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once the fact is ascertained, the law must of course redress it. This, therefore, preserves in the hands of the people, that share which they ought to have in the administration of public juctice, and prevents the encroachments of the more powerful and wealthy citizens. Every new tribunal erected for the decision of facts, without, the intervention of a jury, (whether composed of justices of the peace, commissioners of the revenue, judges of the court of conscience, or any other standing magistracy, is a step towards establishing aristocracy, the most oppressive of absolute government.'

But it has been alledged that notwithstanding congress, never undertook to establish a court of admiralty, on their own authority, but only issued a recommendation to the different states, to establish them in their several districts; yet, that they alone, had the right of instituting courts of admiralty, and courts of appeal, and of regulating them as they pleased.

This is a doctrine, which I believe was never admitted by any one of the United States, and if any one had absolutely refused to institute such court, congress would have found it very difficult to enforce a compliance with their recommendation.

I contend that every state on throwing off its allegiance to Great Britain acquired all the rights and privileges of sovereignty: and that of instituting courts as appurtenant to it. It is totally immaterial in whom the right of instituting Courts of Admiralty was vested before the revolution because on that event, every state becoming independant, possessed, necessarily every power incident to an independant

state.

When they united together to maintain the independance of each they impliedly gave to congress all the power necessary to carry on the contest except what they expressly reserved to themselves.

If congress had supported the power absolutely necessary to their success and any one state had determined nevertheless to retain it, I do not see how they could legally exercise it.

It appears manifestly to me on a full view of this subject that Pennsylvania has never consented to give up this power so far as to suffer appeals from the verdict of a jury, and therefore could not be legally exercised by congress. To shew the sense of the legislature and people of Pennsylvania on this subject, and their continued determination to resist the claim of congress to this power. I beg leave to refer you to documents of unquestionable authority in this cause.

Afterwards on the twenty-eighth day of December aforesaid at a court held at the statehouse aforesaid, present all the commissioners above n med, the advocates on the part of the appellants exhibited to the said court copies of two papers, the one purporting to be a second decree or sentence of the said Court of Admiralty in the above cause, and the other purporting to be a writ or warrant from the judge to the marshal of the said court, which being severally read are as follows, to wit:

Thomas Houston, esq. c. appellees

V.

Gideon Olmstead, Artimus White, Aquila Rumsdale and David Clarke, appellant and claimants of the sloop Active and cargo.

In the Court of Admiralty for the state of Pennsylvania.

The court taking into consideration the decree of the Court of Appeals in this case, reversing the judgment and sentence of this court in the same cause; and further, decreeing a condemnation of the said sloop Active, her tackle, apparel, furniture and cargo, as prize, &c. and that process of this court should issue for the sale of the said sloop, her cargo, &c. and for the distribution of the monies arising from the said sale (after deducting costs) to the claimants above named, their agent or attorney, after mature consideration are of opinion, that although the court of appeals have full power to alter or set aside the decree of a judge of this court, yet that the finding of the jury in the cause does establish the facts in the cause without re-examination or appeal.

And therefore the verdict of the jury still standing and being in full force, this court cannot issue any process or proceed in any manner whatsoever contradictory to the finding of the said jury. And therefore doth now decree, order and djudge that the marshal of this court be commanded to sell at public vendue for the highest price that can be gotten for the same, the said sloop or vessel called the Active, her tackle, apparel and furniture, and the goods, wares and merchandises laden and found on board her at the time of her capture, &c.; and after deducting the costs and charges of the trial, condemnation and sale thereof out of the residue of the monies arising from the said sale, that he bring the residue thereof into court ready to abide the further order of this court therein. GEO. ROSS.

December 28th, 1778.

Court of Admiralty.}

Pennsylvania,

George Ross esquire, judge of the court of admiralty for the state of Pennsylvania to Matthew Clarkson esquire, marshal of the city and county of Philadelphia, greeting.

