The national intelligencer and Washington advertiser. (Washington City [D.C.]), 1802-04-16 00:00:00

NATIONAL INTELLIGENCER,
AND WASHINGTON ADVERTISER.
VOL. II. WASHINGTON CITY, PRINTED BY SAMUEL HARRISON SMITH, PENNSYLVANIA AVENUE.
No. CCXXV.
FIVE DOLLS. PER ANN.
FRIDAY, APRIL 16th, 1802.
PAID IN ADVANCE.
National Intelligencer.
CONGRESS OF THE UNITED STATES,
HOUSE OF REPRESENTATIVES.
FRIDAY, February 26.
DEBATE
On the bill received from the Senate, entitled "An Act to repeal certain acts respecting the organisation of the courts of the United States."
Mr. NICHOLSON.—I lament, Mr. Chairman, that I am under the necessity of rising at this late hour, as I am fearful the patience of the committee is well nigh exhausted. I am sensible that the uncommon length of the discussion has left me but a very narrow ground to tread on; but as the question has become highly important, from the constitutional objections which have been started, I will venture to solicit your indulgence while I offer some remarks that appear, to my mind, applicable to the subject now under consideration.
The very uncommon direction, which has been given to the debate, will, I trust, be a sufficient apology for my noticing a variety of observations made by gentlemen on the other side of the house, which have no connection with the bill on the table. I should have felt a singular pleasure in following the honorable member from Connecticut (Mr. Griswold) but for his concluding remarks—in the anterior part of his speech that gentleman kept his eye steadily fixed either upon the expediency or constitutionality of the question, and did not indulge himself in those wanderings of the imagination, which so eminently distinguished his friends who have proceeded him; but the close was marked with a shameful virulence, calculated to excite indignation and not to convince the understanding.
Sir, when I am told that the party advocating this repeal have grown out of the party originally opposed to the constitution, and are now about to prostrate it, I feel more than I am willing to express; but when gentlemen talk about parties in this country, permit me to turn their attention to an earlier period of our political history; to that period when our liberties and independence were at stake, and when every nerve was strung to resist the encroachments of tyranny. At this time where were many of that gentleman's political friends? Upon examination it will be found that many of them basely deserted their country in her distress, and were openly fighting in the ranks of her enemies. In the list of any political friends, none such are to be found, for we do not require their support. But I can look about me upon my right hand, and upon my left, and can see men even upon this floor, advocating the present bill, who bore the burthen of the revolutionary war, who drew their swords to establish the independence we now enjoy, and who will not hesitate to draw them again, if those threats are carried into execution, which have been recently thrown out against the constitution. I know men too, equally distinguished for their talents and their virtues, friendly to this repeal, who signed the constitution as members of the general convention, who used every effort to promote its adoption, and who I have no doubt are ready to defend it, to the last moment. There are men likewise, and gentlemen dare not contradict me, who refused their signatures to the constitution as members of the general convention, and who opposed it in every stage of its adoption, but were afterwards received into favor, and were high in the confidence of the former administration. Which of these two descriptions of persons are most likely to cherish the constitution, I cheerfully leave to the American people to decide. It is extremely possible that some of my political friends were opposed to its adoption, without certain amendments at that time urged with great force, because they thought the liberties of the nation not sufficiently secured; and I with I could say that no events have since taken place to justify the uneasiness which at that time existed. A recurrence to some of those events by my friend from Virginia (Mr. Giles) has been warmly commented on, and he has been charged with introducing subjects which have formerly excited irritation, for the purpose of catching the popular ear. I trust I shall be pardoned for saying that, in my judgment, a recurrence to those events was in a great measure rendered
necessary, by the unjustifiable remarks with which the debate was opened by a gentleman from North Carolina (Mr. Henderson).
Let it be recollected, Sir, that a few days past, when the gentleman from Delaware (Mr. Bayard) was begging for a postponement of the bill for a week only, he promised for himself and his friends that if we would indulge them, they would meet us with calmness , and would proceed to the discussion with a spirit of christian meekness —after the postponement was consented to, and after this voluntary promise, I came to the house with an expectation of hearing the subject discussed with that coolness and deliberation which are truly desirable in the investigation of truth; but I soon discovered that this expectation was vain and illusory—that the expected calm had roused itself to a whirlwind, and the spirit of christian meekness was transformed into a spirit of anger and acrimony. The gentleman from North Carolina, who opened the debate, forgetful of the promise which had been made for him by his friend from Delaware, commenced an unarrantable attack upon a majority of the house, by declaring that on the seventh of December the same spirit of innovation had entered these walls, which had laid waste the fairest portions of Europe; that it was now about to tear down all the valuable institutions which had been erected by former administrations, and even to destroy the constitution itself. Did gentlemen imagine that such observations were to pass unnoticed? Did they suppose that we would sit tamely down under an imputation at once so heavy and so groundless? Was it not natural that we should go back and look into the nature and origin of those measures which had been denominated the fairest institutions, and which the gentleman had particularized, as the debt, the taxes, the judiciary and the mint? Yes, Sir, the gentleman from Virginia did take a view of these fair institutions , and did show, whatever might have been the motives of their authors, that their inevitable tendency was to strengthen the power of the executive. It is this undue influence of the executive power of the government that we wish to reduce—it is this influence that we wish to confine within its proper limits, in order to prevent the government from taking that course, which most republican governments have heretofore taken; to prevent it from arriving at that goal where the spirit of republicanism is lost, and monarchy commences. Permit me to ask the gentleman from Delaware, if he was serious when he said there were no friends to monarchy in this country? Does he not recollect a proposition that was made in the general convention, when our present constitution was framed?—And does he not recollect by whom that proposition was made?—The form of government contained in that proposition bore, indeed, the name of a republic, but was marked with the strongest features of monarchy and aristocracy . The chief magistrate and senate were to hold their seats during good behaviour, or as gentlemen now contend, for life; the chief magistrate was to have an absolute negative on all laws, and the sole direction of war, after its commencement; the senate to have the exclusive right to declare war; the governors of the respective states to be appointed by the general government, and to have an absolute negative on the laws of the states. All the militia of the states was to be under the direction of the general government, by whom the militia officers were to be appointed. The immediate representatives of the people were to be chosen for three years, but their powers were not defined; it is certain, however, that they could pass no laws, which were not under the control and subject to the rejection of the senate and chief magistrate, who were placed above all responsibility to the nation.—When I say, "all responsibility," I mean not to forget that they were liable to impeachment for corrupt conduct in office; yet it may be remembered, and the history of other nations warrants the opinion, that rulers may be guilty of ten thousand oppressions, without the possibility of proving that their conduct was founded on corruption. These impeachments too were to be tried, not by persons holding their appointments from the people, or responsible to them, but by the chief judge of each state, who it was expressly provided should hold his office during good behaviour.—That this proposition was made, no gentleman will doubt; or if a doubt rests on the mind of any man, I refer him to members of the general convention who are now present, and who agree in political opinion with our opponents. I venture to hazard the as-
sertion that the information I have given will be found to be correct, because I have derived it from the most authentic source; from members of the convention, in whose hands copies of the plan are now to be seen, which were taken by them at the time. If however, my information is incorrect, there are gentlemen now in my view, who can furnish the means of setting me right, and I call upon my adversaries to contradict me upon any authority whatever. But, Sir, I have no apprehension that I shall be contradicted—gentlemen are too well acquainted with the fact, to risk a controversy about it; for it has been published and commented on in every state of the union, and never has been denied. Among other publications, I have now one in my hand, of an official nature—given to the world, by a member of the convention in his official capacity—and bearing an authenticity that is not to be disputed. It is, Sir, a communication made in the month of January in the year 1788 to the legislature of Maryland by Luther Martin, Esq.; one of the delegates from that state to the general convention, in which he assigns his reasons for refusing to sign the constitution. After having said that there were three parties in the convention with different views and sentiments, he proceeds in the 10th page. "One party whose object and with it was to abolish and annihilate all state governments, and to bring forward one general government, over this extensive continent, of a monarchical nature, under certain restrictions and limitations: Those who openly avowed this sentiment were, it is true, but few, yet it is equally true, that there was a considerable number , who did not openly avow it, who were by stealth and many others of the convention, considered as being in reality favourers of that sentiment, and acting upon those principles, covertly endeavouring to carry into effect what they well knew openly and avowedly could not be accomplished."
After this let no man doubt that there are advocates for monarchy in this country, and advocates too who have been high in the confidence of the nation; for we have been told that they were members of the general convention, and were anxious to give the efficiency of monarchy to that constitution under which we now live. Nor should it be forgotten, that we have heard from another authority, at one time, at least very much respected by federal gentlemen, that a monarchical government with an aristocratic and democratic branch, was not only a republic, but the best kind of republic.
