The national intelligencer and Washington advertiser. (Washington City [D.C.]), 1803-03-25 00:00:00

NATIONAL INTELLIGENCER,
AND WASHINGTON ADVERTISER.
VOL. III.
WASHINGTON CITY, PRINTED BY SAMUEL HARRISON SMITH, PENNSYLVANIA AVENUE.
No. CCCLXXIX.
FIVE DOLLS. PER ANN.
FRIDAY, MARCH 25th, 1803.
PAID IN ADVANCE.
[By Authority.]
SEVENTH CONGRESS
OF THE
UNITED STATES;
At the Second Session, Begun and held at the City of Washington, in the Territory of Columbia, on Monday, the sixth of Decem- ber, one thousand eight hundred and two.
AN ACT
More effectually to provide for the organization of the militia of the district of Columbia.
BE it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That it shall and may be lawful for the President of the United States, whenever an increase of the militia of the territory, or other circumstances, shall in his opinion make it necessary, to lay off the said militia into additional companies, battalions, regiments, or legions and brigades, and shall appoint and commission, during pleasure, the proper officers for the same.
Sec. 2. And be it further enacted , That the President of the United States, shall, when he may deem it necessary, appoint the proper officers, to compose at least one troop of cavalry, one company of artillery, one company of light infantry, and one company of grenadiers or riflemen, to each legion, which officers shall proceed by voluntary enlistment, within their legion, to complete their company or companies with the least possible delay, and every person belonging to the said companies shall wear, while on duty, such caps, or hats, and uniforms, to be purchased at their own expence, as the commanding officer of the brigade, to which they belong, shall determine on, and direct; and the said companies shall perform the same routine of duty, and be subject to the same rules, regulations, penalties, and orders, as the rest of the militia; the President may, nevertheless, order them, or any of them, out on duty, as occasion, in his opinion, may require, by entire companies. That no person belonging to any battalion company, shall, under colour of enlisting into any company to be made up by voluntary enrolment, be excluded from doing duty in the infantry, and in the company in which he had been enrolled, or might be enrolled, until he shall have equipped himself for service, in such volunteer company, according to law, and shall have produced a certificate thereof, from the commanding officer of such company, to the commanding officer of the battalion company, to which he did or might properly belong; and no person having enlisted in any volunteer company, shall be permitted to withdraw himself from the same, under the penalty of ten dollars, unless in case of removal from his legionary district, to be recovered as other fines imposed by this act, upon the evidence of the commanding officer of the company, from which he shall so withdraw; which commanding officer shall return all such cases to the first battalion court of enquiry, that shall sit thereafter. And the commanders of the respective legions, shall direct by order, to the different commanders of battalions, to what battalions the different volunteer companies shall be attached, and shall parade with on battalion duty; and shall direct how they shall be polled on legionary parades, unless differently ordered by the brigadier general.
Sec. 3. And be it further enacted , That where any battalion or company districts, or alteration in districts actually laid off, may hereafter be found necessary, the commanding officers of legions shall assemble the commanding officers of battalions and companies at some fit and convenient place, and may proceed to lay off or alter any such battalion or company districts, which districts shall in all cases be designated by certain lines and bounds, and recorded by the clerks of the respective courts of enquiry.
Sec. 4. And be it further enacted , That it shall be the duty of the commanding officers of the companies to proceed forthwith to divide their companies into divisions by ballot, from one to ten, for the purpose of regular routine of duty when called into actual service, and to return a roster of each division, and its number or rotation, within fifteen days thereafter, to the commanding officer of his battalion, who shall forthwith transmit the same to the commanding officer of the regiment or legion, who shall direct the same to be recorded by the clerk of the court of enquiry. The
same regulations shall be observed by every commanding officer of a company, battalion and legion or regiment, on the subsequent enrolment of any person therein, unless such person shall produce a certificate of his having been before drawn for the above purpose, in which case he shall be enrolled accordingly; and any militia man removing out of the bounds of one company into another, shall apply to the commanding officer of the company to which he did belong, who shall give him a discharge, certifying the class wherein he was arranged, and whether he had performed his tour of duty or not, and also the time and date of such service, which certificate the said militia man shall produce to the captain or commanding officer of the company into whose bounds he shall so have removed, within ten days after his settlement, and such officer is hereby required to enrol him in the numerical class specified therein, and every militia man removing, and failing to produce such certificate, shall be arranged and enrolled in the class defined to perform the next tour of duty; and if any captain or commanding officer of a company shall refuse to grant such certificate upon application to him made for that purpose, he shall for such refusal incur a penalty of thirty dollars, to be assessed and applied as other fines imposed by this act.
Sec. 5. And be it further enacted , That each and every officer appointed, or who may hereafter be appointed, and commissioned in manner aforesaid, shall, previous to entering on the execution of his office, take the following oath, (to be administered by a justice of the peace, or the court of the county in which such officer resides) to wit: "I do swear that I will support the constitution of the United States, and faithfully discharge the duties of the militia of the district of Columbia, to the best of my skill and judgment, so help me God." If the said oath be administered by a justice of the peace, it shall be his duty to certify the same to the court of his respective county, there to be entered of record by the clerk.
Sec. 6. And be it further enacted , That the commanding officers of companies, shall enrol every able bodied white male, between the ages of eighteen and forty-five years, (except such as are exempt from military duty by the laws of the United States) residing within his district; and that in all cases of doubt, respecting the age of any person enrolled or intended to be enrolled in any company, the party questioned shall prove his age to the satisfaction of the legionary court of enquiry, within whose bounds he may reside; and it shall at all times hereafter be the duty of every such captain or commanding officer of a company, to enrol every such white male as aforesaid, and all those who shall from time to time, arrive at the age of eighteen years, or being of the age of eighteen years, and under the age of forty-five years (except as before excepted,) shall come to reside within his bounds, and shall, without delay, notify such person of the said enrolment, by a proper non-commissioned officer, by whom such notice may be proved.
Sec. 7. And be it further enacted , That the President of the United States, upon complaint for misconduct lodged with the department of war, in writings, by any one or more commissioned officers, may at his discretion cause to be arrested, any major-general or brigadier-general, and order a court martial, to be composed of all the other general officers, field officers, and captains, or so many of them (having regard to seniority) as shall amount to thirteen, in the militia of the territory; which court martial shall proceed in the same way, and under the same restrictions, as is hereafter provided for the trial of field officers. And any major-general or brigadier-general, for misconduct within their own knowledge, or upon complaint lodged in writing, by any commissioned officer, shall have power to arrest any lieutenant colonel commandant, aid-de-camp, brigade inspector, and major, or any other inferior officer; and the commanding officer of the division or brigade, shall order a court martial, for the trial of such lieutenant colonel commandant, aid-de-camp, brigade inspector, to be composed of one brigadier general, and as many lieutenant colonel commandants, majors, and captains, as shall make up a number not less than thirteen; and such courts martial shall proceed to hear and determine on all offences under this act, and may censure or cashier such officer; which sentence shall be final, when approved by the President of the United States. And any brigadier general, lieutenant colonel commandant,
or major, for misconduct in any captain or subaltern, within his own knowledge, or upon complaint lodged in writing, by any commissioned officer, may arrest such captain or subaltern; and the brigadier or commanding officer of the brigade shall order a brigade court martial, for the trial of such captain or subaltern, to be composed of one or more field officers, and a sufficient number of captains and subalterns, to make up a number not less than thirteen; and such courts martial shall proceed to hear and determine on all offences under this act, and may censure or cashier any officer so tried; which sentence shall be final, when approved by the President of the United States. And for obtaining the necessary evidences for the trials aforesaid, the President of the United States, or the presiding officer of the court martial, (as the case may be) shall issue his summonses; and every person so summoned, failing to attend and to give evidences, shall be subject to, and may be tried by a court martial; and if an officer, may at the discretion of a court martial, be cashiered or fined, not exceeding six months pay, as by law allowed, and if a non-commissioned officer or soldier, or a person not enrolled, to be reported to the court of enquiry of the regiment, or legion, to which he shall belong, or within whose bounds he shall reside, and be then subject to such fines and penalties, as they may think proper to inflict, not exceeding forty dollars.
