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1 f V.' I .1 ' 1. if 6 id i "Vr ..' So' Car is it from being trde' therefore, that those. orders werrfthe Vivifyingpqnciplev Jivhich gave life and vigor to the Berlin decree? that he acquiescence of neutrals in the exe cution of that decree gainst them was ex "Jressly assigned in the preariible,-as the cause of issuing the orders. . ;In their ftry nature : as well as in the languagejthej; appcarjQbt ""lulrhpTyirieOT measure, diametrically , opposed 'to the decree. The plain-English of the decreeisaddressing itself to America : " You shall toot in future be 'permitted tov sell your property "in France or her dependencies , ' or to bring it into the territory mder any cir. cumstances1 whatever; !h!erss?-you at the- same time prove thatyoti "rifcirer bought it of En--gland or of any of her colonics, upon 'pain' of ; ., coBfisc'ation. Though 'the" property may be J ' bonavhde yours now, u it ever belongedJto a ' ' man fc wing allegi ance to the 'British govern--, mentfrit is contaminated, and I will seize ami confiscate it for my own proper useand be- hoofvherever I can lay my' hands upon it f treaties and laws of natiotis to the ' contrary - notfe-Ustandig." Such was virtually the ' language of the deorce, and -the emperor im- mediately proceeded to carry this outwigeous ' threat into execution. "After "submitting to this spederof commercial warfare for twelve v- months England issues" her ords4n council.. ' which are in substance addressed to her ene my, and not, like thedecrees, to a friendly neutral. They are to France : ". Well, as ; you were really in earnest hp what we -first Vsupppse4LtQ be .mere gasconading, as you- will not suffer the Americans to trade with you in - articles purchased from its or our colonies, and, rs they quietly submit to your assumed ! power of regulating 'their commerce, we Will not allow you-t receive the ' production s of your "own coloniesor of the countries in snb jectiorf to you. "-This is actually the ' whole staffceTand amount 6f the orders in coun cil, .about' which a great noise has been made, ar dvwhicB . Bonaparte has said was a declara- - -tion of war against us, while his partisans . tell Mi iKat-hts conduct towards us has been "mark ed' by nothing but l liberality and friendship." Th- conUusron of the whole' matter is, that the French elect ee of Berlin,' executed against - us lor uvehe months without oppositoii,.. cas oned the ortfers m-cbiincil, which lij'fto r..v.i . . r th r ,-.. ai t-nded'i', the tame surrender of all' our . rig: us upon thtLptean . rights which', we might to hh cijy have enjoyed with h .nor and pro fit to ourselves, had a firm and m inly opposi te t. been made by our government to that . .in: i'ni outrage, by which Bonaparte took hirmeJ f to re gulale up ntmser to regulate our commerce tor us. i;y insolently tU i laving to whom", and1 in whaUraanner we. might be permitted to carry it on. '- - OF THE ATTORNEY GEJVEBjlL .. Qftt United States in the case cf the Manda piu dtily issued by the Judgi s.olhe Circuit Court of the U. S. for tlx .district of South CaroHna. 1." T5rn, , . .,"': .",1 have readjincl considtire the papers and documents referred to me relative to the case' ,of a mandamus, issued by the circuit court of the United States lor the district of South j Ca fylina to compel the collector of the 'port of - JChai lesion to grant clearances to certain ves sels, such; pteingvBeside9th; satte act docs pro1de that the suptemet court shall Js-i sue writs of nandainusAn authority given 'perhaps because it? 'jurisdiction extends all over the, United States. " V ' - The" fourteenth siej:tion,-immediately suc ceeding that which gives this authority in plain atidpositiveteirn3 to:the upiTmecourt ?olclyi if oot exclusively j (and the affirmative frtquentlyfand in "this case justly, I think im plies a negative) contains the following - pip yision : " All the before meriiioned courts" of the United States (including the r supreme, as well as the circuit ' ar.cl district courts) shall liave power to issue Vt its of 'ttirejaciasy h'abeas ccifMs, and all other writs' not - specially pro vided for bystatute, which may be ' necessa-' ry for" the exercise; of their tespceri ve'jurisdic lions." -This claus cannot affect the 'case, I conceive. The' mahd'amus is a writ,; Which we have seenis: specially provided for