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MISCELLANY.
From the Patriot ami Shield.
ELIJAH’S INTERVIEW.—Br T. Campbell
G. id not in the—Whirlicind—nor in the Thunder—nor in
the Flame—but iu the still small voice.
CTn Horeb’s rock the prophet stood—
The Lord before him passed ;
A hurricane in angry mood
Swept by him strong and fast;
The forest Veil before its force,
The rocks were shivered in its course;
God was not in the blast.
'l’was but the whirlwind of his breath.
Announcing danger, wreck, and death.
It ceased. The air grow mute—a cloud
Came, muffling up the sun ;
When, through the mountain, deep nnd loud,
An earthquake thundered on ;
The frighted eagle sprang in air,
The wolf ran howling from hislaii —
(rod was not in the storm.
T was but the rolling of his car,
The trampling of his steeds front fur.
’Twits still—agaiu and nature sto< d
And calmed herruiljed frame;
When swift from heaven a fiery fl >ed
To earth devouring came ;
Down to depth the ocean fled—
The sick’ning sun looked wmi and dead ;
Tet C«od filled not the flame.
*T w as but the terror of His oye
Tliat lightened through the troubled sky.
At hist a voice alfstill nnd small,
Rase swiftly on the ear ;
Yet roKoaso shrill and clear, that all
la heaven anil eurlli might hear.
It spoke of peace, it spoke of love,
It spoke as angels speak above,
For God himself’was there.
Fur oh! it was a farther’s you e,
That bade the trembling heart rejoice.
From “Sketches ftrnm Nature,'' bv Jo lot M‘I)iar;i.:j.
“THE REAL” HISTORY OF JEAN IE DEANS.
It is no longer doubted nor denied, that Helen
Walker, of the parish of Irongrny, in the neighbor
hood of Dumfries, was the prototype of the hero
ine who ,under the fictitious name of Jane Deans,
figures so conspicuously in the ‘Heart of Mid-Lo
thian.’ Her history, however humble, was iu some
faspects eventful, and when stript of all adventi
tious ornament may be given very briefly, though
lew readers require to be informed that it has been
expanded into an interesting and some-what bulky
novel, bv the fertile genius of Sir Walter Scott.
From whence her parents came, is not known, hut
it is generally believed that they were what are
called ‘ incomes’ into the parish of Irongray, and
were in uo way connected with the Walkers of
1'iou.Ien-a race alike distinguished for respectabili
ty and longevity, and who have flourished time out
of mind upon the fertile and pleasant banks of the
Cairu. Her father appears to have been a laboring
Juan ; and at his death, his wiodw, who was then
well stricken in years, became dependant ti*r suport
on the industry of her daughters, Nelly and Ttbby
Walker. But this the former was tin from view
ing in the light of hardship—she who was so rich
in sisterly, could not be deficient in filial affection—
and I have been informed by Elizabc-th Grierson,
housekeeper to Mr. Scott, optician Dumfries, who,
when a ‘lassie,’ knew Helen well, that though
somtnimes constrained to dine on dry bread and
water, rather than pinch her poor old mother, she
consoled herself with the idea that a blessing flow
ed from her substinence, and that ‘she was as clear
in the complexion, and looked as like her meat and
work, fls the rest of them.’
The respectable female just named, who has her
self iftefced the boundary line of threescore and ten,
resided in her youth at a place called Dalwhairn,
in Irongray, where her father cultivated a small
ljirm. Helen Walker at this time--that is nt least
‘sixty years siiic?,’—was much, as the prase, goes
about her father's house; nursed her mother du
ring her confinement and even acted ns the lead
ing gossip at ail the christenings: was respected
as a conscientiousanxiiaryrin harvest, and uniform
ly invited to share the good things of rural life,
when the mart happened to be killed, or a melder
of corn was brought from the mill. Her conversa
tional powers were of a high order,considering her
humble situation in life; her language most correct,
jnate. and pointed; her deportment sedate and
dignified in the extreme. Many of the neighbor
regarded her as *a little pensy body’—that is con
ceited, or proud ; but at the same time they bore
willing testimony to her exemplary conduct and
uuuvarvd attendance on the duties of religion.—
Wet or dry, she appeared regularly at the parish
church and even whenat home delighted in sealch-
iag the Scriptures daily. On a small round table iu
In tlie ‘big ha’ the Bible usuulv lay open, &. though
‘household nflairs would often call her hence, it
tv as observed by her visit rs that when she lacked
leisure to read continuously, she sometimes glanced
nt a single verse, and then appeared to ponder the
subject deeply. A thunderstorm, which appals
must females, had on her quite an opposite ell’cct.
While the elemental war continued, it was her
custom to repair to the door of her cottage, the
knitting gear in hand, well-conned Bible open
before her; and when questioned on the subject by
her wondering neighbors, she replied, ‘That she
was not afraid of thunder, and that the Almighty,
if such were his divine pleasure, could smite in the
city as well ns field.’-When out-door labor could not
he procured, she supported herself by footing stock
ings—an operation which bears the same relation
to the hosier’s craft that the cobier's does to the
Shoemaker’s.—It has been reported, too that she
sometimes taught children to read ; but as no one
about Clouden remembered this fact, I am inclined
to regard it as somewhat apocryphal. Helen,
though a woman of small stature, had been rath
er well favored in her yo ith.
On one occasion she told Elizabeth Grierson
that she should not do as she had done, hut ‘winnow
the corn when the wind blew in the barn door.’
