USA > Pennsylvania > The Register of Pennsylvania : devoted to the preservation of facts and documents and every other kind of useful information respecting the state of Pennsylvania, Vol. IX > Part 68
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" I doubt not of thy concurrence in a political view, but I persuade myself of it, from more excellent motives, a real conviction in thyself of the reasonableness of our system, which is very happily your national church, and that thee will not only find it thy present but future interest to support it. If thee have any doubts (which I have no reason to think) consult coolly and without prejudice, Robert Barclay and thy own good Father's works, who were both men of great integrity, good learning, and deep penetration, who have given a very reasonable account of our Faith, supported by more scriptural authority and sound arguments, than any sys- tem of religion in the world; the example of so great and good a man as thy Father, I must confess would have a great weight with me, whose sufferings for his early pious sentiments is enough to enforce the reason- ableness of them.
Dear Friend-Please receive these imperfect hints in good part; I only tell thee my own private sentiments, divulged to none but thyself, and submit them to thy serious consideration-I beg of thee, lock them up in thy own breast, and be assured that none wishes more thy happiness and perfect harmony in thy province, than thy affectionate friend, P. COLLINSON.
ANTIQUITIES OF PHILADELPHIA.
A SINOULAR GEOLOGICAL FACT .- In digging out the foundation of the projected Exchange Coffee House, in Dock street, in this city, the workmen came to an old tan yard, with a pair of their former vats in place. There appears to have been a natural spring and a run of water, upon the ancient banks of which the vegeta- ble remains are converted into a black combustible sub- stance, resembling PLAT. Some persons were asto- nished to find the planks of the vats in such a state of preservation, but this is one of the properties of peat. In the B. Philosophical transactions for 1734, there is a letter from Dr. Balguy, giving an account of the pre- servation of two human bodies in peat for 59 years. The one, a male, was perfect, his beard was strong, the hair of his beard was short, and his skin hard, and of a tanned leather color, the joints of his legs played free-
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ly, without the least stiffness. The other, a female, was more injured, but her hair was like a living per- son's .- U. S. Gaz.
The Tan-yards, appear, from the following extracts, to have occupied most of the ground in the neighbor- hood of the Dock; in 1739 they occasioned some con- siderable discussion; and in fact, an appeal to the As- sembly, to cause them to be removed from the city, un- der a supposition that the health of the citizens was prejudiced by them. By a reference to the acts of As- sembly, it appears that the decision of the question was referred to the city authorities-whether they came to any determination at that time, we have not ascertained, but it is a fact, that the last tan-yard in that neighbor- hood, was closed only a few years since, when the new buildings immediately below Girard's Bank, were erected on the spot which the tan-yard of S. Smith had previously occupied.
From the PENNSYLVANIA GAZETTE, No. 556, A. D. 1739.
In the year 1699, a distemper broke out in this city which swept nff great numbers-It was of the malignant kind, and raged with extraordinary violence-at that time there were but two tan-yards on the Dock street, or even in the city, viz : Hudson's, and Lambert's, and but few houses in the neighborhood; Lambert was seized with the distemperin a very violent and uncommon man- ner, he sickened, died, and was buried, in less than two days, thus onetanner died outof two; and from the hou- ses nighest the dock ; a great many died, whose names and placesofabode were well known to some now living; and though it is not said, the violence of the distemper on Lam- bert, or that the numbers who died out of the nighest hou- ses to the tan-yards were increased or occasioned by the stench of the pits, yet the probability is strong, and the experience of our neighbors at New York, and their proceedings thereon amount to what the tanners would call a full proof. -
The Mercury, Sept. 13, 1739-says, " Almost all the ground between Walnut Street bridge and Third street on both side the dock is in possession of the tanners,"
From the United States Gazette. ANCIENT GRAVES DISCOVERED.
A brief Notice of some singular appearances of ancient graves, discovered in the diluvial gravel of the site of Philadelphia.
