complain in an especial manner of those delegations which shall concur in any vote for that purpose to the several legislative bodies from whom they respectively derive their pow

ers.

And you are further instructed, to enter a protest in behalf of this state, that we will pay no part of the sum which congress shall award out of the treasury of the United States in consequence of the decree of the Court of Appeals.

We also instruct you to inform congress that the manifest right of the citizens of this state, to the benefit of its laws has some time since obtained from the authority thereof, an order for the distribution of the three fourths given by the verdict of the jury in this case to the captains and crews of the brigantine Convention, and her consort.

The house views with astonishment the perseverance and decision of congress in rolling upon this state an embarrassment created by the Court of Appeals.

Congress recommended a trial by jury to be introduced into the Court of Admiralty. The assembly of Pennsylva nia adopted the measure. A jury in the case of the sloop Active founded their verdict upon the facts. It is the proper business and the strict right of juries to establish facts. Yet the Court of Appeals took upon them to violate this essential part of jury trial and to reduce in effect this mode of jurisprudence to the course of the civil law; a proceeding to which the state of Pennsylvania cannot yield.

If the mode of trial by jury (in cases of captures) as recommended by congress is found inconsistent to the circumstances of the United States, as being a mode unknown to most of the civilized states in Europe this house is desirous of conforming to the customary practice.

The house finally remind you of the laws which they understand have been passed in some of the states in the union, denying all appeal in law as well as fact to the Court of Appeals established by congress for prize causes except the claimants be foreigners, or captors in the pay of congress, by the operation of one of which laws, Mr. Hugh McCullough a citizen of Pennsylvania was debarred from removing the case of a ship and cargo condemned in New England, into the said Court of Appeals, and that little notice appears to have been taken of these laws, whilst Pennsylvania conforming to the recommendation of congress, concerning Admiraltv jurisdiction in the most legal and usual construction of the expression has not in our opinion been treated by that honourable body with sufficient respect and attention."

[Here Mr. Franklin went into a full enumeration of the powers granted to congress, and those reserved to the several states, and shewed that the right of appeal, not being granted to congress, congress could not legally exercise it.]

I hope I have now satisfied you of our first position, that the District Court had no jurisdiction of the cause, because it proceeded on the sentence or decree of the Court of Appeals, which having no authority to determine it, its sentence or decree was a nullity and could not therefore be enforced by the District Court.

I shall now endeavour to shew that it had no jurisdiction for another reason, to wit, that the state of Pennsylvania was a party in interest and therefore the court was prohibited by the constitution from deciding it.

It is declared by the 11th article of the amendment of the constitution 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 of any foreign

state.

The record shews that certain citizens of Connecticut form one party in this cause, and the decision of the courts of the United States will support the position that the state is a party, within the meaning of the constitution, if interested in the event of the suit, though not named.

And judge Washington in 3 Dall. 412, expresses himself thus, "without entering into a critical examination of the constitution and laws, in relation to the jurisdiction of the Supreme Court, I lay down the following as a rule: that a case which belongs to the jurisdiction of the Supreme Court, on account of the interest that a state has in the controversy, must be a case in which a state is neither nominally nor substantially the party."

Now let us examine the facts which relate to this point. On the 29th of November 1779, a resolution was passed by the legislature of the state empowering George Ross esq. judge of the admiralty to pay over the state proportion of the proceeds of the sloop Active and cargo, into the hands. of Mr. Rittenhouse as their treasurer. The answer of Mrs. Sergeant and Mrs. Waters to the libel of Gideon Olmstead filed May 27, 1802, states the circumstances attending this payment.

H

To the honourable Richard Peters, esq, judge of the District Court of the United States, for the district of Pennsylva nia.

The answer of Elizabeth Sergeant and Esther Waters, surviving executrices of David Rittenhouse, deceased, to the libel of Gideon Olmstead, Artimus White, Aquila Rumsdale and David Clarke, respectively, showeth,

That your respondents are entirely ignorant of the several matters and things alleged and set forth in the said libel touching the capture of them the said libellants as prisoners of war by the subjects of his Britannic majesty during the late war between the United States of America and his said Britannic majesty, and touching the capture by them the said libellants of a certain sloop and her cargo, as stated in the said libel, the property of the subjects of his said Britannic majesty, and also respecting the several disputes about the said sloop and her cargo, which have existed between them the said libellants, and the several other persons mentioned in the said libel and how the said several disputes and claims were afterwards proceeded upon, and what decrees were therefore made in the several courts mentioned in the said libel except so far as the same appear from the several records referred to in the said libel.

