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V. PETERS.

December, one thousand, seven hundred and ninety- THE U. S.three, it was proposed, as an amendment to the constitution of the United States, that the judicial power of the United States shall not be construed to extend to any suit, in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state, which, having been adopted by the requisite number of states, as appears by the communication to congress of the then president, John Adams, to this purpose, of January the eighth, one thousand, seven hundred and ninety-eight, did become a part of the constitution of the United States : And whereas, on the twenty-seventh day of May, one thousand, eight hundred and two, the said Gideon Olmstead, Artimus White, Aquilla Rumsdale and David Clark, by their attorney, William Lewis, Esq. did file a bill in the district court of the United States, at Philadelphia, for the district of Pennsylvania, before Richard Peters, judge of the said court, against Elizabeth Serjeant and Esther Waters, surviving executrixes of David Rittenhouse aforesaid, deceased, for the recovery of the moneys, with interest, so paid into the hands of the said David Rittenhouse by Matthew Clarkson, marshal of the admiralty court aforesaid, as proceeds of the prize, the brig Active so captured as aforesaid, and by the said David Rittenhouse and his executrixes aforesaid formerly and still retained: And whereas, in the answer of the said Elizabeth Serjeant and Esther Waters to the bill aforesaid, it sufficiently and substantially appears, that the said money was originally received by the said David Rittenhouse, and was by him detained, as treasurer of the commonwealth of Pennsylvania, which commonwealth was, and still is, interested in, and a claimant of, the same, under the decree of the said George Ross, as judge of the court of admiralty in manner as herein before stated: And whereas the said Richard Peters, judge of the said district court, on the bill, answer and replication so filed by and between the said. Gideon Olmstead, Artimus White, Aquilla Rumsdale and David Clark, of the one part, against Eli

V.

PETERS.

THE U. S. zabeth Serjeant and Esther Waters, executrixes as aforesaid, did, on the fourteenth day of January, one thousand, eight hundred and three, proceed to decree as follows, viz. "This is the long depending case of the sloop Active and cargo,' &c. All which legal proceedings herein before stated, will more fully and at large appear on reference to the records of the respective courts wherein the same were had: Therefore it hath become necessary for the general assembly of Pennsylvania, as guardians of the rights and interests of this commonwealth, and to prevent any future infringements on the same, to declare, that the jurisdiction entertained by the court or committee of appeals, over the decree of George Ross, as judge of the court of admiralty of Pennsylvania, in the suit where the claimants of the brig Active, as prize, were the libellants, as herein before stated, was illegally usurped and exercised, in contradiction to the just rights of Pennsylvania, and the proper jurisdiction of the court of admiralty established as aforesaid, under the authority of this state, and that the reversal of the decree of the said George Ross, in that suit, was null and void; that the jurisdiction entertained by Richard Peters, judge of the district court aforesaid, in the suit of Gideon Olmstead, Artimus White, Aquilla Rumsdale and David Clark against Elizabeth Serjeant and Esther Waters, surviving executrixes of David Rittenhouse, deceased, was illegally usurped and exercised; that the rights of this commonwealth, as a claimant, and as the party substantially interested, in the said suit, though apparent on the face of the proceedings, were unfairly passed over and set aside; that the said David Rittenhouse was not and ought not to have been considered in the light of a mere stakeholder, but as the treasurer and agent of this commonwealth, and that the jurisdiction and decree of the said Richard Peters hereon were entertained and made in manifest opposition to, and violation of, the last amendment of the constitution of the United States herein before stated, and ought not to be supported or obeyed. Therefore,

V.

PETERS.