The workmen employed to dig out the ground for the foundation of an addition to the oil cloth carpet manufactory at Bush Hill, belonging to Mr. James M'Calla, discovered some singular appearances of an- cient graves. They were about 30 in number situate above 2 feet a-part, arranged in two parallel rows run- ning north and south, commencing on the south side of Fairview strcet, about 10 feet east of Schuylkill Fifth street. They were all exactly of the same dimensions, namely: 5 feet in length, 2 feet in width, 1 foot 6 inches in depth, from the surface of the earth to the place where the remains were found, and thence 2 feet 6 inch- es more to the bottom of the deposite. The ground between the surface of the earth and the deposite was gravel covered with a thin soil, and its compactness and consistency was such that no one would have conjectur- ed that it had been disturbed. The spaces containing the deposite were bounded by straight lines at right an- gles, as if these had once been boxes, or coffins, but no vestige of wood or nails could be traced. Each space contained a grey earth in ashes, which, when examined, proved to be animal remains. They were all, except two, full of this substance, those two were half full; no bone or tooth was discovered.
AN OLD TOMBSTONE .- In digging a cellar for a house, about to be built in Second street, a few doors below Chesnut, some human bones were discovered, and after- wards a tombstone, bearing date 1715. Above these relics of another century, there was apparently " made ground," inducing the inference that the site, in former times, had been occupied as a grave-yard. The tomb- stone bore the record of the decease of
" M- Fane,"
who departed this life at the age of 64. Some of our antiquaries may probably be enabled to furnish some in- teresting reminiscences upon this subject .- Inquirer.
READING, APRIL 7.
Yesterday after the whole fabric had been razed to the ground of that ancient stone place of public wor- ship, the German Reformed Church, which withstood the blasts of between seventy and eighty winters, the cavity of the corner stone was exposed to public view. Our business prevented ns from being present at the interesting sight. We hastily gleaned the following: Its contents consisted of a leaden plate, upon which were stamped brief memorabilia of the founding of the build- ing, together with a decayed manuscript, and the ho- ly scriptures so much in a state of decay as to render illegible a single letter. In fact, a portion that we saw, resembled in our estimation, thin pieces of shavings in a rotted state .- Journal.
NORRISTOWN.
On the condition and prospect of the town, the Her- ald of yesterday says:
The unusual demand for small houses this spring, in this borough, we suppose will be a sufficient induce- ment for those who own property to erect a large num- ber the present season. Several families have been obliged to leave the place for want of dwellings, and a large number of applicants have been unsuccessful. The increase of business of every kind, and the remarkable healthiness of the borough, are strong inducements for strangers to establish a residence amongst us, which if properly encouraged would in a few years, increase our business, population and town.
It is worthy of observation that part of this borough, which in our recollection was chiefly enclosed with post and rail fence, and produced fine crops of grass and grain, is now the business part of the town. We allude to that part between Swedes street, and De Kalb street, in which there are now four taverns, three stores, six lawyers' offices and a magistrate's office, two print- ing-offices, a post-office, an apothecary shop, a marble- yard, a bake-house and cake shop, a clock and watch- maker shop, a hatter's shop, an oyster house, lottery of- fice, confectionary and fruit store, a currier's shop, a tailor's shop, a cabinet maker's shop, a saddle and harness maker's shop.
BEAVER, APRIL 6.
NEW PHILADELPHIA .- The seceding portion of the Harmony Society have purchased from Messrs. Phillips & Graham, the town of Phillipsburg, opposite this place, for the purpose of forming a community under the title of the "Philadelphia Society." Their town will assume the name of New Philadelphia. They intend entering largely into the manufacturing business. We wish them success .- Argus.
Printed every SATURDAY MORNING by WILLIAM F. GED- DES, No. 9 Library Street. Philadelphia; where, and at the PUB- LICATION OFFICE, IN FRANKLIN PLACE, second door back of the Post Office,(front room) subscriptions will be thankfully re- ceived. Price FIVE DOLLARS per annum, payeble annually by subscribers residing in or near the city, or where there is au agent. Other subscribers pay in advance.
HAZARD'S REGISTER OF PENNSYLVANIA.
DEVOTED TO THE PRESERVATION OF EVERY KIND OF USEFUL INFORMATION RESPECTING THE STATE.
EDITED BY SAMUEL HAZARD.
VOL. IX .- NO. 16. PHILADELPHIA, APRIL 21, 1832. NO. 225.
