The enquirer. [volume] (Richmond, Va.) 1804-1815, 1809-05-12

ApPuCotiUt WAY utdue Iok PROCESS Oh exeCu- ,
ton; the judge of that court. with a We
ry commemorate degree OF prudence, de-
clined ordering it; with view to bring be-
fore the Supreme court of the u. States a
question sodelicate in itself. and which was
likely to pi odsce the most serious conse.
|quences to the nation. Upon the Applicant
on of Olmstead, the supreme court issued a
mandamus to the judge of the district court,
commanding him TO execute the sentence
pronounced by him in that case; or to show
causete the contrary. The reasons for with
helding the process assigned in answer to this
writ, not being deemed sufficient by the su :
preme court, a pereUptory mandan,us was a
warded. 1t may not be Improper here to
statc that no person appeared in the supreme
court on the part of the state, or on that of
Mrs. Sergeant and Mrs. Waters, and tina. no
arguments were offered on the part Of Ohm
stead The idea which understand has gone
abroad that the mandamus was awarded up
on the single opinion OF the chief Justice
is too absurd to deserve n serious REPUTATION.
No instance of that sort ever did or could oc-
cur, and in this particular Case, do not re-
collect that there was one dissentient from
the opinion pronounced.
Process of execution having been awarded
| by the judge the district cour, in obedience
to the mandamus, the defendant, general
u vi
| the militia of the common wealth of Pennsyl-
yania, received orders from the governor of
the state" Immediately to have in readi-
ness such portion of the militia under his
command as might be necessary to execute
the orders. and to employ them to protect &
defend the persons and property of the said
Elizabeth Sergeant and Esther Waters from
and against any process founded OH the de-
cree OF the said Richard Peters, judge ofthe
district court of the U. States aforesaid /; and
in virtue of which any officer under the di-
rection of any court of the u. States may at
tempt to attach the persons or the property
OF the said Elisabeth Sergeant and Esther
Waters"
guard was accordingly placed at the
houses ct Mrs. Sergeant and Mrs. Waters,
and 1t has been fully proved and is admitted
that the defendants with a full knowledge
OF the character of the marshal of this dis
trict and of his business his commission and
the process which he had to execute having
been read to them, opposed with muskets and
bayonets, the persevering efforts of that Off
Ger to serve the writ; and by such resistance
prevented him from serving it.
There is no dispute about the facts
The defendants have called no Witnesses
and their defence is rested upon the law
tullness of the acts laid in the Indictment
They justify their conduct upon two grounds
list. That the decree of the district
court under which the process issued was
cordm non Judice, and to all intents and
purposes void; and 2dly. That though it
were valid and binding decree, still that
they cannot be questioned criminally for net
ing in obedience to the orders Of the govern
or of this state.
The decree of the district court is said to
be void, for two reasons first, because the
n a Ia hn,I
the sentence of the court of admiralty founded
upon the verdict of jury; & 2dly, because the
state of Pennsylvania claims an interest in
the subject which was in controversy in the
district court.
The first question is, was the decree of
the court of appeals void for want of juris.
diction of the case in which it was made ?
But first letme ask can this be made
question, at the present day, before this or
any other court of the United States We
consider it to be SO firmly settled by the
highest judicial authority in the nation that
It is not now to be questioned or shaken
The power of the court of appeals to re-ex-
anime and reverse or affirm the sentence of
the courts of admiralty established by the
different states. though founded upon the
verdicts of Juries, was first considered and
decided in the case of Doan and Penhallow,
IN the supreme court of the United States.
The jurisdiction of that Court to e-examine
the whole cause as to both law and fact, w as
considered as resulting from the national
character of an appellate prize court, and
not from any grant or power by the state
from whose court the appeal had been ia
Ken. The right of the state to limit the
court of appeals in the exercise of its juris-
aiction, was determined to be totally mad
MISSILE: The same question was consi-
dered by the supreme court upon the mott
on for the mandamus. and decided to be set
tied and at rest. If it were necessary to
give further support to the authority of these
cases the opinion of the supreme court of
Pennsylvania in Ross executors Us. Rit-
tenhousc, and the unanimous opinion of the
old congress, with the exception of the
representatives Of this state, and one of the
representatives of New Jersey might be men
toned. ffreasons were required to strength
en- the above decisions, those assigned by
the committee of congress upon the case
of the Active are believed to be conclu-
sive.
But think it will not be difficult to prove
that the law of Pennsylvania passed on the
9th September, 1873, establishing court
OF Admiralty IN that state, neither by the
terms of it, nor by fair construction of its
meaning, was intended to abridge the juris
diction of the court of appeals in cases like
the one under consideration. The words
are, :" that the jury shall be sworn or aE
firmed to return true verdict upon the IL
bel according to evidence and the finding
OF the jury shall establish the facts without
" ut.s.N So