Sect. 1. Be it enacted by the senate and house of THE U. S. representatives of the commonwealth of Pennsylvania, in general assembly met, and it is hereby enacted by the authority of the same, that the governor of this commonwealth be authorized, and he is hereby authorized and required, to direct the attorney-general of this commonwealth to apply without delay to Elizabeth Serjeant and Esther Waters, executrixes as aforesaid, and require them forthwith to pay into the treasury of this commonwealth, the moneys by them admitted to have been received in respect of the premises, in their answer to the bill so as aforesaid filed against them, in the district court of Pennsylvania, before Richard Peters, judge of the said court, without regard to the decree of the said Richard Peters herein, and in default thereof by the said Elizabeth Serjeant and Esther Waters, to direct the said attorney-general to bring suit in the name of the commonwealth, in the proper court of this commonwealth, against the said Elizabeth Serjeant and Esther Waters, for the moneys aforesaid, and proceed as speedily as the course of legal proceedings will permit, to enforce the recovery and payment thereof into the treasury of this commonwealth.

Sect. 2. And be it further enacted by the authori ty aforesaid, that the governor of this commonwealth be authorized and required, and he is hereby authorized and required, to protect the just rights of the state, in respect of the premises, by any further means and measures that he may deem necessary. for the purpose, and also to protect the persons and properties of the said Elizabeth Serjeant and Esther Waters from any process whatever issued out of any federal court in consequence of their obedience to the requisition, so as aforesaid directed to be made to them by the attorney-general of this commonwealth, and in the name of this commonwealth to give to the said Elizabeth Serjeant and Esther Waters a sufficient instrument of indemnification, in case of their payment of the moneys aforesaid, in compliance with this act, without suit brought

THE U. S. against them on the part of this commonwealth for of the same.,

V. PETERS.

the recovery

Simon Snyder, speaker of the house of representatives.

Robert Whitehill, speaker of the se

nate.

Approved, April 2, 1803.

Thomas M'Kean, governor of the commonwealth of Pennsylvania.

That they, the defendants, being required by proper authority to pay into the treasury of the said commonwealth the moneys admitted to have been received as executrixes of David Rittenhouse, Esq. in manner aforesaid, did, on the 19th day of July, 1803, transfer to the treasurer of the commonwealth the certificates of stock abovementioned, and on the 29th of July, 1803, pay into the treasury of the commonwealth the moneys by them received as aforesaid, in obedience to the said act of the general assembly, and to the requisition made under it.

The defendants respectfully further suggest, that the said certificates and money were received by their said testator, as the treasurer and officer of the said commonwealth, as appears by the bond of the said David Rittenhouse, given on the receipt thereof, filed in this court by the libellants, the 22d of May inst.; and that the same came to their hands, as his representatives, after such receipt: And, it being expressly insisted by the said act of the general assembly, that the said commonwealth had and has a right to the said certificates and money, and these defendants having, as aforesaid, obeyed the requisition of the said act, these defendants suggest that the said decree of this honourable court ought not to be executed, nor any process issued thereupon against them.

V.

PETERS.

The defendants respectfully further suggest that THE U. S. the said decree of this honourable court was pronounced, so far as respects the claims, rights and interests of the said commonwealth of Pennsylvania, ex parte, and without jurisdiction.

John Serjeant, attorney for defendants.

After this suggestion, nothing appears to have been done until the application to this court at February term, 1808, when the motion was made for a rule on the judge to show cause why a mandamus should not issue commanding him to issue an attachment, or other proper process, to enforce obedience to his sentence, as before mentioned.

At this term, Rodney, (attorney-general,) Lewis, and F. S. Key, of counsel for Olmstead and others, submitted the return of the mandamus to the consideration of the court without argument.

February 20.

MARSHALL, Ch. J. delivered the opinion of the court as follows:

With great attention, and with serious concern, the court has considered the return made by the judge for the district of Pennsylvania to the mandamus directing him to execute the sentence pronounced by him in the case of Gideon Olmstead and others v. Rittenhouse's Executrixes, or to show cause for not so doing. The cause shown is an act of the legislature of Pennsylvania, passed subsequent to the rendition of his sentence. This act authorizes and requires the governor to demand, for the use of the state of Pennsylvania, the money which had been decreed to Gideon Olmstead and others; and which was in the hands of the executrixes of David Rittenhouse; and, in default of payment, to direct the attorney-general to institute a suit for the recovery thereof. This act further authorizes and requires the governor to use any further means he

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