out, though not furnished to Col. Forbes till the last week
in May, were made to bear date on the fifth of that month:
nor were they prepared conformably to the stipulation of the
treaty, or to the royal order of his Catholic Majesty. For
instead of directing the surrender to be made to the com-
missioners or officers of the United States, duly authorized to
receive them, the instruction to the commanders in East and
West Florida was to deliver those respective provinces to
^ Words in brackets were struck out.
1822] JOHN QUINCY ADAMS 223
Col. Forbes himself, who had from the United States no
authority to receive them. And although expressly advised
by Col. Forbes with the request that the orders of delivery
might be amended and made conformable to the treaty, and
to the royal command. Governor Maby did not so amend it,
but reduced Col. Forbes to the alternative of submitting to
further [prevaricating] ^ delays, or of departing with an im-
perfect and ambiguous order of delivery of West Florida,
authorizing its surrender to the legally constituted author-
ities of the United States (that is, as Governor Maby well
knew, to General Andrew Jackson) only, in case of any
accident happening to Col. Forbes, whom he still affected to
consider, notwithstanding his own express declaration to the
contrary, as the commissioned agent of the United States to
that effect.
The twenty boxes of documents and archives, which were
at the Havanna, as has been mentioned, had been trans-
mitted thither from Pensacola, and contained all the most
important records of property in West Florida. The posses-
sion of them was in the highest degree important to the
United States; not only as the vouchers of individual prop-
erty, but as protecting guards against the imposture of
fraudulent grants. [The longer they were withheld the
stronger continuance must be given to the suspicions which
their intention could not but occasion that it was with im-
proper views. It is known that the governors and captains
general of Cuba and of the Floridas have exercised the power
of granting lands in those provinces; and there is more than
conjecture for the belief that to the injury of withholding
those documents has been added the still more exceptionable
act of intruding among them grants made since the delivery
of the provinces to the United States, and antedated to give
^ Words in brackets were struck out.
224 THE WRITINGS OF [1822
them a semblance of validity. The delicacy due to the
character of an officer of distinguished rank would forbid
the imputation to him of motives so dishonorable, were it
possible to ascribe his conduct in this wanton violation of
the rights of the United States, of the obligations of Spain,
and of the commands of his sovereign, to more justifiable
purposes.] ^ But the same persevering system of withholding
documents which it was their duty to deliver, has marked,
I am deeply concerned to say, the conduct of both the
commanders of East and West Florida, who were charged
respectively to deliver those provinces to the United States.
It is to this cause, and to this alone, as appears from a re-
view of all the transactions of which you have complained,
that must be traced the origin of all those severe measures
which General Jackson himself was the first, while deeming
them indispensable to the discharge of his own official duties,
to lament. Charged as he was with the trust of receiving the
provinces in behalf of the United States, of maintaining their
rights of property within them, of guarding them to the
utmost of his power from those frauds, to which there was
too much reason to apprehend they would be liable, and to
which the retention of the documents gave so great and
dangerous scope; entrusted from the necessity of the case,
during the interval of time while the general laws of the
United States remained unextended to the provinces, with
the various powers which had until that time been exercised
by the Spanish governors, and which included the adminis-
tration of justice between individuals, it was impossible
that he should not feel [with all the ardor of a soul devoted
above all other things to the fulfilment of his duties,] ^
the necessity of exercising, under circumstances thus exas-
^ What is in brackets was struck out.
^ Words in brackets were struck out.