by law. , Tim section was evidently not ' designed to give any additional jurisdictjon to either of the courts, but merely the means of executing that jurisdiction already granted to them ' re spectively; The issuing ofa mandamus ifrthe casemnder consideration was an ac,t of origi-'l issuing such writs. fial " jurisdiction. "Precisely as' much so, as U vvoHld have liecn m the supreme court, to have exercised the power itrthe case of Mar--bury vs. Madison. In that case the supreme court declared, that to issue a (mandamt;s to the Secretary of State, would be, to exercise an oliginal jurisdiction not given by1 the con stit4Jti6nraTul which could not -be-granted by Congress. The constitution having enume rated of declared the particular cases in which the supreme coyrt should exercise original ju risdiction though there wete no negative ex pressions, the affirmative they considered im plied them. -It was on this -principle alone they refused tp exeit their authority. The practice I believe, has unifonnly been, so far as T can trace it from the books of re ports, -that have been published, or from re rollection and experience on the subject, to the coifttni?Si6neM of excise,,to coirpel , them in a1 proner case? to grant a flnvnit "This case -iy more ana?og6tip .the one now before us han-'any other, .'I 'have been able to disco Ser, after a diligent; research. But in this instance Vhe point was' not made, nor the ques tion argfied. Besidesrthe commissioners ot excise in England form a . board - for superin tending the collection pi that branch of the revenue. They constitute in many respects a court of inferior jurisdiction,'Which in par ticular cases takes cognizance in a summary way, of offences against the excise laws. A mandamus might be granted to such a tribu nal when it would not be issued to a mere ministerial officer, acting under ttfem in the collection tf the rvenqe. - It results front this view of the subject that themahdamus issued by the : circuit coart Jpr the district of South Carolina, was not warranted bv anv Dower'vested in the cir-. m , cuit courts by statute ; nor by any power The first question that naturally presents itself, is, whether the coirrt pbssesed the pow-.-et : ct i utng a hiandamui 'iu such a case ? ' A mandamus in England is stjleda prero-.gint-i-vs writ, ami jn that country is awarded sc4r-y and exclusively by the eouti i -Jiing's Bc'iicji. ; . i', Tjie 'constitution ttnd 1avs of the U. States -estabhih our judicial system, (la tl ese Ve -jntxstrrcfer in drder to ascertain (he- jurisdic- r libit of the respective courts, the extent i f their powers, and the'limits" of their authority. The Act .to establish the judicial courts of the United- States," pitted oiv lhe S lth Sepiember, 1769, detlnes and defines the ju- Ttsdition ot the several courtiherebcrealed, ' .and aiong these the'jtirisdirtion of the cir Icuit courts. Upon acprefuljuid attfntive'pe? V-'.rusal,"it ull be found to leleKate . to. the cif 1 cuit courts no power to issue-writs of .'man - damus. In rive thirteenth Section of that 'act Jhis authority is expresy given to, the s,u- a preme cdurt oi the United States. ' tn like r manner it is bpeciullv provided by the :- act of. . tne oa ot i euruary, luui, mat trie .supreme : court hall iiave power to issue writs ot imit damus Tlxis last act having been, repealed nd'tbe fermexjevivedhfc question must rest ou the construction -to be igiven to tlielvtginai act. ' " . -. : . Tie eleventh section defines and limits the jurisdiction of the circuit courts It is spe--ciully. appropriated to this' jsinge-'. object.- Ther are noi expressions .: in this -'-section which can flirty be( interpreted tp con fe' the authority 'f issuing1 writs qf wavdamu Nor can ;iic power tie -eithc-r.' iniplied or inferred fromVnlafisroagcAit itau8's It-4s-i truer .the pipCfcdurg by niantfainugjn England is on" the crown jsjjfle.ras it is tcfmQ,th.eaourt , v f King's PeHi JHuj is a' prosecution re latiiip to a ci il right to enfo ce itf and to oh- anDlvto the suDreme court for a. - mandamus This court it is true have determined not to issue the writ, when it would be tut act 'cf original jurisdiction. But this I apprehend, can afford no ground for the circuit court's assuming an authority, which the, supreme court have dedined,nmlessVy "legislative act the power be delegated to them. This power is not inherent