But, Mr. Chairman, if there are friends to monarchy in this country, who think that the nature and constitution of man will bear no other form of government, it is not for me to censure them—I thank God we are free, and that there is no more persecution for political than religious opinion—Yet while I refrain from censuring, I will also take the liberty of saying that I never will trust those who entertain such opinions; but will at all times use my endeavours, feeble as they may be, to correct such of their errors as in my judgment may have an injurious operation either upon the government or the nation.
When we attempt to correct these errors, let us not be told that we are about to prostrate the constitution—The constitution is as dear to us as to our adversaries, and we will go as far to support it—it is by repairing the breaches that we mean to save it, and to fit it on a firm and lasting foundation that shall resist the attacks of its enemies, and defy the encroachments of ambition. We are yet a young nation, and must learn wisdom from the experience of others—By avoiding the course which other nations have steered, we shall avoid likewise their catastrophe—Public debts, standing armies, and heavy taxes have converted the English nation into a mere machine to be used at the pleasure of the crown. After having struggled nearly six hundred years for their liberties, they now find themselves almost at the same point from which their ancestors set out. This is not barely an opinion of my own formed upon cursory observation, but is sanctioned by the authority of a universally admired writer, known to most of us. Sir William Blackstone, in the 4th vol. of his valuable commentaries on the laws of England, speaking of the various reductions that have been made in the prerogative of the crown since the revolution of 1688, and the consequent apparent advantages derived to the nation, uses a language which I fear is too applicable to our own situation: "yet though these provisions have in appearance and
nominally, reduced the strength of the executive power, to a much lower ebb than in the preceding period, if, on the other hand, we throw into the opposite scale (what perhaps the immoderate reduction of the ancient prerogative may have rendered in some degree necessary) the vast acquisition of force arising from the riot act and the annual expedience of a standing army ; and the vast acquisition of personal attachment, arising from the magnitude of the national debt , and the manner of levying those yearly millions that are appropriated to pay the interest; we shall find that the crown has gradually and imperceptibly gained almost as much in influence, as it has apparently lost in prerogative." p. 440.
Mr. Chairman, if a man acquainted with the history of our government, would attend to the remarks just read, he would suppose that this was the chart by which our political course had been steered. It is true we have had no riot act, but we have had a sedition act , calculated to secure the conduct of the executive from free and full investigation; we have had an army , and still have a small one, securing to the executive an immensity of patronage; and we have a large national debt for the payment of the principal and interest of which it is necessary to collect 'yearly millions', by means of a cloud of officers spread over the face of the country. By repealing a part of the taxes from which a part of this money has been raised, we not only lessen the burthens of the people, but we likewise discharge a large portion of those officers who are appointed by the executive, and who add greatly to his influence.
This debt, which now hangs as a dead weight about us, has been called the price of our independence, and has been spoken of as a debt due to the ' war-worn soldier ', which we assumed and funded to alleviate his sufferings. This position I cannot assent to. When the veteran soldier returned from the fatigues and hardships of the war, to enjoy domestic comfort, he brought with him as an evidence of the service he had rendered, nothing but his certificates and his wounds. They were, indeed, honorable testimonials; the latter he felt would remain with him while life lasted, and the former he held with the hope that one day or other, his country would be in a situation to pay him; but the hard hand of poverty pressed upon him, and stern necessity compelled him to part with them for a pittance. The rich and cunning speculator, who had sheltered himself from the storm, now came out to prey upon his distress, and for two shillings and six pence in the pound, he purchased this poor reward of toil and hardship. When you were about to make provision for the payment of this debt, you were called on, loudly called on by the voice of humanity, by the spirit of justice, to make a discrimination in favor of the soldier. He asked you to give to the speculator what the speculator had advanced; but to give the balance to the poor, though valiant soldier, who had faithfully earned it in the frozen regions of Canada, or the burning sands of S. Carolina; you regarded him not; to his tale of distress you turned a deaf ear; his services and his sufferings were forgotten; the cold and hunger he had endured, the blood he had spilt, were no longer remembered; you cast him upon the unfeeling world, a miserable dependent upon charity for subsistence. Let not then the gentleman from Delaware call this debt the price of our independence, or a compensation to the war-worn soldier. To him it was a poor compensation indeed. Its effect was to entrench yourselves around by rich speculators, whose interest and influence you secured, and who would be ready to support you in any measures, provided you would ensure them the payment of the interest on that debt, which was funded for their benefit, but which was created at the hazard and expence of a brave and meritorious soldier. From motives of a shameful policy you enabled the proud speculator to roll along in his gilded chariot, while the hardy veteran, who had fought and bled for your liberties, was left to toil for his support, or to beg his bread from door to door.
But this debt, iniquitous as we deem the manner of its settlement, we mean to discharge; but we mean not to perpetuate it; it is no part of our political creed that "a public debt is a public blessing ."—We will, I trust, make ample provision for its final redemption; and when in a few days a proposition shall be submitted for the annual appropriation of seven millions and three hundred thousand dollars to this object, I challenge gentlemen on the other side of the house, who express so much anxiety about public faith, to be as forward in support of
this measure as I shall be. We will then show to the American nation, who are most inclined to support the public credit; whether those who are desirous of paying the debt, or those who are anxious for its perpetuation.
The member from Delaware told us that the gentleman from Virginia (Mr. Giles) after exhausting one quiver, had unlocked another and discharged it upon the judges; those judges whose victims he has never heard of. If that gentleman has never heard of a judge's looping from the bench to look for victims, I have. Let me direct his attention even to his own state. Let me ask him if he has never heard of a judge commanding the district attorney to search a file of newspapers, in order to discover something upon which a prosecution might be grounded? Let me ask him if that judge did not detain the grand jury at a busy season of the year, for the avowed purpose of finding an indictment, not upon any fact known to the judge, but upon a mere report which the judge had heard, that there was a seditious paper printed in the state. This looks like looping from the bench to search for a victim. But the gentleman from Delaware looks to the executive for victims; for those widows and orphans who demand the commiseration of the people. Mr. N. said he could not conceive how widows and orphans could be affected by the executive, for he did not know that widows and orphans had been dismissed from office, as he never had understood that it was usual to give them appointments. He had heard that some persons had been dismissed for being public defaulters; and others for revolutionary toryism; but he had not heard that any had been dismissed for refusing to sign an address offering up adulation to Presidential vanity. He had indeed understood that two men had been restored to office, who were dismissed under a former administration for this crying sin. But why all this uneasiness about dismissals from office? Have the friends of gentlemen heretofore been so eager in their pursuit of the loaves and fishes, that they are now unwilling to surrender them? Have they enjoyed them with such peculiar delight, that they now murmur at the exercise of the constitutional right which the President possesses of displacing from office all those whom he thinks unfit for the duties, and of putting in those who, in his opinion are better qualified. Surely when gentlemen are so strenuously contending for the constitutional rights of the judiciary, they ought not to murmur at the exercise of a constitutional right by the executive. Nor do I think they can with any propriety complain, when it is recollected, that although the President had the power of disposing of all offices, yet he has left by far the larger proportion in the possession of men who are personally and politically his enemies. From the great discontent expressed on the subject of removals, it might seem that the judges themselves were rather the objects of general solicitude, than the system or constitutional privileges of the judiciary.
