From Harry Toulmin
Fort Stoddert 2d. June 1813
I had lately the pleasure of a visit from Governor Holmes, and accompanied him to Mobile.
Whilst we were there, he became much impressed with a conviction of the necessity existing for the establishment of a federal court in this territory, & addressed a communication upon the subject, not only to the secretary of State, but also to many members of congress.1 Thinking it desirable that I should be transferred from the territorial to the federal establishment, he suggested his wishes, as to this point, to his correspondents, and recommended it to me at the same time to address you on the subject. I therefore take the liberty of saying to your excellency, that shd a federal court be established either for the Mississippi Territory at large, or for that part of it which lies east of Pearl river, it would be very acceptable to me to receive the appointment of judge of that court, in place of the office which I hold at present.
The obvious occasion which there is for a court exercising full federal jurisdiction, in a port the most ready of access of any, which we hold on the waters of the gulph of Mexico, and in a country which will shortly become, (if indeed it be not already becoming) the great thorroughfare for the introduction of smuggled articles, and especially of British commodities into all the southern and western states, and the impracticability of such jurisdiction being exercised with any effect, by the courts which are occupied with the local business of the territory; it has been here supposed, will prompt the national legislature to take the subject into immediate consideration.
Indeed it does not seem reasonable to burthen the judge of this district, who already attends the superior courts of seven counties, spreading over a wide extent of country, with any portion of that kind of business which properly belongs to the courts of the United States, especially in a district where the business will probably become more weighty, than in many of the original federal districts.
That union of the country east of Pearl river and south of the 31st. degree, to the federal judicial district of the state of Louisiana, which seems to be contemplated by the act admitting that state into the Union, will be attended with such incessant vexation and monstrous expence and inconvenience to suitors, that I cannot believe that the plan will be persisted in.2 Whether such an union now exists or not; came lately into view in the case of the San Pedro, which I take leave to inclose: and my belief that it does exist, has created no small degree of alarm in the town of Mobile.
It was on this account, and to avoid the danger of misrepresentation, that I acceded to a request, to suffer an opinion, (very hastily written)—which I gave on the subject, to be printed. There are some who (feeling the great embarrassment resulting from this extensive jurisdiction of the federal court of Louisiana) doubt the accuracy of the opinion which admits its existence, and warmly contend that when Mobile was added to our territory, its connection with Louisiana and the Louisiana district was utterly dissolved;3 not duly attending, as it seems to me, to the entire independence of federal judicial boundaries, and of state & territorial boundaries, of each other.
I trust that legislative power, however, will afford a remedy out of the reach of judicial construction. Should a federal court accordingly be established here; may I take the liberty of recommending as attorney, Mr Mattw. D. Willson of Virginia, now residing in this district? He has attended to almost all the public business which has been done here in behalf of the united States. His learning, morals, civil character, and talents stand high in my estimation. He is a friend to the government of his country, and will support its laws.
I fear that we shall have some difficulty with relation to the public records, formerly kept in Mobile. Genl. Wilkinson felt, I believe, at some loss on the occasion. However, though not instructed to demand the papers, he expressed a wish to the Spanish Commandant, that they might be left, in consequence of an application to the General by Mr D’Acre, clerk to the Commission for recording land claims. They wer⟨e⟩ […] accordingly professedly delivered to the Governor, in my presence. We took an account of them, & altho’ I could obtain from the officer who delivered them no satisfaction as to the remainder, I was satisfied that they were not all there.
The Governor, afterwards, requested me to apply in his name for the remainder, if I should be confirmed in my suspicions. I since find that they were well founded, and that several boxes of public records, have been carried (by mistake it is said) to Pensacola. I have written on the subject to the Governor of Pensacola; but have not yet received his answer. I have the honour to be dear sir, with great respect, your most faithful sert
RC (DNA: RG 59, LAR, 1809–17, filed under “Toulmin”). Damaged by removal of seal. Enclosure not found.
1. In his letter to James Monroe of 5 May 1813, David Holmes suggested the appointment of an additional judge to hear “all revenue, maratime and commercial cases” in Mobile, and recommended Toulmin for the position (DNA: RG 59, LAR, 1809–17, filed under “Toulmin”).
2. Toulmin referred to the third section of “An Act for the admission of the State of Louisiana into the Union, and to extend the laws of the United States to the said state,” 8 Apr. 1812, which specified that “the residue of that portion of country which was comprehended within the territory of Orleans” but not made part of the state of Louisiana should be included in the Louisiana judicial district. Congress enacted no further legislation defining the judicial district encompassing Mobile until 3 Mar. 1817, when JM signed “An Act to establish a separate territorial government for the eastern part of the Mississippi territory,” forming the territory of Alabama and assigning three judges to preside over its general court, which would “possess … the federal jurisdiction given to the superior courts of the territories” by an act of 3 Mar. 1805 (U.S. Statutes at Large description begins The Public Statutes at Large of the United States of America … (17 vols.; Boston, 1848–73). description ends , 2:701, 703, 3:371–72).
3. “An Act to enlarge the boundaries of the Mississippi territory,” 14 May 1812, added to it “all that portion of territory lying east of Pearl river, west of the Perdido, and south of the thirty-first degree of latitude” (U.S. Statutes at Large description begins The Public Statutes at Large of the United States of America … (17 vols.; Boston, 1848–73). description ends , 2:734). Acting on orders from John Armstrong, Maj. Gen. James Wilkinson had taken possession of this territory, which included Mobile, in mid-April 1813 (Quimby, The U.S. Army in the War of 1812, 1:160–61).