HAZARD'S REGISTER OF PENNSYLVANIA. DEVOTED TO THE PRESERVATION OF EVERY KIND OF USEFUL INFORMATION RESPECTING THE STATE. EDITED BY SAMUEL HAZARD. VOL. XVI.--NO. 14. PHILADELPHIA, OCTOBER 3, 1835. For the Register. Audita querela, Error coram nobis. The following opinion of "The District Court for the City and County of Philadelphia," was delivered on the 14th September, 1835, Br PETTIT, President. VS. Arnold Halbach and George Halbach, trading under the firm of Halback Brothers. This was an action on the case brought to December Teri, 1829. The writ was returned "Summoned." The cause was regularly put at issue on the plea of non Assumpserunt, and discharge under the Insolvent laws of this state. While at issue, it was arbitrated onder the act of 1810, and on the 29th December, 1830, judgment was entered on the award of arbitrators, for $3,038 72. On the 8th January, 1834, the judgment was assigned to P. Bousquet, and marked to his use. No further step was taken by either party, until the 10th January, 1835, when the defendant's counsel up on affidavit filed, obtained a rule on the plaintiff to show cause why the judgment should not be set aside. The following suggestion was filed of record, viz: "Rule to set aside the judgment on the ground that Arnold Halbach, one of the above named defendants, was at the time of the commencement of the above suit, and has ever since continued to be, and now is, Consul for the Burgomaster, and Council of the free city of Frankfort, on the Maine, for Philadelphia in the United States, duly recognized and declared to be such by the President of the United States;-and that on the 9th July, 1830, he was duly recognized and declared by the President of the United States, to be Consul of his Majesty, the King of Prussia, for the Port of Philadelphia, and still is such Consul;-that being such, he ought not according to the Constitution and laws of the United States, to have been impleaded in this District Court for the City and County of Philadelphia, in the State of Pennsylvania, the same being a State Court, his case. but in the United States Court, where the Constitution and laws of the U. S. have placed the jurisdiction in And that said District Court for the City and County of Philadelphia, had not, and has not jurisdiction, and ought not to have cognizance of the above case, and this he is ready to verify. Wherefore he prays the Court that the Judgment in the above case, may for the causes above assigned, be annulled, made void, and set aside." The plaintiff's counsel, in opposition to the rule, made the following points. 1. That this Judgment cannot be set aside on mere motion. 2. That the objection to the jurisdiction should have been made before Judgment. 3. That the joinder of Arnold Halbach with George Halbach, ousts the jurisdiction of the U. S, Courts. These propositions do not deny or in any manner VOL. XVI. 27 No. 404. contravene the general doctrine, which is unquestionably true, that a State Court cannot entertain jurisdiction of civil suits against foreign Consuls. The 2d section of the 3d Article of the Constitution of the United States, declares that "the judicial power of the United States shall extend to all cases affecting Ambassadors, other public ministers and Consuls," and the 9th Section of the Judiciary Act of 1789, gives to the District Courts of the United States, "jurisdiction, exclusively of the Courts of the several States, of all suits against Consuls or Vice Consuls," except for certain offences mentioned in the act. The exemption thus asserted is not personal. It is the immunity of the country or government which the Consul represents. When the Constitution of the U. States comprehends Ambassadors and Consuls in the same provision, it clearly recognizes the application to the case of Consuls, of that familiar principle of the law of nations by which the privilege of an Ambassador is deemed to be that of his country. Were express authority wanted for this view of the subject, it is to be found in the case of Davis vs. Packard. 7 Peters' Rep. 284. If the privilege of a Foreign Consul could he held to be personal, one of the positions of the plaintiff's counshell vs. Oppenheimer, 4 Wash. C. C. Rep. 484, in sel might derive some support from the case of Bobywhich it was ruled, that after trial on the merits and after a judgment, an objection to the jurisdiction, wh ch might have been previously made, could not be insisted upon to avoid the judgment.—The privilege as a na. sul's omitting to plead it, or by his withholding the one, however, could not be waived by a Consuggestion of it till after judgment. son the principle recognized in Beardsley vs. Torrey, 4 Wash. C. C. Rep. 228, that where there are several defendants-each must be competent to be sued in the U. S. Courts, does not apply. tional For the same rea There is nothing, therefore, in either the 2d or 3d points made in opposition to this application. But it is contended that should the Court admit in the most unqualified manner, the exemption of a Foreign Consul from liability to their jurisdiction, and disregard all implied or constructive waivers, yet that they will not set aside this Judgment on mere motion. After what has been said, it follows, that the Court will in some form of proceeding, on proper proof of the fact of Consulship, grant relief; and whether this can be done on the application now made, has caused the only