised with due moderation and justice,
in accordance with the "paramount necessity which alone
calls it into being, and with the general rules of public law
as applied to the state of war. It cannot, therefore, they
say, be despotically or arbitrarily exercised any more than
any other belligerent right; and in case of abuses redress may
be had in civil courts, or by impeachment, after the restor-
ation of the civil law.' It is spoken of as the "dominant
military rule exercised under ultimate military and civil
responsibility."
That there is some possibility of redress is evidenced
by the fact that the legislatures of the United States and
1 The three conditions are: E'tat de paix, etat de guerre, et 6tat de
siege. Block, Dictionnaire de FAdministration Franfaise (1898), pp.
Iog9 et seq.
SHalleck, International Law (London, 1893), ii, 544; Birkhimer,
Mil. Govt. and Mar. Law, 338.


203]










INTRODUCTION


Great Britain have passed bills of indemnity, after the ex-
ercise of martial law, in order to protect officers from
prosecution for acts done by virtue of their extraordinary
powers. Though generally very sweeping in its terms, this
indemnity legislation has not always been construed by the
courts to cover every conceivable act. In a few cases sub-
ordinates have had to suffer for unwarranted acts, in spite
of bills of indemnity.1
But all this qualification of the commander's power de-
pends upon the return of the previously existing civil
conditions. Happily such has always been the case
in England and the United States, but, theoretically
at least, the fact remains that the military commander,
in the United States, the President, can rise superior to
all laws, except possibly the law of humanity. Unusual
cruelty might provoke foreign intervention. If he: is the
judge of the necessity of proclaiming martial law, he is
likewise the judge of the time for withdrawing it. During
the reign of martial law he might think that the public
safety-or his own subsequently-required the abolition of
the old system and the installation bf himself as a king or
a permanent dictator. In that event his work could be un-
done only by a counter revolution. In practice the com-
mander usually is guided by motives based on the highest
patriotism, but a bad man might be restrained only by
fear, or by the extent of the obedience he could command in
his army.
Such are the distinctions between military government
and martial law on domestic territory. With the latter
we shall not be much concerned in this study, though it
may be necessary to notice it now and then.
1 N. Y. World, Oct. 5, 1865; Appleton's Ann. Cyc. 1863, p. 487 et seq.


[204












i










BOOK I

LOUISIANA AND FLORIDA IN TRANSITON









/ |



















CHAPTER I
LOUISIANA

I. TAKING POSSESSION
BY the treaty of San Ildefonso, concluded Ocober z,
18oo, Spain agreed to retrocede the province of isiana,
which had been given to her by the secret convention of
1762, to the French Republic. In 1803 Napoleon agreed,
in consideration of fifteen million dollars, to cede the prov-
ince, not yet in the possession of France, to the United
States. The treaty of cession was concluded April 3o, and
proclaimed October 21, 1803. The third article of the
treaty stipulated that the inhabitants of the ceded territory
should be incorporated into the Union and admitted as
soon as possible, according to the principles of the Federal
Constitution, to the enjoyment of all the rights, advantages,
and immunities of citizens of the United States; and that
in the meantime they should be maintained and protected
in the free enjoyment of their liberty, property, and the
religion which they professed. The seventh article granted,
for twelve years, to the ships oj France and Spain such
privileges as were accorded to hose of the United States
in all ports of Louisiana. Possesion was to be given and
evacuation effected as soon as possible.1
In his message* transmitting the treaty to the Senate,
President Jefferson said: "With the wisdom of Congress
it will rest to take those measures which may be necessary
1Treaties and Conventions (U. S.), 276 et seq. 2 October 17, I803.
207] 23









MILITARY GOVERNMENT


for the immediate occupation and temporary government
of the country." In response to this suggestion, a bill of
two sections was passed and became a law October 31.
The first section authorized the President to employ the
army and navy, and so much of the militia as he might
deem necessary, to effect occupation and to maintain the
authority of the United States in the new territory. The
necessary funds were appropriated, to be applied under the
President's direction. The second section read:

Until the expiration of the present session of Congress or
unless provision be sooner made for the temporary govern-
ment of the said territories, all the military, civil and judicial
powers exercised by the officers of the existing government
of the same, shall be vested in such person or persons, and
shall be exercised in such manner as the President of the
United States shall direct, for maintaining and protecting the
inhabitants of Louisiana in the full enjoyment of their liberty,
property and religion.
February 24, 1804, an act was passed, to take effect in
thirty days, extending to Louisiana several laws of the
United States, among them those relating to revenue and
coinage. March 26, the President approved an act dividing
the territory and creating a territorial government for the
lower portion, to take effect October I, 1804. Until that
time the powers conferred in the first act mentioned above
were to be exercised by the Executive. A law provided
funds to meet the expenses of this temporary government.
Mr. W. C. C. Claiborne, then governor of the Missis-
sippi Territory, and General Wilkinson, of the army, were
commissioned to take possession of Louisiana for the United
States. As opposition was apprehended, they were author-
ized to use force, and the army and militia were ordered
to be in readiness to move. However, no opposition was


(208









LOUISIANA


encountered, and the formal transfer of sovereignty was
effected at the Cabildo, with some attempt at iclat, on
December 20, 1803. Our commissioners reported that the
American flag was raised in New Orleans "amidst the
acclamations of the inhabitants."
The same day Governor Claiborne issued a proclama-
tion, reciting that the President had commissioned him to
exercise the powers of government in Louisiana to the
extent and purpose for which they were conferred in the
act quoted above. All laws and municipal regulations then
in force would be continued; all civil officers, except those
whose duties were vested in him, and the collectors of the
revenue, would continue in office during the pleasure of
the governor. The inhabitants were exhorted to show true
allegiance to the United States and obedience to their laws
and authorities, and were assured of protection from vio-
lence from within and without. In a separate address to
the citizens of Louisiana he promised them protection, and
exhorted them to seek political information, to guide the
rising generation in the paths of republican virtue and
economy, without which their descendants could not know
the true worth of the government transmitted to them.'

II. SOCIAL AND POLITICAL CoNbfr'tN OF LOUISIANA
The geographical limits of the Louisiana Territory were
but vaguely defined in all the treaties of cession and retro-
cession, but the extent of the country actually acquired by
the United States in 1803, as finally defined in the Spanish
treaty of 1819, is familiar to all students of American his-
tory, and may be seen at a glance by reference to historical
maps. As soon as it was known that the treaty of cession
had been concluded, Mr. Jefferson sought detailed infor-


SAnn. 8 Cong., 2 Sess., 1230.


2 Ibid., 1232 et seq.










MILITARY GOVERNMENT


mation respecting the territory. This information had not
been obtained when the act of October 31 was passed, but
it was secured before possession was effected.
The population in 1803, according to a statement made
up from the latest documents obtainable, amounted to 41,-
275, of whom about 16,ooo were slaves and 1,303 free
people of color. The census of New Orleans in 1803 gave
it a population of 8,056. But these figures were believed
to be too low. The Spanish governor was fully persuaded
that the entire population of Louisiana was considerably
in excess of 50,000. Upper Louisiana, included in the
above figures, with settlements from St. Louis to New
Madrid, contained 6,028 souls, of whom 883 were slaves
and 197 free negroes. Figures for about I6,ooo Indians
were given, but their real number was unknown.
The white inhabitants were chiefly descended from the
French and Canadians. There were a few German settle-
ments, and a considerable number of English and Amer-
icans resided at New Orleans. In the Baton Rouge dis-
trict, east of the Mississippi river, the Americans were
greatly in the majority; in Upper Louisiana they were be-
lieved to constitute at least two-fifths of the whole. There
were no college' in the country. New Orleans had one
public school, and a fetv private schools for children. Not
more than half the [white?] inhabitants were supposed to
be able to read and write, of whom, perhaps, not more than
two hundred could do it well. They were said not to be
litigious, and crimes of great atrocity were rare. In re-
ligion they were Catholics.
The chief industry was agriculture, but some manufac-
turing was carried on. The trade of the country was con-
siderable. Of two hundred and sixty-eight vessels which
entered the Mississippi in 1802, one hundred and seventy
were American, ninety-seven Spanish, and only one French.


[210











The imports from the United States had declined about
half since 1799, but the exports to the United States had
increased in the same ratio.
The province had been so long in the hands of Spain
that all the French regulations had disappeared, and the
machinery of government had become entirely Spanish, ad-
ministering Spanish laws and ordinances made expressly
for the colony. The French held actual possession in 1803
only about three weeks, and this possession was taken
merely to effect the formal transfer to the United States.
But in that brief time the prefect issued several decrees
relating to the political organization. One of these de-
clared the code given to the province by Louis XV. to be
in force, excepting such parts as were inconsistent with
the Constitution and laws of the United States. His
authority to do this, might very reasonably be questioned.
One change was actually effected by the appointment of a
mayor and council for New Orleans. The chief object of
these changes was confessed by the French prefect to be
to add some dignity and respectability to his position by
a show of authority, and so to prevent his taking posses-
sion from being a ridiculous farce.1
The governor was at the head of the military and judicial
departments, and was vested with some legislative powers.
He could not levy new taxes without the consent of the
inhabitants, but how that consent was secured is not stated.
Presumably it was through the Cabildo, or Provincial Coun-
cil, over which the governor presided. This body was com-
posed of twelve members, said to be of the most wealthy
and respectable, who secured their offices by purchase. The
intendant, who looked after matters pertaining to the rev-
enue, admiralty, and the granting of land, was entirely

1 Martin, Hist. La., ii, 197; Gayarri, Hist. La., ii, 606 et seq.


LOUISIANA


2I1]


27










MILITARY GOVERNMENT


independent of the governor. The lieutenant-governor
superintended the administration of Upper Louisiana, in
which he was practically supreme in everything, except that
his decisions were subject to appeal. The several districts
were placed in charge of commandants, generally military
men, who were supposed to look after almost everything
of which a government takes cognizance. The procurer-
general had, among other things, to indicate the punish-
ment provided by law for any particular crime. Besides
these, there were numerous other officers not necessary to
mention, all of whom, except those whose salaries were
less than thirty dollars per month, were appointed by the
king. Not a single officer was chosen by the people.
Nearly every officer-the governor, intendant, command-
ants, alcaldes, and others-had some sort of judicial power.
In civil cases, small suits were decided in a summary way
by the auditor or judge, after hearing both parties in viva
voce testimony. In more important suits the litigants re-
duced their testimony to writing, all of which was taken
before the keeper of the records of the court. They then
had opportunities of making remarks upon the evidence,
by way of petition, and of bringing forward opposing
proofs. When the auditor thought the cause mature he
issued his decree. Appeals were allowed, in some cases to
Havana. The proceedings in criminal cases were very sim-
ilar. Trials were not public, but the accused had every
kind of privilege in making his defense, the testimony being
written. Trial by jury was unknown. Fees were small.
Such was the judicial system in theory. In practice it
was said to be very corrupt. Important suits were rendered
expensive by delays. Appeals to Cuba and Madrid were
slow and ruinous. The favors of the officials, from the
governor to the constable, were subject to purchase.1
1 Gayarr6, ibid., 584.









LOUISIANA


The Catholic Church was a part of the government. Its
officials also had certain judicial powers. Some of them
were paid from the public treasury.
The expenses of the government, including the pay and
support of the troops garrisoning the country, and other
items, such as repair of forts and public buildings, salaries,
and Indian presents, were far in excess of the revenue. The
chief source of income was the six per cent. tariff on all im-
ports and exports, yielding about $12o,ooo annually. There
were a few taxes, for example, on inheritances and legacies,
salaries of civil officials, saloons, conveyances of real estate,
and there were fees for pilotage, but all these did not yield
more than five or six thousand dollars annually. Instead of
paying local taxes, each inhabitant was bound to make and
repair roads, bridges, and embankments through his own
estate, A part of the deficit was met by the importation
of about $4oo,ooo in specie from Vera Cruz, but there was
still a yearly deficit of about $156,ooo. At the time of the
transfer it had amounted to $450,000. To meet this, cer-
tificates, called liberanzas, were issued, bearing no interest.
They usually passed at a discount of from twenty-five to
fifty per cent. This deficit, it was declared, was largely due
to the criminal negligence of the officials, who openly coun-
tenanced smuggling. The income from the six per cent.
duties alone should have produced $279,480, as the imports
and exports amounted to $4,658,ooo.1
About the best way to characterize such a government
is to say that it was "Spanish colonial." It was spoken
of by some historians of Louisiana as more military than
civil.
SThe material for this section has been taken almost wholly from
reports prepared for President Jefferson and submitted by him to Con-
gress. They may be found in Ann., 8 Cong., a Sess., 49g8 et seq. A few
statements have been taken from Martin, Gayarri, and from Stoddard,
Hist. Sketches of La.










