tion, as the chosen arbiters of such a cause, is enviable, though arduous.

After all, a mistake has occurred, in the transaction of our public affairs. It was necessary, in some mode, to rectify it; and to prevent its becoming a dangerous precedent, in evil times. What mode would a rational mind prefer, to the fair and ample investigation of the present trial; and the impartial verdict of an enlightened jury? For my own part, having endeavoured, faithfully, to discharge the duties of my station, I can never regret, (whatever may be the issue) the effort that has been made, to vindicate the constitution and laws of our country. The result, for good, or for ill, rests, however, with you; and I confidently hope, that it may be such, as will never cost you, or your posterity, a blush or a tear, in the presence of God or of man.

Washington, Judge, delivered the opinion of the court.

Impressed with the magnitude of the questions which have been discussed, we could have wished for more time to de-' liberate upon them, and for an opportunity to commit to writing the opinion which we have formed, that it might have been rendered more intelligible to you, and less susceptible of being misunderstood by others. But we could not postpone the charge, without being guilty of the impropriety of suffering the jury to separate, after the arguments of counsel were closed, or of keeping them together until Monday; a hardship which we could not think of imposing upon them. I shall proceed therefore to state to you, in the best way I can, the opinion of the court upon this novel and interesting case. It may not be improper in the first place, to refresh your minds with a short history of the transactions, which have led to the offence, with which these defendants are charged; and to consequences which might have been of serious import to the nation.

Gideon Olmstead & three others, having fallen into the hands of the enemy, during the latter part of the year 1778, were put on board the sloop Active at Jamaica, as prisoners of war; in order to be conducted to New York, whither this vessel was destined with supplies for the British troops. During the voyage, Olmstead and his companions, who had assisted in navigating the vessel, formed the bold design of taking her from the enemy; in which, with great hazard to themselves, they ultimately succeeded. Having confined in the cabin the officers, passengers, and most of the men, they steered for some port in the United States, and had got within five miles of Egg Harbor, when capt. Houston, commanding the brig

Convention, belonging to the state of Pennsylvania, came up with them, and captured the Active as prize.-The sloop was conducted to Philadelphia, and libelled in the Court of Admiralty, established under an act of the legislature of that

state.

Claims were filed by Olmstead, and his associates, for the whole of the vessel and cargo, and by James Josiah, commander of a private armed vessel, which was in sight at the time of the capture by Houston, for a proportion of the prize. Depositions were taken in the cause. A jury was impannelled to try it. The question of fact was, whether the enemy was completely subdued or not, by Olmstead and his companions, at the time when capt. Houston came up with them.— The jury, without stating a single fact, found a general verdict, for one fourth to Olmstead and his associates, and the residue to Houston and Josiah, to be divided according to law and an agreement between them. From the sentence of the court upon this verdict, Olmstead appealed to the Court of Appeals in prize causes, established by congress, where after a hearing of the parties, the sentence of the Admiralty Court, was reversed; the whole prize decreed to the appellants, and process was directed to issue from the Court of Admiralty, commanding the marshal to sell the vessel and cargo, and to pay over the net proceeds to those clai

mants.

The judge of the Court of Admiralty, refused to acknowledge the jurisdiction of the Court of Appeals, over a verdict found in the inferior court; directed the marshal to make the sale, and to bring the proceeds into court. This was done and the judge acknowledged the receipt of the money, on the mar shal's return. In May 1779, George Ross, the judge of the Court of Admiralty, delivered over to David Rittenhouse, treasurer of this state, £11,496 9 9 in loan office certificates, issued in his own name, being the proportion of the prize money to which the state was entitled, by the sentence of the inferior Court of Admiralty. Rittenhouse at the same time executed a bond to Ross, obliging himself, his heirs exe. cutors, &c. to restore the sum so paid, in case Ross should, by due course of law, be compelled to pay the same according to the decree of the Court of Appeals. In the condition of this bond, the obligor is described as being treasurer of the state; and the money is stated as having been paid to him for the use of the state. Indents were issued to Rittenhouse, on the above certificates, and these were afterwards funded in the name of Rittenhouse, for the benefit of those who might eventually appear to be entitled to them.

After the death of Rittenhouse, these certificates, toge ther with the interests thereon, which had been received, came to the hands of Mrs. Sergeant and Mrs. Waters, his representatives. The papers which covered the certificates, were indorsed in the hand writing of Mr. Rittenhouse, with a memorandum declaring that they will be the property of the state of Pennsylvania, when the state releases him from the bond he had given to George Ross, judge of the admiralty, for paying the fifty original certificates into the treasury as the state's share of the prize. No such release ever was giThe certificates thus remaining in the possession of the representatives of Rittenhouse, Olmstead filed his libel against them in the District Court of Pennsylvania, praying execution of the decree of the Court of Appeals. Answers were filed by these ladies; but no claim was interposed, nor any suggestion made of interest on the part of the state, and in Jan. 1803, the court decreed in favor of the libellants.

ven.

