James Madison Papers

To James Madison from Harry Toulmin, 13 February 1812 (Abstract)

§ From Harry Toulmin

13 February 1812, Fort Stoddert. Is reluctant to trouble JM at a time of crisis with “a tedious communication” on a “mere personal concern,” but “the cause of Justice … is as interesting as the cause of War: and the Chief of the Union … will never be insensible to the importance of maintaining at home, the good order of society, the vigour of the laws, and the Character of the Government.” Has been attacked in the House of Representatives under “a semblance of legal forms,” but “so well established … is the infamy of [his] accusers” that he doubts that they can “indulge the slightest expectation of establishing the charges they have had the imprudence to exhibit.” Nor does he believe that JM “can entertain any suspicions of the honor of [his] character or the rectitude of [his] conduct,” but he deems it prudent “to ask permission to deposit in the archives of the executive department such a plain examination of the charges exhibited, as may do justice to truth.”

“The uncertainty and vagueness of the charges” are such that he “cannot possitively say what were the particular cases to which they allude,” but he has “a full belief that out of the nine charges, seven of them allude to cases occurring several years ago,” since which time several of his accusers “have warmly and repeatedly expressed towards [him] the highest confidence and esteem and friendship.” If the dates of the facts had been made known, the question would have arisen how so “unworthy” a magistrate had been allowed to continue in office, “not only without reproach, but with honor, with applause and with popularity”: “the answer would not be given by [his] accusers.” “None but the principal party … in most of the cases alluded to” ever questioned his rectitude or his “genuine republicanism” until “a lawless war was crushed and the flaming project of a wild and disolating, ambition, under all the shapes and disguises it assumed, were detected exposed and defeated.” Then “the moment was seized as favorable to the downfall of an Officer who could not be rendered a passive spectator of violations of the laws.” The manner in which the plan for his destruction was carried into effect “is detailed in a letter from a very respectable citizen … lately emigrated from South Carolinia,” marked “A.”1

Signatures were obtained for a petition, the facts of which, “whether true or false, not one Man in fifty of those who signed it had any knowledge,” but “Congress disregarded the effort of factious and abandoned Men.” His accuser then obtained a seat in the territorial assembly on the assumption that “the purpose … would be much more surely accomplished by carrying the whole before them, with the sanction of a County grand jury.” Argues at length to show why grand juries generally, and in Baldwin County in particular, have lost their respectability, and refers JM to the enclosed document marked “B,” which explains how juries in Baldwin, Washington, and Wayne Counties are chosen.2 “Yet even a grand jury so constituted, were not to be trusted untill a modification of their oath had been surreptitiously effected.” Describes how this was done when the clerk of the superior court of Baldwin County applied to Thomas Malone for copies of the oaths usually adopted, and the oath for the foreman of the grand jury (enclosure “C”)3 was modified by [Joseph P.] Kennedy (enclosure “D”).4 This maneuver diverted the jury from its “proper functions”; its members “were virtually sworn to wander into the field of general crimination, and to present whatever any authorized and irresponsible intruder might deem it expedient to bring before them.” The court itself was ignorant of these proceedings, and the charges exhibited were not known until 14 Dec. [1811], “three Months after the sitting of the Court, and about 30 days after the General Assembly had been surprised into the step of transmitting this paper to the general government.” The members of the grand jury knew nothing of these matters; being recent immigrants to the country and “very uninformed,” many of them knew nothing of him and were “easily … made to believe … it was their duty to set their names to a presentment which was sworn to by Mr. Kennedy, and supported by … Mr. Buford.” Kennedy prepared the whole affair: “As to this gentleman, it is enough for me to say that I feel honored by his opposition.” Refers JM to the enclosure marked “E” for justification of this feeling.5

Explains how the territorial assembly could have indirectly sanctioned the charges against him; believes that its members were unaware “that what they did could be productive of either good or harm.” Asserts that “party spirit” in the territory was not responsible for this outcome: “with local factions, I have nothing to do.” The assembly acted from “a sense of duty, misguided by false information.” “It is not the first instance in which they have discovered their lamentable ignorance of this part of the Territory, and their unfortunate openess to the most palpable impositions.”

“I will no longer ask your attention to preliminary observations, but will proceed to an examination of the charges themselves.” The first is that of “making decisions in vacation, and at the next term having them made a matter of record.” Explains that the practice had been adopted long ago to promote the dispatch of business and to clear the court of “a cumbersome docket.” All parties consented to this: “Never till I saw this presentment, did I hear any complaint of the practice.”