This judiciary, however, the gentleman from Delaware has said, in that same spirit of christian meekness which appears to have characterized him throughout, he never considered a sanctuary, because he knew that nothing was sacred in the eyes of infidels. May I be permitted to ask, what the honorable gentleman means by infidels? The expression excited some degree of surprize, because as the gentleman had on a former occasion talked so much of christian meekness , I had flattered myself that he felt some little of christian charity . The hope I fear was a vain one. The honorable member and his friends are orthodox; we and our constituents are heretics. If, Sir, an unqualified aversion to the high fashioned opinion that a public debt is a public blessing; if a total unbelief in the propriety of laying heavy and oppressive taxes to pay a useless and expensive army; if the strongest reprobation of every law, calculated to restrain the liberty of the press, and thereby to prevent the nation from enquiring into its own concerns; if the entire rejection of the odious principle that the reins of government are to be placed in the hands of a set of men who are independent of and beyond the control of the people, afford any evidence of infidelity, then do I avow myself as much an infidel as any man living. And if christianity and infidelity be the two principles, diametrically opposed to each other, it is most certain that the gentlemen and myself are as far asunder as if we inhabited different hemispheres. He is a political christian, and I a political infidel. He offers up his sacrifices upon the altar of independent rulers; I bow at the
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is anxious to insert into it. I agree that it has been adopted under various modifications by the respective states; but I do not admit that it has been adopted by the federal constitution. Where the states have adopted it, it has been by a solemn and positive act, expressly recognizing it as a part of their code of laws. I might challenge the gentleman to put his finger on any part of the federal constitution containing any recognition of it whatever, as a law of the United States. Is it to be found in the enumeration of the powers vested in the legislature? Is it to be found in the enumeration of the powers vested in the executive, or in the enumeration of the powers vested in the judiciary? It is to be found in neither. Is this adoption of the common law to be found in any article contained in the original instrument, or in any of the amendments afterwards engraved upon it? In one of the amendments, we find the words common law used, but I presume it will not be contended that the common law was adopted by this article, for it must be obvious to the plainest legal understanding, that the words suits at common law are only used in contradistinction to suits in equity . In the latter cases, the trial by jury is not used, but in the former the trial by jury is preferred by this amendment. And when the rules of the common law are mentioned in the latter part of the same article, they are merely referred to as rules of proceeding which are to govern in motions for new trials, and a few other cases where facts decided by the verdict of a jury may be re-examined; but it can have no operation to confer jurisdiction. Might I not be permitted to ask why the common law of England was adopted by our constitution more than the laws of any other nation; more than the laws of France, Spain, Sweden, or Holland. When the constitution was formed we were more intimately connected with those countries than with England, because with some of them we had treaties of alliance, with all we had treaties of commerce. Besides if the common law of England was adopted by the constitution, a very serious question might arise whether the common law did not thereby become a part of the constitution; and if a part of the constitution all laws passed by congress contrary to the principles of the common law would be null and void. Such for instance as the act declaring the punishment of man slaughter and several others. That this would be a fair construction may be gathered from the opinions of those who formed the constitutions of New-York, Jersey, Delaware, Maryland, and South Carolina, and likewise from the convention of Virginia; who all retained the common law, but expressly declared it to be subject to the future alterations of their respective legislatures. Now if the common law was adopted by the constitution without any provision that it should be subject to future alteration by congress, a question might certainly arise whether congress would have the power of passing any law varying the common law. However if this difficulty is got over, another not very inferior in importance, immediately presents itself. If the constitution adopted the common law, or the common law attached itself to the constitution, it immediately became a law of the United States, and is paramount to the laws and constitutions of the individual states. Wherever therefore the constitutions or laws of the states modified the common law, such modification was of no effect; for whenever a law of the United States clashes with the constitution or law of one of the states, the state constitution or law must give way, as has been solemnly decided by the federal courts in more instances than one; particularly in the case of Vanhorne's lessee against Dorrance in the circuit court of Pennsylvania, and in the case of Ware and Hylton upon a writ of error in the supreme court of the United States. Whether the people of this country are inclined to submit to the train of evils which would follow the establishment of this principle, does not, I presume, admit of a doubt.
The gentleman from Delaware, however, seems to consider the existence of the common law, as a law of the United States, as a matter of necessity. He tells you if you go into your courts of justice with the mere statutes, you cannot proceed a step, you cannot even punish a contempt. I shall here be allowed to ask if it is the idea of that gentleman, that our federal courts have an authority to enforce the common law doctrine of contempts? If by the operation of the common law they have a right to punish one contempt; I presume they have the same right to punish all. Let us then take a view of these common law contempts.
If one man strikes another in the superior courts in England or even at the assizes, it is a contempt of a very high nature, and is punished at common law by attainting the right hand, imprisonment for life, forfeiture of goods and chattels, and of the profits of land during life . To rescue a prisoner from any of the said courts is another very high contempt, and is punished by the common law with imprisonment for life,
forfeiture of goods and chattels, and of the profits of land for life. There are a great variety of smaller offences likewise denominated contempts for which the common law inflicts fine and imprisonment, and if the court pleases corporal or other infamous punishment . This is a slight specimen of the mildness of that common law, upon which the member from Delaware has pronounced so high an eulogium; and these are the punishments which your courts of justice could not inflict without the wholesome assistance of the common law. But, sir, it may be shown that the courts of justice of the United States do not require the aid of the common law to enable them to punish contempts; for it is declared expressly by the 17th section of the act of September, 1789, establishing the courts, that they shall have "power to punish by fine and imprisonment, all contempts of authority in any case or hearing before them." The gentleman therefore was grossly mistaken when he said it was necessary to call in the common law, to authorize the courts to punish for contempts; although the act of congress does not go quite so far as the mild provisions of the common law, which cut off the right arm of the offender. By this act it is likewise declared, that the federal courts shall have power to grant new trials, and to administer all necessary oaths and affirmations. This was certainly quite nugatory, if the common law had attached itself to the constitution; because these are powers which the state courts and those of England exercise by virtue of the common law; and if it had been the idea of those who have gone before us, that this common law was the law of the United States, they would not have vested in the courts the same authorities, which they had by the common law. I believe, sir, I could take up our laws relative to the judicial establishment, from the commencement of the government to the present day, and could show that congress have from time to time vested in the courts and judges a variety of powers, which they would have had, if the common law had been the law of the United States in their federal capacity. But I will refer to one instance only where it was thought necessary to pass a special law for the purpose of giving to your judges one of the lowest common law authorities. In the year 1788, an act, of one section only, passed, authorizing the judges of the supreme court and of the several district courts, to hold to security of the peace, and good behaviour in any case arising under the constitution and laws of the United States. At common law, the judges, are by virtue of their commissions, ex officio, conservators of the peace, and if this law had been the federal law, there could have been no necessity for passing the act just alluded to. Again, by the common law, a person charged with treason is allowed a peremptory challenge of thirty five jurors: yet this right of challenge is likewise expressly given by act of congress passed in 1789. The same act provides for the punishment of murder, in places under the exclusive jurisdiction of the United States, as forges, arsenals, &c. and limits the number of challenges to twenty; yet these provisions are precisely the same as at common law, amended by a variety of statutes a long time before the emigration of our ancestors; and I presume it is not contended that the common law was brought here without the changes antecedently made. If however the common law was introduced originally by our forefathers and afterwards attached itself to our constitution, by its own wonderful magic, I ask why not the statute law likewise? The same juridical principle will apply as well to the statute law as the common law, and the two together will furnish gentlemen with an extensive field to wander in, which I cheerfully abandon to them.
I think, sir, I have fully proved that the common law of England was not introduced by our ancestors at the time of their emigration, as a general and uniform law prevailing over all the extent of country comprized within the present limits of the United States, because the several colonies were planted at several periods, some of which were as remote from each other as one hundred and fifty years, because it was changed and modified at pleasure by the respective provinces; and because we were not at that time a nation, and therefore required no general uniform law to govern us. I think I have proved that it was not adopted by the declaration of independence, because we allocated only for mutual defence against a common enemy, and there were no general questions among us which could possibly require the interference of the common law, and congress had no power to establish courts to carry the law into execution. And I think I have proved that it was not adopted by the constitution, because there is no part of the constitution declaring it to be the law of the land; because its implied adoption without limitation or restraint, would either make it a part of the constitution itself and thereby prevent a most valuable exercise of legislative authority; or by making it a law of the United States, would give it a controlling and repealing or nullifying power over the laws and
constitutions of the individual states; and because almost every congress already established by the common law, expressed an opinion, most unequivocally, that the common law was not the law of the United States in their national capacity.
The common law can have no possible existence in this country, but as it has been introduced by the respective states. Some have ingrafted it into their body of laws by their constitutions; others by express statute, and in one or two instances perhaps the states have used and practised it from their original colonization: for it is not denied that the several colonies brought with them such, both of the statute and common law, as was applicable to their situation. But the common law as introduced, used and practised in any one state can only be considered as a state law. After it was retained by Maryland, by an express article of her constitution, it was no longer the common law of England as such, but thereby became the law of the state of Maryland under the various modifications which had been made by the provincial assemblies; and such it remains at this day. As a state law then it cannot be construed to give jurisdiction to the federal courts, any more than the numerous acts of assembly which have passed both before and since the revolution. By the common law of England as it exists there, and as it likewise exists in Maryland, kidnapping, or the forcible abduction or stealing of man, or woman or child, is an offence punishable with fine, imprisonment and pillory: a statute of Maryland declares the stealing of a slave to be a capital offence; now neither of these laws can give the federal courts any jurisdiction over these offences, because they are both state laws, although one of them is likewise a part of the common law of England.
Murder is an offence punishable, I believe, in all the states with death, and remains as at common law, modified by several old statutes, which our forefathers brought with them at the time of their emigration, yet the federal courts can have no jurisdiction over the crime of murder unless committed in a fort or arsenal; and this is expressly declared by act of congress to be punishable with death if committed in those places. And permit me once again to observe that this shews that congress at the time of passing the law (in 1789) entertained no idea that the federal courts could punish murder by virtue of any other authority than that expressly derived from a statute.