Y GOVERNMENT


30 LTAR I L14
III. CONSTITUTIONAL BASIS OF THE NEW GOVERNMENT
When the Louisiana Territory was acquired our Gov-
ernment was in the absolute control of the ultra-constitu-
tional, or strict constructionist party. Their efforts to find
a constitutional justification for everything connected with
the transfer are interesting, not to say amusing, in view of
the fact that they ultimately had to do several things for
which there was no direct warrant in the Constitution, but
which were not, for that reason, necessarily unconstitu-
tional. Whether any act really did transgress the funda-
mental law will come up later. The situation seemed to
some of the men who had to deal with it somewhat anom-
alous, the newly acquired country being considered neither
entirely domestic, nor yet wholly foreign. This was the
view of Mr. Jefferson, who drafted an amendment begin-
ning: Louisiana, as ceded by France to the United States,
is made a part of the United States." However, the
domestic theory so far prevailed as to obviate the necessity
of an amendment, but some of the measures adopted to
carry it out savored somewhat of the opposite theory.
When the act of October 31 came up in the House, Mr.
Roger Griswold, of Connecticut,. seconded by Mr. Elliott,
of Vermont, moved to strike out the second section. The
objection brought out by these gentlemen, and those who
sided with them, was that the bill proposed to confer on
the President all the powers, military, civil, and judicial,
then exercised by the existing government in Louisiana.
Just what those powers were nobody knew, but they cer-
tainly were legislative, executive, and judicial. The union
of the three departments of government in one man was
repugnant to the Constitution. Nor could the legislature
delegate its powers of legislation to the President. Even


1 Writings (Ford), viii, 241. See also p. 262.


r T


2 Supra, p. 24.









215] LOUISIANA 31
if allowable, such a delegation of powers was bad policy.
While it was not apprehended that the President would
abuse them, it would be possible for him, under cover of
this authority, to establish the whole code of Spanish laws,
however repugnant to our own, and become practically a
despot. If such a despotism was necessary, as some argued,
let the military power be exercised by the President as
commander-in-chief of the army.'
SThose favoring the bill argued that the extent of powers
proposed to be conferred arose from necessity, it being
feared that turbulent spirits might resist the transfer of
sovereignty. Such a delegation was objectionable on gen-
eral principles, though not unconstitutional, but this was
an exceptional case, and the powers were not to be parted
with for a long time. Had we acquired the territory by
war, would any one say that we could not have driven out
the Spanish government and appointed officers to admin-
ister the laws? When a territory was ceded its inhabitants
had, according to the law of nations, a right to all the
existing laws until they were amended by the new sov-
ereignty. The entire government of Spain would cease the
moment we took possession. Should the people be aban-
doned to anarchy?'
This argument from expediency and necessity could be
supported by appeal to precedent. So far as the act dele-
gated and united powers, it followed the Ordinance of
1787. There was in this no delegation or union of the
powers of the general government. Indeed, no executive
or judicial powers appear to belong to Congress as a
national legislature, consequently it had none to delegate.
The delegation and union, then, was the act of Con-
gress as a sovereign,--a constitutional sovereign, it is true,


1 Am., 8 Cong., I Sess., 499 et seq.









MILITARY GOVERNMENT


but a sovereign in whom inhered all the powers of gov-
ernment so far as they related to territory, in virtue
of being empowered to make all needful rules and regula-
tions for the same, and a sovereign who might even govern
directly.
It has already been stated that the powers of govern-
ment were vested in the President. They were drawn from
two sources. Since he was authorized to use the army and
navy in effecting and maintaining possession, he could, in
case of necessity, have governed as a military commander.
The other source was found in the powers exercised by the
existing government, which were conferred on the Presi-
dent. Mr. Jefferson's opinion of these powers may be gath-
ered from some of his letters and official acts. The first
quotation is from a letter to Albert Gallatin, Secretary of
the Treasury, dated November 9, 1803. After enumerating
several things for which Congress should make provision,
such as the administration of justice, the naturalization of
ships and the prohibition of the importation of slaves from
abroad, he continues:

Without looking at the old territorial ordinance, I had
imagined it best to found a government for the territory or
territories of lower Louisiana on that basis. But on examin-
ing it, I find that it will not do at all; that it would turn all
their laws topsy turvy. Still I believe it best to appoint a
governor and three judges, with legislative powers; only pro-
viding that the judges shall form the laws, and the governor
have a negative only, subject further to the negative of a
national legislature. The existing laws of the country being
now in force, the new legislature will of course introduce the
trial by jury in criminal oases, first; the habeas corpus, the free-
dom of the press, freedom of religion &c., as soon as can be,
and in general draw their laws and organization to the mould
of ours by degrees as they find practicable without exciting


[216










217] LOUISIANA 33
too much discontent. In proportion as we find the people
there riper for receiving these first principles of freedom, Con-
gress may from session to session confirm their enjoyment
of them.1

To Mr. Madison, Secretary of State, under date of July
14, 1804:
The third article provides that they shall continue under the
protection of the treaty, until the principles of our constitution
can be extended to them, when the protection of the treaty is
to cease, and that of our own principles to take it's place. But
as this could not be done at once, it has been provided to be
as soon as our rules will admit. Accordingly Congress has
begun by extending about 2o particular laws by their titles,
to Louisiana.*

October 31, 1803, Secretary Gallatin wrote to W. C. C.
Claiborne, who was that day commissioned governor of
Louisiana:

It is understood that the existing duties on imports and
exports, which by the Spanish laws are now levied within
the province, will continue until Congress shall have other-
wise provided.'

November 14, he issued instructions to H. R. Trist, col-
lector at Fort Adams, and designated collector at the port
of New Orleans, to execute the Spanish customs laws,
mentioning specifically export duties, and the collection of
duties to and from the Mississippi district and New Orleans.'

1 Writings of tfferson (Ford), viii, 7s. Ibid., 313.
Writings of Gallatin (Adams), i, x67.
4 Book "G," Jan. I, x803 to Dec. 31, 1808, Collectors Small Ports,
in Office Secretary of Treasury. Quoted in Attorney-General Griggs's
Brief (October, xgoo), 82.










34 MILITARY GOVERNMENT [218
In the course of the debates in Congress the maxim of
international law, that the inhabitants of ceded territory are
entitled to all the existing laws until they are amended by
the new sovereignty, was quoted by one of the speakers.
He probably meant to exclude such laws as are political in
character. At a later date the Supreme Court affirmed that
the political laws necessarily changed, though the municipal
laws remained.1 Accepting this principle, it is hard to find
any justification for the adoption of the Spanish customs
laws.
The course adopted by the Executive was indirectly ap-
proved by Congress in the act of February 24, 1804, which
purported to extend our revenue laws to the recently ac-
quired territory, the same to take effect in thirty days. The
logical inference is that, in the opinion of Congress, these
laws did not apply to Louisiana before that date. That
they extended there the moment the territory came into our
possession does not seem to have occurred to anybody. Yet
there were in the Senate, and voting with the administra-
tion, Jonathan Dayton, Pierce Butler, and Abraham Bald-
win, all of whom had sat in the Constitutional Convention.
And Mr. Madison, one of the most conspicuous members
of that body, was Secretary of State.
The apparent reason why the Spanish revenue laws were
enforced is that they were believed to remain operative until
altered by the new sovereignty. Such a view appears un-
tenable; for those laws certainly were political in character.
A new sovereign might possibly adopt the political laws of
the old, but it is assumed that he already has laws defining
his relation to his subjects, and that these at once operate
over new subjects when no other stipulation is made. The
sovereignty of the United States had already adopted such


1 Amer. Ins. Co. vs. Canter, x Peters, Su.










LOUISIANA


laws, applicable to all subjects, and these necessarily applied
to the people of Louisiana, subject only to the modifica-
tions to which the sovereignty had assented in the treaty
of cession. Not only did the President have no authority
to enforce the Spanish customs laws, but he was in duty
bound to enforce our own. Not even necessity can be
appealed to in justification of what was done. The fact
that New Orleans was not within a collection district did
not prevent the execution of some revenue laws, and that,
too, by civil officials; then why not the revenue laws of
the United States?
The seventh article of the treaty, granting special privi-
leges to French and Spanish ships in Louisiana ports for
twelve years, does not appear to have been extensively
discussed at the time, but a similar provision in the treaty
of Paris (1898) has been assailed as violating that clause
of the Constitution which requires that duties, imposts, and
excises be uniform throughout the United States. From
some diplomatic correspondence of later years we learn that
the constitutionality of the seventh article was considered
by the Senate. In a communication of March 29, 1821,
John Quincy Adams says to the French minister, de
Neuville, that whether Article VII was compatible with
the Constitution or with Article III "might be, and was,
a question to the Senate in deliberating upon the treaty.
It was a question of construction upon a clause of the
Constitution; and that construction prevailed with which
the terms of the treaty were reconcilable to it and to them-
selves." At this point the Secretary of State is forced to
admit that, after the admission of Louisiana as a State before
the end of the twelve years, the continued observance of
Article VII was an open violation of the Constitution,
to which objections might have been raised, but adds that











36 MILITARY GOVERNMENT [220
the States waived such objections and admitted the inhabi-
tants of Louisiana "to all the rights of American citizens,
a friendly grant in advance of that which, in the lapse of
three short years, might have been claimed as an undeniable
right." 1
Something has already been said concerning the char-
acter of the local government in Louisiana prior to the ac-
quisition by the United States. In the opinion of Laussat,
the Spanish governor might have used the words frequently,
but erroneously, ascribed to Louis XIV., "L'itat, c'est moi."
This was a somewhat exaggerated view, but it must be con-
fessed that there was much in the political system of Louisi-
ana not in harmony with republican ideals. Mr. Jeffer-
son's opinion of the fitness of the people of Louisiana
for self-government was expressed in a letter to De Witt
Clinton, December 2, 1803: "Although it is acknowledged
that our new fellow-citizens are as yet as incapable of
government as children, yet some cannot bring themselves
to suspend its principles for a single moment." 2 Still it
is hard to believe that Jefferson thought they could be
governed without reference to the most sacred guarantees
of the Constitution. But what else were he and his gov-
ernor-general and intendant now doing in proclaiming that
all their laws should remain in force? How was the cut-
ting out of a man's tongue and the confiscation of his prop-
erty for reviling the name of Christ to be harmonized with
the clause forbidding the infliction of cruel or unusual pun-
ishment? or the exemption of certain classes from certain
kinds of punishment, with our democratic principle of
equality before the law? It does not appear that either
of these particular provisions of the Spanish law was ever
1 Amer. State Papers, For. Rel., v, 652.
s Writings (Ford), viii, 283.









LOUISIANA


invoked under our authority, nor is it probable that they
would have been enforced. Still they were a part of the
laws declared to be in force. Again, the Catholic religion was
the state religion in Louisiana, no other being tolerated in
public. It was supported in part by the public treasury.
Yet the first amendment to the Constitution says that Con-
gress shall make no law respecting an establishment of re-
ligion, or prohibiting the free exercise thereof." Surely
Congress cannot delegate powers prohibited to it. But the
adoption of the Spanish law certainly meant the establish-
ment of the Catholic religion to the exclusion of others.
The stipulation of the treaty that the inhabitants should be
protected in the enjoyment of their religion did not mean
that the Catholic religion must be supported by the state,
and had it meant this it could not rise superior to our
fundamental law.
Halleck makes an excellent comment regarding what
municipal laws remain in force upon the completion of
conquest and the transfer of sovereignty:

When it is said that . the law municipal continues till
changed by the will of the conqueror, it is not meant that
these laws, proprio vigore, remain in force, but that, it is pre-
sumed, the new political sovereign has adopted and continued
them as a matter of convenience ..... When, therefore, we
come to pronounce upon the -force of a law of the conquered
people after thi conquest, and to determine whether it has
been tacitly adopted by the conqueror, we must look to the
character of its provisions, and compare them with the laws
and institutions of the conquering state, that is, the will of
the conqueror as expressed by himself in similar matters.
Whatever is in conflict with, or directly opposed to, such ex-
pressions of his will, we cannot presume to have been adopted
by his tacit consent. Hence, Lord Coke says, if a Christian










MILITARY GOVERNMENT


king should conquer an infidel country, the laws of the con-
quered country, ipso fact, cease, because it is not presumed
that a Christian king has adopted the laws of an infidel race.1

Of course the principle just enunciated applies to terri-
tory acquired by peaceable cession as well. It will be
noticed that Halleck spoke of tacit adoption. Perhaps we
might say that the same principle would apply to adoption
by actual proclamation, it being assumed even in this that
the new sovereign does not mean to adopt laws and cus-
toms at variance with such as are already in force. This
certainly would be a liberal interpretation; but Mr. Jeffer-
son's course in Louisiana cannot be defended even on this
interpretation, for we find him speaking of introducing, as
soon as can be," 2 the habeas corpus, freedom of the press,
and freedom of religion, all of which are guaranteed by our
Constitution.

IV. THE WORK OF ADMINISTRATION AND ITS EFFECTS.
The French and Spanish in Louisiana did not take
"French leave" after the delivery of the territory to Gov-
ernor Claiborne, a fact which caused some annoyance and
uneasiness to the Americans. So early as February 20,
1804, Secretary Madison wrote to the governor that it
would be well to get Morales, the former Spanish intendant,
out of Louisiana in a discreet way. Laussat embarked April
21, 1804, and the Spanish commissioners made their adieus
three days later. About three hundred Spanish troops had
been sent to Pensacola a few weeks before this, up to which
time the American troops had to make out as best they could

1 Int. Law, ii, 488; cf. Chicago, Rock Island & Pacific Ry. vs. Mc-
Glinn, 114 U. S, 542-546.
2 Supra, 32.











in the redoubts surrounding the town and under their tents.1
But other prominent Spaniards still lingered. Spain hadr.
been very reluctant to see the province pass into the hands
of the United States, and it was commonly believed, with
apparently good reason, that these delays were occasioned by
the hope of profiting by disaffection in Louisiana, or by some
turn in the political wheel of fortune. It was not until
July 9 that the powder magazine opposite New Orleans was
delivered. In the Natchitoches district the operations of
the Spanish emissaries were particularly offensive.' Fin-
ally (August 28), Secretary Madison authorized Governor
Claiborne to say that their prolonged stay had not met with
approbation, and suggested October I as a suitable day
for letting it be known." October 9 the governor in-
formed Don Casa Calvo, the leader of the Spanish, of the
secretary's desires.
Regarding the internal administration of Louisiana up
to the organization of the territorial government under the
act of Congress, there is not much to be said. The first step
taken (December 30) related to the organization of the
judiciary, in which Governor Claiborne exercised his legis-
lative powers by creating a court of pleas, composed of
seven justices, with certain defined collective and individual
jurisdictions in both civil and criminal cases.' Another act
of some consequence was the effort to establish the Louisi-
ana Bank to meet the demand for a circulating medium.
Still another was his effort to organize the militia."
In January, [804, a contingency arose for which the
governor had received no instructions and for which he

Madison's Works (1884), ii, 199.
2 Amer. State Pap., For. Rel., ii, 689 et seq.
a Works (1884), ii, o23.
Martin, Hist. La., ii, 238. 8 Gayarre, iv, I5 et seq.