real difficulty in the case. It has been urged that nothing can now be enquired into upon motion, which could not formerly have been examined on audita querela; and that relief would have been granted on audita querela, only in a case where injustice was apparent, and relief could not have been obtained on plea. It was said by Mr. Justice Duncan in delivering the opinion of the Court in Share vs. Becker, 8 Sergeant and Rawle, 242, that wherever the writ of audita querela would lie, the Court would grant relief on motion: And that the course of granting summary relief, has driven out of use the ancient writ. The practice of this Court has been ix conformity with this remark. It is clear then, that, if an audita querela relief could have been av arded, it can be g anted upon the applicat on now nade. The general rule as laid down in 1 Comyn's Digest, 787-Aud. Querela, C.—and recognized by the American cases there cited, is, that where the party had time to take advantage of the matter, which discharges him, and neglects it, he cannot afterwards be helped by an audita querela. Were this test to be applied in the ease before us, audita querela would not lie: and should the power of the Court to interfere on motion, be restricted to the same limits, the present application would also of course be denied. Is there then any authority to show that the Courts have gone further on mere motion than on audita que rela? None has been produced. Is there any authority upon which the Court can direct the plaintiff to plead to the suggestion now for the first time filed, so that the matter alleged can be examined into? We know of none. In the case of Hill vs. West, et el, 4 Yeates, 385, in which judgment had been entered in 1804, and a suggestion was afterwards filed, that two of the three defendants had died several years before the date of the judgment, the Supreme Court of Pennsylvania expressly refused to grant a rule on the plaintiff to plead to the suggestion: And while they declined directing what course should be taken, no inference can be drawn from the intimation thrown out by the Court, except that a writ of error coram nobis should have been resorted to as the only other mode of obtaining relief. The writ of error coram nobis, was designed to enable a Court which had committed no error in matter of law, to enquire whether they have in consequence of an error in fact given a judgment which but for that error, would not have been pronounced, and if the error in fact is admitted, or found to exist by the verdict of a jury upon an issue joined thereon, then to revoke said Judgment. The Court of Common pleas of this County, in the year 1808, then exercising the jurisdiction which now belongs to this Court, decided, and we think correctly, that they had power to issue such a writ, and the death of a defendant before judgment being under such a proceeding made to appear, reversed one of their own judgments. Day vs. Hamburg. 1 Browne's Rep. 82. That the very matter of fact suggested here is proper to be enquired into upon such a writ, has been determined in the case of Davis, plaintiff in error, vs Packard, 8 Peters' Rep. 312. Judgment had been rendered in the Supreme Court of New York against Davis.He prosecuted a writ of error to the Court for the correction of errors of the state of New York, and assigned for error what did not appear on the record, that he was when the suit was instituted, and had ever since continued to be, Consul General of his Majesty the King of Saxony, in the United States, and ought according to the Constitution and Laws of the U. States, to have been impleaded in the Supreme Court of the United States, or in some District Court of the United States, and that the said Supreme Court of the State had not jurisdiction, and ought not to have taken to itself the cognizance of the said cause. The history of the case is somewhat remarkable, but it is sufficient for our present purpose to state, that after the record had been twice carried up to the Supreme Court of the United States, it was found that the only mode of giving the defendant relief, was to send him back to the Supreme Court of New York, that he might by suing out and prosecuting a writ of error coram vobis, establish the fact of his Consulship, and obtain in that Court a reversal of their own judgment. The remedy just pointed out being in the opinion of the Court, the true one, the defendant's counsel takes nothing by his present motion. Rule discharged. Mr. Jones, for plaintiff. Mr. Purdon, for defendants. UNIVERSITY OF PENNSYLVANIA. CHAPTER VII. Establishment of the University. The enmity which had thus triumphed over the au thorities of the college, was not extended to the objects for which it had been established. On the contrary, having transferred the rights and property vested in the former trustees into more friendly hands, the legis lature took the institution into favour, endowed it with lands out of the confiscated estates, to the annual value of fifteen hundred pounds, and by the right of adop. tion, conferred upon it the new and more lofty title of University of Pennsylvania. The board appointed by the act of assembly, consisted of three distinct sets of individuals. The first was composed of certain members of the government who possessed a seat as the board in virtue of their several offices; the second, of the "senior ministers in standing" of the six principal sects in Philadelphia; and the third, of individuals selected for their attachment to the revolution, which, in most of them, was evinced by the possession of high public stations in the commonwealth. By these appointments, it will be perceived that the legislature fully provided for the political fidelity of the University, and its perfect impartiality towards all religious denominations; and these ends were still more firmly secured by Of the first division-those, namely, who held their places by virtue of their offices under the common. wealth, were, ard. Joseph Reed. 1. The senior minister of the Episcopal churchesRev. Wm. White. 