nor- necessarily,, inci dental to a court of justice, even of general jurisdiction. For in England but a single one of several cnlrt having general juris diction, possesses the authority. -Neither .the xliancery, the crnnmon pleas, nor the exrhe ;quer, though classed among' the 'kings -supe nudr courts, and haying general jurisriiction OveMhc realm, can 'exercise this po'-ver. It is the peculiar, privilege of the king's bench done. Our circuit courts have rimtrelv local arid "subordinate .jinistliction. T'leir analogies" therefore with the 'four courts of England, having general -arid Superior juris diction, must fee very Weak, and still weaker their claim, to the pre-eminent distinction of the king's bench, which possesses "solely the exclusive authority of issuing the mandamus -For these reasons I am induced to believe from the best consideration I have been ena bled tn give- the subject, that the circuit court of S-outh Carolina had not authority to . issue a mandamus to the collector of. the port cf Charleston y, ' . ' 'It is scarcely necessary to remark that whdn. a court has no jurisdiction, evenrm $cnt will not s'lve it, and much less will the mere tacit acquiescercb of a party, in not de nyinjj; their -authority'..- Independent of this ' "serious and. conclu sive objection to the proceeflinq; adopted by the court there are others entitled to censi der8tion..':F6r.pposing the court did not,err in the-xercise. of juiidiction, and admitting the British : doctrines' jen the' su&ject whhout restriction or limitation could be extended ta this country there are legal exceptions to the course they have pursuedry supported by En- glish authority. T T : Ji x In the first place the law gave the collect ov.complete discretion over the subject. Ac cording to .the opinion he might form, he pos sessed competent authority to grant or refuse a cleai ahce And I apprehend where the -law has left this discretion Jn an officer, the court, agreeable tcTtfie British-practice and prece dents, ought not to interpose, by way of man damus, .'- J '"""':,. " Secon(Hf4tn this case tberK was a control--, ing power in the chief magistrate of the LV Mates. '-(There was in fact, an express 'appeal necessarily incident to courts, nor counte nanced by, any analogy between the circuit courts and the court of king's bench, the only court in that country possessing the power of And if further appears that even the court of krne's bench, for the reasons assigned, would not, agreeable to their practice and principles have interfered in the present case by mandamus. Tt might;;. perhaps with' propriety be added that theredOes not appear in the constitxrtlon of the Cnited' States any thing which favors an indefinite -extention of the jurisdiction of courts, over the ministerial officer-within the executive department. On the contrary, the careful 'discrimination which is marked be tween, the several departments,'should dictate great circumspecUoitio each, in the exercise .of powers having -any relation to the other. The courts ate' indubitably the source of regal redress for wrongs committed by minis terial officers, none of. whom are above the law. This Vedress is ttv be administered by due end legal process in the ordinary way. For there appears to be a ma terial and an ob VioUs "distinction, between a course of proceed ing, which redresses a wrong committed by an executive officer, and anijiJerposition by a xnitiallv as in the case of an offence. Th -jprosttpn tlVa'ef()reIthttaih3Ircjii4mirt f shall have , cxdniveB-cocnizance " of all enroe "the iroesarjrKofTc-ii'-e-i (tofuhlj.roder tle au- xictrae lority ol.i-he Uf V'''1'": rY-ZP f phezr th' " ' Ian I yttv'srJW,tJV.Jcahnot wSriatitr -tb-Be s eiven to ttte President bv the very wbrdslof the act of Congress, which authorisfs the collrci- ors,to detidii ressels, until thedecision oft he Presidetit of the-United States be had there upon." By the fnaridamuia the . . reference to j the President is taken avaV, and the collector is commanded to clear the vessel without ' dtlayr- Agreeably to. the AEnt;li&h authorities., under such circumstancies, it is not the course I beiieveTo issUe-a vrandamuu '. $ ' ' Thirdly. The panies it seems hadj theirj le al rumedy against the; coJ'riot;, ar.dfit'" is not usual, if la uiipreceffentied, to grant ;a mr.dayjmrr in sHifchcase. . ' Fourthly. A mardamus xs not imed