2d3]


LOUISIANA









MILITARY GOVERNMENT


had made no provisions. It was nothing less than the
arrival of a slaver at New Orleans with some fifty negroes
for sale. Turning to the late Spanish contadore, Mr. Leon-
ard, he learned that such importations had been allowed by
Spanish law and custom since 1793, whereupon he left the
importer to pursue his own course.
According to some accounts there was no little discon-
tent among the people over their new situation. The reader
will recall that our commissioners said the American flag
was raised "amid the acclamations of the inhabitants."
Martin tells us that "a group of citizens of the United
States, who stood on a corner of the square, waved their
hats in token of respect for their country's flag, and a few
of them greeted it with their voices. No emotion was man-
ifested by any other part of the crowd." 2 After the trans-
fer there were some open expressions of discontent.
The general causes of discontent were said by Laussat
to be "the sudden introduction of the English language,
which hardly anybody understands, into the daily exercise
of public authority and in the most important acts of private
life; the affrays and tumults resulting from the struggle
for pre-eminence, and the preference shown for American
over French dances at public balls; the invasion of bayonets
into the halls of amusement and the closing of halls; the
active participation of the American general and governor
in those quarrels; the revolting partiality exhibited in favor
of Americans or Englishmen, both in the audiences granted
by the authorities and in the judgments rendered; the marked
substitution of American for Creole majorities in all ad-
ministrative and judicial bodies; the arbitrary mixture of
old usages with new ones, under pretext of change of domi-
nation; the intemperate speeches; the scandalous orgies;


1Amer. State Papers, Misc., i, 390.


a Hist. La., -ii, 19.









LOUISIANA


2251


the savage manners and habits; the wretched appointments
to office-what more shall I say, Citizen Minister?"
More specifically, it appears that some American patrols
were guilty of insolence toward some of the inhabitants.'
The native militia had dissolved. The governor's efforts
to encourage its maintenance by enrolling Americans were
only looked upon with. suspicion. AHis plan to relieve the.
financial stringency by an institution entirely unknown to
the people, a bank, only aroused their fears of more assig-
nats and liberansas. The official use of the English lan-
guage, of which suitors were ignorant, was particularly
annoying. The judges were almost wholly ignorant of the
Spanish laws. In former times 'appeals lay to Cuba and
even to Madrid. But now, said the plaintiffs, their gov-
ernor, who was not even attended, as the Spanish governors
were, by a legal adviser, was their court of last resort; and
the errors into which he could not help falling were with-
out redress."
These causes of discontent finally found expression in
a French pamphlet, "A Sketch of the Political and Civil
Situation of Louisiana, November 3o, 1803, to October I,
1804," which had a wide circulation. Yet this paper, though
it attacked unsparingly the administration of affairs in
Louisiana, spoke respectfully of Governor Claiborne's in-
tegrity and the purity of his motives. In a letter to
tary. Madison, the governor tried to vindicate himself, d
denied in toto many of the charges brought against 'm,
both in this pamphlet and in Laussat's letter, though he kn
nothing of the latter.'

1 Gayarr6, iv, 1o.
2Marbois, Hist. de la Louisiane, 360; Eng. trans., 335.
8Martin, Hist. La., ii, 246.
'Amer. State Papers, Misc., i, 399; Gayarre, iv, 24 et seq.









MILITARY GOVERNMENT


But the chief source of discontent seems to have boen
the form of government proposed to be put into operation
by the act of Congress, October i, 1804. According to
Laussat, the excitement became intense when the contents
of this act became known at New Orleans. Placards were
put up in which insurrection was openly preached, and pub-
lic officers were driven away when they attempted to tear
them down.1 Several public meetings were held to protest
against the act, and a deputation was sent to Washington
to present their grievances.
And this reveals much concerning the causes of, general
irritation. The people of Louisiana had supposed that they
were to be given at once all the blessings of liberty and
self-government, whatever they were, of which the Spanish
had kept them in utter ignorance. Had no such promise
ever been made, and had the province been ruled with an
iron hand, it is not at all improbable that the open expres-
sions of discontent would have been fewer, especially at
first. Yet these people were exercising one of the very
fundamentals of freedom, the right of petition and free
speech. Mr. Jefferson had spoken of the freedom of the
press as though it was not to be guaranteed at first, but
Governor Claiborne does not seem to have interfered with
this, although it added somewhat to his embarrassments.'
The situation of the country demanded that it be American-
ized, consequently a change of language was inevitable;
but it could have been accomplished with less friction had
men been sent who were familiar with Spanish and
French. Perhaps the Americans were numerous enough to
justify the bestowal of office upon some of them, but it
must have been trying to the natives to be ruled by these
gentlemen according to American notions of right and


[226


1 Gayarr6, iv, 11, 17.


2 Ibid., 26.









OT /TTTCT ALt A


227J 43
wrong, supported by occasional bits of American law, rather
than under the familiar Spanish laws, as the governor had
promised them.
The aspersions cast upon Governor Claibore by Laus-
sat do not appear well founded. About the most serious
charge that can be brought against him is his ignorance of
French and Spanish. This, it must be confessed, was a
serious one in the position he occupied. But his subse-
quent career, continuously governor of the Territory, first
governor under the State constitution, and elected to the
United States Senate, is a high testimonial to his character
and to the esteem in which he was finally held by the people
he had been sent to train in the first steps of liberty. After
all has been said, it does not appear that the causes of dis-
content were much more than such as are naturally incident
to a transfer of sovereignty, especially where great expec-
tations have been raised which cannot be suddenly realized.

Very little remains to be said respecting the administra-
tion of Upper Louisiana, that vast domain where society
was then in the primitive state which characterizes the out-
posts of civilization.
It was not until January 16, 1804, that the French and
Spanish commissioners gave orders for the delivery of the
posts in Upper Louisiana.1 Captain Amos Stoddard was
detailed to receive them. There cannot have been much for
him to do in the way of administration. June 16, 1804,
he forwarded to President Jefferson some documents re-
lating to the inhabitants and the resources of the coun-
try.2 Instead of manifesting displeasure at the pres-
ence of troops, the people protested on learning that
SAmer. State Papers, For. Rel., ii, 690.
2 Messages and Reports, 1804.









MILITARY GOVERNMENT


some of the few soldiers then among them were to be
withdrawn.1 The troops were wanted for protection
against the Indians. However, the soldiers were not so
well pleased, finding it difficult to live on their small pay
where prices were so high. November 8, 1805, a memorial
was sent to Congress praying for increased pay on this
ground.
The act of March 26, 1804, which divided the Louisiana
country, consigned the people of the upper portion to the
executive and judicial authority of the governor of the
Indiana Territory. The people were so dissatisfied with
the prospects of this quasi-foreign bondage that they chose
delegates to a convention to protest against it. This body,
composed of sixteen members from five settlements, met
at St. Louis on September 13, 1804, formulated their griev-
ances, and selected two delegates, Augustus Chonteau and
Eligius Fromentin, to present them to Congress. Captain
Stoddard attested the genuineness of their credentials, which
were signed by the president and secretary of the conven-
tion.2 March 3, 1805, an act was approved creating
a territorial government of the first grade. General Wil-
kinson, still an officer of the army, was appointed governor.
His position was sometimes spoken of as that of military
governor,8 but the mere fact of his being a military man
hardly justifies the application of the term to an office not
so regarded when held by a civilian.
1 Amer. State Papers, Misc., i, 403. 2 Ibid., 4oo et seq.
Claibore, Miss. as a Province, etc., 246; Schouler, Hist. U. S.,
iii, 82.


[228
















CHAPTER II


THE ANNEXATION OF WEST FLORIDA

I. How THE CONQUEST WAS EFFECTED
THE story of the acquisition of the Floridas is almost
continuous with that of Louisiana. Even before the ratifi-
cation of the Louisiana treaty, the Americans began to cast
longing eyes upon West Florida, and to wonder if it could
not be included in the cession. In fact, as soon as the treaty
was signed the American negotiators began to lay claim to
this territory. Congress, by the act of February 24, 1804,
authorized the President to erect the Mobile country, as
far west as the Pascagoula, into a separate collection dis-
trict, although possession had not then been obtained. No
boundary was designated toward the east. When this act
was published it aroused the wrath of the Spanish minister,
Yrujo, who went to the State Department and commented
upon it in tones which clearly revealed his anger. As an
effort was being made to conciliate Spain and win the sup-
port of France to our claims, Mr. Madison gave him such
assurances as were consistent with the expression of a claim
as far as the Perdido.1 May 20, 1804, President Jefferson
issued a proclamation creating the district, but defined it
in rather vague terms as the "shores lying within the
boundaries of the United States." Fort Stoddard, which
was on the Mobile river above the thirty-first parallel, was


SAmer. State Papers, For. Rel., ii, 576.










MILITARY GOVERNMENT


[230


made the port of entry. But the Spaniards retained pos-
session of Mobile, where their customs regulations, partic-
ularly the collection of duties on goods passing the town
to and from different parts of the United States, continued
for several years to be a source of no little annoyance to
the Americans.
The authority and power of Spain in West Florida were
now very weak, but she succeeded in putting down an in-
surrection in 1804, when the inhabitants of the West and
East Feliciana and East Baton Rouge parishes, who were
largely of English and American origin, rose in the hope
of securing American intervention.1 A later attempt was
more successful. The insurgents, or "patriots," led by
Captains Thomas and Depassau, and Reuben Kemper, who
lived on the American side, marched against the fort at
Baton Rouge, which was garrisoned by about thirty sol-
diers, and captured it at the first assault.2
This act was soon followed by a convention, September
26, i8io, which proceeded to act for the people in a sover-
eign capacity. They recited a number of grievances in a gen-
eral way, and declared that they were without hope of
protection from the mother country. Appealing to the
Supreme Ruler for the rectitude of their intentions, they
then declared the several districts composing West Florida
to be a free and independent state, with all the powers of
a sovereign nation. An official copy of this declaration
was ordered to be forwarded to Governor Holmes, of the
Mississippi Territory, to be by him forwarded to the Presi-
dent of the United States, with the hope that it might
"accord with the policy of the Government to take this
State under their immediate and special protection, as an
integral and inalienable portion of the United States." In


2 Claiborne, Miss. as a Prov., 304.


1 Gayarr6, iv, 18.









THE ANNEXATION OF WEST FLORIDA


a separate letter addressed, under authority of the con-
vention, by John Rhea, its president, to Mr. Robert Smith,
Secretary of State, it was presumed that the claims of the
State to the unlocated lands would not be contested by the
United States, as they had tacitly acquiesced in the claims
of France and Spain for seven years. A loan of one hun-
dred thousand dollars was solicited from the Government,
to be repaid by the sale of these lands.1
The convention seems to have been confined to the Baton
Rouge district, but it assumed to speak for the other par-
ishes, and proceeded to subdue them. Colonel Kemper was
sent to the Tombigbee settlement, in the United States, to
recruit a force and move against Mobile. Receiving much
encouragement from the Americans, he called upon the
Spanish commandant to surrender Mobile. While waiting
near the city his men became intoxicated, fell into confusion,
and were killed or captured by a squad of Spanish troops.
Colonel Kemper escaped. He and some of his followers
were afterwards arrested by Judge Toulmin, of Mississippi,
for waging war against the subjects of a nation at peace with
the United States. However, the historian Claiborne assures
us that this proceeding of the judge met with no approbation
in high quarters. Indirectly the government applied for the
pardon of the men who were captured.'
The appeal of the Baton Rouge convention to Washington
for assistance received no direct answer. October 27,
President Madison issued a proclamation reciting the
claims of the United States to West Florida, and giving
the reasons for not taking possession of it sooner. Now
the condition of affairs there, which threatened the security
and tranquility of our adjoining territory and afforded
new facilities to violators of our revenue laws and of


1 Ann., ii Cong., 3 Sess., 1232 et seq.


2 Miss. as a Prov., 3o8.









MILITARY GOVERNMENT


those forbidding the importation of slaves, made it impera-
tive for the United States to occupy the country. The final
status of the country was still to be a subject of fair and
friendly negotiations. In view of these facts, Governor
Claiborne would proceed to exercise over the said territory
the functions legally appertaining to his office as Governor
of the Orleans Territory. The good people were invited
to pay due respect to him and to obey the laws, and were
promised protection in liberty, property, and religion.
The same day Secretary Smith transmitted this procla-
mation to Governor Claiborne, with orders to print it
in English, Spanish, and French, and circulate it exten-
sively. The Secretary of War," said he, will order the
officers of the frontier posts to assist you in passing the
wilderness. You will lose no time in organizing the militia
of the district, bounding parishes, and establishing parish
courts. Do all your powers allow to maintain order and
protect the inhabitants. The Legislature of Orleans may
enlarge your powers and give the district representation in
the general assembly. Should you be opposed, the com-
manding officer of the regular troops on the Mississippi will
have orders from the Secretary of War to afford the
requisite aid upon your requisition. Do not use force against
any particular place which may still be in the hands of the
Spaniards. You are authorized to draw up to $2o,ooo." L
Governor Claiborne was just returning from a visit to
the States. When he appeared at Baton Rouge, December,
x8Io, supported by two companies of Mississippi militia,
the convention government dissolved. He then hoisted the
United States flag and issued a proclamation incorporating
the territory into that of Orleans. The next step was to
organize parishes and appoint administrative officers. In


1 Ann. Cong., ibid.


[232









THE ANNEXATION OF WEST FLORIDA


the latter work he pursued a policy of conciliation by ap-
pointing John Rhea, General" Thomas, and others who
had been prominent in the convention and the government
instituted by it. Early in January he sent flags, proclama-
tions, and conimissions to the remoter parishes of Biloxi
and Pascagoula. In the latter place the bearer, finding
none of the inhabitants able to read or write, prevailed upon
Captain George Farragut, sailing-master of the navy, to
accept a commission as justice of the peace.
In all of these operations no opposition appears to have
been encountered from the Spanish authorities. Indeed,
Governor Folch wrote, December 2, 18io, to Secretary
Smith, to say that he would deliver Mobile to the United
States upon equitable terms of capitulation if he did not
receive aid from Havana during the month. At the same
time he asked that the commandant at Fort Stoddard might
be directed to assist him in driving back Colonel Kemper,
whose movements have already been mentioned. No de-
livery of Mobile appears to have been made

II. THE LEGAL ASPECTS OF THE ANNEXATION
The action of our administration in West Florida did
not elicit so much as a diplomatic protest from Spain.
Indeed, that unfortunate country was hardly in a position
to assert her rights, owing to her own internal
disorders incident to the schemes of Napoleon. But
the British charge d'affaires, Mr. J. P. Morier, entered
a protest in her name. His letter, however, received
no reply until he wrote again asking for one. Mr.
Smith then merely referred to the public documents to show
that the act was not hostile to Spain, and added that our
representative at London had been instructed to give the


1 Claiborne, Miss. as a Prov., 305 et seq.


233]










50 MILITARY GOVERNMENT [234
necessary explanations to the British Government. July 2,
1811, Mr. Foster, the British minister, wrote Mr. Monroe,
then Secretary of State, to say that Mr. Pinkney had offered
no explanation, and that, if the military occupation was
persevered in, he must protest against it as contrary to every
principle of public justice, faith, and national honor, and
injurious to the alliance subsisting between the British and
Spanish nations.1
Mr. Monroe denied the right of Great Britain to inter-
fere, and proceeded to justify the seizure. It had not been
made, as Mr. Foster had intimated, through selfish motives
at a time when Spain was known to be impotent. Many
injuries suffered at the hands of Spain, spoliations and the
suspension of the right of deposit at New Orleans in par-
ticular, would have justified reprisals. But the United
States did not rely on these; their claims were based on
the treaty by which Louisiana was acquired. Since 1805
the government of Spain had hardly been felt in West Flor-
ida, consequently that province had fallen into disorder.
Only when the inhabitants rose and took matters into their
own hands did the United States interfere.
Though it was now easy enough to get up some sort of
justification as against foreign protests, Mr. Madison had
not been so sure of his ground at home. October 19, i81o,
when he knew something of what was going on, but had
not yet received any "communication from the successful
party at Baton Rouge," he wrote to Mr. Jefferson to say
that the crisis in West Florida presented serious questions
as to the adequacy of the laws of the United States for
territorial administration. He feared that the near approach
of Congress might subject any intermediate interposition
of the Executive to the charge of being premature and dis-
1 Amer. State Papers, For. Rel., iii, 542.