2. The senior minister of the Presbyterian churches Rev. John Ewing. 3. The senior minister of the Lutheran churchesRev. John Christopher Kunze. 4. The senior minister of the German Calvinist churches-Rev. Casparus Weiberg. 5. The senior minister of the Baptist churches 6. The senior minister of the Roman churches-Rev. Ferdinand Farmer. Dr. Franklin, then minister at Paris; William Shippen, The gentlemen composing, the third division were Frederick Muhlenberg, and James Searle, delegates from Pennsylvania in the Congress of the United States; Whether the proper exbibition of the proof of Fo- the supreme court; Timothy Matlack, secretary of the William Augustus Atlee, and John Evans, judges of reign Consulship as to one defendant will avail the supreme executive council; David Rittenhouse, treaother, is a question upon which no opinion is intimat-surer of the state; Jonathan Bayard Smith; Samuel ed. The Court will consider that point, should it be Morris; George Bryan; Dr. Thomas Bond; and Dr. presented. James Hutchinson. 1835.] UNIVERSITY OF PENNSYLVANIA. the reservation of the right, within six months after the choice of any new trus'ee, to disapprove and annul the election. Whether the real interest of the institution was consulted by placing it in the hands of men, whose public engagements might be supposed sufficient to occupy their whole attention, was a question which could not be readily answered, and was perhaps considered of secondary importance. 211 could it boast of a prosperity equal to that which the college had at one time enjoyed. This deficiency of support was undoubtedly in part attributable to the political condition of the country, and to the competition of new seminaries; but other causes quite as influential were to be found in circumstances especially belonging to the university itself. The trustees, chosen principally in consequence of their public stations, not from any peculiar fitness for the office, or attachment to its duties, could not be expected to manifest that minute attention and vigilant care which had characterized their predecessors, whose long connection with the college had almost identified its interests with their own. The consequences of this want of vigilance in the board were evident, as well in the uncertain and fluctuating measures which were adopted, as in the condition of the financial concerns, which even the liberal grant of the legislature did not preserve from embarra-sment. With the teachers, the unsettled state of their accounts was a frequent source of complaint; and the numerous changes which took place among them, owing probalated very materially to injure the reputation of the school. Besides the want of proper energy in the ma nagement of the university, another impediment to its prosperity existed in the unfriendly feelings with which it was regarded by many respectable citizens. Attached to the old school and its officers, and considering the new as having been founded in usurpation, they were disposed both f om inclination and principle to prefer some distant seminary for the education of their children; thus not only withdrawing their immediate support from the university, but arraying against it the influence of their example with their fellow citizens, and the force of new attachments among those who were hereafter to become active members of society. To this period we may perhaps trace the origin of those partialities which have directed away from our highest literary institution, so much of the public patronage, and at this moment are operating to the disadvantage and dishonor of the city. The new trustees met for the first time in December 1779, and having taken the oath or affirmation at that time prescribed by law, organized themselves into a board, and appointed his excellency, Joseph Reed, their president. However dissatisfied with the late decision, the former authorities of the college did not venture to resist the will of the government, and quietly resigned their property to their appointed successors. Steps were immediately taken to arrange the affairs of the school, and to select suitable individuals to fill the vacant offices. The Rev. Dr. John Ewing, a trustee by right of his station in the Presbyterian church, was chosen provost. David Rittenhouse, the distinguished astronomer, also a trustee, was made a professor, with the title of vice-bly to this as much as to any other cause, were calcu provost. The professorship of the languages was conferred upon the Rev. Robert Davidson, and that of math ematics upon James Cannon, who had been previously employed in the college. James Davidson, who had succeeded Mr. Beveridge as teacher of the Latin and Greek languages, and had been connected with the late institution for more than ten