The legislature of Pennsylvania, on March 8, 1780, repealed the statute authorizing juries to decide admiralty causes, but the case of the Active was not settled during the period of the Confederation, nor indeed for many years after the demise. The moneys had been deposited with one David Rittenhouse, the distinguished astronomer, at that time treasurer of the State, after whose death Olmstead and others sued his executrices for them in 1802 in the United States district court for Pennsylvania. Judge Peters decreed for the plaintiffs; but the legislature of Pennsylvania, apparently desirous of keeping the money within their jurisdiction, passed an act directing its attorney general to sue the executrices for the money and directing the governor to protect them from federal process. In 1809 the case came before the Supreme Court of the United States,1 which had superseded the committee of appeals of the Confederation, and before Chief Justice Marshall, who sat in the seat of the commissioners, where the decision of the committee was finally affirmed, and execution of the judgment of the district court decreed. Even then the Pennsylvanian authorities were minded to resist. Pennsylvanian troops surrounded the house of the executrices to prevent the service of the writ, but in the end the federal marshal, "with some firmness, much composure, and great address," succeeded, as Professor Jameson says, in entering the house, afterward humorously called Fort Rittenhouse, and serving the process.2 It is easy to decry the weakness of the Confederation because of its failure to execute its judgment in the case of the Active, but it should be borne in mind that the Congress was a Congress of sovereign, free and independent States, which are loath to allow the use of force against themselves, even in the administration of justice - which appears also to be a characteristic of the American States composing the American Union; for, in the procedure and practice of the Supreme Court, States of the American Union have not been forced before the court as defendants to take part in the trial of a case, nor has the execution of a judgment of that august tribunal against them been compelled by force. The moral of the Active was not lost upon the Congress, nor did the petition of the Philadelphian merchants and citizens fall upon deaf ears. On 1 See The United States v. Judge Peters, 5 Cranch, 115. 2 When the District Court proceeded to execute this mandate, the Governor issued orders to General Bright, "directing him to call out a portion of the militia in order to protect the persons and property of the representatives of Rittenhouse against any process issued by the District Court of the United States in pursuance of this mandamus. At first the marshal was prevented from serving the process by soldiers under the command of Bright, but subsequently, eluding their vigilance, he succeeded in taking into custody one of the defendants. A writ of habeas corpus, sued out on behalf of the prisoner, was, however, discharged by Chief Justice Tilghman, and subsequently General Bright with others were indicted in the Circuit Court of the United States for obstructing the process of the District Court. Mr. Justice Washington presided at the trial, which resulted in a verdict of guilty. The prisoners were sentenced to be imprisoned, and to pay a fine; but were immediately pardoned by the President of the United States. Olmsted's Case, Brightly's Rep., 1. "This appears to have been the first case in which the supremacy of the Constitution was enforced by judicial tribunals against the assertion of State authority." (Mr. Justice Stanley Matthew's Address before the Yale Law School, June 26, 1888, pp. 19-20.) May 22, 1779, the very day on which the petition had been read, a resolution was introduced, recommending" that each state pass an act empowering Congress, in advance of the ratification of the Articles of Confederation, to erect a permanent court of appeals; but the resolution does not appear to have passed," for the reason, suggested by Professor Jameson, from whom the above passage is quoted, that "probably Congress felt that they would be taking a stronger position if they assumed the existence of such power, as derived from their 'supreme sovereign power of war and peace,' in much the same way as the power to hear such appeals by committee of Congress had been; probably also it despaired of securing such action on the part of all thirteen of the states." 