Page:The Green Bag (1889–1914), Volume 09.pdf/367

 332

but certainly not a profound lawyer, and had rather loose notions of equity, looking upon it as a matter of abstract justice. With these opinions, he not frequently somewhat crossed Judge Washington in his views, and no doubt this course, long continued, ren dered the Circuit Judge unusually severe. Upon one occasion, when a case was pre sented to the court, in which the construction of the law bore with some hardship upon the defendant, and Judge Washington decided accordingly, Judge Peters was overheard to say, " That may be law, but I am sure it is not equity." " Equity! " exclaimed his learned brother, " What's equity! Damn equity!" In laying down the law or in the explana tion of its technical terms he was unequaled. I give but one instance, among many, of the latter. In the case of Murry v. Dupont, an action of malicious prosecution (See 3. Washington's C. Court Reports, page 37), much hung upon the term " probable cause." " Probable cause," says the Judge, "is a reasonable ground of suspicion, sup ported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense with which he stands charged." "There is one case — a perilous case," says Brown, " in which the mental and moral qualities of the Judge were conspicu ously displayed." It was the case of the United States v. Michael Bright. During the war of our Revolution, Gideon Olmstead and others, having fallen into the hands of the enemy, were put on board a British sloop as prisoners of war. The prisoners rose on the British crew, took the vessel and were steering for a United States port, when within five miles of the port, a brig belonging to the State of Pennsylvania came upon them and captured the sloop as a prize. The ves sel was brought to Philadelphia, and there libelled in the court of admiralty of the State. Olmstead and his associates filed their claim, and a judgment was rendered, giving one-

fifth of the prize to them and the remainder to the brig, that is, to the State of Pennsyl vania, her owner. Olmstead appealed to the court of appeals, established by Con gress, where the sentence of the court of admiralty was reversed and the prize de creed to Olmstead and his associates, and process issued directing the marshal to sell the vessel and cargo, and pay the proceeds accordingly. The judge of the court of ad miralty delivered to David Rittenhouse, the treasurer of the State, the sum to which the State was entitled by the judgment of that court, but which by the decree of reversal belonged to Olmstead. The money was in possession of Mr. Rittenhouse at the time of his death, and then came into the hands of his daughters, as his representatives. The property was in this situation when Olmstead filed his libel in the district court of the United States, then established under the new Constitution, praying for the execution of the decree of the court of appeals. A de cree was given by the district court accord ing to the prayer of the libel. This was in January, 1803. Thus far the State of Penn sylvania had made no movement to' assert her claims, but it was necessary for her either to surrender her pretensions to this money or to come forward and defend her citizens who were holding it only for her, and in doing so were exposed to the whole power of the Fed eral judiciary. Accordingly, on the second of April, 1803, an act was passed by the leg islature of Pennsylvania requiring the repre sentatives of Rittenhouse to pay the money into the State treasury and directed a suit against them should they refuse. The gov ernor of the State was also required to pro tect the rights of the State, by any further means he might deem necessary, and also protect the persons and property of the ladies from any process which might issue out of the Federal court in consequence of their obe dience to this requisition. The act of as sembly declared the exercise of jurisdiction by the court of appeals illegally usurped in