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A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates, 1774-1875
Mr Dunlap, [April 22? 1779] A SLOOP named the Active, (1) of which John Underwood was the Master, bound for New York, with a cargo of rum, &c. owned and laden in the island of Jamaica, was in the month Of (2) last met, near the coast of New-Jersey, by Captain Houston, in the brigantine Convention, an armed vessel belonging to the state of Pennsylvania. Four of her mariners, natives and inhabitants of New-England, who had fallen into the enemy's power in the West Indies, were taken on board this vessel for the purpose of navigating her to New-York, had risen some time before on the Master, and shut him, his mate and passengers, fast in the cabbin, by heaping a cable and other incumbrances over the stairway between the deck and the cabbin. This produced a controversy truly hostile, the prisoners below, who possessed the stock of victuals, water and ammunition, firing pistols through such openings as they were able; and the insurgents upon deck, directing two three pound cannon, for which they had a few cartridges, towards the cabbin; but with little effect on either part. Mean while, Capt. Underwood, highly incensed at their attempt to take his vessel from him, entertained the desperate idea of blowing up the quarterdeck with gunpowder, from which, by the prudence and persuasions of his passengers, he was restrained, till a proposal of a less dangerous nature should be essayed. This was the wedging of the rudder. Under this embarrasment, the sloop was disabled, and could not be steered. Whereupon, a truce took place between the contending parties, and an agreement was made, that the rudder should be loosed, till the men upon deck, who dreaded further imprisonment in New-York, might conduct the vessel towards the land, and when near enough, go off in the boat, leaving the rest of the people on board in possession of her. This accommodation being accordingly adjusted, had been so far proceeded on, that the land being near, Captain Underwood was expecting his enemy on deck immediately to quit the vessel, when Captain Houston approached, and put an
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end to the war on board, by seizing the Active and sending her for Philadelphia.
A libel was soon after exhibited in the Court by Admiralty by Capt. Houston, praying that the sloop and cargo might be adjudged to him, his officers, seamen, and the state, as their lawful prize. Against this, Gideon Umpsted [Olmsted] and the three other insurgents, opposed their claim, suing for the prize, as having been subdued and overcome by them. To determine the controversy, a struck jury, on the motion of the claimants, was directed, and the facts tried in the fairest manner; the result of which was a verdict, by which three-quarters of the prize was given to the Convention and the Gerard privateer, her consort, and in sight at the time of the seizure, and one-quarter to the claimants; who, dissatisfied with the decree of the Judge, in concurrence with the verdict, appealed. The Committee of Congress, who sit upon these appeals, on considering the evidence and hearing the advocates of the parties, not only reversed the sentence of the Court below, but made a new adjudication, awarding the whole to Gideon Umpsted, &c. the claimants, and directed the Judge of Admiralty to order their decree to be executed. This he declined to do, alledging that the act of Assembly of this state, under which he proceeded, had forbid all reexamination or appeal from facts found by a jury, and the verdict, of course, standing in full force, he could not execute a judgment contradictory to it.
To understand this, it is proper to take notice, that on the 25th of November, 1775, Congress recommended to the several colonies in union, now states, to erect courts for determining concerning captures at sea; and for this purpose "to provide that all trial in such cases be had by a jury." Accordingly the Legislature of Pennsylvania adopted the mode of proceeding thus sketched out, so that the facts, as at common law, should be heard and established by a jury, but allowed of an appeal on matter of law; in perfect coincidence with the nature of a jury trial, and strictly agreeing with the resolve of Congress of November, 1775, the only one, upon the subject, made by Congress. Now, if any legal controversy was ever suitable for the discussion of twelve men, surely it was this of the sloop Active; a mere question of fact; and the verdict is accordingly confined to fact strictly. If Judge Blackstone's opinion is looked for, he, upon trial by jury, says, "that there is no method of reversing an error in the determination of facts, but by an attaint; or a new trial, to correct the mistakes of a former verdict." 3d Vol. 406. (3) Yet, because the Court of Appeals, inattentive to our act of Assembly, the sole ground of their jurisdiction, have exceeded their proper limits, and judged in a matter which lay not before them, Pennsylvania is urged as a transgressor, to open a way to the operation of this unauthorized decree, and at the same time satisfy the lawful demands of the libellants. But the state, being not in fault, can not, consistently with justice to herself, submit to this unfounded demand. Especially, whilst the states of Massachusetts and New Hampshire, have laws for judging of maritime captures in full force, which permit no appeal to
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Congress, except for prizes taken by the ships belonging to the United States. These states have, in this instance, considered the resolve of Congress in its true light, as advisory, and done as they saw best.
