The national intelligencer and Washington advertiser. (Washington City [D.C.]), 1807-02-23 00:00:00

NATIONAL INTELLIGENCER, AND WASHINGTON ADVERTISER.
VOL. VII.
WASHINGTON CITY, PRINTED BY SAMUEL HARRISON SMITH, PENNSYLVANIA AVENUE.
No. 992.
FIVE DOLLARS PER ANNUM.
MONDAY, FEBRUARY 23, 1807.
PAID IN ADVANCE.
CONGRESS.
HOUSE OF REPRESENTATIVES.
THURSDAY, FEBRUARY 5.
DEBATE on fortifying ports and har- bors, concluded.
MR. G. W. CAMPBELL said he was in favor of filling the blank with 150,000, as from all the official information before the House, this appeared to be the best mode of defence which had been devised. He observed that some time since a majority of the House had considered the gun boat system as the best means of defence. He would ask gentlemen who were then in favor of this system, and were now opposed to it, what reasons they had for their change of opinion. If the President and heads of departments were of opinion that such a number of gun boats was necessary, as had been named, he would ask them what reasons they had for thinking a smaller number sufficient; and whether the mere ipse dixit of a member of this House ought to stand in competition with the deliberative opinion of the heads of departments? They were peculiarly responsible to the nation, and must be considered as having taken more pains to inform themselves on such a subject than an individual member of the House.
MR. C. said he considered some of the arguments urged on this occasion unfair. It had been asked what comparison there was between appropriating 20,000 dollars for the protection of our ports and harbors, and 150,000 for building gun boats? The truth was, that for repairing our ports and harbors, there had been appropriated not merely 20,000 dollars, but at least half a million, a considerable part of which remained unexpended, to which the sum of 20,000 dollars was only proposed to be added. MR. C. said, as he understood the subject, gun boats were intended to supply the deficiency existing in other fortifications. It was the opinion of some of our best informed men that some of our ports could not be defended by batteries, and the system of gun boats was consequently brought in aid of fortifications. But it was asked whether we should build these boats without manning them? MR. Campbell said he could scarcely view this as a serious argument. Was the enquiry made with regard to batteries? The answer made by gentlemen on that subject is, that in case of danger we will man them. The same answer might be given in the case of gun boats. The answer was as complete in one case as in the other. The only true enquiry was, whether in case of an attack we have a sufficient number of gun boats? It was true they might rot—and so also might frigates and fortifications. If this mode of arguing was correct, it afforded sufficient grounds for putting down all the armed vessels of the U. States.
MR. PITKIN, in reply to Mr. Fisk, observed, that he had compared the estimates of a frigate and gun boats, from which he inferred that the equipment and annual expence of a frigate of 44 guns, compared to that of gun boats, was as eight to one.
MR. ELLIOTT said that if the opinion of the President should be complied with there would be one hundred and twenty nine gun boats built, which in actual service would transcend the expence of the navy of the U. S. and would cost more than a million of dollars. MR. E. said he considered the reproach cast upon those who were formerly the advocates of gun boats as strong evidence of their utility. Gun boats had been lately thought much of—what was the result? That gun boats might be considered as a kind of vessel guarding a little deposit of national spirit, if any there was left to put on board; but as soon as they were assailed by the wind or the waves, their maiden purity was gone. They were of no use whenever there was wind or tide; and could only float in a time of profound tranquility.
MR. ALSTON said he possessed little information with regard to the advantages or disadvantages that were likely to flow from building the number of gun boats that was proposed. He merely rose to ask the attention of gentlemen to the grounds taken at the last session. The building of gun boats had been instituted on the recommendation of the President made at the last session. Gentlemen would there find the reasons on which that system had been begun. They were not intended to be sent afloat on the ocean, to commit depredation or attack vessels at sea, but as an aid and support to our fortifications; and to prevent an enemy from annoying our sea ports. It was, he believed, the opinion of the House at the last session, that gun boats constituted the best system that could be devised for this purpose. MR. A. said he had since seen no reason to change his opinion on this subject. He trusted in God the time would not arrive when these gun boats would be called into operation. But could this in fairness be considered as an argument against them? This
system of defence having been adopted, before it was abandoned gentlemen ought to show their utility. The language of the President on this subject was stronger than any he could use. He would therefore take the liberty of laying it before the House.
"I cannot therefore but recommend such preparations as circumstances call for. The first object is to place our sea port towns out of the danger of insult. Measures have been already taken for furnishing them with heavy cannon for the service of such land batteries as may make a part of their defence against armed vessels approaching them. In aid of these it is desirable we should have a competent number of gun boats, and the number to be competent must be considerable."
MR. SMILIE said he had voted for the postponement, to give gentlemen an opportunity of getting information. He had not heard a single gentleman on either side profess to have any information with regard to the power of gun boats. Was it not then singular, that when this measure was recommended by the proper officer, and every member acknowledged his ignorance, that it should be objected to. It was not their duty to be minutely acquainted on the subject. It was the duty of the executive, and he was of opinion that gun boats would be the most effectual system of defence. Are gentlemen resolved to do nothing until they themselves understand the subject? MR. S. said for his part, as he was unacquainted with the subject, he would respect the opinions of those who were best acquainted with it. He said he had been informed that our naval officers were of opinion that gun boats were the best system of defence, and it was evident that so far as they had been under the necessity of using them, they had not been disappointed in their expectations.
MR. EARLY moved to postpone the further consideration of the resolution until this day week.
MR. LLOYD said he should have no objection to the postponement, if he knew any mode of obtaining the information desired. It appeared that the committee had applied to the Secretary of the Navy, who ought to possess full information on the subject. What was his reply? Waving altogether the expression of his own opinion, he merely confines himself to stating that the President thinks it expedient to build sixty additional gun boats. Whence then were they to get the information that was desired, to enable them to determine whether gun boats are a proper defence for the U. S.? They might apply to the President or the Secretary of the navy, and get information from them that they think them necessary. MR. Lloyd however said that he was of opinion that they ought to judge on this subject from what had already taken place. For himself he was free to declare that he was opposed to the gun boat system. He had carefully attended to the arguments of gentlemen, and to what did they amount? Have they adduced an argument to show their utility, or produced an instance to show where they have been useful? It has been said that their utility is established by the use made of them against Tripoli. But he would ask whether they would have been of any use if the vessels of Tripoli had left the shore? It was admitted that gun boats were not useful on the ocean. It was evident then that they were building a navy for a state of perfect calm. And were gentlemen disposed to expend millions for vessels that would be only useful under such circumstances?
It is said however that they will aid our fortifications. To this however it might be replied, that it would be high time to build them after the erection of the fortifications. Several years have elapsed since the first gun boats have been built, and what have they done? Have they in a single instance proved themselves to be of the least utility? Let us then, until they are proved to be useful, refrain from building any more.
MR. Lloyd concluded by observing that when he heard arguments weak as these to induce them to adopt this measure, they were sufficiently strong to convince him that it ought not to be adopted.
MR. EARLY observed that the only information received from the executive on this subject was as to the number of gun boats in their opinion requisite. This was not the point on which at present they wished for information. He added that if they got no further information, he should withhold his vote from giving a single cent for this purpose.