Sec. 8. And be it further enacted , That there shall be battalion courts of enquiry, to be appointed by the commanding officer of the battalion, for the assessment of fines, incurred under this act, in such battalion, and such courts of enquiry shall be held in the months of May, August and November, in each year, at some convenient place within the county, to consist of the commanding officer of the battalion, and the commanding officers of companies, which shall belong, or to be attached to such battalion, or a majority of them, who shall take the following oath, to be administered by the presiding officer, and afterwards by another officer of the court to him: "I will truly and faithfully enquire into all delinquencies which appear on the returns, to be laid before me, and will assess the fines thereon, as shall seem just, without favor, partiality, or affection, so help me God." The presiding officer shall then lay before the said court, all the delinquencies, as directed by law, whereupon, they shall proceed to hear and determine. And there shall, moreover, be legionary courts of enquiry, for the assessment of fines incurred by the officers of the legion, and for other duties, required by this act; such courts of enquiry shall be held by the appointment of the commanding officer of the legion, in not less than ten, and not more than twenty days, after the battalion courts of enquiry, in every year, and moreover, one legionary court extraordinary, shall be, in like manner appointed, and held, during the month of March, in the present year, for the purpose of appointing the company musters of the year, and for appointing a clerk, provost martial, and collector, as hereinafter directed, and for other duties, by this act prescribed, the said legionary courts of enquiry to consist of the commanding officers of the legion, battalions, and companies, or a majority of them, who shall take an oath, in manner and form, as prescribed above; the commanding officer of the legion, shall then lay before the said court, all delinquencies, directed by law, whereupon they shall proceed to hear and determine. It shall be the duty of the presiding officer of every such court of enquiry, to return to the next legionary court of enquiry, all delinquent officers, failing to attend the preceding court, to be proceeded against according to law. The legionary court of enquiry, may for good cause shewn, remit any fine imposed by the battalion court, last preceding; the said court, may also exempt any militia man from duty, on account of bodily infirmity, and may again direct such person to be enrolled, when able to do duty.
Sec. 9. And be it further enacted , That the respective legionary courts of enquiry, shall annually appoint by ballot, a clerk and provost martial, who shall attend the courts herein before directed to be held; the clerk shall keep a fair record of the proceedings of such courts, as also of the roster returned by the several captains or commanding officers of companies, for regular routine of duty, and shall make out for the collector, a fair list of all the fines assessed by the legionary and battalion courts, and one other list which shall be retained by the clerk, on which list the collections receipts shall be taken; the said lists shall be
made out and delivered to the collector in fifteen days after each legionary court of enquiry, and shall perform all other duties required by this act, and together with the provost martial, shall receive such allowance, to be paid out of the fines, as the legionary court shall think reasonable.
Sec. 10. And be it further enacted , That all fines incurred under the act of Congress, passed at their last session, empowering the President to organize the militia of the district of Columbia, and not then returned to the officers thereby authorized to collect the same, shall be returned to the first legionary court of enquiry which shall be held in the respective counties, to be by them proceeded with as in the case of fines by this act assessed.
Sec. 11. And be it further enacted , That there shall be a muster of each troop of cavalry and company of militia, comprehending the companies made up by voluntary enrolment, once in every month, except the months of January, February, March, May, October and December, in each year, to be appointed by the respective legionary courts of enquiry, at such places as may be deemed most convenient within the county, and that the time and place for the musters aforesaid, shall be fixed by the first legionary court of enquiry, which is held next after the passing of this act, subject to such changes as future legionary courts of enquiry may think proper; and there shall be a muster for exercise and inspection of each battalion, in the month of May, in every year, to be appointed by the commanding officer of the brigade, to which such battalions respectively belong, at such places as he may think proper within the county. There shall also be a muster of each legion in the month of October, in each year, to be appointed by the commanding officer of the brigade, to which such legion belongs, at such place as he may think most convenient within the legionary district; which said company, battalion, and legionary musters, shall continue one day, and no longer; the time and place of such legionary, company and battalion musters, shall be notified to the commanding officers of legions, thirty days previous thereto; the commanding officers of legions shall give notice to the commanding officers of battalions, of such brigade, legionary companies and battalion musters, at least twenty days; the commanding officers of battalions, to the commanding officers of companies at least fifteen days; and the commanding officers of companies to their sergeants, at least ten days, and the sergeants to each person in his company, at least three days before such musters, respectively; the notices to be given by the commanding officers of brigades, legions and battalions, and companies, shall be in writing, delivered to each person to be notified, or left at his usual place of abode, and every sergeant failing to give notice, agreeably to the orders of the commanding officer of his company, to each person therein, shall forfeit and pay for each and every offence, five dollars, to be assessed and recovered as other fines imposed by this act; nevertheless, all notices publicly given by the commanding officers of companies, at their respective musters of any subsequent muster, shall be held and deemed as legal notice, as to all persons present at such musters. Every officer and soldier shall appear at his respective muster held, on the day appointed, by ten o'clock in the forenoon, armed and equipped. At every muster, the commanding officer of the company shall cause his roll to be called, and shall examine every person belonging thereto, and note down all delinquencies accruing therein, and shall personally inspect the arms, ammunition, and accoutrements, of all under his command, and make accurate return of the whole thereof, to the commanding officer of his battalion, in five days thereafter; and moreover it shall be the duty of the commanding officers of companies, to have their companies respectively prepared, at the battalion musters, for inspection, by means of returns, the forms of which, to be furnished them by the brigade inspector, through the commanding officers of the legion and battalion, to which they respectively belong, which returns shall be filed, ready to be delivered to the inspector, as he shall commence the inspection, of each company. And the commanding officers of legions and battalions, shall at their respective legionary and battalion musters, (as the case may be) take notice of all delinquent officers, and shall lay the same, together with returns of delinquencies, from the commanding officers of companies, before the courts of enquiry, appointed under this act to
take cognizance of, and determine on them; and to each of the said returns, shall be annexed the following certificate, to wit: "I do certify, that the returns hereunto annexed, contain all the delinquencies which have occurred since my last return, having duly examined the same."
Sec. 12. And be it further enacted , That every commanding officer of a company shall, within five days after every battalion and legionary muster, make up and report to the commanding officer of his battalion, a return of his company, in such manner and form as shall be furnished by the adjutant from time to time; it shall be the duty of the commanding officers of battalions to make like returns to the commanding officers of legions, within five days thereafter, who shall cause the adjutant of his legion to make legionary returns to the brigade inspector, within ten days thereafter.
Sec. 13. And be it further enacted , That each captain or commanding officer of a company, shall appoint to his company, four sergeants, four corporals, a drummer, and fifer, to be approved of by the commanding officer of his battalion; the appointment of such non-commissioned officers to be evidenced by warrant under the hand of the commanding officer of the battalion; and if any person so appointed and approved of, and having accepted, shall refuse or neglect to take upon him the duties of his appointment, or shall neglect or refuse to obey the orders of his superior officer, he shall for each offence forfeit and pay a sum, at the discretion of the court of enquiry, not exceeding ten dollars, to be assessed and applied as other fines imposed by this act, and the commanding officers of battalions shall have power to reduce to the ranks any non-commissioned officer, whom on complaint made, and due notice given, he shall find guilty of misconduct, or neglect of duty.
Sec. 14. And be it further enacted , That the commissioned officers of the several legions, shall meet once in every year, within their respective legionary districts, for the purpose of being trained and instructed by the brigade inspector; the days and places, of meeting to be fixed on by the commanding officer of the brigade to which the legions belong, the officers, thus assembled, shall each continue three days, and no longer; every time they are so called out, the eldest officer present shall call the roll on each day, and report the delinquencies to the succeeding legionary court of enquiry, and every officer failing to attend such meeting, on being summoned, not having a reasonable excuse, to be adjudged of by the court of enquiry, shall forfeit and pay, for each day he shall fail so to attend, ten dollars, to be appropriated as other fines are by this act.
Sec. 15. And be it further enacted , That any officer who shall be guilty of disobedience, or other misbehaviour, when on duty, or shall at any time be guilty of any conduct, unbecoming the character of an officer, shall be put under arrest by his commanding officer, and tried as by this act is directed.
Sec. 16. And be it further enacted , That if any non-commissioned officer or soldier, shall behave himself disobediently, or mutinously, when on duty, or before any court or board, directed by this act to be held, or shall leave the ranks without permission of his officer, on any occasion of parading the company to which he belongs, or appear drunk, or use any reproachful or abusive language to his officers, or any of them, or shall quarrel himself, or promote any quarrel among his fellow soldiers, the court or board may confine him for the day, or he shall be dishonored and put under guard, by order of the commanding officer present, until the company is dismissed, as the case may be. And he shall moreover, be fined at the discretion of the court of enquiry, in any sum not exceeding ten dollars, nor less than one dollar, to be appropriated as other fines imposed by this act.
