uponthat act, or the governors orders; for they would have a higher authority to support them. And, on the other hand, if the decision of the court was constitutional, neither the act of the legislature, nor the orders of the governor, could justify the defendants in opposing its execution.

It has been decided in the supreme court of the United States, that the orders and instructions, given by the lare president to the commanders of our public ships of war, should not be read in evidence. Though the reading could not biass the minds of the court, who are the legitimate organs, to put constructions upon the laws; it was determined that the instructions should not be read, on the ground of principle. This took place during Mr. Adams's adminis tration, in the case of Little et al. v. Barrame et al. where the instructions were offered, to justify the capture of an Ame rican vessel, which had been irregularly made, under cir cumstances, warranted by the instructions, but not warranted by the act of congress.

If we were to decide in this case, upon the strict principles of law, we should consider it improper to admit the evi dence now offered, but it is the anxious wish of the court, that this case should be fully opened, and fairly discussed, so that whatever may be the decision of the court and jury, all mankind may be satisfied, that the cause. has been fairly heard, and deliberately considered.

It is a great question, and its magnitude is increased, when I consider that the evidence now offered is no less than the act of the legislature of Pennsylvania, one of the most important states in the union. Nor, can much injury result in admitting it, though it were improper evidence, for, it is known to every person in court; and it would be a matter of mere form not to allow it to be again read. I therefore, think it best to let it be read; but as to its result and effect, it will depend upon the other question, whether the decision of the district court was unconstitutional, or not.

Mr. Dallas. I rise only to express my sincere satisfaction at the decision of the court, which makes an exception, and not a precedent, in the law of evidence. I deemed it my duty to state the objection, that it might not be thought, on the one hand, that it was overlooked; nor, on the other, that it was unfounded, upon general principles.

Mr. Franklin then proceeded to read the message of go. verner McKean, and the act of assembly as follows:

"The secretary will, at the same time, present you with copies of a sentence or decree of the honourable Richard Peters, esquirre judge of the district court of the United

States, in and for the district of Pennsylvania, in a cause wherein Gideon Olmstead, and others are libellants, against the surviving executrices of the late David Rittenhouse, esq. deceased, respondents.

"Having had knowledge of the cause, and all the circumstances attending it, twenty-four years ago, I cannot, in duty to the commonwealth, silently acquiesce in some of the former or late proceedings therein. By the ingenuity exercised in this business," an act of congress," " an act of the gene. ral assembly of the state," and "a verdict of the jury," are held for nought: by a strained construction, the treasurer of the state is converted into a stakeholder, and a sentence given in favour of the libellants, without any summons, notice to, or hearing of the commonwealth of Pennsylvania, the other only real party, whose interest may be thereby affected to the amount of nearly 15,000 dollars.

"The commonwealth, not being made a party to the suit, cannot sustain an appeal to the supreme court of the United States, and resistance would be extremely disagreeable, though the whole process should be held as coram non judice, which must be the case, if it had been made a party; (for, by an amendment of the constitution of the United States, of the 21st December, 1793, it is declared, "that the judicial power of the United States, shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States, by citizens of another state, or by the citizens or subjects of any foreign state," and as this decree has been passed during the session of the general assembly, to wit, on the 14th of the present month, I have conceived it my duty to lay the affair before you, for advice and direction.

"An act relating to the claim of this commonwealth, against Elizabeth Sergeant and Esther Waters, surviving executrices of David Rittenhouse, esquire, deceased.

"Whereas by an act of congress for the erecting of tribunals, competent to determine the propriety of captures during the late war, between Great Britain and her then colonies, passed the twenty-fifth day of November, one thousand seven hundred and seventy-five, it is enacted in the fourth section thereof as follows, viz. "That it be and is hereby recommended to the several legislatures in the United Colonies, as soon as possible, to erect courts of justice, or give jurisdiction to the courts now in being, for the purpose of determining concerning the captures to be made aforesaid, and to provide that all trials in such case' be had by a jury,

under such qualifications as to the respective legislatures shall seem expedient;" and in the sixth section thereof as follows, viz. "That in all cases an appeal shall be allowed to the congress, or to such person or persons as they shall appoint, for the trial of appeals:" and whereas by an act of the general assembly of Pennsylvania, passed the ninth day of September, one thousand seven hundred and seventy-eight, entitled, "an act for establishing a court of admiralty, peals were allowed from the said court in all cases, unless from the determination or finding of the facts by a jury, which was under the provisions of that law, to be without reexamination or appeal: and whereas by a resolution of congress, of the fifteenth day of January, one thousand seven and eighty, it was among other things declared, that trials in the court of appeals should be according to the law of nations and not by jury; and whereas the British sloop Active, having been captured as prize on the high seas, in the month of September, one thousand seven hundred and seventy-eight, and brought into the port Philadelphia and there libelled in the court of admiralty of the said state, held before George Ross, esquire, the then judge of the said court, on the eighteenth day of the said month of September: and whereas the libellants then and there against the said sloop Active, were Gideon Urmstead or Ormstead, Artimus White, Aquila Rumsdale, and David Clarke, whe claimed the whole vessel and cargo as their exclusive prize. Thomas Houston, master of the brig Convention, a vessel of war belonging to Pennsylvania, who claimed a moiety of the said prize for the state of Pennsylvania, himself and his crew; and James Josiah, master of the sloop Girard, private vessel of war, who claimed one-fourth part of the said prize for himself, his owners and crew and whereas all the facts respecting the said capture being submitted to the said court of admiralty, and a jury then and there returned, impannelled and sworn, a general verdict was brought in by the said jury, which was confirmed by the court, whereby Gideon Olmstead, Artimus White, Aquila Rumsdale, and David Clarke, became entitled to one fourth of the said prize: Thomas Houston, for himself and crew became entitled to another fourth; the state of Pennsylvania as owner of the vessel of war the Convention, to another fourth; and James Josiah for himself and owners, and crew of the sloop Girard, become entitled to the remaining one fourth part of the prize; and whereas the said Olmstead, Artimus White, Aquila Rumsdale, and David Clarke, being dissatisfied with the