THE ANNEXATION OF WEST FLORIDA


respectful, if not illegal. Still he thought the exigencies
of the case, the country to the Perdido being ours and in
danger of foreign seizure would justify him in taking pos-
session.'
But his doubts about the legality and propriety of occu-
pation soon vanished. What he actually did has already been
told. October 30, he wrote to Pinkney, our minister in Lon-
don, that his action was understood to be within the author-
ity of the Executive." In his annual message, December 5,
he explained that this action had been taken because the
Spanish authority was subverted, and a situation produced
exposing the country to ulterior events which might essen-
tially affect the rights and welfare of the Union. In such
a conjuncture I did not delay the interposition required for
the occupancy of the territory west of the Perdido to which
the title of the United States extends, and to which the laws
for the Territory of Orleans are applicable. The legal-
ity and necessity of the course pursued assure me of the
favorable light in which it will present itself to the Legis-
lature and of the promptitude with which they will supply
whatever provisions may be due to the essential rights and
equitable interests of the people thus brought into the bosom
of the American family."
But the legality and necessity" of the act were not
accepted in Congress without question. The discussion was
brought on by a bill, reported December 18, by the special
Senate committee to which the above portion of the Presi-
dent's message was referred. This bill proposed to extend
the Territory of Orleans to the Perdido and to declare the
laws of the Territory in force over that region.
The opposition, led by Senator Horsey, of Delaware,
first denied any right to the territory under the Louisiana


1 Writings, ii 484.


2351


SIbid.,488.










52 MILITARY GOVERNMENT f236
treaty. With this part of the argument we are not con-
cerned here more than to remark that there was "some
thing to be said on both sides," and that, while many men
of that day considered our claims well founded, they are
not generally so regarded to-day. Having decided that we
had no claim to West Florida, Senator Horsey declared
that the Executive, in issuing the proclamation of October
27, which the bill proposed to put in the form of a statute,
had exercised authority derivable from neither the Consti-
tution nor the laws of the United States. In ordering forc-
ible military possession to be taken he was making war;
in ordering the enforcement of the laws of the Orleans
Territory he was exercising legislative functions. Both
these powers belonged to Congress. But even if the coun-
try was ours, no law of Congress could be cited authorizing
the act. The act of October 31, 1803, which empowered
the President to take possession of the country ceded by
France, expired October I, 1804. If the act of February
24, 1804, authorizing the Executive to create a collection
district at Mobile, whenever he shall deem it expedient,"
be cited, Mr. Madison himself, while Secretary of State,
had answered a protest of the Spanish minister against this
law by saying that its provisions would not "be extended
beyond the acknowledged limits of the United States until
it shall be rendered expedient by friendly elucidation and
adjustment with his Catholic Majesty." The necessity and
expediency of the act the senator rejected in toto.
Against this argument Senator Clay, of Kentucky, after
discussing our title to the territory at some length and
satisfying himself that it was good, defended the legality
of the President's course. The first section of the act
of October 31, 1803, authorizing the President to oc-
cupy and hold the country ceded by France, was un-
limited, hence still in force. The second, authorizing the









THE ANNEXATION OF WEST FLORIDA


creation of a temporary government, expired by limitation
at the end of the Congress which passed the bill. To this
alone was the act of March 26, extending the former till
October I, i804, applicable. The act of February 24, 1804,
made it the duty of the President to create a collection dis-
trict at Mobile whenever he deemed it expedient. That
time had now come and, instead of usurping the war- and
law-making power, he would have violated that clause of
the Constitution which required him to see that the laws
were faithfully executed, had he longer forborne to act. In
addition to this, when a power allowed a colony adjacent to
us to fall into such disorder as to menace our peace and
.threaten the integrity of the Union, we had a right, upon
the eternal principle of self-preservation, to lay hold of
it. This principle alone would warrant our occupation of
West Florida.'
Especially noteworthy is the absence of any considera-
tion of the people most affected by this action. President
Madison did indeed say something about their "essential
rights and equitable interests," but just what he meant is
not clear. Mr. Rhea's request, in the letter mentioned above,
for pardon for all deserters within the territory was not
noticed. Governor Holmes was directed to inform the
people that their claims to the public land could not be
entertained for a moment. He was further advised that
the President could not recognize in the convention of West
Florida any independent authority whatever to propose or
form a compact with the United States.'
The Senate bill to legalize the proclamations never passed,
but the territory was never surrendered. A part of it was
subsequently, by act of Congress, added to Louisiana when
she was admitted as a State.


SAnn., x Cong., 3 Sess., 25, 46, 55, 62 et seq.


237]


2 Ibid., 1259.
















CHAPTER III


THE CONQUEST OF FLORIDA

I. GRADUAL ENCROACHMENT AND FINAL SEIZURE
AFTER the events just recited the eyes, not to say the
hands, of the Americans were never taken off the Florida.
and the march of events leading to their permanent occu-
pation was more or less steady. When Governor Folch's
letter, offering to surrender Mobile, was received, President
Madison transmitted it to Congress, January 3, 1811, and
recommended to the consideration of Congress the season-
ableness of a declaration that the United States could not
see, without serious inquietude, any part of a neighboring
territory, in which they have in different respects so deep
and just a concern, pass from the hands of Spain into those
of any other foreign power." He further recommended
that the Executive be authorized "to take temporary pos-
session of any part or parts of the said territory, in pur-
suance of arrangements which may be desired by the Span-
ish authorities, and for making provision for the govern-
ment of the same during such possession."
The declaration of principles first quoted was embodied
in a resolution of Congress, approved January 15, 18It.
The same day an act was approved authorizing the Exec-
utive to occupy and govern East Florida under the con-
ditions just named. This act was passed in secret, aid
was not published until 1818.
To carry out this act, President Madison selected Gen-
54 [238









-i


239J |0 I VzIVi u VFr *LAIUlUA 55
eral George Matthews and Colonel John McKee, and in-
structed them to occupy the country, if peaceably surren-
dered by the Spanish authorities, or if in danger of being
seized by some foreign power. The War Department would
issue orders to have any necessary military assistance ren-
dered.
Such a commission necessarily left much to the discre-
tion of the holder. Soon after arriving in the neighbor-
hood of St. Mary's, General Matthews found a condition
of affairs, possibly brought about in part by his presence,
which seemed to him to warrant action. Amelia Island, a
Spanish possession near the mouth of the St. Mary's, was
almost in a state of anarchy. Smuggling was the principal
business. A large party of men crossed over from the Amer-
ican side and succeeded in organizing a revolution in the
country between St. Mary's and St. John's. Some United
States gun-boats, under command of Commodore Campbell,
dropped down the river in advance of .the insurgents and
moored opposite Fernandina, on Amelia Island. When the
insurgents, accompanied by some American troops, ap-
peared, the Spanish commandant surrendered without firing
a shot. In the capitulation it was stipulated that the island
should be surrendered to the United States within twenty-
four hours. It was further agreed that the port should not
be subject to any of the restrictions on commerce then ex-
isting in the United States, but should be a free port until
May I, 1813. Vessels owned by Spanish subjects on the
island were to be entitled to regular American registers.
The proceedings were confirmed by General Matthews, and
the American flag was substituted for that of the "patriots."1
President Madison disapproved of these proceedings as
soon as he heard of them, relieved General Matthews, and


1 Niles's Registr, ii, 93.


TuH rN\rcr e F?









MILITARY GOVERNMENT


asked Governor Mitchell, of Georgia, to take his place.
He was directed to endeavor to restore the previous status
of affairs, but was not to restore the island until assured
by the Spanish governor that the "patriots" would not
be subjected to his resentment.1
But possession was not immediately given to the Spanish.:
For more than a year the island rested under the American
flag and was subject to the regulations imposed by our
officers. May 6, 1813, Governor Kinderland arrived from
St. Augustine with a collector and several civil officers,
and received peaceable possession.'
February 12, 1813, an act was approved authorizing the
Executive to employ the army and navy in occupying and
holding so much of the country west of the Perdido as was
not then in the possession of the United States, and for
affording protection to the inhabitants thereof.
The Executive was not slow tq act under this authority.
April 15, 1813, the Spanish garrison at Mobile surrendered
to General Wilkinson, and were immediately shipped to
Pensacola in public transports." A proclamation, dated
April 13, was issued by the general, assuring the people
that he had come, by order of the President, to enforce the
laws of the United States and to give effect to the civil
institutions of the Mississippi Territory. The public faith
was pledged for the protection of persons and property.
Such as desired to depart would be allowed to do so, with
goods and chattels.'
The country between the Pearl and the Perdido had al-
ready been annexed by Congress, May 14, 1812, to the
Mississippi Territory. July 22, the conquest was followed
up by an act making Mobile a port of entry.
1 Amer. State Papers, For. Rel., iii, 572 et seq. 2 Niles, iv, 216.
Niles, iv, 209. Ibid., 224.


[240









THE CONQUEST OF FLORIDA


At a subsequent date Amelia Island again became a
source of anxiety. November 12, 1817, the Secretary of
War issued orders the object of which was to break up a
nest of adventurers who, under the leadership of Aury, had
seized the island and declared their independence. Fernan-
dina was to be occupied and the violation of our revenue
laws prevented. The occupation was effected December
23-24, without opposition.1
About the same time affairs were approaching a crisis-
farther to the west. The Spanish authorities there, through
weakness, indifference, or maliciousness, probably the first,
in violation of express treaty stipulations, allowed the In-
dians in Florida, together with runaway negroes, to harass
our borders until it was deemed no longer bearable. Deem-
ber 16, 1817, orders were issued by Mr. Calhoun to Gen-
eral Gaines, the commanding officer at Fort Scott, Georgia,
to chastise the Indians, and to attack them within the limits
of Florida, should it be found necessary, unless they took
refuge under a Spanish post. In that event he was to
notify the Department and await orders. Ten days later
General Jackson, the division commander, was ordered to
assume command and direct the operations in accordance
with the above orders, copies of which were furnished to
him.'
In offering his services in the War of 1812, General
Jackson said that his Tennessee men had no constitutional
scruples," but would, if directed, plant the American eagle
on the walls of Mobile, Pensacola, and St. Augustine." He
appears to have thought that the time had now arrived.
"This can be done," he wrote privately to President Mon-
roe, asking for larger latitude in his orders, "without im-
l Ann., 17 Cong., I Sess., 2483. 2 Ann., 15 Cong., 2 Sess., 2158.
* Schouler, iii, 67 et .eq.









MILITARY GOVERNMENT


plicating the government. Let it be signified to me through
any channel (say Mr. J. Rhea) that the possession of the
Floridas would be desirable to the United States, and in
sixty days it will be accomplished." 1 He received no reply,
and probably went on the theory that "silence gives con-
sent." President Munroe was sick at the time Jackson's
letter was received, and is said not to have read it for a
year or more.
In a short time after reaching his post the general was
pursuing his savage foes through the forests and swamps
of Florida. Before the end of May the Spanish troops at
Pensacola had been captured and sent off to Havana at
the expense of the United States, and the American flag
was flying over the forts. "The articles of capitulation,"
said the general, with but one condition, amounted to a
complete cession to the United States of that portion of the
Floridas hitherto under the government of Don Jose Mazot."
The condition referred to was that the country would, by
implication, be returned to Spain whenever she had the
power or was willing to abide by her treaty stipulations
and maintain her neutrality.2
The stipulations referred to were found in the fifth article
of the treaty of 1795, by which each of the contracting
parties agreed "to restrain by force all hostilities on he
part of the Indian nations" within their respective boun-
daries upon the citizens of the other.
The articles of capitulation contained the usual promise
to respect property and private rights. The Catholic re-
ligion was to be maintained, but all were to be tolerated.
"I deemed it most advisable," continued the general, to
retain, for the present, the same government to which the
1 Schouler, iii, 67 et seq.
'Ann., 15 Cong., z Sess., 2237, 2208, 2239, 2222.









THE CONQUEST OF FLORIDA


243]


people had been accustomed, until such time as the Exec-
utive of the United States may order otherwise. It waq
necessary, however, to establish the revenue laws of the
United States, to check smuggling, which had been car-
ried on successfully in this quarter for many years past,
and to admit the American merchant to an equal participa-
tion in a trade which would have been denied under the
partial operation of the Spanish commercial code. Captain
Gadsden was appointed by me collector, and he has organ-
ized and left the department in the charge of officers on
whom the greatest confidence may be reposed." Colonel
King was appointed military and civil governor, and was
ordered to take possession of the archives of the govern-
ment and see that they were preserved.1

II. JUSTIFICATION OF THE SEIZURE
General Jackson attempted to justify his conduct in the
proclamation announcing the appointment of Colonel King.
The occupation was not an act of hostility to Spain, nor an
effort to extend the boundaries of the United States; its
purpose was to control the Indians, to whom the Spanish
authorities were often compelled, from policy or necessity,
to issue munitions of war, thus enabling, if not exciting,
them to raise 'the tomahawk against us. "The immutable
laws of self-defense, therefore, compelled the Amerioan
Government, to take possession of such parts of the Floridas
in which the Spanish authority could not be maintained."
In a letter to the Secretary of War, dated June 2, 1818, he
said: On the immutable principles of self-defense, author-
ized by the law of nature and nations, have I bottomed all
my operations."


