matter, a further quotation may be made from a letter addressed to his fellowVirginian, Richard Henry Lee, who, a few months later, on June 7, 1776, was to move the momentous resolutions in Congress "that these United Colonies are and of right ought to be free and independent States." Thus, on December 26th, he wrote to Mr. Lee:

1

I must beg of you, my good Sir, to use your influence in having a court of admiralty, or some power appointed to hear and determine all matters relative to captures; you cannot conceive how I am plagued on this head, and how impossible it is for me to hear and determine upon matters of this sort, when the facts, perhaps, are only to be ascertained at ports, forty, fifty, or more miles distant, without bringing the parties here at great trouble and expense. At any rate, my time will not allow me to be a competent judge of this business.2

The Congress, however, had not been remiss, and immediately upon the receipt of General Washington's first letter it took action. On November 17th it was "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." 8 On November 23d, the committee to which the letter was referred brought in its report. It was ordered to lie upon the table "for the perusal of the members;" it was "debated by paragraphs" on the 24th and 25th of the same month, and adopted on November 25, 1775. The resolutions authorized the capture of prizes upon the high seas and legalized those which had alread been made. They determined the shares of the captors in the prize and the distribution of the money. They provided, as later in the case of piracies and felonies committed on the high seas, that the trial should take place in the colonial courts (because at this time the Declaration of Independence had not been proclaimed), and that an appeal should lie to the Congress. The section dealing with procedure on appeal thus reads:

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.5

The passage of this resolution was pleasing to "the General," and, with a

1.Journals of the Continental Congress, Vol. v, p. 425.

2 Ford, Writings of George Washington, Vol. iii, p. 274; Sparks, Vol. iii, p. 217.

3 Journals of the Continental Congress, Vol. iii, pp. 357-8.

4 Ibid., pp. 371-5.

5 Ibid., p. 374.

First Case of Appeal

Congressional
Committee
on Appeals

clearness of vision and a tenacity of purpose, recognized by his countrymen and with which a grateful posterity credits him, he pointed out the one thing needed to perfect the action of Congress in a passage from a letter to its president, dated December 14, 1775:

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 I have taken the liberty to urge it often to the Congress.1

In the end, the Congress was forced to take the action which the far-sighted Washington had recommended in the beginning; but it was only taken after great hesitation, with much reluctance, and when a very bitter experience had convinced its members of the absolute necessity of a court.

Before stating this incident, it should be mentioned that an Admiralty Court, generally requiring trial by jury, was organized in each of the colonies or States in accordance with the recommendation of the Congress that this be done, as it will be observed that Congress contented itself for the present with an appeal from the local jurisdictions, which were regarded as courts of first instance in prize matters. The intent of Congress seems to have been misunderstood, as on January 31st and February 27, 1776, two cases which had not been passed upon by the colonial courts were referred direct to the Congress by the petitioners, and in each case, in accordance with its understanding of its resolutions, the Congress referred the applicants to the colonial courts. However, a few weeks later (April 4, 1776), the Congress took original jurisdiction in the matter of a prize vessel which had been run ashore, directed that it be sold, and decreed the distribution of the proceeds arising from the sale. This appears, however, to have been the only instance in which the Congress took original jurisdiction. Therefore, it only acted in cases of appeal, at first directly, shortly thereafter through committees, and finally by means of an appellate court established in accordance with General Washington's recommendation.

The first case of appeal was that of the schooner Thistle, which was laid before Congress on August 5, 1776, a month after the Declaration of Independence. Congress attempted to hear the appeal as a body but eventually referred it to a special committee, and the earlier cases were referred to special committees until, in the beginning of 1777, Congress felt the necessity of and therefore created a standing committee on appeals, to consider such cases as should be laid before it in accordance with its resolution of November 25, 1775. This important action was taken on January 30, 1777, when it was

1 Ford, Writings of Washington, Vol. iii, p. 274; Sparks, Vol. iii, pp. 196–7.

2 Journals of the Continental Congress, Vol. iv, p. 256.

3 Ibid., Vol. v, p. 631.

"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." 1 The members of the committee were frequently changed, but the method was continued until a court was established. The defects of a changing personnel, even although forming a permanent committee, were pointed out by the merchants and citizens of Philadelphia, with the approval of the Pennsylvanian authorities, in the petition to Congress of May, 1779, which is susceptible of a larger application:

The success of the American privateers exceeded for a time the most sanguine expectation, and in all probability had still continued, if certain causes had not arisen to interrupt it. What these Causes are, we do not mean to enumerate. We shall only suggest one, and leave it to your honors to say what influence it may have had, and to provide a remedy against it in future.

