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International
Questions

International
Implications
of the
Confederate
Judiciary

Supreme Court and of inferior courts, the Constitution vests the judiciary with the express power to pass upon and to decide all cases affecting ambassadors and other public ministers, and consuls, all cases of admiralty and maritime jurisdiction, controversies to which the United States shall be a party, controversies between two or more States, and controversies between a State and foreign States, citizens or subjects. It should further be said in this connection that certain judicial questions were deemed to be of such importance that the Supreme Court was vested with original jurisdiction thereof, whereas of other questions the Supreme Court was to exercise appellate jurisdiction. Thus in Article III, Section 2, of the Constitution:

In all cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction.

It will be seen that the first category consists of international questions, cases affecting ambassadors, public ministers and consuls, and suits between. States of the American Union, which, by the 10th Amendment to the Constitution, are regarded as possessing the powers not delegated to the United States in the Constitution. As in the case of the Confederation, the States renounced the right to enter into direct negotiations or to engage in war by two clauses of the 10th section of Article I, providing that "No State shall enter into any Treaty, Alliance, or Confederation;" that "that "no State shall, without the Consent of Congress . . . keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded or in such imminent Danger as will not admit of delay." In other words, in the relations of the States with foreign nations, they invested the United States with their conduct and adjustment. In questions between and among themselves they created another agency of their own, by which and through which these questions should be settled. They showed their belief in the efficacy of judicial settlement by investing their Supreme Court with original jurisdiction in questions concerning ambassadors, ministers, and consuls, in the hope that disputes concerning these matters would be settled by judicial process, just as the disputes between themselves were to be settled by judicial process.

But as the nations of the world had not renounced direct negotiations or a resort to arms, as the States themselves had done in the exercise of their wisdom and discretion, the United States as their agent was invested by the Articles of Confederation with the right to conduct diplomatic negotiations and to resort to war if need be, thus confessing their faith in judicial settlement and manifesting, it would seem, their willingness to have the disputes of the Union, like the disputes of the States in matters of law and equity,

settled by decisions of courts, if the United States, like the States in their wisdom and discretion, should interpose the judicial remedy between the breakdown of diplomacy and the resort to arms. Because of the novelty and of the interest of the provisions of the Confederation in these respects, it is of importance to dwell upon them, since they are as capable of application to the sovereign, free and independent States forming the society of nations as they were to the sovereign, free and independent States forming the Confederation. Because of their retention in the Constitution and of their development into agencies which have justified themselves for a hundred years and more in the settlement of disputes between the States of the Union it is more evident to us today than it was to them that these agencies are likewise applicable to disputes between and among the members of the society of nations.

There is an added interest in such an examination, because the imperfect procedure of the Confederation became the perfected procedure of the Constitution. By the determination of what is just, exactly as set forth in the teachings of Aristotle, the principle of order in that political society which we call the United States can be and will be the principle of order in the political society which we call the society of nations unless the nations, like Saturn, are always to devour their offspring.

of the

State

Courts

It was natural that the framers of the Constitution should confess their Lessons faith in judicial settlement, because there were courts in all the States and a Supreme Court in every State. They had had experience with felonies and piracies committed on the high seas; they had been parties to the wars of Great Britain — indeed, the Seven Years War, called by us the French and Indian War, began in the western world—and they felt the necessity of rules for the capture and disposition of prizes. Vice admiralty courts had been established in the colonies with appeals to Great Britain, and on the eve of the Revolution these admiralty courts had come very prominently to their attention, in that they had recently been invested with the trial of political offenses without the intervention of a jury, as a court of admiralty is a court of civil, not of common, law. They had had experience with disputes not only with the mother country concerning the correct interpretation of their charters; but with other colonies on the same and other matters. The King in Council had been the court of appeal in such cases; the King in Council exercised a large control over the colonies as well as in the settlement of their disputes; and the King in Council is today, through the instrumentality of the judicial committee thereof, the court of appeal from the colonies and of greater Britain. It was therefore natural that, brought together by what they regarded the oppression of the mother country, they should settle these matters in the way with which they were familiar, preferring the old rut to the new road whenever possible.

Trial of Piracies and

Felonies

Therefore, under the Articles of Confederation the Congress, with its powerless president, was substituted for the Council, with its powerful king. In the exercise of this jurisdiction, the Congress endeavored to avail itself of the institutions and agencies of the States, without attempting to create its own as to which it felt a lack of authority. Therefore, in the beginning the Congress contented itself with requesting the States to assume jurisdiction where their agencies could be made use of; but, in the end, Congress felt itself obliged to create an agency of its own, notwithstanding the existence of local institutions. It refrained from doing so until the Articles of Confederation had been adopted by the Congress and approved by the majority of the States, although not by all of them. In the case of disputes between the States, the Congress appears to have followed the practice of the King in Council in accepting jurisdiction before referring the matters to judicial determination by a commission or committee.1

Let us now take up the provisions of the ninth of the Articles of Confederation in each of these matters, and in the order in which they are set forth therein. “The United States, in Congress assembled, shall have the sole and exclusive right and power of . . . appointing courts for the trial of piracies and felonies committed on the high seas." Under this heading, the Congress contented itself with utilizing the machinery of the States. Thus, by an ordinance of April 5, 1781, it was provided that persons charged with such offenses should be " enquired of, tried and adjudged by grand and petit juries, according to the course of the common law, in like manner as if the piracy or felony were committed upon the land, and within some county, district or precinct in one of these United States." 2

Having thus provided for the law, Congress determined the court in which the law should be administered. Thus, "the justices of the supreme or superior courts of judicature, and judge of the Court of Admiralty of the several and respective states, or any two or more of them, are hereby constituted and appointed judges for hearing and trying such offenders." In some of the States there was more than one Admiralty judge. Therefore, the Congress met this contingency by providing that "if there shall be more than one judge of the admiralty in any of the United States, that then, and in such case, the supreme executive power of such State may and shall commissionate one of them exclusively to join in performing the duties required by this ordinance."

