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al state but to resist? This may be done without looking forward to a disruption of the union as a necessary consequence.

On the resistance of the colonies to the mother country of Great Britain, at the commencement, and for a long period, there was no idea of a revolution, on the part of the colonics, but of bringing the matter to a negociation. This proves that resistance to an unconstitutional jurisdiction, does not necessarily involve an intention to dissolve the government. Remonstrance, and representation may be found ineffectual; and the only means left may be an opposition to the exercise of the assumed authority: and the only question will be, whether to wait until the invasions are so monstrous and palpable as to shock every mind; or to resist the beginning of usurpation.

This was done in the resistance by the colonies to the mother country of Great Britain. For it was not so much the weight of the oppression that was felt, but an abstract principle that was disputed, which gave rise to the revolution. The claim of binding the colonies by an act of parliament "in all cases whatever.”

The principal objection to the stopping short of resistance to an unconstitutional authority in the first aggression, is the danger of allowing precedents. It is now agreed in Olmstead's case, and made the foundation; and indeed the only ground that I see on the part of the United States courts, that the recommendation of congress to institute Admiralty courts by the individual states, and the individual states in that and other instances, submitting to these recommendations gave them the force of law and the qualifications of adoption, are disregarded. The exception is thrown out of the case, and the whole power recommended, is assumed; and because it has been assumed, it has become legal.

The states were united but sub-modo; and they had no prize court. They actually had no power to establish a Judiciary tribunal in any state. Each state was a sovereign power itself, and but in the capacity of an ally, for the purposes of the confederacy. The prize court was that of the state, with a power of revision to the council of the confederacy, as far as the state had judged it necessary to concede it.

It was not necessary, save in the case of an alien alleging the privilege of a neutral; and even in this case, not farther than the conclusion of law from facts found. But admitting it to be necessary, it was an argument why the revision, without exception, should have been given to the congress; but it could go no length

to prove, that it had been given. It has been said, that it was an incident to the sovereignty; but this is begging the question, that there was a sovereignty to this extent. If it was an incident of sovereignty, why not establish admiralty courts by authority of the sovereignty? Why treat it as a matter of courtesy and recommend? It has been contended that to recommend was the same as to enact. Had the recommendation of congress, agreeably to the 5th article of the treaty with Great Britain the force of an act? There was not the least attention paid to it by any of the states, though this was after the ratification of the confederation in 1781; not until which had the congress any power whatever, but what they were allowed to exercise. The point is not tenable; and whatever may have been the justice of the claim of Olmstead, the committee of Congress formerly, or the courts under the present constitution, had no jurisdiction of the question.

I will admit, that where there is jurisdiction the courts will look at the justice of the case, on grounds of moral equity; and will be astute in saving it from the operation of a general rule. But on the contrary, in considering the question of jurisdiction, they will not be justifiable, in looking at the merits of the particular case; for they have no right judicially, to think upon the subject. Where the danger is of being trespassers to an awful extent, the endangering the peace of the union, it becomes them to stop short, rather than exceed. In applying their powers to a particular case, a strict construction is demandable. No wantonness of assumption in the face of a people, jealous of state rights. I will leave it to be considered by themselves for the present, whether there has been on all occasions, such delicacy in taking cognizance, as a mind perfectly awake to the importance of the consideration, would have thought it advisable to exercise.

The necessity of some tribunal to pass upon the question of jurisdiction of the United States courts, where a state is concerned, has been pressed upon the state of Pennsylvania, in the case of what is called the actual settler under the act of Assembly of the 3d April, 1792. The case of every actual settler under that act, is in fact a case where the state is concerned; and an ejectment, though nominally against the settler, is in fact against the state. Under the act of 3d April, 1792, a great tract of country was disposed of in consideration of money and settlement. The one half consideration, the money part, to be paid first, and the settlement to be made afterwards; or the settlement to be made first, and the one half consideration (money) to be paid with interest afterwards. In

the case of him who has paid the one half consideration (money) and is to satisfy the remaining half by settlement, it is stipulated that it shall be in a given time; as, otherwise he might never satisfy, at all, what remained due. This is stipulated to be two years, within which the satisfaction remaining due shall be begun to be made. And that, within that time, it shall be begun to be made, unless prevented by the enemies of the state. On the part of those who had paid the one half consideration (money) first, and were to satisfy the remaining one half of the consideration of the purchase, the settlement, within two years. It is said, they have been prevented by the enemies of the state from beginning within two years to make a settlement; and therefore are excused from satisfying the state as to the remainder of the consideration altogether. I say nothing of the absurdity of this construction of the contract which the courts of the United States have sanctioned; because I deny, that, being a state claim, they had jurisdiction of the question.

