question, "The practicability of making laws, with coercive sanctions, for the States as political bodies has been exploded on all hands." 1 Documentary History, Vol. iii, p. 340. 1 X THE FIRST PERMANENT TRIBUNAL OF THE STATES Should not a court be established by authority of Congress, to take cognizance of prizes made by the Continental vessels? Whatever the mode is, which they are pleased to adopt, there is an absolute necessity of its being speedily determined on; for I cannot spare time from military affairs, to give proper attention to these_matters. (Extract from a letter of General Washington from Camp at Cambridge, to the President of Congress, November 11, 1775. Worthington Chauncey Ford, Editor, The Writings of George Washington, Vol. III, 1889, pp. 213-214.) Resolved, That a committee be appointed, to take into consideration so much of said letter as relates to the disposal of such vessels and cargoes belonging to the enemy, as shall fall into the hands of, or be taken by, the inhabitants of the United Colonies. That the Committee consist of 7. (Journals of the Continental Congress, Session of November 17, 1775, Library of Congress edition, Vol. III, 1905, pp. 357–358.) 4. That it be and is hereby recommended to the several legislatures in the United Colonies, as soon as possible, to erect courts of Justice, or give jurisdiction to the courts now in being for the purpose of determining concerning the captures to be made as aforesaid, and to provide that all trials in such case be had by a jury under such qualifications, as to the respective legislatures shall seem expedient. 5. That all prosecutions shall be commenced in the court of that colony in which the captures shall be made, but if no such court be at that time erected in the said colony, or if the capture be made on open sea, then the prosecution shall be in the court of such colony as the captor may find most convenient, provided that nothing contained in this resolution shall be construed so as to enable the captor to remove his prize from any colony competent to determine concerning the seizure, after he shall have carried the vessel so seized within any harbour of the same. 6. That in all cases an appeal shall be allowed to the Congress, or such person or persons as they shall appoint for the trial of appeals, provided the appeal be demanded within five days after definitive sentence, and such appeal be lodged with the secretary of Congress within forty days afterwards, and provided the party appealing shall give security to prosecute the said appeal to effect, and in case of the death of the secretary during the recess of Congress, then the said appeal to be lodged in Congress within 20 days after the meeting thereof. (Journals of the Continental Congress, Session of November 25, 1775, Library of Congress edition, Vol. III, 1905, pp. 373-374.) The resolves relative to captures made by Continental armed vessels only want a court established for trial, to make them complete. This, I hope, will be soon done, as 1 have taken the liberty to urge it often to the Congress. (Extract from a letter of General Washington, from Cambridge, to the President of the Congress, December 14, 1775Worthington Chauncey Ford, Editor, The Writings of George Washington, Vol. III, 1889, p. 274.) Resolved, That a standing committee, to consist of five members, be appointed to hear and determine upon appeals brought against sentences passed on libels in the courts of Admiralty in the respective states, agreeable to the resolutions of Congress; and that the several appeals, when lodged with the secretary, be by him delivered to them for their final determination: . . . (Journals of the Continental Congress, Session of January 30, 1777, Library of Congress edition, Vol. VII, 1907, Þ. 75.) Article IX. The United States in Congress assembled, shall have the sole and exclusive right and power. . . of establishing rules for deciding in all cases, what captures on land or water shall be legal, and in what manner prizes taken by land or naval forces in the service of the United States shall be divided or appropriated . . . and establishing courts for receiving and determining finally appeals in all cases of captures, provided that no member of Congress shall be appointed a judge of any of the said courts. (The Articles of Confederation agreed to by the Congress, November 15, 1777, Revised Statutes of the United States, 1878, p. 9.) Resolved, That a court be established for the trial of all appeals from the courts of admiralty in these United States, in cases of capture, to consist of three judges, appointed and commissioned by Congress, either two of whom, in the absence of the other, to hold the said court for the despatch of business: That the said court appoint their own register: That the trials therein be according to the usage of nations and not by jury:. (Journals of the Continental Congress, Session of January 15, 1780, Library of Congress edition, Vol. XVI, 1910, p. 61.) Resolved, That the stile of the Court of Appeals appointed by Congress, be, “The Court of Appeals in Cases of Capture." Resolved, That appeals from the courts of admiralty in the respective states, be, as heretofore, demanded within five days after definitive sentence; and in future such appeals be lodged with the register of the Court of Appeals in cases of capture within forty days thereafter, provided the party appealing shall give security to prosecute such appeal to effect. Resolved, That all matters respecting appeals in cases of capture, now depending before Congress, or the commissioners of appeals, consisting of members of Congress, be referred to the newly erected Court of Appeals, to be there adjudged and determined according to law; and that all papers touching appeals in cases of capture, lodged in the office of the secretary of Congress, be delivered to and lodged with the register of the Court of Appeals. (Journals of the Continental Congress, Session