1 The following account is based upon an admirable and learned article entitled Federal Courts Prior to the Adoption of the Constitution, by the Honorable J. C. Bancroft Davis, Reporter to the Supreme Court of the United States (131 U. S., App. xix-lxiii), and The Predecessor of the Supreme Court, by Professor J. Franklin Jameson, in the volume entitled Essays in the Constitutional History of the United States in the Formative Period, 1775-1789 (1889), pp. 1-45. Where not directly quoted, the texts of these remarkable essays have been paraphrased. A valuable account of this matter will be found in Chapters iv, v, and vi of Hampton L. Carson's History of the Supreme Court of the United States, Vol. i.

2 Journals of the Continental Congress, Vol. xix, pp. 354-6.

As this ordinance was amended on March 4, 1783,1 in matters of form rather than of substance, it is not necessary to quote it, and, following the example of Judge Davis in this very matter, " I have not thought that any good purpose would be served by hunting up and printing a list of the persons tried under these ordinances.” 2

The important fact for the matter in hand is that the States represented in Congress felt the need of some provision for the trial of piracies and felonies committed on the high seas, and the mere statement of this fact is sufficient as showing that, in their opinion, a judicial body was required for this purpose. As they were to be tried by a law common to the States, with which the States were familiar and which they had administered, the agencies of the States were used.

"The United States in Congress assembled shall have the sole and exclusive right and power of . . . 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 power vested in Congress was exercised not merely, as in the case of piracies and felonies, at the end of the Revolution, but at the very beginning. The State machinery which was first employed was found inadequate, and the Congress established a court of its own, finally known as the Court of Appeals in Cases of Capture. This is the first instance of a federal tribunal created within the United States, The and is considered as the immediate predecessor of the Supreme Court thereof; Federal although, as will be seen later, it shares this exalted honor with the commissions under the ninth article appointed for the trial of controversies between the States. It is therefore necessary to define the nature and to consider the origin and development of this tribunal in some detail.

The necessity of prize procedure was evident from the beginning of the Revolution, indeed before the Declaration of Independence, and the experience had in the matter of prizes forced Congress, somewhat reluctantly, to exercise the power of appointing a court for this purpose before the Articles of Confederation had been adopted by the last of the States on March 1, 1781, thus investing the Congress with the power legally so to do. It was inevitable that enterprising merchantmen of the different States would waylay British commerce upon the high seas, and it was clear to discerning minds that vessels belonging to different States and commanded by citizens thereof would fall out among themselves as to the shares of the prize to which they thought themselves entitled, involve the States in controversies and, by lawless conduct, draw the United States into controversy, perhaps into conflict, with foreign States.

1 Journals of the American Congress from 1774 to 1788 (1823), Vol. iv, p. 170. 2131 U. S., App., p. xiv.

First

The Revolution broke out in Massachusetts. It was therefore in Massachusetts that the first prize court was established. In June, 1775, Elbridge Gerry, then beginning a long and distinguished political career, moved the Provincial Congress of that Colony to encourage the fitting out of armed vessels and to establish a court for the trial and condemnation of prizes. On November 10, 1775, an act was passed which has been stated to be "the first actual avowal of offensive hostilities against the mother country, which is to be found in the annals of the revolution," and which John Adams, then at the bar when not upon the hustings, considered to be one of the "boldest, most dangerous, and most important measures and epochas in the history of the new world, the commencement of an independent national establishment of a new maritime and naval military power." 2 General Washington, then in command of the Continental army in and about Boston, which he had besieged and hemmed in, recognized the importance of this action. He also felt the necessity of uniform regulations and practice to prevent the States from quarreling among themselves, to secure uniformity of decision in matters of prize, which was in the interest alike of the States and of the United States in their relations with foreign countries. Therefore, on November 11, 1775, the day after the passage of the Massachusetts act, he thus wrote to John Hancock, President of the Continental Congress:

Enclosed you have a copy of an act passed this session, by the honorable Council and House of Representatives of this province. It respects such captures as may be made by vessels fitted out by the province, or by individuals thereof. As the armed vessels, fitted out at the Continental expense, do not come under this law, I would have it submitted to the consideration of Congress, to point out a more summary way of proceeding, to determine the property and mode of condemnation of such prizes as have been or hereafter may be made, than is specified in this act.

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. . . .3

Fearing that Congress had not taken action, he again wrote to its president on December 4th of the same year:

It is some time since I recommended to the Congress, that they would institute a court for the trial of prizes made by the Continental armed vessels, which I hope they have ere now taken into their consideration; otherwise I should again take the liberty of urging it in the most pressing

manner.1

And, as showing the importance which the General rightly attached to this

1 James T. Austin, The Life of Elbridge Gerry, 1828, Vol. i, p. 94.

2 Ibid., p. 96.

3 Ford, Writings of George Washington, Vol. iii, p. 213; Sparks, Vol. iii, pp. 154-5. 4 Ford, ibid., p. 257; Sparks, p. 184.

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