13y this she meant, that she could not hold her
too high, by rejecting the oiler of a husband when
it came in her way; and when joked on the subject
of matrimony herself, she confessed, though reluct
antly. that she once bad c sweetheart—a youth
she esteemed, ard by whom she imagined she was
respected in turn; that l>er lover, at a fair time
overtook her on horseback and that when she asked
*fhe would take her up, answered gaily, ‘That
I will, Helen, if ye car. ride an inch behind the tail.’
The levity of this answer offended her greatly, and
From that moment she east the recreant from her
heart, and never, as she confessed, loved again. 1
regret that I am unable to fix the exact date of the
principal incident in Helen Walker’s file. I believe,
however, that it occured a few years previous to
the more lenient law and child murder, which
was passed in J736. At the time her sister Tibbv,
who was considerably younger, and-a comely girl,
resided in the same cottage; and it is not improbable
that their father, a worthy man, was also alive.—
Isabella was courted by a youth of the name ol
Waugh, who had the character of being rather
•wild, fell a victim to his snares, became enceinte,
though she obstinately denied the fact to the last.
The neighbors, however suspected that a child had
been born, and repeatedly urged her to confess her
fault. But she was deaf to their entreaties, and
denied all knowledge of a dead iutimt, which was
l'jimd shortly after in the Cairn of Clouden. The
circumstance was soon bruited abroad, and by tbe
directions of tbe Rev. Mr. Gutliry, Irongray,
the suspected person, and corpus delicti, were car
ried before the authorities for examination. The
unnatural mother was commited to prison, and con
fined in what was called the ‘tfiiel’s hole’ in the old
jail of Dumfries—a grated room on the ground
floor, whither her seducer sometimes repaired and
conversed with her through the grating. When
the day of trial arrived, Helen was told that a sin
gle word of her mouth would save her sister, and
that she would have time to repent afterwards:
but trying was the ordeal harrassing the alterna
te, nothing could shake her noble ’ fortitude, her
- r *iring :f«lU virwoits resdlmjoi*
Sleep at night fled from her pillow, most fervent
ly she prayed for help and succor In the time of
need ; often she wept till the tears refused to flow,
and her heart seemed too large for her, body ; but
still, no arguments, however subtle—no entreaties,
however agonising—could induce her to offend
her Maker by swerving from the truth. Her sis
ter was tried, condemned, and sentenced to be ex
ecuted at the termination of the usual period of six
weeks.—The result is well kuown, and is truly as
well as powerfully set forth in the novel. Immedi
ately alter the conviction, Hellen Walker borrow
ed a sum of money, procured one or more letters
of recommendation and without any other guide
than the public road, began to wend her way to
the city of London—a journey which was then
considered more formidable than a voyage to Amer
ica is in our day. Over her best attire she threw
a plaid and hood, walked barefooted the whole
way, and completed the distance in fourteen days.
Though her feet were “sorely blistered,” her whole
frame exhausted, and her spirits sadly jaded, she
found it impossible to rest until she had enquired
her way to the residence of John, Duke of Argyle.
As she arrived at the door, his grace was just about
to step into his carriage; and as the moment was
too critical to be lost, the heroic pilgrim presented
her petition, fell upon her knees, and urged its
prayer with a degree iff earnestness and natural
eloquence that more than realised the well-known
saying of “snatching a grace beyond the reach of
art.” Here, again, the result is well known ; a
pardon was procured and despatched to Scotland :
and the pilgrim, after her purse had been replen
ished, returned home, gladdened and supported by
tbe consoling thought that site hud done her duty
without violating her consience.—Touching this
great chapter in her history, she was always re
markably shy nnd reserved; but there is one per
son still alive, who has heard her say, that it was
through “ the Almighty’s strength” that she was
enabled to meet the Duke at the most critical mo
ment—a moment which, if lost, never might have
been recalled in time to save her sister's life.—
Tibby Walker, from the stain cast on her good
name, retired to England, and afterwards became
united to the man that had wronged her, and with
whom, as is believed, she lived happily for the
greater part of half a century. Her sister resumed
her quiet rural employments, and after a life of un
sullied integrity, died in November or December
1791, at the age ofnearely fourscore.—My respect
able friend, Mr. Walker, found her residing as a
cottier on the farm of Clouden, when he entered
to it, upwards of forty years ogo, was exceeding
ly kind to her when she became frail, and even laid
iier head in the grave. Up to the period of her
last illness, she corresponded regularly with her
sister, and received every year from her a cheese
and “ pepper-cake,” portions of which she took a
great pleasure in presenting to her friends and
neighbors. The exact spot in which she was in
terred was lately pointed out in Irongray church
yard, a romantic cemetery on the hanks of the
Cairn; and though, as a country-woman said, there
was nothing to distinguish it “ but a stane taken
off the dyke’” t lie public will be pleased to hear
that Sir Walter Scott in lends to erect a suitable
monument to her memory. Though subscrip
tions were tendered, he politely declined all aid,
and has already, I believe, employed Mr. Burn,
architect, to design a monument which, in connex
ion with the novel, will transmit her fame to a dis
tant posterity, and in all piohability render the
spot so classical that it will be visited by thousands
on thousands in alter jxeucratMmc.. The above
narrative, Though exceeding hurried, is perfectly
accurate in point of fact; and I have only further to
add. that thestory of Hellen Walker, alias Jennie
Danes first became known to Sir Walter Scoot
through the attention of the late Mrs. Commis
sary Goldie, as will be seen when lie issues the
new edition of the “ Ifemt of .Hid Lothian.”