MR. MUMFORD. The gentlemen from N. Carolina on my right, said that if any gentleman can show us any better mode of defence we shall be glad to hear it, and although I think it incumbent on him to show as the utility of gun boats, I will not detain the House but a few minutes to recommend what I conceive to be a far better mode of defence, I mean solid and durable fortifications that will last for ages; and block ships similar to the draft now held in my hand, and which any gentleman may examine at his leisure if he chooses. Sir,
the experience of Copenhagen is an evidence of their real utility ; witness the engagement with the British fleet and the Crown battery (something similar to the plan of Mortalember recommended by me in debate of yesterday) and the block ships. That fleet was actually silenced, and nothing saved the proud navy of old England on that memorable day but the game of flag of truce played off so successfully, by the hero of Trafalgar—and when in order I shall move to adopt those block ships in place of gun boats.
MR. ELMER said he should vote against the postponement, as he knew of no information that could be obtained which would be of any service. Gentlemen in favor of this measure seem to confide solely in executive information. If they were thus disposed to appropriate money whenever the executive required it—be it so. He however believed that it was the duty of the House to get all the information they could obtain, and to act on their own judgment, and he should withhold his assent from completing the system begun the last year. MR. Elmer here suggested as the best mode of defending the port of N. York, to fill up the channel within 15 or 20 feet of high water mark.
MR. CHANDLER said he was in favor of the system of defence by gun boats; but since the gentleman from New York had proposed a new system of defence, he thought it would be best for the present to postpone the subject; and in the mean time to call on the Secretary of War to state what system had been adopted and pursued for defending the port of New York.
MR. TALLMADGE said the question before the House had no connection with the defence of New York—it was a proposition for building gun boats. Having been on the select committee that brought in these resolutions, he thought it proper to state that there had not in that committee been a unanimous opinion in favor of gun boats. He was himself entirely hostile to the measure. He saw no necessity for adding to the number already built, or authorized to be erected. They had 13 gun boats fit for service, and 56 would be soon launched. It would seem to him better to comport with the system of economy, in the first instance to finish and prepare these fifty-six for service. No reason had been assigned for the additional sixty that had been proposed, but the mere opinion of the President. MR. T. said he did not wish to call in question the high authority attached to the opinion of the President, but he would wish to know whether any naval officer had recommended gun boats as a proper defence for the country. He did believe there were some particular circumstances under which they would be useful, and under this impression he had hitherto voted. But when he saw nothing but gun boats called for, he was placed under the necessity of refusing to grant a single dollar. It appeared as if they were contemplated to be relied on as the exclusive defence of the U. S. and if it were intended to let the frigates rot. He was opposed to the postponement, as he did not see the probability of obtaining any useful information not already before the House.
MR. FISK said he was sorry to detain the House a moment longer. The gentleman from Connecticut had observed that he had fallen into a great mistake when he said the expence of eighteen gun boats was not more than that of one frigate. He had read a letter from the Secretary of the Navy to show the comparative expence of gun boat No. 1. and the frigate Boston; but in this statement he had altogether forgotten to mention the expence of the marines. There was another circumstance which the gentleman had failed to notice, viz.—that gun boat No. 1, had cost between 10 and 11,000 dollars, and required about 40 men to man her, while the boats at present proposed to be built would only require 5,000 dollars, and between a half and two-thirds of that number of men. On attending to these circumstances he would find that his estimate was very moderate, and that he might have said that a frigate would cost, as much as twenty instead of eighteen gun boats. Another reason however had been urged by the gent. against gun boats, which was their being contemplated as a substitute for the navy. MR. Fisk said this was one of the strongest reasons that operated on his mind in their favor. It was unnecessary to man them until they were called into actual service. Not so with regard to the frigates, the seamen on board of which it was necessary should be very skilful, and which were consequently necessary to be constantly manned. MR. Fisk said he did not feel very anxious on this subject, as he did not perceive any present necessity for increasing our armaments. But as measures of defence were pressed, it was decidedly in favor of adopting the mode which appeared to him the cheapest and the best. As to the objection which had been made with regard to the number of gun boats proposed, when they considered the numberless rivers in the U. S. they would find there was scarcely one gun boat for each navigable stream. MR. F. said he like-
wise preferred gun boats to frigates, inasmuch as they were not calculated to go abroad. He considered them as a valuable auxiliary to land batteries. MR. PITKIN insisted upon it, that according to the report of the secretary of the navy, eight gun boats in actual service would cost as much as one frigate.
The question was then taken on the motion to postpone, which was disagreed to—Ayes 49—Noes 56.
MR. EPPES moved to postpone the consideration of the resolution until Monday. He said it would take but a short time to gain the information desired by gentlemen. If they could not get detailed information on the subject, the gun boats ought to be resigned to their fate. MR. E. said he well recollected that some time ago a gentleman from Maryland (Mr. Nicholson) read to the House a number of papers in support of their utility, in consequence of which and other information, the House had voted for them. MR. Eppes said he was ready to vote for gun boats as the best defence that could be devised. He had never contemplated them, however, as answering the purposes of a navy. They had on the contrary been considered as a proper substitute for expensive fortifications. What would be the advantage of fortifications in the country generally, and particularly at New York? Were they sure that expending even a million of dollars would make that place secure. What had they been told a few days since? That a single vessel would be able to lay the place under contribution. If this opinion was correct, it showed that some other defence must be resorted to for the defence of our ports and harbors. It was not however, MR. Eppes said, his intention to go into the discussion. He was so hoarse that he could scarcely utter the few words that had fallen from him.
MR. SMILIE observed that they had got into a curious situation. There appeared to be three parties in the House. All those in favor of a fleet were opposed to gun boats. Some gentlemen were in favor of fortifications exclusively, while others were willing to go to a certain expence in fortifications combined with gun boats. This was his own wish. For his own part he was ready to say, that if there could be devised no defence of the country except by a fleet, it should not be defended by his vote, and if fortifications required so vast an expence, he should be against fortifying. But he believed by combining gun boats and fortifications, the country could be defended at a moderate expence. MR. S. said that he believed information in support of the utility of gun boats could be procured. If, however, gentlemen refused asking for this information, and were determined to break down the system of gun boats, let them take the responsibility upon themselves. He believed they would get neither gun boats nor fortifications.
MR. VAN CORTLANDT said he observed that some gentlemen had said that the fortifications at present at N. York were of no use. This however he believed was not the fact. Fort Jay could prevent a vessel from laying before it, and so far the fortifications were of great service. It was true, with a strong wind a vessel might pass. But what then? She could afterwards do but little injury. He granted that gun boats might be of some service to a certain extent, but they ought not to be relied on altogether. Batteries were useful to annoy an enemy, and in addition to them, some coasting vessels would be very serviceable for the purpose of keeping off disorderly and unauthorized persons, such as they had recently seen. He said he should vote for filling the blank with 150,000 dollars, for the purpose of building gun boats, though he did not believe they would prove to be of such use as some gentlemen seemed disposed to imagine. But as gentlemen had declared they would not vote for fortifications without gun boats, he was willing to vote for both.
MR. COOK said they had only 930 seamen at present on the peace establishment. They had 13 gun boats already built, and 36 others building. When completed these would require 1070 men to man them. But of what use would gun boats be unmanned? He was willing to agree to a short postponement for the purpose of obtaining further information.
MR. THOMAS said he rose to correct a remark of the gentleman from Virginia, that a million of dollars had been expended on the port of New York. The fact was that the general government had only expended about 100,000 dollars.
MR. EPPES said he had observed that from information which he had received, he believed the sums expended on the port of New York, including what had been laid out by the state, amounted to near a million.
