A question was made,whether the authorities of Pennsylvania should not deliver up De Langechamps to the French Government,to be dealt with at their pleasure.It does not appear that the Federal Government was considered to possess any power over the subject,or that it was deemed proper to invoke its counsel or authority in any form.This case occurred in 1784,after the adoption of the Articles of Confederation;but if the powers of the Federal Government were less under those articles than before,it only proves that,however great its previous powers may have been,they were held at the will of the States,and were actually recalled by the Articles of Confederation.Thus it appears that,in the important functions of raising an army,of providing a public revenue,of paying public debts,and giving security to the persons of foreign ministers,the boasted "sovereignty"
of the Federal Government was merely nominal,and owed its entire efficiency to the co-operation and aid of the State governments.Congress had no power to coerce these governments;nor could it exercise any direct authority over their individual citizens.
Although the powers actually assumed and exercised by Congress were certainly very great,they were not always acquiesced in,or allowed,by the States.Thus,the power to lay an embargo was earnestly desired by them,but was denied by the States.And in order the more clearly to indicate that many of their powers were exercised merely by sufferance,and at the same time to lend a sanction to their authority so far as they chose to allow it,it was deemed necessary,by at least one of the States,to pass laws indemnifying those who might act in obedience to the resolutions of that body.8
A conclusive proof,however,of the true relation which the colonies hold to the revolutionary government,even in the opinion of Congress itself,is furnished by their own journals.In June,1776,that body recommended the passing of laws for the punishment of treason;and they declare that the crime shall be considered as committed against the colonies individually,and not against them all,as united or confederated together.This could scarcely have been so,if they had considered themselves "a government de facto and de jure,"clothed with "sovereign authority."The author,however,is not satisfied to rest his opinion upon historical facts;he seeks also to fortify himself by a judicial decision.He informs us that,"soon after the organization of the present government,the question [of the powers of the Continental Congress]was most elaborately discussed before the Supreme Court of the United States,in a case calling for an exposition of the appellate jurisdiction of Congress in prize causes,before the ratification of the Confederation.The result of that examination was,that Congress,before the Confederation,possessed,by the consent of the people of the United States,sovereign and supreme powers for national purposes;and,among others,the supreme powers of peace and war,and,as an incident,the right of entertaining appeals in the last resort,in prize causes,even in opposition to State legislation.And that the actual powers exercised by Congress,in respect to national objects,furnished the best exposition of its constitutional authority,since they emanated from the people,and were acquiesced in by the people."
There is in this passage great want of accuracy,and perhaps some want of candor.The author,as usual,neglects to cite the judicial decision to which he alludes,but it must be the case of Penhallow and others against Doane's administrators.(3Dallas'Reports,54.)Congress,in November,1775,passed a resolution,recommending to the several colonies to establish prize courts,with a right of appeal from their decisions to Congress.
In 1776,New Hampshire accordingly passed a law upon the subject,by which an appeal to Congress was allowed in cases of capture by vessels in the service of the united colonies;but where the capture was made by "a vessel in the service of the united colonies and of any particular colony or person together,"the appeal was allowed to the Superior Court of New Hampshire.
The brigantine Susanna was captured by a vessel owned and commanded by citizens of New Hampshire,and was duly condemned as prize by her own Court of Admiralty.An appeal was prayed to Congress and denied;and thereupon an appeal to the Superior Court of New Hampshire was prayed and allowed.
From the decision of this Court an appeal was taken to Congress,in the mode prescribed by their resolution,and the case was disposed of by the Court of Appeals,appointed by Congress to take cognizance of such cases.
After the adoption of the present Constitution and the organization of the judiciary system under it,a libel was filed in the District Court of New Hampshire,to carry into effect the sentence of the Court of Appeals above mentioned.The cause being legally transferred to the Circuit Court,was decided there,and an appeal allowed to the Supreme Court.That Court,in its decision,sustains the jurisdiction of the Court of Appeals established by Congress.Mr.Justice Patterson's opinion is founded mainly upon these grounds:That the powers actually exercised by Congress ought to be considered as legitimate,because they were such as the occasion absolutely required,and were approved and acquiesced in by "the people";that the authority ultimately and finally to decide on all matters and questions touching the law of nations,does reside and is vested in the sovereign,supreme power of war and peace;that this power was lodged in the Continental Congress by the consent and acquiescence of "the people";that the legality of all captures on the high seas must be determined by the law of nations;that New Hampshire had committed herself upon this subject,by voting in favor of the exercise of the same power by Congress in the case of the brig Active;