THE CHEROKEE CASE.
Opinion of Mr. Justice McLean delivered January Term, 1832.
SAMUEL A. WORCESTER, US. THE STATE OF GEORGIA.
Mr. JUSTICE McLEAN-As this case involves principles of the highest importance, and may lead to consequences which shall have an enduring influence on the institutions of this country; and as there are some points in the case on which [ wish to state, dis- tinctly, my opinion, I embrace the privilege of doing so,
With the decision, just given, I concur.
The plaintiff in error was indicted under a law of Genrgia, "for residing in that part of the Cherokee na- tion attached, by the laws of said State, to the county of Gwinnett, without a license or permit from his Ex- cellency the Governor of the State, or from any agent authorized by his Excellency the Governor to grant such permit or license, and without having taken the oath to support and defend the constitution and laws of the State of Georgia, and uprightly to deinean himself as a citizen thereof."
On this indictment the defendant was arrested, and, on being arraigned before the Superior Court for Gwinnett county, he filed, in substance, the following plea.
Ite admits that, on the 15th of July, 1831, he was, and still continued to be, a resident in the Cherokee nation, and that the crime, if any were committed, was _committed at the town of New Echota, in said nation, out of the jurisdiction of the court. That he is a citizen of Vermont, and that he entered the Indian country in the capacity of a duly authorized Missionary of the American Board of Commissioners for Foreign Mis- sions, under the authority of the President of the Unit- ed States, and has not since been required by him to leave it. That he was, at the time of his arrest, engag- ed in preaching the Gospel to the Cherokee Indians, and in translating the Sacred Scriptures into their lan- guage, with the permission and approval of the Chero- kee nation, and in accordance with the humane policy of the Government of the United States, for the im- provement of the Indians.
He then states, as a bar to the prosecution, certain treaties made between the United States and the Che- rokce Indians, by which the possession of the territory they now inhabit was solemnly guaranteed to them; and also, by a certain act of Congress, passed in March, 1802,entitled "An act to regulate trade and intercourse with the Indian tribes." He also alleges, that this sub. ject, by the Constitution of the United States, is ex- clusively vested in Congress; and that the law of Geor- gia, being repugnant to the Constitution of the United States, to the treaties referred to, and to the act of Con- gress specified, is void, and cannot be enforced against him.
This plea was overruled by the court, and the defen- dant pleaded not guilty,
"the jury returned a verdict of guilty; and the defen- dant was sentenced, by the court, to be kept in close custody, by the Sheriff of the county, until he could be transported to the penitentiary of the State, and the
and keep him at hard labour in the penitentiary, during the term of four years.
Another individual was included in the same indict- ment, and joined in the plea to the jurisdiction of the court, and was also included in the sentence, but his name is not adverted to, because the principles of the case are fully presented, in the above statement.
To reverse this judgment, a writ of error was obtain- ed, which, having been returned, with the record of the proceedings, is now before this Court.
The first question which it becomes necessary to ex- amine, is, whether the record had been duly certified, so as to bring the proceedings regularly before this tri- bunal.
A writ of error was allowed, in this case, by one of the Justices of this Court, and the requisite security taken. A citation was also issued, in the form prescrib- ed, to the State of Georgia, a true copy of which, as appears by the oath of William Patton, was delivered to the Governor, on the 24th of November last; and that another true copy was delivered, on the 22d day of the same month, to the Attorney General of the state.
The record was returned by the clerk, under the seal of the Court, who certifies that it is a full and com- plete exemplification of the proceedings and judgment of the case; and he further certifies, that the original bond, and a copy of the writ of error, were duly de- posited and filed in the clerk's office of the said court, on the 10th day of November last,
Is it necessary, in such a case, that the record should be certified by the Judge who held the Court?