1822] JOHN QUINCY ADAMS 225
perating and untoward, every authority committed to him
by the supreme authority of his country, to preserve in-
violate, so far as on him depended, the interest of that
country, and the sacred obHgations of individual rights. In
the proceedings connected with the delivery of the province,
he had as little reason to be satisfied with the [candor and
good faith] ^ of Col. Callava, as with that of the Captain
General. On a plea of indisposition that officer had, on the
day of the surrender, evaded the performance of a solemn
promise, which General Jackson had considered an indis-
pensable preliminary to the act: and afterwards the Colonel
positively declined its fulfilment. He had however com-
pleted the surrender of the province with which he had been
charged. He had declined producing to General Jackson any
credential as a commissioner for performing that act, but
had informed him that he should make the surrender as the
commanding officer of the province, by virtue of orders from
his superior. This service had been consummated, and
Col. Callava, whom General Jackson had formally notified
that he had closed with him his official correspondence
forever, was, bound by the special stipulation of the treaty,
to have evacuated, as one of the Spanish officers, the prov-
ince, before the 22 of August. If General Jackson had, in
courtesy to Col. Callava, considered him, notwithstanding
his own disclaimer of the character, as a commissioner for
the delivery of the province, there can be no pretence that
he was entitled to special privileges under it, after he had
avowedly performed all its duties; after he had been in-
formed by General Jackson that their official correspondence
was finally closed, and after the date when, by the public
engagements of the treaty which he was to execute, he was
bound to have departed from the province. From the time
^ For these words "conduct" was substituted.
226 THE WRITINGS OF [1822
when his functions for the surrender of the province were
discharged, he could remain in Pensacola no otherwise than
as a private unprivileged individual, amenable to the duly
constituted American authorities of the place, and subject
to the same control of General Jackson as a private citizen
of the United States would have been to that of the governor
of the Floridas before the surrender had taken place.
That this was the opinion of Col. Callava himself and of
his friends who applied to Judge Fromentin for the writ of
habeas corpus to rescue him from the arrest under which he
was placed by the order of General Jackson, is apparent from
their conduct on that occasion. It is stated by Judge
Fromentin, that before granting the supposed writ of habeas
corpus, he required that Col. Callava should enter Into a
recognizance for twenty thousand dollars, with two secu-
rities, each for the amount of ten thousand dollars; the
condition of which recognizance was that Col. Callava should
personally be and appear before the judge of the United
States for West Florida, etc., whenever required so to do;
that he should not depart from the city of Pensacola without
the leave of the said court, nor send away, remove, or other-
wise dispose of, unknown to the said court, any of the papers
in question. It was only upon the promise of his friends that
this recognizance should be executed, that Judge Fromentin
consented to issue the writ of habeas corpus; and this rec-
ognizance renounces in fact every pretension of exemption
from the judicial authority of the country, and consequently
of the diplomatic privileges of a commissioner.
It has been seen that the most important documents re-
lating to the property of West Florida had been transmitted
to the Havanna. There remained, however, a portion of
them, particularly of judicial records relating to the titles
of individual property. Some of these Col. Callava did
1822] JOHN QUINCY ADAMS 227
deliver up with the province. Others of the same description
and character indispensable for the administration of justice
in the province, and useless at the Havanna, whither it was
his intention to have transported them, were retained; not in
his possession, but in that of Don Domingo Souza, a Spanish
officer, who by the stipulation of the treaty ought also
to have departed from the province before the 22d of
August.
The day immediately preceding that date, the Alcalde of
Pensacola, at the suit of a woman in a humble walk indeed
of life, but whose rights were, in the eye of General Jackson,
equally entitled to his protection with those of the highest
rank, or the most commanding opulence, had represented to
him that a number of documents belonging to the Alcalde's
office, and relating to estates at that place^ and to suits there
instituted, were in the possession of Domingo Souza; that
the necessity for obtaining possession of those documents was
urgent; and therefore he requested the governor to authorize
some one to make a regular demand of them, and to ascertain
what they were. Governor Jackson, accordingly, forthwith
commissioned the secretary of the territory, the Alcalde of
Pensacola himself, and the clerk of the County Court of
Escambia, to proceed to the dwelling of Souza, to make
demand of all such papers or documents belonging to the
Alcalde's office as might be In his possession; and In case of
Souza's refusal to exhibit or deliver the same, immediately to
report the fact to him, the governor, in writing. These
commissioners the next day reported to the governor, that
they had examined the papers In the possession of Souza;
that they had found among them four sets of papers of the
kind which belonged to the office of the Alcalde, and among
them those In which the woman, from whom the first applica-
tion had proceeded, was Interested; that they had both
228 THE WRITINGS OF [1822
verbally and In writing demanded of him the delivery of
those documents which no private individual had a right to
keep, as they related to the rights of persons holding or
claiming property in the province; but that Souza had re-
fused to deliver them, alleging that he was but the servant of
Col. Callava, and could not deliver them without his order.