Waverly A’ocels Ended.—A period is nt last
announced to the Waverlv Novels. A period
which, late as it is, has come too soon, to a series
unequalled, in length, their original l«eauty, their
erudition, and truth to nature. They have placed
fictitious naralive in the first walk ol poiite litera
ture, & form, of themselves, a distinct event in the
history of the human mind. The venerable and
the amiable author has our gratitude for the manv
happy hours we have enjoyed in his company: and
we devoutly join in the hope he so feelingly ex
presses at ihe close ot his adieu.
Eontscript to Count Robert of Paris.
The gentle reader is acquainted, that these are
in ail probability, the last tale i! will be the lot of the
author to submit to the public.
lie is now on the eve of visiting foreign parts:
a ship of war is commissioned bv his Royal Mas
ter to carry the author of Waverlv to climates, in
which he tuny possibly obtain sucli a restoration
of health as may serve him to spin iiis thread to an
end in his own countrv:
Had he continued his usual literary lalxir, it
seems indeed probable, that at the term of years
he has already attained, the howl, to use the pa
thetic language of .Scripture, would have been
broken, at the fountain; and little can one who has
enjoyed on the whole an uncommon share of the
most inestimable of worldly blessings, be entitled to
complain that life advancing to its period, should
be attended with its usual proportions of shadows
and storms.—They have affected him at least in
no more painful manner than is inseparable from
the discharge of this part of tbe debt of humanity.
Of those whose relation to him in the ranks of life
might have insured him their sympathy, under in-
di.qiosition, many are now no more; and those who
may yet follow in his wake, are entitled to expect,
in bearing inevitable, evils, an example of firmness
and patience, more especially on the part of one
who has enjoyed no small good fortune during the
course ofhis pilgrimage.
The public have claims on his gratitude, for
which the author of Waverly has no adequate
means of expression; but he may be permitted to
lioj>e, that the powers of his mind, such as they are,
may not have a different date from those of his
body ; and that he may again meet his patronizing
friends, if not exactly in his old fashion of litera
ture, at least in some branch, which may not call
forth the remark, that—
Superfluous lags the veteran on the stage.
AbbotsviUe, September, 1 831.
teachers of gentle thoughts, promoters of kindly jof the Court as laid down in 1 Cr. 91, i> Cr. 172,
emotion. One cannot look closely at the structure
of a flower without loving it. They are emblems
and manifestations of God’s love to the creation,
and they are the means and ministrations of man’s
love to his fellow creatures; lor they first awaken ia
the mind a sense of the beautiful and the good
Light is beautiful and good; but its undivided beau
ty, and on the glorious intensity of its full strength,
man cannot gaze; he can comprehend it best when
prismatically separated and dispersed in the many
colored beauty of flowers; ami thus he reads the
elements of beauty—the alphabet of visible grace
fulness. The very inutility of flowers is their ex
cellence and great beauty, detached from and su
perior to all selfishness- so that they are pretty
lessons in Nature’s book of instruction, teaching
man that he hath another than animal lile.”
The poet Crabbe, who died lately in England
was a sort of connecting link, uniting a literary age
long since gone to that which lias just passed. He
came to London at the age of twenty-four, gained
thefriensdhip of Burke, at whose recommendation
he published, in 17S1, his poem of “The Library.”
This was quickly followed by “The Village,”
which gained for his genius the high and enviable
approbation of Dr. Johnson; with these early as
sociations ofhis name with those oi'Burke & John
son, Mr. Crabbe afterwards figured in the literary
wftrld with Byron and Scott. The “Borough”
was published in 1810, and “Tales” folllowed in
1815, with “Tales of the Hall” in 1819. Accord
ing to the London Athenamm, was born in 1754,
at Aldborough, in Suffolk, where his father held
some appointment in the customs. It is said that
he was originally intended for the medical profes
sion, and that he served an apprenticeship to a
provincial apothecary. In the mean time, Crabbe
bad entered himself at Cambridge, had taken or
ders, and now accompanied the Duke of Rutland,
as Chaplain, upon his appointment to the Vicere
gal government of Ireland. Through the same
patronage, he afterwards obtained some small
church preferment.—.Y. 1". Amer.
THE LION AND THE BEAR.
The New Orleans Emporium of the 23d ult. has
this article:—
We were yesterday informed that on Tuesday
last a Bear was taken to the Menagerie now exhi
biting in this city, and let down into the cage of
an African Lion, twenty-four years of age, with
the belief that it would be immediately torn to pi
ces. Many people assembled under the awning
which encompasses the exhibition to witness the
scene, but all were disappointed and struck with
astonishment, lor althought the Bear, so soon as
he had reached the bottom of the cage, placed him
self in a fighting position and once or twice flew
at the lion, with the apparent intention to com
mence the battle, the Lion did not attempt to in
jure it, but on the contrary, after some time had
elapsed placed his paw on the Bear's head as if
to express his pity lor its helpless situation, and
evinced every disposition to cultivate friendship.
Having heard and read much of the Lion’s no
bleness of dis|x>sition, and understanding that the
Bear was still in the cage, prompted by curiosity,
we visited the Menagerie this morning and actual
ly saw them together. The Manager of the Lion
tells us that since the Bear has been put into the
cage, no person has dared to approach it, and that
the Lion had not slept for three hours, but contin
ues constantly awake to guard his weaker com-
irwm danger: The Lump says the mana
ger, suffers the Bear to eat of whatever is thrown
into the cage, until he has enough, but will scarcely
touch looJ himself.