to -a mere-ministerial officer to compel blmjtp do , his duty. T.lie;-courj will leave, the parties tu their remedy bV ricliorttv tvep; by , indict 1 mandatbry writ, taking-the executive aiithoi i- 1 r.ees and Pelawartsattliis-place, withespTd' ty outot tne nanas ottne rresinem, ana pre scribing the course, -which he-and the agents of any dr partment must pursue. In one case the executive is left free to act in his proper sphere, but is held to strict responsibility ; in the other all responsibility is taken away, and he acts agreeably to judicial mandate. Writs of,this kind if made- applicable tp officers indiscriminately, and acts purely ministerial, and executive in their nature, wculd necessa-, rily have th; effect of transferring the Fovvers vested in one department to another; depr.t ment. If in case like the present, where the ld.w vests a duty-and a discretion in an execu-, tive officer, a court can not only administer redress against the misuse of the authority', jjut can previotisly direct the use to be made t fit? it would seem thaMvnder the name of a judicial power, an execupve function is neces-' sarily assumed, and 'that part of the constitu-) tion perhaps defeated, 'which makes it the duty of the President to take care, that the laws be faithfully executed. I da not 6ee any clear limitation to this doctrine, which would 'prevent the courts from compelling by mandamus all the executive othcers, all subor dinate to the President at leist, whether charged with legal duties in the treasury or , j PHILADELPHIA, July 397 '- ' from on Cwfindtnts '" . "Capt. Howard, a passenger'n y Thalia, SMman, arrived at HwW f S mouth, E. (from whence he SlcdT June) informs, that he saw the SDaS5 puties in Englandthey camiTrom St 7 ro, to rtquest of the English a sn and clothing. They informed, that ti i at St. Andero and in theprovince oFCan had been massacred. At Madrid the lace assaulted the Trench trootlv J? FrencK got the. betterr.and the tro wards withdrew out of the city. rL S rat, it was Said, had two hnrB. w:n., him. Cant. H. confirm t. in.i- r iiiiciiigejrf ( Cadiz had offered, to surrender to the Entft The old king- still reigned under Bg J, tainMeau. The Prince of Austurias was Z sent to Besancon The British Packet Hr i sor Castle, for Falmouth and New-York I to sail the day after the Thalia, f he uA Hohart i'acket, trom New-York, had The ship Un ion, Jacobs, for New-Yorii i Philadelphia, sailed about thesame time frna London, The .ship Otis, of New-York from London to. Liverpool to load with s The ship Alknomac, of this port, was at Fil mouth, not unloaded. The ship Stienct! Howard, from London to New-York, had beta captured and sent into Bayonne Ivoprotv. iy hetd been CQndeinnedK-Jbranfy.ry;yr oeen unaer seizure, vjk vape liatteras, m tr r-u t..:-.:-u i j . . . r" o. icii in wuii a ui uiii iwmcwaia UOl!hdf!;t( and. soon after was informed by vessel spoke, that several "French privateers cruising on the coast, which induced hifns bear -away" for the sound to get into Xew-Yot 'DIslXiVJR. ST.'Louisy'MayJS. biR--Lhe bearer hereoi,.is a chief amon( the Delawares whp. reNide on: Apple creek b this territory. He bas been selected bv the Delawares, tshawnees, MiamiesV&c ins; jour territory to be the bearer of the substance of a speech which I latelv made to the Sliaw otber-departmentyto execute the-same accorcl- tie tlns"prace fofprptection. The traders have .tain prWiiipt fefticsvnd not t- puisfi.t.ri:-i mentt I,n Engla.rKh in "a Very latecysthfyde CHlew t nat.. t ney , wotUd not, gr;int a . pianaamw -tff aVriistelt ,oi cbiimy-" ibf the Woper reniedywaby in-" t.lCtroent- " x:-: l . V :-r.--. r "' am awar of a prrcecVnt in which it ecms admitted that &Mndamu may issue to incr to the opinion of the. judiciary and contra ry to that of the executive. And it is evident that the confusion arising will be greatly in creased by the .exercise of such a powrr, by a number cf separate courts of local jurisdic tion, whose proceedings would have complete and Jinal .effect, without an opportunity of control by the supreme .court. So many branches: of the jiuliciary, acting within their I respective districts, their courses might be. different, and different rules of action might be prescribed for the citizens of the different 6tates, instead of that unity! of administration which the constilution- meanrto secure by placing the