In the transactions of Souza on this occasion is manifested
the same consciousness that the claim of diplomatic privilege
set up by Col. Callava, to screen him from the operation of
the authority of Governor Jackson, was without foundation.
For although he refused to deliver up the papers conforma-
bly to the governor's command, he submitted to the exam-
ination of them by the commissioners in obedience to the
same authority; and though he declined receiving from them
the letter demanding the delivery of the papers, he told them
that to relieve himself from the responsibility of keeping
them, he should deliver them to Col. Callava himself.
They were accordingly sent to the house of Col. Callava,
and put into the possession of his steward, Fallarat. It is
clear however, that If the papers, while In Souza's possession
were privileged from delivery up at the command of Gover-
nor Jackson, they were equally privileged from examination
by the same authority; and if they were not lawfully screened
from his process in the custody of Souza, they could not be
made so by removing them to the house of Col. Callava.
The truth Is that the removal of the documents, at that time
and in such a manner, was a high and aggravated contempt
of the lawful authority of the governor. It not only claimed
for Col. Callava diplomatic Immunities, but assumed that
he was still the governor of the province, and that Souza was
amenable for his conduct only to him. Col. Callava might
on the same pretence have retained the whole body of the
Spanish officers and troops under his command at Pensacola,
1822] JOHN QUINCY ADAMS 229
and insisted upon exercising over them all his extinguished
authority as governor and commander In chief after the
2ist of August, as he could to exercise any official authority,
within the province, over Domingo Souza, or to extricate him
from the lawful jurisdiction of Governor Jackson.
It is under these circumstances [under this prevaricating
and insulting contempt of his just authority, exercised In the
pursuit at once of humanity, beneficence, and justice,] ^
that the subsequent measures of Governor Jackson are to be
considered. He immediately issued an authority to Col.
Robert Butler and Col. John Miller to seize the body of
Souza, together with the papers, and to bring them before
him, that Souza might answer such Interrogatories as might
be put to him; and comply with such order and decree touch-
ing the said documents and records as the rights of the in-
dividuals, secured to them by the treaty, might require, and the
justice of the case might demand. By virtue of this order
Souza was brought before Governor Jackson, and again
recognized the authority under which he was taken, by
answering the Interrogatories put to him. But he had al-
ready put the papers and documents out of his possession,
and thus, as far as was in his power, baffied the ends of
justice, and set at defiance the lawful authority of the
governor. In this transaction Col. Callava was avowedly
the principal agent; and altogether unjustifiable as it was,
whatever consequences of inconvenience to himself resulted
from it, must be imputed to him. It was an undisguised
effort to prostrate the authority of the United States in the
province; nor had Governor Jackson any other alternative
to choose, than tamely to see the sovereign power of his
country, entrusted to him, trampled under foot and exposed
to derision by a foreigner, remaining there only upon his
1 Words in brackets were struck out.
230 THE WRITINGS OF [1822
sufferance, or by the vigorous exercise of his authority to
vindicate at once the rights of the United States and the just
claims of individuals to their protection.