“The 2d charge is that of ‘uniting in myself the character of a judge and party in making a challenge of a juror.’” Concedes that he may have disqualified unsuitable jurors “without waiting for a motion from the bar,” but has never considered such actions as beyond the discretion of the judiciary. The third charge is that of “acting partially in the office of Judge of the Superior Court of Washington district.” Denies this and asks why “none but a very uninformed jury” in Baldwin County “ever perceived or brought into view the partiality of the judge.” The fourth charge is that of having refused a prisoner the right to consult with counsel in private, “declaring that there should be no secrets, but what advice was to be given should be given in open Court.” Denies that the case “ever occurred in the broad way in which it is here laid down” and redefines the issue as “the transfer of the right of peremptory challenge in Criminal cases, from the accused to his Counsel.” “The right of perem[p]tory challenge is purely personal” and he has “always resisted the interference of Counsel” in the matter. Claims not to recollect the case to which Kennedy is possibly referring, but recalls a case in which “by Nods or Winks or other private intiminations [sic] he was directing the prisoner whom to accept or whom to reject.” “I do recollect I declared … that the attorney had nothing to do with peremptory chanlenges [sic], that his sphere of action was in the case of challenges for cause” only. If these ideas are unsound, “the trial by jury must become a mockery.” Would never deny a prisoner the right of private communication, but has “never suffered the Court to be insulted by the suspicious mummery of mystical signs between a Criminal and his advocate, for the purpose of instructing the accused in his selection of jurors.”

The fifth charge is that of “Having ordered the Attorney General for Washington District to file an exofficio information against a Citizen of this Country for a Capital offence.” The citizen was Joseph P. Kennedy; “the case was that of a Cheat of a most base and flagrant nature.” In 1806 Simon Andry, a Frenchman, stated “that Mr Kennedy had in his possession a Note of his” for $4,000, “that he never gave any such Note and was afraid … it would be brought against his estate” to the ruin of “his Mulatto Children and their Mother.” Recounts the manner in which Kennedy obtained a signature to this note from a man unable to read. States that he advised Andry to send a letter to Kennedy, “but Kennedy returned it without any written answer.” The existence of the note was established by an affidavit (enclosure “F”)6 and the imposture by which it was obtained by Andry’s oath (enclosure “G”).7 Explains his decision to proceed against Kennedy for abusing the office of attorney; entered the case “conjointly” with a similar one, “calling upon the party accused to shew cause why informations should not be filed against him” (see enclosures “H” and “I”).8 States that the word forgery was incorrectly used: “that no capital offence was intended to be prosecuted … is evident from the personal liberty enjoyed by the defendant.” “Had it been a Capital case he must have gone to prison.” Concludes that the term forgery had been used “popularly and not technically” to describe a misdemeanor rather than a capital offense but that even if the latter had been contemplated, it would not necessarily have violated the U.S. Constitution since Kennedy was indicted by a grand jury (see enclosure “K”).9 Calls the indictment itself evidence that the offense was not a capital one (see enclosure “L”).10 Adds that some time later Kennedy became a candidate for the assembly and gave up “the surreptitious note” for $4,000.

The sixth charge is that of “having ordered a jury to find a Citizen of this Country guilty, after they had returned their verdict of not Guilty to the Court.” Declares that no such case occurred but recalls that he once reprimanded a jury for returning a verdict “palpably Contrary to evidence” by reminding them that the members might have to answer for perjury before “a higher tribunal hereafter.” Remarked at the time that the jury probably did not understand the question and had overlooked one of the charges against Kennedy, the defendant, but the foreman of the jury, [William] Buford, was satisfied with the jury’s decision and the members were never charged to bring a verdict of guilty.

This affair originated in the cases of Edward Brooks v. Thomas Brooks and Joshua Kennedy v. Thomas Brooks, one an action for debt, the other for trespass. The court had given a general rule on the matter in September 1806 (enclosure “M”),11 but the clerk of the court became confused by the two cases, did not know how to proceed, and referred the matter to him. “The marks of fraud appeared so evident on the face of the whole” that he directed the attorney general to file an action against Kennedy (see enclosure “H”).12 Explains how the clerk became confused and unable to decide whether Kennedy or Edward Brooks was entitled to the sum of $25,000 and how the court came to neglect evidence suggesting that Kennedy had committed a fraud. To recommend that a jury reconsider a verdict contrary to evidence was no more than his duty required, but the verdict stood. Encloses the proceedings in the case, marked “N”;13 in a subsequent term the rule of the court marked “O”14 was adopted.