SAnn., 15 Cong., 2 Sess., 224x.


SIbid., 22og.










MILITARY GOVERNMENT


It could hardly have been expected that such condudt
would pass unnoticed by even the most impotent power.
Negotiations were then pending for the purchase of Florida.
These were immediately broken off at Madrid, with a de-
mand for the punishment of the offender and a disavowal
of his acts, the restitution of the ports, and the payment of
an indemnity. Mr. Onis, the Spanish minister at Wasl-
ington, declared that no principle can be adduced to sup-
port or justify the hostile proceedings of General Jackson
in Florida, marked as they are by a series of outrages un-
precedented and unknown in history. He, as your own gov-
ernment admits, acted contrary to orders. Public opinion
in the United States has uniformly reprobated these ex-
cesses, as well as the specious pretext with which he has
endeavored to gloss them over." 1
But the general had an able defender in the Secretary
of State, Mr. Adams, who adopted this line of defense:
"The President, to demonstrate to the world that neither
the desire of conquest, nor hostility to Spain, had, any
influence in the councils of the United States, has directed
the unconditional restoration to any Spanish officer duly
authorized to receive them, of Pensacola and the Barancas,
and that of St. Mark's to any force adequate to its defense
against the attack of the savages. But the President will
neither inflict a punishment, nor pass a censure upon Gen-
eral Jackson for that conduct, the motives for which were
founded in the purest patriotism; of the necessity for
which he had the most immediate and effectual means of
forming a judgment, and the vindication of which is writ-
ten in every page of the law of nations, as well as the first
law of nature-self-defense." He then instructed Mr.
Erving, our minister at Madrid, to demand the punishment
x Ann., 15 Cong., 2 Sess., 1885, 1925, 1907.


[244









THE CONQUEST OF FLORIDA


245]


of the Spanish governor and commandant in Florida for
violating the engagements of Spain with the United States.1
This demand, perhaps more audacious than just, quieted
Madrid. After hearing the arguments by which it was
backed up, the other powers decided not to interfere.
In Congress, also, the matter was thoroughly aired. In
both houses majorities of the committees to whom the
matter was referred reported adversely to the general. For
more than three weeks the debates on these reports occupied
almost the entire time of Congress and excited much interest
throughout the country. In the end, however, not a single
charge was sustained by a vote of censure. Even the seizure
of Pensacola went unrebuked, the vote in the House being
seventy to one hundred. But it is not to be presumed that
the general's conduct was believed by Congress to have been
altogether justifiable and legal. The absurdity of condemn-
ing a general whose acts had been so far justified by the
administration as to satisfy, or at least silence, the coun-
tries most interested, Spain and England,' as well as the
popularity of the hero of New Orleans, must have had its
influence.
The bold stand taken by Secretary Adams, who seems
to have been Jackson's most ardent supporter, was not con-
qurred in by all the Cabinet, as later events revealed. The
task which President Monroe undertook was to shield the
general, the net results of whose exploits was productive
of good to the country, and to avoid a war with Spain.
The disobedience to orders was overlooked. The orders
issued by Jackson to Gaines to capture St. Augustine were
promptly countermanded. Hostile intentions were denied,
and an offer was made to restore the posts. And thus the
President's ends were accomplished.
Ann., x5 Cong., 2 Sess., 1932.
2 England, for the execution of Arbuthnot and Ambrister.










MILITARY GOVERNMENT


III. MILITARY ADMINISTRATION
But little record of the actual proceedings of the military
governor in Florida has come down to us, nor is it likely
there was much to record. At that time Pensacola, the
seat of empire, was only a straggling village of about five
hundred dwellings. Its commerce cannot have been very
considerable, but Mr. Onis, the Spanish minister at Wash-
ington, thought the revenues worth having, and demanded
them of Mr. Adams, Secretary of State.' In reply, Secre-
tary Adams said that the revenue thus collected was far
from adequate to meet the expenses incurred in prosecuting
a war which Spain was bound to prevent. This deficit
Spain should make good."
In the internal administration no military officer except
Colonel King held any office. The civil officers were ap-
pointed from among the citizen,, with Mr. McKinsey, of
Mobile, at the head of the magistracy. Some of the jus-
tices thus appointed followed Spanish custom in deciding
cases in a summary way, but failed to make a record of
their judicial proceedings. Several cases of importance
were decided in this way, and, as they could not be followed
up for want of proper tribunals and officers, no little in-
convenience resulted."
The Nashville Clarion, June 16, said that the arrival
of the American troops was hailed with joy at Pensacola.
Real property rose three hundred per cent. in three days.'
This must have been very gratifying to the Nashville specu-
lators who have bought land there in the hope of American
occupation." About three months after the Americans en-
tered Pensacola, General Gaines reported that the Spanish
1 Ann. 15 Cong. 2 Sess., 1907, 1945. 2 Ibid., 2317.
o Amer. State Papers, Misc., ii, 90o. Niles, xiv, 337.
*Ann., ibid., 2300.


[246


62









THE CONQUEST OF FLORIDA


247]


who remained had found no fault with the authorities estab-
lished by General Jackson, and that the utmost harmony
prevailed among all classes of citizens.
The order to General Gaines to deliver Florida to the
Spaniards was issued as early as August 14, 1818,1 but
the actual delivery of Pensacola did not take place until
February 8, 1819.' Amelia Island does not appear ever
again to have passed out of the hands of the United States.
Concerning the administration of this island a few more
details have been preserved.
Soon after Fernandina was occupied, Major Bankhead,
the commanding officer, issued a series of ordinances (Jan-
uary 5, 1818) for the government of the island, to be
effective until the further pleasure of the United States was
known. One related to the customs, and required that
duties on goods subject to duty in the United States should
be paid to the commanding officer for the benefit of the
United States. It was recommended, however, that such
goods. be landed and entered at St. Mary's. Another made
certain regulations for the collection of debts. Two jus-
tices of the peace, with power to appoint a sheriff, were in-
stalled to administer the laws, but were directed to make
no decision in a criminal case affecting the life of the
accused. The commanding officer reserved the right to
decide all cases of riot. Direction was further given that
the usages and customs of the United States should be fol-
lowed in all cases.
In reporting these regulations, Major Bankhead said that
necessity had impelled him to make them in order to settle
disputes. The people seemed to be determined to avoid the
payment of debts and to plunder wherever they could.
The two justices whom he had appointed in conjunction


I Ibid., 2174.


2 Niles, xvi, 40, 160.










MILITARY GOVERNMENT


[248


with Commodore Henly had discharged their duty in a
satisfactory manner.1
Mail facilities were not very good in those days, but this
report (dated January Io, 1818) can hardly have been four
months in reaching Washington. May 14, 1818, Secretary
Calhoun ordered the major to discontinue taking bonds on
goods imported into Amelia Island, and to turn over the
bonds already taken to the collector at St. Mary's, at which
place goods were to be landed thereafter. The purpose of
this order is not definitely stated, but appears to have been
merely to stop the irregular collection of duties at Fernan-
dina on goods intended for importation into the United
States. If any goods were carried from St. Mary's to
Fernandina, they probably went in free of duty. No fur-
ther directions appear to have been issued from Wash-
ington.
In spite of the conditions of war brought on by the
occupants, they endeavored to manage affairs on a peace
basis. This is illustrated by a demand made by General
Gaines, December 28, 1818, then in Amelia Island, of Gov-
ernor Coppinger for the release of a soldier and two citi-
zens reported to have been captured at St. John's by a body
of armed men led by a Spanish officer. Explanations and
the punishment of the offender were expected. The gov-
ernor's reply is not given.
The inhabitants of Amelia Island were in bad odor, it
not being believed that they had gone there simply for the
sake of the climate. They were few in number, and about
the only government needed was one of strict police con-
trol. This was maintained by the commanding officer until
the island was finally ceded with Florida in 1821.


1 H. Ex. Doc., 15 Cong., 2 Sess., no. 117.
















CHAPTER IV


THE FINAL ACQUISITION OF FLORIDA

I. TAKING POSSESSION OF THE COUNTRY. ITS CONDI-
TION. REORGANIZATION
THE treaty by which the Floridas finally came to the
United States was signed February '22, I819, but ratifica-
tions were not exchanged for two years. It was proclaimed
at Washington on the second anniversary of its signature.
The stipulation regarding the inhabitants was substantially
the same as that in the Louisiana treaty, with the addition
that such as desired to remove to the Spanish dominions
should be permitted to sell or export their effects, at any
time whatever, without being subject to any duties. March
3, 1821, an act of Congress was approved authorizing the
President to take possession of and govern the Floridas
under substantially the same terms as those granted in the
act of October 31, 1803, for Louisiana. In the same act
the revenue laws were extended and the President was
authorized to appoint such officers as he might think neces-
sary for their execution. After this no action was taken
by Congress until March 30, 1822, when the act estab-
lishing the Territory of Florida became a law. The inter-
vening time was for Florida one of great productivity-of
documents," as was wittily remarked at the time.
In a sort of poetic justice to, and justification of, General
Jackson, that worthy was commissioned to receive the new
territory and become the governor of the same when re-
ceived. It must have afforded the general no little pleasure
249] 65










MILITARY GOVERNMENT


to return to Pensacola and bid a final farewell to the Spanish
Dons as he received from them the country he had once
taken by force of arms, and against the surrender of which
he had vigorously protested.
The delivery of the Floridas was to be made in six
months after the exchange of the ratifications of the treaty,
or sooner, if possible. General Jackson left Nashville April
24, 1821, to carry out his commission, and was on the
Florida border in about a week. He was too familiar with
the Spaniard's ever-ready hasta mailana to expect an imme-
diate fulfilment of the treaty, but this did not mollify the
irritating influence which the numerous delays had upon
his irascible temper. The transfer was finally effected at
Pensacola, July 17, 1821, with some dramatic effect, by
General Jackson and Don Jose Callava. Still further delay
had been expected in East Florida, but the transfer there
was effected a week earlier than at Pensacola, by Colonel
Robert Butler and Don Jos6 Coppinger. Everywhere the
Spanish claimed the cannon in the fortifications, but the
Americans would not allow them to be carried off, and they
were left for further negotiations. At St. Augustine the
archives were left under the same conditions.1
The proclamation, furnished from Washington, issued by
General Jackson was of the same general tenor as that
published in Louisiana by Governor Claiborne.'

At the time of the transfer the population of Florida
was very small. The only towns of any importance were
Pensacola and St. Augustine. The former had the finest
harbor in Florida and once enjoyed a considerable overland
trade with St. Augustine, but its greatness had long since
passed away. Its dignity now depended chiefly on the fact
1 Niles, xx, 404; Ann. 17 Cong. I Sess., 1918, 1950.
Ibid., 1924 et seq.


[250










THE PINAL ACQUISITION OF FLORIDA


that the governor still resided there and kept a few troops
with him to garrison Fort Barrancas, six miles distant at
the entrance to the bay. Nearly all the houses were in a
state of dilapidation, and hardly more than half were occu-
pied. The government building, a frame structure propped
up with unhewn timber, was considered unsafe. At St.
Augustine some government buildings had been begun on
a'pretentious scale years before, but had been allowed to
fall into decay.1
The inhabitants consisted mainly of West Indian traders,
smugglers, privateersmen, Indians, runaway negroes, and
renegade white men from the States. In Mrs. Jackson's
opinion the last two formed the worst element. The people
did not observe the Sabbath according to her notions of
propriety, the noise, swearing, and bustling trade being
especially jarring to her nerves.2 The general's report was
slightly different. He found the inhabitants a sober, or-
derly, peaceable, and well-meaning people. His opinion of
the Spanish population was favorable, "excepting of such
as have been employed by the government, which seems
to have had everywhere the same corrupting influence
over the minds and morals of those engaged in its admin-
istration." *
Little needs to be said about the laws and political sys-
tem beyond the statement that, theoretically, they were
much like those of Louisiana. The political organiza-
tion, however, was very defective. An elaborate system
had been provided for in the Spanish constitution, which
was proclaimed in Cuba and Florida, but it never was put

SAnn., 17 Cong., I Sess., 1938; Forbes, Sketches of Fla. (I821),
87 et seq.
2 Parton, Jackson, ii, 603 et seq.
8 Ann., ibid., 2539. Niles, xviii, 176.










MILITARY GOVERNMENT


into full operation. Colonel Callava explained the defective
organization by saying that, considering the probability of
an early transfer of sovereignty, he had not thought it
worth while to remedy the defect. The military officers
often performed the duties of civil magistrates.

At the time of his appointment, Governor Jackson was
an officer of the army, but his commission expired June i.
After that date the commanding officer in Florida was
directed to honor his requisition for such military assist-.
ance as might be necessary to enforce his authority.' The
commission given to General Jackson as governor, author-
ized him "to exercise all the powers and authorities hereto-
fore exercised by the governor and captain-general and in-
tendant of Cuba, and by the governors of East and West
Florida, within the said provinces, respectively," under such
limitations as had been, or might be, prescribed by the
President, or by law. The power to lay or collect any new
taxes or to confirm any land titles was expressly denied.2
The country was divided into three collection districts,
and revenue officers were appointed for them. A list of
these officers, together with another civil list, which in-
cluded two judges of the United States" and two Terri-
torial secretaries, was sent to Governor Jackson,8 presum-
ably simply for his information, as they were appointed
according to an act of Congress and he had no direct con-
nection with, or control over any of them, except the secre-
taries.
The day after the transfer of sovereignty was effected,
"Major-General Andrew Jackson, Governor of the prov-
inces of the Floridas, exercising the powers of the Captain-

I President's Message of April 5, 1822.
2Ann., 17 Cong., I Sess., 1922 et seq. Ibid., 1927.


