The Federal mirror — Concord, N.H., 1796-01-01 00:00:00, page 1

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NEWHAMPSHIRE PKINTFAND PUBLISH£D BY RUSSELL AND M. DAVIS, AT CONCOHDi
THE PRIVATEER MCCLARY.
REPORT :
a ar the OPINIONS of the JUDGES
— IN THE IMPORTANT CAUSE OT T
,Penbalhw et al. against Doane's
ADMINISTRATORS,
Delivered in the SUPREME COURT of the
UNITED STATES,
AT FEBRUARY TERM, 1795,
On an Appeal from the Circuit Court for
the Diftririef Newhampfhire.
% ==—=
Takin by prwfon from tbsborn ofthe j^dgn.
^ In the Supreme Court of the United
0 , States, Feb. Term, 1795.
John Penhallow,and others, against the
Administrators cfElisea Doane.
OflTuefdaj, & 2fb de, of February, 179 ft
The ,^g4ftbw Mirand their O,awm
^ JUDGE PATERSON.
[continued.)
1/rUCH has been said refpeaingthe pow
. ers ot Congress. Onihis part of the
Object the ccunfel on both sides displayed
* great Ingenuity/ and erudition, and that too
in a style of eloquence equal to the magni
tude of the question. The powers of Con
gress were revolutionary in their nature, a
fifing out of events, adequate to every na
tional emergency, arid co-extensive wit^the
object to be attained. Congress was the
general, supreme, and controling council of
the nation, the centre of union, the centrouf
force, the fun of the political system. To de
termine what their powers were, we must en
quire what powers they exercised, Con
gress raised armies, fitted out a navy, and
prescribed rules for their government : Con
gress conduced a# military operations both
,^^^
made treaties : Congress commißioted pri
vateers to cruise against the enemy, directed
what veffds Ihould be liable to capture, and
prescribed rules for the distribution of prizes.
These high a&s of sovereignty were Submit
ted to, acquiescedfa, and approved of, by the
people of Aiperiea. In Congress were vest
ed, because by Congress were exercised with
the approbation of tire people, the rights and
powers of war and peace. In every govern,
ment, whether itconfift of many Rates, or of
few, or whether it be of a federal or consoli
dated nature, there meft be a fopreme power
or will ; the rights of war and peace are
component parts of this f^remacy, and. in
<&ntal thereto is the question of prize.—
The question of prize grows out of the na.
ture of the thing. If it beafked, in whom,
during our revolution war, was lodged, and
by whom was exercised this supreme author-{
ity J Noone will hesitate for an answer. Itl
was lodged in and exercised by Congress; it
was there or no where ; the fates individual,
ly did not, and wh fafery, could not exer
, cife it. Difaßrous would have been the is
sue of the contest, if the Rates, feptrately,
had exercised the powers of war. For in
such case, there would have been as many fu
Dreme wills as there were dates, and as ma
iy wars as there Sere wills. Happily, how.
ever, for America, this was not the case ;
a there was but one war, and orte sovereign
will tocondua it. The danger being im-'
ininent, taw common, it became n^ceffary
.< for the people,or colonies to coalesce and a&
in concert, in orfoto divert or break the vi
olenceof the gathering ft)rm ; they accord
ingty grew into union, and formed one great
political body, of which Congress was the di
reding principle and foul. As to war and
peace, and their necessary incidents, Con
grefs,.by the unanimous voice of the people,
exercised exclusive jurisdiction, and flood,
like Jove, amidst the Deities of old, part
mount, and ffofr.^ The truth isj,h, the
Rates indtoi&tty were not known übrr<.
b°^ cognteed asfoverrigp ^
are thev now-i f ¥ ft^'-^"^^^ und£r
ereign, particularly in ^Mac^pnitb^of the
fattL#hh'h issp^fiff#^
, te^^^ft^Hf^ch^^^
ran Shed peace,of making treaties, and fend
[yoiUMP IV.'