Whereas at a court of admiralty lately held at Philadel phia upon the bill of Thomas Houston, esq. qui tam, &c. exhibited to the said court, it was adjudged and decreed that the sloop or vessel called the Active, her tackle, apparel and furniture, and the goods, wares and merchandise laden and found on board her at the time of her capture should be condemned as prize and sold, and after deducting the costs and charges of the trial, condemnation and sale thereof out of the monies arising from the said sale, out of the residue of the said monies, three fourth parts should be paid unto the libellant and a certain James Josiah, a claimant in the said cause, to and for the use of themselves, &c. and the remain. ing one fourth-part of the said residue should be paid unto Gideon Olmstead, Artimus White, Aquila Kumsdale and David Clarke other claimants in the said cause to and for their use, &c. according to the verdict of the jury impanelled, and sworn to try and determine, &c. in the same cause from which judgment or sentence the said Gideon Olmstead and others last above mentioned, appealed to the honourable congress of the United States of America, or such court or authority as they should appoint to hear and determine the said appeal; and it was in such manner proceeded that the honourable court of commissioners of appeal for the said states did by their decree, transmitted into this court, reverse, annul and make void all and every part of the judgment or sentence of the court of admiralty aforesaid, and did further adjudge and decree that the said sloop Active, &c. was lawful prize, and that process of this court should issue commanding a sale thereof, and that after deducting costs, &c. the residue of the monies arising from the said sale, &c. should be paid to the claimants last above mentioned, their agent or attorney, to and for their sole and absolute use and disposal, &c. This court therefore taking into consideration the premises and being of opinion that consistent with the laws of this state it cannot carry into execution the whole of the said sentence of the honourable the court of appeal aforesaid, yet willing, so far as the said sentence appears legal, to carry it into effect, and to prevent as far as possible any injuries or losses which the parties to

this cause or either of them may be liable to by the vessel and cargo, &c. continuing in their present situation, do therefore hereby command you forthwith to sell at public vendue for the highest price that can be gotten for the same the said sloop or vessel called the Active, her tackle, apparel and furniture, and the goods, wares and merchandise, laden and found on board at the time of her said capture, and after deducting the costs and charges aforesaid to bring the residue of the said monies into court, ready to abide the further order of this court. And how you shall have executed this writ make return to me at a court of admiralty, to be held at my chambers in Philadelphia, the seventh day of January next, together with this writ. Given under my hand and seal, at Philadelphia the twenty-eighth day of December, in the year of our Lord one thousand seven hundred and seventy-eight.

GEORGE ROSS.

By virtue of the foregoing writ I have deposited in the Court of Admiralty the sum of forty-seven thousand nine hundred and eighty-one pounds two shillings and five pence, Pennsylvania currency, on account of the cargo of the prize sloop Active in the said writ mentioned.

The said sloop being vet unsold, no monies have come into my hands on account of her. So answers

MATTHEW CLARKSON, Marshal.

January 4th, 1779.

I do acknowledge the marshal has deposited in my hands as judge of the Court of Admiralty the above sum, as he has returned above.

GEORGE ROSS,

The committee appointed to confer with a committee of the honourable congress on the subject of the admiralty proceedings in the case of the sloop Active, applied to the house for directions therein; whereupon the house taking the same into consideration, it was

Resolved, 1st, That" the power of establishing courts, for receiving and determining finally, appeals in all cases of captures, ," is reserved in congress by the articles of confederation; and as the state of Pennsylvania, has acceded to those articles, this house esteem it their duty to adopt such regulations consistent with the principles of the confedera tion, as congress may judge necessary for the due exercise of the said power.

Resolved, 2dly, That by an act of this commonwealth, for establishing a Court of Admiralty, it is declared, and enact ed, that the finding of the jury, shall establish the facts without re-examination or appeal, and that the said act is not repug nant to, but consistent with the resolution of congress, of the 25th of November 1775.

Resolved, 3dly, That the proceedings in the Court of Admiralty in the case of the sloop Active, were founded on the aforesaid act of assembly; which together with the said resolve, form the true ground whereupon the decision of the contested point should be made without involving a consi deration of the necessity or propriety of future alterations and amend ents.

Resolved,. That the speaker transmit a copy of these resolves to the committee of congress, and request them to appoint a time and place for holding the said conference.

"The house took up the further consideration of the instructions to the delegates of this state in congress; on the subject of the sloop Active, which being, debated by paragraphs after some amendments therein were unanimously approved, and are as follows: viz.

GENTLEMEN,

The house being informed that it has been proposed in the honourable congress, that an order be drawn on the treasury of the United States for the amount of three fourths of the neat proceeds of the sloop Active, and her cargo, and to pay the same to Gideon Olmstead and others, appellants in that case in order to satisfy the decree of the Court of Appeals for prizes made at sea, and that the same be charged to the state of Pennsylvania, referring said state for indemnification to the three fourths in the hands of the judge of the Admiralty of Pennsylvania.

The house in consequence of the above having taken the premises into their most serious consideration and adopted the instructions given by the last house of assembly, to a committee of the said house who had been appointed to confer with a committee of congress in the case of the sloop Active, which instructions are in the following words.

(Being the words just recited.)

And then they proceed. The house likewise instruct you immediately to inform the honourable body of which you are members, that this house will consider any application of the money of this state by congress to the purpose aforesaid, as an high infringement on the honour and rights of the commonwealth of Pennsylvania and in this view will