Sec. 17. And be it further enacted , That if any bystander shall interrupt, molest, or insult any officer or soldier, while on duty at any muster, or shall be guilty of like conduct before any court or board, the commanding officer, or such court or board, may cause him to be confined for the day. And that the commanding officer of each brigade, legion, battalion, or company, shall have power to fix certain limits to their respective parades, within which no spectator or bystander, shall enter, without permission from the commanding officer, and if any person shall intrude or act
(Concluded on last page.)

BY the constitution of the United States, the President is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience.
In such cases, their acts are his acts; and whatever opinion may be entertained of the manner in which executive discretion may be used; still there exists, and can exist no power to control that discretion. The subjects are political.
But when the legislature proceeds to impose on that officer other duties; when he is directed peremptorily to perform certain acts; when the rights of individuals are dependent on the performance of those acts;
The conclusion from this reasoning is, that where the heads of departments are the political, or confidential agents of the executive, merely to execute the will of the president, or rather to act in cases in which the executive possesses a constitutional or legal discretion, nothing can be more perfectly clear than that their acts are only politically examinable.
If this be the rule, let us enquire how it applies to the case under the consideration of the court.
The power of nominating to the Senate, and the power of appointing the person nominated, are political powers, to be exercised by the president according to his own discretion.
The question whether a right has vested or not, is in its nature, judicial, and must be tried by the judicial authority.
So, if he conceives that, by virtue of his appointment, he has a legal right, either to the commission which has been made out for him, or to a copy of that commission;
That question has been discussed, and the opinion is, that the latest point of time which can be taken as that at which the appointment was complete, and evidenced, was when after the signature of the president, the seal of the United States was affixed to the commission.
It is then the opinion of the court. 1st. That by signing the commission of Mr. Marbury, the president of the United States appointed him a justice of peace, for the county of Washington in the District of Columbia; and that the seal of the United States, affixed thereto by the Secretary of State, is conclusive testimony of the verity of the signature, and of the completion of the appointment; and that the appointment
conferred on him a legal right to the office for the space of five years.
2dly. That, having this legal title to the office he has a consequent right to the commission; a refusal to deliver which, is a plain violation of that right, for which the laws of his country afford him a remedy.
It remains to be enquired whether, 3dly. He is entitled to the remedy for which he applies. This depends on 1st. The nature of the writ applied for, and 2dly. The powers of this court.
1st. The nature of the writ.
Blackstone in the 3d volume of his commentaries, page 110, defines a Mandamus to be, 'a command issuing in the king's name, from the court of king's bench, and directed to any person, corporation, or inferior court of judicature within the king's dominions, requiring them to do some particular thing therein, in the exercise of that office and duty, and which the court or king's bench has previously determined, or at least is poised to be consequent to right and justice.'
Lord Mansfield, in 3d Burrows 1266, in the case of the King's B. ker. et al: states with much precision and explicitness the cases in which this writ may be used.
'Whenever,' says that very able judge, 'there is a right to execute an office, perform a service, or exercise a franchise (more especially if it be in a matter of public concern, or attended with profit) and a person is kept out of possession, or dispossessed of such right, and has no other specific legal remedy, this court ought to assist by Mandamus, upon reasons of justice, as the writ expresses, and upon reasons of public policy.'
In addition to the authorities now particularly cited, many others were relied on at the bar, which show how far the practice has conformed to the general doctrines that have been just quoted.
This writ, if awarded, would be directed to an officer of government, and its mandate to him would be, to use the words of Blackstone, 'to do a particular thing therein specified, which appears to his office and duty, and which the court has previously determined, or at least supposes, to be consequent to right and justice.'
Or, in the words of Lord Mansfield, the applicant, in this case, has a right to execute an office of public concern, and is kept out of possession of that right.
These circumstances certainly concur in this case. Still, to render the Mandamus a proper remedy, the officer to whom it is to be directed, must be one to whom, on legal principles, such writ may be directed; and the person applying for it must be without any other specific and legal remedy.
1st. With respect to the officer to whom it would be directed. The intimate political relation, subsisting between the president of the United States and the heads of departments, necessarily renders any legal investigation of the acts of one of these high officers peculiarly irksome, as well as delicate; and excites some hesitation with respect to the propriety of entering into such investigation.
It is scarcely necessary for the court to disclaim all pretensions to such a jurisdiction. An extravagance, so absurd and excessive, could not have been entertained for a moment.
But, if this be not such a question; if so far from being an intrusion into the secrets of the cabinet, it respects a paper, which according to law is upon record, and to a copy of which, the law gives a right, on the payment of ten cents
—if it be no intermeddling with a subject, over which the executive can be considered as having exercised any control—what is there in the exalted station of the officer, which, shall bar a citizen from asserting, in a court of justice, his legal rights, or shall forbid a court to listen to the claim; or to issue a mandamus, directing the performance of a duty, not depending on executive discretion, but on particular acts of congress and the general principles of law?
If one of the heads of departments commits any illegal act, under color of his office, by which an individual suf-
tains an injury, it cannot be pretended that his office also exempts him from being sued in the ordinary mode of proceeding, and being compelled to obey the judgment of the law.
It is not by the office of the person to whom the writ is directed, but the nature of the thing to be done that the propriety or impropriety of issuing a mandamus, is to be determined.
But where he is directed by law to do a certain act affecting the absolute rights of individuals, in the performance of which he is not placed under the particular direction of the President, and the performance of which, the President cannot lawfully forbid, and therefore is never presumed to have forbidden; as for example, to record a commission, or a patent for land, which has received all the legal solemnities; or to give a copy of such record; in such cases, it is not perceived on what ground the courts of the country are further excluded from the duty of giving judgment, that right be done to an injured individual, than if the same services were to be performed by a person not the head of a department.
This opinion seems not now, for the first time, to be taken up in this country.
It must be well recollected that in 1793, an act passed, directing the secretary at war to place on the pension list such disabled officers and soldiers as should be reported to him, by the circuit courts, which act, so far as the duty was imposed on the courts, was deemed unconstitutional; but some of the judges thinking that the law might be executed by them in the character of commissioners, proceeded to act and to report in that character.
This law being deemed unconstitutional at the circuit, was repealed, and a different system was established; but the question whether those persons, who had been reported by the judges, as commissioners, were entitled, in consequence of that report, to be placed on the pension list, was a legal question, properly determinable in the courts, although the act of placing such persons on the list was to be performed by the head of a department.
That this question might be properly settled, Congress passed an act in Feb. 1793, making it the duty of the secretary of war, in conjunction with the attorney general, to take such measures, as might be necessary to obtain an adjudication of the supreme court of the United States on the validity of any such rights, claimed under the act aforesaid.
After the passage of this act, a mandamus was moved for, to be directed to the secretary at war, commanding him to place on the pension list, a person stating himself to be on the report of the judges.
There is, therefore, much reason to believe, that this mode of trying the legal right of the complainant, was deemed by the head of a department, and by the highest law officer of the United States, the most proper which could be selected for the purpose.
When the subject was brought before the court the decision was, not that a mandamus would not lie to the head of a department, directing him to perform an act enjoined by law in the performance of which an individual had a vested interest; but that a mandamus ought not to issue in that case, the decision necessarily to be made if the report of the commissioners did not confer on the applicant a legal right.
The judgment in that case, is understood to have decided the merits of all claims of that description; and the persons on the report of the commissioners found it necessary to pursue the mode prescribed by the law subsequent to that which had been deemed unconstitutional, in order to place themselves on the pension list.
The doctrine, therefore, now advanced is by no means a novel one.
It is true that the mandamus, now moved for, is not for the performance of an act expressly enjoined by statute.
It is to deliver a commission; on which subject the acts of Congress are silent. This difference is not considered as affecting the case. It has already been stated that the applicant has to that commission, a vested, legal right, of which the executive cannot deprive him.
It was at first doubted whether the action of the court was not a specific legal remedy for the commission which has been withheld from Mr. Marbury; in which case a mandamus would be improper.
This then, in a plain case for a mandamus, either to deliver the commission, or a copy of it from the record; and it only remains to be enquired,
Whether it can issue from this court?
The act to establish the judicial courts of the United States authorizes the supreme court "to issue writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the U. States."
