gislative 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the Tariff—and if her Chief Justice had decided in her favour, Pennsylvania never would have yielded—never would have withdrawn her nullification.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 exclud-
