Judge Peters, United States v. 5 Cranch 115 (1809)

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JUDGE PETERS, UNITED STATES v. 5 Cranch 115 (1809)

This case bears historical significance as an episode in defiance, expressed in nullification and bordering on rebellion, by a state against the United States courts. The state was Pennsylvania, which suggests that doctrines of state sovereignty have never been merely sectional. The case was the occasion of Chief Justice john marshalls's first nationalist opinion, but more important is the fact that Pennsylvania successfully thwarted the federal courts, exposing their helplessness in enforcing their writs, until a President of the Virginia dynasty unhesitatingly backed the judiciary, still Federalist-dominated, against the political machine of his own party in Pennsylvania.

The case originated during the Revolution as the result of a dispute between the state and Gideon Olmstead over the proceeds from the sale of a captured enemy ship. A state court denied Olmstead's claim, but a prize court established by Congress ruled in his favor; the state court refused to obey the federal order and the state treasurer retained the money. Litigation went on for years. In 1803 Judge richard peters of the United States District court in Philadelphia decided in favor of Olmstead in his suit against the treasurer's estate, which held the money for the state. The state legislature, invoking the eleventh amendment, resolved that Peters had "illegally usurped" jurisdiction and instructed the governor to protect the rights of the state. In 1808 Olmstead, then in his eighties, obtained from the Supreme Court an order against Peters to show cause why a writ of mandamus should not be issued compelling him to enforce his decision of 1803. The judge stated that the state legislature had commanded the governor "to call out an armed force" to prevent the execution of a federal process. Peters asked for a resolution of the issue by the supreme tribunal of the nation, saying that he had withheld process to avoid a conflict between the state and federal governments.

In 1809, at a time when New England was disobeying the embargo acts, Marshall, speaking for the Court, declared:

If the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgements, the constitution itself becomes a solemn mockery, and the nation is deprived of the means of enforcing its laws by the instrumentality of its own tribunals. So fatal a result must be deprecated by all; and the people of Pennsylvania, not less than the citizens of every other state, must feel a deep interest in resisting principles so destructive of the Union, and in averting consequences so fatal to themselves.

(That passage was quoted by the Court in the 1950s and 1960s in cases involving southern defiance of federal orders commanding desegregation.) The Court awarded a "peremptory mandamus" against Peters, but neither he nor Marshall could force the state to comply.

The state governor called out the militia, and the state legislature, supporting him, announced that " as guardians of the State rights, we cannot permit an infringement of those rights by an unconstitutional exercise of power in the United States Courts." Those actions were not the only reply to Marshall's declaration that the Eleventh Amendment did not apply inasmuch as the suit had not been commenced against the state. Pennsylvania also denied that the Supreme Court had appellate powers over the state courts or that it was the final arbiter in a dispute between the United States and any state. When a federal marshal attempted to execute Peters's judgment, 1400 men of the state militia opposed him; he summoned a federal posse comitatus of 2,000 men, but to avoid bloodshed fixed the day for service in three weeks. At this juncture, while the papers in the country were still carrying news about Federalist New England's defiance of the embargo acts, the Democratic governor of Pennsylvania turned to the Democratic national administration for support. "The issue is in fact come to this," said The Aurora, the administration newspaper in Philadelphia, "whether the Constitution of the United States is to remain in force or to become a dead letter.… The decree of the Court must be obeyed." President james madison, mindful of the repercussions of the case, chastised the state governor. "The Executive," he replied, "is not only unauthorized to prevent the execution of a decree sanctioned by the Supreme Court of the United States, but is expressly enjoined, by statute, to carry into effect any such decree, where opposition may be made to it."

The incipient rebellion immediately collapsed. The state withdrew its militia and appropriated the money to pay Olmstead. In the aftermath of the affair, the United States arrested and tried the commanding general of the state militia and eight of his officers for having obstructed the federal marshal. A federal jury convicted them in a trial before Justice bushrod washington, who sentenced the defendants to fines and imprisonment, but the President pardoned them. Eleven state legislatures adopted resolutions condemning Pennsylvania's resistance to the federal courts. Every southern state rejected Pennsylvania's doctrines of states ' rights. That northern state had also proposed the establishment of "an impartial tribunal" to settle disputes between "the general and state governments." The legislature of Virginia replied that "a tribunal is already provided by the Constitution of the United States, to wit: the Supreme Court, more eminently qualified … to decide the disputes aforesaid … than any other tribunal which could be erected." In a few years, however, Virginia would be playing Pennsylvania's tune. (See martin v. hunter ' s lessee, 1816.) The supremacy of the Supreme Court had by no means been established yet.

Leonard W. Levy


Higginbotham, Sanford W. 1952 The Keystone in the Democratic Arch: Pennsylvania Politics 1800–1816. Pages 177–204. Harrisburg: Pennsylvania Historical and Museum Commission.

Treacy, Kenneth W. 1957 The Olmstead Case, 1778–1809.

Western Political Quarterly 10:675–691. Warren, Charles 1923 The Supreme Court in American History, 3 vols. Vol. I:375–387. Boston: Little, Brown.