Page:Examiner, Journal of Political Economy, v2n13.djvu/1



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DEVOTED TO THE ADVANCEMENT OF THE CAUSE OF STATE RIGHTS AND FREE TRADE. The Powers not Delegated to the United States, by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the People. . . ''Amendments to the Constitution, Art. X.''

Freedom of Industry, as sacred as freedom of speech or of the press. . . Jefferson.

THE GENUINE BOOK OF NULLIFICATION.

Being a true—not an apochryphal—history, chapter and verse, of the several examples of the recognition and enforcement of that sovereign State remedy, by the different States of this confederacy, from 1798 down to the present day. (As originally published in the Charleston Mercury.) To which are added the opinions of distinguished statesmen, on State rights doctrines. By HAMPDEN.

PENNSYLVANIA NULLIFICATION.

Case of Olmstead.—Observing that writers in the consolidation journals represent the statement, given in the Mercury, of the famous case of Olmstead in Pennsylvania, to be a garbled and incorrect view of that instance of Nullification, and refer those who desire information, to some obscure and ex-parte pamphlet, which is to be found in some of the bookstores of the city, I have taken the pains to examine into the case as reported by the law books of established authority and credit, and find the facts and proceedings to be thus laid down in 3 Dallas, 160, and 3 Hall's Law Journal, 197 and 230, viz:

On the 25th of November, 1775, Congress passed an Act for establishing tribunals of Admiralty Jurisdiction; by the 6th section of which Act it is provided, that "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."

On the 9th September, 1778, the State of Pennsylvania established an Admiralty Court, by Act which provided that "the finding of the Jury shall establish the facts without re-examination or appeal."—Sec. 6.

The British sloop Active was captured in the course of September, 1778, by Gideon Olmstead and others, and carried into Philadelphia, and libelled in the State Court of Admiralty held by Judge Ross; Olmstead and others claiming the whole vessel and cargo—while Huston, captain of a vessel of war belonging to the State of Pennsylvania, claimed one half for the State, himself, and crew—and Captain Josiah of the sloop Gerard, claimed for himself and crew a fourth.

On the 15th November, 1778, the libels were tried before a Jury, and a verdict rendered allowing each of these claims, but not stating any particular facts. Olmstead appealed from this decision to the U. S. Court of Appeals, established by Congress in 1777, and on the 15th December, the decree of Judge Ross, and the verdict rendered in the case, were reversed, and the whole prize decreed to Olmstead and his crew.

This reversal Judge Ross positively refused to obey, because the case had been tried by a Jury before him; and he paid over (according to his decree) one-half of the proceeds of the prize to the Treasurer of the State of Pennsylvania, (David Rittenhouse) taking a bond of indemnity from him.

"The Court of Appeals thereupon ordered it to be entered on record, that the Admiralty Judge and Marshal (of Pennsylvania) had absolutely refused obedience to their decree—that they were unwilling at that critical juncture of public affairs, to enter upon any proceedings for contempt—but that they would not hear any appeal until their authority should be so settled as to give full efficacy to their decress and process."

This Court consisted of Oliver Ellsworth, (Chief Justice U. S.) W. H. Drayton, Wm. Ellery, and John Henry, jun. They proceeded to lay a statement of the whole case before Congress, which was referred to a committee of five who sustained the jurisdiction of the Court of Appeals—declaring (inter alia) "That no Act of a State can, or ought to destroy, the right of appeal to Congress, in the sense declared by the Act"—and that the Committee (or Court) which decided the appeal in the case of Olmstead, had full jurisdiction, and that their decree ought to be carried into execution—and finally requesting the Legislature of Pennsylvania to appoint a committee to confer on the subject with a committee of Congress.

The Legislature, however, instead of complying with this request, passed a peremptory Act on the 29th November, 1779, directing Judge Ross to pay over the whole proceeds to David Rittenhouse, (Treasurer,) Captain Huston and Captain Josiah. (3 Hall's Law Journal, p. 200.)

Soon after this, Judge Ross died, and Olmstead sued his executors for the amount, and got a judgment by default, in consequence of which the executors sued Rittenhouse—and the judges decided in favour of the defendent. (This is the part of the case reported in Dallas.)

Olmstead now remained quiet until 1802, when the U. S. Supreme Court decided, that their District Courts could carry into effect decrees of the old U. S. Court of Appeals; he then filed his libel in the U. S. Court of Pennsylvania against Mrs. Sergeant and Mrs. Waters, the executrices of Rittenhouse, (who was then dead) and Judge Peters decided (14 Jan. 1803) in favour of Olmstead. But he made no application for compulsory process for