The secretary of state, being a person holding an office under the authority of the United States, is precisely within the letter of the description; and if this court is not authorized to issue a writ of mandamus to such an officer, it must be, because the law is unconstitutional, and therefore absolutely incapable of conferring the authority, and assigning the duties which its words purport to confer and assign.
The constitution vests the whole judicial power of the United States in one supreme court, and in such inferior courts as Congress may, from time to time, ordain and establish.
In the distribution of this power it is declared, that 'The supreme court shall have original jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party.
It has been insisted, at the bar, that as the original grant of jurisdiction, to the supreme and inferior courts, is general, and the clause, assigning original jurisdiction to the supreme court, contains, nonegative or restrictive words; the power remains to the legislature, to assign original jurisdiction to that court in other cases than those specified in the article which has been recited; provided those cases belong to the judicial power of the United States.
If it had been intended to leave it in the discretion of the legislature to apportion the judicial power between the supreme and inferior courts, according to the will of that body, it would certainly have been useless to have proceeded further than to have defined the judicial power, and the tribunals in which it should be vested.
The subsequent part of the section is mere surplusage, is entirely without meaning, if such is to be the construction.
It cannot be presumed that any clause in the constitution is intended to be without effect; and therefore such a construction is inadmissible, unless the words require it.
If the solicitude of the convention, respecting our peace with foreign powers, induced a provision that the supreme court should take original jurisdiction in cases which might be supposed to affect them—yet the clause would have proceeded no further than to provide for such cases, if no further restriction on the powers of Congress had been intended.
When an instrument organizing fundamentally a judicial system, divides it into one supreme, and so many inferior courts as the legislature may ordain and establish; then enumerates its powers, and proceeds so far to distribute them, as to define the jurisdiction of the supreme court by declaring the cases in which it shall take original jurisdiction, and that in others it shall take appellate jurisdiction—the plain import of the words seems to be, that in one class of cases its jurisdiction is original, and not appellate; in the other it is appellate, and not original.
To enable this court then to issue a mandamus, it must be shown to be an exercise of appellate jurisdiction, or to
be necessary to enable them to exercise appellate jurisdiction.
It has been stated at the bar that the appellate jurisdiction may be exercised in a variety of forms, and that if it be the will of the legislature that a mandamus should be used for that purpose, that will must be obeyed.
It is the essential criterion of appellate jurisdiction, that it revises and corrects the proceedings in a cause already instituted, and does not create that cause.
The authority, therefore, given to the supreme court, by the act establishing the judicial courts of the United States, to issue writs of mandamus to public officers, appears not to be warranted by the constitution—and it becomes necessary to enquire whether a jurisdiction, so conferred, can be exercised.
The question whether an act, repugnant to the constitution, can become the law of the land, is a question deeply interesting to the United States; but happily not of an intricacy proportioned to its interest.
That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness, is the basis, on which the whole American fabric has been erected.
This original and supreme will organizes the government and assigns, to different departments, their respective powers.
The government of the United States is of the latter description.
To what purpose are powers limited and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained?
Between these alternatives there is no middle ground.
If the former part of the alternative be true, then a legislative act contrary to the constitution is not law—if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power, in its own nature, illimitable.
Certainly all those who have framed written constitutions, contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void.
This theory is essentially attached to a written constitution, and is consequently to be considered, by this court, as one of the fundamental principles of our society.
If an act of the legislature repugnant to the constitution, is void, does it notwithstanding its invalidity, bind the courts, and oblige them to give it effect?
It is emphatically the province and duty of the judicial department to say what the law is.
So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding

ing the Constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules, governs the case. This is of the very essence of judicial duty.
If then the courts are to regard the constitution; and the constitution is superior to any ordinary act of the legislature—the constitution, and not such ordinary act, must govern the case to which they both apply.
Those then who controvert the principle that the constitution is to be considered in court as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution, and see only the law.
This doctrine would subvert the foundation of all written constitutions. It would declare that an act, when according to the principles and theory of our government, is entirely void; is yet, in practice completely obligatory. It would declare that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring, that those limits may be passed at pleasure.
That it thus reduces to nothing what we have deemed the greatest improvement on political institutions—a written constitution—would of itself be sufficient, in America, where written constitutions have been viewed with much reverence, for rejecting the constitution. But the peculiar expressions of the constitution of the United States furnish additional arguments in favor of its rejection.
The judicial power of the United States is extended to all cases arising under the constitution.
Could it be the intention of those who gave this power, to say that, in using it, the constitution should not be looked into? That a case arising under the constitution should be decided without examining the instrument under which it arises?
This is too extravagant to be maintained.
In some cases then the constitution must be looked into by the judges. And if they can open it at all, what part of it are they forbidden to read, or to obey?
There are many other parts of the constitution which serve to illustrate this subject.
It is declared that 'no tax or duty shall be laid on articles exported from any state.' Suppose a duty on the export of Cotton, of Tobacco, or of Flour; and a suit instituted to recover it. Ought judgment to be rendered in such a case? Ought the Judges to close their eyes on the constitution, and only see the law?
The constitution declares, that 'no bill of attainder or ex post facto law shall be passed.'
If however such a bill should be passed and a person should be prosecuted under it; must the court condemn to death those victims whom the constitution endeavours to preserve.
'No person, lays the constitution, shall be convicted of treason, unless on the testimony of two witnesses to the same overt act, or on confession in open court.'
Here the language of the constitution is addressed specially to the courts. It prescribes, directly for them, a rule of evidence not to be departed from. If the legislature should change that rule, and declare one witness, or a confession out of court, sufficient for conviction, must the constitutional principle yield to the legislative act?
From these, and many other selections which might be made, it is apparent, that the framers of the constitution contemplated that instrument, as a rule for the government of courts, as well as of the legislature.
Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies, in an especial manner, to their conduct in their official character. How immoral to impose it on them, if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support!
The oath of office, too, imposed by the legislature is completely demonstrative of the legislative opinion on this subject.
It is in these words, 'I do solemnly swear that I will administer justice, without respect to persons, and do equal right to the poor and to the rich; and that I will faithfully and impartially discharge all the duties incumbent on me as according to the best of my abilities and understanding agreeably to the constitution, and laws of the United States.'
Why does a judge swear to discharge his duties agreeably to the constitution of the United States, if that constitution forms no rule for his government? If it is closed upon him and cannot be inspected by him?
If such be the real state of things, this is worse than solemn mockery. To prescribe, or to take, this oath, becomes equally a crime.
It is also not entirely unworthy of observation, that in declaring what shall
be the supreme law of the land, the constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the constitution, have that rank.
Thus the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument.
The rule must be discharged.
WASHINGTON CITY.
FRIDAY, March 25th.
The WESTERN People the true friends of order, liberty and government.
It is with increasing gratification that we remark the successive demonstrations, recently furnished, of the true spirit that animates our friends on the Western waters. We never did believe that they had an interest distinct from that of the Atlantic states; we never did believe that they ever mistakenly imagined such an interest; still less did we believe the calumnies of their enemies and of our common enemies, that in the pursuit of such an imaginary interest they would seize the first pretext for violating the impartial laws that unite us, and for dismembering an empire, on whose undivided energies our great and competent security now does and must long continue to depend. Realising the truth of this sentiment in its fullest application to ourselves, we have offered every pledge that patriotism and intelligence could give, that it was as zealously felt by our western brethren.
The late reprehensible efforts, so unblushingly made to disturb the common harmony, to lessen if not entirely destroy the confidence of our citizens on the other, in those on this side of the mountains, and to shake their reliance on the measures of the general government, has confirmed this conviction, and has exhibited new and unequivocal proofs of the patriotism of our western friends; and that, though separated from us by a considerable tract of country, they are not, from that circumstance less in principle or feeling Americans.
The following paragraphs are taken from the Guardian of Freedom, published at Frankfort, and relate to an inflammatory address recommending a dismemberment of Kentucky from the union. Of the energy of the measures pursued, and of the indignant temper of the country, we need say nothing. The statement is clear, explicit and unequivocal. Its language to the Atlantic states is, we are the unalterable friends of the union, and we are the friends of a government which is also our unalterable friend.
