The Examiner, and Journal of Political Economy/Volume 2/Number 13/The Genuine Book of Nullification/3
Chapter iii.
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 some years—and instead thereof applied several times in vain to the Legislature to grant his claim.
On the 31st January, 1803, Governor McKean sent a Message to the Legislature, in regard to this decree of Judge Peters, (which he also transmitted,) reprobating severely these proceedings as violating the Law of the State, and the verdict of a jury, and as being wholly irregular.
In consequence of this message, an Act was passed 2d April, 1802, authorizing the Governor to direct the Attorney General to demand the money from the Executrices, or to bring suit against them in case of their refusal—and directing the Governor to "protect the just rights of the State," in respect of the premises by any further means or measures that he may deem necessary for the purpose, and also to protect the persons and properties of Elizabeth Sergeant and Esther Waters from any process whatever issued out of any Federal Court, in consequence of their obedience to the requisition made by the Attorney General,"—and, in the name of the Commonwealth, to give them a sufficient instrument of indemnification.
On the 29th May, 1807, Mrs. Sergeant and Mrs. Waters, (Executrices of Rittenhouse) filed a suggestion in the U. S. District Court, reciting the act, and showing that under that Act they had paid the money into the State Treasury, and that the decree of that Court, which had been made (by Judge Peters) in favour of Olmstead, was, as respected the rights of the State, without jurisdiction, and ex-parte.
Olmstead then demanded compulsory process of the Court—but Judge Peters, "fearful of embroiling the Government of the U. S. and that of Pennsylvania, and wishing his decision corroborated by the U. S. Supreme Court, refused to grant the process, and alleged these, and other reasons, in his return to a mandamus issued from that Court.
At the February Sessions, 1809, of the U. S. Supreme Court, this Return was argued, and a peremptory mandamus was ordered.
On the 27th February, 1809, Governor Snyder sent a message to the Legislature of Pennsylvania, informing them of the peremptory Mandamus, and that he was making preparations to call out a portion of the Militia to protect the persons and property of the Executrices against any process that might be issued under the Mandamus.
"On the same day he issued his orders to Michael Bright, a Militia General, directing him to call out a portion of the Militia.
The Senate and Lower House immediately passed Resolutions sustaining the Governor, "the tendency of which," (to use the words of Hall, an ultra Federalist) "was to inflame the minds of the people, and strengthen the seeds of rebellion which had been sowed by Governor McKean, and were now nurtured by his successor." (See Hall's Law Journal, vol. 3, p. 203.)
On the 24th March, 1809, the U. S. Marshal received the attachment process against the persons of the Executrices, and on the 25th was prevented from serving it by the soldiers of Bright.
On the 15th April, the U. S. Marshal eluded the vigilance of the Militia, by skulking secretly through a back way, and climbing a back fence, and thus served Mrs. Sergeant surreptitiously with the Federal process.
On the 17th, a Write of Habeas Corpus was issued from the Supreme Court of Pennsylvania, upon petition of Mrs. Sergeant, directed to the Marshal, ordering him to show cause why Mrs. Sergeant should not be released from custody under the arrest. The Marshal returned, for cause, the Writ of Attachment issued by the U. S. District Court—and the Judge, (C. J. Tilghman) after hearing argument—decided that it was not absolutely clear that the U. S. Court had no jurisdiction, and he therefore seemed to think it better to decide in their favour, than to endanger the peace of the community. He accordingly so decided, and Mrs. Sergeant was allowed by the State, in consequence of this decision by her own Chief Justice, to pay the money to Olmstead, and she was released.
To show that the great object with C. J. Tilghman in inclining his evident doubt and hesitation finally in favour of the United States, was to prevent the great mischief of embroiling the two Governments, we will quote his concluding words—they are these: "But although I say nothing concerning the policy of the Government, I may be allowed, without impropriety, to express my anxious hope that this long continued controversy will be brought to a termination without any material interruption to that harmony between this State and the United States, so essential to the prosperity of both. On the whole case, I cannot say that it clearly appears to me that the District Court of the United States made its decree in a cause of which it had no jurisdiction—I must therefore order that Mrs. Sergeant remain in the custody of the Marshal."
