constitutional and void. Upon what is the law predicated? Upon the invalidity of the sentence of the District Court. But have the people of the United States confided to the legislatures of the states, or even to that of the United States, the power to declare the judgments of the national courts null and void? Could such a power be granted to them, without sapping the foundations of the government, and extinguishing the last spark of American liberty? It is a truth, not to be questioned, that the power to declare the judgments of your courts void, can never be safely lodged with a body, who may enforce its decision by the physical force of the people. This power necessarily resides in the judicial tribunals, and can safely reside no where else. Whether a state court is competent to declare a judgment of a federal court void, for want of jurisdiction, need not now be considered. It may, however, be observed, that admitting the right in the first instance, the ultimate decision of the question belongs to the supreme judicial tribunal of the nation, if that decision be required; for the judicial power extends to all cases, arising under the constitution and the laws of the United States, made in pursuance thereof; and the 25th section of the judicial law, with a view to secure to the national judiciary this important privilege, vests in the supreme court a power to review and affirm, or reverse, the decision of the highest court of law or equity in a state, where a question depending upon, the construction of any clause in the constitution, treaty, or statute,. of the United States had been decided against the title, &c. claimed under the constitution, &c. It seems, however, that this power is considered as being unsafely lodged in the national courts, because it may be abused for the purpose of drawing every case, into the vortex of the federal jurisdic tion. Whence can arise this jealousy? Have the judges of those courts, or of any courts, an interest in extending the sphere of their jurisdiction? Quite otherwise: as the jurisdiction of the court is abridged, the labour of the judge is diminished. Is it a privilege, which is claimed for the advantage of the court, or of the individuals, who compose By no means. It is the privilege of the citizen, and as long as I have the honor of a seat on the bench, I will consider myself one of the guardians of this privilege (a very feeble one I acknowledge) and with a steady and unvarying eye, fixed upon the constitution as my guide, I shall march forward, without entertaining the guilty wish, to limit this privilege, where the citizen may fairly claim it, or the desire, not less criminal, to enlarge its boundaries, because it is claimed.

it?

If then the validity of the decree of the District Court be established upon the ground of reason-upon the basis of the constitution-in part, upon the opinion of congress, and decisions of the supreme federal and state courts, more than once given, what follows? That the governor of this state had no power, to order the defendants to array themselves against the United States, acting through its judicial tribunals; and the legislature of the state was equally incompetent, to clothe him with such a power, had it so intended. The defendants were bound by a paramount duty to the govern ment of the union, and ought not to have obeyed the mandate. There were but two modes, by which the general government could assert the supremacy of its power on this occasion;-by the peaceful interference of the civil authority, or by the sword. The first has been tried, and the defendants are now called to answer for their conduct, before a jury of their country. Will any man be found bold enough, to condemn this mode of proceeding, or complain that this alternative has been chosen? But if the accused can plead the orders of the governor, as a justification of their conduct; and if the sufficiency of such a plea is established; the civil authority is done away, its means are inadequate to its end, and force must be resorted to. Are we prepared for such a state of things? The doctrine appears to us monstrous ;-the consequences of it terrible. We regret that it was broached, It was contended, that in a case where a state government authorizes resistance to the process of a federal court, though in a cause wherein the court had competent jurisdiction, the only remedy in such an emergency is negociation. If there were no federal, no common head, this position might be admitted, and on the failure of the negociations, the ultima ras tio must be resorted to. But under our constitution of government, which declares the laws of the United States, made in pursuance of that instrument, the supreme law of the land, and which vests in the courts of the United States jurisdiction to try and decide particular cases, I am altogether at a loss, to conceive, how, in the case stated, negociations between the general and paramount government, in relation to the powers granted to it, and a state government, can be necessary, and could ever be proper. I speak not of the power, but of the right of resistance.

But, it is contended, that the defendants, standing in the character of subordinate officers, to the governor and commander in chief of the state, were bound, implicitly, to obey his orders; and that although the orders were unlawful, still

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the officer, and those under his command were justifiable in obeying them. This argument is imposing, but very unsound. In a state of open and public war, where military law prevails, and the peaceful voice of municipal law is drowned in the din of arms, great indulgencies must necessarily be extended to the acts of subordinate officers, done in obedience to the orders of their superiors. But even there, the order of a superior officer to take the life of a citizen, or to invade the sanctity of his house, and to deprive him of his property would not shield the inferior, against a charge of murder, or trespass, in the regular judicial tribunals of the country.

In the case of Little and Bareme, the supreme court of the U. S. felt every motive, which could affect them as men, to excuse an unlawful act performed by a meritorious officer. He was at sea, without the possibility of consulting with counsul, or others, as to the legality of the act he was about to execute, and which appeared to him to be authorized by the chief executive magistrate of the nation in the instructions received from the navy department. Notwithstanding all these powerful pleas in his favor; pleas which were addressed strongly to the feeling of those, who were to decide on his case; the Supreme Court conceived, that the law of the land did not warrant the instructions given, and, consequently, that the officer was not justified in what he did. I am not sure, but I am induced to think, that he afterwards obtained relief from congress.