"The publication of the piece signed A Western American , in the last Guardian, has created unusual sensations at this place. Shortly after issuing the paper, the Editor was called on by a number of his fellow-citizens, for the author's name—but not feeling at liberty to give the author on such an application, the name was withheld—Saturday last the attorney general called on the Editor for the author, declaring it to be his intention to indict him for an offence against the peace and dignity of the commonwealth. This call, the Editor could not, consistent with the duty he owes his country, disobey—he therefore gave into the hands of the attorney, the author's letter to him on the subject of the publication, on which he was requested to make a memorandum of the call, and endorse his name, as he would be called on as a witness.
"The Editor has no apprehension that his publication of this piece, will be considered by any one who knows him, as indicative of his own political opinions, for to all his acquaintances they are known to be inflexibly attached to the general government—It is therefore but justice to himself to make this known to as many others as are pleased to enquire concerning him. Whist the Editor of the Guardian has ever denied servility and libelous matter a place in his paper, he feels bound to admit all dissection of political opinions, unless particular public circumstances should forbid it. To let himself up as the sole judge of political orthodoxy, appears to him very presumptuous, as it is a regulation which would sometime retrench the blessings of the press, as the Editor's judgment should be erroneous.
"The Editor returns his thanks to his fellow-citizens for their friendly disposition towards him, from the appearance of the publication, until the author was known—it is to his mind, a strong evidence of their conviction that the piece contained sentiments at variance with his own. The attorney is also entitled to his acknowledgements for his politeness in the discharge of his duty.
"In the evening, after the Editor had given the author's letter into the hands of the attorney, an effigy was made and carried through the principal
streets of the town, whilst the citizens treated it with the greatest indignity, as expressive of their detestation of the principles the publication contained—after which it was consumed by fire, amidst the loudest acclamations of their desire for the perpetuity of the union, confidence in our government, &c. &c."
The following is from the Frankfort Palladium.
A correspondent has, in our first page, noticed a publication which appeared last week in the Guardian of Freedom. A more inflammatory and ill-timed essay we have seldom seen—and we are happy to add, the reception it met with, was commensurate with its merits. One general burst of indignation against the author and the principles he avowed, was heard from every mouth. The general scope of the piece went to recommend to the inhabitants residing on the Western waters, an immediate secession from the Union. It represented our Eastern brethren as our bitterest enemies—jealous of our rising importance—and studious to deceive us, while they monopolized the whole of our commerce. France was called our friend—and should we raise the standard of revolt, to her we were directed to apply for assistance.
Sentiments more abhorrent to the feelings of the people of Kentucky, could not have been penned. They are warmly attached to the Union, and in general highly approve of the principles which pervade the present administration of its government.
We understand that the attorney general, on Saturday last, officially demanded and obtained the name of the author, for the purpose of instituting a prosecution in behalf of the commonwealth.—It is said to be a Mr. Francis Flournoy, of Pendleton county.
Another Federal Misrepresentation cut up by the roots.
From the Virginia Argus.
The following letter from the Honorable Thomas T. Davis to the Editor, will prove, what we at first suspected, that the account of 15,000 Kentuckians being under arms ready to proceed against the Spaniards &c. &c. is entirely unfounded. It was no doubt fabricated by some friend to order and good government.
Mr. Samuel Pleasants,
IN your paper of this morning I find it stated that "Kentucky is in arms," and that this news was brought to Washington by an express who was the bearer of a memorial to me from the people of Kentucky, &c. So far as this report relates to me, 'tis totally without foundation—no express or memorial came to me—and I am totally at a loss to conjecture how a report so totally void of foundation, should have found its way into the newspapers. Yesterday at Hanover Court-house, I saw a citizen of Kentucky, who told me that three men immediately from Kentucky had just passed by that place, that he having heard of the report above alluded to, made strict enquiry as to the fact, and was told that the report was without foundation.
I am Sir, respectfully, Your obedient servant, THOMAS T. DAVIS. Swan Tavern, City of Richmond. 16th March, 1803.
New York, March 21.
Captain JOHNSON, of the brig Palfrey from Cape Francois, informs us that a 74 gun ship, a corvette, and 4 transports, having 2000 troops on board, arrived there on the 2d instant from Toulon, making the French troops at the Cape 5600 effective men; and that a considerable reinforcement was expected daily. Capt. Johnson confirms the accounts, viz Baltimore, of the attack on the Cape by the negroes. General Rochambeau arrived at the Cape from Port Republic on the 2d.
Intelligence was received on the 6th March from Aux-Gayes, stating that the mutineers there, in the pay of the French had revolted, and nearly exterminated the whites. The general in chief immediately dispatched a body of troops to restore tranquility.
At Tortuda the negroes had succeeded in destroying the hospital, massacring all the sick, and nearly the whole of the white inhabitants. A 74 gun ship had been ordered from the Cape to reinforce the French troops already on that island.
Bushels at Cape Francois very dull. Colonial produce scarce and high. The markets glutted with American produce. Flour 6 dollars per barrel, beef 15, pork 18. Vegetables high, and in demand.
The Palfrey failed in company with a national brig, having on board a French governor (or prefect) for New Orleans.
Extract of a letter from a merchant at Cape-Francois, to his correspondent in this city, dated March 2d, received via Baltimore.
"On the 19th ult. the Blacks proceeded in four columns to attack the Cape. One of them took possession of the Hospital and Port Belair; the second of the Gate Boutelle; and the
third and fourth, who came down by the Plantation D'Etang and the Port B. ugois, were to assist Haut-de-Cap, and the posts that lay on the north side of the city: but acting without concert, the two first columns (which were waiting for the other to commence the attack) were defeated before the arrival of the third and fourth. Having no way to retreat, because Haut-de-Cap was untouched, they were ultimately obliged to fly by the top of the Mountains, whither they were closely pursued as far as the rocks and precipices permitted our troops to go. Their loss on this occasion cannot be estimated, because the greater part have carried their death-blow along with them. One hundred and fifty dead bodies have been found on the field of action, and on the paths through which the fugitives retreated. Amongst the prisoners (who were immediately shot) were five officers, four of whom were hanged in the market-place; the fifth has not yet undergone the fate of his companions, because he expressed a willingness to make some important discoveries respecting a number of the friends of the blacks in the city, who are daily arrested, and dealt with according to their deserts.
"Tortuda has experienced another crisis, occasioned by a gang of invaders, who succeeded in breaking the channel. They were joined by the negroes of Labatut and some others, and have done much mischief. Troops have been sent against them. Mr. Labatut and his wife are said to be detained in the woods by these brigands.
"Several parleys have been held lately between the government and a number of negroes in the country, who protest against the conduct of Christophe, Clerveaux, &c. live peaceably on their respective plantations, and solicit the protection of the whites. Without relying on these professions, the General takes the advantage of them by gaining time until he is able to take the field, which will shortly be the case, as the reinforcements from France begin to arrive. We expect soon to see better times."
Baltimore, March 22.
A very important, and no less singular than important occurrence took place at the cape of Good-Hope, previous to the sailing of the ship Portsmouth, which arrived on the 15th instant, and it is not a little surprising that it should not have transpired sooner to the public. We have it upon the very best authority, that although the Dutch governor was by capitulation to have had possession of the Cape on the 1st of January, the British troops had, notwithstanding, possession of the place at the time of the Portsmouth's sailing.
The circumstances were these: The commander of the British forces had proposed that the Dutch governor should take possession of the forts and works on the 20th December. As, however, the first day of the New-Year was at hand, the latter preferred postponing it to that day, expecting probably, that the festivity of the moment would give an éclat to his new government among the people. In the mean time the British troops to the number of 1,600 had all embarked, except one company left on shore as a rear guard and to take care of the works till the Dutch, who were then landing to the number of 2,500, should march into them. As fate would have it, however, on the night of the 31st December, a vessel arrived with dispatches from England, enjoining it upon general Dundas, if he had not surrendered the place to the Dutch, to retain possession of it. A great bustle immediately took place in the fleet, and early on the morning of the 1st January, the day when the Dutch troops were to have entered the works, the British forces were seen debarking with all the expedition in their power, and marching with fixed bayonets back again to the fortifications, of which they took possession, and kept out the Dutch. This manoeuvre occasioned, it may be supposed, no small consternation to the Dutch governor, whose imprudent procrastination may be attended with the final loss of the colony to his country.
The stipulations which took place in consequence, between general Dundas and governor Dekker, we shall publish to-morrow.
How far this occurrence may have connection with the recent declaration of war by Algiers against France, and be the precursor of a renewal of hostilities in Europe, is left to the speculation of our readers.
TO COUNTRY SUBSCRIBERS.