[252









THE FINAL ACQUISITION OF FLORIDA


General," etc., etc., proceeded to-the business of legislation.
The first act ordained that there should be appointed an-
nually by the governor a chief officer, to be called the mayor,
and six subordinate officers as councilmen, endowed with
the powers necessary for the good government of Pensa-
cola. They were to impose fines and levy such taxes as
were necessary for the support of the town government.
To remove doubts as to the powers of the mayor and coun-
cil in regulating the observance of the Sabbath, they were
expressly empowered to make proper ordinances for that
purpose. The ordinance further prohibited, under severe
penalties, public gaming-houses and public gaming of every
description, except billiards. A similar inhibition was laid
upon the sale of liquor to soldiers of the United States.
Another ordinance prescribed certain quarantine regula-
tions.1
At some time, probably before this, it occurred to
General Jackson that it might be well to know something
of the laws he had promised to maintain and of the machin-
ery of the government he was expected to administer. On
the way down he met Mr. H. M. Brackenridge, of
Pennsylvania, a gentleman of some accomplishments, well
versed in French and Spanish, and asked him to take part
in forming the government." Mr. Brackenridge was ap-
pointed alcalde of Pensacola, and was directed to inves-
tigate and report upon the Spanish law and political system.
But the governor was not idle while waiting for this
report. July 21, he issued a decree dividing the territory
into two counties, and ordering the establishment of county
courts, with five justices of the peace for each. The pro-
ceedings in all civil cases were to be conducted according
to the Spanish law, except in the examination of witnesses;
SAnn., 17 Cong., I Sess., 2547 et seq. 2 Parton, Jackson, ii, 615.


2531









MILITARY GOVERNMENT


in criminal cases, according to the common law, that is,
on indictment by a grand jury. Criminal trials were to be
public, and by a jury of the county. The examination of
witnesses was to be viva voce in open court. Indictments
were to be made in the name of the United States. The
judges were empowered to impose such taxes as were neces-
sary to carry this ordinance into effect. Five days later
another ordinance was promulgated explaining the method
of procedure in the county courts, and fixing the fees to
be received by their officers.'
In a few days Mr. Brackenridge was ready to report,
According to this report there was, besides the governor,
only one provincial officer, the alcalde, actually in the exer-
cise of any civil functions. While the duties of this officer
were defined by law, he had, in Florida, exercised some
functions not strictly belonging to his office, such as chief
of police, sheriff, superintendent and inspector of prisons,
and notary public. Mr. Brackenridges predecessor had
summed it up by saying that the alcalde had more power
than the governor. By the decrees of the Cortes, passed
under the Spanish constitution, the viceroys and ultra-
marine commandants were limited to functions of a political
and military nature, and the intendant to the management
of the revenue. This was done in the expectation that
they would be aided by other officers and tribunals, but,
as a matter of fact, such officers were never appointed in
Florida, and this left the civil administration, especially in
the judiciary, very defective. There was at the time no
authority in the province to decide a law-suit. The gov-
ernor still exercised the powers of an admiralty judge, by
virtue of what law was not known. It was the only judicial
power exercised by him since the adoption of the consti-


I Ann. 17 Cong. I Sess., 2551, 2554.









255] THE FINAL ACQUISITION FLORIDA 7
tution. In towns of less than one th sand souls, all the
civil functions were generally discharged by the alcalde;
in larger towns the constitution gave the right to a cabildo,
or mayor and aldermen. To these Pensacola was entitled,
inasmuch as it was a capital city. It once had a corporation,
but this had fallen into disuse.
In view of these facts, Mr. Brackenridge was at a loss
how to proceed. To require an election for the cabildo he
thought would be to require an impossibility, as there was
no officer to hold an election, nor any way to find out the
qualified electors. He was also at a loss to know whether
he was to be governed by the Spanish laws in force before
the promulgation of the constitution, or by those passed since
that period. If by the latter, to what period were those de-
crees to be considered in force; to the ratifying of the treaty,
to the present time, or until the establishment of a govern-
ment by act of Congress? It might, perhaps, admit of a
doubt whether the Constitution of the United State did not
extend its authority over this country by virtue of its coming
under the American government; if so, that would secure
to American citizens an open and public trial by jury. In
completing the organization he thought that the interests
of the Americans, who already outnumbered the Spanish,
should be considered.1
The Spanish organization in East Florida was not quite
so defective. Besides the governor, there were an alcalde,
a cabildo, and a judge, all in the exercise of the functions
of their offices. Governor Jackson directed that they should
not be disturbed, if they were of good moral character and
would take the necessary oaths of office. Captain Bell was
commissioned to act as governor pending the arrival of
Mr. W. G. D. Worthington, commissioned Secretary and


1 Ann., 17 Cong., I Sess., 2540 et seq.









MILITARY GOVERNMENT


Acting Governor of East Florida, and was directed to ap-
point new officers in all cases where the incumbents refused
to take the necessary oaths.1

II. REVIEW OF THE GOVERNOR'S ACTION
In justification of his course, Governor Jackson said
(July 30): The commission under which I act does not
define my powers; and, I assure you, I am not a little at
a loss when left to collect them from the nature of the
office. Judging from the practice in Spanish colonies, the
viceroy, or captain-general, possesses legislative as well as
executive powers over the provinces placed under his gov-
ernment. O'Reilly, in Louisiana, of his own authority, in-
troduced the Spanish law, and established tribunals exactly
modeled after those of Spain. But, according to the de-
crees passed under the constitution, those officers are strictly
confined to the exercise of military and executive or polit-
ical power. .. In this uncertainty, I have contented my-
self with merely organizing a government from the mate-
rials at hand, with as little change as possible; promul-
gating the same by way of ordinance, in order that the
people may have some knowledge of the system to which
they must conform. These ordinances I now transmit for
the approval of the President." 2
The legal justification of the governor's acts depended on
what laws were in force in Florida. In his proclamation the
general had promised to preserve the local laws and institu-
tions. The Spanish constitution had been proclaimed in
Florida, but he afterwards found it convenient to deny that
it had any force there. We have met the statement that public
SAnn., 17 Cong., I Sess., 2029. 2 Ibid., 2537.
This lengthy document may be found entire in Niles, xviii, x96
et seq.


[256









THE FINAL ACQUISITION OF FLORIDA


law ceases to be operative upon the transfer of sovereignty.
This statement must be qualified to mean such public law
as defines the relations of subject and sovereign. It cer-
tainly will not be contended that the body of public law
which provides the machinery of local administration ceases
with the transfer of sovereignty, for that would leave the
country in a state of anarchy. So much of the Spanish con-
stitution, then, as defined the relations of the inhabitants of
Florida to the Spanish sovereign ceased with the transfer,
and only this. The rest of it, which was concerned with local
organization and defined private law relations, so far as not
contrary to our own laws, remained, or ought to have re-
mained, in full force until changed by the new sovereignty.
Governor Jackson was not the sovereign. The laws relating
to local organization and administration had not, indeed, been
put into full operation in Florida, owing to the negligence
of the Spanish officials, who excused themselves by refer-
ence to the impending transfer, but this did not alter their
binding force.
For the government to limp along in the maimed con-
dition in which he found it seemed intolerable to Governor
Jackson. He began the process of healing by appointing
an alcalde, an office made elective by the constitution (Art.
312). The same was true of the aldermen (regidors).
The municipal councils were to be established by the pro-
vincial council, which latter body also was elective. The
direction as to how justice should be administered was left
to the Cortes. General Jackson said that his ordinances
made known the rules rather than prescribed new ones, ex-
cept the requirement for pronouncing decrees in open court
and the giving of testimony viva voce. The statement may
be true in part, but it is open to doubt. Mr. Brackenridge
said that the judge, according to Spanish law, regulated
his own charge for an order or decree, and that whatever


2571









MILITARY GOVERNMENT


the theory, the practice in Florida had depended on the in-
dividual in office. If this was the law, General Jackson had
changed it in himself fixing the scale. But Mr. Bracken-
ridge was wrong. Under the constitution (Art. 256) the
fees were to be fixed by the Cortes. The governor said
that trial by jury, which he had decreed, was in the
contemplation of the Spanish constitution, as well as that
of the United States. A careful examination of the former
document hardly justifies this claim.
The clause in the first ordinance giving the town council
power to make such regulations as they deemed proper for
the observance of the Sabbath was afterwards attacked by
the general's opponents as violating, or authorizing the
council to violate, the treaty and his commission, by which
he was bound to protect the people in the free enjoyment
of their religion. The council might even deem it proper
to close the Catholic church.1 This charge was really
too silly to deserve notice. Such powers were not supposed
to rise superior to statute regulations of superior authority.
The ordinance simply meant, says Parton, that Mrs. Jack-
son wished, and Governor Jackson ordained, that the theatre
and gambling-houses be closed on Sunday. And this was
done. The taxes authorized to be levied by the council,
said the governor, were such as had usually been paid.
While complaint was frequently made about the defective
organization, little was said about a lack of Spanish law
on the subject. The general probably had a copy of the
constitution. If not, it was his own fault, for it had been
published in English in the United States nearly a year be-
fore he started for Florida. Mr. Brackenridge furnished
him with a copy of the laws regulating alcaldes. These
laws had been passed under the constitution in 1812, and,


1 Parton, Jackson, ii, 6o8.


[258









THE FINAL ACQUISITION OF FLORIDA


upon its restoration, were, with other laws passed under it,
revived.1 But these the governor deliberately disregarded,
in spite of the promises in his proclamation.
His justification for this was that "the greater part of
the population of this country are Americans; the active
commerce is carried on by Americans; hence the necessity
of assimilating the present institutions to something which
they can understand, and of administering the laws by
means of tribunals not altogether foreign to their habits
and feelings."
If, as claimed, the Americans already outnumbered the
Spanish (in Pensacola), it would not have been contrary
to justice to give them no small share of the offices, pro-
vided they were bona fide residents, especially as the gov-
ernment was ultimately to be assimilated to the American
system. Yet Governor Jackson says that, in making up
his civil list, he was desirous to give preference, where pos-
sible, to the old inhabitants. However, he found but few
willing to accept any situation, owing to their unwillingness
to lose their rights as Spanish subjects. The governor
attributed this to the fact that the greater part had been
connected with the government in some way, or that they
had private claims which might be prejudiced by any act
evincing their intention to become American citizens.' The
first reason seems incredible, in view of the fact that he
found it necessary to have a special commissioner search
for the government!
Attention has not been called to these irregularities be-
cause they prove that the general was guilty of high
crimes and misdemeanors. There was, indeed, no legal ex-
cuse for them, for he was bound, both by his commission
and the law of nations, to preserve the existing municipal


1 Ann. '17 Cong. I Sess., 2547.


259]


SIbid., 2537. Ibid., 2539.










76 MILITARY GOVERNMENT [260
regulations. He was not the new sovereignty authorized
to change them, nor could he do it under his commission
as captain-general, that office having been stripped of
legislative powers. But the changes were bound to come,
and then probably was the best time to begin. The chief
lesson, then, lies in the warning against making promises
the meaning of which is not known, and against sending
out governors to strange situations with powers so hedged
about as to render their office a nullity, if the limitations
be observed.















CHAPTER V


ADMINISTRATIVE WORK IN FLORIDA

I. THE CALLAVA-FROMENTIN AFFAIR
WE now come to one of the most serious, and at the
same time the most ludicrous, of the acts committed by Gov-
ernor Jackson during his stay in Florida.
August 21, 1821, Mr. Brackenridge, the alcalde of Pen-
sacola, informed Governor Jackson that he had satisfactory
evidence that important documents relating to estates which
belonged to his office were in the possession of a Spaniard
named Sousa, and requested authority to make a regular
demand for them.' The governor immediately granted
the request, and appointed George Walton, Secretary of
West Florida, H. M. Brackenridge, and John Miller, county
clerk, a committee to make the demand. When these gen-
tlemen called upon Sousa, he produced several boxes of
papers and allowed them to be examined. Among these
the committee found four sets of papers relating to prop-
erty which they considered of importance and demanded
their possession. This Sousa refused on the ground that
he was the servant of the late Governor Callava, and could
not surrender the papers without an order from him. The
committee then wrote out a statement for Sousa, saying
that they regarded him only as a private person, with no
authority to retain the documents, and again demanded
possession. This communication he refused to receive.

SAnn. 17 Cong. I Sess., 230o et seq.










MILITARY GOVERNMENT


When the situation was reported to the governor, he
ordered Colonel Butler, of the army, and Mr. Miller to
seize Sousa, together with the papers, and bring him before
the governor for examination. In a short time they pro-
duced Sousa, but reported that he had carried the papers
to Callava's house to relieve himself of the responsibility
for them. Sousa was now committed for contempt, and
an order was issued to the military to secure the papers
from Callava, or to take him into custody.
Colonel Callava was soon found, but refused to deliver
the papers, and asserted his rights to immunity as a com-
missioner of Spain. After a considerable parley, he was
taken in charge and carried before Governor Jackson. The
statements of the two parties to this affair were diamet-
rically opposed. The colonel declared that he was treated
throughout with the utmost discourtesy and contempt. On
the other hand, Mr. Brackenridge declared that Colonel
Butler, who had charge of the military, used the utmost
delicacy. Both were supported by "many respectable wit-
nesses."
About ten o'clock at night Colonel Callava was carried
before Governor Jackson, now sitting in his judicial capac-
ity. The colonel refused to answer any questions relating
to the papers, and protested against the proceedings as a
violation of his rights. Whereupon the judge informed
him, with considerable warmth, that such pretensions could
not be allowed. Callava's ire also warmed up and he only
remained the more obstinate. His steward, Fullarat, was
then questioned, and answered that his master had the
papers desired. Judge Jackson now offered to send ar
officer with any one Callava might name to bring the boxes,
in order that they might be opened and the papers specified '
taken out. After repeated refusals, the colonel and his
steward both were committed to prison about midnight.


[262










ADMINISTRATIVE WORK IN FLORIDA


In both instances he complained of bad interpretation, but
there can be no doubt that he understood very well what
was wanted.
The n'xt day the papers were taken out and the box re-
sealed. Thereupon an order was issued for the release of
the prisoners. During all this time Colonel Callava's house
was carefully guarded by a squad of soldiers. When he
returned he found nothing to complain of except that the
documents so often demanded had been taken away.
But before the curtain was rung down upon this act by
the release of the prisoners, another actor was heard ap-
proaching behind the scenes. This was none other than
Eligius Fromentin,' Judge of the United States for West
Florida, empowered to execute and fulfil the duties of
that office according to the Constitution and laws of the
United States."
Finding their companion in prison, some of Colonel Cal-
lava's friends applied to the above-named judge for a writ
of habeas corpus in his behalf. This was soon issued, and

SA little knowledge of this man's antecedents may add something
to our understanding of the situation.
SEligius Fromentin was a native of France, was educated in a Jesuit
college, and entered the priesthood. Being expelled from France dur-
ing the Revolution he came to America. Soon after he married into
an influential family in Maryland, acquired a smattering of law, and
began to practice in New Orleans. Education, suavity of manner,
and family influence finally raised him to the dignity of a United States
Senator. When the Bourbons were restored he abandoned his wife
and returned to France in the hope of ecclesiastical preferment. Dis-
appointed in his expectations there he returned to America, but his
prospects were now ruined at New Orleans. His wife accepted his
explanations and again lived with him. It was largely through the
influence of her family that President Monroe, ignorant of his true
character, appointed him to the temporary judgeship in West Florida,
thereby rejecting General Jackson's application for one of his friends.-
Parton, lackson, ii, 6z6 et seq.


