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that the said court assemble at the city of New York, on the first Monday of November next, for the dispatch of such business as may then and there be before them; and that the secretary of Congress take order for publishing those resolutions for the information of all persons concerned. 16

The court held three sessions, the first and second in the city of New York, and the third in the city of Philadelphia. On May 8, 1787, it adjourned without date, and the first court, so named and styled, possessing national jurisdiction in the United States, ceased to exist.

Subsequently, an act of Congress, passed on May 8, 1792, provided that all the records and proceedings of the Court of Appeals should be deposited in the office of the Supreme Court of the United States, where they are still kept.

The formation of a new government in the British colonies in America is ordinarily considered to date from the Declaration of Independence. Of that important event a distinguished writer on American constitutional law has said :

“The Declaration of Independence in July, 1776, operated as a permanent transfer from the Crown of Eng. land of the high national powers lately exercised by Congress, and was naturally followed by the establishment of a regular government, amongst whose different departments those powers might be distributed. Accordingly, the day after that on which the Declaration of Independence was resolved on by Congress, in a committee of the Whole (June 11, 1776), a proposition was made and a committee appointed to prepare and digest the form of a confederation to be entered into between the col


Strong evidence of the hope and faith which the colonists had of their ultimate success in the struggle with Great Britain, is found in the fact that on the day following the adoption of the Declaration of Independence, Congress passed a resolutions providing for the appointment of a committeel' to prepare articles of confederation, for the more perfect government and unification of the States, and which it was hoped they would adopt.

16 11 Journals of Congress, 87, 88. 17 Sergeant, Constitutional Law, 13. 18 Journal of Congress, 207.

This was the most important resolution submitted by either Colonial Congress, except the one which provided for the appointment of a committee to draft a Declaration of Independence and separation of the American colonies from England.

The Articles of Confederation prepared by the committee were adopted by Congress with slight verbal alterations on November 17, 1777.20

The articles were not to be binding until they were ratified by the legislature of each State. The year after their adoption by Congress, eleven of the thirteen States ratified them, and another in the following year; but it was not until March 1, 1781, that the ratification of the last State was secured. The announcement of the final ratification was made by Congress on March 17, 1781, on which day the government under the Articles of Confederation and perpetual union between the States began. While the judicial authority conferred upon Congress by the Articles of Confederation was much greater and more clearly defined than it had been prior to their adoption, it was still limited, and as a consequence only an imperfect judicial system was established.

The ninth article of the Articles of Confederation provided that the United States in Congress Assembled should have the sole and exclusive right:

First. “Of establishing rules for deciding in all cases, what captures on land and water should be legal, and in what manner prizes taken by land or naval forces in the service of the United States should be divided or appropriated.

Second. “Of appointing courts for the trial of piracies and felonies committed on high seas.

Third. Of establishing courts for receiving and determining finally appeals in all causes of capture.”

19 The committee consisted of Mr. Bartlett, Mr. S. Adams, Mr. Hopkins, Mr. Sherman, Mr. R. R. Livingston, Mr. Dickinson, Mr. McKean, Mr. Stone, Mr. Nelson, Mr. Hewes, Mr. E. Rutledge and Mr. Gwinnett.

20 Journal of Congress, 502.

The same article provided :

First. "The United States in Congress Assembled, shall also be the last resort on appeal in all disputes and differences subsisting, or that may hereafter arise, between two or more States concerning boundary, jurisdiction or any other cause whatever," and the manner in which this authority should be exercised was most minutely provided for.

Second. “Of determining all controversies concerning the private right of soil claimed under different grants of two or more States."

Courts under the Articles of Confederation 1781-1789.Acting under the authority conferred upon it by the ninth article of the Articles of Confederation, Congress, on April 5, 1781, ordained that the justices of the Supreme or Superior Court of Adjudicature, and the judge of the court of admiralty, of the several and respective States, or any two or more of whom, are constituted and appointed judges for the trial of persons committing piracy or felony upon the high seas; and that such crimes should be inquired into, tried and judged by grand and petit juries according to the course of the common law.21

The provision that piracies and felonies on the high seas should be inquired into by a grand jury, was the first recognition of the functions of the grand jury by Congress in the administration of justice through national tribunals.

The Court of Appeals established by the act of 1780 was continued under the Articles of Confederation, although the construction placed upon the articles by some of the State courts limited the judicial power of Congress in certain cases.2

Acting under the authority conferred upon it by the Articles of Confederation to decide controversies between different States concerning boundaries, Congress, on August 28, 1782, appointed a commission23 which should sit with all the powers of a court to hear and determine a controversy which had long existed between the State of Pennsylvania and the State of Connecticut


21 7 Journal of Congress, 77. 22 Sergeant's Constitutional Law, 14. 23 8 Journal of Congress, 84.

respecting certain lands. The court met at Trenton, New Jersey, on November 12, 1782, and continued to hold daily sessions until December 30, of the same year, when it pronounced the following judgment:

"This cause has been well argued by the learned counsel on both sides. The court are now to pronounce their sentence of judgment. We are unanimously of opinion that the State of Connecticut has no rights to the lands in controversy.''24

The judicial authority of Congress was also invoked to settle controversies between other States, but the differences were finally adjusted by the States themselves, without the aid of the court.

The term "National or Federal Judiciary," ordinarily is understood to mean the judiciary established by the Federal Constitution and the laws of Congress, but a study of the subject shows that for a considerable period of time before the adoption of our Constitution, Congress exercised the function of a national court of final jurisdiction in certain matters, through the agency of committees, and that subsequently a Court of Appeals was created, with adequate jurisdiction and final power in special cases, and that under the Articles of Confederation, provisions were made for a more enlarged judicial system, which continued until it was superseded by the system established under the judiciary clause of the Federal Constitution.

24 The members of the commission were William Whipple, of New Jersey; Welcome Arnold, of Rhode Island; David Brearley and William C. Houston, of New Jersey, and Cyrus Griffin, of Virginia.




The Convention having vested the legislative power of the Government in the first article, and the executive power in the second, vested the judicial power in the third article.

The establishment of the judicial system of the United States was perhaps the most successful work of the Convention. No part of the Constitution has reflected greater credit or wisdom upon its framers than this article.

It consists of three sections and these will be considered in their order.

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time, ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuation in Office.

That the sentiment of the Convention which framed the Constitution favored the establishment of a federal judiciary which should be one of the coordinate branches of the Government, and endowed with full judicial power, was indicated by the fact that each plan of a Constitution submitted to the Convention provided for the creation of a supreme and other judicial tribunals.

On the question of creating a supreme judicial tribunal, there seems to have been no difference of opinion among the members of the Convention. We have already stated that the want of a separate and independent judiciary was one of the great weaknesses of the Confederation. Hamilton said, "The want of a judiciary power was a circumstance which crowned the defects of the Confedera

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