Subscribers, who have not complied with the fundamental term of this paper the payment of their annual subscription in advance, are respectfully informed that unless this shall be soon done, the Editor will be under the disagreeable necessity of ceasing to transmit their papers.
Thirty Dollars Reward.
Stolen from the subscriber in the City of Washington, on Monday evening last, the 20th instant, a hand some well made dark forest mare, (saddled and bridled) about fourteen and a half hands high, aged about six years; a small white spot behind the right ear under the bridle, some white on one of the hind legs. A rider, with evident symptoms of guile, passed the George-town ferry, rode off post-haste, and was traced near Colchester on the same evening. The above reward will be given on discovery of the mare and thief, or 15 dollars for the mare.
Ebenezer Nesmith, Near the Navy Yard, City of Washington. 23d March 1803. 3t
Charlotte-Hall School.
NOTICE IS HEREBY GIVEN, That the Trustees will sit up on the 2d Monday in May, to the lowest bidder, the building of a house at Charlotte-Hall for the residence of the Principal; agreeably to a plan which will then be submitted. An advance of one half the cost will be made to the undertaker upon giving bond and security to be approved of by the Board of Trustees.
Signed by order, NEALE H. SHAW, Regr. March 19, 1803. cp 2m 10m.
NOTICE.
This is to give notice, that the subscriber of Washington City hath obtained from the Orphan's Court of Washington county, in the district of Columbia, letters of administration on the personal estate of JAMES DUNN, late of the Congress (estate in the said county, deceased); all persons having claim against the said deceased, are hereby warned to exhibit the same, with the vouchers thereof, to the subscriber at or before the 25th day of September next, they may otherwise by law be excluded from all benefits of the said estate. Given under my hand this 24th day of March, in the year 1803.
JAMES ANDERSON, Administrator. March 23d, 1803. 3w3w
By virtue of a decree of
the high court of chancery of the state of Maryland, will be sold to the highest bidder, at Joseph Semmes's Tavern, George-town, on Saturday 16th April, in, at 11 o'clock, A.M. all the right, title and interest of the late Thomas Clark of George-town, deceased, in and to the following property, to wit:—Lot No. 13, in Peter, Betty, Threlkeld and Deakins addition to George-Town, with the improvements thereon, consisting of a commodious brick dwelling house, a shed and smoke-house, and other useful out houses.
Lot No. 4, in same addition, on which is a good three story brick warehouse, and to which lot is a good wharf.
Lots 8 9 10 11 12 13 14 15 and 16, in square 8, in the city of Washington—Lot No. 173 174 and 175, in Thomas Beale of Georges first addition to George-town—Also, sundry lots in said last mentioned addition, purchased by said Clark, of John M. Gantt, Esquire. The purchaser or purchasers to give bond with satisfactory security, for the payment of the purchase money, with interest thereon, from the day of sale, payable in fifteen months from the said time of sale—upon full payment whereof, deeds will be made to the purchasers.
The creditors of the said Thomas Clark are hereby notified to bring into the chancery court of Maryland, their claims against the said Thomas Clark, with the vouchers thereof, within three months from the said time of sale.
JAMES S. MORSELL, Trustee. March 24th, 1803. 3w1w
TO BE LET.
A TWO STORY DWELLING HOUSE, convenient for one or two families, lately occupied by Messrs. Howard and Varden, situate on N and Third streets, near Barry's wharf. The premises contain a most excellent spot for a garden (40 feet front and 100 feet deep) which has been improved to advantage for a number of years. There is most excellent water directly opposite said house. For terms, apply to Capt. Josiah Wheat, near the premises or to
Ephraim Mills, Duke Street, Alexandria. March 23. 12x2
FOR SALE,
SEVERAL pieces of ELGANT HISTORICAL &c. TAPESTRY, from designs of Le Brun, one of the first painters that ever lived in Europe, intended to ornament either a Museum, a Columbia Gallery of Arts, or a school of drawing, and painting, for the instruction of young and ingenuous artists, or mechanics, and to gratify the curiosity of all persons of taste, residents, or travelling in the United States.
March 24, 1803. N. B. Apply to the owner at Stelle's Hotel, Washington City.
In the case of RICHARD WILLSON
AN INSOLVENT DEBTOR.
IT is ordered that three months from and after the first day of April next, be limited and appointed for the creditors to bring in and exhibit their claims to the Trustee, and that a copy of this order be published once in each week, until the first day of July next in the National Intelligencer, and the Washington Federalist.
Copy Test. URIAH FORREST, Clerk Of the Circuit Court of the District of Columbia, for the County of Washington.
ALL persons indebted to the above insolvent debtor, are notified to pay the same, and all creditors thereof, will exhibit their claims to
THOMAS CARPENTER, Trustee to the estate of Richard Willson. March 21, 1803.

(Continued from first page.) fend, he shall be liable to be confined during the day, in such manner as the commanding officer shall direct. Sec. 18. And be it further enacted , That all commissioned officers are required to appear in full uniform when on duty, and on failure, shall forfeit and pay five dollars for each offence, to be assessed and appropriated as other fines imposed by this act. Sec. 19. And be it further enacted , That a brigade inspector, to act as brigade major, and be commissioned with the rank of major, shall be appointed by the President of the United States, and the lieutenant colonel commandants are hereby authorized to appoint a legionary staff, to consist of one adjutant, one quarter master, one pay master, to be taken from the officers of the line, and one surgeon, one surgeon's mate, and also, one sergeant major, one quarter master sergeant, one drum major, and one file sergeant, which appointments shall be evidenced by warrants under the hand of the lieutenant colonel commandant, and it shall be the duty of the brigade inspector, to attend the brigadier general when required, to receive and execute all orders necessary to carry into effect the provisions of this law, and to attend the annual training of the officers, and at the several legionary and battalion musters, and he shall inspect the several battalions belonging to his brigade, at their respective musters, and he shall take an accurate account, from personal inspection, of the quality of the arms and accoutrements, and whether the same are fit or unfit for service, and shall ascertain with precision the bores of muskets; and shall make annual returns in the month of June of each year, of the state of the militia of the brigade to which he belongs, to the commanding officer of the brigade, to be by him reported to the President of the United States, and upon refusal or neglect, he shall be subject to a fine of thirty dollars, unless he can make a reasonable excuse to the, commanding officer of the brigade. And it shall be the duty of the adjutant to attend and execute the orders of the commanding officer of his legion, necessary to carry into effect the provisions of this law, and to attend the legionary and battalion musters, as also the meeting of the officers within his legion, and upon refusal or neglect, he shall be subject to a fine not exceeding fifteen dollars, nor less than five dollars, at the discretion of the legionary court of enquiry, unless he can make a reasonable excuse to the commanding officer of his legion; and it shall further be the duty of the adjutant to assist generally in the necessary training of the militia, and he, together with the brigade inspector, shall be allowed such compensation as the legionary courts of enquiry may from time to time think reasonable, to be paid out of the funds arising from fines. Sec. 20. And be it further enacted , That the following forfeitures and penalties shall be incurred for delinquencies, viz. By a lieutenant colonel commandant or commanding officer of a legion, for failing to take an oath to summon any court or board, or failing to give notice of a brigade, legionary or battalion muster; to report delinquencies, to make returns of his legion, shall for each and every such offence or neglect, forfeit and pay a sum not exceeding seventy dollars; for failing to call into service any militia legally called for, three hundred dollars. By a major, for failing to take an oath, to attend any court or board, to give notice of any brigade, legionary, or battalion muster, to examine his battalion, to report delinquencies, or to make any return, he shall forfeit and pay for each offence and neglect, a sum not exceeding thirty dollars; for failing to call forth his battalion with due dispatch, any detachment of men or officers as shall be required from time to time by the commanding officer of his legion, or any call from the President of the United States, one hundred and fifty dollars. By a captain, for failing to take an oath, to attend any court, to enrol his men, to give notice of a brigade, legionary or battalion muster, to attend any muster armed, to cause his roll to be called, examine his company and report delinquencies, or to allot his company into divisions, from one to ten, for a regular routine of duty, or to make any return as directed by this act, he shall forfeit and pay for each and every offence and neglect, a sum not exceeding twenty dollars; failing to call forth such officers and men, as shall from time to time be legally called from his company, upon any call from the President of the United States, or failing on such occasions to repair to the place of rendezvous, he shall forfeit and pay twenty-five dollars. By a subaltern officer, for failing to take an oath, to attend any court or muster, armed as directed, for each and every such offence he shall forfeit and pay a sum, at the discretion of the court of enquiry, not exceeding ten dollars; failing to repair to the place of rendezvous, armed as required, when ordered upon any call from the President, he shall forfeit and pay fifty dollars, to be adjudged and determined by the respective legionary courts of enquiry. By a non-commissioned officer or soldier,