"Cursing or wishing ill to the King" is an offence punishable at common law by fine, imprisonment, and pillory: but this is not the law of any of the states, because after the declaration of independence we had no King, and therefore it was not applicable to our situation. To curse or wish ill to the governor of a state, could not be punished, although he is the chief magistrate of the state; because cursing or wishing ill to the King of England is a contempt against his person and government: but in America we do not regard the majesty of persons, nor do we admit that the Government belongs to any one man, but to the whole people. However even if this part of the common law did form any part of the codes of the respective states, it could give no jurisdiction to the federal courts, being a state law. It is with much regret, Mr. Chairman, I have heard that a man in New-Jersey was indicted at common law, and punished by a federal court, for expressing a ludicrous wish in relation to a former President of the United States: a personage not known to the common law. Yet common law jurisdiction was assumed by the federal court over this offence, and the sacred person of the President was substituted for the sacred person of the King.
In fine, sir, my opinion is, and I sincerely believe it to be a correct and constitutional opinion, that the common law of England, either as such, or as it has been introduced into the several states, is not the common law of the United States in their national or federal capacity, and cannot therefore operate to give the federal courts any jurisdiction. On the present occasion, I wish to express my decided disapprobation of the doctrine contended for by the gentleman from Delaware, that the federal judges have a discretionary power to introduce such parts of the common law as they please, and as they may think, do or do not belong to us. This discretionary power in a judge is dangerous to liberty. It will sap the foundation of your constitution itself. It will place the life and property of every man in the community, in the most precarious situation. All security will be lost, all confidence will be destroyed. To vest a discretionary power of this kind in a judge, is to vest him with an arbitrary and unconstitutional power. That able and upright judge, the most excellent Lord Camden, who was an ornament not only to his profession, but to his country and to human nature, declares, that "the discretion of a judge is the law of tyrants; it is always unknown: it is casual and depends upon constitution, temper and habit. In the best it is often caprice; in the worst, it is every vice, folly and passion to which human nature is liable."
I have, dwelt longer on this subject, Mr. Chairman, than I intended; but as it is important, I trust I shall obtain the pardon of the committee. Thinking as I did, it was impossible for me to have said less. Having several times heard the gentleman from Delaware maintain a similar doctrine on this floor, I have today thought it my duty to examine it; to state some reasons to shew the doctrine to be incorrect, and others why it ought not to be admitted. How far I have succeeded the committee will decide. Infinitely more might be said, but as the evening is advancing I will no longer trespass on your patience now. To-morrow I will again ask the indulgence of the committee, for the purpose of offering some remarks more immediately connected with the subject under consideration.—[Mr. Nicholson sat down, the committee rose; and the house adjourned.]
SATURDAY, February 27.
Mr. Nicholson—in continuation offered his acknowledgments to the committee for consenting to hear him again to-day, after the very tedious, though he hoped not uninteresting discussion of yesterday, in relation to the common law. From the construction which had been given to our laws and constitution, not only in the house, but as he had understood by some of the federal judiciary, he thought it the duty of every man to direct his attention to this subject, as it involved principles more important than were apparent at first view. Under this impression he had offered some observations to the committee, which he flattered himself would not be totally unacceptable. In doing this he had been as brief as possible, for he well knew it would fill a volume, if all were collected which might be said in opposition to the opinion that the common law of England was the common law of America, as a nation. He would now, however, proceed to the discussion of the subject more immediately under consideration.
As I have already occupied more time than I either expected or wished, I have no doubt I shall be excused for passing over the immense folio of extraneous matter which the gentleman from Delaware has introduced. It will afford me an opportunity, at the same time, of passing by that list of names which the gentleman held up to our view, and which he exhibited in colours by no means flattering.—Were I inclined to pursue the course which he has pointed out to me, I might present a catalogue of his political friends, covered with as miserable a daubing as his own; but I disdain it. Private feeling, and private character shall never be made the subject of my animadversions in this house.
The expediency of the present repeal is the first point to which gentlemen seem to have directed their attention. In order to shew the necessity of the law of the last year, they have pointed out numerous defects, as they suppose, in the old system. The member from Delaware, after lavishing the highest encomiums on the gentleman who is said to be the author of that system, has undertaken to shew, that it was constructed upon fallacious principles. The fallacy of these principles he says, was discovered in practice, and a new organization of the courts became necessary. Since I have been able to form an opinion of the relative merits of the political characters in this country, there are very few indeed whose talents I have heard more commended than those of the gentleman alluded to. On no occasion has his wisdom or the solidity of his judgment appeared more conspicuous to my mind than in the formation of the first judiciary system of the United States. In a government like ours, extending over a large tract of country, and composed of sovereign states, independent of each other, confederated for the purpose of mutual defence and mutual protection, it was rightly judged that its judicial powers should not extend to any other cases of judicial cognizance, than those which might be deemed somewhat of a general nature, and whose importance might affect the general character or general welfare of the union. It was foreseen that these cases would not be very numerous, and experience has proved the correctness of this opinion; for in the twelve years that have elapsed, but about eight thousand four hundred suits have been brought in the federal courts, exclusive of admiralty causes; or about seven hundred suits for each year in the whole of the sixteen states.—Of these, fifteen hundred now remain undecided, which are nearly equal to those of the two last years. In order to shew the incompetency of the courts, as existing under the old establishment, gentlemen ought to prove that this is an unreasonable number to be at this time pending. I ask them if this does not prove as great a dispatch of business as in any courts in the world? In the circuit court of Maryland, I believe the same rules have been adopted for the dispatch of business as are practised, in the general or supreme court of the state; and I believe it is likewise a rule, that causes shall continue the same length of time. By the laws of Maryland, a cause may continue two years in that court, and of course a cause may continue two years in the circuit court. What the rules may be in other courts respecting the
continuance of causes, I do not know, but if a similar rule prevails in all the courts, no doubt can possibly exist that business has been as well despatched in the federal circuit courts as it can ever be. Most of the causes brought in the federal courts, I presume, are important, and are controverted. Whenever there is a controverted, it is almost impossible to get your pleadings in a state for trial in less than two years, where there are only two terms in each year; and this of necessity compels a continuance for two years. My idea on this point is easily exemplified.
  Suppose 350 suits brought at   May term 1799 350   the same number at October term 1799 350   the same number at May term 1800 350   the same number at October term 1800 350   the same number at May term 1801 350   1750 
It would follow that seventeen hundred and fifty suits would be brought to those five terms and the dockets of May 1801, would exhibit 1750 suits then depending. If the first three hundred and fifty were decided at that time, fourteen hundred would be left on the dockets in June 1801, at which time the list how before us was taken. But the delays which are necessarily incident to trials at bar, and in chancery, would furnish at least a possible presumption that the whole brought at the first term could not readily be tried at the fifth, for want of testimony, the defective state of the pleadings, demurrers, motions for new trials and sundry other causes. Let me then again repeat, that as fifteen hundred suits only remain pending, business must appear to have been well despatched, and no argument can be drawn from the supposed incompetency of the courts.
But, sir, the first objection which gentlemen have started to the old system, arises from the itinerancy of the judges. They are stated to be old men, who have passed the meridian of life, and it cannot be expected that they should ride through the continent for the purpose of holding courts. They number, says the member from Delaware, the viginti annorum lucubrations , and must now have leisure to read, to repair the ravages of time, or in other words, to prevent them from forgetting what they had before learned. I trust Mr. Chairman, that I feel as much reverence for old age as most men, and I flatter myself I am not totally unacquainted with the requisite qualifications of a judge: but indeed gentlemen must excuse me, if I do not consent to pay a man four thousand five hundred dollars a year, to prevent him from forgetting what he had before learned.
Give me leave however to ask, if these are the evils which have been discovered by practice? This old system has been called an experiment; permit me to ask, if these are the evils which experience alone has brought to view?