During the lime that we remained, the Lion
once or twice walked to (he end of the cage oppo
site to that at which the Bear was lying, and some
lierson motioned his hand towards the Bear, hut
so soon as the Lion saw it, fie sprang to the
Bear and kept his head resting over it for some
time: he lias so fatigued himself with watching,
that as soon as he lies down he falls asleep, but
awakes again at the first noise that is made, and
springs to the object ofhis care.
This3cems to us astounding indeed, and will no
doubt attract the notice of naturalists.—lb.
Flowers.—From a chapter <»n the Flowers, by
the author of “Rank and Talent,” inserted in the
Amulet, we extract, with much pleasure, a beauti
ful as well as an accurate view of the intentions of
Providence, in scattering over the earth those vari
ed symbols of his benevolence: “Flowers are for
the young and for the old; for the grave and tor the
gay; lor the living and for the dead; lor all hut the
guiity, and lbr them when they are penitent.—
Flowers are, in the volume of nature, what the
expression, ‘God is love,’ is in the volume of llev-
alation. They tell man of ibe paternal character
of the Deity. Servants are led, clothed and com
mauded; hut children are instructed by a sweet
gentleness; and to them is given bv the good par
ent, that which delights as well as that which sup
ports. For the servant, there is the gravity of
approbation, or the silence of satisfaction; but for
the children, there is tlie sweet smile of complacen
cy, and the joyful look of love. So, by the beauty
which the Creator has dispersed and spread abroad
through creation, and by the capacity which he
has given to man to enjoy and comprehend that
beauty, he has displayed, not merely the oompas-
sionateness ofhis mercy, but the generosity nnd
gracefulness ofhis goodness. What a dreary and
desolate place would he a world without a flower!
it would be as a face without a smile—a feast with
out a welcome. Flowers, by their sylph-like forms
and viewless fragrance, are the first instructors to
emancipate our thoughts from the grossness of
materialism; they make us think of in visible beings;
and by meaus of so beautiful and graceful a transi
tion, ourthought of the invisible are thoughts of the
good. Are not flowers the stars of earth, and are
not stars the flowers of heaven? Flowers are the
U. S. SUPREME COURT.
THE CHEROKEE CASE.
Samuel A. Worcester,) Writ of Error to the Su
va. £ perior Court of the State
The State of Georgia. ) of Georgia for the county
of Gwinnett.
OPINION OF MR. JUSTICE BALDWIN.
(concluded.)
That the District Court ought to have refused obe
dience to its command, and that either party might
have proceeded in that Court after a transcript of
its record had, in obedience to the writ, been re
moved to the Circuit Comt, in the same manner
as if the record had not been removed. Patterson
vs. United States, 2 Wh. 225, 6. Though the
record is actually removed by a writ of certiorari,
a regular common law writ, and the 14th section
of the judiciary act authorises all the Courts of the
United States to issue all writs, necessary for the
exercise of their jurisdiction, 1 Story 59,—Agrees**
blv to the principles and usages of law, its opera
tion is a nullity unless the parties acquiesce by
appearance and action in the Circuit Court with
out objection. Such being the settled rule of law
in the Federal Courts between which there can be
no conflict of hostile jurisdiction, how much more
strictly ought it to he obseved in a case like this?
How liir the act of 1792 would, by the*principles of
this decision, authorise a Circuit Court to issue a
writ of error to a State Ccurt, as was done in
Buell vs. Van Ness, 8 Wh. 3l2does not arise on
this case or those cited as precedents, and is not a
subject of enquiry now. It is enough for this case
to know the setteled rule to he, that in exercising
the revising power intrusted by the constitution
and laws of the United States, we must follow
the legal path prescribed lor us, 5 Pit 259. An
important rule laid down in a case important in its
bearing on the point now under consideration, and
to which the attention of the Plaintiff's counsel was
especially requested as the last reported case on
the subject. In a cause of this magnitude, heard
on an ex jiarte argument, if counsel do not feel
themselves as standing in this Court, not only in
the attitude of advocates of their clients, but as
“amici cari,” desirous of examining every prin
ciple which liears on the power and jurisdiction of
the Court, to render a judgment fraught with the
consequences which must attend this; it becomes
the imperious duty of a Judge who doubts either
to call for a preliminary, argument rvhich may
remove his doubts, or refer him to some sources
of information for the means of forming a correct
opinion. In ex parte Crane reported in 4 Peters
190, 200, without even a passing notice of the
as little effect, and noticed in the report very in
correctly, both cases involving principles*and
questions as important as ever arose in this Court,
none of which weie believed to have been settled.
When in this ease, without argument or notice of
this point, we were called “on to exercise onr
highest jurisdiction over the highest Court of a
State of the Union, I was forced to surrender mv
judgment on faith, or assert publicly my judicial
rights, regardless of censure when acting in con
scious rectitude; anxious to elicit by the aid of the
counsel, the light, the truth, and the law ofthe
case and sincerely desirous that the judgment of
the Court in this great case should be rendered on
ly after every point was considered, it was my duty
to persevere till a direction was given that coun
sel, in the course of their argument, should embrace
cordiDg to what seemed to be the settled course
5 Cr. 221, 9 Wh. 816, 10 Wh. 20. It would not
then have been left to a single Judge to search for
the laws, the ruk'3, the practice and precedents of
the Court for a guide* A reference to these
sources of knowledge, made under the direction of
the Court, would have made their final decision, at
least not less satisfactory. Lefl with no other
alternative but to render my judgment on faith, or
knowledge, the result ol my unassisted investiga
tion, though I stand alone in this court on most
important questions of power and jurisdiction, it
must not be understood that I rest in the pride c.
