that his duty demanded him to execute the process now in his hands, issued by virtue of a mandate from the highest judicial tribunal, that he should be governed by prudence and discretion, but with that firmness which it was his duty to manifest; that it became the serious consideration of the military arrayed against him to consider how far they were authorised in resisting the laws, and he hoped they would withdraw their opposition, that he would grant them time to consider of it, but he solemnly declared his intention of eventually executing the process he had in his hand; that he would raise the posse of the district if the opposition were not withdrawn. He also read, and exhibited the writ and his commission; he then made another attempt but was dri- · ven back: he then ordered them in the name of the United States to ground their arms: General Bright ordered them to continue their resistance, and said they were placed there to protect the ladies of the house, and they should continue so to do until he received orders to the contrary. The marshal went round to the house of Mrs. Waters, where similar circumstances took place.

Cross-examined.

Mr. Ingersoll. By whose orders did General Bright say he was placed there?

Answer. I do not recollect precisely; but I think it must be the executive of Pennsylvania, because he said he would resist until he had contrary orders from Lancaster.

Mr. Ingersoll. You mentioned he read his writ, commission, and an address: did he shew or speak of any other paper?

Answer. I think not any.

Mr. Dallas. The attorney general of Pennsylvania, admitting the identity of the defendants, I have no occasion to establish that point by evidence. I shall therefore offer no further testimony to the court.

Mr. Franklin. It becomes my duty on this occasion to state to you the grounds on which we rely for an acquittal of the defendants, from the heavy charge which has been preferred against them.

The defendants are charged in the first count for that they knowing that the process mentioned in the indictment was duly awarded and issued by and out of the District Court of the United States, for the district of Pennsylvania, and duly delivered to the marshal of the said district, did knowingly, F

wilfully, and unlawfully obstruct, resist, and oppose the said marshal in attempting to serve and execute the same.

And in the second count for an assault on the marshal when attempting to execute his writ.

The law on which this indictment is founded: was passed on the 30th of April, 1790; and is as follows:

"That if any person or persons shall knowingly and wilfully obstruct, resist, or oppose, any officer of the United States, in serving, or attempting to serve or execute any mesne process or warrant, or any rule or order of any of the courts of the United States, or any other legal or judicial writ or process whatsoever, or shall assault, beat, or wound any officer, or other person duly authorized in serving or executing any writ, rule, order, process, or warrant aforesaid, every person so knowingly and wilfully offending in the premises, shall, on conviction thereof, be imprisoned not exceeding twelve months, and fined not exceeding three hundred dollars.'

There is no doubt of the fact, that, in this case, the marshal was resisted, by the defendants, in the execution of process issued by the District Court, but you are to determine, whether under all the circumstances of this case, the defendants were not legally justifiable, in that resistance.

In order rightly to determine the question, whether the defendants have been criminal, and have violated any of the laws of the land, you will have to investigate, and to decide upon some of the most important, and interesting points which have ever been discussed in a court of justice.

Before you can legally convict General Bright, and his associates of the charges contained in the indictment it will be absolutely necessary for you to consider, and to declare, whe ther the process, which they are accused of resisting, was ever issued by a court having legal, and constitutional power to award it.

Whether the constitution of the United States had not been violated in one of its most important provisions, by the court taking cognizance of a case in which a state was substantially a party, or in which at least it was materially interested.

Whether the state of Pennsylvania under its different governments, for more than thirty years past, has been right, or wrong, in its executive, and legislative declarations on this subject, and whether the position which it has maintained during that long period of time, has been assumed, on correct, or incorrect principles.

Whether the orders under which the defendants acted were legally, or illegally issued, and whether they can be considered as criminal in paying a strict obedience to them. On the part of the accused we shall endeavour to shew that the District Court had no jurisdiction of the cause on two grounds:

1st, Because it proceeded in this case on the sentence or decree of the Court of Appeals, established by congress, which having no authority to determine it, its sentence, or decree was a nullity, and could not therefore be enforced by the District Court.

2dly, Because it appears from the facts in the case that the state of Pennsylvania, was a party in interest, and therefore the court was prohibited by the constitution from deciding it.

To determine the first point it is necessary to become acquainted with the provisions made by congress on the subject of captures by armed vessels, belonging to government, and to individuals: and the law of this state for establishing courts of admiralty. The resolutions of congress are,

1. That all such ships of war, frigates, sloops, cutters, and armed vessels, as are or shall be, employed in the present cruel and unjust war against the united colonies, and shall fall into the hands of, or be taken by the inhabitants thereof, be seized and forfeited to and for the purposes herein after mentioned.