On the 2d of April in the same year, the legislature of Pennsylvania passed a law, authorising the attorney-general, to require Mrs. Sergeant and Mrs. Waters to pay into the treasury, the monies, acknowledged by them, in their answer in the district court to have been received, without regard to the decree of that court; and in case they should refuse, that a suit should be instituted against them in the name of the commonwealth for the said monies. The governor was also required to protect the just rights of the state, by any further measures he might deem necessary; and also to protect the persons and properties of those ladies, from any process which might issue out of the federal court, in consequence of their obedience to this requisition, and further should give them a sufficient instrument of indemnification in case they should pay the money to the state. No further proceedings took place in the district court, for some time after the passage of this law.

And when, at length, an application was made for process of execution, the judge of that court, with a very commendable degree of prudence, declined ordering it; with a view to bring before the Supreme Court of the United States a question so delicate in itself, and which was likely to produce the most serious consequences to the nation. Upon the application of Olmstead, the Supreme Court issued a mandamus to the judge of the District Court, commanding him to execute the sentence pronounced by him in that case; or to shew cause to the contrary. The reasons for withholding the process, assigned in answer to this writ, not being deem

ed sufficient by the Supreme Court, a peremptory mandamus was awarded.

It may not be improper here to state, that no person ap. peared in the Supreme Court, on the part of the state, or on that of Mrs. Sergeant and Mrs. Waters, and that no arguments were offered on the part of Olmstead, The idea which I understand has gone abroad, that the mandamus was awarded upon the single opinion of the chief justice, is too absurd to deserve a serious refutation. No instance of that sort ever did or could occur; and in this particular case, I do not recollect that there was one dissentient from the opinion pronounced

Process of execution having been awarded by the judge of the District Court, in obedience to the mandamus, the defendant, general Michael Bright, commanding a brigade of the militia of the commonwealth of Pennsylvania, received orders from the governor of the state," immediately to have in readiness, such a portion of the militia under his command, as might be necessary to execute the orders, and to employ them, to protect and defend the persons and the property of the said Elizabeth Sergeant and Esther Waters, from and against any process, founded on the decree of the said Richard Peters, judge of the District Court of the United States aforesaid; and in virtue of which, any officer, under the direction of any court of the United States, may attempt to attach the persons or the property of the said Elizabeth Sergeant and Esther Waters." A guard was accordingly placed at the houses of Mrs. Sergeant and Mrs. Waters, and it has been fully proved, and is admitted, that the defendants, with a full knowledge of the character of the marshal of this district, of his business, and his commission; and the process, which he had to execute, having been read to them; opposed with muskets and bayonets, the persevering efforts of that officer to serve the writ; and, by such re. sistance, prevented him from serving it.

There is no dispute about the facts. The defendants have called no witnesses; and their defence is rested upon the lawfulness of the acts laid in the indictment. They justify their conduct upon two grounds-1st. That the decree of the District Court, under which the process was issued was coram non judice, and to all intents and purposes void and 2dly, That though it were a valid and binding decree, still that they cannot be questioned criminally, for acting in obedience to the orders of the governor of this state.

A a

;

The decree of the District Court is said to be void, for two reasons; first, because the Court of Appeals had not power to reverse the sentence of the Court of Admiralty, founded upon the verdict of a jury: and, secondly, because the state of Pennsylvania claims an interest in the subject, which was in controversy in the District Court.

The first question is, was the decree of the Court of Appeals void for want of jurisdiction of the case in which it was made? But first let me ask; can this be made a question at the present day, before this, or any other, court in the United States? We consider it to be so firmly settled by the highest judicial authority in the nation, that it is not now to be questioned, or shaken. The power of the Court of Appeals, to re-examine and reverse or affirm the sentences of the Courts of Admiralty established by the different states, though founded upon the verdicts of juries, was first considered and decided in the case of Doane v. Penhallow, in the Supreme Court of the United States. The jurisdiction of that court to re-examine the whole cause, as to both law and fact, was considered as resulting from the national character of an appellate prize court, and not from any grant of power by the state, from whose court the appeal had been taken. The right of the state to limit the Court of Appeals in the exercise of its jurisdiction, was determined to be totally inadmissible. The same question was considered by the Supreme Court upon the motion for the mandamus, and decided to be settled and at rest. If it were necessary to give further support to the authority of these cases, the opinion of the Supreme Court of Pennsylvania in Ross's executors v. Rittenhouse, and the unanimous opinion of the old congress, with the exception of the representatives of this state, and one of the representatives of New Jersey, might be mentioned. If reasons were required to strengthen the above decisions, those assigned by the committee of congress, upon the case of the Active, are believed to be conclu

sive.

But I think it will not be difficult to prove that the law of Pennsylvania, passed on the ninth of September, 1778, establishing a Court of Admiralty in that state, neither by the terms of it, nor by a fair construction of its meaning, was intended to abridge the jurisdiction of the Court of Appeals in cases like the one under consideration. The words are, that the jury shall be sworn or affirmed to return a true verdict upon the libel according to evidence; and the finding