When the great man, alluded to by the gentleman from Delaware, framed this system; when he defended it in the senate of the United States, as I am told he did, with all the energies of his mind, against the objections which were then urged to it, was it not in his power to calculate the labour of travelling over a certain extent of country? Or if this was an exaction too great for his powers, were there no men in congress, with sagacity enough to discover this mighty objection? Was it one of the arcana left for the laborious researches of the present day? The extent of country has not since increased. Bridges are not kept in worse order, nor do rivers rise higher now than they did at that time. In truth all the means of travelling are more eligible and commodious. The roads are better, the houses of entertainment more numerous, the number of stages greatly increased, and gentlemen are not now under the necessity of using their own carriages. Yet notwithstanding these difficulties which then presented themselves, but have since been removed, men of the most eminent talents were readily found, who were willing to accept the places of judges and were not afraid of meeting the inconveniences which are now complained of. It cannot therefore be urged with propriety that the itinerancy of the judges is one of the objections which has been proved by a trial of the experiment. But it is said to be too laborious, too fatiguing for a judge to be compelled to ride from New-Hampshire to Georgia, for the purpose of holding a court. Sir, when these courts were first organized, the United States were divided into three circuits; the Eastern, the Middle, and the Southern. Six judges were appointed, two of whom were to ride in each circuit for the purposes of holding a court in conjunction with the district judge. Of this, however, the judges complained, and for their relief, a law passed requiring one supreme judge only to associate himself with the district judge. This was in fact dividing the United States into six circuits, for no one judge was compelled to ride beyond the two states immediately ad-

WASHINGTON CITY.
FRIDAY, APRIL 16, 1802.
Joining that in which he lived. It is true, that no judge was obliged to go twice into the same state until every one of his brethren had taken his turn in it, but this was optional with them, and if thro' caprice, or a desire of change, or any other cause they could not agree among themselves, I cannot think that it ought to be considered a sufficient reason to reorganize the whole system.
If the bill now upon the table should pass, let the judges of the supreme court make such amendments as will be agreeable to themselves. Let the judge residing in Massachusetts confine himself to the New-England states; let the judge in North-Carolina travel southward; and let the other judges perform their duties in the middle states.
[Mr. Nicholson—to be continued.]
FOR SALE,
A Quantity of SHELL LIME, on the most reduced Terms—Apply to Brougham & Byus, Young's wharf. April 16, 1802. ep3w
WANTED,
A BARR and BOOK-KEEPER. A young man, who can come well recommended for the above business, will meet with employ at the Columbian Inn; and generous wages, by J. H. BARNEY. April 16, 1802. ep1m
NOTICE.
WITH respect to the caution of the said John Harrison, I will appear on the premises on the day of sale, and exhibit the contract and the award, and all the papers relative thereto; with a sufficient voucher of the compliance of the same; and will also produce gentlemen of respectability and property to warrant the title; or refund the purchase money; provided the title should ever hereafter be found insufficient. SAMUEL BAKER. April 16, 1802.
NOTICE.
Three Cents, a peck of potatoes, and the Sweepings of the jail, REWARD. FOR apprehending and securing William O'Conner, an Irishman who was born in the County of Tipperary, who absconded from the Washington county jail, district of Columbia, on Saturday evening the 10th inst. I have reason to believe he has gone to Baltimore, where his family resides. Any person that will bring the above-named runaway to the jail aforesaid, shall receive the above Reward; but no charges paid, by ROBERT M'CLAN, Gaoler, April 16, 1802. ep3t
CHARLES VARDEN,
Merchant Taylor, from Philadelphia, GRATEFULLY acknowledges the favors conferred on him by the gentlemen of this City, and flatters himself that the general satisfaction he has already given will merit a continuation of the same. He has also received a handsome assortment of goods from Philadelphia, consisting of Best superfine cloths, Cassimeres, Swan-down, Toylenettes, Velverettes, Fancy Cords, Coatings, Flannels, &c. N.B. Regimentals, Naval Uniforms, and Ladies' Habits, made in the neatest and most fashionable manner, and at the shortest notice—Washington City, New-Jersey Avenue, next to Mr. Rapine's book store. Dec. 16, 1801. ep1f
For Sale,
A NEGRO WOMAN about 21 years old who is a good Cook, and a complete house servant in every other respect.—Also a large well formed horse, that goes well in a carriage, and pleasant under the saddle.—Enquire at this office. March 5, 1802. ptf
We invite the attention of our readers to the SPEECH of Mr. NICHOLSON, the publication of which is this day commenced. The bold declamation, which characterises most of the federal speeches, the reiterated attempt to inflame popular passion and to transport it from its fit objects, must have been noticed.
The scene exhibited in the house of representatives on Tuesday and Wednesday on the bill making provision for the redemption of the whole public debt, was in some respects one of the most amusing, if not the most instructive of the present session. The federal side of the house, true to their invariable practice of embarrassing every important measure they find themselves unable to defeat, while they feared to meet the great principles of the bill, impressed with the strong conviction of the public mind in its favor, brought forward motion after motion, and required the yeas and nays times without number, on points, some of which were altogether unimportant, and others in the highest degree frivolous.
It is notwithstanding believed, whatever delight may be derived from gladiatorial exhibitions, that the nation will not go into mourning on the prospect of a speedy and fair extinguishment of the whole debt, unless it be for the political demise of those who created it.
The drooping spirits of federalism, appear to have gained a transient elevation from the result of the Massachusetts election. The lively enthusiasm, it has excited, is a strong evidence of the inebriating effects of victory on those who are accustomed to defeat; it shews also the inestimable value of a single ray of hope to those whom misfortune had nearly consigned to despair.
It will be observed, that the number of votes given on the present election is greatly inferior to that given on the last. This can be ascribed to but one of two causes, or to both conjointly. The one, is the deprivation of a large number of citizens of the right of voting; the other, the indifference of the citizens to vote at this election compared with their zeal to vote on the preceding election.
We believe that this may be in a great measure ascribed to the deprivation of a large portion of the citizens of the elective franchise; a description of citizens too, he it recollected, who, from their poverty, and unpatronised situations in life, are the most likely to be unanimously hostile to those who embrace anti-republican sentiments.
The other reason, and no doubt a powerful one, for this result, is the diminished zeal of the republicans at the election; and we may add the augmented zeal of the federalists. The republicans have just gained a splendid victory; they have gained to their side the administration of the federal govern-
ment. This was the great object of their efforts; party attachment and opposition sprang almost exclusively from the measures of that administration. Having gained this object, they reposed in security.
Not so with their opponents. Driven by successive defeats to the brink of despair, previously to taking the fatal leap, they have turned upon their unwary foes, and profiting by their remissness, have gained the field.
It has been the misfortune, or the glory, of most men, who have been conspicuously engaged in the eradication of error, or the diffusion of truth, since the era of the French revolution, to have been overwhelmed with a torrent of bold though vague censure.
The writings of Godwin, having been lately the topic of discussion, like most topics involved in the field of political warfare, have been unmeaningly or maliciously abused by party ignorance or bigotry; and among the reproaches cast upon their author it has been vaunted that he has retracted all the fundamental principles on which his moral structure was raised.
In corroboration of the assertion that he had recanted his fundamental principles, a letter has been alluded to in the federal prints, said to have been received by a gentleman in Virginia from W. Godwin.
Extract of a letter from W. Godwin to James Ogilvie.
"I trust I scarcely need to inform you that I read your letter with great pleasure. Few things can be more consolatory to a sincere advocate for truth, as I trust I am, than to find that he has fellow labourers, persons embracing the same principles, beyond the circle of his knowledge, and in distant parts of the world.
"From every thing that I can learn of you, upon the evidence of your own letter, and the narrative of your friend who delivered it, I am led to conclude that you are a young man of great ardour, of great independence of mind, and of great integrity.
"It is possible hereafter that your enthusiasm may abate, and your cautiousness of enquiry increase. You will detect yourself in some errors, and your confidence of the fallibility of human judgment will be increased by personal experience.
"The work in which I have lately been engaged, and which was alluded to in the beginning of my letter, relates in part to the subject upon which you are at present writing, education.
"We differ upon a few points, particular-
ly in the article of classical learning. Do not let that offend you. There are very few indeed of the opinions with which I trouble the world, respecting which I am not considerably diffident.
The latest accounts from Massachusetts of the election for Governor gives Mr. Strong, 12,689 votes. Mr. Gerry 9,303
HOUSE OF REPRESENTATIVES, U. S.
TUESDAY, April 13, 1802.
The house went into committee of the whole, Mr. L. R. Morris in the chair, on the bill making provision for the redemption of the whole of the public debt of the United States.
The first section under consideration, which provides for the annual application of 7,800,000 dollars, until the whole debt shall be extinguished.
Mr. Mott moved to amend the section as to make the appropriation for two years only; under the idea that it was impolitic to pledge the government for a longer period, and from a belief that entire confidence might be reposed in future legislatures.
Mr. RANDOLPH, chairman of the Committee of Ways and Means, who reported the bill, defended this provision of the bill at considerable length. He stated that he should consider the success of the motion as equivalent to a rejection of the bill; that the reimbursements required for the ensuing two years were within 200,000 dollars of the whole sum appropriated by the bill; that the annual sum already pledged amounted to 5,900,000 dollars, and the sole effect of the bill was to pledge the additional sum of 1,200,000 dollars; that the great principle of the bill, on which it was conceived the actual redemption of the debt would depend, was the devotion of a definite sum, viz. 7,800,000 dollars to the regular discharge of the debt, which appropriation would be of primary obligation, and after which other expences of the government were to be defrayed, instead of permitting these last expences to be defrayed and devoting only the surplus to the public debt.