2. That all transport vessels in the same service, having on board any troops, arms, ammunition, clothing, provisions, or military, or naval stores of what kind soever, and all vessels to whomsoever belonging, that shall be employed in carrying provisions or other necessaries to the British. army or armies, or navy, that now are or shall hereafter be within any of the united colonies, or any goods, wares, or merchandise for the use of such fleet or army, shall be liable to seizure, and with their cargoes shall be confiscated.

4. 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 as 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.

5. That all prosecutions shall be commenced in the court of that colony in which the captures shall be made; but if no such court be at that time erected in the said colony, or if

the capture be made on open sea, then the prosecution shall be i the out of such colony as the captor may find most convenient, provided that nothing contained in this resolution shall be construed so as to enable the captor to remove his prize from any colony ompetent to determine concerning the seizure, after he shall have carried the vessel so seized within any harbour of the same.

6. i hat in all cases an appeal shall be allowed to the congress, or such person or persons as they shall appoint for the trial of appeals, provided the appeal be demanded within five days after definitive sentence, and such appeal be lodged with the secretary of con ress within forty days afterwards, and provided the party appealing shall give security to prosecute the said appeal to effect, and in case of the death of the secretary during the recess of congress, then the said appeal to be lodged in congress within twenty days after the meeting thereof.

7. That when any vessel or vessels shall be fitted out at the expense of any private person or persons, then the cap tures made, shall be to the use of the owner or owners of the said vessel or vessels; that where the vessels employed in the capture shall be fitted out at the expence of any of the united colonies, then one third of the prize taken shall be to the use of the captors, and the remaining two thirds to the use of the said colony; and where the vessels so employed shall be fitted out at the continental charge, then one third shail go to the captors, and the remaining two thirds to the use of the united colonies, provided nevertheless, that if the capture be a vessel of war, then the captors shall be entitled to one half of the value, and the remainder shall go to the colony or continent as the case may be, the necessary charges of condemnation of all prizes, being deducted before the distribution made,

On the 9th of September, 1778, this state passed an act for establishing ourts of admiralty. Only two or three sections of which are material to the present discussion.

Sect. 6. "That the judge of admiralty (in cases brought before him by libel) issue his warrant to the marshal of the court of admiralty, commanding him to summon and return a jury, who shall be sworn or affirmed, to return and give a true verdict, upon the libel according to evidence; and the finding of the jury shall establish the facts without re-examination or appeal.

The 7 h uon provides, "that in all cases of captures an appeal from the decree of the judge of admiralty of this

state shall be allowed to the continental congress or such person or persons as they may from time to time appoint, for hearing and trying appeals. Provided the appeal be demanded within three days after definitive sentence; and such appeal be lodged with the secretary of congress within thirty. days afterwards; and provided that the party appealing shall become bound before the said judge of admiralty, in such sum as he in his discretion may think proper, as security to prosecute the appeal to effect, &c.".

Having thus ascertained what were the recommendations of congress, on the subject of prize courts, and the manner in which those recommendations were complied with on the part of Pennsylvania, let us examine how the case of captain Olmstead came before the several courts.

Gideon Olmstead, Artimus White, Aquila Rumsdale, and David Clarke, natives of New England, had been taken prisoners by the British, in the year 1778, and carried into Jamaica. They were afterwards put on board the Active, a vessel bound for the port of New York, then in possession of the British, for the purpose of being confined there as pri

soners.

On their way to New York, Olmstead and his associates, rose upon the captain and confined him, his mate, and three passengers in the cabin.

While they were in this situation captain Thomas Hous ton of the brigantine Convention,, came up, fired upon them, took possession of the Active, and her cargo, and sent her to Philadelphia.

On the 17th of September in the same year, captain Hous ton filed a libel in the Admiralty Court of Pennsylvania, as well for himself, and the officers, mariners, and seamen belonging to the Convention, as for the state of Pennsylvania, praying the condemnation of the vessel and cargo and that she might be adjudged as forfeited to their use and the use of the state.

A claim was filed in the same court on behalf of James Josiah, commander of the privateer sloop called Le Gerard, for a proportionate part of the prize money, arising from the sale of the Active and her cargo, in consequence of his hav ing been in sight at the time of the capture, and on the 19th of October 1778, the claim and answer of Olmstead and his associates was filed in which they pray for the dismissal of capt in Houston's bill, and a condemnation of the vessel and cargo for their own exclusive use.