for failing to repair to his rendezvous when ordered upon any call from the President, he shall forfeit and pay a sum not exceeding fifty dollars, to be adjudged and determined by the respective battalion courts of enquiry, and moreover shall be enrolled in the class destined to perform the next tour of duty: all officers failing as before mentioned, shall be subject to be arrested, tried, censured, or cashiered, at the discretion of the battalion courts of enquiry. Any non-commissioned officer or soldier failing to attend at his brigade, legionary, battalion, or company muster, armed and equipped as the law directs, shall forfeit and pay a sum not less than seventy-five cents, nor more than five dollars, at the discretion of the battalion courts of enquiry. If any non-commissioned officer or private shall be returned as a delinquent in not appearing, armed and accoutred as the law directs, the court of enquiry before whom the same shall be tried, may, if it appear reasonable, remit the fine incurred by him, provided every such delinquent shall make it appear that he was unable to procure the legal equipments. Any private at or near the muster ground at any legionary, battalion, or company muster, who shall refuse or neglect to go into the ranks when required, shall forfeit and pay ten dollars. Sec. 21. And be it further enacted , That the fines and penalties incurred by infants and apprentices, for the breach or neglect of their duty, in any particular service, by law required of them, shall be paid by the parent, guardian or master. Sec. 22. And be it further enacted , That the legionary court of enquiry shall at their first meeting in each year, appoint by ballot, a collector, who shall proceed to collect all fines assessed by virtue of this act, as also all fines incurred under the act of Congress, at their last session, empowering the President to organize the militia of the district of Columbia, not previously sent out for collection, upon a list thereof, certified by the clerk of the court of enquiry, and delivered to him in sixteen days after each legionary court of enquiry, who shall give his receipt therefor, and having ordered a commission of six per centum, shall account for, and pay the residue into the hands of the paymaster, in three months thereafter, and in case of default, to be recovered against the collector, by motion, in any court of record within said district, ten days notice of such motion being given to the collector, at the first legionary or regimental court of enquiry after the time before limited, for accounting and paying to the paymaster as aforesaid, the fines collected by the collector, he shall mark return and report to said court of enquiry, of such fines as cannot be collected, by reason of the insolvency or want of effects of the delinquent or delinquents; and if the said collector shall fail to account for, and pay into the hands of the paymaster as aforesaid, in the time limited as aforesaid, all the residue of the fines by him collected as aforesaid, the whole amount of such fines, including his commission, shall be recovered against him, by motion, in any court of record within this district, ten days previous notice of such motion being given to said collector, and if such collector shall fail to make return and report as aforesaid, of such fines as he shall be unable to collect by reason of the causes aforesaid, or shall make a false return and report of the same, the whole amount of the same shall be recovered of said collector, in like manner as if he had actually collected the same. And should any person so charged with fines, fail to make payment when called on, the collector is hereby authorized to make distress and sale therefor. The collector shall, immediately after his appointment, and before he shall proceed to his collection, give bond and security for the faithful performance of his duty, in such penalty as the court of enquiry may think proper. Sec. 23. And be it further enacted , That the fines thus paid into the hands of the paymaster by virtue of this act, shall be held as a fund for defraying the salaries of the officers and other persons herein mentioned, and the maintenance and instruction, and pay of musicians, and of equipping and furnishing the militia with standards and musical instruments, and uniforms in certain cases, with every other thing necessary; to be adjudged and determined by the legionary courts of enquiry, and all accounts passed by the said court, and certified by the lieutenant colonel commandant, shall be sufficient to authorize the paymaster to pay the same; the paymaster shall keep a regular account of all monies received and disbursed by him on account of the legion, and shall once in every three months, render his accounts, and settle with the court of enquiry. The paymaster shall give bond and security, to be approved by the court of enquiry for the faithful performance of his duty, and shall be subject to the same mode of recovery for delinquency as is herein prescribed in the case of a delinquent collector, and shall be allowed a commission of two and an half per centum on the several sums by him disbursed. Sec. 24. And be it further enacted , That the President of the United States be authorized and empowered, on an in-
vasion, or insurrection, or probable prospect thereof, to call forth such a number of militia, and from such county, and in such a manner, whether by routine of duty or otherwise, as he may deem proper; and for the accommodation, equipment and support of the militia, so at any time to be called forth; the President of the United States may appoint such quarter masters, commissaries, and other staff, as to him shall seem proper, and to fix their pay and allowances, and shall also take such measures for procuring, transporting and issuing all orders which may be necessary. Orders for the militia to be called forth as aforesaid, shall be sent to the commanding officer of the district of Columbia, with a notification of the place or places of rendezvous, who shall immediately take measures for detaching the same, with the necessary number and ranks of officers, by detail and rotation of duty or otherwise, as he may be ordered. Whenever any militia shall be called forth into actual service as aforesaid, they shall be governed by the articles of war, which govern the troops of the United States. And courts martial shall be held as therein are directed, to be composed of militia officers only, for the trial of any person, in the militia, but to the cashiering of any officer, or capital punishment of any person, the approbation of the President of the United States shall be necessary; and when any militia shall be in actual service, they shall be allowed the same pay and rations as are allowed by law to the militia of the United States. If a sudden invasion shall be made into either county in this district, or in case of an insurrection in either county, the commanding officer of the militia of the district, or of such county, is hereby authorized and required to order out the whole or such part of the militia, as he may think necessary, and in such manner as he may think best, for repelling or suppressing such invasion or insurrection, and shall call on the commanding officers of the adjacent counties for such aid as he may think necessary, who shall forthwith and in like manner furnish the same, and in the event of any militia ordered out by the commanding officer of a county, or of the district as herein authorized, such officer shall immediately notify the same, and the cause thereof, to the commanding officers of the district, or to the President of the United States, as the case may require. Sec. 25. And be it further enacted , That all arms, ammunition, and equipments of the militia, shall be exempted from executions and distress at all times, and their persons from arrest and process in civil cases, while going to, continuing at, or returning from musters, and while in actual service. Sec. 26. And be it further enacted , That the brigadier generals are hereby empowered and authorized to employ some person within their respective districts, to convey all orders from them to the commanding officers of corps, respecting the militia of the district of Columbia, who shall be exempt from all other militia duty, and shall receive such compensation, as the legionary court of enquiry, in which district such orders may from time to time be delivered, shall think proper, on his producing to the court a certificate of his having discharged the said services. Sec. 27. And be it further enacted , That all non-commissioned officers and privates, belonging to battalion companies, shall appear while on duty, uniformly clothed, the color and fashion of which uniforms to be determined on for the respective legions, by the first legionary courts of enquiry which shall be held, and to be approved of by the brigadier general, provided the expense of the same, additional to that of usual, ordinary, and cheap clothing, does not exceed five dollars for each person, and every such non-commissioned officer, or drummer or fifer, or private, appearing at any muster held after three months from the time that such uniforms shall have been determined on, and the order relative thereto shall have been published, in some newspaper within the legionary district, and not wearing the same, shall be fined five dollars for each offence, unless he can make it appear to the satisfaction of the court of enquiry of the battalion to which he may belong, that he was unable to equip himself. Sec. 28. And be it further enacted , That the respective courts of enquiry shall have power to cause to be bound for a term of years, to the several commanders of companies, battalions, and legions, and their successors in office as the case may require, such a number of boys and young men, with the consent of their parent or other person authorized, as they in their discretion may deem proper, for the purpose of being instructed in the different branches of military music, and of serving as musicians when they may be competent thereto, to the several companies, battalions, and legions; and the father of any youth who may be so bound, otherwise subject to be enrolled, shall be exempt from all duty in the militia, so long as his son so bound may continue to serve in the corps to which he would otherwise belong, as well during his apprenticeship as thereafter; & the several legionary courts of enquiry shall make provision from time to time for the clothing, maintenance, and the pro-