Governor Jackson could consider Col. Callava in no other
light than that of a private individual, entitled indeed as
the officer of a foreign power to courtesy, but not to exemp-
tion from the process of the law. Notwithstanding [the
exasperating character of] ^ his contemptuous ^ conduct,
Governor Jackson in the first Instance authorized Col. Butler
and Dr. Bronaugh, accompanied by Mr. Brackenridge, the
Alcalde, to wait upon him and his steward, and to demand
from them the specified papers, which Souza had declared
in his answer to the interrogatories to have been delivered
to the steward at Governor Callava's house. It was only in
case of the refusal to give up the papers that the order ex-
tended to the seizure of the person of Col. Callava, that he
might be made to appear before Governor Jackson, to
answer interrogatories, and to abide by and perform such
order and decree as the justice of the case might demand.
This demand was accordingly made; and although at the
first moment peremptorily refused, yet upon Col. Callava's
being informed that his refusal would be considered as setting
at defiance the authority of the governor of the Floridas,
and of the consequences to himself which might ensue upon
his persisting therein, he [declared that If he should be fur-
nished with a copy of tl;e memorandum setting forth the
documents required, he would deliver them to Col. Butler
and Dr. Bronaugh].^
[This promise was another manifestation of Col. Callava's
consciousness that he had no claim to the immunities of a
' These words were struck out.
2 The word "improper" was substituted for "contemptuous."
3 This was changed to read: "desired to be furnished with a memorandum setting
forth the documents required, which was accordingly done."
1822] JOHN QUINCY ADAMS 231
commissioner at that time. Happy would it have been for
him, and for all, if he had performed it. The copy of the
memorandum was accordingly furnished him,] ^ but when
the delivery of the papers was again demanded of him, he
repeated the refusal to deliver them, and attempted both
to avoid the personal approach of Col. Butler and Dr.
Bronaugh, and to exhibit a resistance by force of arms to the
execution of the governor's order. And it is not a little
remarkable that among the persons who appeared thus
arrayed against the authority of the United States, to ac-
complish the denial and removal of the papers, was a man,
against whom the most important of those papers were
judicial decisions of Governor Callava himself in behalf of
the orphan children, for the establishment of whose rights
they were indispensably necessary and at whose application
they had been required.
Standing thus in open defiance to the operation of the law,
Col. Callava was taken before the governor, and there re-
fusing to answer the interrogatories put to him, and asserting
the groundless pretension of answering only as a commis-
sioner, and by a protest against the acts of the governor,
he was by his order committed to prison until the documents
should be delivered to the Alcalde. On the next day a search
warrant for the' papers was issued by the governor, upon
which they were actually obtained, and delivered to the
Alcalde; whereupon Col. Callava was immediately released.
In all these proceedings you will perceive, sir, that not one
act of rigor, or even of discourtesy towards Col. Callava was
authorized by Governor Jackson, which was not Indis-
pensably necessitated for the maintenance of his authority,
and the discharge of his official duty, by the unjustifiable and
obstinate resistance of Col. Callava himself.
^ What is in brackets was struck out.
232 THE WRITINGS OF [1822
On a review of the whole transactions I am instructed by
the President of the United States to say that he considers
the documents in question as among those which by the
stipulation of the treaty ought to have been delivered up
with the province to the authorities of the United States;
that they were on the 22d of August, when in the possession
of Domingo Souza, within the jurisdiction of the United
States, and subject to the control of their governor, acting in
his judicial capacity, and liable to be compulsively produced
by his order; that the removal of them from the possession of
Souza after the governor's order to him to deliver them had
been served upon him, could not withdraw them from the
jurisdiction of Governor Jackson, and was a high and
aggravated outrage upon his lawful authority; that the
imprisonment of Col. Callava was a necessary, though by
the President deeply regretted consequence of his obstinate
performance in refusing to deliver the papers [even after
having given his promise to deliver them,] ^ and of his
unfounded claim of diplomatic immunities and irregular
exercise even of the authorities of a governor of Florida,
after the authority of Spain in the province had been publicly
and solemnly surrendered to the United States.
That the documents were of the description of those
which the treaty had stipulated should be delivered up with
the province is obvious from the consideration of their
character. They related to the property of lands in the
province. They were judicial records, directly affecting the
rights of persons remaining in the province — rights which
could not be secured without them; rights over which the
appellate tribunal of the governor of Cuba, to which Col.
