We contend that David Rittenhouse could never have received the money in any other capacity than as treasurer of the state only, and by order of the state.

The moment it came into his hands as treasurer, it was to every intent and purpose in the coffers of the state.

[Mr. Franklin discussed this point at considerable length, in order to prove the truth of his position.]

I shall now proceed to shew the legislative authority, upon which the order issued by the executive to General Bright. were founded.

Mr. Dallas. I have listened to the documents, which have been introduced by the attorney-general of Pennsylvania, with great attention, while they appeared to bear any rela tion to the issue under trial; and I still cherished the hope, that nothing would have been brought forward by him, to produce extraneous discussion, and unpleasant animadver

I have listened, patiently, to all that he has urged against the jurisdiction of the federal courts, while the court appeared willing to lend an ear to his doctrines: but I cannot, silently, permit him to take the ground, on which he now proposes to enter. While he confined himself to antecedent matter, however irregular the evidence or the argument, it was not an object of interruption; but he now proposes to introduce legislative and executive measures, which were subsequent to the decree of the District Court. The court and the jury would, no doubt, place a proper value upon the evidence, if it were adduced; for, certainly, no subsequent act of the legislature can make void the decision of a court of justice, which is not void for some previous inherent taint, or defect. A power of this kind is totally unknown to our constitution; and its retrospective exercise, is, indeed, expressly prohibited. A combination of all the powers of the federal government, the President, the senate, and the house of representatives, could not reverse, or impair, the obligation of a judicial decision, made by a court of the United States: whence, then, can such a power be deduced in favour of the authorities of a state, legislating for its internal and municipal concerns?

But I would appeal to the candor of the learned gentlemen, engaged on the other side, to determine, whether any thing can be more in the nature of an ex post facto law, than the act of the legislature of Pennsylvania, offered to be produc ed. I do not say, that it is an ex post facto law, in the strictness of the exposition, that confines the character of such laws, to the act of making that criminal, which was innocent

when committed: but I mean a law of such retrospective tendency, as to declare, that a right judicially established in 1778, shall be regarded as a nullity in 1803. If it cannot do this, I would ask how the act, as evidence, can be relevant to the issue? Certainly, the court will say, at once, that it is not. A variety of instances might be cited, to shew the impropriety of admitting this evidence. I remember a late and striking one. Mr. Rodney, the attorney-general, offered to read an act of congress, in the Supreme Court, at Washington, to shew the legislative construction of a pre-existing act, which, it was supposed, rendered a registered vessel liable to foreign duties, if sold while she was at sea, even though a resident American citizen was the purchaser. The very offer occasioned some severity of strictures at the bar ; and the judges explicitly declared, that the supplemental act could have no influence upon their opinions.

I do not urge the present objection, with a view to deprive the defendants of any possible advantage, that the could derive from reading the act of assembly to the court. Indeed, it is notorious, that this act has been long in the view of the public; and, in that way, has made all the impression, which it is likely to make, upon the minds of the jury. But my wish is to avoid being instrumental, even in silence, to the introduction of an example, that shall not only lead to the admission of similar evidence, in future cases; but, pos sibly, pervert the judgments of juries, with an opinion, that retrospective laws, may invalidate previous judicial decisions.

Perhaps, the act of assembly may be considered, not as matter of evidence, to prove the innocence of the defendants, but as matter of extenuation, or excuse. On such an explanation, I should answer, however, that this is not the time, nor are the jury a forum, to whom the appeal, with that view, can be made. When the question of sentence arises, the act of assembly may well be read, to produce a mitigation of the punishment. And even, on an application to dispense altogether with punishment, another department of our government will, I am confident, listen with attention to any suggestions, that can serve to transfer the guilt of the offence, from the depravity of the heart, to the errors of the head. But if, after all, the court think that the peculiar circumstances of the case, will justify a relaxation of the general law of evidence, their decision will not be disagreeable to me, after having thus stated the grounds of objection.

Washington, J. State for what purpose that law is required to be read.

Franklin. The learned gentleman mistakes my object in reading this law. That law recites circumstances which occurred in Olmstead's case, and is therefore matter proper for the court and jury to attend to: it also authorises the governor to issue the orders which have been issued for the protection of the persons and property of Mrs. Sergeant and Mrs. Waters.