MR. THOMAS said he was willing to acquiesce in the postponement till Monday, as so short a delay was not calculated to embarrass the measure. In reply to the gentleman who had said that the fortifications would be of no use unless they were manned, he would
observe there was an organized and effective militia in New York, that might be called into service at an hour's notice, and would be competent to repel any force that was likely to be brought against them.
MR. VARNUM said he did not know precisely the amount of money which had been expended on the port of New York, but he believed that more than 120,000 dollars had been expended before the appropriation of the last year. There had been a regular appropriation ever since the year 1794 for the defence of ports and harbors.
[MR. Varnum here detailed the several appropriations made for this purpose.]
In addition to these, large appropriations had been made for fortifications. The total of these appropriations amounted to 955,000 dollars. How much had been applied to the port of N. Y. he could not say. He thought the ports and harbors of the U. S. ought to be defended. The idea of retreating to the mountains was abhorrent to his mind. On the contrary, he thought the enemy ought to be met at the water's edge, and fought inch by inch. The true question however was, in what way an enemy might be best repelled? As to New York he believed it was impossible to erect batteries which would prevent vessels from passing by them; but surely they might be so constructed as greatly to annoy them.
MR. V. said he confessed he was no great admirer of gun boats, though he was willing to allow they might under some circumstances be of considerable use. For the purpose of defending New York, measures had already been pursued to a considerable extent. In addition to the gun-boats which had been built, a large number of cannon had been mounted on travelling carriages. Besides this, there were two regiments of artillery completely organized. Taking the system adopted in all its parts, he did think it was the only safe system that could be adopted for the defence of that harbor, as well as the other harbors of the U. S. He had however no objection to a short postponement for the purpose of getting information.
MR. THOMAS said they had the last session received information from the President of the U. S. that the whole sum expended on the harbor of New York, only amounted to 100,023 dollars.
MR. SMILIE said he rose for the purpose of explanation. If gentlemen imagined he had said he would abandon New York or any other port of the union, they had not correctly heard what he had said. He had observed that he would never consent to defend the country by a fleet. He believed there was no country on earth whose commerce would justify the creation of a navy merely for its protection. He would rather therefore give up the whole trade than protect it by a navy.
The question was then taken on postponing the consideration of the resolution until Monday, which was carried—Ayes 69—When as we have already stated, a motion made by Mr. Early, calling for information relative to gun-boats, was agreed to.
PATENT Fire & Water Proof CEMENT.
Among the various discoveries which have of late been made in the United States, we know of none more deserving of public notice than the following by LEWIS DE NIROTH. Such a desideratum in the architecture of buildings has been long wanting. Many attempts have been made to compose or manufacture a chemical composition similar to that used by the ancient Egyptians; but we have heard of none which approximates nearer to that which is generally called the Egyptian cement and which has put at defiance the ravages of time for several thousand years, than that which the Patentee here describes.
A composition equal in durability to free stone for covering roofs, floors, and plastering walls of houses— Rendering Cellars that are marshy and damp water proof. Chimney pieces. Fire hearths and cisterns. Sicapo front and back doors of houses. Cement pavement entire for front and rear of houses, arches, and works under water, flutes, images, &c. plaster out side of houses. The materials of this cement does not much exceed the price of common plastering.
A specimen of the composition may be viewed at Mr. Steele's hotel, Capitol Hill and also at the Union tavern Georgetown. Feb. 12—35.
FIVE DOLLARS REWARD.
RANAWAY from the subscriber on the 16th of June last, an apprentice boy, named WILLIAM DEBT, a Tailor by trade. He is between 14 and 15 years of age, has light hair, and pale blue eyes; his clothing cannot now be described. Whoever will bring the said boy to me, shall receive the above reward and all reasonable charges.
EDWARD BENNELL, F Street Washington city
N. B. Having heard that the aforesaid boy has been employed by some person at Seaford, (Maryland) I hereby forewarn all persons from harboring him, under pain of being dealt with to the utmost rigor of the law.
Feb. 20—35

SUPREME COURT OF THE UNITED STATES, FEB. TERM, 1807. Ex parte {Erick Ballman and Samuel Swartwout. On motion for a Habeas Corpus ad subjiciendum. MARSHALL, Chief Justice, delivered the opinion of the court, as follows: As preliminary to any investigation of the merits of this motion, this court deems it proper to declare that it disclaims all jurisdiction not given by the constitution, or by the laws of the U. States.
Courts which originate in the common law possess a jurisdiction which must be regulated by their common law until some statute shall change their established principles; but courts which are created by written law, and whose jurisdiction is defined by written law, cannot transcend that jurisdiction. It is unnecessary to state the reasoning on which this opinion is founded, because it has been repeatedly given by this court; and with the decisions heretofore rendered on this point, no member of the bench has, even for an instant, been dissatisfied. The reasoning from the bar, in relation to it, may be answered by the single observation, that for the meaning of the term Habeas Corpus, resort may unquestionably be had to the common law; but the power to award the writ by any of the courts of the U. States, must be given by written law.
This opinion is not to be considered as abridging the power of courts over their own officers, or to protect themselves, and their members, from being disturbed in the exercise of their functions. It extends only to the power of taking cognizance of any question between individuals, or between the government and individuals.
To enable the court to decide on such question, the power to determine it must be given by written law.
The enquiry therefore on this motion will be, whether by any statute, compatible with the constitution of the U. S., the power to award a writ of Habeas Corpus, in such a case as that of Erick Ballman and Samuel Swartwout, has been given to this court.
The 14th section of the judicial act, has been considered as containing a substantive grant of this power.
It is in these words: "That all the before mentioned courts of the United States shall have power to issue writs of scire facias, Habeas Corpus, and all other writs, not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions and agreeable to the principles and usages of law. And that either of the justices of the Supreme Court, as well as judges of the district courts shall have power to grant writs of Habeas Corpus for the purpose of an enquiry into the cause of commitment. Provided that writs of Habeas Corpus shall in no case extend to prisoners in goal unless where they are in custody under or by color of the authority of the U. S. or are committed for trial before some court of the same, or are necessary to be brought into court to testify."
The only doubt of which this section can be susceptible is whether the restrictive words of the first sentence limit the power to the award of such writs of Habeas Corpus as are necessary to enable the courts of the United States to exercise their respective jurisdictions in some cause which they are capable of finally deciding.
It has been urged that in strict grammatical construction these words refer to the last antecedent, which is, "all other writs not specially provided for by statute."
This criticism may be correct, and is not entirely without its influence; but the sound construction, which the court thinks it safer to adopt, is, that the true sense of the words is to be determined by the nature of the provision and by the context.
It may be worthy of remark that this act was passed by the first Congress of the United States, sitting under a constitution which had declared "that the privilege of the writ of Habeas Corpus should not be suspended unless when in cases of rebellion or invasion the public safety might require it."
Acting under the immediate influence of this injunction, they must have felt, with peculiar force, the obligation of providing efficient means by which this great constitutional privilege should receive life and activity; for if the means be not in existence, the privilege itself would be lost, although no law for its suspension should be enacted. Under the impression of this obligation they give, to all the courts, the power of awarding writs of Habeas Corpus.
It has been truly said that this is a generic term and includes every species of that writ. To this it may be added that when used singly—when we say the writ of Habeas Corpus, without addition—we most generally mean that great writ which is now applied for; and in that sense it is used in the constitution.
The section proceeds to say that "either of the justices of the Supreme Court, as well as judges of the District Courts, shall have power to grant writs of Habeas Corpus for the purpose of an enquiry into the cause of commitment."