CONCO RD, FRI DA Y, January I, 1796.
from Congers a commission„ to cruise a
gainst the eugmy, he mull be refpbnfible to
them for his condud. If, under color of
such commission, be had violated the law of
nations, Congress would have been called
upon to make atonement and red refs. The
persons whoex^rcife the right er authority of
commissioning privateers, must, of course,
have the right or authority of examining in
to the officer anting under such commission,
and of confirming or annulling his transac
tions and deeds. In the present case, the
caplin of the M'Clary obtained his com
mission from Congress ; under that cornmif
foo he eroded on the high seas, and captur
ed the Lufanna ; and for (he legality of that
Capture he must ultimately be refponfiblc to
Congress, or their constituted authority.l—
-— refuhs from the nature of the thing ;
and, betides, was ,expressly stipulated on the
part of Congress. The authority exercised
by Congress in granting commiffion^to pri
vateers, was approved and ratified by the Sev
eral colonies or hates, because they received
and filled up the commissions and bonds, and
returned the latter to Congrefs-—Newhanip
(hire did so as well as the rest.
Another circumstance, worthy of notice,
is the conduct of Newhampfhire, by her del
egate in Congress, in the cate of the Hoop
Adive. A&s of Congress, 6th March, 1779
——By this decision, Newhampfhire concur
red in binding the other states. Did (he not
also bind herfelf? Before the articles of con
federation were ratified, or even formed, a
league of some kind subsisted among .the
states; and whether that league originated'
in compad, or a fort of tacit eonfent, result
ing from their situation, the exigencies of the
times, and the nature of the warfare, or from
ail combined, is utterly immaterial. The
tftates, wherein Congress, flood on the floor
of equality ; and, until otherwise stipulated,
the majority of them must control. In such
a confederacy, for a Bate to bind others, ^nd
not, in similar cases, be bound herfeif, is a
solecism. Still, however, it is contented,
!thcifl&itepn^ w-^^olt^^
{ grefs sovereign as to war and peace, and their
/incidents, because (he refilled this Supremacy
in the case of the Lufanna. But I am, not
withstanding, of opinion, that Newhamp
fhire was bound, and Congress supreme for
the reasons already assigned, and that the
continued to be bound, because (he continu
ed in the confederacy. As long as (he con
tinued to be one of the federal states, it must
have been on equal terms. If the would not
submit to the exercise of the aft of Sovereign
ty contended for by Congress, and the other
ftates,fhe should have withdrawn herfelf from
the confederacy.
In the resolutions of Congress of the 6th
March, 1779, is contained acourfe of reason
ing, which, in my opinion,is cogent and con
clusive. 5 journ Cong. 86, 87, 88, 89, 90.
" The committee, cenfifting of Mr. Floyd,
!Mr. Ellery, and Mr. Burke, to whom was
referred the report of the committee on ap
peals ot January 19th, 1779, having in pur
suance cf the inftruaions to them given, ex
amined into the cavfes of the refufal of the
fridge of the court of admiralty for the Bate
of Rennfylvani&, to carry into execution the
dscree of appea Is, report, ~
" That on alibeHa the court of admiral
ty for the state of Fennfylvania, in the case
of the (loop Active, tse jirft found , verdict
in the folic wing words, viz." one fourth of
the nett proceeds of the Bopp Active and her
^@^^^&^ three fourths of
the altt proceeds of the said (loop and ^her
cargo to the libellant and the second claim
ant, as per agreement between them ; which
verdid was confirmed by the judge of the
court; and ferdenee paged thereon. From
this sentence or judgment arm verdid, RR
appeal was lodged with the secretary jof Con
gress, and,referred to the committeedppoint
ed by Congress "to hear and-detamine ft
pally upon all appeals brought to Conerety"
from the courts of admiralty of the several
diatesf' '.' .' # ,
- That the f^id committee, after solemn &-„
jgument and full hearing of the parties by:
ftheir advocates, and taking timeio coniider
/thereof, proceeded to the publication oftheir
tafinitive sentence or decree, # tberßby-reverf-
Ungthe sentence of ,lte c^urj of admiralty,
forkingvfa% decree, ,hd pfc^^
to iffuc out of the court of admiralty for the
Bate of Pfofyfania to carrf fills their de,
<ree into execution : *
That the fridge of the court of Admiralty
refufed to carry into execution tie decree of
^^^^^
oftwrgfememmßOT! irmrr,n wrrrrmr^™n«w< arte;
offejegiflarure of the laid ft?.te has Jedar
ed that the finding of a jury shall eflaboffi
the fafc in all trials in the courts of admi
ralty, without re examination or appeal, end
that an appeal is permitted only from the de
cree tf,he judge; i ;„
Tfet havingexamined the laid ad, which
isenched, “ an act for edabliihing a court
qf adniHaky," palledat, fellion whiqh com
men;e4 on the ph of Aaguft, 1778, the
committee find the fallowing words, viz.