Ingersoll. The attorney-general and myself most certainly never, for a moment, entertained the idea of offering in evidence an act of assembly of a subsequent date, to invalidate a judgment of the District Court previously rendered: we contend, that if the judge, in his decree, transgressed constitutional limits and exceeded his jurisdiction, the legisla ture of the state had a right to organize an opposition to its execution. Mr. Dallas contends, that if there be collision between the laws of the United States and even a state constitution, the former must prevail by the provision of the 2d section of the 6th article of the constitution of the United States: properly explained, I admit the argument; in the general sense and in the language used by him, I peremptorily deny the position: it is not enough that the acts of congress to have this transcendant operation and resistless controul, shall be made as has been said under and in consequence of, but, in the more correct language of the members who framed the great charter, in pursuance thereof; that is, as I understand the article, in conformity thereto. The constitution does not give to congress general legislative power: the 1st section of the 1st article declares only, that all legislative powers therein granted shall be vested in a congress, consisting of a senate and house of representatives; and the 8th section of the same article contains a precise enumeration of the powers granted to congress: we say congress did not intend to make the proceedings of the legislatures, the measures taken by the state executives in compliance, and the obedience of individuals to such state authority, the subjects of indictments in the federal courts; that if such, however, was the intention, the act of congress exceeds the limits of power and authority prescribed to them by the people, is unconstitutional and no better than blank paper.

Washington J. What do you allude to?

Ingersoll. The law of the 30th of April 1790, upon which the present indictment is founded. The state, or the United States, in the legislative or judiciary departments, have vio

lated the constitution; a great and interesting question presents for our consideration, to which no citizen that is not indifferent to the general welfare can be inattentive: if a link be taken away, the facts upon which the controversy arises cannot come before the jury, but in an imperfect and mutilated state: we begin with denying that the Court of Appeals had jurisdiction or authority to re-examine the facts decided in the Admiralty Court by 12 men, agreeably to the law of the 9th of September 1778: the state never gave, congress could not assume it: if we are right in this, our opponents fail at the threshold of the business: it is their foundation, which, if removed, their superstructure must inevitably fall to the ground. We say further, that after the peculiar constructive amendment of the constitution of the United States of the 14th January 1798, the federal courts could not exercise jurisdiction upon any state claims: they are, in this respect, private individuals. We are told that we are reduced to a dilemma; that an alternative presents, which shews that the evidence we offer ought not to be received; that the federal courts had or had not jurisdiction; if they had not, we can make a defence without the aid of the law of the state; that if the federal courts had jurisdic. tion, the law of a state could not authorize opposition to its decree not so ;-this reasoning is only specious, not solid; for although the federal courts had not jurisdiction over a state claim, yet if it was exercised, and the state chose to acquiesce, individuals could not, with propriety, have interposed: the question might then have been asked with unquestionable propriety, and would have admitted of no satis. factory answer, if the commonwealth, whose rights have been invaded, thinks proper, in its wisdom, to sacrifice pecuniary interests upon the altar of harmony, who are you that undertake to judge what is the duty of others, and exercise the discretion entrusted to the constituted authorities of Pennsylvania? what right have vou to be volunteers on the occasion, when the state and the United States differ in their sentiments of the constitutional powers given to them respectively? there is, therefore, we conceive, the most evident propriety in giving the law in evidence, for several reasons, if the proceedings in the federal court were coram non judice, as the phrase is: if the federal judges assumed unconstitu tional power, and exercised authority over the property of the state in violation of the constitution, the state had a right to oppose that unconstitutional exercise of authority, not merely as an individual, but as an organized, sovereign,

independent power, by legislative and executive acts; and we offer that law in evidence to shew that the order issued by the governor to General Bright, was in pursuance of a law of the state that act, therefore, is a link, and an all import ant link, in the chain of evidence, which we offer to prove the facts upon which the great constitutional questions will arise; to reject this evidence is, in effect, deciding that our defence is not well founded: it would not, indeed, be avowedly and directly, but indirectly condemning us by anticipa tion, before we have an opportunity to argue the cause to the jury, and, deprived of our evidence, I do not, at present, enter into the particulars of our defence further than is necessary to exemplify the propriety of admitting the evidence we offer: we go to the fountain head, we deny the constitutionality of the decree of the Court of Appeals, of congress under the then imperfect confederation of the United States; it is true, as chief justice Tilghman asserts, the question of that jurisdiction has decided the greatest and best men of the revolutionary history: that observation, however, shows that the exception does not originate with ignorant declaimers; it is a reason of great weight, not of excluding evidence, but of opening the door wide to let in all the defence; of the amendment to the constitution of the United States, I did not know there could be two opinions, as to its meaning; of its application I know different sentiments are entertained.

The observation that our evidence is proper only if offered with a view to pardon, we conceive premature, and whatever we may possibly suffer, conscious of having acted from considerations of duty only, we shall not be guilty of the meanness of becoming the instruments of our own humiliation.

Upon the whole, we offer the act of Assembly with a view to deduce down the chain of evidence from its origin in the proceedings in the old Court of Appeals to the order of the governor of the state under which General Bright and the other defendants acted; and which we say collectively and altogether furnishes a good constitutional ground of defence.

Mr. Dallas. I have said, and I still say, that the question is, whether an act, or declaration, of a legislature, made subsequent to a judicial decree, can invalidate the decree; or furnish any authority to obstruct and prevent its execution? Let us place before the court any other party, than the state of Pennsylvania. Let us suppose this, to be the case of the process issued against the Lowries; that those men had assembled, and made similar declarations, respecting the judgment, which was rendered against them; nay, that a

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