It has been argued that Congress would never intend to give a power of this kind, to one of the judges of this court which is refused to all of them when assembled.
There is certainly much force in this argument, and it receives additional strength from the consideration that if the power be denied to this court, it is denied to every other court of the United States;
the right to grant this important writ is given, in this sentence, to every judge of the circuit, or district, court, but can neither be exercised by the circuit nor district court. It would be strange if the judge, sitting on the bench, should be unable to hear a motion for this writ where it might be openly made, and openly discussed, and might yet retire to his chamber and in private receive and decide upon the motion. This is not consistent with the genius of our legislation, nor with the course of our judicial proceedings. It would be much more consonant with both, that the power of the judge at his chambers should be suspended during his term, than that it should be exercised only in secret.
Whatever motives might induce the legislature to withhold from the Supreme Court the power to award the great writ of Habeas Corpus, there could be none which would induce them to withhold it from every court in the U. States; and as it is granted to all in the same sentence and by the same words, the sound construction would seem to be, that the first sentence vests this power in all the courts of the United States; but as those courts are not always in session, the second sentence vests it in every justice or judge of the United States.
The doubt which has been raised on this subject may be further explained by examining the character of the various writs of Habeas Corpus, and selecting those to which this general grant of power must be restricted, if taken in the limited sense of being merely used to enable the court to exercise its jurisdiction in causes which it is enabled to decide finally.
The various writs of Habeas Corpus as stated and accurately defined by judge Blackstone, (3 Bl. Com. 129) are 1st. The writ of Habeas Corpus ad respondendum "when a man hath a cause of action against one who is confined by the process of some inferior court; in order to remove the prisoner and charge him with this new action in the court above."
This case may occur when a party having a right to sue in this court, (as a state at the time of the passage of this act, or a foreign minister) wishes to institute a suit against a person who is already confined by the process of an inferior court. This confinement may be either by the process of a court, of the United States, or of a state court. If it be in a court of the United States, this writ would be inapplicable, because perfectly useless, and consequently could not be contemplated by the legislature. It would not be required, in such case, to bring the body of the defendant actually into court, and he would already be in the charge of the person who, under an original writ from this court would be directed to take him into custody, and would already be confined in the same jail in which he would be confined under the process of this court if he should be unable to give bail.
If the party should be confined by process from a state court, there are many additional reasons against the use of this writ in such a case.
The state courts are not, in any sense of the word, inferior courts, except in the particular cases in which an appeal lies from their judgment to this court; and in these cases the mode of proceeding is particularly prescribed, and is not by Habeas Corpus. They are not inferior courts because they emanate from a different authority, and are the creatures of a distinct government.
2d. The writ of Habeas Corpus ad satisfaciendum "when a prisoner hath had judgment against him in an action, and the plaintiff is desirous to bring him up to some superior court to charge him with process of execution."
This case can never occur in the courts of the United States. One court never awards execution on the judgment of another. Our whole juridical system forbids it.
3d. Ad prosequendum, testificandum, delibendum, &c. "which issue when it is necessary to remove a prisoner, in order to prosecute, or bear testimony, in any court, or to be tried in the proper jurisdiction wherein the fact was committed."
This writ might unquestionably be employed to bring up a prisoner to bear testimony in a court, consistently with the most limited construction of the words in the act of Congress; but the power to bring a person up that he may be tried in the proper jurisdiction is understood to be the very question now before the court.
4th and last, "The common writ ad faciendum et recipiendum, "which issues out of any of the courts of Westminster-hall, when a person is sued in some inferior jurisdiction, and is desirous to remove the action into the superior court, commanding the inferior judges to produce the body of the defendant, together with the day and cause of his caption and detainer (when the writ is frequently denominated an habeas corpus cum causa) to do and receive whatever the king's court shall consider in that behalf. This writ is grantable of common right, without any motion in court, and it instantly supercedes all proceedings in the court below."
Can a solemn grant of power to a court to award a writ be considered as applicable to a case in which that writ, if issuable at all, issues by law without the leave of the court?
It would not be difficult to demonstrate that the writ of Habeas Corpus cum causa cannot be the particular writ contemplated by the legislature in the section under consideration; but it will be sufficient to observe generally that the same act prescribes a different mode for bringing into the courts of the U. States, suits brought in a state court against a person having a right to
claim the jurisdiction of the courts of the United States. He may, on his first appearance, file his petition and authenticate the fact, upon which the cause is ipso facto removed into the courts of the United States.
The only power then, which on this limited construction would be granted by the section under consideration, would be that of issuing writs of Habeas Corpus ad testificandum. The section itself proves that this was not the intention of the legislature. It concludes with the following proviso, "That writs of habeas corpus, shall in no case extend to prisoners in goal, unless where they are in custody under or by color of the authority of the United States, or are committed for trial before some court of the same, or are necessary to be brought into court to testify."
This proviso extends to the whole section. It limits the powers previously granted to the courts, because it specifies a case it is particularly applicable to the use of the power by courts; where the person is necessary to be brought into court to testify. That construction cannot be a fair one which would make the legislature except from the operation of a proviso, limiting the express grant of a power, the whole power intended to be granted.
From this review of the extent of the power of awarding writs of habeas Corpus, if the section be construed in its restricted sense; from a comparison of the nature of the writ which the courts of the United States would, on that view of the subject, be enabled to issue; from a comparison of the power, so granted, with the other parts of the section, it is apparent that this limited sense of the term cannot be that which was contemplated by the legislature.
But the 33d section throws much light upon this question. It contains these words "and upon all arrests in criminal cases, bail shall be admitted, except where the punishment may be death; in which cases it shall not be admitted but by the supreme, or a circuit court, or by a justice of the supreme court, or a judge of a district court, who shall exercise their discretion therein, regarding the nature and circumstances of the offence, and of the evidence, and of the usages of law."
The appropriate process of bringing up a prisoner, not committed by the court itself, to be bailed, is by the writ now applied for. Of consequence, a court, possessing the power to bail prisoners not committed by itself, may award a writ of Habeas Corpus for the exercise of that power. The clause under consideration obviously proceeds on the supposition that this power was previously given, and is explanatory of the 14th section.
If by the sound construction of the act of Congress the power to award writs of Habeas Corpus in order to examine into the cause of commitment is given to this court, it remains to enquire whether this be a case in which the writ ought to be granted.
The only objection is, that the commitment has been made by a court having power to commit and to bail.
Against this objection the argument from the bar has been so conclusive that nothing can be added to it.
If then this were res integra, the court would decide in favor of the motion. But the question is considered as long since decided. The case of Hamilton is expressly in point in all its parts; and although the question of jurisdiction was not made at the bar, the case was several days under advisement, and this question could not have escaped the attention of the court. From that decision the court would not lightly depart. (U. S. v. Hamilton, 3 Dallas 17.)
If the act of Congress gives this court the power to award a writ of Habeas Corpus in the present case, it remains to enquire whether that act be compatible with the constitution.
In the mandamus case it was decided that this court would not exercise original jurisdiction except so far as that jurisdiction was given by the constitution. But so far as that case has distinguished between original and appellate jurisdiction, that, which the court is now asked to exercise, is clearly appellate. It is the revision of a decision of an inferior court by which a citizen has been committed to jail.
It has been demonstrated at the bar that the question brought forward on a Habeas Corpus, is always distinct from that which is involved in the cause itself. The question whether the individual shall be imprisoned is always distinct from the question whether he shall be convicted or acquitted of the charge on which he is to be tried, and therefore these questions are separated, and may be decided in different courts.