The motion of Mr. Mott was lost without a division.
Mr. Griswold moved to strike out the 4th section, which authorises the commissioners of the sinking fund to reloan any of the instalments on the Dutch debt becoming due for the 6 succeeding years.
Messrs. Griswold and Bayard considered this power as unnecessary, and in its exercise as pernicious. They stated that the remittance of the present year was already made; that of the next year amounted to 2,347,000; and we had 3 millions now in the treasury; by the means of which they conceived a remittance could be easily made.
Messrs. Randolph and Nicholson replied, and observed that the power was one which it was very probable, would not be exercised, but which it was absolutely necessary to vest, in order to guard against the inability of the government to obtain good bills, or the elevation of bills to such a height as materially to prejudice the public interest; that the accruing instalments were of various amount, and that it was believed great benefit would be attached to the public by equalizing them, so that a very great specific sum should not be drawn from the country in any one year; that no prolongation of the public debt could be incurred, as it was contemplated, in case of the reloan of any foreign instalment, to devote the sum loaned to the redemption of an equivalent portion of domestic debt.
The House adjourned without coming to a decision on Mr. Griswold's motion.
WEDNESDAY, April 14, 1802.
An engrossed bill, for the better security of public money in the hands of public agents, was read the third time and passed.
An engrossed bill to amend an act for the relief and protection of disabled seamen, was read the third time, and passed—yeas 36—nays 33.
Previously to the passage, Mr. Elmer spoke at some length against the bill.
Mr. ELMENDORF moved the appointment of a committee to enquire into the expediency of making further regulations respecting the marine corps. The object of this motion was to authorise the President, to reduce the officers
of the corps proportionably with the reduction made of the privates, who had been reduced from 1200 to 400, where the number of officers remained at 40, though 20 were sufficient.
In reply, it was stated by Mr. S. Smith, that 15 vacancies had occurred, which the President had declined filling; that the present number of officers was 25; and when five more vacancies should occur, the relative proportion of officers and privates would be attained; that it was proper to leave the disposition of the corps under the discretion of the President, as in the event, during the recess, of a war with the emperor of Morocco, which was far from improbable, an augmentation might be expedient.
The motion of reference was lost—yeas 29—nays 43.
The House again went into committee on the bill, for redeeming the whole of the public debt, Mr. L. R. Morris in the chair.
Mr. Randolph spoke again in favor of retaining the 4th section, and Mr. Griswold against it, when the question was taken on striking out, and lost—yeas 27—nays 41.
The sixth section under consideration, which authorises the appointment of an agent in Europe for the purpose of transacting any business respecting the discharge of the public debt, with a salary of 3,000 dollars.
Mr. Griswold moved to strike out this section, assigned his reasons therefor, and was answered by Mr. Randolph.
Motion lost, Yeas 30—Nays 38. [Sketch of proceedings to be concluded in our next—Also a more detailed statement in course.]
THURSDAY, April 15, 1802.
An engrossed bill, making provision for the redemption of the whole of the public debt of the United States, was read the third time.
Mr. Dana made a few remarks against the passage of the bill, when the question was taken on the passage by Yeas and Nays, and carried—Yeas 55—Nays 19.
Mr. T. Morris moved to amend the title of the bill by so altering it, as to read "an act making certain provisions in relation to the public debt."
Mr. Dennis moved, and Mr. Morris agreed to, the addition of the following words, "and authorising a reloan of part thereof."
Mr. Bayard supported, and Mr. Van Vels, opposed, the motion, when the question was taken by yeas and nays, at the call of Mr. T. Morris, on the joint amendment—and lost Yeas 26 Nays 49.
The committee of Claims reported on the petition of Mr. L'Enfant, that the petitioner have leave to withdraw his petition.
Consideration of report postponed till fourth Monday in November.
The House went into committee of the whole. Mr. Davis in the chair, on the bill to fix the compensation of the officers of the Senate and House Representatives.
The several blanks were filled, on the motion of Mr. Davenport, with the following sums—an annual allowance of 2,000 dollars to the Secretary of the Senate and the Clerk of the House of Representatives, to the principal clerk of each House 1,300 dollars, to the engrossing clerk of each House 1,000 dollars, to the Serjeant of Arms of each House 800 dollars, to the Door Keeper of the House of Representatives 500 dollars with a per diem allowance during the session of two dollars; and to the Assistant Door Keeper of each House 450 dollars with a per diem allowance during the session of two dollars.
The committee rose, and the house took up the report, agreed to it, and ordered the bill to a third reading—afterwards read a third time, and passed.
The house went into committee of the whole on the bill for the relief of Fulwar Skipwith.
Mr. L. R. Morris in the chair. That part of the bill which allows compensation for belenings was agreed to without a division.
The second section allows an annual compensation for consular services.
Mr. Dawson moved to fill the blank with 3,000 dollars.
This motion was opposed by Messrs. T. Morris, Stanley, and Bayard.
A motion was made to strike out the section, which prevailed—Ayes 35—Nays 18.
The committee reported, the house immediately took up the report, and agreed to it, by yeas and nays—yeas 43—nays 24.
The bill was then ordered to be engrossed for a third reading.
An engrossed bill to provide for the establishment of certain districts, &c. was read the third time, and passed.
The house went into committee of the whole.
Mr. J. C. Smith in the chair.
On the bill to establish the board of commissioners of the city of Washington and to provide for the payment of several loans to Maryland—reported, and agreed to in the house, and ordered to a third reading to-morrow.

(Continued from first page) wide distance I trust will ever be preferred between us, while the gentleman holds his present political creed.
Was there a man who did not feel the highest astonishment at the hon. member's doctrine in relation to the common law? Is it any one who believes with him that "a strip of the common law, we have neither constitution or government; that our constitution would be unintelligible, and our statutes useless?" Sir, the gentleman tells us "we must leave it to the discretion of the judges to declare what belongs to us, and what is unsuitable." He says we have nothing to do with any thing of a monarchical tendency; yet even upon his own ground this is a question for the discretion of the judges. Have the people of this country ever consented to vest the judges with this extensive discretionary power? Have they ever sanctioned the principle that the judges should make laws for them instead of their Representatives? Is it not legislation to all intents and purposes, when your judges are authorized to introduce at pleasure the laws of a foreign country, to arm themselves with power? The American people never dreamt of such a principle in the constitution, and never will submit to it. They never ought to submit to it. It is giving to the judges a power infinitely more transcendent than that vested in any other branch of the government. The legislature cannot recognize any principle of the common law having a monarchical tendency, yet this principle the judges may recognize, if you leave it to their discretion to introduce any part of the common law which they may think proper.
I have so often heard the gentleman from Delaware maintain upon this floor an opinion that the common law of England was the common law of the United States in their national capacity, and that therefore the federal courts have a general common law jurisdiction, that I think proper to offer some remarks upon it; least silence on our part should be construed into acquiescence.