years, was appointed rector of the academy, with an authority independent of the collegiate faculty. A German school was added to the other branches of the seminary; and the Rev. Mr. Kunze gave up his office as one of the trustees, in order to accept the direction of this department. In the course, however, of a very few years, many changes were made. Mr. Rittenhouse, resigning the vice-proVostship, was succeeded by the Rev. Samuel Magaw; James Davidson was made professor of the languages in the place of the Rev. Robert Davidson, who left the institution; and Robert Patterson, who had before been employed in a subordinate station, was appointed, as the successor of Mr. Cannon, to the chair of inathematics. Much difficulty was experienced in organizing a medical faculty. For more than three years there was a constant succession of appointments and resignations; and it was not till the autumn of 1783 that the affair was ultimately settled by the reinstatement of the former professors in the respective stations which they had held in the college. Among the inciden's in the history of the University, it would be improper to pass over, without notice, an evidence of the kindness with which this country and its institutions were regarded by the government of France. In July, 1784, a letter was received by the board of trustees from the Marquis de Chattaleau, requesting their acceptance of a collection of valuable books as a present from his most Christian Majesty, made at the instance of the Count de Vergennes and himself. It is unnecessary to say that this mark of royal favour was received with the respect, and answered with a profession of their grateful sense of the honor conferred upon them. Even republicans are wont to attach a fictitious value to the favours of monarchs; and, in the present case, the munificence of the gift is still further enhanced by the associations which our memory forms of its royal author with the independence of our country and his own unmerited misfortunes. The success of the university was by no means ade. quate to the expectations, which the patronage of the legislature and its own advantages of situation were calculated to excite. It is true that the inferior schools were generally well attended; but the college classes were small, and the graduates few; and at no period The same Samuel Magaw, I suspect, who was mentioned in the list of the first graduates of the college. CHAPTER VIII. Re-establishment of the College.-Separate existence of the two Schools-Union of the College and University. In the mean time the late authorities of the college were not quiescent under their wrongs. Dr. Smith, especially, was indefatigable in seeking redress for the institution and himself. In repeated memorials, drawn up with no little ability, he represented the injustice and unconstitutionality of the legislative proceedings in their case, and complained that, in his old age, dismissal from an office which he himself had rendered valuable, should have been the only reward of his long and important services. Petitions, moreover, were presented to successive legislatures, by the displaced trustees; and the support of a numerous party was not wanting to enforce their claims of justice. The feelings of the venerable Franklin, who was now returned from Eu. rope, were known to be in their favour; for, though by the law which established the university, he was declared one of the trustees, and afterwards, as president of the executive council, had an additional right to the station, he had always declined qualifying himself for a seat at the board, by taking the requisite oaths. Though the public ear may for a time be deafened by the rage of party, it cannot always be closed to the voice of justice; and the current of opinion at length began to turn in favour of the old establishment. One effort, indeed, to restore the college charter by legislative enactment, proved abortive; but a bill subsequently introduced was more successful, and in the year 1789, a law was passed by a great majority, which reinstated the trustees and faculty in all their former estates and privileges.In the preamble of this law, the proceedings of the le ment. of the arts, Dr. Smith and James Davidson were the only survivors. The former, as a matter of course, took the place of provost; and the latter, who, as was previously mentioned, had been employed in the universi. ty, accepted the invitation of the trustees to resume his office of professor of languages in the college. The faculty was completed by the appointment of the Rev. Dr. John Andrews and the Rev. William Rogers; the former to assist the provost in instructing the philo of English and oratory, to superintend the English and mathematical schools. But the same sense of justice which led on to the reestablishment of the college, forbade any further inter-sophical classes, the latter, with the title of professor ference in the affairs of the university than was necessary for the accomplishment of this purpose. The trustees of the latter institution, therefore, retained their corporate capacity; and, as the grant formerly made by the legislature out of the confiscated estates still remain ed to them, they were not left absolutely destitute of support. New buildings were provided for the accommodation of the schools; the faculties both in arts and in medicine continued their courses of instruction; and a yearly