Cherokee Phoenix


Published February, 19, 1831

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Extract from Judge Hopkinson's Eulogium on the Hon. Bushrod Washington.

While I refer you to these instructive volumes for a knowledge of the decision of Judge Washington, I should be unjust to my subject, were I to omit to remind you of a case which should never be forgotten by any citizen of this Republic. It is a lesson of duty so impressive, so honorable to all concerned in it; and most of all to the commonwealth of which we are immediate members- I allude to the trial of General Michael Bright and others, on an indictment for obstructing the execution of the precess of a court of the United States. It was tried in this city, in the spring of 1809, before Judges Washington and Peters.

It is unnecessary for my purpose to state all the circumstances of this celebrated case. It is sufficient to say, that during the war of our Revolution, Gideon Olmstead and others, having fallen into the hands of their enemy, were put on a board of a British sloop, as prisoners of war, to be conducted to New York. During the passage, Olmstead and his companions rose on the British crew, took the vessel from them, and steered for a port in the United States.--When, within five miles of such a port, a brig, belonging to the State of Pennsylvania, came up with them and captured the sloop as a prize. She was brought to Philadelphia, and there libelled in the court of Admiralty of the State, then established under an act of the State Legislature. Olmstead, and his associates filed their claim, and a judgment was rendered giving one fourth of the prize to them, and the remainder to the brig; that is to the State of Pennsylvania, her owner. Olmstead appealed to the court of Appeals, established by Congress; where the sentence of the court of Admiralty was reversed and the whole prize decreed to Olmstead; and process was issued directing the Marshal to sell the vessel and cargo, and pay the proceeds accordingly.

The Judge of the court of Admiralty delivered to David Rittenhouse, then 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. This money in the form of certificates, was in the 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 decree was given by the District Court according to the prayer of the libel. This was in January, 1803. Thus far the state of Pennsylvania had made no movement to assert her claim; but it was now 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 use, and in doing so, were exposed to the whole power of the federal judiciary. Accordingly, on the 2d of April, 1803, an act was passed by the legislature of Pennsylvania, requiring the representatives of Mr. Rittenhouse to pay the money into the State treasury; and directing a suit against them should they refuse.- The Governor of the State was also required to protect the just rights of the state by any further measures 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 obedience to this requisition. The Act of Assembly declared; that the exercise of jurisdiction by the Court of Appeals was illegally usurped, in contradiction to the just rights of Pennsylvania, and that the decree of reversal was null and void. So of the decree of the District Court. Pause, for a moment, to observe the awful positions in which these two sovereignties, that of the United States and that of Pennsylvania are now placed. The United States were bound to support with their whole force the execution of their courts; and the Governor of Pennsylvania was ordered by its legislature to resist the execution of that judgment with the whole force of the State. We tremble even now to look back at the precipice on which she stood. A false step on either side, might have been ruin to both. Nothing but the most disinterested and magnanimous patriotism could have brought us safely through this mortal crisis.

The District Court hesitated to proceed. The question was one of great difficulty and delicacy; the anticipated conflict, terrible in the extreme. The process was suspended, that the case might be submitted to the Supreme Court, which, after a hearing, stood firmly to the Constitution and the law, and commanded the District Judge to issue the process required. It was issued. Many of you may remember with what an agonizing anxiety the result was awaited. Was a civil war to tear the entrails of the State? and citizen to meet citizen in a deadly strife? Was our happy and prosperous career doomed to be so short? Was this glorious Union to dissolve in blood, after a few years, which had proved its unparalleled excellence; had poured plenteously bounties upon our land; had raised us from weakness, poverty, and obscurity, to the power and dignity of a great nation: which had given liberty, security, and wealth to a virtuous and lost in an unnatural conflict? The process was issued; and the officer of the court had no choice but to execute it; and to compel obedience to it by the means given to him by the law. General Michael Bright, commanding a Brigade of the militia of Pennsylvania, received orders from the Governor, immediately to have in readiness, such a portion of the militia under his command, as might be necessary to execute the orders and to employ them to protect and defend the persons and property of the representatives of Mr. Rittenhouse from and against any process founded on the decree of the District court of the United States. A guard was accordingly placed by General Bright at the houses of these ladies; and he, with other defendants in the indictment, opposed with force, the efforts of the marshal to serve the writ issued to him. The process, however, was served; and the State relieved the ladies, not by waging war upon the United States, but by paying the money according to the judgment of the court. This is enough of the history of this interesting case for our present object. It was for this resistance to the process of a court of the United States, that General Bright and others of his party were indicted and brought in trial before Judge Washington and Peters, holding a Circuit court of the United States. I have been thus particular in giving the outlines of this cause, because it not only forms a remarkable era in the life of the Judge, but also in the history of our country.

At this moment it may furnish a salutary lesson and example to a sister State advancing too far in the path of opposition to the Federal Power.