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ships of war, in time of peace; nor engage in war, unless actually invaded, or in such imminent danger, as will not admit of delay. Ibid. art. 1. s. 10. Now, if it shall ever appear, that Massachusetts, or Virginia, Pennsylvania, or Connecticut, has kept troops, in time of peace, without the consent of congress, the act will be a flagrant violation of the constitution; and if the force, thus unconstitutionally kept, shall be arrayed against the constituted authorities of the union, it must, upon every rational principle of jurisprudence, be an of fence in every agent, civil or military, who is engaged in the opposition. 2dly, The people have, also, limited and restrained the state jurisdiction in matters of judicial cognizance. By a direct investment, the judicial power of the United States embraces (with various other objects) all cases in law and equity, arising under the constitution, laws, and treaties (other than suits by individuals against a state) all cases of admiralty and maritime jurisdiction, all controver sies between citizens of different states; between citizens of the same state, claiming lands under grants from different states; and between foreigners and citizens. And by the act of congress, which distributes this mass of judicial power, among the several courts of the union, it is expressly declared, that the District Court " shall have exclusive original cognizance of all civil causes of admiralty and maritime juris"diction." 1 Vol. p. 53. s. 9. Now, if it shall ever appear, that the legislative, executive, or judicial department of a state government; or that a combination of all the departments; has attempted to divest, or to defeat, the jurisdiction of a federal court, in a controversy between citizens of different states; or has attempted to controul the federal courts, in a case of admiralty and maritime jurisdiction; it will be an act of complicated usurpation, notoriously unconstitutional, and utterly void it can never create a right for itself; nor confer an authority upon others.

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From this position, I pass, with ease and confidence, to the immediate ground of the present prosecution; in the course of which you will, probably, have occasion to apply most of the principles, that I have been endeavouring to impress upon your minds. Whether rightfully or wrongfully, I stop not, at this time, to examine; but it appears from the writ recited in the indictment, that Gideon Olmstead and others had obtained, on the 15th of December, 1778, a decree of the court of Commissioners of Appeals for the United States of America, which, after reversing a previous decree of the court of Admiralty of Pennsylvania, pro

nounced on the 5th of November 1778, in the case of the sloop Active, condemned the vessel and cargo, as lawful prize of war to the appellants. From causes that need not at present be explored, no benefit could be derived from this final decree, during the languid and inefficient administration of the old congress. The first effort to obtain justice, was in a suit at common law, in the county court of Lancaster, brought by Olmstead against the executors of George Ross, the judge of the state admiralty, to whom in his life time, the marshal had delivered the proceeds of the prize, in contempt of the decree of the Appellate Court. The executors suffered judgment to go by default, and, thereupon, delivered to Olmstead a bond of indemnity, which Mr. Ross had taken from David Rittenhouse, the treasurer of the state, when he transferred the proceeds of the prize to that gentleman, in compliance with certain resolutions of the legislature, and the supreme executive council, of Pennsylvania. Upon this bond, Olmstead instituted a suit in the supremecourt of the state, in the name of the executors of Ross, for his use, against Mr. Rittenhouse, in which it was decided, at April sessions 1792, that neither the county court of Lancaster, nor the supreme court, being both courts of common law, could take cognizance of the cause, which belonged exclusively to a court of prize. 2 Dallas's Reports, 160. In this dilemma, it was some consolation, during the year 1795, for Olmstead and his associates, to receive the solemn judg ment of the supreme court of the United States (the highest, the ultimate tribunal, of the nation), pronounced in the case of Penhallow v. Doane, in which the great points of their own case were expressly decided: 1. That the congressional Court of Appeals had jurisdiction, both on the fact and the law, in cases of prize, originally tried by juries in the Admi ralty Court of the individual states; and 2dly, That the Dis trict Court of the United States is now the only competent forum, to carry into effect the final decrees of the congressional Court of Appeals. 3 Dallas's Reports, 54. Alter, therefore, many other fruitless efforts to obtain justice, without resorting to legal process, a libel was filed in the District Court, on the 27th of May 1802, bv Olmstead and his associates, citizens of the state of Connecticut, against Elizabeth Sergeant and Esther Waters, the representatives of Mr. Rittenhouse, citizens of the state of Pennsylvania, who came to the possession of the proceeds of the prize Active and her cargo, upon that gentleman's death. To this libel, an ans swer was filed on the 12th of July 1802, and on the 14th of

January 1803, upon great deliberation (notice having been given to the respondents, to the governor, and to the attorney general of Pennsylvania (a) of every step in the proceedings), the district judge pronounced a decree in favour of the libellants. The judge (who, permit me to say, by the bye, is never wanting in a prompt and firm performance of his official duties) was desirous, in a question of such peculiar delicacy and importance, that his decision should be reviewed, in a regular course of appeal, successively by the Circuit Court, and the Supreme Court, of the United States; but as neither the respondents, nor the law officer of the state, would indulge that desire, the judge, prudently and wisely, determined to obtain the opinion of the Supreme Court, by declining to issue any process of execution, until the libellants had obtained a peremptory mandamus from that tribunal. Accordingly, in February Term 1808, the libellants obtain ed a mandamus, directing the district judge to execute his decree, or to return a legal cause for not doing so. The opportunity was, chearfully, embraced, to submit the whole case to the decision of the Supreme Court, in a return, which, considering some circumstances of legislative denunciation, does equal honor to the candor and moderation of the judge. (b) In February term 1809, as no counsel appeared for the respondents, nor for Pennsylvania, the counsel for the libellants submitted the record and the return to the consideration of the judges, without argument, or comment; and the chief justice Marshal, in a clear and explicit manner, delivered the opinion of the court, approving the decree of the district judge on the merits, as well as on the question of jurisdiction, and awarding a peremptory mandamus. The writ being presented to the judge, he had no option, nor had he now any desire, but judicially, to obey; and a writ of attachment against the respondents was, accordingly, awarded and issued. (c)