Certainty in the Laws is the great Source of the people's Security, and an adherence to prior adjudication is the principal means of attaining that certainty. But the Court of Appeals in its present State is continually fluctuating, the same Judges seldom acting for more than a few months. In a Court where there is this Constant change and succession of Judges, it is impossible that fixed principles can be established, or the doctrine of precedents ever take place.

Every obstacle that creates unnecessary delay in the administration of Justice, should be carefully removed, but when the seeds of this delay are sown in the very Constitution of the Court, the People, rather than have recourse to a Tribunal of that kind, will be induced to give up their right. This we apprehend to be the nature of the Court of Appeals..

Impressed with these Considerations and others that might be mentioned, [we venture] to point out the propriety of nominating Judges of Appeal, who, not being members of Congress, would have more leisure for the discharge of their employment. We shall only observe that we trust to the Wisdom of Congress to establish the Court of Appeal on a lasting and solid Foundation, and to remove by proper regulations the imperfections. that are at present so generally the ground of Complaint.2

The merchants and citizens of Philadelphia were peculiarly qualified for discovering, and were interested in pointing out, the defects of the judgments obtained by a standing committee on appeal in prizes with a shifting membership, for events had taken place under their very eyes which filled them with apprehension, not only as to their own affairs but as to the state of the Union, if Union it could be called. The case of the Active, for it is to this that reference is made, called attention to another great defect of the existing system, because, although a State decree was reversed by the committee on 1 Journals of the Continental Congress, Vol. vii, p. 75.

'Jameson, Essays in the Constitutional History of the United States, pp. 24-26.

The

Case of

the Active

appeal, the State court did not feel itself obliged to give effect to the reversal of its judgment and to recognize by proper action the rights of property acquired under federal appeal.

The facts of this case are very interesting, and should be stated in this connection, as it was one of the cases which led to the organization of a court of appeal, and, indirectly, to the establishment of the Supreme Court itself. One Gideon Olmstead and three other citizens of Connecticut were captured by the British and carried to Jamaica, where they were put on board the sloop Active, laden with a cargo of supplies for New York, then in possession of the British. They were obliged to assist in its navigation, which they were unwilling to do. They therefore rose against the master and crew, took possession of the sloop, and made for the port of Egg Harbor, in New Jersey; but, before reaching this port, the Active, under their control, was captured by one Houston in command of the Pennsylvanian armed brig Convention. The Active was taken into the port of Philadelphia and libeled as prize of the Convention. The case was further complicated by the fact that the officers of a privateer, cruising in company with the Convention, claimed to have taken part in the capture, and therefore made claim to a part of the proceeds. Olmstead and his companions, claiming the sloop Active, in which they were in control when taken, put in a claim to the whole of the proceeds. In the admiralty court of Pennsylvania a trial was had by jury, the verdict of which was as follows:

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.1

Judgment was entered upon the verdict, from which an appeal was taken by Olmstead and others to the Congressional committee of appeal. On December 15, 1778, the commissioners reversed the decision of the State court and rendered judgment in favor of Olmstead and others, directing the court below to sell the sloop and cargo and to pay the remainder to the appellants after deducting costs, charges and expenses. The judge of the Pennsylvania Court of Admiralty recognized the validity of the decision reversing the decree of his court, but, insisting that he could not set aside the verdict of the jury, issued an order that the sloop and cargo be sold and the proceeds brought into court. On December 28, 1778, the appellants moved the committee that process might issue to the Admiralty Court of Pennsylvania commanding the marshal to execute the decree of the committee. The committee accordingly directed the marshal to hold the money subject to their order, but he disregarded this order and paid the money to the Admiralty Judge; whereupon the committee de1 Journals of the Continental Congress, Vol. xiii, p. 282.

clared that "this Court, being unwilling to enter into any proceedings for Contempt, lest Consequences might ensue at this Juncture dangerous to the public Peace of the United States, will not proceed farther in this affair, nor hear any Appeal, until the Authority of this Court shall be so settled as to give full Efficacy to their Decrees and Process." 1 At the same time the committee laid the proceedings before Congress, which approved their action in an elaborate series of resolutions, which are so important, because of their larger bearing upon the relation of the States, or indeed of any nation to foreign countries, that they are quoted in full:

Congressional the Relation

Resolved, That Congress, or such person or persons as they appoint to hear and determine appeals from the courts of admiralty, have necessarily Resolutions the power to examine as well into decisions on facts as decisions on the law, of States 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 re-examination 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:

That a controul by appeal is necessary, in order to compel a just and uniform execution of the naw of nations:

That the said controul 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 to prevent a possibility of being controuled; a construction which involves many inconveniences and absurdities, destroys an essential part of the power of war and peace entrusted 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 controuling 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.2

1 Jameson, Essays, p. 20.

2 Journals of the Continental Congress, Vol. xiii, pp. 283-4. Session of March 6, 1779.