The seventh charge is that of “having established a rule of Court … that no person shall dismiss a suit except in open Court, and that with leave of the same.” Denies the charge but concedes he may have intimated on occasion that once a matter was before a court, it could not be withdrawn without the express or implied consent of the court. “This opinion more particularly came into view in the case of Josh. P. Kennedy v. Geo. Farrer,” the circumstances of which probably account for Kennedy’s introducing it as evidence of “Mal administration” of justice. Gives the details of the 1806 case, in which the verdict was not guilty, and encloses papers marked “P.”15 These charges “relate to transactions of several years standing,” and had there been “Mal administration,” it must have been known throughout the district and county of Washington as well as in the new county of Baldwin. Observes that no one complained of the matter then and expresses astonishment that anyone should do so now.

The eighth charge is that of “having holden a Court of examination in the Garrison of Fort Stoddert, and examined witnesses, at the point of the Bayonet.” Declares this “a base and wilful fabrication” and explains that the circumstances from which the charge arose were his concerns about filibustering expeditions, especially those associated with Reuben Kemper, at the time of the revolt against Spanish authority in West Florida. Reminds JM that he warned his fellow citizens at that time about the dangers of violating the law.16 He subsequently arrested Kemper and [John] Caller for violating the neutrality between the U.S. and Spain (see enclosures marked “R”).17 Kemper and Caller appeared before him on 9 Dec. 1810, afterward repairing to the quarters of Colonel Sparks. Their examination continued until 15 Dec., when Col. James Caller arrived with JM’s proclamation taking possession of [West] Florida, “denouncing … the damned tory who had Arrested his brother” and claiming that the revolt in West Florida “had been conducted in concert with the government of the United States, and that the Gove[r]nor [Fulwar Skipwith] had been chosen on the Nomination of the President himself.” James Caller continued to organize a force to attack Mobile, even though he had been informed “that the instructions given to Gove[r]neor Claiborne18 (under whom he pretended to act,) did not warrant any hostile operations against the Spanish power.” Admits that he examined witnesses at Fort Stoddert in the house of Capt. Edmund Pendleton Gaines, but denies that the house was “polluted and dangerous because it was the property of the United States.” Points out that his accusers “depreciate all Federal men and federal places as though inflicted by disease, and Sources of Death.” “The Government is with them the fountain of every evil, and law and oppression are in their vocabulary synonimous terms.” Admits that Fort Stoddert is a garrison but adds that Gaines’s house and other federal properties have been used for years for both private and public purposes. Asks why “Men Notoriously at the head of a Military Armament” should feel aggrieved at being examined in that place. “Since that time I have indeed been obliged to hold a Court in the open Air when no house was offered … and when the Clerk had been prevailed upon by the Chief justice of Baldwin County to disappear under the pretence that I should be mobbed and could not hold a Court” (see enclosure “T”).19 Denies that witnesses were ever examined at bayonet point or that force or restraint was ever used to obtain testimony. Is outraged that men “at the head of what they called an Army” should “feel the ordinary restraint of civil power” as an insult to their dignity. Points out that such claims reduce any federal function to the equivalent of “the Bayonet and Military parade” and refers JM to further testimonies (enclosure “U”).20

The ninth charge is that of having “carried on a verbal as well as a written correspondence and intercourse” with the Spanish authorities of West Florida to influence their conduct in their dispute with the U.S. and “to defeat the measures of the Government of the United States.” Doubts that even his accusers believe this charge. “With the Officers of the Spanish Government I have had no intercourse of any moment: I scarcely know the persons of any. Of most I am entirely ignorant.” Has informed JM of what “little communication” has taken place between him and Spanish officials, all of which has “been dictated by a regard to the welfare of the Country.” Has always supported the laws and the authority of the U.S. when his accusers were “thwarting the views” of the government, “forcing on a State of War,” and creating “the most unhappy and destructive jealousies in the minds of Spanish Americans.” Did his utmost “to preserve the name of the federal Government, unsullied”; the U.S. cannot now be “reproached … by the Ashes of Mobile for the actual hostility of their Citizens,” and “Congress can now honestly and consistently profess those sentiments of Amity with which they have viewed the Spanish American provinces” as they “behold with friendly interest the establishment of independent sovereignties … as neighbours and inhabitants of the same hemisphere.”21 Refers JM to verifying statements marked “V.”22