But your respondents for answer to so much of the said libel as is material for them to answer unto say, That on the first day of May, in the year of our Lord one thousand seven hundred and seventy-nine, your respondents' testate David Rittenhouse, then being treasurer of the state of Pennsylvania, received from George Ross, esquire, judge of the admiralty in and for the state of Pennsylvania, for the use of the said state of Pennsylvania, the several loan office certificates mentioned in the schedule annexed to the said libel, being the share or dividend of the said state in the right of the brig Convention, in and out of the sloop Active, accord. ing to the verdict of the jury on the trial of the said sloop Active, in the Admiralty Court of the said state. That at the time of receiving the said certificates your respondents' testator gave to the said George Ross his obligation bearing date the same day and year aforesaid, in the penal sum of twenty two thousand pounds money of Pennsylvania; the condition of which the said obligation reciting" that the said George Ross had the day of the date thereof paid to the said David Rittenhouse, treasurer of the state of Pennsylvania, for the use of the said state, the sum of eleven thousand four huudred and ninety six pounds nine shillings and nine pence,

being the share or dividend of the said state in right of the brig Convention, in and out of the sloop Active, according to the verdict of the jury on the trial of the said sloop Active in the Admiralty Court of this state," is such, "that if the said David Rittenhouse shall make repayment and restitution of the said sum of eleven thousand four hundred and ninety-six pounds nine shillings and nine pence unto the said George Ross, his executors or administrators, in case he the said George Ross shall hereafter by due course of law be compelled to pay the same according to the decree of the Court of Appeals in the case of the said sloop Active; and if he the said David Rittenhouse shall and do in all things well and truly save harmless and indemnify, at all times hereafter, the said George Ross, his heirs, executors and administrators, and his and their lands and tenements, goods and chattels, of and from all damages, actions and demands which may arise or happen for or on account of his having paid the money aforesaid, then the above obligation to be void, or else to be and remain in full force and virtue," as by reference to a copy of the said bond hereto annexed, (which yo ir respondents pray may be considered as a part of this their answer) will more fully appear--Your respondents beg leave further to state that the said David Rittenhouse afterwards, to wit, on the twenty first day of February, one thousand seven hundred and ninety-three, caused the said certificates to be funded for the benefit of those who might eventually appear to be en titled to them, and received in lieu and on account thereof, and for the benefit and use aforesaid, three other certificates of United States debts; the first for three thousand three hundred and seventeen dollars thirty cents to carry interest at the rate of six per cent. per annum from the first day of January one thousand seven hundred and ninety-one ; the second for three thousand and twenty-seven dollars eightyeight cents, to carry interest at the rate of three per cent. per annum from the same time; and the third, for one thousand six hundred and fifty-eight dollars, sixty five cents deferred stock, to carry interest at the rate of six per cent. per annum, from the first day of January, one thousand eight hundred and one, being the same certificates mentioned in the schedule annexed to the said libel, and therein referred to. That true it is, as stated in the said libel, that the said David Rittenhouse made his testament and last will, and thereof and thereby ap pointed your respondents, together with Hannah Rittenhouse, who has since deceased, executrices, and died; and that after his death and the death of the said Hannah, the

said last mentioned certificates came to and have since remain in the hands and possession of your respondents, together with a large sum of money, received by the said David Rittenhouse, for interest of the said certificates; that your respondents have, since the death of the said David Rittenhouse, received the interest of the said certificates and the two per cent, principal directed by law to be paid annually, up to the first of January, one thousand eight hundred and two, inclusive, amounting with the interest received, by the said David Rittenhouse in his life time, to the sum of three thousand eight hundred and ten dollars, seventeen cents; all which has been regularly deposited, as received, in the bank of North America, and there remains for the benefit of those concerned. Your respondents beg leave further to state, than in pursuance of an act of the general assembly of the commonwealth of Pennsylvania, passed the 26th February, 1801, authorizing him so to do, Abraham Carpenter, esquire, the present treasurer of the said commonwealth, some time in the last fall, called upon these respondents and required them to deliver to him the said last mentioned certificates and the interest thereupon received, upon his giving them a bond of indemnity; but these res pondents being advised, that they could not with safety deliver them to Mr. Carpenter, declined complying with his requisition. And your respondents beg leave further to state, that the above, together with the several papers herein referred to and hereunto annexed, is a full and exact account, to the best of their knowledge and belief, of all monies, certificates, indents and documents, or monies, or debts, received by the said David Rittenhouse, in his lifetime, or by these respondents, since his death, arising from the sale of the said sloop Active and cargo, and from the exchange and funding aforesaid; and they humbly pray, that your honour will take several matters and things stated in the said libel and this answer, into your consideration, and make such or der and give such directions touching the said certificates and the monies received thereon, which your respondents bring here into this honourable court, as may appertain to justice, between the said claimants, and may keep your respondents from future trouble, molestation or damade, on account of the premises.

ELIZABETH SERGEANT.

ESTHER WATERS.

July 12, 1802.