of May 24, 1780, Library of Congress edition, Vol. XVII, 1910, pp. 458, 459.) Section 8. The Congress shall have Power . . . To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; .. (Constitution of the United States, Article I.) Section 2. The judicial Power shall extend .. to all Cases of admiralty and maritime Jurisdiction. . . . (Constitution of the United States, Article III.) The district courts of the United States are courts of prize; and have power to carry into effect the sentences of the old continental courts of appeals in prize causes. (Per Mr. Chief Justice Marshall in Jennings v. Carson, 4 Cranch, 2, decided in 1807.) CHAPTER X THE FIRST PERMANENT TRIBUNAL OF THE STATES AN examination of that part of the ninth of the Articles of Confederation relating to controversies and their settlement shows that it deals with three situations or conditions: first, prizes taken by land or naval forces; second, the trial of piracies and felonies committed on the high seas; third, controversies of all kinds between the States, sovereign, free and independent, forming the Confederation, styled in Article I, The United States of America. The members of the Congress understood, or their experience had taught them by 1777, when the Articles of Confederation were adopted by them for ratification by the States, that, although "each State retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right which is not by this Confederation expressly delegated to the United States in Congress assembled," it was nevertheless necessary to provide for certain things if they were to hold together during the war against the mother country. They might agree to use force against Great Britain, and, indeed, their union was formed for this purpose; but they were unwilling, as are all sovereign, free and independent States, to have force used against themselves. They had practically disqualified themselves from settling disputes arising between them by direct negotiations, because in Article VI they had provided that "no two or more States shall enter into any treaty, confederation or alliance whatever between them, without the consent of the United States in Congress assembled." In the same article they had practically agreed to such a limitation of their forces as to amount to disarmament, providing that neither vessels of war nor armed forces should "be kept up in time of peace by any State, except such number only, as shall be deemed necessary by the United States in Congress assembled, for the defence of such State, or its trade." And they drew the logical conclusion from this provision, that no State should engage in war without the consent of the Congress, unless it was actually invaded by enemies or was menaced by such invasion. The time-honored method of settling controversies between States sovereign, free and independent, has been and still is either by diplomatic negotiation or by armed conflict; and the Revolutionary statesmen were intelligent enough to recognize that, if diplomacy could not effect a settlement, and if an Kind of appeal to arms were excluded, there must be a resort to some method of settlement which was neither diplomatic nor military. They interposed, therefore, Another between the two, the judicial method, recognizing, although not appealing to Settlement Aristotle in confirmation thereof, that "justice is the bond of men in States, and the administration of justice, which is the determination of what is just, is the principle of order in political society." They had in mind a court of justice, and they so said. They recognized that the court, to have jurisdiction over the States and to bind their actions, could only be created by them directly, or by their agent for this purpose, as they had no superior. They therefore invested Congress with the power, a Congress in which each sovereign, free and independent State of the Confederacy had an equal vote, although each might, according to its pleasure, send an unequal number of representatives. of the States After having defined the matters which, in the interest of the States, had Courts to be settled with those countries which they considered foreign and those Confederated which they considered, by virtue of the Confederation, as domestic, the Confederated States authorized the Congress as their agent, or rather their own delegates in Congress assembled, to appoint courts for the trial of piracies and felonies committed on the high seas; " to establish "courts for receiving and determining finally appeals in all cases of captures;" and, in the matter of disputes between the States themselves, to appoint "commissioners or judges to constitute a court for hearing and determining the matter in question." 1 It is to be observed that these are likewise considered judicial questions by the Constitution, which succeeded the Confederation, and that they are either referred to courts by the Constitution or by act of Congress passed in pursuance of authority vested in that body by the Constitution. Therefore, in Section 8 of Article I of the Constitution, vesting all the legislative power in Congress which the States cared to grant to the United States, it is said that "Congress shall have Power . . . To define and punish Piracies and Felonies committed on the high Seas." Going a step further, the framers of the Constitution added "and Offenses against the Law of Nations;" and, in the clause immediately following, the Congress is invested with the power "to make Rules concerning Captures on Land and Water." In Article III of the Constitution it is declared that "the judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish," in accordance with the clause in Section 8 of Article I, authorizing Congress "to constitute Tribunals inferior to the supreme Court." After providing in the 1st section of Article III for the creation of a 1 For the text of the Articles of Confederation and the Constitution, see Appendix, pp. 494-513. |