In the case of Martin, es. Hunter's lessee, which was a writ of error to the Court of Appeals of Virginia, it was objected that the return to the writ of error was defective, because the record was not so certified; but the Court, in that case, said, "the forms of process, and the modes of proceeding in the exercise of jurisdiction, are with few exceptions left by the logislature to be regulated and changed as this court may, in its discre, tion, deem expedient." By a rule of this court, "the return of a copy of a record of the proper court, an- nexed to the writ of error, is declared to be a sufficient compliance with the mandate of the writ." The record, in this case, is duly certified by the clork of the court of appeals, annexed to the writ of error. The objec. tion, therefore, which has been urged to the. sufficiency of the return, cannot prevail."-(1 Wheat. 304. )
In 9 Wheat. 526, in the case of Stewart es. Ingle and others, which was a writ of error to the Circuit Court for the district of Columbia, a certiorari was is- sued, upon a suggestion of diminution in the record, which was returned by the clerk with another record; whereupon a motion was made for a new certiorari, on the ground that the return ought to have been made by the judge of the court below, and not by the clerk. The writ of certiorari, it is known, like the writ of cr- ror, is directed to the court.
Mr. Justice Washington, after consultation with the Judges, stated that, according to the rules and prag- tice of the court, a return made by the clerk, was 2 sufficient return.
To ascertain what has been the general course of keeper thereof was directed to receive him into custody, I practice on this subject, an examination has been made
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into the manner in which records have been certified from State Courts to this Court; and it appears that, in the year eighteen hundred and seventeen, six causes were certified in obedience to writs of error, by the clerk, under the seal of the Court. In the year eigh- teen hundred and nineteen, "two were so certified, one of them being the case of Mccullough vs. the State of Maryland.
In the year eighteen hundred and twenty-one, three cases were so certified; and in the year eighteen hun- dred and twenty-three, there was one. In eighteen hundred and twenty-seven, there were five; and in the ensuing year seven.
In the year eighteen hundred and thirty, there were eight causes so certified, in five of which, a state was a party on the record. There were three causes thus certified in the year eighteen hundred and thirty-one, and five in the present vear.
During the above periods, there were only fifteen causes from State Courts, where the records were cer- tified by the Court or the presiding Judge, and one of these was the case of Cohen vs. the State of Virginia.
This court adopted the following rule on this subject, in seventeen hundred and ninety-seven:
"It is ordered by the Court, that the Clerk of the Court to which any writ of error shall be directed, may make the return of the same, by transmitting a true copy of the record and of all proceedings in the cause, under his hand, and the seal of the court."
The power of the Court to adopt this rule cannot be questioned: and it seems to have regulated the practice ever since its adoption. In some cases, the certificate of the Court, or the presiding Judge, has been affixed to the record; but this court has decided, where the question has been raised, that such certificate is unne- cessary.
So far as the authentication of the record is concern- ed, it is impossible to make a distinction between a eivil and a criminal case. What may be sufficient to authen- tieate the proceedings in a civil case, must be equally so in a criminal one. The verity of the records is of as much importanee in the one case as the other.
This is a question of practice, and it would seem that, if any one point in the practice of this Court can be con- sidered as settled, this one must be so considered.
In the progress of the investigation, the next inquiry which seems naturally to arise, is, whether this isa case in which a writ of error may be issued.
By the twenty-fifth section of the Judiciary act of seventeen hundred and eighty-nine, it is provided, "that a final judgment or decree in any suit in the highest court of law or equity of a State, in which a decision in the suit could be had, where is drawn in question the validity of a treaty, or statute of, or an authority exer- cised under, any State, on the ground of their being re- pugnant to the Constitution, treaties, or laws of the United States, and the decision is in favour of such their validity; or where is drawn in question the con- struction of any clause of the Constitution, or of a trea- ty, or statute of, or commission held under, the United States, and the decision is against the title, right, privi- lege, or exemption, specially set up or claimed by either party, under such clause of the said Constitution, treaty, statute, or commission, may be re-examined, and reversed or affirmed, in the Supreme Court of the Uni- ted States."
Doubts have been expressed whether a writ of error to a State Court is not limited to civil cases. These doubts could not have been suggested by reading the | their delegates, limited in their sanctions to the respec-
above section. Its provisions apply as well to criminal as to civil cases, where the Constitution, treaties, or laws of the United States come in conflict with the laws of a State; and the latter is sustained by the decision of the Court.
doubtedly true, so long as a State Court, in the execu- tion of its penal laws, shall not infringe upon the Con- stitution of the United States, or some treaty or law of the Union.
