Penhallow v. Doane's Administrators. 3 D. head, (and the counsel for the respondents have admitted that it would have been good policy,) is no contemptible argument for supposing it actually given. In the beginning of the year 1775, our affairs were drawing fast to a crisis, and for some time before the battle of Lexington, a state of warfare must, in the minds of all men, have been an expected event. Some of the delegations (I think three) of members to the congress which met in May of that year, contain nothing but simple powers to meet [110] congress; the rest expressly give authority to their delegates to consent to all such further measures, as they and the said congress shall think necessary, for obtaining a redress of American grievances, and a security of their rights. It is not in all of them worded alike, but in substance, that seems to be the sense. Every thing which may be deemed necessary! I think it cannot well be supposed, that in such a delegation of authority, at such a time, there was not an eye to war, if that should become necessary. But it is objected, that at most, no greater power was given to congress than to enter into a definitive war with Great Britain, not the right of war and peace generally; and even that war, till the declaration of independence, would be only a civil war. But why is not a definitive war against Great Britain (call it if you will a civil war) to be conducted on the same principles as any other? If it was a civil war, still we do not allow it to have been a rebellion. America resisted and became thereby engaged in what she deemed a just war. It was not the war of a lawless banditti, but of freemen fighting for their dearest rights, and of men, lovers of order and good government. Was it not as necessary in such a war, as in any between contending nations, that the law of nations should be observed, and that those who had the conducting of it should be armed with every authority for preventing injuries to neutral powers and their subjects, and even cruelty to the enemy? The power supposed to have been given to congress being confined to a definitive war against Great Britain, and not extending to the rights of peace and war generally, appears to me to make no material difference; still the same necessity recurs, of confining the evil of the war to the enemy against whom it is waged. Till a formal declaration of independence the people of the colonies are said to have continued subjects to Great Britain; true, and that circumstance it is which denominates the war a civil war, as to which I have already stated how, in my mind, the question is affected by that circumstance. But it was asked whether, if during the war, Great Britain, at any time before the declaration of independence, had declared war against any nation of Europe, that nation would not have had a Penhallow v. Doane's Administrators. 3 D. right to treat America with hostility as being subject to Great Britain? According to this supposition, Great Britain might have had some temptation to declare such war that she might have the cooperation of her enemy to reduce her colonies to obedience. But Great Britain was too wise to adopt such a policy; she knew that by her engaging in such a war, the colonies, instead of finding a new enemy to oppose, would have known where to find a friend; they might have formed an alliance with such a power, who [*111] probably would have considered it as an acquisition, *and congress might have been the sooner encouraged to separate from Great Britain, by a formal declaration of independence. As the supposition that congress was invested with all the rights of war, in respect to Great Britain, is of great moment in the present cause, and as the power may not be so satisfactorily conveyed by the instructions to the several delegates as might be wished, partly because some of them did not exhibit farther instructions than to attend congress, and partly because the instructions given to the rest, may be satisfied by a different construction, it may be proper to consider the manner in which congress, by their proceedings, appear to have considered their powers; not that by any thing of this sort they had a right to extend their authority to the desired point, if it was not given, but because in showing by such means their sense of the extent of their power, they gave an opportunity to their constituents to express their disapprobation, if they conceived congress to have usurped power, or by their coöperation to confirm the construction of congress; which would be as legitimate a source of authority, as if it had been given at first. If they were only a mere council, to unite by their advice and recommendation all the States in the same common measures, which, by the by, if not uniformly pursued, might be disappointed, then the several members might be justly compared to ambassadors met in a congress, and could only report their proceedings for the ratification of their principals; but congress resolved to put the colonies in a state of defence; they raised an army, they appointed a commander-in-chief, with other general and field officers; they modelled the army, disposed of the troops, emitted bills of credit, pledged the confederated colonies for the redemption of them, and in short, acted in all respects like a body completely armed with all the powers of war; and at all this I find not the least symptom of discontent among all the confederated States, or the whole people of America; on the contrary, congress were universally revered, and looked up to as our political fathers, and the saviours of their country. But if congress possessed the right of war, they had also authority to equip a naval force; they did so, and exercised the same Penhallow v. Doane's Administrators. 3 D. authority over it, as they had done over the army; they passed a resolution for permitting the inhabitants of the colonies to fit out armed vessels to cruise against the enemies of America; directed what vessels should be subject to capture, and prescribed a rule of distribution of prizes, together with a form of commission, and instructions to the commanders of private ships of war: they directed that the general assemblies, conventions, and councils or committees of safety of the United Colonies, should be supplied with blank commissions, signed by the president of congress, to [112] be by them filled up, and delivered to any person intending to fit out private ships of war, on his executing a bond, forms of which were to be sent with the commissions, and the bonds to be returned to congress. These bonds are given to the president of congress, in trust for the use of the United Colonies, with condition. to conform to the commission and instructions. The commission, under which the captain of the respondents acted, was one of these commissions, it seems, only this is attempted to be qualified by saying that it was countersigned by the governor of New Hampshire; but this circumstance seems to me to be of no importance. Whoever has the right of commissioning and instructing, must certainly have the right of examining and controlling, of