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On the 1st of May, 1799, George Ross, the judge of the court of admiralty, delivered to David Rittenhouse, who was then treasurer of the state of Pennsylvania, the sum of £11,496 9s. 9d. in loan-office certificates ; which was the proportion of the prize-money to which that state would have been entitled, had the sentence of the court of admiralty remained in force. On the same day David Rittenhouse executed a bond of indemnity to George Ross, in which, after reciting that the money was paid to him for the use of the state of Pennsylvania, he binds himself to repay the same, should the said George Ross be thereafter compelled, by due course of law, to pay that sum according to the decree of the court of appeals.

These loan-office certificates were in the name of Matthew Clarkson, who was marshal of the court of admiralty, and were dated the 6th of November, 1778. Indents were issued on them to David Rittenhouse, and the whole principal and interest were afterwards funded by him, in his own name, under the act of congress making provision for the debt of the United States.

Among the papers of David Rittenhouse was a memorandum, made by himself at the foot of a list of the certificates mentioned above, in these words : “ Note. The above certificates will be the property of the state of Pennsylvania, when the state releases me from the bond I gave, in 1778, to indemnify George Ross, Esq., judge of the admiralty, for paying the fifty original certificates into the treasury, as the state's share of the prize.”

The state did not release David Rittenhouse from the bond mentioned in this memorandum. These certificates remained in the private possession of David Rittenhouse, who drew the interest on them during his life, and after his death they remained in possession of his representatives, against whom the libel in this case was filed, for the purpose of carrying into execution the decree of the court of appeals. While this suit was depending, the state of Pennsylvania forbore to assert its title, and in January, 1803, the court decreed in favor of the libellants ; soon after which the legislature passed the act which has been stated.

It is contended that the federal courts were deprived of jurisdiction in this cause by that amendment of the constitution which exempts states from being sued in those courts by individuals. This amendment declares, “ 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.”

The right of a state to assert, as plaintiff, any interest it may have in a subject which forms the matter of controversy between individuals, in one of the courts of the United States, is not affected by this amendment; nor can it be so construed as to oust the court of its jurisdiction, should such claim be suggested. The amendment simply provides that no suit shall be commenced or prosecuted against a state. The state cannot be made a defendant to a suit brought by an individual ; but it remains the duty of the courts of the United States to decide all cases brought before them by citizens of one state against citizens of a different state, where a state is not necessarily a defendant. In this case the suit was not instituted against the state or its treasurer, but against the executrixes of David Rittenhouse, for the proceeds of a vessel condemned in the court of admiralty which were admitted to be in their possession. If these proceeds had been the actual property of Pennsylvania, however wrongfully acquired, the disclosure of that fact would have presented a case on which it was unnecessary to give an opinion; but it certainly can never be alleged that a mere suggestion of title in a state property, in possession of an individual, must arrest the proceedings of the court, and prevent their looking into the suggestion, and examining the validity of the title.

If the suggestion in this case be examined, it is deemed perfectly clear that no title whatever to the certificates in question was vested in the state of Pennsylvania.

3 Cr. 139.

By the highest judicial authority of the nation it has been long since decided that the court of appeals erected by congress had full authority to revise and correct the sentences of the courts of admiralty of the several states in prize causes. That question, therefore, is at rest. Consequently, the decision of the court of appeals in this case annulled the sentence of the court of admiralty, and extinguished the interest of the state of Pennsylvania in the Active and her cargo which was acquired by that sentence. The full right to that property was immediately vested in the claimants, who might rightfully pursue it, into whosesoever hands it might come. These certificates, in the hands, first, of Matthew Clarkson, the marshal, and afterwards of George Ross, the judge of the court of admiralty, were the absolute property of the claimants. Nor did they change their character on coming into the possession of David Rittenhouse.

Although Mr. Rittenhouse was treasurer of the state of Pennsylvania, and the bond of indemnity which he executed states the money to have been paid to him for the use of the state of Pennsylvania, it is apparent that he held them in his own right, until he should be completely indemnified by the state. The evidence to this point is conclusive. The original certificates do not appear to have been deposited in the state treasury, to have been designated in any manner as the property of the state, or to have been delivered over to the successor of David Rittenhouse. They remained in his possession. The indents, issued upon them for interest, were drawn by David Rittenhouse, and preserved with the original certificates. When funded as part of the debt of the United States, they were funded by David Rittenhouse, and the interest was drawn by him. The note made by himself at the foot of the list which he preserved, as explanatory of the whole transaction, demonstrates that he held. the certificates as security against the bond he had executed to George Ross ; and that bond was obligatory, not on the state of Pennsylvania, but on David Rittenhouse, in his private capacity. These circumstances demonstrate, beyond the possibility of

doubt, that the property which represented the Active and her cargo was in possession, not of the state of Pennsylvania, but of David Rittenhouse, as an individual; after whose death it passed, like other property, to his representatives.

Since, then, the state of Pennsylvania had neither possession of, nor right to, the property on which the sentence of the district court was pronounced, and since the suit was neither commenced nor prosecuted against that state, there remains no pretext for the allegation that the case is within that amendment of the constitution which has been cited ; and consequently, the state of Pennsylvania can possess no constitutional right to resist the legal process which may be directed in this cause.

It will be readily conceived that the order, which this court is enjoined to make by the high obligations of duty and of law, is not made without extreme regret at the necessity which has induced the application. But it is a solemn duty, and therefore must be performed. A peremptory mandamus must be awarded. 5 C. 141.

FLETCHER v. PECK.

FEBRUARY TERM, 1810.

[6 Cranch's Reports, 87 – 148.]

On the 7th of January, 1795, the legislature of Georgia passed an act authorizing a patent to issue to a company called “ The Georgia Company,” for a certain tract of land within the limits of that state ; which patent was regularly issued on the 13th of that month. This land passed from hand to hand, until on the 14th of May, 1803, Peck, the defendant in this action, conveyed by deed to Fletcher, the plaintiff, fifteen thousand acres of the original tract, lying undivided therein. Peck in this deed covenanted that Georgia, at the time her patent issued, was legally the owner in fee of the land in question, subject only to the extinguishment of the Indian title; that the legislature of Georgia had good right to sell the same ; that the title given by Georgia had been legally conveyed to Peck ; and that this title had been “in no way constitutionally or legally impaired by virtue of any subsequent act of any subsequent legislature of the said state of Georgia.” Fletcher, however, alleged that the legislature of Georgia had no right to sell the tract in question ; that the members of the Georgia Company had promised members of the legislature, that, if they would vote for the act authorizing the patent to issue, they should have a share in the lands, by which, he alleged, the act was made of no avail, and so the title of the state of Georgia had never passed to Peck. And he alleged, further, that the legislature of Georgia, on the 13th of February, 1796, for the reason above stated, annulled the act granting a patent to the Georgia Company. He also alleged that on the 7th of January, 1795, the United States, and not Georgia, owned the lands in question.

Fletcher sued Peck in the circuit court for the district of

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