263]










MILITARY GOVERNMENT


Lieutenant Mountz was directed to produce the body of
the prisoner. But instead of doing this the lieutenant
handed the writ to Governor Jackson, who immediately
cited Judge Fromentin to appear before him "and ex-
plain why he had attempted to interfere with the gover-
nor's authority. The judge accordingly appeared and
signed a statement that he had granted the writ without
any affidavit, merely upon the verbal application of a num-
ber of gentlemen, among them Mr. Innerarity, and that it
had been delivered to one of the applicants to be served
upon Lieutenant Mountz.1 This acknowledgment, together
with what was said orally, was considered a sufficient apol-
ogy, and the judge was released with a lecture on his duties
and prerogatives, and a threat of imprisonment for a repe-
tition of the offense.
One more act and the central part of the tragi-comedy
closes.
Soon after his release, Colonel Callava started for Wash-
ington to lay his grievances before the Spanish minister.
Certain Spanish officers, eight in number, who remained
behind, published a criticism of Governor Jackson's course
in dealing with the colonel, in which they "shuddered at
the violent proceedings exercised against their superior."
As Governor Jackson considered the language of their state-
ment offensive and believed them to be sowing discontent
in the minds of the good people of the province, he ordered
(September 29) them to depart before October 3, which
they ought to have done long before, conformably to the
seventh article of the treaty.2
Another paragraph may be added here to give the sequel
to the above, though General Jackson was not directly con-
cerned in it. In January of the following year two of these


2 Ann. 17 Cong. I Sess., 2318 et seq., 2374.


[264


2 Ibid., 2327.









ADMINISTRATIVE WORK IN FLORIDA


officers returned to Florida; and were promptly arrested by
Colonel George Walton, Secretary and Acting Governor of
West Florida, although they declared that they had not re-
turned in defiance of the proclamation, but had come to ask
permission to attend to the settlement of their private affairs,
and that they were ready to submit to any order which
might be made in their case. The calaboose not being fit
to receive them, they were simply confined to their own
houses while the matter was reported to General Jackson,
and through him to Washington. When President Monroe
heard of the situation he ordered their release.

II. THE HEIRS OF VIDAL VS. INNERARITY
The papers which had caused all this trouble related to
the case of the Heirs of Vidal vs. Innerarity. The case
arose in the following way:
Nicholas Maria Vidal, auditor of war, died in Pensacola
in the year 1806. His will was found in New Orleans.
This document directed that his debts, which were consider-
able, should first be paid, after which any residue of property
should fall to some mulatto women, who were his children.
The case had been in the courts ever since and was not yet
settled, though numerous decrees had been issued. In
August, 1821, the heirs appeared before Governor Jackson
and prayed that John Innerarity, who, as counsel for a
firm concerned in the settlement, had been possessed of some
of the estate, be commanded to render an account in obe-
dience to a decree to that effect issued by Governor Cal-
lava, July I, 1820. At the same time they expressed the
belief that he was about to withdraw his person and effects
from the jurisdiction of Pensacola. The chief claimant,

SAnn. 17 Cong. I Sess., 2o38 et seq.









MILITARY GOVERNMENT


Mercedes Vidal, affirmed that the will and inventories had
been missing for several years frSm the public archives of
Pensacola, that she had made repeated applications to have
them restored, and that this was finally done under a decree.
That just before the change of sovereignty she had de-
manded them of Colonel Callava, but that he refused, say-
ing that he must take them to Havana.1
While Governor Jackson was aware that much corrup-
tion characterized the Spanish judicial proceedings, he was
horrified at this unparalleled wickedness. He was fully
satisfied that Colonel Callava had been bribed by Innerar-
ity.2 Such oppression must not be tolerated, and the papers
were sought, with the result already described.
The case was now called up before Governor Jackson,
sitting as a court of chancery. Counsel for the defendant
entered a plea of want of jurisdiction, because, by the
Spanish constitution, the judicial authority once exercised
by the governors had been taken from them and vested in
other officers. In rebuttal, the attorney for the plaintiff held
that the powers executed by the officers of Spain, not the
officers, were retained by the act of Congress, and that the
President, in conformity to that act, had made an entirely
different distribution of them. The Spanish constitution
was not in force in Florida, because it had not been pro-
mulgated until Spain had parted with the sovereignty of
the territory. Besides, it merely provided a form of govern-
ment, and consequently had no application to the new gov-
ernment. An examination of the act of Congress and of
the governor's commission showed that the President had
intended to give him the same powers as had been exercised.
by Governor Claiborne in Louisiana. Under the Spanish
constitution the governors of Florida were only military


lAnn. 17 Cong. I Sess., 2414, 247, 2360.


[266


Sbid., 3298 0t d q.









ADMINISTRATIVE WORK IN FLORIDA


officers under the captain-general of Cuba. To reduce the
governor to that position Aow would leave the country with-
out government of any kind.
Counsel for plaintiff was sustained by Governor Jack-
son, who said that the plea of the defendant would fall
upon proof that the Spanish constitution was not in force
in Florida. This he then endeavored to prove. It was first
promulgated in Spain, said he, not in the provinces, by the
Cortes in 1812, while Ferdinand VII. was a prisoner. May
4, 1814, the king, who had returned to Spain, annulled all
the decrees of the Cortes, and this was the situation when
the treaty was concluded, February 22, 1819, by which
Spain parted with the sovereignty of the Floridas. The
ratification was delayed two years, but in the ratification,
assented to by the Cortes, it was provided that the treaty
should have the same effect as if it had been ratified within
the time originally specified. As there was no constitution
in existence in 1819, this would exclude that document from
the Floridas. Besides, the constitution was not promul-
gated in Cuba until January, 1821, and if ever in Florida,
certainly after that date, more than three months 2 after
Spain had surrendered the sovereignty of Florida. The
plea of the defendant, therefore, was overruled, and he was
ordered to show why the decree of the late Governor Cal-
lava, by which he had been ordered to render to the heirs
of Vidal an account of how the estate had been handled,
should not be carried out."
The defense now brought forward decrees of the courts
down to 18io, by which the estate was supposed to have

1 Ann. 17 Cong. I Sess., 2328 et seq.
2 Presumably referring to the ratification by the king of Spain,
October 24, 1821.
Ann. 17 Cong. I Sess., 2332 et seq., 2416.


267]










MILITARY GOVERNMENT


been finally settled, leaving it indebted to the defendant for
$157.1 But several of the claims made therein were not
allowed by this court, and the defendant was ordered to
pay over the sum of $1,027.19 to the alcalde within thirty
days. The alcalde was to advertise that creditors would be
allowed sixty days in which to file their claims, after which
the residue should be turned over to the heirs of Vidal.2
At the expiration of the sixty days, the counsel for de-
fense endeavored to get a review of the whole case, but
Colonel Walton, Acting Governor, paid no attention to his
plea, but gave him to understand that the money must be
forthcoming unless he wanted to go to prison.3

III. OPINIONS AND COUNTER-OPINIONS
Several questions arose in connection with the foregoing
proceedings which deserve further notice. Colonel Cal-
lava's claim to the disputed papers may be disposed of first'
This claim was based on the fact that Vidal was in the
military service. For that reason the papers fell under the
military court and captainship-general, which, by the evac-
uation of Florida, had resumed the authority of the Spanish
government of Pensacola. Besides, the creditors of the
estate were Spaniards, and the right of presenting their
claim in the proper tribunals could not be denied them. So
far from attempting to wrong any one, he had ordered the
papers to be given to the mulatto, that she might make a
copy.'
It was not denied that the property involved was within
the jurisdiction of the United States, and that the claim-
ants were presumptive, or at least prospective, citizens of
the same. To say, then, that the estate should be adminis-
I Ann. 17 Cong. I Sess., 2476. 2 Ibid., 2457.
a Ibid., 2036. Ibid., 1969.


[268









ADMINISTRATIVE WORK IN FLORIDA


tered by a Spanish court for the benefit of Spanish creditors
was a claim too absurd to be noticed.
When Mr. Salmon, Spanish charge d'affaires at Washing-
ton, heard of the treatment meted out to Colonel Callava, he
at once lodged a protest with Secretary Adams. In every
way, he declared, the proceedings of General Jackson were
irregular, illegal, unconstitutional, and violent. Both the
American and Spanish constitutions, which guaranteed to
every individual his property and person, had been violated in
the informal process and inhuman execution of the decrees
relating to Colonel Callava, even when he was regarded as
a private individual. But he was, in fact, a commissioner
of his Catholic Majesty for carrying into effect the treaty,
and as such was under the protection of the law of nations&1
The reply of Secretary Adams was marked by the vigor
usually found in his state papers. Colonel Callava's claim
to exemption as a commissioner was inadmissible. The
treaty provided that the surrender should be made and the
evacuation accomplished in six months. The surrender had
been made and the six months had passed. Spanish officers
who remained after that date were there on sufferance, and
were, according to the Spanish laws existing before the
cession, liable to removal or imprisonment, at the discretion
of the governor, for the mere fact of being there. Colonel
Callava's act was an undisguised effort to prostrate the
authority of the United States in the province; Governor
Jackson had to pursue the course adopted, or else see the
sovereign power of his country trampled under foot and
exposed to derision by a foreigner' remaining there only
upon his sufferance.2
The expulsion of the Spanish officers called forth another
1 Ann. 17 Cong. I Sess., 1959 et seq., 21oo.
Ibid., 2006, 2045.


269]










MILITARY GOVERNMENT


note from Mr. Salmon. He maintained that General Jack-
son's charges were false and that the expulsion disregarded
the laws, and also the respect due to a friendly power.1
The secretary's reply was not less pointed than polite.
The charge of falsity he hoped had been admitted inad-
vertently to the communication he had received. The offi-
cers ought to have departed in accordance with the pro-
visions of the treaty; having remained they were subject
to removal, even if guilty of no offense whatever. Simple
expulsion was the most lenient penalty General Jackson
could inflict for the offense of which they were guilty."

When Judge Fromentin learned that Governor Jackson-
had used the word apology in connection with the state-
ment he had signed in regard to the issuance of the writ,
a breezy correspondence ensued between them, the gist of
which was: "I didn't." "You did." "I did." "You
didn't." Both then poured their troubles into the ear of
the Secretary of State.
From the very first they had disagreed as to the extent
of the judge's jurisdiction. Governor Jackson held that
Judge Fromentin was limited to cases arising under the
two laws of the United States. which had been extended
to the territory, those relating to revenue and the impor-
tation of slaves. The judge himself maintained that he was
a territorial judge, with the additional jurisdiction vested
by the act of March 3, 1805, in such judges where no dis-
trict court of the United States had been established. He
was confirmed in this opinion by an examination of his
commission, in which he was styled a judge of the United
States for West Florida, with power to execute and fulfil
the duties of that office according to the Constitution and


1 Ann. 17 Cong. i Sess., 2009 et seq.


[270


2 Ibid., 20o49.









ADMINISTRATIVE WORK IN FLORIDA


laws of the United States," and by a sentence in the Secre-
tary's letter transmitting the commission, in which he said
that it might be important to have the judicial department
of the temporary government under General Jackson put
into operation immediately.1 But the governor had fore-
stalled him, and had the judiciary in operation when Judge
Fromentin arrived. While he was waiting to hear from
Secretary Adams, the troubles recited above occurred. The
question of jurisdiction was now overshadowed by that of
the judge's right to issue the writs of habeas corpus.
Governor Jackson did not trouble himself to enter upon
any arguments respecting the judge's right. With his in-
terpretation of the judge's jurisdiction it was assumed that
the right to issue the writ fell to the ground. The irregular
way in which the writ had been issued was, he declared,
enough to strike him forever from the roll of judges, un-
less ignorance of the law was no bar to judicial station.'
A considerable part of the judge's letters was taken up
with a denial that he had ever apologized to Governor Jack-
son. The spectacle of the courts set up by the governor de-
ciding-not trying-cases every day, coram non judice, and
the governor himself engaged in the same business, all of
which the judge considered without a shadow of legality,
fairly set his blood to boiling. He waxed eloquent over
the revolting system of inquisition which prevailed there,
and declared the despotism of Morocco and Algiers to be
preferable to the existing government in Florida. When
Secretary Adams sustained Governor Jackson's interpreta-
tion of the judge's jurisdiction-nothing was said about
the right to issue the writ of habeas corpus-the excitable
Frenchman went into hysterics, and delivered himself of a
lengthy exposition," setting forth the reasons for his view


1 Ann. 17 Cong. I Sess., 2374 et seq.


2 Ibid., 230o, 2340.









MILITARY GOVERNMENT


of the situation, and still declaring that he would continue
to consider himself the only judge in Pensacola. The
thought that he was to be denied the right to issue the
writ of habeas corpus seemed unendurable and drew from
him an apostrophe to liberty. The people of Florida had
been stripped of their liberty and subjected to Jacksonian-
ism, a term which henceforth would be more odious than
ever tyrant had been. But he would not tamely submit.
If not allowed to introduce the habeas corpus, that legit-
imate knight of American liberty," under the protection of
the Constitution of the United States, he would introduce
it under that of Spain. Flectere si nequeo superbos, Ache-
ronta movebo.1
The judge's claim that he was a territorial judge, in
opposition to the views of President Monroe and Secretary
Adams, who issued his commission, merits but little atten-
tion. By his commission he was denominated a judge of
the United States for West Florida," with power to execute
the same according to the Constitution and laws of the
United States." This does not look much like the com-
mission of a territorial judge. Indeed, it would be difficult
to say what it does look like. It is immaterial to inquire
whether he had the same right to issue the writ of habeas
corpus as belonged to the district courts of the United
States, conferred upon them by name in the statutes creat-
ing them, for, in any case, he had no right to issue it
against Judge Jackson in a case in which the United States
was not concerned.
However, in palliation of Judge Fromentin's conduct, it
may be said that the last sentence in Secretary Adams's
letter transmitting the commission was a little confusing:
"Towards the organization of the temporary government