opinion merely, or dissent without the strongest
internal conviction, that my opinion is founded on
and supported by the law. The occurrence, in
the early part of the argument, called for these
remarks as an explanation, not an apology. Fish
er vs. Cherell came up on a writ of error to the
Court of Appeals of Kentuckey with this certificate
under its seal: “I, Jacob Swigert, Clerk of the
Court of Appeals for the State aforesaid, do here
by certify that the foregoing seventy-two pages
contain a transcript ofthe record and proceedings
therein mentioned.” The attestation and seal to
the transcript in the present case give it no more
authenticity as a record, than that of Swigert; if
the contents ofthe one are judicially before us, so
was the other; if all which this contains is matter
of judicial inspection, so was that: if the return in
this case make it the record of the Court below, for
the purposes of a writ of error, so did that; and it
a record, it is absolute verity.—5 Peters 211, a
transcript appended to the writ of error by the
Chief Justice of the Court to whom it was direc
ted, by his return becomes the record on which
the Court of error passes its judgment, and it can
exclude no part ofit from its consideration, if it
bears on the assignment of errors which always
ought to accompany it according to the directions
of the twenty-second section. If the transcript
certified by the clerk, under its seal, is taken by
this Court as a substitute for the schedule return
ed by the Chief Justice, it must have its full legal
effect in cur consideration, if not so taken, then it is
no record forjour judicial inspection. In Fisher vs.
Cockerell, the transcript so certified contained the
certificate oi the Cierk ofthe Circuit Court ofthe
State, that a patent to the plaintiff was read in evi
dence and a copy ofthe patent, founded on rights
derived from Virginia, was set forth. But the
Court observed the title of the plaintiff was not made
a part of the record by a bill of exception, or “in any
other manner.” Can this Court notice it? Can it
he considered as part of the record.” In cases at
common law, the course of the Court has been uni
form, “no/ to consider any paper as part oj the re
cord, which is not made so by the pleadings, or by
some opinion of the Court, referring to it. This
ruie is common to all Courts, exercising appellate
jurisdiction according to the course of the common
law.” The record then, to the L T nion C. C., does
not show that the case is protected by the compact
between Virginia and Kentucky. 5 Peters, 254.
The transcript of the record of the Court of ap
peals, contained an assignment of errors in the
record ofthe C. C. presenting the question arising
under the compact between Virginia and Kentuck-
v, most distinctly; and an elaborate opin on of the
Judges, in rendering a judgment on the effect of
the compact on the rights ofthe parties, and was
returned by the clerk ofthe Court of Appeals, un
der its seal, and his signature, in the transcript ol
the record in the case, in which the writ nf error
was directed. _V*t Gourt considered neither
the patent, the assignment of errors, or the opinion
of the court as forming part of the record, and dis
missed the suit for want of jurisdiction. My dis
sent was in these words: “ lam compelled to dis
sent from The opinion of the Court for the follow
ing reasons:—The certificate of the Clerk of the
Court of Appeals attached to the record, is in these
words—(Copy,) “And I feel bound on the pre
liminary question of jurisdiction to consider all that
is so contained to be a part of the record in this
suit so far at least as to give power to this Court to
examine whether the judgment of the Court of Ap
peals is erroneous or not. On a motion to dismiss
this cause for want of jurisdiction, ihe only ques
tion which arises is, whether it comes“prima facie,”
within the 25th Section of tlie’Judiciary Act.—
This must be decided ou an inspection ofthe whole
record, and if it does appear that it presents any
ff the cases therein provided lbr, the motion must
be refused. When the record comes to be judicial
ly examined, this Court may be of the opinion that
though the question did not arise which brings their
powerinto action, yet it did not come up in a shape,
or is not so stated in the record of this Court ofAp-
peals, that this Court can affirm or reverse it for
the specific cause assigned. If the question ap
pears in any part of the record, it is enough in my
opinion for jurisdiction. The manner in which it
apjx'ars, seems to me only to be examined after
jurisdiction is entertained. ”It appears by the re
cord that the Plaintiff’read in evidence on the trial
of the case, a patent from Kentucky, issued on
warrants entered in 1784, and the patent is set
forth verbatim. As the State of Kentucky had no
existence in 1785—85, when these warrants were
entered and surveyed, we cannot he judicially ig
norant that these acts, as well as the issuing the
warrants, ami the title founded oil them, were un
der the laws of Virginia. As the compact between
the two States is a part ofthe Constitution of Ken
tucky, we cannot be ignorant of its existence, and
that it relates to lands held in Kentucky under
the laws of Virginia:”—5 Peters, 259, 60. The
Court stated the seventh article the violation of
which is alleged by the Plaintiff' in error; to bring
bis case within its protection, lie must show that
the title he asserts is derived from the laws of Vir
ginia prior to the separation of Ihe two States. If
the title be not so derived, the compact does not
extend to it, and the Plaintiff alleges no other error,
25, 3. In the case at bar, the fact tliat the title of
the Plaintiffin error was derived from the laws of
Virginia, a lact without which, the case cannot
be brought within the compact, docs not appear in
the record, for we cannot consider a mere assign
ment of errors in an appellate court as a part of the
record unless it be made so by a legislative act.—