1 But indeed, even earlier, the advisability of a court had been agitated, for on August 5, 1777, it was " Resolved, That Thursday next be assigned to take into consideration the propriety of establishing the Court of Appeals.” Thursday came, but the court did not. The matter was postponed. In December of 1779, following the Philadelphian petition, an ordinance was drafted for a permanent court. As amended, it was passed on January 15, 1780, in the following form, a year in advance of the definitive adoption of the Articles of Confederation: 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.2 It was also resolved: That the said judges hold their first session as soon as may be at Philadelphia, and afterwards at such times and places as they shall judge most conducive to the public good, so that they do not at any time sit further eastward than Hartford in Connecticut, or southward than Williamsburg in Virginia.3 On January 22d the Congress chose as the three judges of the court, George Wythe of Virginia, William Paca of Maryland, and Titus Hosmer of Connecticutan admirable personnel. Mr. Wythe declining, Cyrus Griffin of Virginia was elected in his place on April 28th. Mr. Paca accepted on the 9th of February, Mr. Hosmer and Mr. Griffin on the 4th of May.* The act of January 15, 1780, creating the court, did not provide for the transfer to it of the cases pending before the committee. On May 9th the case of Bragg v. The Sloop Dove was brought on appeal before Congress. 1 Jameson, Essays, p. 27. 2131 U. S., App., p. xxv. 8 Ibid. 4 Ibid., pp. xxv-xxvi. It was referred to the new court and on May 24th Congress resolved "that the stile of the Court of Appeals appointed by Congress be the Court of Appeals in cases of capture;' 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;" and "that all matters respecting Appeals in cases of capture now depending before Congress, or the Commissioners of Appeals, 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." Thus the first permanent tribunal of these United States was established. Mr. Davis, whose article entitled The Federal Courts Prior to the Adoption of the Constitution has largely served as the basis for the above remarks, gives the following analysis of the work of the committees and of the court of appeals: Sixty-four cases in all were submitted to the committees of Congress, of which forty-nine were decided by them, four seem to have disappeared, and eleven went over to the Court of Appeals for decision. Fifty-six cases in all, including the eleven which went over, were submitted to the Court of Appeals, and all were disposed of. Appeals were heard from every maritime State except New York. None came from that State; doubtless because its maritime counties were occupied by the enemy from the autumn of 1776 to the end of the war.2 After examining the records of the committee and of the court of appeals, and enumerating the cases in which the court of appeals filed written opinions, Mr. Davis thus closes his account of the cases 3 determined on appeal by the Congress, its permanent committee, and the federal Court of Appeals: They were properly placed in the volumes which contain the commencement of the series of Reports of the Supreme Court of the United States; for the court from which they proceeded was in its day the highest court in the country, and the only appellate tribunal with jurisdiction over the whole United States.1 1131 U. S., App., p. xxvi. 2 Ibid., p. xxxiv. 3 So far as appears by these papers, no written reports in the nature of opinions were made by the committees. The Court of Appeals filed only eight opinions, all of which are reported in 2 Dall. 1-42, under the general title of "Federal Court of Appeals." These opinions were delivered in, (1) The Resolution, p. 1; and (2) S. C., on rehearing, p. 19; date of lodgment not known; final decree January 24, 1782;—(3) The Erstern, p. 33; lodged January 11, 1781; final decree February 5, 1782:-(4) The Gloucester, p. 36; date of lodgment not known; final decree February 5, 1782:-(5) The Squirrel, p. 40, see No. 90 post in table:-(6) The Speedwell, p. 40; lodged June 17, 1783; decided May 24, 1784:—(7) Luke v. Hulbert, p. 41; no papers on file:-(8) The Experiment v. The Chester, p. 41; referred by Congress by the resolution of July 24, 1786, already spoken of; decided May 1, 1787. (Davis' note, p. xxxv.) 4 Ibid., p. xxxv. As to the influence of the Court of Appeals, which went out of existence two days after the meeting of the memorable convention, which, as Professor Jameson says, "provided the United States with a more comprehensive and more effective judiciary," and its importance in the development of a permanent judiciary Professor Jameson writes: However this may be, it can not be doubted that the Court of Appeals, though, as remarked by counsel in Jennings v. Carson, "unpopular in those states which were attached to trial by jury," had an educative influence in bringing the people of the United States to consent to the establishment of such a successor. It could hardly be that one hundred and