§ From Harry Toulmin
12 December 1810, Fort Stoddert. Reports issuing arrest warrants for Dr. Pollard and others engaged in illegal military enterprises. “Previous to the return of the Sheriff; the inclosed application for a writ of Habeas Corpus was made to me by Lawyer Kennedy, which I send because it exhibits the legal talents of the petitioner, & because … it has afforded ground for a clamour that I had denied to a citizen the benefit of the writ.” Kennedy also submitted “a petition that certain negroes belonging to a Spanish inhabitant, might be seized, which had been sent above the line to prevent their being plundered, and who had originally been negroes held in this territory, till the owners moved below the line.” Has given this to the attorney general.
Reuben Kemper and Chief Justice Caller “came to the fort on Sunday [9 Dec.] & I immediately had them arrested.” Caller, “a good deal intoxicated,” admitted the truth of the evidence in the warrant, though he later “retracted what related to Fort Stoddert.” Offered to suspend determination of bail “if they had any testimony to rebut the charges, or wished to cross-examine the witnesses.… They informed me that they wished the testimony to be examined: and we have been three whole days engaged in the business, and may be two or three more. For the want of any other place, as there is nothing but a tavern with one public room convenient to the fort, … the examination has been held in Capn. Gaines’ quarters.” Kemper “feels perfectly at ease under the idea that he is a citizen of Florida,” is convinced there is no proof against him, and maintains that the enterprise was “a laudable and an honourable one,… not intended to injure the United States or the citizens of Florida, & was very favourably viewed by men in the highest offices on the Mississippi.” However, that he took the lead in organizing the expedition and purchasing ammunition has “all been satisfactorily established.”
Caller’s role was in recommending the expedition, engaging a boat for supplies, and being present with the party below the line, although he claimed “he went merely as a spectator, & took no part: and should I finally hold him to bail; it will be regarded as an outrage on justice & common sense.” Buford’s participation has been similarly established, while another leader, Captain McFarland—who declared that “he would have my blood”—has escaped.
“No examination, I suppose, was ever more minute or more tedious: and none, perhaps, was ever conducted with a spirit of more haughty pertinaciousness by the party accused.… I have promised them liberty to take a copy of the examination: & yet as from a partial exhibition of garbled extracts it is probable that the public mind may be led astray; I fear I have promised too much. Indeed I suspect that the only remedy will be to print the whole.”
Admits it will be nearly impossible for him to preside at the trial and regrets that he had to act so early in the business. “But in a country where there is so much apathy, so much ignorance, … a judge … must perpetually take a more active part in the early stages of prosecutions than is customary in societies more established, and composed of better materials.” And if Congress does not establish a separate government for this district, “the cause of justice for several years to come must perish in this part of the Mississippi State.… The new population … has been very far indeed from improving the state of society.” The need for the presence of a governor and judges is “most impressively displayed on the present occasion: as one of the main engines employed by Kemper and his party, is the uncontradicted circulation of reports that the expedition is sanctioned by the Executive, which the distance of the Governor has precluded him from counteracting.”
Does not know how to act after having taken so active a part in bringing the offenders to justice. Could not be considered impartial at a trial, but “family demands on me, seem to render a resignation ruinous.”
Was consulted after the arrest of Kemper and Caller by Colonel Sparks “on a request which had been made to him by Coll. Kemper, and which he was evidently disposed to accede to.” Kemper proposed to write to the authorities in Florida and Mobile for a cessation of hostilities to avoid bloodshed. Informed Sparks that compliance with this proposal would be a tacit acknowledgment of Kemper as “the representative of a power authorized to treat,” which was “utterly incompatible with his standing as a violator of the laws of the United States,” and that if Kemper wished to avoid bloodshed he only had to desist from his “illegal” and “needless” enterprise. Sparks seemed convinced and promised to “wave the business,” though he spoke a good deal about avoiding bloodshed.
“The whole affair appeared to me to be nothing but an artful device to obtain some colour of an acknowledgement of the new goverment, from American authorities”; however, the next morning Sparks sent for Lieutenant Ware, who then started for Mobile with letters for the governor and Innerarity. Fortunately, Captain Gaines detained Ware and sent an officer to remonstrate with Sparks. Believes this was successful, and if Sparks has committed himself since, it is without the knowledge of his officers. Hopes Sparks never hears of this communication; “he is one of the best men in the world: but he has unfortunately been for some time thrown into a situation for which previous qualifications had not prepared him.”
“Yesterday advice came, that Govr. Folch had the preceeding night attacked the party encamped on saw mill creek, had killed four, taken ten or twelve prisoners, and wounded and dispersed the rest. Among the prisoners is Major Hargrave a justice of our Q. S. court.1… It was this morning industriously circulated … that the attack was made in consequence of information given by me to Govr. Folch. The truth is that … till I heard of the defeat, I supposed [the party] had been on the river.” Cannot judge the effects of the affair; “some no doubt will be discouraged: but more will be enraged: and should assistance come from Baton Rouge,… I suspect that the business will be resumed with vigour, to the destruction perhaps not only of the Spaniards but of the friends of the law in this quarter.” Has written Governor Holmes requesting him to come to Fort Stoddert but hopes that there is no force on its way from Baton Rouge. Adds in a postscript that Colonel McKee set out a few days earlier. Reports in a postscript of 13 Dec. that there has been a clash on the Pascagoula, “principally between the insergents themselves, who were partly Spanish subjects & partly Americans,” with eight killed.
RC and enclosure (DNA: RG 59, TP, Mississippi, vol. 1). RC 7 pp. Postscript of 13 Dec. written on a separate slip of paper. A misdated docket for the RC by John Graham, with the note “Affairs at Mobile,” is filed at 12 Dec. 1811 (ibid., vol. 2). Enclosure (2 pp.) is a petition from Joseph P. Kennedy to Toulmin announcing that he had become a citizen of the state of West Florida and seeking a writ of habeas corpus to release him from his arrest by John Johnston, chief justice of Baldwin County, Mississippi Territory. RC and enclosure printed in Carter, Territorial Papers, Mississippi, 6:152–58, 158–59.
1. On the evening of 10 Dec. 1810, Folch had attacked a filibustering party at Saw Mill Creek near Mobile. In addition to killing four and wounding three of the party, Folch also took seven prisoners (Cox, The West Florida Controversy, pp. 483–84).