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Penhallow v. Doane's Administrators. 3 D. appeals had jurisdiction, or in other words, whether congress, before the ratification of the articles of confederation, had authority to insti. tute such a tribunal, with appellate jurisdiction in cases of prize ?
Much has been said respecting the powers of congress. On this part of the subject the counsel on both sides displayed great ingenuity and erudition, and that too in a style of eloquence equal to the magnitude of the question. The powers of congress were revolutionary in their nature, arising out of events adequate to every national emergency, and co-extensive with the object to be attained. Congress was the general, supreme, and controlling council of the nation, the centre of union, the centre of force, and the sun of the political system. To determine what their powers were, we must inquire what powers they exercised. Congress raised armies, fitted out a navy, and prescribed rules for their government; congress conducted all military operations both by land and sea; congress emitted bills of credit, received and sent ambassadors, and made treaties; congress commissioned privateers to cruise against the enemy, directed what vessels should be liable to capture, and prescribed rules for the distribution of prizes. These high acts of sovereignty were submitted to, acquiesced in, and approved of by the people of America. In congress were vested, because by congress were exercised with the approbation of the people, the rights and powers of war and peace. In every government, whether it consists of many States or of a few, or whether it be of a federal or consolidated nature, there must be a supreme power or will ; the rights of war and peace are component parts of this supremacy, and inci. dental thereto is the question of prize. The question of prize grows out of the nature of the thing. If it be asked in whom, during our revolutionary war, was lodged, and by whom was exercised this supreme authority, no one will hesitate for an answer. It was lodged in and exercised by congress; it was there or nowhere; the States individually did not, and with safety could not, exercise it. Disastrous would have been the issue of the contest, if the States separately had exercised the powers of war. For in such case there would have been as many * supreme wills as there were States, and [ * 81 ] as many wars as there were wills. Happily, however, for America, this was not the case; there was but one war and one sovereign will to conduct it. The danger being imminent and common, it became necessary for the people or colonies to coalesce and act in concert, in order to divert or break the violence of the gathering storm; they accordingly grew into union, and formed one great political body, of which congress was the directing principle and soul. As to war and peace, and their necessary incidents, congress, by the
Penhallow v. Doane's Administrators. 3 D.
unanimous voice of the people, exercised exclusive jurisdiction, and stood, like Jove, amidst the deities of old, paramount and supreme. The truth is that the States, individually, were not known nor recog. nized as sovereign, by foreign nations, nor are they now; the States collectively, under congress, as the connecting point or head, were acknowledged by foreign powers as sovereign, particularly in that acceptation of the term which is applicable to all great national concerns, and in the exercise of which other sovereigns would be more immediately interested; such, for instance, as the rights of war and peace, of making treaties, and sending and receiving ambassadors. Besides, everybody must be amenable to the authority under which he acts. If he accept from congress a commission to cruise against the enemy, he must be responsible to them for his conduct. If, under color of such commission, he had violated the law of nations, congress would have been called upon to make atonement and redress. The persons who exercise the right or authority of commissioning privateers, must, of course, have the right or authority of examining into the conduct of the officer acting under such commission, and of confirming or annulling his transactions and deeds. In the present case, the captain of the M'Clary obtained his commission from congress; under that commission he cruised on the high seas and captured the Susanna; and for the legality of that capture he must ultimately be responsible to congress or their constituted authority. This results from the nature of the thing; and, besides, was expressly stipulated on the part of congress. The authority exercised by congress, in granting commissions to privateers, was approved and ratified by the several colonies or states, because they received and filled up the commissions and bonds, and returned the latter to congress; New Hampshire did so, as well as the rest.
Another circumstance, worthy of notice, is the conduct of New Hampshire, by her delegate in congress, in the case of the sloop Active. Acts of Congress, 6th March, 1779. By this decision, New Hampshire concurred in binding the other States. Did she not also
bind herself? Before the articles of confederation were rati[ *82) fied, or even formed, a league of some kind * subsisted
among the States; and whether that league originated in compact, or a sort of tacit consent, resulting from their situation, the exigencies of the times, and the nature of the warfare, or from all combined, is utterly immaterial. The States, when in congress, stood on the floor of equality; and until otherwise stipulated, the majority of them must control. In such a confederacy, for a State to bind others, and not in similar cases be bound herself, is a solecism. Still, however, it is contended, that New Hampshire was not Penhallow v. Doane's Administrators. 3 D. bound, nor congress sovereign as to war and peace, and their incidents, because they resisted this supremacy in the case of the Susanna. But I am, notwithstanding, of opinion, that New Hampshire was bound, and congress supreme, for the reasons already assigned, and that she continued to be bound, because she continued in the confederacy. As long as she continued to be one of the federal states, it must have been on equal terms. If she would not submit to the exercise of the act of sovereignty, contended for by congress, and the other States, she should have withdrawn herself from the confederacy.
In the resolutions of congress of the 6th of March, 1779, is contained a course of reasoning which, in my opinion, is cogent and conclusive. 5 Jour. Cong. 86, 87, 88, 89, 90.