eighteen cases, though all in one restricted branch of judicature, should be brought by appeal from state courts to a federal tribunal, without familiarizing the public mind with the complete idea of a superior judicature, in federal matters, exercised by federal courts. The Court of Appeals in Cases of Capture may therefore be justly regarded, not simply as the predecessor, but as one of the origins, of the Supreme Court of the United States.1 1 J. Franklin Jameson, Essays, pp. 43-4. XI TEMPORARY JUDICIAL COMMISSIONS Difficulties and disputes that may arise between the subjects of the King and the inhabitants of the Swiss Cantons, shall be settled by the judgment of four men of standing, two of whom shall be named by each party; which four arbitrators shall hear, in an appointed place, the parties or their attorneys; and, if they shall be divided in opinion, there shall be chosen from the neighboring countries an unbiassed man of ability, who shall join with the arbitrators in determining the question. If the matter in dispute is between a subject of the Cantons and Leagues and the King of France, the Cantons will examine the demand, and, if it is well founded, they will present it to the King; but, if the King is not satisfied with it, they may call the King before the arbitrators, who shall be selected from among impartial judges of the countries of Coire or of Valois, and whatever shall be decided by the aforesaid judges, by a judicial or amicable sentence, shall be inviolably observed without any revocation. (Treaty of Perpetual Peace between France and the Swiss Cantons and their Allies, November 29, 1516, M. de Flassan, Histoire Générale et Raisonnée de la Diplomatie Française, Depuis la fondation de la monarchie, jusqu'à la fin du règne de Louis XVI, Vol. I, 1809, pp. 307-308, English translation by John Bassett Moore, History and Digest of the International Arbitrations to which the United States has been a Party, Vol. V, 1898, p. 4830.) Arbitration is a method very reasonable, and very conformable to the law of nature, in determining all differences that do not directly interest the safety of the nation. Though the strict right may be mistaken by the arbitrator, it is still more to be feared that it will be overwhelmed by the fate of arms. The Swiss have had the precaution, in all their alliances among themselves, and even in those they have contracted with the neighbouring powers, to agree before-hand, on the manner in which their disputes were to be submitted to arbitrators, in case they could not adjust them in an amicable manner. This wise precaution has not a little contributed to maintain the Helvetic Republic in that flourishing state which secures its liberty, and renders it respectable throughout Europe. (M. de Vattel, The Law of Nations; or Principles of the Law of Nature: Applied to the Conduct and Affairs of Nations and Sovereigns, 1758, Translated from the French, Vol. I, 1760, pp. 244-245.) XXVIII. Recites a seisure and detainer of English effects in the dominions of the King of Denmark, since the 18th of May, 1652. The States hereby oblige themselves to make the same good to the owners, to pay 5000 pounds English, to answer the expence of a proper enquiry, and 20,000 rixdollars to whom his Highness shall nominate immediately; which are to be deducted out of the gross sum to be awarded, and to enter into bonds of arbitration, in the penalty of 140,000, by proper persons in London, to answer the award. XXX. That four commissioners shall be named on both sides to meet at London, the 19th of May next, who will be authorised to examine the injuries and losses in the year 1611, and after to the 18th of May 1652, as in the East Indies, Greenland, Muscovy, Brasil, &c. That if the said differences be not adjusted in three months, to be computed from the said 18th day of May, in such case the same shall be submitted to the arbitration of the Swiss Cantons, who shall delegate commissioners for that purpose, and shall give judgment within six months; within which time whatever the majority of such commissioners determine shall be binding to both parties, and duly performed. (Treaty of Peace and Union between Oliver Cromwell, as Protector of England, and the United Provinces of the Netherlands, at Westminster, April 5th, 1645, Charles Jenkinson, A Collection of all the Treaties of Peace, Alliance, and Commerce, between Great-Britain and other Powers, from the Treaty signed at Munster in 1648, to the Treaties signed at Paris in 1783, Vol. I, 1785, pp. 47-48.) XXIV. That the debts due to the English from the King, on account of the previous sequestration of their effects, shall be discharged within two years, And the recognizances made to the King or any of his subjects by the English shall be cancelled and rescinded. |