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the States. Congress were allowed to issue bills of credit, but they could not make them a legal tender, nor punish the counterfeiter of them. Neither could they bind the States to redeem them, nor raise by their own authority the necessary funds for that purpose. Congress received ambassadors and other public ministers, yet they had no power to extend to them that protection which they receive from the government of every sovereign nation. A man by the name of De Longchamps entered the house of the French minister plenipotentiary in Philadelphia, and there threatened violence to the person of Francis Barbe Marbois, secretary of the French legation, consul general of France, and consul for the state of Pennsylvania; he afterwards assaulted and beat him in the public street. For this offence, he was indicted and tried in the court of Oyer and Terminer of Philadelphia, and punished under its sentence. The case turned chiefly upon the law of nations, with reference to the protection which it secures to foreign ministers. A question was made, whether the authorities of Pennsylvania should not deliver up De Longchamps 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 sub

ject, 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 [*33] owed its entire *efficiency to the co-operation and aid of the State governments. Congress had no power to coerce those 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 em

~bargo 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 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.*
A conclusive proof, however, of the true relation which the
colonies held 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 indivi-
dually, and not against them all, as united or confederated to-
gether. This could scarcely have been so, if they had consid-
ered themselves “a government de facto and de jure,” clothed
with “sovereign authority.” The author, however, is not satis-
fied 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 juris-
diction of congress in prize causes, before the ratification of the
confederation. The result of that examination was, that con-
gress 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 expo-
sition 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 per-
haps some want of candor. The author, as usual, neglects to
cite the judicial *decision to which he alludes, but it must r. 34
be the case of Penhallow and others against Doane's [*34]

* This was done by Pennsylvania.-See 2 Dallas, Col. L. of Penn. 3.

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administrators. (3 Dallas' 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; that as the commission, under which the capture in the case under consideration was made, was issued by congress, it resulted, of necessity, that the validity of all captures made by virtue of that commission should be judged of by congress, or its constituted authority, because “every one must be amenable to the *authority under which her. 35 acts.” It is evident that this opinion, while it sustains [*35] the authority of congress in the particular case, does not prove its general supremacy, nor that the States had surrendered to it any part of their sovereignty and independence. On the contrary, it affirms that the “sovereign and supreme power of war and peace ’’ was assumed by congress, and that the exercise of it became legitimate, only because it was approved and acquiesced in ; and that being thus legitimated, the appellate jurisdiction in prize cases followed as a necessary incident. All the powers, which Patterson contends for as exercised by congress, may well be conceded, without in the slightest degree affecting the question before us; they were as consistent with the character of a federative, as with that of a consolidated government. He does not tell us to what people he alludes, when he says that the powers exercised by congress were approved and ratified by “the people.” He does not, in any part of his opinion, authorize the idea of the author, that “congress possessed, before the confederation, by the consent of the people of the United States, sovereign and supreme powers for national purposes.” On the contrary, as to one of those powers, he holds the opposite language; and therefore it is fair to presume, that he intended to be so understood in regard to all the rest. This is his language: “The authority exercised by congress, in granting commissions to privateers, was approved and ratified by the several colonies or states, because they received and filled up the commissions and bonds, and returned the latter to congress.” This approval and ratification alone rendered, in his opinion, the exercise of this, and other similar powers assumed by congress, legitimate. Judge Iredell, in delivering his opinion, goes much more fully into the examination of the powers of the revolutionary government. He thinks that, as the power of peace and war was entrusted to congress, they held, as a necessary incident, the power to establish prize courts; and that whatever powers they did in fact exercise, were acquiesced in and consented to, and, consequently, legitimated and confirmed. But he leaves no room to doubt as to the source whence this confirmation was derived. After proving that the several colonies were, to all intents and purposes, separate and distinct, and that they did not form “one people” in any sense of the term, he says, “if congress, previous to the articles of confederation, possessed any authority, it was an authority, as I have shown, derived from the people of each province, in the first instance.” “The authority was not possessed by congress, unless given by all the States.” “I conclude, therefore, that every particle of au[*36] thority, which originally resided either in *congress or in any branch of the State governments, was derived from the people who were permanent inhabitants of each province, in the first instance, and afterwards became citizens of each State ; that this authority was conveyed by each body politic separately, and not by all the people in the several provinces or states jointly.” No language could be stronger than this, to disaffirm the author's conclusion, that the powers exercised by congress were exercised “by the consent of the people of the United States.” Certainly, Iredell did not think so. The other two judges, Blair and Cushing, affirm the general propositions upon which Paterson and Iredell sustained the power of congress in the particular case, but lend no support to the idea of any such unity among the people of the several colonies or states, as our author supposes to have existed. Cushing, without formally discussing the question, expressly says that “he has no doubt of the sovereignty of the States.” This decision, then, merely affirms, what no one has ever thought of denying, that the revolutionary government exercised every power which the occasion required; that, among these, the powers of peace and war were most important, because congress, alone, represented all the colonies, and could, alone, express the general will, and wield the general strength; that wherever the powers of peace and war are lodged, belongs also the right to decide all questions touching the laws of nations; that prize causes are of this character; and, finally, that all these powers were not derived from any original grant, but are to be considered as belonging to congress, merely because con

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