For, in case of the remainder of the consideration, the settlement, not being satisfied, within the time, an entry is given to the state to have it made by such as shall make the settlement first, and pay money with interest afterwards. The state enters; which she cannot do, being an incorporeal body, but by purchasers under her ; or in other words, persons actually settling, and coming under the contract of satisfying as to the remainder of the consideration, (money) afterwards. The ejectment in that case is nominally against the actual settler, but in reality against the state. For if the actual settler is disturbed in his settlement, the state loses the half original consideration of the sale.

But how shall it appear to the United States courts, that the state is the party when she is not nominally on the record? The answer is easy; by admitting evidence of the truth of the fact; and this to the courts themselves, who are to judge of the jurisdiction, on affidavit shewing the truth of the fact. The enquiring as to the real plaintiff or defendant in a case, is familiar in the courts, either with a view to the competency of testimony offered; or as to the liability for costs; and this is by facts disclosed to the court on affidavit, or otherwise. The operation also of a verdict, and judgment on the same point, and between the same parties really, though not nominally, can be reached only in the same way; and it can be reached in this way, notwithstanding all shifts in the real party to put forward another name on the record by a collusive transference, or substitution, by any contrivance that the craft

of the profession or the management of the suitors may devise. In such a case it is the duty of the court to endeavor to get at the fact; and to defeat the subtility of evasion.

In the amendment to the constitution, are the cases in view only those, where the state is nominally a party, and where the recovery must act directly upon it as a body politic? That is to say where money is recovered, the levy must be upon the money of the state, in the hand of the state treasurer: or upon public lands, and tenements such as a state house lot, or building. If that be so the amendment can in most cases be evaded. The suit for debt, if such be the nature of the demand, may be brought against the treasurer, as having that money in his hand to which the claimant has a right; or on an ejectment brought against a tenant of the public lot, a recovery may be had though it is the state that is actually put out of possession. If the courts cannot reach such a case; or if it cannot be pushed upon them so as to oust their jurisdiction under this amendment, my argument is gone, and the state prerogative thought to be saved, will be narrowed to a very small compass indeed. It can be applied only to cases, where the party cannot by any means give his claim such a shape, that he may pursue it indirectly without putting the state in his writ, or declaration.

The state of Pennsylvania never can be reconciled to what she conceives to be an unwarrantable assumption of jurisdiction of the United States court, under the act of 3d April, 1792, laying even aside the construction, monstrous and shocking, as it would seem to be, which they have put upon that act. She has been very near going as far in that case, as in the case of Olmstead, and by a legislative act providing against the effect of a judgment given in such a case, by directing the governor to oppose force; which if they were to do, I do not know how he could escape the duty but by resignation; and in that case he might be followed by an impeachment for a dereliction of his duty. It is under a sense of these difficulties, and appaling consequences, that I look forward to an amendment of the constitution, by providing a tribunal independent of the courts to decide in the case of a contested jurisdicPENNSYLVANIENSIS.

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Pierce v. Turner. 5 Cranch, 154.

ERROR to the Circuit Court of the District of Columbia, &c. case on a special verdict.

In this case Johnson, J. dissented from the opinion of the court; and on examination I am of opinion that he was right; and not only right in his judgment, but concise and correct in his reasons given. In page 170, he hits the point like a ball from a rifle, and knocks down the fallacy of the argument on the other side. Credit given on the ostensible possession of property; is the credit to be defeated by a deed that is concealed, and the person to be benefitted whose duty it was to have made it public. "The creditors, in order to maintain their action," (says the Judge) "prove first, the property in the wife before marriage; then her intermarriage with their debtor. These facts, in operation of law, upon her personal property, sustain their right of recovery. But, in opposition to their claim, the wife endeavours to avail herself of this deed; and the question is brought up on an exception taken by the creditors to its validity. The ground of their objection is, that it wants that evidence of authenticity which the law requires to make it, as to them, a valid instrument." I am decidedly of opinion with the dissentient member of the court; but I take the opportunity of saying that I do not like a dissenting judge saying, as in this case, I am unfortunate enough to dissent. For there can be no misfortune in the case. We know what is meant; it is as much as to say, I am sorry, that in this case, I have to run a little counter to the self-love of the court, and to wound their pride so far as my thinking them fallible, may affect. The sting is, that by this peace-offering to their temper, it should for a moment be thought possible, that it had been hurt, or pride wounded. It becomes a judge to have such self-denial, and to be of a mind so perfectly resigned to the love of truth and justice, as not to think of his situation, as to the cum quibus, he may be. This, may not be wholly in human nature; but I would have appearances saved, and those from whom one dissents, not supposed to have any feeling on account of it; nor one's own self to be in the least

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