The question whether the acts of Kentucky in fa
vor of occupying claimants, were or were not in
contravention ofthe compact with Virginia, does
not appear to have arisen and consequently the
case is not brought within the 25th section of ihe
judicial act. The writ of error is dismissed, the
court having no jurisdiction,” 259,—Such was the
olernn judgment of this court at last term. It set
tled no silent practice as to receiving or acting on
transcripts of the records and proceedings ofthe
highest Courts of a State under the 25th Section;
but it was a most delilx rate decision on the faith
and credit it gave to transcripts, or a paper, as
part ofthe record which is not made so by a bill of
exceptions, by the pleadings, or by some opinions
of the Court referring to it. So far as tiro attesta
tion ol the Clerk and seal of the Court of appeals
could make the whole paper a record for judicial
inspection, vviih a judicial eve, it compliedjwith the
11th rule. Ifitwas an authenticated transcript,
according to tlie 22d section, the Court were bound
to take it as the record of the suit, as absolute ver
ity, against which uo averment could he permitted
to a Court or Jury: and, according to the 25th sec
tion, to affirm or reverse the judgment of the Court
of Appeals, as to them may seem right, according
to the laws and customs of ihe United States. If
the paper find been returned by the Judges of the
court of appeals, attached under their seals to the
writ of error, this Court could not have listened to
an allegation of counsel, that the patent the assign
ment of errors, and the opinion of the Court, was
no part of their record. No Court of Error, pro
ceeding according to the course of law, ever held
that they would not judicially notice an assignment
of errors in an inferior court, on a question ofju
risdiction over its record. These parts could have
been considered as no part of a record on a motion
the question of whether there was a record judicial- -to dismiss only, by viewing a paper attested only by
ly before us. It was my desire that this question the seal of the court, and tlie name ofthe clerk as a
should have been considered first and distinctly ao- ‘ - ' v -*
creature of the lltli rule, and not as an authentica
ted transcript, according to theact of Congress, ora
record at common taw. If this court could not
amine its contents judicially, and if it was not lawful
warranl and authority, on and by which to act at
all, to affirm or reverse, nay even to inspect, the
Judgment of a State court tor 1350 dollars, and the
suit was dismissed on motion, how can they estab
lish Indian sovereignty in Georgia and annul her
laws by auy power which this pai er confers, and
what other course is left to a judge who dissents
in both cases, than to follow safer, and in his opin
ion, more consistent guides? These cases have
made a strong impression on my mind, which my
most deliberate reflection have neither removed
nor weakened —and they have confirmed and
strengthened my opinion of the danger and un
certainty attending tlie reception of transcripts au
thenticated only by the clerk and seal ol inferior
courts. I must look elsewhere lbr the law which
I am bound to obey, and acton the dictates of my
judgment, tho’ others may think it has become be
wildered bv the illusions of summer dreams, or the
conceits of fancy. In referring to the case ol Mar
tin and Hunter* it appears that the judgment ol the
Court of Appeals was reversed and the judgment
of the District Court of Winchester was affirmed
by this Court.—7 Cr. 628. And it appears by the
record that “it is further ordered that the said
cause be remanded to the said Court oi Appeals,
with direction to enter judgment for the appellant
Philip Martin. A mandate accordingly issued
commanding the Court of Appeals to do it. 1 his
was not in the nature ol a writ ot error; ii partook
of none of its qualities; it ordered an act to be done
by the Court of Appeals, by an entry on their own
record; had it been obeyed, the cause teas no longer
before this Court, no return of any record or pro
ceedings teas requi ed as the foundation of any fur
ther judicial action. The writ ot error which
brought tlie case a second time before this Court,
was not founded on the judgment of the Court oj
Appeals, reversing that ofthe District Court; it was
founded on their refusal to obey the mandate of this
Court directed to them in 1813 and so declared
and considered in the opinion of this Court.—I,
Wh. 323 to 3C2. No proceedings or record ol the
Court of Appeals was returned by the Clerk save
this refusal. Nothing more was before this Court,
or could be the subject matter of its judicial :n-
spectionor consideration. Its whole action com
menced on a writ of error issued by no Court or
under the seal of any, and indeed by a reversal of
the judgment ofthe Court of Appeals of Virginia,
rendered on the mandate, (their refusal to enter
judgment,) and a second affirmance ot the judg
ment ofthe District Court held at V\ inchester.
From its beginning to its termination, it was
without any analogy to the proceedings on a writ
of error, or any other judicial action, accor
ding to the course of the common law. Its whole
history presents no precedent, of a superior Court
correcting the disobedience of an inferior one to its
mandate ny a writ of error; of its considering the
refusal to obey the denial of jurisdiction to a Court of
the last resort, and the declaration of an Inferior
Court, that the solemn judgment of the highest Ju
diciai tribunal of a nation, “was a proceeding, coram
non judice, in relation to that Court,” was a final
judgment, to be reversed for error. And no Court
of high and supervising power, ever contented
themselves with a reversal of the refusal of an infe
rior one to obey its mandate, by doing the act com
manded. But there are countless precedents of a
different remedy for the party injured, and a high
cr and more efficient vindication of the power of the
Court and the majesty of the lairs. Hunter vs.