Let us then examine this subject, and enquire when and how the common law was introduced into this country. The gentleman from Delaware supposes it was brought here by our forefathers at the time of their emigration. To this opinion I might oppose that of the celebrated judge Blackstone, who in his first volume of his commentaries on the laws of England, declares in the most positive terms, that the American plantations were either ceded by treaties, or conquered from the natives; and that therefore the common law of England, as such, had no force or authority there; but wherever it is in force, it arises from their having ingrafted it into their own municipal regulations. [Mr. N. read sundry extracts from the 106th, 107th, 108th, and 109th pages of 1st vol. of Blackstone, to show that this was the opinion of the learned judge.] For this opinion however, Sir, of judge Blackstone, I do not contend. I have seen it very powerfully opposed by able writers, and I think the usage and practice of the colonies themselves furnish a sufficient argument against it. It may perhaps be correct in its application to New-York, New-Jersey, Pennsylvania, and Delaware, which, I believe, were originally settled by the Dutch and Swedes, and were ceded to the English by the treaty of Breda, in the year 1667. These were therefore conquered countries, and the common law of England could not have been brought into them by the original emigrants. It may have been since practiced under in these states, but is indebted for its introduction either to express statute, or to common usage. It goes however to establish the principle for which I contend, that our forefathers brought with them no law having a uniform operation over all the extent of country now contained within the limits of the United States; for when gentlemen speak of a common law of the United States, they must mean a law uniform throughout the whole extent and equally obligatory upon the whole nation. I entertain no doubt myself that the common law of England, or so much of it as was applicable to their situation, was brought over by the original emigrants, to New-England, to Maryland, to Virginia, and the other southern states; and that it continued to be the law of the provinces until altered by their respective legislatures. But it was the law of each province only, and not a general law operating upon the whole; for each was independent of the other, and the municipal regulations of the one could not bind the other. Thus the rule of succession to real estate by primogeniture continued in most of the provinces till about the commencement of the revolution; but in Massachusetts as early as the year 1643 they declared by law that lands should descend and be held in common among the children. In Virginia a fieri facias could not be laid on lands, nor can it even at this time; but in Maryland this rule of the common law was changed by statute in the reign of George the second, and lands were made equally liable to debts as personal property. In Massachusetts, blasphemy and perjury were made capital offences by their own statutes, neither of which were capital at common law, and their
punishment has been otherwise provided for in other states, particularly in Maryland. The doctrine of forfeitures was entirely done away in Massachusetts by their own local laws, and traitors and felons were allowed to devise away their lands, goods and chattels; while in most of the other provinces, the forfeiture upon conviction and attainder continued as at common law. Numberless instances might be adduced in addition to these to show the total disagreement in the various changes made in the common law by the several provincial legislatures at different times, but I apprehend those mentioned are sufficient to convince any candid mind, that there was no general uniform law or rule of conduct operating upon the respective colonies prior to their confederation for the purposes of general defence. Permit me likewise to remark that even if the common law had remained unaltered by the several colonial governments, yet it could not have been considered as a uniform rule of law operating upon them as a nation, because each was independent of the other and had emigrated at different periods, while the common law of England was undergoing the most material changes by act of parliament. The colonization of Virginia took place in the reign of Queen Elizabeth, that of Maryland in the reign of Charles the first, and that of Georgia in the reign of George the second. In the intervening spaces of time, the common law had been greatly ameliorated, and if it is now to be insisted on as constituting the law of the United States, in consequence of its introduction by our forefathers at the time of their emigration, we should be at a loss to determine which of these periods we would fix on as that which was to give the character to the common law; whether it is to be the common law in force in the reign of Elizabeth, or the common law as ameliorated by statute, between that time and the reign of George the second. I need not enter into a detail of these changes, for they will readily occur to most gentlemen who hear me; but as very material changes were made, I think it cannot be contended that the law as existing at one period or the other could have any uniform operation upon the several colonies, who were, as to each other, independent states governed by their own laws, and without any connexion, common government, or general law prior to the declaration of independence.
These observations have been made with a view of showing that as British colonies, although each might have adopted the common law of England for its own purposes, yet each having adopted it at different periods, and modified it in various ways, there was no uniformity in the law; and even if there had been a uniformity, we were not a nation, and therefore could have no law common to the whole. These arguments would likewise apply to show that it was not adopted by the United States in their confederated capacity when they first took a rank among the nations of the earth, or in other words, when they declared themselves independent of Great Britain, and associated for the purposes of common defence. The object of this confederation was defence only, and not internal government. The states each became sovereign and independent, and referred to themselves the power of self government. Many of them by their constitutions adopted the common law as it had been modified by their own provincial statutes, and gave to their legislatures the power of changing it whenever circumstances might require. Congress had no powers given to them; but every thing was done by recommendation, and when afterwards certain powers were vested in congress by the articles of confederation in 1781, they were of a general nature relating to the war only, and nothing, like an authority to establish courts or to grant judicial powers; and I think it would look like an absurdity to say that the common law of England became at that time the common law of the United States, when the only body representing the United States (that is congress) had no power to establish tribunals to carry this law into operation. But, Sir, I think it will not be seriously contended, that the common law of England became the common law of the United States, either as a consequence of the emigration of our forefathers, or by virtue of the declaration of independence, or the articles of confederation. I shall therefore beg leave to examine another ground, which gentlemen may think more tenable.
We have been told by the member from Delaware, that without the common law, the constitution would be a dead letter. Every state in the union he says has adopted it; and he asks why it is denied to the federal constitution? I could have wished that on this subject as well as many others, the gentleman had offered us something like argument, instead of mere wild and arbitrary assertion. However highly we may estimate his talents, he must not expect that we are to yield to his political dogmas. We flatter ourselves that the constitution may stand and flourish without those invigorating principles of the common law, which the gentleman
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To be Sold, A FEW LOTS in Squares No. 902, and 921, near the Barracks; at a moderate price for cash—Apply to Benjamin More, New-Jersey Avenue, who has for sale Rhode-Island Lime, by the cask; and he expects in a few days moulds by the bushel, to be delivered at any wharf in the city. April 14, 1802. ep3t
NOTICE. WAS committed to the jail of Washington county, District of Columbia, a negro Man by the name of JESSE, says he belongs to Peyton Wayal of Georgia; is five feet eight inches high, has a scar on each side of his nose, and his back much scarred. The owner of the above slave is desired to come, prove property, pay charges, and take him away; or he will be sold for his fees agreeable to law. DANIEL C. CRBNT, Marshal of the district of Columbia. April 14, 1802. ep3w
FOR SALE, LOOKING-GLASSES & FURNITURE. The subscriber respectfully informs the public, that he has just received from New-York various kinds of Looking-Glasses, from 5 to 70 dollars each.—Also card tables, bureaus, &c. of an elegant and fashionable make. He continues to manufacture and sell all kinds of ornaments for chimney-pieces, door caps, frontice pieces, metal fishes, &c. &c. GEORGE ANDREWS. April 14, 1802. ep3t
Benjamin Henfrey, RESPECTFULLY informs the citizens of Washington, George-Town, and the vicinity, that he will exhibit his NEW MODE OF OBTAINING LIGHT, in a variety of THERMO LAMPS, At Mr. Thompson's new brick house, Pennsylvania Avenue, on Friday evening next, from 5 to 8 o'clock, and will continue every evening until the 18. May. ** Tickets to be had at the door; price one dollar, to admit a gentleman twice, or once and bring a Lady. April 14, 1802. ep3t
NOTICE. THE public are hereby cautioned against the sale of my house on Square No. 432, on Pennsylvania Avenue, advertised by Samuel Baker, on the 27th instant, he, the said Baker, not having complied with the contract alluded to in his advertisement; nor has he complied with the tenor of an arbitration had on the occasion. The circumstances leading to the same will be made known by application to JOHN HARRISON. April 14, 1802. ep3t
The MAIL PILOT, Will, during the SUMMER SEASON, LEAVE the Columbian Inn, Georgetown at 5 o'clock A. M. and Mr. William Tunnicliff's, City of Washington, at 6 o'clock, every day; for Baltimore, Philadelphia, and New-York; arrive at Baltimore about three o'clock. Leave Baltimore next morning and arrive at Philadelphia next day to breakfast—Returning—Leave Philadelphia at 7 o'clock A. M. and arrive at Baltimore the next day to dine. Leave Baltimore at 6 o'clock A. M. and arrive at Washington at 3 o'clock P. M. Fare and allowance of baggage as usual—All baggage at the risk of the owners. J. H. BARNEY. April 14, 1802. ep3M
N. B. Passengers coming in this line will be sent on to Alexandria, if required, the same evening; and to accommodate my customers a private stage will be sent to Baltimore or Alexandria at short notice. I. H. B.
TO RENT, And possession given immediately, A TWO STORY brick house on F Street near the War Office, containing two parlors, six bed rooms, and a kitchen, with an excellent garden: coach house, stable, &c.—The house is newly painted and papered; it was formerly occupied by Mr. Dexter, and lately by Mr. John Brown. Enquire of Clement Dorsey, Esq. George-Town; or of the subscriber, who has for sale a well finished three story brick house opposite the Six Buildings, and a variety of City Lots in the most eligible situations. The above House will be sold for less than any gentleman could build it. The payments will be made easy on the whole of the above property. WILLIAM DYER. April 7, 1802. ep3t
Building Materials will be taken in part payment. W.D.