The decision that the individual shall be imprisoned must always precede the application for a writ of Habeas Corpus, and this writ must always be for the purpose of revising that decision, and therefore appellate in its nature.
But this point also is decided in Hamilton's case and in Burford's case.
If at any time the public safety should require the suspension of the powers vested by this act in the courts of the United States, it is for the legislature to say so.
That question depends on political considerations, on which the legislature is to decide. Until the legislative will be expressed, this court can only see its duty, and must obey the laws.
The motion, therefore, must be granted.
† Laws U. S. Vol. 1. p. 58. ‡ 1. Cranch's reports, Marbury v. Madison. ‡ At Feb. term, 1806, in this court. [Judge Johnson's opinion in our next.]
FOR THE NATIONAL INTELLIGENCE.
MR. SMITH, SIR,
In your paper of the 2d instant, I observe a publication, under the signature of A. S. Hooe, on which I feel it my duty to remark.—That gentleman by taking a retrospect of his conduct towards me, must as in a mirror, see his duplicity. This retrospect I will furnish him with.
On the day preceding my offering a resolution, expressive of confidence in the President and approbatory of the measures of the present administration, Mr. Hooe desired to talk with me, and when aside, mentioned he understood, I contemplated introducing such a resolution, and expressed his hostility to it, or any resolution that might be construed to convey a censure on the republican minority. After a friendly conversation on the subject, in which I informed Mr. H. the purport of the resolution I intended submitting to the House, and manifested to him my inflexible determination to do so;—we parted perfectly friendly as I supposed. On the morning after the introduction of said resolution, upon entering the passage that led to the delegates chamber, with Baldwin M. Lee, Esq., a member from Westmoreland county (with whom I had no acquaintance at that time.) I observed Mr. H. accompanied by a Mr. Alexander (a relation of his) and one or two others. I addressed him as usual, and his conduct was such as is represented in Mr. Lee's certificate, annexed hereto, except as to shaking a stick over my head. I observed the weapon in his hands, but am impressed with the idea, he did not shake it over my head. However, on this I may be mistaken. I must confess that I was much astonished at such bullying conduct, and could attribute it to no other cause than the subject of the aforesaid resolution; and as I had made use of no personalities, I could but view it an unjustifiable attack on me; his superior corporeal powers and preparation for the assault, together with the improper time and place, prevented my noticing his conduct further at that time, than to inform him he should hear from me. His observations about my using improper language the day before must have had reference to my prefatory remarks on presenting the resolution. Yet no indecorous language was used by me. The annexed certificates of Mr. Hunter, of the Senate, of Messrs. Stephenson and Pendleton of the house of delegates, shew that Mr. Hooe is incorrect in his assertions, that we were not together after breakfast, on our way to Richmond, and that he received me with great coldness. The certificates of captain Summers, also of the house of delegates, corroborate the assertion, that there was no pre-existing difference,—or if he harbored resentment towards me, he carefully concealed it.
But I am told Mr. H. says his animosity towards me, is predicated on an occurrence that took place near two years ago,—if such latent cause existed, why has Mr. H. permitted it to lay dormant so long?—When he resides not more than a day's ride from me, and the greater part of last fall, was within two hours ride of me,—nay, was then at my house, on an intimate and friendly footing. Mr. Kemp's certifying that Mr. Hooe mentioned to him several days before I presented the resolution, his determination to call me to account;—does not prove the resolution was not the cause of insult;—as it was generally understood several days before I presented it, that I intended to do so. However, if it was not the cause, Mr. H.'s conduct is equally unjustifiable. The epithets which he states he applied to me, are truly disgraceful,—but when misapplied, they recoil on the accuser. I should not have mentioned a sentence as to the cause of our difference,—it being quite unimportant to the public,—had not Mr. H. insinuated in his publication, that I had been guilty of "certain private misconduct," which is destitute of truth. Mr. H. makes repeated mention of chastising me;—pray what has been his chastisement? It is true, he, accompanied by a few particular friends and a weapon in hand, and possibly others concealed,—grossly insulted me;—for which I called him to the field. We exchanged a shot, which proving ineffectual, were about to repeat it, when the interference of the civil authority, put an end to the contest, and we were recognised for the preservation of the peace.
Yours, &c. JAMES H. BLAKE. Fairfax county, Feb. 6th, 1807.
At the request of Dr. Blake to charge my recollection with the circumstances respecting a difference which lately happened between him and A. S. Hooe, Esq. of King George County. I think they were as follows: viz. Some time in the month of December last, I fell in conversation with Dr. Blake in the Capitol in the city of Richmond, and as we were walking side by side to one of the doors of the Capitol, we met Mr. H. above spoken of, Dr. Blake accosted him in a friendly manner as I thought, and Mr. Hooe's reply to Dr. Blake was very abrupt accompanied with much anger and abuse. Mr. Hooe said a great deal to Dr. B. and among the many harsh and disagreeable expressions which he made use of he called him a scoundrel and charged him with making use of improper language on yesterday, but did not mention what language. Dr. B. stood very firm, and observed he should not consider himself accountable to any gentleman for what he had said under these walls. Mr. Hooe had in his hand a whip or a grape vine, which he shook over the Dr.'s head. Dr. Blake
observed to Mr. H. it was an improper time and place to settle their difference, turned short around and observed that he, Mr. H. should hear from him, BALDWIN M. LEE. Richmond, 20th Jan. 1807.
I here state a particular circumstance, which happened on our journey to Richmond, which taught me to believe that "perfect peace and harmony" existed at that time, between Dr. Blake and Mr. A. S. Hooe, viz. We stopped on the road at a tavern, I think at Hanover court house, and Mr. H. having alighted from his stage; whilst the Doctor was still seated in the same stage with myself, he called to Mr. Hooe and asked him to be so obliging as to set up an advertisement there. Mr. Hooe replied, to the best of my recollection, with pleasure, Sir, and instantly advanced to the stage where the doctor was, and took from him the paper.
The letter in my possession, which Mr. H. refers to, is a denial of certain charges of a private nature, which Dr. B. I always understood, never was apprised Mr. H. alleged against him, until after the inu-.
JOHN C. HUNTER. Fairfax County, Feb. 6th, 1807.
At the request of Dr. Blake we make the following statement:
About the last of Nov. 1806, we travelled in the same stage with Dr. B., from Fredericksburg to Richmond. There was another stage that left Fredericksburg about the same time, in which was Mr. A. S. Hooe. Both stages were very crowded—and the passengers of each were frequently together at the different taverns where the stages stopped. In particular, they all breakfasted together at the Bowling Green. We are under the impression that during the journey we were both made acquainted with Mr. H. by Dr. B. but upon this point we cannot recollect sufficiently to speak with confidence. We saw or heard nothing, however, to induce a suspicion that there was any ill-blood between those gentlemen.
J. STEPHENSON, PHILIP C. PENDLETON.
Summer Grove, 6th Feb. 1807.
SIR—in reply to your enquiries, I with cheerfulness state, that on the morning of the 2nd of December last, being in the chamber of the Executive Council, I observed you engaged in an apparently friendly conversation with a gentleman; who from your introduction, I found to be Alexander S. Hooe, esq. That I never heard of any misunderstanding between that gentleman and yourself, until the morning you informed me of the insult he had offered you. I am with sentiments of respect and esteem, Your obedient, servant.