This is said to be a hard case upon the defendants; because if they had refused obedience to the order of the governor, they would have been punished by the state. I acknowledge it is a hard case; but with this you have nothing to do, if the law is against the defendants. It may, however, be observed, that had the defendants refused obedience, and been prosecuted before a military, or state, court, they ought to have been acquitted, upon the ground that the orders themselves were unlawful and void; and we ought of course, to suppose that they would have been acquitted.

We enter not into the political discussions which have been so ably conducted on both sides; but we admonish you to discard from your minds all political considerations; all party feelings, and all federal, or state, prejudices. The questions involved in this case, are in the highest degree momentous, and demand a cool and dispassionate consideration. We rely upon your integrity and wisdom, for a decision, which you can reconcile to your consciences, and to the duties, which you owe to GOD, and to your country,

The jury retired between 5 and 6 o'clock to their room, and were directed to be kept together by officers sworn, for that purpose, until they should have agreed upon their verdict; but as they had sat a long time in court, without refresh ment, they were allowed such as they might require. The court adjourned till 8 o'clock P. M.

At 8 o'clock the court met again.

The jury soon after came into court and were conducted to their box. The clerk of the court having called over their names, to which they severally answered, they were asked if they had agreed upon their verdict? One of the jurors said they had not, and he saw no prospect that they ever would, and therefore hoped they might be discharged.

Washington, Judge. The court has given their decided opinion on the law; and you have heard the testimony, which established the facts. It remains still for the jury to agree upon their verdict. They do not complain, that their consciences are affected, with any doubt on the facts; and, consequently, although the judges have, on that ground, sometimes interferred, to discharge a jury, it was not requisite, that the court should do so, on the present occasion. If, however, there is any misapprehension, or difficulty, about the law, the court are ready now, or will be at any time hereafter, to give any further information, or ellucidation, you may require.

One of the jurors. We seem to want no information on that head, for there are three or four jurors, who think they understand the law, as well as the judges themselves.

The jurors were conversing among themselves, and two or three of them expressed an idea, that a special verdict might be agreed to, though a general one, was out of the question.

The jury returned to their room, and the court adjourned till 10 o'clock.

Judge Washington, alone, at half past 10 o'clock, ordered the court to be opened.

The jury came in again, and on being asked if they had agreed upon their verdict, one of them answered, they were exactly in the same situation as when they were last in court, and that there was no better prospect of an agree ment now, than there had been before. That one of the jurors had had a strong convulsion fit, and another was very much indisposed.

Judge Washington (having intimated to the marshal, that medical, and other assistance, should, if necessary, be procured for any juror, who was sick) directed the jury again to

be conducted to their room; and then ordered the court to be adjourned till 10 o'clock on Monday next.

Monday, May 1st 1809, 10 o'clock, A. M.

The court met pursuant to adjournment.

The jury came in, the pannel was called over, and each of them appeared. They were asked if they had agreed upon their verdict. To this their foreman answered that they had drawn up and sealed one. On being directed to open it, he did so, and read the following:

United States versus Michael Bright, Esq. and others. We the jurors to try the above cause, do find the defendants guilty of resisting the marshal, in executing the judicial writ of arrest, issued out of the District Court of the United States for the Pennsylvania district on the 25th day of March last, against Elizabeth Sergeant and Esther Waters, surviving executrices of David Rittenhouse. But as they acted under the orders of the constituted authorities of the commonwealth of Pennsylvania; we are of opimon, that they did not, on their own authority, oppose any law of the United States, acknowledged so to be by the aforesaid commonwealth; but what they had done was merely exécuting the orders of the constituted authorities of the aforesaid commonwealth. 1 Benjamin Thaw, foreman, 2 John Phillips, 3 Conrad Sybert, 4 Matthias Corless, 5 Charles Barrington, 6 Thomas Algeo, 7 Liberty Browne, 8 John P. Gallagher, 9 William Sharswood, 10 John Jennings, 11 George A. Wray, 12 John White, jun. Philadelphia, April 30th, 1809. The verdict was handed to the court, who after perusing it, gave it to the district attorney.

Mr. Dallas. I think I can collect, from this paper, the meaning of the jury, though it is very inaccurately, at least very informally, expressed. It is meant, I think, to declare, that the defendants have committed the act, with which they are charged; but that it was committed as militia men, in obedience to the military orders of the governor. Now, although I am anxious to accommodate the feelings, and the wishes of the jury, it is my duty to take care, that the verdict, if it is a general one, shall legally convict, or acquit, the defendants; and if it is a special verdict, that it shall so state the facts, as to enable the court to give judgment, one way, or the other, according to the law. But the present finding, is not a general verdict upon the issue; and if it is to be considered as a special verdict, it is couched in such terms, as will not admit of the court rendering a judgment upon it, either of guilty, or not guilty. Supposing, therefore, that the