Gen. Bright was, soon after the conclusion of the case, prosecuted by the United States for the resistance, by his soldiers, of the execution of this process—of which he was found guilty, and afterwards pardoned by the President. But this prosecution forms no part of Olmstead's case, though it was consequent thereon and arose out of a part of the proceedings in that case—and yet we find it cunningly attempted to direct the attention of the public mind from the great civil case of Olmstead, (where Nullification was completely effectuated, and continued in force until the State herself consented to withdraw its operation and to pay over the prize money as decreed against her,) so as to direct that attention to the small criminal prosecution of Michael Bright for the part he took in executing the orders of his Sovereign State—which Sovereign State should have been the party proceeded against—(as she was the real criminal) if the U. States Government, or its courts, had dared to usurp the right of doing so—and indeed it is a wonder they did not venture it—unless perhaps their recent lesson had better instructed them, and restrained them from prosecuting, and affixing heavy penalties upon the State of Pennsylvania for Treason and Rebellion.
The statement above given of these proceedings is taken from the full and lengthy account of the case in the Law Journal of J. E. Hall, (of Baltimore) omitting only his very abusive remarks, as a Federalist, against this "Rebellion" (as he terms it) of the State of Pennsylvania and its two Governors. In one part of his observations he says, "Not only the Legislative Body (of Pennsylvania,) but the great mass of the people have nourished a spirit of hatred toward the wholesome provisions of the Common Law, generally, and of the Federal Judiciary in particular, which has justly excited the fears of all well disposed men. We have shown in the preceding narration, that the honour of this Rebellion belongs to Governor McKean—but he had an able coadjutor in the person of his successor who, being an honest, pains taking Mechanic, was elevated to the Gubernatorial Chair: Reasonable men, those who regarded the Union of the States as the anchor of political safety, and the supremacy of the Laws as the trident by which every thing dear was to be protected, shuddered at the sight of a powerful State arrayed in arms, under the sanction of the Legislative authority, to oppose the execution of a judicial decision.—That the seat of this insurrection should have been in the streets of our largest City—that in the face of day the Marshal of the District should be braved by eight obscure men of no influence, no consideration in society; headed by a man in no respect, scarcely, their superior—that he should have been obliged to scale the back fence of a yard, and weasel like, steal into a house to serve his process, when he should have put himself at the head of the District—these circumstances throw a deeper shade on the sad picture which we now contemplate."—These are the words in which this gentleman in his great zeal for Federalism and Consolidation, deprecates this instance of Nullification—And yet we find the Federal party of this city, though equal in their zeal for Consolidation, far less candid in their acknowledgement, of this case being in reality a perfect and complete specimen of Nullification.—If it be not Nullification, I cannot imagine what is so.
Were not, let me ask, the Acts of Congress establishing their Admiralty Courts—then the decisions of those Courts—and then the Resolutions of Congress sustaining those decisions—all rendered null and void by the Acts of the Legislature of Pennsylvania, ordering her militia to resist them, and protecting the Executrices of Rittenhouse in their refusal to comply with the Federal Decrees? Were not these laws of Congress and these United States Decisions all nullified and rendered a mere dead letter until the State of Pennsylvania found her own Chief Justice deciding against her; when (and when only) she consented to remove her nullification, or embargo, or arrest, upon the proceedings of the United States—and at length to allow the attachment on Mrs. Sergeant to prevail, and finally to pay back the money out of her treasury.
But who doubts for a moment that if C. J. Tilghman had decided in favour of Pennsylvania, the nullification would have been continued and carried out?
It however so happened in this case that Pennsylvania was in the wrong—as every lawyer must know; the U. S. Courts having full jurisdiction in Admiralty cases. But if she had been in the right, or if there had been the greatest doubt of the right being with the United States, as there is in our case of the Tariff—and if her Chief Justice had decided in her favour, Pennsylvania never would have yielded—never would have withdrawn her nullification.
But to pretend to deny that she did nullify at all in the case of Olmstead is the height of absurdity, and is, in fact, what no man of sense would attempt to do; for in truth there were no less than four instances of complete nullification in the course of these proceedings, viz.
1st. By the State Judge Ross positively refusing to obey the decision of Mandamus of the United States Appeal Court.