confirming or annul ling the acts of him who accepts the commission and acts under it. And this exercise of authority in granting commissions seems to have had the special sanction of the several colonies, as they filled up the commissions, took the bonds, and transmitted them to con It was urged, in the course of the argument, that, if congress did enjoy the power contended for, the confederation, which was a thing of such long and anxious expectation, was not of any conse quence; but it is to be observed, that that instrument contained some important powers which could not be derived from the right of war and peace; it was of importance also, as a confirmation of the powers claimed as necessarily incident to war, because some of the States appeared not to be sensible of, nor to have acknowledged such incidency; and yet the power may have existed before. It is true, that instrument is worded in a manner, on which some stress has been laid, that the several States should retain their sovereignties, and all powers not thereby expressly delegated to congress, as if they were, till the ratification of that compact, in possession of all the powers thereby delegated; but it seems to me that it would be going too far from a single expression, used perhaps in a loose sense, to draw an inference so contrary to a known fact, to wit, that congress was, with the approbation of the States, in possession of some of the powers there mentioned, which yet, if the word 'retain' be taken in Penhallow v. Doane's Administrators. 3 D. so strict a sense, it must be supposed they never had. I take the truth to be, that the framers of that instrument were contemplating what powers congress ought to have had at the beginning; and that in reference to the first occasion of their assembling to oppose the tyranny of Great Britain, at least in reference to the time of framing the confederation, say, the States shall retain. But however that may be, as I said before, I think it is laying too great a stress upon a single word, to contradict some things which were evidently true. "But it was said that New Hampshire had a right to re[*113] voke * any authority she may have consented to give to con gress, and that by her acts of assembly she did in fact revoke it, if it were ever given. To this a very satisfactory answer was made; if she had such a right there was but one way of exercising it, that is, by withdrawing herself from the confederacy; while she continued a member, and had representatives in congress, she was certainly bound by the acts of Congress. I am therefore of opinion that those acts of New Hampshire, which restrain the jurisdiction of congress, being contrary to the legitimate powers of congress, can have no binding force, and that, under the authority of congress, an appeal well lay from the courts of admiralty of that State, to the court of commissioners of appeals. That court has already affirmed their jurisdiction in this particular case, upon a plea put in against it; and, upon that account also, I incline to think that this court, not being a court of superior authority, ought not to call it in question. Under these impressions, I must, of course, decree (whatever may be the hardship of the case) that the respondents pay to the libellants their damages and costs, occasioned by not complying with the decree of the court of appeals, the quantum of which to be ascertained by commissioners." If the reasoning upon which I went, in pronouncing the above decree in favor of the jurisdiction of the court of appeals, be unsound, and if the decree stand in need of some better support, it will probably find it in the confederation, by which authority is given to congress to erect courts of appeal in all cases; and from that time the authority of the court of appeals is confessed; the present case was then depending before that court, they asserted their jurisdiction, and gave a final decree. As to the objection that, previously to the con federation, congress were themselves sensible that they did not possess supreme admiralty jurisdiction, because of their recommending to the several States that they should erect courts of admiralty for the trial of prizes, with appeal to congress, I see not how such recommendations can prove any thing of the kind; for congress might have authority to establish such courts in the respective States, when yet Penhallow v. Doane's Administrators. 3 D. they chose only to recommend to the States to do it. But admitting the authority of the court of appeals, and the propriety of applying to the district court of New Hampshire to enforce that decree in the way of damages, for not restoring the vessel and cargo, when through the disobedience of the present plaintiffs in error, specific restitution was become impossible; yet if any thing erroneous can be found in the decree of the circuit court, it is the duty of this court to correct it. It is objected that the damages allowed were too high, including interest on the appreciation of the Susanna and [114 ] her cargo, from so remote a period as the sale of the vessel and cargo. That George Wentworth, being a mere agent, and having distributed among those who were entitled, under the decrees of the courts of admiralty of New Hampshire, all the money by him received for their use, ought not to have been subjected, by the decree of the circuit court, to the repayment of that money. And that a lumping decree, subjecting the respondents indiscriminately to the payment of all the damages, although their interests were several and distinct, was also erroneous. It does not indeed appear to me that the decree is for the payment of too large a sum; the damages having been swelled by interest, calculated upon the appraised value of the Susanna, her apparel, and of her cargo, from so remote a period. The decree of the court of appeals was merely for restitution, and that the appellants should be placed at that time in the same situation as they were in previous to the capture. A compensation for the loss they sustained in being in the mean time deprived of their property, was not provided for in the decree, nor were even costs allowed. The libel in the circuit court being bottomed on the decree of reversal, sought only a compensation in damages equivalent to a restitution at the time of the reversal. Interest therefore ought, I think, to have been allowed only from that time. George Wentworth, it is true, was not concerned in interest; he represented the interest of the officers and seamen, but had none himself; and a mere agent who has paid away all or any part of the money by him received in that character, without having been by a monition notified of the appeal, will be allowed credit in his account for the money so paid away. But George Wentworth appears, I think, in another character besides that of an agent; he was a party libellant; as such he knew that the claimants were dissatisfied with the decrees of the admiralty courts of New Hampshire, having prayed an appeal to congress, and offered the requisite security; and when the petition of appeal was referred to the court of commissioners, and |