Martin then, being a case sui generis, can be no
precedent for any other civil case, certainly not for
a criminal one. The plaintiff’, or his counsel, would
hardly he content that the action and jurisdiction
ofthe Court, in this case, should be limited to the
extent within which it was exercised in Humor and
Martin. The solemn judgment and final process
of this Court would be no warn of dawning light m,
the lonely path, or the bursting of morning in the
cell ofthe martyr; it would not open the gates of
the Penitentiary arid set the prisoner free; he
would still remain a captive, abide in darkness,
in solitary night, or laboring with felons, without
something more than a reversal of the judgment
now reversed or a reversal ofthe refusal ofthe Su
perior Court of Georgia to obey the mandate now
issued. But, waiving all these considerations, and
viewing Hunter and Martin as a case at common
law, it amounts to nothing as a precedent. The
objections made by Mr. Tucker to the Court en
tertaining jurisdiction were: I. “At common law,
the writ of error must be returned by the Cour: it
self: it is imperfect in this case, and, therefore we
hrre a right to a certiorari, or a writ oj diminution.
But there is no error, the Court of Appeals have
done nothing. and therefore there is no error in
their proceedings. It is a mere omission to do
what they ought to have done, and no judgment can
be rendered here to reverse what they have not
done.” 1 Wh. 315, 16. l ean perceive no bearing
of these objections on the question of whether the
Court ought to return their record and proceedings.
Their refusal to proceed and render a judgment in
favor of Martin, in obedience to the mandate, was
returned by their Clerk to the very teeth of this
Court. I will not say that this was according “to
the laws and customs of England or the United
States,” but must declare it to be no precedent to
be followed in any ease. So seems to me to he the
decision of this Court, considered by the laws and
customs of either. The refusal was no final judg
ment, or process, or proceeding, in notice of, or
enforcing one; and the reasons assigned by the
learned counsel would seem to have suggested
very conclusive reasons for proceeding no further
on the writ of error. The opinion delivered at this
term, in Bayless, Zachary, and Turner, is conclu
sive on this point. But as a proceeding of a pecu
liar character, founded on a constrnction of the 25th
and 22d sections to meet the exigency of a case till
then unknown to the luw, its correctness is not ques
tioned, though it can have no application to the
present case. The objections to the want ofa re
turn by the Court were wholly foreign to that now
resting on my mind, and the manner in which
they were disposed of by tlie learned Judge, in page
361, shews that the question presented was not de
cided, and the ones decided were not presented, by
the objection, which was, that the Court had not re
turned the writ of error, and the dtfendant in error
had a right to a certiorari or writ of diminution, to
which the answer ofthe Court was “That the re
cord, in this case is duly certified by the Cierk of
the Court of Appeals and returned with the writ of
error;” there was no record to return except the
mandate of this Court, and the refusal to obey it.
It is thus manifest that no fixed or settled rule can
be extracted from the precedents, practice, o-adju
dications of this Court, on this point, even in civil
cases; and it never appears to have come under
its judicial consideration, directly or collaterally, in
a criminal one; they have been decided, “sub si-
lentio”—nnd this is the first case of the reversal of
tlie judgment ofa State Court in a criminal case,
without an appearance. The point has never been
made. The question, therefore, is an open one ;
and there is no color of authority for saying, that
it has, till this time, been closed, bv any adjudica
tion of this or any other Court. When a question
arises, for the first time in this Court, in a case ol
infinite importance, in which only one party ap
pears, and that question presenting a serious diffi
culty to further proceeding, without removing it,
and is, at common law, an admitted bar to the exer
cise of appellate jurisdiction ; unless the counsel for
the plaintiff shall have made it appear, that the late
which regulates this Court in proceedings on writs
of error, is different from all others, the direct
and narrow path is plain, and I must tread it. In
Cohens vs. Virginia that path is plain. It has been
travelled for ages by all Judges, and cannot end in
error. It is dangerous to try a new one; for one
knows not where it will end, or how 60on the
judgment may become bewildered in following all
its ramifications. Tbe trodden path is tlie safe one.
In adjudicating on State records under the 25th
section, this Court has always met with difficulties
in civil cases, in deciding what is the record of the
inferior Court, what part of the transcript certi
fied by the Clerk of the inferior Court's a record,
and what not; what facts, papers, options ofthe
Judges, are cognizable belore U3, an how they
must appear or become a part of wltt we may
inspect with judicial eyes. Vide Fisheft vs. Cock
erell, and the cases cited. But all doulw and diffi
culties will be ended by enforcing and Allowing the
precedent in Hunter vs. Martin, 7 Cit and Co
hens vs. Virginia in 6 Wh. The retrn of tlie
Judge will authenticate the schedule aiSexcd as a
transcript, within all the rules of the C«stitution.
the acts of Congress, and the custom r| England
and the United States. The whole transcript be
comes the record ofa Court for our retfton, and
our judgment will be rendered on all tli matter
contained in it bearing on the errors aAgned.—
Taken as importing verity, it will be a Ale guide
to action in the whole extent of jurisdijnn; and
the course of the Court, being from the IsMing of
the writ to a final mandate. the course o/lt/te law,
they will become identified, commandin4commen
respect, or sharing a common fate. But Itremhlc
for the consequences ol a course of pr erdinrr,
which, in my humble opinion, leaves a w le space
between the practice ol the Court and th law uf
tlie land, and so considering that now j irer.cd,!