perly instructing all such youths, to be paid from the fund arising from the fines imposed by this act; and the commanding officers of legions, shall cause the drummers and fifers and other musicians of their respective legions, to meet at the same times and places that commissioned officers are required to meet, for the purpose of being trained by the brigadier general, or other officer, there to be instructed in their respective branches of music, for which purpose the commanding officer of the legion may employ such person or persons as he may think proper and capable to instruct such drummers and fifers, and other musicians. The person so to be employed by the commanding officer of the legion, to be allowed such compensation as the legionary court of enquiry may authorize, and each drummer and fifer, and other musician, unless an apprentice, shall be allowed during the time they are convened, one dollar per day, to be paid out of the funds arising from fines. Sec. 29. And be it further enacted , That the secretary of war shall cause a sufficient number of copies of this law, together with the act of Congress, more effectually to provide for the national defence, by establishing an uniform militia throughout the United States; and the act of Congress for calling forth the militia to execute the laws of the union, suppress insurrections, and repel invasions; and the articles of war; to be printed and distributed throughout the territory of Columbia, so that every general and field officer therein, and every brigadier general, and captain, be furnished with one copy each. NATHL. MACON, Speaker of the House of Representatives. STEPHEN R. BRADLEY, President of the Senate pro tempore. March 3d, 1803. APPROVED, TH: JEFFERSON. FOR SALE OR RENT, THAT elegant three story BRICK HOUSE, on the corner of Falls & Frederick street in George Town, lately occupied by Mr. Pignon. Likewise, THE two well finished three story BRICK HOUSES, adjoining that occupied by Mr. Samuel H. Smith, Printer, on the Pennsylvania Avenue, east of the centre Market House, City of Washington—Apply to GEORGE THOMPSON, George Town. Geo. Town, Oct. 20. tf TAKE NOTICE. I WILL sell five hundred and fifty acres of Land whereon I live, in Fairfax county, within five miles of the court house, and within twenty of the City of Washington, Alexandria, Dumfries, and twelve of the Occoquan mills, it is a healthy situation, the land fertile, and has about two hundred acres of wood to cut, there is a great proportion of white and red oak, popular and hickory timber—There is nearly one hundred acres of prime land for meadow, I will give six months credit for one fourth of the purchase money—twelve months for the other quarter, eighteen for the third, and two years for the last payment, a purchaser will find me on the premises. Thos FOLLARD. Feb. 21st. tf Thomas Carpenter, TAYLOR. HAS received a very handsome assortment of goods, consisting of superfine cloths, cassimere and coatings of all colours. Patent water proof Cloths, Silk and woollen Molekins, Tellinettes, velveteens, &c. of superior quality. From which, and an acquisition of the newest fashions and the best workmen, he can assure whatever commanded. Pennsylvania Avenue, near the President's Square, and New Jersey Avenue, about eight houses from Capitol Square. Dec. 1, 1802. tf CHARLES VARDEN, TAYLOR. FROM PHILADELPHIA. HAS received from Philadelphia an elegant assortment of the best quality Superfine Cloths, Cassimere, Silk floruitine, Black and fancy silk molekin velvet, white & figured Marcellus, Swandowns, Toillettes, Velveteens, Fancy cords, Coating, &c. With a variety of other articles suitable for the winter season. N. B. Ladies Habits, Regimentals and Navy uniforms made to the first style of fashion. New Jersey Avenue, the second House from the Capitol Square. December 8, 1802. tf FOR SALE. EXCELLENT Butcher in Firkins, Whiskey in Barrels, and Sherry Wine in quarter Casks. WM. BRENT, New Jersey Avenue near the Capitol. Feb. 4. tf NOTICE. In the matter of JOHN JACK, Bankrupt. THE subscriber being appointed Assignee of the Estate and effects of JOHN JACK Bankrupt. All persons indebted to the said Bankrupt, are requested to make immediate payment otherwise legal steps will be indiscriminately taken to compel them. RICHARD FORREST, Assignee. Jan. 26. tf
ADVERTISEMENT. On THURSDAY the twenty first day of April, if fair, if not the next fair day, will be exposed to sale on the premises, in the town of Alexandria, the following parcels of L. A. N. D. Late the property of John Fitzgerald, deceased, sold pursuant to the directions of his will for the payment of his debts, to wit: ONE parcel of land lying upon the east side of Union street, and to the northward of Wilkes street, fronting seventy-eight feet upon Union street, and extending about two hundred feet in the river, having an alley of twenty feet running the whole depth; upon it is erected a frame ware-house; the ground is subject to an annual rent of 91. 17s. 6d. It will be sold altogether, or divided to accommodate purchasers. One half of a brewery, with all the implements and utensils necessary for carrying on the business, upon a large scale, and a parcel of ground appertaining to it, fronting about forty feet upon Water street. The whole of the brewery and ground is now under a demise, at a rent of six hundred dollars per annum. A piece of ground immediately adjoining on the brewery, and fronting about forty feet on Water street, and extending one hundred and fifty feet on a twenty feet alley. A piece of ground fronting on Wolfe and St. Asaph streets. This will be laid off into convenient Lots. A piece of ground lying upon the fourth side of King street, extending 82 feet to a twelve feet alley—in the front is erected a two story brick dwelling house, and upon the alley a two story frame ware-house. A piece of ground lying upon Union and Wolfe streets, extending with Wolfe street 62 feet and an half, with Union street 120 feet. Upon this there are erected a large distillery, ware house and cooping room. The improvements were calculated for carrying on that business upon an extensive scale; there are three stills in it. Not having been occupied for some time past, the property is something out of repair. The ground is subject to an annual rent of 431. 18s. 6d. There will be sold at the same time, a small tract of land contiguous to the town, containing 37 acres. This is unimproved, and will be sold in small parcels containing from 4 to 6 acres. The sale will be continued till the whole is sold. The terms of sale are one fourth of the purchase money in hand when deeds will be executed to the purchasers; one other fourth in six months after the sale; one other fourth in twelve months, and the remaining fourth in eighteen months; for securing these payments deed of trust will be required upon the property conveyed from each purchaser for his part. THOMAS A. DIGGS, JAMES KEITH, Acting Executors of John Fitzgerald, March 16. eptf 170,038 Acres of Land. THIS body of land, in one entire and inclusive survey, is offered for sale to any individual or company, who may incline to purchase for the purposes of settlement and emigration. It is situated in the state of Virginia, on the Great Kenawha River, Montgomery county, and is distinguished by the name of "The Great Bend of the Kenawha," being intersected by the Piney river, Great and Little Bluestone rivers, Coal river, and Nyandot river, as also by numerous other creeks and waters, running into said rivers. Numerous mill-sites, inexhaustible bodies of coal, and great appearances of ores, metals, salt springs and salt licks, are to be found on this tract, besides which, sugar may be made thereon to any amount, the sugar treacand hough in almost every part. For fertility of soil, growth of timber, fitness for cultivation, salubrity of climate, and natural advantages, this body of land stands unrivaled by any tract of equal quantity in Western America; it will be submitted for sale to an entire purchaser, until the first day of June next, on very advantageous terms; after which, it cannot be disposed of at any price the present proprietor being compelled to a division thereof. An inalienable right will be given, and for further particulars, as to terms of sale and payment, enquire of JOHN BECKLEY, Esq. Clerk to the House of Representatives of the United States, at the city of Washington. November 1, 1803. tf TO LET, And be entered upon immediately, three well finished BRICK HOUSES, NEARLY opposite Morin's Tavern, on Twelfth street very near Pennsylvania Avenue, built for the WASHINGTON BUILDING COMPANY. The Houses will be rented on very reasonable terms. Apply to THOMAS CARPENTER near the President's Square. Dec. 1st. eptf Superintendent's Office, Washington 8th March 1802. THERE will be wanting for public use in this city large quantities of fire-stone, foundation stone, lime, sand, and some bricks—Proposals to supply the same will be received on the fourth day of next month, by THOMAS MUNROE, Superintendent. N. B. A number of labourers and some timber for joists &c. will also be wanted. March 9. eptfA. WANTED, One or two Boys to learn the BOOT and SHOE-MAKING Business—Apply to JOHN CAOOKSHANK. George Town. Jan. 19, 1803. tf Twenty Dollars Reward. Lost on Thursday afternoon, A RED MOROCCO POCKET BOOK, in which were several Notes of the Bank of Discount and Deposit, Washington, and one twenty dollar Manhattan Bank Note, besides sundry papers, valuable only to the owner. It was lost between the Capitol and the lower Ferry, over the Eastern branch—The above reward will be given for returning it to its former owner. THOMAS CARPENTER. City of Washington, March 21, 1803. tf