GEO: SUMMERS. James H. Blake, esq.
[The foregoing communication was received some time since; its insertion has been delayed by more important articles.]
Philadelphia, Feb. 18.
PROSPECT OF LATE NEWS
FROM EUROPE—The ship Oliver Ellsworth, from Liverpool, took a pilot on Sunday last, off New York, came within Sandy Hook, and anchored: but a violent gale coming on the same evening from north west, obliged her to put to sea for safety. We shall probably receive London papers by her to the 8th of January, as she is stated to have had a passage of only 38 days.
Baltimore, February 21.
From a file of Charleston papers deposited at the Merchant's Coffee-House as late as Feb. 9, inclusive, the following news (received at that place by arrivals from Europe to Dec. 31, inclusive, and from N. Orleans to Jan. 21) has reached us:—
That a general embargo at Hamburg allowed no neutral to sail, even in ballast,—The American consul remonstrated, but in vain. To prevent any mischief in consequence of the resemblance between the English and his countryman, he has ordered the latter to send in their names to him, that he may inspect and renew their passports if necessary. Hamburg was garrisoned by 800 Italians.
The members of the English factory were ordered to Verdun.
Judge Workman and Mr. Bradford, printer, at Orleans, were among the persons who have been arrested by the orders of general Wilkinson.
Orders were received at Orleans, to take or destroy (if necessary) all boats belonging to Burr or his friends.
[An address from General Kosciusko to the Poles, is added, which shall be given in our next.]
Charleston, Feb. 12.
FOULK, governor of West-Florida, with 300 men, was at Fort St. Johns, within a few miles of New-Orleans, on the 21st ult. He had requested permission to land his men and march to Baton Rouge, but was refused by General WILKINSON.
STOLEN
On last Tuesday night from the stable of the subscriber, an IRON GRAY HORSE, 8 years old, 14 1-2 hands high, black mane and tail; the hair rubbed off each flank, and the inside of his off thigh rubbed all round.
I will give TEN DOLLARS for the horse and thief or FIVE DOLLARS for the horse only.
LAWRENCE HAYS, New Jersey avenue. Washington, Feb. 23—3t.

Having inserted the "Address of Edward Livingston to the Public," we now publish, from the American , the following animadversions on it, omitting the introduction, which merely refers to the prefatory remarks of the Telegraphe .
From the American. [COMMUNICATION.]
To a right understanding of the nature of his complaint against general Wilkinson, and the respective merits, of the accuser, and the persons implicated by this hand-bill, it will be necessary to take a hasty review of the existing state of things at New Orleans, at the time the acts complained of were committed, and the hand-bill promulgated. And here it is impossible not to feel a mingled emotion of surprise and indignation, at such a publication appearing at such a moment. Let it be remembered, that however our fears may be tranquillized on the event, and by late accounts from the western country the combinations may appear crushed, and its resources diminished, at New Orleans all was in a state of alarm; the enemy in considerable force daily expected; the citizen trembling for his property, his person, his family—baffled at a stand; a distressing suspension of intelligence; the work of warlike preparation occupying the public attention, and to complete the general uncertainty, to danger and distress, the skulking and pernicious agents of the conspiracy mingling with the people, ready to give intelligence to the enemy, to make proselytes to the cause, and in the moment of attack, prepared to aid the assault without by internal treachery. Such is the moment which Mr. L. feels as a fit occasion for the production of discord, and the dissemination of jealousy against the only man around whom the citizens are prepared to rally, and upon whose exertions and resources safety depends. It would surely be not unreasonable to suppose, that this new, but effectual mode of co-operation in the plan of the invader, has been resorted to by the subtlety of a lawyer, who thus evades the penalties, while he assists the purposes of treason. Let the ultimate object of this publication be what it may, the immediate tendency of its violent declamation was to diminish the public confidence in General W., and thus to weaken the means of defence; if complaint could be justly made, policy, at least, dictated, that it should be deferred, and his cause certainly would not have suffered in the public mind, if he had the prudence to prefer the general safety to the vanity of creating a party and exciting a clamor.
In addition to this view of the state of the public mind at New Orleans, let the situation of general W. upon his arrival at that place, and for some time afterwards, be taken into consideration—Convinced that a most unprecedented and dangerous conspiracy menaced the peace of the country, perhaps the existence of the constitution, at his own risk, and upon his sole responsibility, he adopts the resolution of throwing himself into the gap, and defending the pass, and in the execution of this resolution to pursue the most energetic measures, flowing from necessity, and justified only by the occasion, for his country he was willing to run this, as well as any other risk; and to his country he looked for indemnity. With this, his fixed determination, he arrived in New Orleans. Immediately on his arrival, he is surrounded by the agents or emissaries of the plot, some of whom openly declare themselves, under the impression that he was prepared to sell his country, abandon his duty, and prostitute his influence with the army to the purposes of treason; while others stand aloof, insinuate distantly their views and wishes, and await from him the encouraging sign for a more full disclosure. His known and ancient friendship for their leader, once among the most distinguished and favored of the country, the positive and unblushing assurance which had been made to his infatuated followers, that general Wilkinson's co-operation was secured; the confidence with which the plan had been developed to the general by the cyphered letter, and their own fondly indulged wishes, so apt to mislead the judgment, rendered his assistance so probable, that they were unwilling to doubt it, and caused them to yield their hopes, as if expectation had been strengthened into certainty. Thus situated, he becomes, without any extraordinary finesse, possessed of the plan, the means and time of its execution, and the object of immediate attack; unquestionable evidence of the guilt of some is unguardedly furnished; while of others, suspicion is awakened; from what is discovered, a dark presentiment of danger, whose limits are unknown, and whose nature is undefined, is excited. How far the poison has spread, is a matter of conjecture; at this important moment, confidence can only be reposed in safe hands, in characters above suspicion; the various seductions of ambition or interest must be maturely weighed; the discontent of faction, the restlessness of turbulence must be suppressed; they who, from their past lives or present conduct, furnish grounds of suspicion cannot be trusted; against such, the people must be put on their guard, and awful indeed is the responsibility of denouncing on suspicion—But more remains to be done, and greater risks must be incurred; military power
is to be exerted, and an authority other than the regular administration of law to be enforced; men were openly walking abroad, and mingling with the mass of the citizens, whose breath was poison; who were emissaries to pervert, or spies to inform; who, under the very nose of government, and in the heart of a garrisoned town, preparing for an enemy, were organising a party to co-operate with a band of traitors, leagued to a siege it. To seize upon and deliver up the guilty to the civil authority at New Orleans, would answer no effectual purpose of prevention or punishment. If committed to custody, the lenient provision of the law gave free access to their persons; their party could safely communicate on the means of delivery or revolt; emissaries of correspondence with the main body could be ascertained and conveniently employed, and (what was a matter of most serious consideration) an additional motive of attack on the town was furnished by the hope of liberating them, and the expectation that a plan may have been meditated for a diversion in their favor. If however, as was most probable, a total release of their persons by habeas corpus , should be procured upon the ground that whatever treason might have been intended, there was no proof of its actual commission; the hazard of turning loose upon society, men emboldened by impunity and the weakness of the laws, in the more open and daring prosecution of their plan, would be so obvious as to require no sagacity to foresee, and only the resolution to hazard his responsibility for his country, to prevent. Let the American most devoted to constitutional right, and the privilege of personal safety, whose heart beats most warmly for the glorious principles which the revolution cemented, on this trying occasion appeal to his own bosom for the justification of Wilkinson. If the public safety be the supreme law, the strongest obligation was here consulted, and let it not be said that the supreme legislative function was invaded, the distance precluded all timely interference, and the remedy would be too late for the evil, while the man who was to save the country, must deliberate, decide and act in the instant. Unfortunately, indeed is his situation, who in the cause of patriotism must appeal to force; but while we lament the necessity, who will condemn the man who on the purest motives and at his own risk determines to yield to it?