'th, finding ofajury GraUeft^blifh the faas 3 !
wi&utre examination or appeal," and in ;
the fe^nth feaion ofthefeme ad thefohow
ing M&^S, viz, “ in all cases of captures an :
appeal from the decree of the judge of admi
ralty ofghis state, shall be allowed to the ;
continental Congress, or luch person or per
sons as they raw from time to time appoint *
for hearing and trying appeals."
That although Congress, by their resolu
tion of November 25.th,%,,, recommended
it to the federal leg&tamis th ered 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 tint
in a cases an appeal (hall be allowed to
Coogtefs or to such person or pedons as they:
(hallappoint for the friaL of appeals :"—^
whereupon, <; j \ :
&tk>fd, That Congress, or such person or
partons as they appoint to hear and deter
mine appeals from the courts of admiralty
have neceffitily the power to examine as well
into deeifions on fads as decifi >ns on the
law, and to decree finally thereon, and that
atfiridingof a jury in any court of admir#}-
t,or court for determining the leg alit, of
captures on tte high seas, can, or ought to
destroy the right of appeal, and the re-txam
infoion of the faffs refetved to CongreA :
m^t no aft of any one state can or ought
Ito&ftroy the right of appeals to Congress
in the sense above declared : ^1
That Congress is by these United States ?
inwfted with the supreme sovereign .power
*'''^rthe'p^ theia^WC
nations is essential to the sovereign fupseme',
grower 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 decideon all matters and questions touch
ing'the law of nations, does reside and is vest
ed in the sovereign supreme power of war
;and peace:
That a control by appeal is neceffarv,ln
order io compel a just and uniform execution
of the law of hations.
That the (aid control must extend as well
over the decisions of juries as judges in the
courts for determining the legality of cap
tures on the sea ; ottferwife the juries would
be possessed of the ultimatefupreme pow<fof
executing the law of nations in all cases of
captures, and might at ^ty time exercise the
fame in such manner as to prevent a possibil
ity of being controled ; a cooftration which
involves many inconveniences and absurdi
ties, destroys ah essential part of the power
of war and peace entrusted to Congress, and
would disable the Congress of the United
States, from giving Atisfaaion to foreign
nations complaining of a violation of neu
trali ies, of treaties or other breaches of the
law of nations, and would enable a jury in
any one fate to involve the United States in
hostilities ; a conftruaion which for these
and many other reasons is inadmissible:
That this power of controling by appeal,
the several admiralty jorifdiaions of the states
has hitherto been exercised by Congress by
the medium of a committee of their own
members : .
Rrffod, That the committee before whom
was determined the appeal from the court of
admiralty for the hate of Penniyluania,in the
fefeaf the Hoop Active, was duly conftituteti
handmathorifedlo determine the fame
, I'he yeas and nays beingtaken, it appears
^hat the fates of Ntwhropfliire, Maffachu
, fem Bay, Rhodeifland, Conneaicut, New
-oet±, Maryland, Virginia, Nbrthcarolina,
Sotytf@oliria,i nd Georgia, voted unanim
fyufy in thoffirmative ; the state of Penn
'fyivania unanimously in the negative; Mr.
•Wilt erfpoon, wfeo was alone from Newjerfey,l
vttedbffieDegatiit^^
The Congress then voted as &,, viz.