“ The committee, consisting of Mr. Floyd, Mr. Ellery, and Mr. Burke, to whom was referred the report of the committee on appeals of January 19th, 1779, having, in pursuance of the instructions to them given, examined into the causes of the refusal of the judge of the court of admiralty for the State of Pennsylvania, to carry into execution the decree of the court or committee of appeals, report,
“ That on a libel in the court of admiralty for the State of Pennsylvania, in the case of the sloop Active, the jury found a verdict in the following words, namely, one fourth of the net proceeds of the sloop Active and her cargo to the first claimants; three fourths of the net proceeds of the said sloop and her cargo to the libellant and the second claimant, as per agreement between them ;' which verdict was confirmed by the judge of the court, and sentence passed thereon. From this sentence or judgment and verdict, an appeal was lodged with the secretary of congress, and referred to the committee appointed by congress, “to hear and determine finally upon all appeals brought to congress, from the courts of admiralty of the several States.
“ That the said committee, after solemn argument and full hearing of the parties by their advocates, and taking time to consider thereof, proceeded to the publication of their definitive sentence or decree, thereby reversing the sentence of the court of admiralty, making a new decree, and ordering process to * issue out [ *83] of the court of admiralty for the State of Pennsylvania to carry this their decree into execution.
“ That the judge of the court of admiralty refused to carry into execution the decree of the said committee on appeals, and has assigned as the reason of his refusal, that an act of the legislature of the said State has declared, that the finding of a jury shall establish the facts in all trials in the courts of admiralty, without re
Penhallow v. Doane's Administrators. 3 D.
examination or appeal, and that an appeal is permitted only from the decree of the judge:
“ That having examined the said act, which is entitled, an act for establishing a court of admiralty,' passed at a session which commenced on the 4th of August, 1778, the committee find the following words, namely, the finding of a jury shall establish the facts, without reëxamination, or appeal,' and in the seventh section of the same act the following words, namely, “in all cases of captures an appeal from the decree of the judge of admiralty of this State, shall be allowed to the continental congress, or such person or persons as they may from time to time appoint for hearing and trying appeals.'
“ That although congress, by their resolution of November 25th, 1775, recommended it to the several legislatures, to erect courts for the purpose of determining concerning captures, and to provide that all trials in such cases be had by a jury, yet it is provided, that in all cases an appeal shall be allowed to congress, or to such person or persons as they shall appoint for the trial of appeals :" whereupon,
“ Resolved, That congress, or such person or persons as they appoint, to hear and determine appeals from the courts of admiralty, have necessarily the power to examine as well into decisions on facts as decisions on the law, and to decree finally thereon, and that no finding of a jury in any court of admiralty, or court for determining the legality of captures on the high seas, can or ought to destroy the right of appeal, and the reëxamination of the facts reserved to congress :
“ That no act of any one State can or ought to destroy the right of appeals to congress, in the sense above declared :
“ That congress is, by these United States, invested with the supreme sovereign power of war and peace:
“ That the power of executing the law of nations is essential to the sovereign supreme power of war and peace:
“ That the legality of all captures on the high seas must be determined by the law of nations:
“ That the authority ultimately and finally to decide on all matters and questions touching the law of nations, does reside and is vested
in the sovereign supreme power of war and peace : [ *84 ] *“ That a control by appeal is necessary, in order to com
pel a just and uniform execution of the law of nations : “ That the said control must extend as well over the decisions of juries, as judges, in courts for determining the legality of captures on the sea; otherwise the juries would be possessed of the ultimate supreme power of executing the law of nations in all cases of captures, and might, at any time, exercise the same in such manner as
Penhallow v. Doane's Administrators. 3 D.
to prevent the possibility of being controlled; a construction which involves many inconveniencies and absurdities, destroys an essential part of the power of war and peace intrusted to congress, and would disable the congress of the United States from giving satisfaction to foreign nations complaining of a violation of neutralities, of treaties, or other breaches of the law of nations, and would enable a jury, in any one State, to involve the United States in hostilities; a construction, which for these and many other reasons, is inadmissible:
“ That this power of controlling by appeal, the several admiralty jurisdictions of the States, has hitherto been exercised by congress, by the medium of a committee of their own members :
“ Resolved, That the committee before whom was determined the appeal from the court of admiralty for the State of Pennsylvania, in the case of the sloop Active, was duly constituted and authorized to determine the same:”
The yeas and nays being taken, it appears that the States of New Hampshire, Massachusetts Bay, Rhode Island, Connecticut, New York, Maryland, Virginia, North Carolina, South Carolina, and Georgia, voted unanimously in the affirmative; the State of Pennsylvania unanimously in the negative; and Mr. Witherspoon, who was alone from New Jersey, voted also in the negative.
The congress then voted as follows, namely, “ Resolved, That the said committee had competent jurisdiction to make thereon a final decree, and therefore their decree ought to be carried into execution.”
The yeas and nays being taken on this resolution, it appears that New Hampshire, Massachusetts Bay, Rhode Island, Connecticut, New York, Maryland, Virginia, North Carolina, South Carolina, and Georgia, voted unanimously in the affirmative; Pennsylvania unanimously in the negative; and Mr. Witherspoon, who was alone from New Jersey, voted on this occasion in the affirmative.
The congress then resolved as follows, namely, “ Resolved, That the general assembly of the State of Pennsylvania be requested to appoint a committee, to confer with a committee of congress, on the subject of the proceedings * relative to the sloop Active, and the objections made to [ *85 ] the execution of the decree of the committee on appeals, to the end that proper measures may be adopted for removing the said obstacles; and that a committee of three be appointed to hold the said conference with the committee of the general assembly of Pennsylvania : “ The members chosen, Mr. Paca, Mr. Burke, and Mr. R. H. Lee." I shall close this head of discourse with observing, that it is with