Thus much as an exposition of the circumstances attending general W's arrival at New Orleans, and the motives which determined his conduct. The handbill neither states these motives and circumstances nor offers any matter in refutation or denial of them. The motives of general W. are still left open to surmise, and the author states facts not at all inconsistent with those here alleged. What purpose then is Mr. L. to attain by the publication of this handbill? To prove his innocence of the guilt of which general W. had suspected him, might certainly have contented him, but in addition he charges the general with illegal and oppressive conduct in having dared to suspect him, and endeavors to cover him with obloquy on this account, and for having arrested and sent off to Washington those whom he more than suspected, and against whom he had irrefragable proofs of treasonable plans about to be executed. How far he has succeeded in any or all of these views, it is for the American people to determine; but as one of that people, the writer of this article is free to declare, that the statement of the handbill, taking it to be true, has produced in him "no sentiment of grief, indignation or contempt."
The handbill after a most declamatory exordium, which promises neither candor nor decency, enters into a detail of Mr. L's situation, in point of property, which he takes pains to shew not to be insufficient to satisfy his public debts, and in time to meet his private obligations. This statement is reasonable to suppose is intended to counteract any suspicion which in such a crisis might be entertained of a great public defaulter , who having once violated his official obligations, by the embezzlement of the funds of the state, for which he is still indebted, might be supposed to be under peculiar inducements, and subject to stronger temptations to conspire against the government, as having nothing to lose, and every thing to gain, than one who by such a struggle can gain nothing, but may lose all. It is therefore that Mr. L. guided by the sure instinct of his own feelings, endeavors to remove the first and natural prejudice which his peculiar situation as a debtor to the U. States, is calculated to produce against him in the minds of his readers. In so doing he certainly exhibits more to the public than could be known to general W.—and even admitting the explanation to be satisfactory, he tacitly acknowledges by the necessity he feels himself under of making it, that a ground of suspicion existed in that gentleman's mind, founded on a presumption arising from his past conduct of a nature worthy of particular notice, although no charge has been founded on it , and of a totally distinct consideration from aught that appears to have been alleged in public or private by his accuser. Whether the public may be satisfied or not with his statement of solvency, which he deems so material to his justification, his doubts as to the amount of the debt which he owes to the U. States, (which he cautiously states "may probably be between thirty and forty thousand dollars,") certainly give no immediate prospect of its liquidation.
Having as he supposes obviated this first natural prejudice, he commences a narrative of the intercourse between him and the general, immediately on the latter's arrival at New Orleans, and
refers to the conversation in which Mr. L. mentioned the affair of the bill drawn by Burr upon him in favor of Doctor Bollman, and adds with some degree of bitterness, the remark, that the general behaved with his 'usual cordiality' towards him 'until the very night before his denunciation.'
To account for this conduct of the general is surely no difficult matter. With the same reason which might have reproached him for having listened to his plans, and having led him on to important discoveries, by demeaning himself towards him with his 'usual cordiality.' Although in no instance a friend to practiced deception, the most fastidious moralist would feel no revolting sentiment at the guarded conduct which, without committing faith by a promise, drew from treason its counsel, and discerned rebellion of its instruments; which pledged no oath, and broke no covenant; where the aim was not self but the country, and where he who came to seduce was only not repelled with disdain.
But was the transaction above referred to calculated to create suspicion in the mind of general W.? Let candor judge of his situation and if his decision was false, form his excuse. Satisfied that the contagion had widely spread, that men hitherto esteemed and trusted had yielded to the seduction and that offers had been made to many of the leading men in New Orleans, no wonder if a money transaction between the accuser and Mr. L. by which the principal agent of the conspiracy on the spot was to be furnished with funds to carry on his treasonable operations, should excite distrust of the source whence the supply came; while the freedom of the communications, which were there unreservedly made to him by the unquestionable agents of the conspiracy, must have rendered it in his mind not improbable, that this intelligence was, as in many other instances, intended as a token of understanding, and a ground of mutual confidence. Those who, aware of the plot, strongly suspected gen. W., was connected with it acted accordingly, some with less, others with greater caution, and it is no matter of complaint if the general who knew his own innocence, and was fully sensible of what was going forward, resorted suspicion upon those who apparently acted under its influence, and if the existing state of things gave a peculiar import and color to words and transactions otherwise in their meaning and tendency, innocent or indifferent. The mention of such a money transaction at that moment was well calculated to raise doubt; to have supplied with funds him who was preparing to execute projects of destruction, must have appeared to monstrous. that to have considered such a circumstance in Mr. L's situation as totally accidental, must have required a penetration all perfect, and all seeing, that could enter the tabernacle of the human mind and with infallible perspicacity trace every thought to its source, & every action to its motive. It is sufficient for general W's justification, if the common sentiment of mankind be with him, and what lover of his country in such circumstances would have less than suspected such a transaction?
But when in addition to the motives of doubt attached to this party's public situation and this most unlucky money transaction, is super-added the affidavit of Dr. Rodgers, cold indeed must be that judgement which is not affected by the proof, and lukewarm must have been general W's zeal for the public welfare, if he did not openly declare his mistrust, and put the people on their guard. We accordingly find him in open court discharging this duty, strictly confining himself to the transaction between Mr. L. and Dr. Bollman & the affidavit of Dr. Rodgers, and upon these two circumstances declaring an opinion of the guilt of Mr. L. And this is the offence, this the personal wrong of which Mr. L. complains—this is what he flies "an attempt to over-awe by denunciation, those who dared professionally to assert the authority of the law;" that he should be suspected, and the suspicion undignifiedly and publicly stated, is the sum total, and real amount of the injury.
Of this wrong and the exasperation offered to the feelings of Mr. L. the public is enabled to judge from his own statements. Whatever may be the corrosion of mortified pride, or the interested clamor of suspected guilt, whether his views by this publication point only to the establishment of his innocence, or to the furtherance of faction and treasonable designs, the charge so loudly complained of, strip of declamation and glos, whether referred to the abstract affector of constitutional right, or the calm deliberator on national welfare, appears on the one hand supported by evidence, on the other justified by the occasion. No seizure of the person or property of Mr. L. follows the disclosure, and with the same entire safety he publishes an inflammatory handbill in the heart of a fortified town preparing for an enemy, against the commander in chief of the forces by which in revenge for being suspected, he shews himself disaffected, and to prove himself no accomplice in treason,
exerts himself to effect that which would be the great object of treason to accomplish, to wit, the dissemination of discord, and the production of mutual distrust.
It remains to consider the other charges and invectives against General W. contained in his handbill. This shall be the work of a future occasion.
WASHINGTON CITY.
MONDAY, FEBRUARY 23.
In our last paper we published a statement of the proceedings of the Senate on the bill relative to a repeal of the duty on salt, &c. received from a member of that body. We are since informed that this statement, so far as it respects general Smith, of Maryland, is incorrect; and that that gentleman did not speak against the repeal; but that he spoke against the continuance of the Mediterranean fund longer than the 31st December next, and in favor of modifying the repeal of the duty on salt—so that the eight cents per bushel imposed in '97 should cease on the 30th June, and the remaining 12 cents on the 31st December next; and that he voted against striking out the two sections, that repeal the duties now imposed on salt.
