2. "That all prosecutions shall be commenced in the court of that colony in which the capture shall be made, but if no such court be at that time erected in the said colony, or if the capture be made upon the sea, then the prosecution shall be in the court of such colony as the captor may find most convenient, provided that nothing contained in the resolution shall be construed so as to enable the captor to remove his prize from any colony competent to determine concerning the seizure, after he shall have carried the vessel so seized within any harbor of the same. 3. "That in all cases an appeal shall be allowed to the Congress, or to such person or persons as they shall appoint for the trial of appeals, provided the appeal be lodged 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 death of the secretary during the recess of Congress, then the said appeal to be lodged in Congress within twenty days after the meeting thereof."" A copy of these resolutions was sent by Congress to General Washington, who evidently had not received it prior to the 4th of December following, for on that day he again wrote the president of that body: "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." This letter was followed by another from Washington to the President of Congress on the 14th of the same month, in which he acknowledges receipt of the resolutions of November 25, as follows: "I received your favor of the 2d instant, with the several resolves of Congress therein enclosed. The resolves relative to captures made by Continental armed vessels only want a court established for trial, to make 3 Journal of Congress, 259, 260. them complete. This, I hope, will be soon done, as I have taken the liberty to urge it often to the Congress.'" The resolutions of Congress were not in compliance with Washington's suggestion. He had asked that a court be established for the trial of prizes made "by Continental armed vessels." Instead of creating such a court, Congress recommended that the legislatures of the respective colonies create courts for that purpose, or, confer such jurisdiction on existing colonial courts, and provided that in all cases an appeal should be allowed to Congress, or to such person or persons as Congress should appoint for the trial of appeals. This was not what the Commander-in-Chief had asked of Congress, but it was all that Congress, at that time, seemed willing to do. Washington's disappointment at the conduct of Congress in not complying with his recommendation that a court of admiralty be established is apparent from the following letter written December 26, 1775, to Richard Henry Lee: "I need not repeat them, but 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." Under the resolution of Congress of November 25, 1775, an appeal could be had from the colonial trial courts, to Congress or to such person or persons, as Congress might appoint, to hear and determine such appeals. As a rule, Congress did not hear the appeals, but as each case was appealed, a special committee was appointed to hear it. Whether it was because this practice was unsatisfactory, or for other reasons, Congress appointed a committee to review the resolutions which had been passed 5 Sparks' Washington, vol. 3, 196. • Sparks' Washington, vol. 3, 217. on the subject of captures at sea, and report their con clusions thereon." Courts of Standing or Permanent Committees 1777-1780. -As a result of the report of the committee, Congress, on January 20, 1777, passed a resolution providing for the appointment of a standing or permanent committee of five members, which was afterwards increased to eight, to hear and determine appeals; and the practice of appointing a special committee to hear each case as it was appealed was superseded after it had been in force for two years, by the permanent committee for that purpose.8 This committee continued for only five months, for it was determined on May 8, 1777, that it was too numerous, and that a new committee of five be appointed, and that they, or any three of them, might hear and determine appeals brought to Congress.1 10 The tribunal or court known as the Standing or Permanent Committee for the Trial of Appeals, was in force from 1777 to 1780, when it was succeeded by the Court of Appeals in Cases of Capture. The Court of Appeals in Cases of Capture, 1780.On Saturday, January 15, 1780, it was resolved by Congress that a court be appointed 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, two of whom could hold court for the dispatch 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; that the said judges hold their first session as soon as may be at Philadelphia, afterwards at such times and places as they shall judge most conducive to the public good, This committee consisted of George Wythe, John Rutledge, Rob ert Treat Paine, and Samuel Huntington. 8 The original committee consisted of Mr. Wilson, Mr. Sergeant, Mr. Ellery, Mr. Chase, and Mr. Sherman. Subsequently, Mr. John Adams, Mr. Read and Mr. Burke were added to the committee by resolution. • The committee of May 8 consisted of Mr. Wilson and Mr. Sergeant, of the former committee, Mr. Duane, Mr. John Adams and Mr. Burke. 10 3 Journal of Congress, 175. so that they do not at any time sit farther eastward than Hartford in Connecticut, or southward than Willamsburg in Virginia; that the salary of the said judges be fixed on the first Monday in next July, and that in the interim the sum of $12,000 be advanced to each of them; that Saturday next be assigned for electing the judges of the Court of Appeals, and that in the meanwhile nominations be made.11 On the following Saturday, January 22, 1780, Congress elected the judges of the Court of Appeals. The vote was by ballot, and resulted in the election of Mr. Wythe, Mr. Paca and Mr. Hosmer; Mr. Hosmer and Mr. Paca having an equal number of votes.12 Four months after, on Wednesday, May 24, 1780, Congress resolved that the "stile of the Court of Appeals appointed by Congress" be "The Court of Appeals in Cases of Capture," and it was further "Resolved, That appeals from the courts of admiralty in the respective States, be, as heretofore, demanded within five days after sentence, and in future such appeals be lodged with the register of the Court of Appeals in Cases of Capture within forty days thereafter, provided the party appealing shall give security to prosecute such appeal to effect. "Resolved, That the matters respecting appeals in cases of capture, now depending before Congress, or the commission of appeals, consisting of members of Congress, be referred to the newly erected Court of Appeals, to be there adjudged and decreed 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. "18 A court possessing final authority throughout the United States had at last been established. Six years after Congress had been repeatedly urged by Washington to create such a tribunal, it had been done. It is difficult at this distant day to understand why there should have been such delay in a matter of so great importance, but it 11 6 Journals of Congress, 14. must be remembered that Congress was constantly occupied with all the momentous affairs of the government. There was no chief executive to advise and direct Congress what to do; there was no division of Congress into a Senate and House of Representatives, so that each body could originate legislation and hasten its passage. The Army was in the field, and the whole responsibility of maintaining it and conducting the Revolution, fell upon Congress. Delay in some matters, important though they were, may be excused under such trying circumstances and in the midst of such great responsibilities. The Court of Appeals was in existence for a period of six years, during which time it disposed of fifty-six cases, forty-five of which were appealed to it directly, and eleven were transferred from the standing committees of Congress. The business of the court largely decreased after the close of the war and at the conclusion of the term of court held in Philadelphia in May, 1784, the judges wrote the President of Congress that "all the causes which have been brought before the court, were determined, and although some motions had been made for rehearings, they had not been admitted; since that time no further application had been made by the court to us. Of this we further think it is our duty to inform Congress that they may make such order as they may think proper." 9714 Congress, on February 9, 1786, having resolved that "as the war was at an end, and the business of the court in a great measure done away, attention to the interests of their constituents made it necessary that the salaries of the said judges should cease. It appears, however, that this resolution was premature, for on June 27 following, on report of a committee,15 it was resolved that the judges of the Court of Appeals be authorized and directed in every cause which has been or may hereafter be brought before them, to sustain appeals and grant rehearings, or new trials of the same, wherever justice and right may, in their opinion, require it, and 14 11 Journals of Congress, 25. 15 The committee consisted of Mr. Pinckney, Mr. King, Mr. Johnson, Mr. Grayson and Mr. Hindman. |