2d. By the Act of the Legislature of 29th November, 1779, annulling and abrogating the Resolutions of Congress, (which sustained the decree of their Appeal Court and declared that it should be carried into execution,) and ordering their own Court to pay over the money according to its own decree.
3d. By the Act of the Legislature of 2d of April, 1803, rendering void the Decision of the United States District Judge (Peters,) and ordering Gov. McKean to nullify it by all necessary means and measures; "to protect the just rights of the State," and to protect also the persons of the defendants.
4th. By the orders of Gov. Snyder in February, 1800, commanding General Bright and the militia to protect the defendants from the Peremptory Mandamus of the United States Supreme Court, issued during that month (February 1809;) by the Resolutions of the Legislature sustaining the Governor; and by the militia enforcing these orders and preventing the execution of the mandamus for nearly one entire month until they were eluded by stealth.
If all these proceedings do not amount to one single instance of nullification, I cannot conceive what would.
Having now shown from the facts of the proceedings in the various branches of this case of Olmstead, that Pennsylvania has actually exhibited four instances of nullification, either by her legislature, or her different judicial and military officers, under the sanction and approbation of her Legislature, I will, in my next communication, proceed to prove from the words of Chief Justice Tilghman, (one of the ablest of American Judges) that although he thought in this particular case that the United States Courts had jurisdiction of the cause, yet he has recognised the principle of nullification in its fullest extent, and in such terms as to leave no doubt that he would have himself practised it in this very case if (to use his own expression) it had "appeared clearly" to him that the U. States Court had not jurisdiction.
Olmstead's Case.—Having in my last communication shown from the facts, as they transpired in the case of Olmstead, that the State of Pennsylvania, in the course of the proceedings connected with that case, actually put in practice by her Legislature, and her officers, civil and military, the doctrine of Nullification at four distinct and separate times, I shall now cite the words of the Chief Justice of Pennsylvania, (Tilghman) in order to prove that although he sustained the proceedings of the United States on this particular occasion, he yet recognised fully the right of Nullification, even by a State Judge, wherever it appeared that the United States, or their Courts, have exceeded their powers, as granted by the Constitution. The Chief Justice thus expresses himself: "The Counsel of Olmstead have brought forward a preliminary question, whether I have a right to discharge the prisoner, even if I should be clearly of opinion that the District Court had no jurisdiction. I am aware of the magnitude of this question, and have given it the consideration it deserves. My opinion is, with great deference to those who may entertain different sentiments, that in the case supposed I should have a right, and it would be my duty to discharge the prisoner. This right flows from the nature of our Federal Constitution, which leaves to the several States absolute supremacy in all cases in which it is not yielded to the United States. This sufficiently appears from the general scope and spirit of the instrument. The United States have no power, legislative or judicial except what is derived from the Constitution. When these powers are clearly exceeded, the independence of the States, and the peace of the Union demand that the State Courts should, in cases brought properly before them, give redress. There is no law which forbids it—their oath of office exacts it—and if they do not, what course is to be taken? We must be reduced to the miserable extremity of opposing force to force, and arraying citizen against citizen, for it is vain to expect that the States will submit to manifest and flagrant usurpations of power by the United States, if (which God forbid) they ever attempt them. If Congress should pass a Bill of Attainder, or lay a tax or duty on articles exported from any State, (from both which powers they are expressly excluded) such laws would be null and void, and all persons who acted under them, would be subject to actions in the State Courts. If a court of the United States should enter a judgment against a State which refused to appear in an action brought against it by a citizen of another State, or by a foreign State, such judgment would be void and all persons who act under it would be trespassers. These cases appear so plain that they will hardly be disputed. It is only in considering doubtful cases that our minds feel a difficulty in deciding. But, if in the plainest case which can be considered, the State Courts may declare a judgment [of the U. S. Courts] to be void, the principle is established."
Thus we see that this able and impartial Judge, although deciding the case before him against his own State, yet clearly and unequivocally asserts, that even the tribunals of a State have a right to annul the federal usurpations that may be brought before them. In how much higher degree, then, must this right exist in the sovereign power of the States which created not only these tribunals, but the Federal Government itself. [See Appendix. Note B.]