do not consider myselfat liberty to examii 1 the re
maining questions in the case. So far is it re
spects the national existence of the India i tribes,
according to the Constitution, the power of Con
gress over the territory of the United Sta ef», that
of Georgia within her limits by her own r rht and
the compact of 1802, it has been ex pres ed on a
firmer occasion, and is yet retained. In i Hewing
the writs of error in tliese cases, it was in the full
expectation that the validity of the laws of C eorgia,
would have been subjected to the test of the 2d
section o: the 4th Article of the Const tution;
‘The citizens of each State shall be entitle ii to all
privileges and immunities of citizens in the several
States.” Had it been then believed that! lis pro*
vision of the supreme law, would not have been
deemed worthy of notice, either in the argument
ofCounsel or in the opinion of tbe Court, (should
have witheld my allowance, leaving it to sope oth
er Judge to have made it. For the sole imrjwse
of trying tlie question of Indian sovereignty, I re
fused to allow a writ in the name of all the defend
ants, because they did not aver in their plea in the
Court below, that they were citizens of the United
States, or any of the states. The plaintiffs made
this averment, and I felt bound to permit them to
assert their constitutional rights in this Court;
they were at liberty to rest their case on any other
ground; but it has been wholly unexpected to find
that wholy omitted as unworthy of notice in the
decision of this all important cause. The judg
ment is pronounced, the mandate has gone forth,
in words of power which hid a State obey; tlie act is
irrevocable & the deed is done. Come good, come
ill, I desire neither praise or censure; my judgment
directed me’to the plain & narrow path preseined by
law; my duty has guided me in it; 1 have come
to a point where there was a harrier which both
forbid me to pass; I have obeyed the impulse; and
having taken neither scot or lot of this matter,
wash my hands of it now and hereafter. If the
fiat of this Court shall be received in Georgia in the
beams of peace and carry on its wings the healing
ofthe nation, I shall not rejoice the less at theblefs-
ngs. But if it shall be the mountain storm which
shakes foundations, my voice has not added to the
, fury of the blast. Whether it shall pass my head
unhurt, or lay it low ; wheiher as a sell supported
oak, riven by the tempest, or rooted tlie tinner the
ruder it blows, I am at peace within, with a mind
convinced and judgment fixed, and an approving
conscience. r Ine consequences are not mine.—
They will he met without self reproach.
In again standing alone on the question of Indian
sovereignty, my attitude has not been assumed in
the consiousness ol mv own strength, or t|ie confi
dence resulting from my ow n reason and reli ctions:
not from a wish to adopt, or act on any naiv opin
ions, rules, principles or maxims ofthe law, but in
obedience to old and settled ones. If I amjwrong,
it is because I cannot understand them; if right, it
is not by following any light of mv own invention,
hut by tracing tlie ancient path illuminated by
lamps which never flicker and are not yet Extin
guished. To me it is the path in which it is,has-
been, and ever will be, my delight to proceed in
my judicial labors, impelled by an ambition not
easily satisfied or attained to the fulness of desire;
not that my opinions should be respected by the
authority ofmy name, but only so far a» they may
be found to contain the spirit iff the Constitution
and the statutes, and the results of the judgments,
of those who have proceeded me here and else
where, as the law of the land according to their
plain language, legal meaning and just interpreta
tion. As one of the expounders and administra
tors ofthe supreme law, I am not without the im
pulse ofhigh ambition; hut its highest aspirations
arc, as a Judge, to be considered now, nnd remem
bered hereafter, only as one “Qui consuita patiuin
qui leges et juraque servant.”
POLITICAL.
COMMUNICATED FOR THE TELEGRAPH.
GEORGIA NOT A NULLIFIER.
It is a fact well authenticated, that the South
Carolina Nullifiers are, at the present moment, im
undating our State with tracts inculcating their
heretical opinions in vapid language and splendid
sophistry. In llie destitution of these publications,
modesty, politeness, and comon honesty are set
aside, and impudence assumes the direction. To
individuals, distinguished by their fervent attach
ment to the Union ard regular government, and
noted for their deep abhorrence of South Carolina
anarchy, these furious ebuliitions of sedition arc
forwarded by mail, and a tax in the form of pos
tage is thus levied on our citizens for productions
which they view with contempt and which nothing
except vulgar obtrtisiveness and supercilious ego
tism regardless of justice would force upon them.
It is a dirty stratagem to promote an odious and a
quaking cause—a stratagem to which no clear
headed intelligent mat, with a spark of generosity,
would descend.
To the discrimination of our citizens, it is a gross
insult. It presupposes them incapable of distin
guishing between nullifying a general law of Con
gress nnd declining obedience to an extra judicial
act of the Supreme Court—a difference too obvious
for the windy essays of the nullifying press .either
in Georgia or South Carolina to disguise or con
ceal.
The Nullifiers claim for South Carolina the
right of revoking a law of Congress in full opera
tion in every State of the Union, and regulating the
commerce not only between the several States, but
also between ail the States and every nation—a
law which, the Nullifiers say, is prejudicial to tho
planting interest of every State, consequently inju
rious to at least nineteen twentieths of the citizens
ofthe Union; and which therefore must be revoked
by Congress or by Conventions of the State, so
soon as the people are made acquainted with their
real interests. Here then is the remedial power
in the hands of the people, ready to be exercised so
soon as the farmer is enlightened—the only pre
servative principle in such cases—the certain,
though perhaps slow, restorative to constitutional
and national vigor, legally and properly lodged in
the hands of the mass of the nation.—But the Nul
lifiers deny the right and capacity of the great body
iff the people to judge of matters directly involving
their immediate interests; and insist that South
Carolina or any single State may decide for the
whole Union, and annul any law enacted by Con
gress to carry ou the operations of government in
peace or war.
Georgia sets up no such pretentions. She claims
no power to revoke laws regulating foreign or do
mestic commerce, assesing revenue, or involving
the interests of any other State—she affects no au
thority to alter a solitary act passed by Congress.
All that site asks, is the exercise of a power of which
she was possessed when she entered tlie Union,
and of which she has never divested herself—sim
ply, civil and criminal jurisdiction within her char-