"^^^ That the said cqraittee had
competent jurifdiaion to make thereon a fin
al decree, and therefore their decree ought
^berried Into executions .„
' The yeas and nays being taken on this
resolution, it appears, that Newhampffiire,
[number 167] 4
Kfcfldchtifetts Bay, Rhpddfla.^rf€&l
cm',Newport , >Marflaf&-Vbfy^^ - V
Carolina, Scurhcaroiinc, 3rd Georgia, voted'
unanimously in the affiunu ive ; fennfylva
nia unanimfly in;the negative ; kte Wffir
fpoon, who was alone from Ne«j?rfeinted
on this occasion in the affirmative.
Tlx Congress then refolded as folios, vit.
" Rialto, That the gemrafafcnb'y of
the state of Pentafyteahia, be rtqneftet' to ap
point a committee to confer with a cbatot
tee of Congrefcon the fyhja of the pro
ceedings relative to the fluty 6&ive, ^cdthe
objections made to the exccoiion cf the de
cree of the committee on #„raik tothe end
that proper inrafinev may be ado^td for re
moving the laid ohftacles; and that a com
mittee of three, be tiopcinttri t° hold the feid
conferrence with the committee of the gen
oral assembly of Peanfylvahia :
The members chofcn, Mr. P^, Ms.
Burke, and Mr. R.H. Lee."
I fliall close this teudbfdifeourfe fefeh ,b
serving, that it if with diffidence Ih?e ft)
ttired to give an opinion on aquefifcu fcvpv
el and intricate, ^l.Afpe&ing which, men;
eminent for their talent, their li : :trfy at
tainments, and skill in juriforudence, have
been divided in fewtiment. The opinion,
however, which has been given is the result
of conviction ; if wren,, it is the er'roi of
the held, and as foch Will carry its apology
with it.
11. Whether, after the attic l , of roofed^
eration were ratified, the court of appeals h^d
j'&irdictiun of the subject msUci L
However problematical the opinion, "
which has been delivered on the preceding
point; may be, I apprehend, that little doubt
or difficulty fan arise on the prefart que/Ron.
;By the gth irncle of confederation, the U
nited States in Congreft affembkd, are vtft.
led, among other things, with the fete and
I cvclufive power of elbbtifhing rules for de
ciding infill c&fes what captures on land 0/
water;fcll be legal, arid' in what manner
;crizei taken by land or naval forces in the
tro&u ffiß^na^f^ m^p^/eu
Lot appropriated ; of 'granting letters of
Imarque and reprifid in tin^sof pate; ap
pointing courts for the trial of piracies and
felonies committed on rhe high seas, and cf-
Itabiifhing courts far receiving and'determin
ing finally, appeals in all cases of captures.
The court of appeals, in. Septe
mber 1783, decided upon the point of
jurifaiaion either direat, or incident
tally ; farther a full he&irg, they
decreed that the fenfences puffed by
the inferior and superior count of
Newhampthire frould be reversed and
annulled, and the property be reftor-
Cd. This decree being made by &
court, constitutionilly eftab.'ilhed, of
competent authority, and the highest
jurifeidion, is conducive and final. It;
cannot be opened and invefligated $
for neither thia court nor any other;)
can, in a collateral way, reviewcbe •
proceedings of a tribunal, which had
jurifdi&ion of the fubjed matter. The
court of appeals was competent to the
decifioo ; they have adjudicated at
well on the jurildiaion as the meriq
of the cause, and we must suppose 1
that they have aded properly. Thi,
aifo it an sofwer, at to irregularities, if
an, there were, which may have tak
ea place in the proceedings before the
court, of appeals, or in the mode of.
removing the cause before them.—
This court cannot take notice of if
regularities io (be proceeding!, or eM
ror in the decision of the court of ^p
ped, *; The qteftiqq, 41^ £^
ought not igtin be diflurbed. Wr
IHAWhether the diftrid court ^
Newhamplbire had jurifdidioo ; S^}
in other words, whether the libel ex
hibited before that court war the pro
per remedy or mode of carrying iota
execution, either fpecificaHy, or by
way of damages, the decree of &
court oi appeals ?
On this point I entertain no doubt#.
Recurrence to h6b will answer the