Apologizes for trespassing on JM’s patience; believes that the territorial legislature was misled into sanctioning the charges against him. Blames those who attacked him for this state of affairs and deplores the fact that such men, including Kennedy, should still hold power in the territory. Regrets in particular the influence of these men in the remote eastern part of the territory as well as their influence over federal and local officials. Thus “the abandoned representatives of an incautious or ignorant people, will become the effective though not the responsible agents of the federal Government.”

Mentions petitions to Congress describing “the evils which must necessarily afflict the extremes of an unwieldy province” and praying for a division of the Mississippi Territory. Asks “whether the plan of connecting together in the same political body such distant detached settlements as those on the Tombigby, and the Mississippi has not a most deadly effect on the frame and Constitution of Government.” “Under such a System, every thing in Districts remote from the seat of Government, must depend on the judicial department; a feeble bulwark, indeed, against the encroachments of licentiousness and Anarchy.… The present attack on me … is a striking monument of the general ignorance prevailing on the Mississippi with relation to transactions in this settlement.” Asks Congress to “make some provision for the better Government of this Country”; believes that the plan adopted for appointing local judges in Mississippi “is extremely unfriendly to a firm and successful administration of justice.” Emphasizes again the difficulties of his situation, which must lead eventually to “a sacrifice of the Office or of the Officer.” Fears that JM may “be tired and disgusted with a detail of facts, or with the suggesting of reflections which have thier origin simply in the depravity of Man, and in the competency of human devices to controul human passions.” Prays for JM’s pardon “for thus presuming on [his] indulgence.”

RC and enclosures (DNA: RG 59, TP, Mississippi). RC 43 pp. For enclosures, see nn. 1–20, 22.

1Enclosure “A” is a copy of Samuel Ervin to [Toulmin], 26 Jan. 1812 (4 pp.), describing criticisms made by James Caller of Toulmin’s efforts to prevent detachments of the Mississippi militia from participating in an attack on Mobile. Joseph P. Kennedy obtained signatures from a number of the militiamen on a petition to Congress calling for Toulmin’s removal. The contents of the petition were not read to those who were expected to sign it, nor was Toulmin, who was present, permitted to answer the charges.

2Enclosure “B” is a printed copy of “An Act To establish Superior Courts of Law and Equity in the counties of Baldwin, Washington and Wayne, and for other purposes” (1 p.). The second section prescribed the methods for compiling jury lists and selecting jurors. At the foot of the page Toulmin appended the comment: “Out of these, by a former law the grand jury are drawn by lot.”

3Enclosure “C” is a copy of an affidavit sworn by Thomas Malone on 26 Dec. 1811 reproducing the oath administered to the foremen of grand juries in the counties and districts of the Mississippi Territory (1 p.).

4Enclosure “D” is a copy of the oath administered to the foreman of the grand jury in Baldwin County for the September 1811 term (1 p.).

5Enclosure “E” is a copy of an affidavit sworn by Charles T. Matheny on 10 Dec. 1811 stating that William Buford had been arrested in the Tensaw Settlement on the Alabama River for breaking into a prison in South Carolina and releasing a convicted murderer, Anthony Disto, who was subsequently retaken and hanged (2 pp.).

6Enclosure “F” is a copy of an affidavit sworn by James Caller before Toulmin on 23 May 1808 stating that Joseph P. Kennedy and Ezra Canfield had obtained a note for $4,000 from Simon Andry in consideration for the drawing up of a petition to the territorial assembly to liberate “a negro woman named John and her children which said Andry considered as his wife and Children” (2 pp.).

7Enclosure “G” is a copy of an affidavit sworn by Simon Andry before Toulmin on 23 May 1808 denying that he ever gave Kennedy and Canfield a note for $4,000 and stating that he had never given them “any sum of money but 50 dollars,” which he paid them for obtaining the freedom of his children (2 pp.).