The Imported Horse DRIVER, WILL stand the ensuing season, at the CITY OF WASHINGTON, at the stable of the subscriber, at sixteen dollars the season, and five shillings to the groom.—The season will commence on the first of March, and end on the 20th of August next. This will probably be the last season that Driver will stand here, as he is provisionally engaged the next season to stand in North-Carolina. Driver was seven years old on the 28th of April last. He is fifteen hands three inches high, of great beauty, uncommon bone, strength and agility. He is a beautiful blood bay, with a star, small trip, a circle of white round each hind foot, with black mane, tail and legs. Three hundred pounds cash were refused for him at ten months old. Applications made at Mr. Rhodes's, and Mr. Johnson's Tavern. PEDIGREE. Driver was got by lord Edmont's famous running horse Driver, which now stands so high in England, and won twelve races out of fourteen in one year against the best horses; his dam, bred by lord Ossory, was full sister to Strawberry, by Dorimont, an extraordinary good runner; his grand dam the famous running mare Muff, gotten by old King Herod; his great grand dam by Shepherd's Crab; his great great grand dam Mit. Meredith by Cade, full brother to old Lath, by the Godolphin Arabian; his great great great grand dam the Little Hardy Mare, by Battel's Chiders, full brother to Flyng's Chiders, and Sire of Squirt, which was the sire of Marlowe and grand sire of Eclipse; his great great great grand dam Flying Wing, by Williams's Woodstock Arabian, gt. gt. gt. gt. grand dam Points, by the St. Victor Barb, out of a daughter of Whynot, son of the Fenwick Barb.
Lord Egremont's Driver, foaled in 1783, was gotten by Trentham, out of Coquette, who was gotten by the Compton Born, out of a Godolphin Arabian Mare, own sister to Regulus, her grand dam Grey Robinson by the Bald Galloway; great grand dam by Snake, out of old Wilkes, who was gotten by Hautboy, out of Mit. D'Arcy's Pet Mare, a daughter of a Sedbury Royal Mare. Dorimont was foaled in 1772, gotten by Otho, his dam by Babraham; grand dam by the Hampton Court Chiders, out of the Duke of Somerset's Bald Charlotte. Dorimont won eleven thousand two hundred and ninety nine guineas, besides cups, stakes, subscriptions, and the jockey club plate. W. THORNTON.
N. B. The dam of Driver was purchased by my relation Isaac Pickering, esq. of Foxleaze, Hampshire, England, who sent her to the Earl of Egremont's by one of his own grooms. The individual pedigrees were examined in the stud book by Governor Ogle. Driver was never tried but once, by John Tayloe, esq. at Pappahanne, in Virginia, when the bets were in favor of the winner (Varico) distanced the field; but Driver lost one heat by only a few feet, and the other heat by only four inches, in three mile heats, distancing another horse; which, as Driver, like his celebrated sire, is a four mile horse, was thought a great race, especially as he was much out of order in consequence of a bad cough. Col. Hoomes told me he was thought, by those who saw him run, one of the best bottomed horses in America, or perhaps in the world. Driver was put into training the last Autumn, but met with an accident which prevented his starting; however, he proved one of the fleetest horses Mr. Duvali ever trained, and of everlasting bottom.
"I hereby certify, that I trained Dr. Thornton's horse Driver six weeks, and that I never trained any horse that improved more than he did for the time. I think he has great speed for four miles: I think him fast even for one quarter of a mile; and if I had trained him at four years old, I think he would have made the best horse on the continent." Signed, "CHARLES DUVALL." November 18, 1801.
A filly by Driver, belonging to Walter Bowie, esq. is so extraordinary in size, symmetry and activity, that although only 2 years old, he informed Mr. Duvali he would not sell her for less than one thousand dollars; and he will run her next fall, against any untried horse, mare or gelding in the United States, of the same age, for one thousand dollars! W. T.
From a high bred mare only 14 and 12 hands high, one of Driver's colts is 15 and 12 hands high, and not three years old. He is likewise so handsome and active, that 500 dollars cash were offered for him by Mr. Darvall, who having possessed many running horses, may be considered as an excellent judge; but this money was lately refused by Thomas Peter, esq. This colt leapt at 2 years old, over a fence and deep gully in the presence of several witnesses, and the leap was correctly measured by Mr. James White and others, and found to be twenty four feet on the level!
I hereby certify, that my colt, got by Dr. Thornton's high bred imported horse Driver, is large, strong, remarkably handsome and active. He is a rich sorrel, well marked, and is 14 hands 3 and 12 inches high, although not two years old till the 28th of May, out of a blooded mare, and this is her first foal. I have repeatedly refused five hundred dollars for him. ABNER CLOUD. April 5, 1802.
* Varico has proved a capital runner, having beat many of the best horses in Virginia. ** General Lingen will supply pasture at 50 cents per week. 212w2&rawtf
Looking Glasses. J. COOK Wishes to inform his friends and the public that he has a large and elegant assortment of Looking Glasses and Prints.
FOR SALE, At J. March's Store, High-Street, George-Town. THE subjects of the Prints are very interesting, and in superbly gilt frames; and the glasses are of the best qualities, in the most modern and elegant frames, and of any size. They are marked at the lowest cash Prices. March 15, 1802. ep3t
A LIST Of Letters remaining in the Post-Office at Washington-City, on the 1st day of April, 1802. A. William O. Ailen, Archibald Alexander, 2. B. James Burnes, Samuel Boots, Tarleton Bates, Joel Brown, James Boram, Enos Bronson, S. Alexander Brodey, 2, John Barney, Wigglefworth Burditt, Jonathan Berford, Thomas Burnes, Sarah Beckitt, James Barr, Joseph Boone. C. Hugh Carey, Alexander Cunningham, Captain Dan. Carmick, Captain Thomas Carberry, Matthew Carey, John Cogley, John H. Carr, Mr. Cobbett, William Crafts, Rev. Mr. Cotton, Esther Carey, Overton Carr, junr. James Cammeron, Peter Colton, Col. Arthur Campbell, Thomas Collins, Jacob Chandler, William Cogley, 2. D. Samuel Dexter, 2, Aaron Dyer, 2. Cornelius Delavan, Monsieur Dularague, Richard Dalbiels, Eleanor Davice, Isaac Davis, Aaron Dunlap, Capt. Thomas Dalton, John Deterly, Mr. Davis. E. Ruffes Ellet, Griffith Evans. F. Elizabeth Fisher, Joseph Forman, John Forbes, Washington L. Finney. G. William Grindage, 3, William Guest, Ann G. Grose, James Giles, John Gatewood, junr. Edward Gobin, John Gardiner. H. Capt. Charles Hyde, 2, Col. David Henley, James Heron, John Hall, Joshua Hathaway, 2, Laurence Howard, Dr. Alexander Humphreys, Reger Humphreys, Miss Frances D. Henley, 2, David Humphreys & Co. Nicholas Heiner, William Hawkins, Capt. Gervais Hall, Samuel Hardesty, Mrs. Hadgeffin. I. Col. John Jenkins, 2, Richard Jones, Ephraim Igan, Thomas Johnson, 2. K. Patrick Kainteen, John Kern, Thomas Knapp, William King, Philip B. Key. L. Julian and Nancy Leary, Levin Lake, Betty Logan, Lewis Littlepage, Noah Linley, James Lyon. M. George C. Morton, 3, George M c Elroy, Charles Morris, 3, Robert Morris, junr. 2, John I. May, James Magee, Jacob Mixel, Isabella M c Callen, John M c Cluchen, James Morris, Samuel Mickle, William Marshall, James Miles, Capt. Daniel M c Lane, 3. N. Col. Lewis Nicholas, 2, Robert H. Nicholls, Charles Newbold. O. Bicker Offon, 2, Edward O'Brien, Francis I. Oliver. P. Col. Joseph Pannell, 2, David Phipps, William Pickering, Noah A. Phelps, Thomas Paxton, George W. Pollock, Isaac Patterson. R. George Rowland. S. Samuel Sheckell, George F. Stras, Joseph Shephard, John Spalding, George Speth, James Strawbridge, Edmund Scannell, Felix de St. Hilaire, William Summers, James Stevens, Michael Shanks, James Smith, A. Sinds, Mrs. Spiers, John L. Sullivan, John Witherspoon Smith, Andrew Somebody, Mrs. Delilah Stewart, 2. T. John Turner, Peggy Taylor, Capt. Thomas Tingey, Mrs. Emily Thompson, Doctor William Thornton. V. Nicholas Vofs, Andrew Vanbibber. W. Major John W. Willis, Peter Williams, William Wells, 2, Lieut. John Wilson, 3, Jonah Watson, Matthew Welch, John Lambert Wilson, James Wilson, Thomas Witte, Mary Wilson, Doctor Alexander M c Williams, Brigadier General James Wilkinson. Z. Noah Zane.
Public Sale. Will be exposed to Public Sale on the premises at 12 o'clock on Tuesday the 27th instant. A two story brick dwelling house, situate on square No. 432, opposite the new market house, Pennsylvania Avenue, in virtue of a power in me vested by certain articles of agreement executed between me and the present proprietor, John Harrison, for building said House. SAMUEL BAKER. April 12, 1802. ep3t For Sale, Or to To Let, on Ground Rent for ever, FIFTY LOTS. SITUATE between the President's House and Capitol.—The titles to which is indisputable. ISAAC POLOCK. Dec. 16. ep3t