The resistance to the marshal, in his attempt to execute the writ of attachment, forms the charge against the defendants. It only remains, therefore, to sketch an outline of the conduct of the officer, and of his opponents.

[Here Mr. Dallas stated the facts as they will be found in the testimony of the witnesses, and then proceeded.] Thus was the judicial authority of the nation laid pros trate, at the point of the bayonet, in open day, and in the public streets of Philadelphia! The marshal was compelled to

(a) See Appendix, A.

(6) Ib. B. E

(c) Ib. Ca

summon the power of the district to his aid, and, it is dreadful to reflect, that if that power had also been successfully resisted, it would have devolved on the President of the United States, as an indispensable duty, to support the civil authorit, with all the military means necessary to the occasion. That a civil war has been averted, is not (1 regret to add) the consequence of any compunction on the part of the defendants, or of those by whom they were employed, but of the vigilance and address of the marshal, in accomplishing the object of his writ, previously to the day appointed for assembling the citizens.

A few words more, before the witnesses are called. It is obvious to every rational mind, that there must be some limitation to legal controversies; some result in the administration of justice; which shall irrevocably determine the rights of the parties, and settle immutably the principles of law. In the federal system, neither the right, nor the law, of any cause is definitively fixed, until it has passed from the court of original, to the court of final jurisdiction; from the District Court to the Circuit Court, and thence to the Supreme Court. But from the judgment of the Supreme Court, our jurisprudence knows no appeal; no power to reverse, to suspend, or to annul. Again: it is the province of a court, not only to decide the question on the merits of a cause, but every preliminary question on its own jurisdiction to take cognizance of the cause, subject to the same judicial course of revision. If, then, the judicial power has passed definitively upon these subjects, where shall we find authority, or excuse, for the interposition of legislative, or executive, power, to unsettle what has been settled, and to prevent the execution of what has been decreed? I glance only at the idea; for, unless the nature of the lefence forces me into that field of discussion, I shall cautiously abstain from any animadversion, upon the acts of the constituted authorities of Pennsylvania. But, I may be allowed to observe, that whatever measures the legislative or executive departments may have taken, the judicial department of Pennsylvania has left no room for censure or reproach. In Ross v. Rittenhouse, two judges in opposition to one (that one being, however, I acknowledge, a judge of great common law learning, and of unquestionable integrity) expressed opinions, which lead inevitably to a condemnation of the opposition made, in this case, to the judicial process of the District Court. And the present respectable chief justice of Pennsylvania, having recently decided, that the arrest of one of the respondents, by the marshal, was lawful, has virtually de

elared, that the resistance of the defendants, under whatever pretext, was unlawful and unjustifiable.

Mr. Dallas, having concluded his introductory remarks, presented the record in the case of Olmstead et al. v. Sergeant et al. which it was agreed by the counsel of the defendants to consider as in evidence, without reading it. He then directed the marshal to be called, who being sworn as a witness, produced the judicial writ of arrest against the respondents, and requested permission to refer to the notes that he had made, at the time of the opposition to his executing it. But Mr. Dallas observed, "You may read your notes, in order to refresh your memory; but, after doing so, you must deliver your testimony from your recollection of the facts, and not from the statement contained in the paper."

Mr. Dallas. When did you receive this writ?

Marshal. I received this writ on che 24 March, and on the 25 March, I went to the house of Mrs. Sergeant, the north west corner of Arch and Seventh-streets, to execute it. Upon my approach a centinel who was placed at the door, presented his bayonet at my breast. I asked him if he knew who I was? he answered he knew no person, and said he was placed there to keep every one off. I told him I was the marshal of the district of Pennsylvania, and demanded permission to enter into the house, and was prevented by him.

Directly after, a guard was marched up, under the command of Sergeant Cole, when I was driven back from the pavement, by the centinel with some of my fellow citizens. Immediately after, I told Mr. Cole my business, and attempted to pass to the door, and was repelled by the whole guard with charged bayonets. I asked their names from the sergeant, and he gave me a paper and informed me that it was a roll, which contained their names.

Dallas. What were their names?

Marshal. Their names were as follow:

James Atkinson, the cent. first stated

Abraham Ogden

William Cole, Sergt.

Daniel Phyle

Charles Westfall
Charles Hong
Samuel Wilkins

John Knipe.

I asked the sergeant who was the commanding officer? he said he was. I asked him if there was not a superior, from whom he received his orders? he said their was, general Bright. I asked him to send for general Bright,

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