Suppose a State should make it penal for an officer of the United States to discharge his duties within its jurisdiction; as, for instance, a land officer, an officer of the customs, or a post-master, and punish the offend- er by confinement in the penitentiary; could not the Supreme Court of the United States interpose their power, and arrest or reverse the State proceedings? Cases of this kind are so palpable, that they need only to be stated, to gain the assent of every judicious mind. And would not this be an interference with the adminis- tration of the criminal laws of a State?
This Court have repeatedly decided, that they have no, appellate jurisdiction in criminal cases, from the Circuit Courts of the United States: writs of error and appeals are given from those Courts only in civil cases. But, even in those Courts, where the Judges are divided on any point, in a criminal case, the point may be brought before this Court, under a general provision in cases of division of opinion :
Jurisdiction is taken in the case under consideration, exclusively, by the provisions of the 25th section of the law which has been quoted. These provisions, as has been remarked, apply, indiscriminately, to criminal and civil cases, wherever a right is claimed under the Con- stitution, treaties, or laws, of the United States and the decision by the State Court is against such right. In the present case, the decision was against the right ex- pressly set up by the defendant, and it was made by the highest judicial tribunal of Georgia. .
To give jurisdiction in such a ease, this Court need look no further than to ascertain, whether the right, thus asserted, was decided against by the State Court. The case is clear of difficulty on this point.
The name of the State of Georgia is used in this case, because such was the designation given to the cause in the State Court. No one ever supposed that the State, in its sovereign eapacity, in such a case, is a party to the eause. The form of the prosecution here must be the same as it was in the State Court; but so far as the name of the State is used, it is matter of form. Under a rule of this Court, notice was given to the Governor - and Attorney General of the State, because it is a part of their duty to see that the laws of the State are executed.
In prosecutions for violations of the penal laws of the Union, the name of the United States is used in the same manner. Whether the prosecution be under a Federal or State law, the defendant has a right to question the constitutionality of the law.
Can any doubt exist as to the power of Congress to pass the law, under which jurisdiction is taken in this case? Since its passage, in seventeen hundred and eighty-nine, it has been sanctioned by an uninterrupted course of decisions in this court, and acquiesced in by the State tribunals, with perhaps a solitary exception: and, whenever the attention of the National Legislature has been called to the subject, their sanction has been given to the law, by so large a majority as to approach almost to unanimity.
Of the policy of this aet there can be as little doubt as of the right of Congress to pass it.
The Constitution of the United States was formed, not in my opinion, as some have contended, by the people of the United States, nor, as others, by the States; but by a combined power, exercised by the people, through
tive States.
IIad the Constitution emanated from the people, and the States had been referred to, merely as convenient districts, by which the public expressions could be as- certained, the popular vote throughout the Union would have been the only rule for the adoption of the Constitu- tion, This course was not pursued; and, in this fact, it
It has been sald, that this Court can have no power to arrest the proceedings of a State tribunal, in the en- forcement of the criminal laws of the State. This is un- ! clearly appears, that our fundamental law was not form-
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1832]
CHEROKEE CASE-JUSTICE McLEAN'S OPINION.
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ed, exclusively, by the popular suffrage of the peo- ple.
The vote of the people was limited to the respective States in which they resided. So that it appears, there was'an expression of popular suffrage and State sanc- tion, most happily united in the adoption of the Constitu- tion of the Union.
Whatever differences of opinion may exist, as to the means by which the Constitution was adopted, there would seem to be no ground for any difference as to certain powers conferred by it.
Three co-ordinate branches of the Government were established; the Executive, Legislative, and Judicial. These branches are essential to the existence of any free government, and they should possess powers, in their respective spheres, co-extensive with each other.
If the Executive have not powers which will enable him to execute the functions of his office, the system is essentially defective; as those duties must, in such case, be discharged by one of the other branches. This would destroy that balance which is admitted to be es- sential to the existence of free government, by the wisest and most enlightened statesmen of the present day.
It is not less important that the Legislative power should be exercised by the appropriate branch of the Government, than that the Executive duties should de- volve upon the proper functionary. And, if the Judi- cial power fall short of giving effect to the laws of the Union, the existence of the Federal Government is at an cnd.
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