commencement was held as before, at which the various ordinary and bonorary degrees were conferred. But the operations, which previously to this change, were not marked with vigour, now became still more languid; and after a feeble existence had been prolonged for the space of rather more than two years, it was found necessary, in order to avert total ruin, to propose a union with the rival seminary. The trustees of the college had not been negligent in availing themselves of the act which had been passed in their favour. On the 9th of March, 1789, only three days after the final passage of the law, they met at the house of Dr. Franklin, who was the oldest member of the board, and the only survivor of the original founders of the institution. The infirmities of the venerable patriot confined him chiefly if not altogether within doors, and at his request the meetings continued to be held at his' dwelling till the middle of summer, when the increasing severity of his disorder rendered him totally unable to attend to public duties. Of the twentyfour trustees who constituted the board at the period of its dissolution, about ten years before this time, only fourteen remained; the rest having either died in the in terval, or deserted the country during the revolution. Their first measures were to obtain possession of the college buildings, to organize the different departments of the seminary according to the former plan, to fill up vacancies in the various professorships, and to supply the deficiency in their own number by the election of new members. Of the professors in the department Of the medical professors, Dr. Morgan was absent from indisposition, and died before the arrangements were completed; and Dr. Kulin remained connected with the university: so that Dr. William Shippen, professor of anatomy and surgery; and Dr. Rush, who succeeded Morgan in the chair of the practice, were at this time the only members of the faculty. The origi nal number was completed by the appointment of Dr. Wistar to the chair of chemistry and the institutes of medicine, and Dr. Samuel Powell Griffitts to that of materia medica and pharmacy. An additional professorship was created-that of botany and natural history; and Dr. Barton was chosen as its occupant. This may be regarded as one of the most interesting eras in the history of the medical school. It was now that Dr. Rush took that station which his genius and eloquence afterwards rendered so illustrious; it was now that Barton found a field for the display of acquirements unrivalled among his cotemporary countrymen; it was now, moreover, that Wistar entered within those walls, which the fame of his talents as a teacher crowded with pupils, and about which his warm benevolence of heart, and delightful urbanity of manner combined to throw a charm, which amidst all subsequent changes, has retained a strong influence over the affections of those who had the good fortune to listen to his instructions. Soon after the revival of the school, a department of law was added to those of the arts and of medicine.James Wilson, a member of the board, was chosen professor, and delivered one or more courses of lectures; but with what success, I have been unable to learn.of the estimation in which his talents were held by the trustees, independenly of the evidence afforded by his appointment, we may form some idea from the amount within which it was thought necessary to limit the fee for admission to his lectures. At the request of Mr. Wilson that the board should ascertain the compensation he should be allowed to demand from each pupil, it was resolved that the sum should not exceed ten guineas. At present, the first legal talent in the country would command but a slender attendance upon a course of lectures, were a fee of this magnitude required. In little more than a month from the first meeting of the trustees, the various schools were again opened upon their former plan. But most of the obstacles which were opposed to the success of the university, were no less in the way of the college; and it soon became evident that the separate existence of the two seminaries was incompatible with the prosperity of either. Their funds, managed with the utmost attention to economy, were utterly insufficient for the maintenance of two distinct sets of teachers and professors; and legislative assistance could not be demanded with propriety, as neither school could urge an exclusive claim to public bounty, and to endow both, would be to bestow treasure for the attaintment of an inadequate object: for it was evident that the demands of the population would be abundantly satisfied by a single seminary of the highest order, which might be conducted at half the expense of the present establishments, and with at least equal efficiency. The same consideration which precluded the expectation of aid from the legislature, discouraged the trustees from resorting to the plan of soliciting private contributions, which had proved so use 1835] IMPROVEMENT OF THE OHIO. 213 public spirit could not be expected to withstand on all ful to the college on former occasions, when no rival The principal conditions of the union were, first, that the name of the institution should be the University of Pennsylvania; secondly, that twenty four individuals, chosen equally by the two boards from their own numbers, should, with the governor of the state, constitute the new