executive power for them all, in the same.head. What too becomes of the responsibility of , the executive to the court of impeachment, and to the tiation ? Is he toejnain responsi ble for acts done by c6i!napd of another, de partment ? Or is thef-nation to lose ths ser 1 curity of tha,t responsibility altogether? From these: ..andifother considerations, were this branch ofjLhesubject to bd pursued imight be. inferred, that the constitution of the U. States, by the distributior the poweof our go vernment tf differentdepartrfterits, ascribing"" thtr executive, duties to one, and the judiciary' fo another, controls any principles ' of the English law, wifichTvouTd authorise tither to enter into the depaihient of the other, to an nul the the' powers of that other, and tp as sume the directions olits'operatiorrs to itself. These remarks are. respectfully submitted i to youTpnsideration. ; They are maderwith due deference to the opinion bfc'the dourt,n with one of the 'judges constituting which I arnl pcisbnally acquainted, and for whose cha racter I feel the sincerest regard. - y ours very respectfiilly, !; (Signed) .The PtlESIDEflf of ' the.V. - States.' T C. A. RODNEY. .1.; r .- 7.1 By the Ream, - ' . ; to the Osage nation,. ' -The Osage have killed one of our citizens more than i 3 months since, and have fiiiei to deliver the murderer, 'they hitve' beaten, maimed, wounded and otheruise . insulted and mal-Hreated others ; they have stolen a larps number of iour horses- they, have .watitonljr' kdlecfndnclestroyed Joxiv 1 cattle, thev have plundered our- frontier inhabitants of their clothes, household furniture, &c. destroying such articles as were not portablcf and from late information re :eived bv the traders who have recently returned from their villages, it appears that they evince a hostile (lisposiiiou towards -us, and consequently that other and? exaggerated depredations may be txpected., I have in' several late conferences with the Shawnees, DeUwares, Kipapcas, Soos. batitv Jaways, &c. declared the Osfge nation no' lobe-er under 'the protection of the U. State?, and set them at liberty to adjust their several differences with that abandoned nation in their own ivay,-but have prohibited their a?tork:n& them except with a sufiicient force , to destroy " or drive them from our neifthlwrhood. l'ie White Hair, the great Chief of the Osage, is now with me,-he has found it impracticable tn orrtvem thU -nutmn. and therefore repaired been ordered to leave their villages, as have also the hunters and all other white persons to quit their country ; a considerable luifoler liri already arrived, and tthe others arc daily ex. peeled. Under tlfclc circumstances I hope that -you will permit tve Indians in your terrl-. tory to take their own measUriES' for ttacking the Osage. It is possible that "a part of th? militia f Louisiana will be employed on tliiJ service: The expedition will move about the 20th of -September, Accept the assurance of my most fnentnf regard. " ' ' MERiYVETHEU LEWIS. His Excellency, VVm. H. Harrison, Governor'of Indiana Territory - ' ' St. Albans, XVt.) July 1.4. v Insurtec'tion.-T he rolloWifdep.Qsitiot US been sworn to before Justice ilathawy--r ' Some account of the affair mentioned was p- . lished several days since, ... - . ' - Iy John YVHiTTMba-E, Liettten&t detachment of mililfla under thd conupa'n. CaptV Hopkins, being duly swoita testify . J say That on the morning of the-22i dd?U June, I was at the ganison 'atr'V0ljp'--.. Missisaue bav. where: vve had inWiWy nin barrels of potash, -which had b '"p order of the Collector for the Ujjtrici ol . moTit. - The nuniber of. mt.n in the gnrn -auhajt time amounted to twelve, the resting garrison .that about 2 o'clock in the morninb of that day, about' SO men armed, maden tai k upen us and secared the? senvn-. r bably intending to take tiiepoiasn while t'lf to j but deliver; the property we tjiad m $tpre, minationitd take it away it idl even's kill -everv man .m the garrison, unless the p .h was 'surrendered. ' i OnrfuiiS L ; hich w? rettifild. The fire" was ctni:i"U -.V-r. both sides, spent, (the htii: but cart i lofes e bid in; being &t our ,qv .Vaitci- wherr wcveremnder the ressny fj i nit' v 4'
The Raleigh Minerva (Raleigh, N.C.)
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Aug. 11, 1808, edition 1
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