The American Quarterly Review, No. 17, March 1831

by Various

"This return was, afterwards, amended, by an averment that, at the time of the service of the writ, Bollman was not in the possession or power of the person to whom it was addressed.

"On the following day Ogden was arrested a second time by the commanding officer of a troop of cavalry of the militia of the territory, in the service of the United States, by whom Alexander was also taken in custody; on the application of Livingston, Workman issued writs of habeas corpus for both prisoners.

"Instead of a return, Wilkinson sent a written message to Workman, begging him to accept his return to the superior court, as applicable to the two traitors, who were the subjects of his writs. On this, Livingston procured from the court, a rule that Wilkinson make a further and more explicit return to the writs, or show cause why an attachment should not issue against him.

"Workman now called again on Claiborne, and repeated his observations, and recommended, that Wilkinson should be opposed by force of arms. He stated, that the violent measures of that officer had produced great discontent, alarm, and agitation, in the public mind; and, unless such proceeding were effectually opposed, all confidence in government would be at an end. He urged Claiborne to revoke the order, by which he had placed the Orleans volunteers under Wilkinson's command, and to call out and arm the rest of the militia force, as soon as possible. He stated it as his opinion, that the army would not oppose the civil power, when constitutionally brought forth, or that, if they did, the governor might soon have men enough to render the opposition ineffectual. He added, that, from the laudable conduct of Commodore Shaw and Lieutenant Jones, respecting Ogden, he not only did not apprehend any resistance to the civil authority from the navy, but thought they might be relied on. Similar representations were made to Claiborne by Hall and Mathews; but they were unavailing.

"On the twenty-sixth, Wilkinson made a second return to the writ of habeas corpus, stating that the body of neither of the prisoners was in his possession or control. On this, Livingston moved for process of attachment.

"Workman now made an official communication to Claiborne. He began by observing, that the late extraordinary events, which had taken place within the territory, had led to a circumstance, which authorized the renewal, in a formal manner, of the request he had so frequently urged in conversation, that the executive would make use of the constitutional force placed under his command, to maintain the laws, and protect his fellow-citizens against the unexampled tyranny exercised over them.

"He added, it was notorious that the commander in chief of the military forces had, by his own authority, arrested several citizens for civil offences, and had avowed on record, that he had adopted measures to send them out of the territory, openly declaring his determination to usurp the functions of the judiciary, by making himself the only judge of the guilt of the persons he suspected, and asserting in the same manner, and as yet without contradiction, that his measures were taken, after several consultations with the governor.

"He proceeded to state, that writs of habeas corpus had been issued from the court of the county of New-Orleans: on one of them, Ogden had been brought up and discharged, but he had been, however, again arrested, by order of the general, together with an officer of the court, who had aided professionally in procuring his release. The general had, in his return to a subsequent writ, issued on his behalf, referred the court to a return made by him to a former writ of the superior court, and in the further return which he had been ordered to make, he had declared that neither of the prisoners was in his power, possession, or custody; but he had not averred what was requisite, in order to exempt him from the penalty of a contempt of court, that these persons were not in his power, possession, or custody, at the time when the writs were served, and, in consequence of the deficiency, the court had been moved for an attachment.

"The judge remarked, that although a common case would not require the step he was taking, yet, he deemed it his duty, before any decisive measure was pursued against a man, who had all the regular force, and in pursuance of the governor's public orders, a great part of that of the territory, at his disposal, to ask whether the executive had the ability to enforce the decrees of the court of the county, and if he had, whether he would deem it expedient to do it, in the present instance, or whether the allegation by which he supported these violent measures was well founded?

"Not only the conduct and power of Wilkinson, said the judge, but various other circumstances, peculiar to our present situation, the alarm excited in the public mind, the description and character of a large part of the population of the country, might render it dangerous, in the highest degree, to adopt the measure usual in ordinary cases, of calling to the aid of the sheriff, the posse comitatus, unless it were done with the assurance of being supported by the governor in an efficient manner.