board, of which the governor should be ex of ficio president, and thirdly, that the "professors who might be deemed necessary to constitute the faculty in arts and in medicine" should as far as possible be taken equally from each institution. It was moreover provided, that vacancies among the trustees, with the exception of the governor, should be filled by their own choice; and that no professor or officer of the faculty should be removed without due and timely notice, and by a less number than two-thirds of the members present at any one meeting, thirteen being necessary to constitute a quorum for such a purpose. In compliance with the provisions of the law, each board proceeded to the performance of its last official act, by the choice of twelve individuals as its represensatives in the government of the newly constituted university. The gentle men thus appoined, together with Thomas Mifflin, the governor of the state, met, for the first time, on the 18th of November, 1791; and, having regularly organized themselves, proceeded without delay to restore to order the disjointed affairs which had been committed to their charge. NEW EMIGRANTS. Two families of Indians from the banks of Lake Champlain, have lately taken up their residence, or we should more properly say, encamped, in the City of Penn. They have with them two birch bark canoes, in which they crossed the Lake, and, after carrying them over land to the Hudson, they descended that stream to New York, and from thence to New Brunswick, up the Raritan, and thence they crossed to the Delaware, descended to the mouth of the Schuylkill, then ascended to Fairmount, near which they are located. Their dwellings are two birch bark tents, which they brought with them. They propose to carry on the basket-making business. It will be recollected that the venerated Penn was the red man's friend, and it is hoped that they will not be molested.-Com. Herald. From the Pittsburg Gazette. To the Citizens of Pittsburgh: Fellow Citizens-A few days since, I published an address to the citizens of the different counties more immediately interested in the improvement of the Navigation of the Allegheny River. This has met with a more immediate and general approbation of those best capable of judging, than I could have expected.-I now venture to address you on a subject in which you are more exclusively interested.-The Improvement of the Navigation of the Ohio; a subject of vital importance to the city of Pittsburgh. Different modes have at different times been suggested for the Improvement of this River, all of which have become obsolete, except that of erecting wing dams, to confine the water in a narrower channel at the heads of the ripples by means of dams extending from either shore; which plan is now suggested as the one to be adopted under the appropriation lately made by Con One of their first measures was to unite the offices of secretary and treasurer in a single person, to whom they gave a compensation adequate to the trouble and responsibility of his station, exacting, at the same time, satisfactory security for the faithful discharge of the du ties intrusted to him. As treasurer he was bound not only to receive and disburse money, and to perform such other services as are usually attached to this title; but also to exercise a general care and superintendence over the estates of the university, and, with the approgress. bation of the trustees, to execute all those measures, of This plan it is my present object to examine, and a financial character, which it had hitherto been the submit my views to you and to the public-what will custom to refer to the management of committees. It be the consequence of adopting this mode of supposed was thought that the attention of one individual of re-improvement? spectable character and standing, whose peculiar interests, moreover, were made to correspond with the du ties of his office, would be more profitable to the institution, in the management of its pecuniary affairs, than the gratuitous services of members of the board, whose It is true the pools above the ripples, from having a slow or very gentle current, of perhaps not more than one mile an hour, may be rendered nearly stagnant. But by doing so, in order to raise the water say one, two, or more feet at the head of the ripples, will you not thereby increase the velocity of the water at the ripples, so as in some cases to render it impossible for Steam Boats to ascend at low water; and in all cases greatly increase the difficulty of ascending them. Be channel to the pools below, will not the water after passing the chute made by the wing dams, gradually *The gentlemen chosen by the trustees of the university were, Thomas McKean, Charles Pettit, James Sprot, Frederick Kuhl, John Bleakly, John Carson, Jonathan B. Smith, David Rittenhouse, Jonathan D.sides, unless you construct walls at the sides of the Sergeant, David Jackson, James Irvin, and Jared Ingersoll. Those selected by the trustees of the college, were William White, D. D, Robert Blackwell, D. D, Edward Shippen, William Lewis, Robert Hare, Samuel Powell, David 11. Conyngham, William Bingham, Thomas Fitzimmons, George Clymer, Edward Burd, and Samuel Miles. • Edward Fox was the first secretary and treasurer of the university; and continued to retain the office till the period of his death. He was succeeded by Josephi Reed, Esq., recorder of the city. |