1 Ann. 17. Cong. I Sess., 24oo, 2463 et seq.









273] ADMINISTRATIVE WORK IN FLORIDA 89
under his [Jackson's] direction, it may be important that
the judiciary department should be put into operation imme-
diately." But a "judge of the United States" can have
nothing to do with the judiciary of a territory.
Governor Jackson's misstatement of fact in regard to the
promulgation of the Spanish constitution gave Judge Fro-
mentin an opportunity to excoriate him unmercifully. The
judge declared that he held in his hand an official copy of
the oath administered to Governor Cal ava, May 26, 1820,
when the constitution was promulgated t Pensacola. Many
citizens were ready at the trial to testify that this had been
done in the midst of rejoic' illuminations lasting
several days, but every appcation for such testimony had
been overruled. Genera Jackson, then, in Fromentin's
opinion, had deliberately stated a falsehood.1
The line of reasoning by which the general satisfied him-
self that the Spanish constitution was not in force in Florida
was more worthy of a Greek sophist than of an American
statesman or general. That a sovereign cannot legislate
for territory ceded by a treaty signed, but not ratified and
exchanged, is a proposition too absurd to be discussed.'
It probably would not have occurred to anybody else that
that clause in the ratification which provided that the treaty
should have the same effect as if it had been ratified within
the time originally specified, was meant to annul all laws
passed for the regulation of the territory since February
22, 1819. The argument adopted by counsel for the heirs
of Vidal-that the powers of the existing government had
been retained, not the officers (meaning offices), of which
a new distribution had been made-would have justified
the governor in sitting as a judge but for the fatal wording
of his commission, by which he was limited to the powers


1 Ann. 17 Cong. i Sess., 241o.


2 Ibid., 2027.










90 MILITARY GOVERNMENT [274
and authorities exercised by the governor and captain-
general and intendant of Cuba, and by the governors of
East and West Florida. The only reasonable interpreta-
tion of this is that it meant the powers exercised at the time
of the transfer. Now the governor's own alcalde, Mr.
Brackenridge, had informed him that the only judicial
power exercised by the governor since the promulgation of
the constitution related to admiralty. A legal justification,
then, of the governor's judicial proceedings seems to be
wanting. Nor does the necessity for them. appear to have
been imperative. He had already organized some courts;
if they were inadequate, why not others? The constitution
appears to have left the direction as to how these should be
organized to the Cortes. The law of that body on the sub-
ject is not known to the writer, but it must have been com-
petent for the governor to bring about their organization
in some way, probably by election on Sunday, after high
mass, as in the other elective offices.
The conduct of General Jackson in Florida attracted the
attention of Congress, and the House of Representatives,
after a considerable debate, which trenched upon the merits
of the case, called upon the President for information in
regard to it. When the correspondence was received it
was laid on the table and ordered to be printed. A series
of resolutions arraigning the general administration of
Florida and declaring the treatment of Colonel Callava to
have violated the laws of nations, and that of Judge Fro-
mentin a proceeding not warranted by any legal authority,
was refused consideration.1
The country, says Parton,2 judged the governor leniently,
though some papers were severe in their criticism. Parton
himself is a little severe, but he lays the blame on old
I Ann. 17 Cong. I Sess., 61o et seq.; 627, II95. Jackson, ii, 642.










275] ADMINISTRATIVE WORK IN FLORIDA 9y
prejudice (against the Spanish), and chronic diarrhea,
which made the general irritable. "Nevertheless, after
giving due weight to these extenuating circumstances, many
readers will feel that General Jackson's treatment of Sousa,
Callava, and Fromentin was only saved from being atrocious
by being ridiculous."

IV. EAST FLORIDA AND OTHER AFFAIRS
The question of religious toleration appears to have been
the first one to present itself in East Florida, but it was settled
without so much as an appeal to the officials. Hardly had
the substitution of flags been effected when a Methodist
minister appeared and began to distribute Protestant tracts.
This called forth an indignant protest from a Catholic
priest, but when the preacher pointed to the American flag
the priest retired in dismay.
While Captain Bell was acting-governor he found it
necessary, in the absolute want of all law regulation, police
or magistracy, to exercise his authority, upon the occurrence
of some peculiar circumstances respecting the carrying off
of slaves, to confine for a very short time one of the citizens
in the fort of Saint Augustine." In doing this the cap-
tain said that he did not deem it necessary to ascertain with
legal precision whether his powers were to be measured by
the limits imposed by the old or new constitution of Spain,
but that the good of all, the peace of the whole community,
was his only rule of conduct. This occurred only a few
days after the transfer of sovereignty. The extent to which
the civil power was allowed to supersede the military, even
before the organization of the territorial government under
the act of Congress, is illustrated by the fact that in about
SParton, Jackson, ii, 6081.
SVignoles, Observations upon the Floridas (823), 3o.










92 MILl I -tlLAl LrV iDAVI I V 12[ 70
five months damages were awarded against Captain Bell
by the county court, and that its decision was acquiesced in.
However, the inhabitants and proprietors of St. Augus-
tine raised the amount of the fine, and begged of Captain
Bell the privilege of paying it as a testimonial of their
esteem and their unshaken belief in the uprightness of
his conduct.1
Mention has already been made of the fact that the
archives were left in the hands of the Spanish. When Mr.
Worthington arrived he deemed the immediate possession
of these papers of sufficient importance to demand their de-
livery, according to the terms of the treaty. They were in
the hands of a Mr. Entralgo, the Spanish alcalde, who
continued to exercise the functions of that office and re-
ceive the fees, although he had refused to take the oath
of allegiance to the United States. Secretary Worth-
ington now appointed Mr. Edmund Law to be alcalde,
and demanded possession of the archives and office. This
Mr. Entralgo refused, saying that they were his private
property, as he had bought them at a public sale, and that
he would not part with them until satisfactorily indemnified.
The secretary replied that he must seek indemnification
from the government which had sold him the office. Upon
his persistent refusal, the secretary sent three men as a com-
mission, with authority to call upon the military for help,
to seize the documents in question. This brought about
the desired result."
Captain Bell, the president of the commission, reported
that the conduct of the officers in seizing the papers was
approved by citizens having property in East Florida.' In-
deed, it was to allay their uneasiness that the prompt action

1 Vignoles, Observations upon the Floridas (1823), 31 et seq.
2 Ann. 17 Cong. I Sess., 2512 et seq. 3 Ibid., 2018 et seq.


Il~t ~'P 1TJ1) C~\T~~n~lll~'lTCP


r ^









ADMINISTRATIVE WORK IN FLORIDA


was taken, for many feared that frauds would be perpe-
trated against property rights, if these papers were allowed
to be shipped to Havana.
Governor Jackson approved these proceedings, declar-
ing that nothing could be more absurd than that Spanish
officers, as such, should administer the government. The
true meaning [of the proclamation] is, that whenever the
incumbent will take the oath to support the Constitution
of the United States, and abjure that of Spain, and take
the oaths of office, he shall continue therein," subject, how-
ever, to removal at any time.1
In October of 182r, the city council of St. Augustine so
far exceeded its authority in levying taxes upon the inhab-
itants,that Congress took notice of the matter and annulled
the ordinance.2
A few days after taking possession of Pensacola, Gover-
nor Jackson took an important step in regard to the sixth
article of the treaty. It was nothing else than to prescribe
the manner and limit the time in which the inhabitants were
to elect their citizenship. Such as desired to become Amer-
ican citizens were ordered to appear and have their names
enrolled in a register within twelve months, after which
time all who had not so registered were to be considered
as foreigners. The keeper of the register was allowed to
exact one dollar for every name recorded, and his secretary
another dollar for every certificate of citizenship issued.'
His reasons for the requirement were: (i) For the con-
venience of such as desired to become citizens of the United
States. (2) To prevent persons from claiming both the
privileges of citizens and the exemptions of foreigners, as
suited their convenience, of which he had had no little ex-
I Ann. 17 Cong. i Sess., a27. Act of May 7, 182.
Ann. 17 Cong. i Sess., 2550.


277]









MILITARY GOVERNMENT


perience in Louisiana. But these reasons for usurping
powers expressly delegated to Congress in prescribing rules
of naturalization do not appear to have satisfied that body.
May 7, 1822, the ordinance was annulled, and provision
was made to reimburse any who had -suffered in conse-
quence of it.

V. DEPARTURE OF GOVERNOR JACKSON. EFFECTS OF His
ADMINISTRATION
In a few weeks Governor Jackson had made more his-
tory for Pensacola than had before fallen to its lot in years.
His administration was now drawing to a close. In obe-
dience to the wish of Secretary Adams, he transmitted a
report conveying such information as he thought would
serve to enlighten Congress in legislating for the territory.
As for government, he recommended an organization sim-
ilar to that adopted for Louisiana.1
And now Governor Jackson, who had accepted the posi-
tion with some reluctance,2 disgusted with the whole busi-
ness, and with health considerably impaired, prepared
to return to his home in Tennessee. October 6, he sent to
the Floridian an address to the people of Florida as a kind
of parting message. In tho organization and execution of
the present temporary government he had, he affirmed, kept
steadily in view the securing to the inhabitants the protection
of their persons, property, and religion, as guaranteed by the
treaty, until they should be incorporated into the Union and
become entitled to all the privileges and immunities of citi-
zens of the United States. In performing this important part
of his functions he had endeavored to observe the spirit of
our political institutions. During his absence Secretary
I Ann. 17 Cong. I Sess., 2560.
2 Monroe, Message of December 3, x82i.


(278









ADMINISTRATIVE WORK IN FLORIDA


Worthington would administer the affairs of East Florida,
and Secretary Walton those of West Florida, subject to
instructions from the President, through him.
The next day the governor left for Nashville, where he
arrived November Shortly after this his resignation was
sent in and accepted. The secretaries were left in charge,
under the instructions given them by Governor Jackson,
until Congress should make further provision."
Judge Fromentin thought that General Jackson wished
to exploit the offices in Florida for the benefit of his friends.
Certain letters written by Mrs. Jackson while at Pensacola
indicate that he was somewhat vexed at not being able to
dispose of the more important offices, the President having
made the appointments in Washington. But, in any event,
it cannot be charged that he wished or attempted to exploit
the Floridians simply for his own benefit, or that of his
friends.

The ordinances for the government of Pensacola were
reported by Mr. Brackenridge, a few days after their pro-
mulgation, to have been productive of the happiest results.
Peace, quiet, and order had taken the place of continual
disturbance and disorder. The military force was almost
entirely dispensed with and its place supplied by civil offi-
cers. Attention to the health and comfort of the city had
succeeded the total neglect with which these important con-
siderations were treated for months before the change of
sovereignty." Mrs. Jackson was so annoyed with the bois-
terous way in which the Sunday preceding the transfer of
sovereignty was kept that she sent Major Stanton to warn
the people that the next would be differently kept. Yes-
SNiles, xxi, 171 et seq. Ann. 17 Cong. z Sess., 2039.
3 Ann. 17 Cong. I Seas., 2541.


279]









96 MILITARY GOVERNMENT [280
terday I had the happiness of witnessing the truth of what
I had said. Great order was observed; the doors kept shut;
the gambling-houses demolished; fiddling and dancing not
heard any more on the Lord's day; cursing not to be
heard." *
This same lady thought the change of sovereignty not
so very welcome to the natives. How did the city sit
solitary and mourn!" she exclaims. But she was given to
reflection and introspection, and wrote as though her im-
pressions were received from gazing out of a window.
The Floridians had had some experience with General
Jackson as a conqueror a few years before. This fact,
together with stories which they had heard respecting his
character, and his hatred for Spaniards in particular
(which he denied), caused them to stand somewhat in awe
of him. This was illustrated by an occurrence which hap-
pened shortly after his arrival in Pensacola. One night a
fire broke out, and the Spaniards rushed out to witness it,
but did nothing. When General Jackson arrived and took
in the situation he uttered one of his fiercest yells to arouse
them to action. The Spaniards, however, not comprehend-
ing the phrase employed, and having received impressions
respecting the ferocity of his disposition which rendered
him an object of terror, turned and fled, leaving him the
sole spectator of the fire until the soldiers arrived." His
treatment of Colonel Callava and Judge Fromentin, and the
expulsion of the Spanish officers, aroused some fear and
excitement, but these soon subsided. The sense of humor
must have prevailed over that of fear in the manager of
the theatre who headed his play-bills, "Jacksonian Com-
monwealth." *
1 Parton, Jackson, ii, 604. 2 Ibid., 613.
SAnn. 17 Cong. i Sess., 2524, 2403.









ADMINISTRATIVE WORK IN FLORIDA


VI. THE TERRITORIAL GOVERNMENT ORGANIZED
After the departure of Governor Jackson the secretaries
seem to have had fairly smooth sailing. The House of
Representatives again grew interested in their work, and
asked the Presiden whether that portion of the United
States army now in Florida is commanded by the officers
of the said army or by the secretaries of the territory;
and if by the latter, by what authority he is invested with
such command." In reply President Monroe said:

S. The secretaries of both the Territories have occasion-
ally required and received the aid of the military force of
the United States, stationed within them, respectively, to carry
into effect the acts of their authority.
The government of East and West Florida was, under the
Spanish dominion, almost exclusively military; the governors
of both were military officers, and united in their persons the
chief authority, both civil and military.
[The principle upon which the act for the temporary gov-
ernment of our new territory was carried into effect] was to
leave the authorities of the country, as they were found exist-
ing at the time of the cession, to be exercised until the meet-
ing of Congress, when it was known that the introduction of a
system, more congenial to our own institutions, would be one of
the earliest and most important subjects of their deliberations.
From this, among other obvious considerations, military offi-
cers were appointed to take possession of both Provinces.
But, as the military command of General Jackson was to
cease on the Ist of June, General Gaines received from
me verbal directions to give such effect to any requisition
from the Governor for military aid, to enforce his authority,
as the circumstances might require.

The President furthed explained that the secretaries had
no authority to command the troops, and that whatever aid


281]




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