Thomas Jefferson Papers

To Thomas Jefferson from Albert Gallatin, 31 January 1803

From Albert Gallatin

Treasury Department
January 31st: 1803


It having been represented that the District Judge of New-Hampshire had, in a suit where the revenue was concerned, acted in a manner which showed a total unfitness for the office; the District Attorney was requested to collect evidence on that subject. A copy of his letter and the original affidavits he has transmitted, are now enclosed—

The unfortunate situation of the Judge seems to render some legislative interference absolutely necessary—

I have the honor to be, with great respect, Sir, Your mo: obedt. Servt.

Albert Gallatin

RC (DNA: RG 233, PM, 7th Cong., 2d sess.); in a clerk’s hand, signed by Gallatin; at foot of text: “The President of the United States”; endorsed by a House clerk. Enclosures: (1) John S. Sherburne to Gallatin, Portsmouth, New Hampshire, 15 Jan., noting the seizure of the ship Eliza by the collector in October 1802 for unloading a cargo of cables contrary to law, which caused John Pickering, the district judge, to issue a libel against the ship and order the marshal to take both ship and cables into custody, with a trial date set for 11 Nov.; on 21 Oct., without the knowledge of the marshal or district attorney, Pickering appointed three persons to appraise the ship and cables; after the appraisal, without any documentation from the collector and naval officer that duties had been paid, the judge issued an order and directed the marshal to “deliver the ship and cables to a person” who later appeared at the trial as the claimant; on 11 Nov., the court convened but adjourned for the day for “obvious irregularities” in the judge’s conduct; upon the continuance of the trial the next morning, before any of the waiting witnesses for the prosecution were called, “the judge abruptly declared that the ship & cables should be restored to the claimant, and ordered the court to be adjourned”; attempts to induce the judge to suspend his judgment and allow the trial to proceed were ineffectual; Sherburne concludes that while Pickering had been “universally respected” for his “philanthropy, probity & talents,” several years of ill health have impaired his bodily strength and “had an unhappy influence on the powers of his mind” (Tr in same; endorsed by a House clerk). (2) Deposition by Jonathan Steele, clerk of the New Hampshire district court, Portsmouth, 12 Jan. 1803, describing the 11 Nov. trial for libels against the ship Eliza and the cables “alledged to be of foreign growth & manufacture” and unlawfully imported and landed from the vessel, as filed by the Portsmouth collector; instead of reading the libels, Judge Pickering remarked that he had “heard enough of the damn’d libels,” and in profane language declared that he would “decide the whole business in four minutes”; he then invited several court officers and private gentlemen to sit with him on the bench, prompting the attorneys to move for an adjournment until the next day; on 12 Nov., the claimant introduced several witnesses, but before the government’s case was heard “to my utter astonishment,” the judge abruptly “decreed restoration of the Ship and Cables libelled, and ordered me to record the same, & declared that he would not sit to eternity to decide on the damn’d paltry matters”; upon the remonstrance of the district attorney, the judge “said he would hear everything, and swear every damn’d scoundrel that could be produced,” but he rejected the government witnesses, ordered the court adjourned, refused to hear an appeal after an objection by the claimant’s counsel or to allow the filing of a bill of exceptions; while attending the 7 Dec. special district court for a naturalization case, Steele again observed Pickering’s “helpless condition” (MS in same; in a clerk’s hand, signed by Steele; attested by Richard Cutts Shannon, justice of the peace and notary public; endorsed by a House clerk). (3) Deposition of Daniel Humphreys, Portsmouth, 14 Jan. 1803, describing the courtroom during the 11 Nov. trial as Judge Pickering called persons to come up to the bench and take a seat with him: “The manner of his doing this, his profane language, hasty loud boisterous way of speaking, & whole manner shewed him to be at that time quite incapable of supporting the character, or exercising the functions of a Judge of the District Court”; the next morning found the judge in a “no less wild and confused” state; “after hearing the causes in part, & saying a great deal himself, he abruptly ordered a restoration of the Ship & goods to the Claimants”; under protest, the judge continued in a “confused way to hear a little, & then stop & decide, & then hear again”; he displayed, Humphreys concludes, “a mind to a great degree deranged or subverted, either from nervous disorders, or intemperance, or both together” (MS in same; in a clerk’s hand, signed by Humphreys; attested by Shannon; endorsed by House clerks). (4) Deposition of Thomas Chadbourn, deputy marshal, Portsmouth, 15 Jan., noting that on 11 Nov. 1802, when he was assigned to escort Judge Pickering to the courthouse for the trial of the ship Eliza and sundry merchandise, he found the judge “much intoxicated,” but he came to the courthouse “& with difficulty reached the bench”; at the opening of the court, he ordered a number of people, including the deputy and strangers, “to come up, and sit with him on the bench”; the