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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-