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verdict and sentence aforesaid, did appeal from the said court of admiralty of Pennsylvania, unto the court or committee of appeals appointed as aforesaid, under the authority of congress, notwithstanding the recommendation of congress aforesaid, of the twenty-fifth day of November, one thousand seven hundred and seventy-five, for the appointment of courts of admiralty in each of the then United Colonies, did expressly provide that all trials respecting capture should be had by a jury, and under such qualifications as to the respecting legislatures should seem expedient, and notwithstanding the court of appeals did decide not by a jury, but by the usage of nations, and notwithstanding the law for establishing the court of admiralty of Pennsylvania, did expressly take away the right of appeal, where the facts were found and determined by the intervention of a jury, and notwithstanding this state was authorized at the time to make such qualification or provision, taking away the right of appeal in jury cases, by virtue of the recommendation of congress aforesaid, which allowed and recommended the said courts of admiralty to be established with a jury, under such qualifications as to the respective legislatures should seem expedient: and whereas the said court of appeals of the United States, on the fifteenth day of December, one thousand seven hundred and seventy-eight, did reverse the sentence of the court of admiralty aforesaid, and did decree the whole of the said prize to the appellants: and whereas the judge of the court of admiralty to wit, George Ross aforesaid, did refuse obedience to the decree of reversal, and did direct Matthew Clarkson, then marshal of the said court, to pay part of the proceeds of the said prize, to the amount of eleven thousand four hundred and ninety-six pounds, nine shillings and nine-pence, Pennsylvania currency, for the use of the state of Pennsylvania, into the treasury of the state of Pennsylvania, whereof David Rittenhouse was then treasurer, taking a bond of indemnity from the said David Rittenhouse, as treasurer as aforesaid, to save him the said George Ross, his executors, administrators, &c., harmless from the consequence of such payment which bond, is dated the first day of May, one thousand seven hundred and seventy-nine: and whereas the said George Ross dying, suit was brought against his executors in the Court of Common Pleas of Lancaster county, by and on the part of the appellants before named, for the money whereunto they pretended title, by virtue of the decree aforesaid, of the Court of Appeals reversing the sentence of the Court of Admiralty, whereof the said George

Ross had been judge: and whereas it does not appear that the said David Rittenhouse had any notice or information, or was in any legal way apprised of, or made a party to the said suit in the Court of Common Pleas of Lancaster county, either in his personal capacity, or as treasurer of the state of Pennsylvania, so that judgment was obtained by default against the executors of the said George Ross, without any knowledge of the said David Rittenhouse, or his being able to take any measures on behalf of himself or the state of Pennsylvania, to prevent the same: and whereas in conse quence of the judgment so obtained in the said Court of Common Pleas of Lancaster county, against the executors of the said George Ross, the said executors brought suit against the said Dauid Rittenhouse, which in the year one thousand seven hundred and ninety two, in the term of April of the same year, was heard and determined in the Supreme Court of Penn sylvania, (on a case stated for the opinion of the court after verdict taken for the plaintiff subject to that opinion) by Thomas M'Kean chief justice, and others, the judges of the said court, who among other things thereunto relating, did decree and de termine, that the reversal as before mentioned, had and made in the Court of appeals, was contrary to the pros isions of the act of congress recommending the establishment of Courts of Admiralty, and of the general assembly of the state of Pennsyl vania, in their act for the establishment of the said court, and was extrajudicial, erroneous and void, and that the Court of Common Pleas of the county of Lancaster, was incompetent to carry into effect the decree of the Court of Appeals, and that the judge of the Court of Admiralty aforesaid, George Ross, was not liable to an action in a court of law, for distributing money according to his decree as judge of the said court: and whereas at the second session of the third congress of the United States, held at the city of Philadelphia in the month of December, one thousand seven hundred and ninety three, it was proposed as an amendment to the constitution of the United States, that the judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state, which having been adopted by the requisite number of states, as appears by the communication to congress of the then president John Adams, to this purpose, of January the eighth, one thousand seven hundred and ninety-eight, did become a part of the constitution of the United States: and whereas on the twenty-seventh