deputy refused until the judge exclaimed, “damn you, won’t you obey the Court”; shortly after the proceedings had begun, the judge “said he had heard enough of the damn’d libels, & would decide the business in four minutes”; persuaded to adjourn until the next morning, Pickering noted he would be sober then, but he appeared the next day “equally deranged or intoxicated” and declared the ship and cables “should be restored”; the district attorney unsuccessfully argued that the witnesses should be heard, but Pickering adjourned the court; when Sherburne pointed out the “mischiefs” the decision would “produce in the collection of the Revenue,” Pickering exclaimed, “damn the revenue, I get but a thousand Dollars of it” and again adjourned the court; the district attorney was thwarted from seeking an appeal or filing a bill of exception with the judge’s rebuke, “ ‘file what you please and be damn’d’ ”; Chadbourn concludes by testifying that during the past two years, he has seen Pickering about once a week, at which times he has appeared “greatly deranged and generally intoxicated” (MS in same; in a clerk’s hand, signed by Chadbourn; attested by Samuel Penhallow, justice of the peace; endorsed by a House clerk). (5) Deposition of John Wentworth, Portsmouth, 15 Jan., reporting that when he took his place at the bar on 11 Nov. at the trial of “certain libels against a ship and sundry merchandize” for breach of the revenue laws, Judge Pickering swore “If I did not come up, and sit with him, he would come down and give me a damn’d Caning”; the judge issued the same invitation to the deputy marshal and others, causing great anxiety in some and “much Laughter in others,” creating great confusion in the courtroom and a postponement of the trial; appearing “equally deranged, and incapable of business” the next morning, the judge, “without hearing either party through,” over and over again declared “that the Ship & Cables, libelled, should be restored”; when the district attorney remonstrated against the abrupt proceedings and begged that his cause might be heard, the judge declared several times, in language to the same effect, that “he would sit to the day of Judgment, but if he sat four Thousand years he would be damn’d if the Ship should not be restored” and more than once ordered the court adjourned; the conduct of the judge both days indicated “he was greatly deranged by intoxication, or some other causes, which from their long prevalence” have rendered him incapable of business (MS in same; in a clerk’s hand, signed by Wentworth; attested by Shannon; endorsed by House clerks). (6) Deposition of Joseph Whipple, Portsmouth, 15 Jan. 1803, noting his attendance at the 11 Nov. trial for libels, where the judge “appeared much intoxicated, deprived of his reason & Judgment and altogether unfit for business”; he answered the request for an adjournment with “ ‘Yes, adjourn the Court I shall be sober in the Morning I am now damned drunk’ ”; on 12 Nov., the judge was in the “same deranged & intoxicated condition”; proceedings of the court were “irregular & confused,” government witnesses were refused a hearing, and “without attending to any evidence or reasoning in the Case,” the judge ordered the seized property to be returned to the claimant; when the district attorney urged the case to be heard because it much affected the revenue, the judge exclaimed, “ ‘Damn the Revenue’ ” (MS in same; in a clerk’s hand, signed by Whipple; attested by Shannon; endorsed by House clerks). (7) Deposition by Richard Cutts Shannon, Portsmouth, 17 Jan. 1803, detailing the events of the 11 Nov. trial and providing the same information as that in the depositions of Steele, the court clerk, and others, above, including Judge Pickering’s response to the observation that the proceedings would have a detrimental impact on the revenue: “damn the revenue, ‘I get but a Thousand Dollars of it’ ”; Shannon concludes: “I have had frequent opportunities of seeing, and conversing with Judge Pickering for more than three years past, during the whole of which time, he has appeared to me greatly deranged in his mind, which I believe has been much increased, if not altogether occasioned by habits of intemperance” (MS in same; in a clerk’s hand, signed by Shannon; attested by Penhallow; endorsed by House clerks). All enclosed in TJ to the House of Representatives, 3 Feb.

suit where the revenue was concerned: in October 1802, George Wentworth, surveyor of customs at Portsmouth, seized the ship Eliza along with cables that he charged were unloaded contrary to the law. Eliphalet Ladd, Federalist merchant and owner of Eliza, applied to Judge John Pickering and obtained the vessel’s release without producing the proper documentation that duties had been paid. Joseph Whipple, collector of customs, had libels issued against the ship and the cables. A trial date was set for 11 Nov. Ladd obtained prominent Federalist Edward St. Loe Livermore as attorney for the defense (Lynn W. Turner, “The Impeachment of John Pickering,” American Historical Review, 54 [1949], 489). For TJ’s appointment of John S. Sherburne as U.S. attorney, Michael McClary as marshal, and Wentworth and Whipple, see Vol. 33:219, 559–61, 668–70, 672, 675–6; Vol. 34:129, 131n; Vol. 37:324, 326n.

For an earlier assertion of Judge John Pickering’s total unfitness for office, see John Langdon to TJ, 14 May 1802, and note.

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