SUPREME COURT of the UNITED STATES.
FRIDAY, FEBRUARY 20.
Mr. Rodney informed the court that he had not been able to find any cases that bore with precision on the point yesterday submitted by the court.
Mr. Martin observed that he had handed to the chief justice some few authorities, which might be examined by the Attorney general.
After examining them Mr. Rodney said that he found Mr. Martin had not been more fortunate than himself, that the cases did not pointedly apply, and required no further observations from him.
After some remarks on the inadmissibility of General Wilkinson's affidavit by Messrs. F. Key, Harper, Rodney, and Martin;—and some incidental remarks from the court,—the Chief Justice said the court would take time to consider the case, and hoped by to-morrow to be able to give an opinion.
Mr. Martin, in consequence of the proposition made yesterday by the court, requested them to state the bail that would be required for the recognition of the prisoners.
The court required bail to be given by each of the prisoners, himself in a sum of $3,000 dollars, with sureties to the like amount.
Messrs. Martin and Van Ness were received as bail for Mr. Swartwout—and Messrs. Martin and Harper for Mr. Bollman.
Saturday February 21.
Chief Justice Marshall delivered the opinion of the court in the case of Messrs. Bollman and Swartwout.
The opinion was very long, and went, to a considerable extent, into a definition of the crime of treason.
On several points involved in the case the court, consisting of four judges (Judge Livingston having gone home in consequence of the illness of his daughter) were equally divided.
The opinion concluded with the order of the court to discharge the prisoners.
As we purpose giving this important opinion, at length, in our next paper, we have avoided any statement of its contents.
A letter has been received from general Adair addressed to the Kentucky delegation stating the circumstances of his arrest at New Orleans, the harsh treatment which he says he has experienced, and declaring himself innocent of all participation in any scheme hostile to the United States. In this letter (which we had expected to have given in this paper) general Adair represents that while in Kentucky, he received some time in November a letter from general Wilkinson, dated Sept. 29th, inviting him to come to New Orleans, and join him in an attack on and conquest of the Spanish possessions: and that he immediately answered it, declining all participation in the plan proposed to him. He adds that his purpose in going to New Orleans was entirely to make a purchase of lands.
Extract of a letter, dated Washington, Mississippi Territory, Jan. 19, to a gentleman in this city.
"Mr. Burr arrived at Judge Brum's, above Natchez, ten or twelve days ago. He wrote to Mr. Meade the acting governor, stating that his objects were laudable, that they were not unfriendly to the U. S. and cautioning him against arming citizens against citizens, and thus producing a civil war. Mr. Meade called out the militia. A warrant was issued against Mr. Burr and a party of militia were sent to take him. Several persons who had come to Natchez were apprehended by the military and dismissed by the acting governor on their parol till to-day. Judge Rodney to whom they have come has been examining them, but they appear to know but little of the real designs of Mr. Burr. Mr. Burr himself avoided being taken, by crossing the river. The Secretary sent his aids to him, a written capitulation was entered into, and last night Mr. Burr came to this place, the seat of government, and is to be examined in a day or two. He states that his object was to be ready on the call of government to make an attack
on the Spanish possessions, had war been declared. He has nothing with him that can be called a force. He appears indignant at the proceedings which have been instituted against him and speaks with much bitterness as I am told of Gen. Wilkinson. The general does not seem to be popular here, and I think upon the whole that there appears to be a greater solicitude to criminate him, than any one else.
"P. S. Mr. B. alleges that the correspondence which it is said that he has carried on with General Wilkinson, containing plans for invading the Spanish provinces, &c. emanated, as he can prove, from the Marquis Yrujo, who fabricated these letters to injure him."
HOUSE OF REPRESENTATIVES.
FRIDAY, FEB. 20.
The House resolved itself into a committee of the whole—Mr. BASSETT in the chair on the bill respecting the claims to land in the territories of Louisiana and Orleans.
Several amendments were made; when the committee rose and reported the bill, which was ordered to a third reading to-morrow.
Mr. R. Nelson, from the committee appointed for that purpose, submitted a bill for the relief of Rinaldo Johnson, which was referred to a committee of the whole to-morrow.
The House resolved itself into a committee of the whole—Mr. TENNEY in the chair—on the bill for the relief of Daniel S. Dexter.
The committee reported the bill, without amendment, and the House ordered it to a third reading to-morrow.
The bill supplementary to the act relative to grants of land to refugees from Nova Scotia, &c. was passed through committee of the whole, and ordered to a third reading.
The House resolved itself into a committee of the whole—Mr. GREGG in the chair—on the bill to punish frauds committed on the Bank of the U. S.
After some amendment, the committee rose and reported the bill, which was ordered to a third reading to-morrow.
The House resolved itself into a committee of the whole on the report of the committee of claims on the petition of Oliver Pollock; which is in favor of allowing the claim of the petitioner to a certain extent.
After a short discussion the committee rose and reported the resolution, in which the House, after debate, concurred, and committed it for the purpose of bringing in a bill.
The motion made by Mr. J. Clay, to make certain additions to the standing rules of the House, was taken into consideration.
After much discussion, and some amendment, the House adjourned at a late hour without passing a final vote on it.
Saturday, February 21.
The House resolved itself into a committee of the whole—Mr. Tenney in the chair, on the bill making an appropriation for the further protection of the ports and harbours of the U. S.
The first section of the bill appropriates "20,000 dollars" to this object.
This sum was struck out.
Mr. Cooke then moved to fill the blank with 300,000 dollars.
This motion was advocated by Messrs. Cook, Ely, Dana; and opposed by Messrs. Chandler, Holland, Elmer and Fisk.
Mr. Newton spoke in favor of making a liberal appropriation, without pledging himself to vote for the sum proposed.
When the question was taken, and the motion disagreed to—Ayes 44—Noes 37.
A motion to fill the blank with 200,000 dollars was likewise negatived—Ayes 46.
Mr. Newton moved to fill the blank with 150,000 dollars, which motion was agreed to—Ayes 56—Noes 37.
Mr. Thomas then offered a new section, appropriating dollars to enable the President to build gun boats.
This resolution was supported by Messrs. Cook, Alston, Smilie and Gregg; and opposed by Messrs. D. R. Williams and Quincy;—and agreed to—Ayes 53—Noes 34.
The first blank was then filled with "150,000 dollars;"—Ayes 53—and the second with "thirty."
The committee rose, and the House adjourned without deciding on the report of the committee.
Tickets in St. Paul's Parish.
LOTTERY—BALTIMORE.
NOW DRAWING.
May be had of any of the Managers, for whose names and the scheme of the Lottery, see the National Intelligencer, No. 985.
February 21—
RUNAWAY.
ON the 5th inst. a yellow man calling himself JOHN CLEMMONS was committed to the jail of Washington county in the district of Columbia as a runaway. He is about 25 years old 5 feet 8 and 1/2 inches high, much pitted with the small pox, has a scar on his right hand made by a cutlass—fays he is free, and belongs to Lancaster in Pennsylvania. He was committed in fallers clothes, and says he has been accustomed to follow the sea.
The owner of said Clemmons (if he have any) is desired to release him, or he will be sold for his expenses at the law, direct.
DANIEL CARROLL BRANT, Marshal of the district of Columbia. Feb. 23—1796