Callava proposed to remove the papers, thenceforth could
have no authority or control. They had become definitively
^ These words were struck out.
1822] JOHN QUINCY ADAMS 233
subject to the jurisdiction of the United States [and it was
the duty of General Jackson, at the demand of the person
interested in them, to prevent the removal, and to exact the
delivery of them].^ The only reason assigned by Col.
Callava for the pretension to retain them is that they related
to the estate of a deceased Spanish officer, and had thereby
been of the resort of the military tribunal. But it was for
the rights of the living and not for the privileges of the dead
that the documents were to operate. The tribunal of the
captain general of Cuba could neither need the production of
the papers, nor exercise any authority over the subject-
matter to which they related. To have transferred to the
island of Cuba a question of litigated property concerning
land in Florida, would have been worse than a mockery of
justice. Indeed, Mr. Salmon in his note appears to have been
aware of the weakness of this allegation, declines the discus-
sion of the question, and in justification of the refusal of
Col. Callava to deliver up the documents, merely rests its
defence upon the plea, that the papers had not been de-
manded of him oficially. It has been seen that Col. Callava
had no official character which could then exempt him from
the compulsive process of the governor. But Mr. Salmon
alleges that the Spanish constitution, as well as that of the
United States, separates the judicial from the executive
power exercised by the governor or captain general.
Neither the constitution nor the laws of the United States,
excepting those relating to the revenue and its collection,
and to the slave-trade, had at that time been extended to
Florida. And as little had the Spanish constitution been
introduced there, in point of fact, however, it might have
been proclaimed. But be this as it may, the cause, in relation
to which the documents required in the case of Vidal had
^ These words were struck out.
234 THE WRITINGS OF [1822
been drawn up and were needed, was one of those which,
under the Spanish constitution itself, remained within the
jurisdiction of the governor. This is declared by Col.
Callava himself, in the third observation of the appendix
to his protest, transmitted with the letter of Mr. Salmon. It
is the reason assigned by him for having withheld these
documents from the Alcalde. And one of them was a judg-
ment rendered by Col. Callava himself after the time when
the proclamation of the Spanish constitution in the provinces
is alleged to have been made. The cause therefore was on
every hypothesis within the jurisdiction of the governor; the
papers were indispensable for the administration of justice in
the cause, and when once applied for by a person entitled to
the benefit of them, it was the duty, the inexorable duty of
Governor Jackson, to put forth all the authority vested in
him necessary to obtain them. Nor less imperative was his
obligation to punish, without respect of persons, that con-
tempt of his jurisdiction which was manifested in the double
attempt of Col. Callava, to defy his power and evade the
operation of its process.
With regard to the proclamation of General Jackson of
the 29th of September, commanding several Spanish officers
who, in violation of the stipulation of the treaty, had re-
mained at Pensacola after the expiration of the six months
from the day of the ratification of the treaty, to withdraw
within four days from the Floridas, which forms the subject
of complaint in your letter of the i8th of November, it might
be sufficient to say that it did no more than enjoin upon those
officers to do that which they ought before, and without any
injunction to have done. The engagement of the treaty was
that they should all have evacuated the province before the
22d of August. If they remained there after that time, it
could only be as private individuals, amenable in every
i822] JOHN QUINCY ADAMS 235
particular to the laws. Even this was merely an indulgence,
which it was within the competency of General Jackson at
any time to have withdrawn. From the extract of a letter
from him, of which I have the honor of enclosing a copy, it
will be seen that he was far from being disposed to with-
draw it, had they not, by their abuse of it and by open
outrages upon his authority, forfeited all claims to its con-
tinuance.
This extract furnishes a satisfactory answer to your
question, why, if the fulfilment of the article was the object
of the proclamation, it was confined to the eight officers by
name, and not extended to all other Spanish officers in the
Floridas.^ It was because the deportment of the others was
as became them, decent, respectful, and friendly towards the