8Enclosure “H” is a copy of a court order issued by Toulmin on 23 May 1808 requiring Joseph P. Kennedy to show “why an information should not be filed against him for a cheat and forgery” against Simon Andry (1 p.). Enclosure “I” is a copy of a court order issued by Toulmin on the same day requiring Kennedy to show cause why an information should not be filed against him for abuse of justice and contempt of court (1 p.).

9Enclosure “K” is a copy of a motion giving leave to the attorney general to bring a bill of indictment against Kennedy “for a cheat & forgery” (2 pp.).

10Enclosure “L” is a copy of an indictment dated 29 July 1808, stating that Joseph P. Kennedy, on 3 May 1805, did “fraudulently procure one Simon Andry … to Sign his name to a Certain instrument of writing not Knowing the Contents of the Same” (2 pp.).

11Enclosure “M” is a copy of a general rule of the May 1807 term of the superior court of Washington District that no judgments were to be confessed until the suit was on the trial docket “nor then till called up in its proper time, unless it appears to the satisfaction of the Court that the plaintiff in any other suits in which this same person is defendant, and which suits stand on the trial Docket before the suit where it is moved to Confess Judgment have had reasonable notice that a motion would be made for liberty to Confess Judgment before such suit is called” (1 p.).

12See n. 8, above.

13Enclosure “N” is a copy of a summary statement of three counts against Joseph P. Kennedy, dated 24 May 1808 (3 pp.), showing: 1) that Kennedy, on 7 Apr. 1807, had commenced two suits against Thomas and Edward Brooks for $20,000 and $25,000, which suits were fraudulent and an abuse of justice; 2) that the declarations filed in these suits materially varied from the notes on which the suits were founded but that Kennedy had knowingly signed the fraudulent statements anyway; and 3) that the judgments in these suits had been signed long before the notes were due.

14Enclosure “O” is a copy of the rule of court adopted in the September 1808 term to the effect that no judgments were to be entered against any defendant until the plaintiff had sworn an oath attesting to the bona fide nature of the suit and to the fact that the suit was neither collusive nor undertaken with any intent to defraud (2 pp.).

15Enclosure “P” is a copy of a court order to the sheriff of Washington County, dated 8 Feb. 1806, directing him to take George Farrar to court to answer a plea by Joseph P. Kennedy that Farrar pay him “the sum of five hundred and sixty five dollars to his damage one hundred dollars” (2 pp.).

16At this point in the letter Toulmin placed an asterisk and noted at the foot of the page, “See the documents marked Q.” These are copies of a number of letters relating to the organization of filibustering forces against Spanish West Florida in 1810 (10 pp.), including a copy of Toulmin’s circular letter to the captains of the Mississippi territorial militia, 4 Nov. 1810 (printed in Carter, Territorial Papers, Mississippi, 6:130–31).

17Enclosure “R” is a copy of two depositions, sworn by Richard Haynesworth and William Vaughan on 28 Nov. and 3 Dec. 1810, respectively, about the intention of Reuben Kemper and John Caller to organize filibustering expeditions (2 pp.).

18At this point in the letter Toulmin inserted an asterisk and noted at the foot of the page, “See certificate marked S.” This is a two-page signed statement by R. H. Gilmer and Benjamin S. Smoot, dated 14 Feb. 1812, to the effect that Reuben Kemper and James Caller persisted in making plans to attack Mobile in 1810, despite having been informed by Ferdinand L. Claiborne that his brother, Orleans territorial governor William C. C. Claiborne, bore instructions from the administration forbidding American troops to use force against the town during their occupation of Spanish West Florida in accordance with JM’s [27 Oct. 1810] proclamation.

19Enclosure “T” is a copy of an affidavit by Benjamin S. Smoot, dated 3 Feb. 1812, stating that he had heard of plans to mob Toulmin on the first day of the court session and that persons unfriendly to the judge had appeared with clubs (1 p.).

20Enclosure “U” is a collection of twelve statements and letters to the effect that Toulmin did not abuse judicial prerogatives or due process in the courts he held at Fort Stoddert in 1810 (36 pp.).

21Toulmin quoted from a resolution passed by the House of Representatives on 10 Dec. 1811 (see ASP description begins American State Papers: Documents, Legislative and Executive, of the Congress of the United States … (38 vols.; Washington, 1832–61). description ends , Foreign Relations, 3:538).

22No enclosure marked “V” has been found, but filed with the other enclosures are seven pages of statements and testimony which contain evidence of Toulmin’s efforts to prevent filibustering expeditions against Spanish West Florida.

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