But we are told, that it is proper that Congress should have an appeal on those matters both in law and fact. Perhaps it may be so. It is likely the civilized world would be better satisfied with such a course of proceeding; but then the trial of the original capture should be by witnesses and not by jury, which admits of the full appeal desired. The claims of our own people, however, for shares or distribution, concern not foreigners, and may continue as heretofore; and such is the case of the sloop Active. However, if any new regulations are needed, before the consideration shall be enforced by the accession of the state of Maryland, the only hesitating state in union, let them be devised and recommended to the several communities. These cannot, in the nature of things, look backward, or take in cases, for which the laws in being have provided.
Again, it is alledged for this jurisdiction in Congress, that persons from different states may have controversies upon these points, and that an impartial body, like Congress, will be necessary to decide between them. But this would equally prove the necessity of a Court of Appeals in debt, real actions, and all other civil suits; nay, in criminal too, to secure justice to the people of one state, who may have debates about property, or may be charged with offences in another; an idea not entertained, as yet, as I have heard.
Lastly, it is supposed, that this claim is supported by the law of nations. Not to mention, that when the resolves of November, 1775, were made, no pretentions to national character were yet set up; it is observable, that the band of national union, the Confederation, is not yet agreed to by all, nor binding on any. Besides, a General Court of Appeals in the hands of the Supreme Power of the nation, is not, perhaps, a dictate of the law of nations, but rather the creature of treaties between the Maritime Powers of Europe. At least Blackstone, and Lee in his Treatise upon Captures,(4) say, that the Privy Council in Britain decide ultimately in prize causes, in pursuance of treaties.
After stating this controversy, I shall add, that it is now proposed, in order to support the honour of Congress in this business, that the Treasurer of the United States be authorized to pay the appealants a sum equal to the product of the sloop Active and her cargo, to be charged to the state of Pennsylvania, unless cause be shewn, &c.(5) Against this Pennsylvania will protest; nor will the difficulty end here. Should it be done, the like reimbursement will be due to Capt. Hugh McCulloch of this state, late of this city, for a ship and cargo of sugar, condemned at Boston; the appeal to Congress, which he earnestly sought here and in New-England, being denied him. Others too, in like cases, will ask like recompence; particularly, those whose vessels may hereafter be brought into Philadelphia under seizure, as the offensive act of Assembly continues in force.
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It may be asked, whether this extreme nicety of character is either proper or safe, when assumed by Congress, for the Body, but much more for a Committee. The several states will doubtless have, from time to time, debates with the General Council of the nation. Now, it will be a very dangerous idea, that when Congress contend mistakingly for any point, that for the sake of the dignity of that Supreme Assembly, the state affected must recede from her right. I have hoped that these extravagant positions, which suit admirably well with the superstitious and slavish reverence paid to Princes, would be left with the Europeans. I call for no formal acknowledgments of error; but I should think it no derogation from Congress to forbear proceeding in a wrong path, when convinced of mistake. In the reign of George the First of England, an interested suitor carried an appeal from Ireland to Westminster. The British House of Lords catched at the opportunity of enlarging their authority, and voted that the decree of the Irish Lords, in this case, was void, as made without jurisdiction. Suppose the Commons of Ireland, as they ought, had impeached the Barons of their Exchequer for taking notice of and executing the judgment of a foreign jurisdiction; and that these Judges fixed in premunire,(6) had been subdued, and the decree of the Irish Peers executed, what would have become of British dignity? This ought to have been done. But the corrupt Commons of Ireland were managed, and the national rights sacrificed to the ambition and character of the Nobles of Britain. The Delegates of New-York must recollect the noble stand made by the Judges of the Supreme Court in the late province, in the case of Forsey and Cunningham, when a designing Governor, in a Court of Appeal, attempted to examine the verdict of a jury; a parallel case with the present; and the event of it, to wit, that his masters in England, who doubtless wished that he might succeed, ashamed of the futile claim, ordered it to be dropped. Douglas tells us, (7) that after the King and Council of Britain, determined in Mr. Winthorp's case, who appealed, when no appeal lay, that the judgment from England, declaring against the law of Connecticut for dividing inheritances, was disregarded in America, and the appeal to his Majesty still denied.
I shall leave the subject with mentioning the fatal consequence of the conduct of the British Legislature, in declaring, by act, their power over North-America in all cases whatsoever, consequently in taxing, passed, to save their honour, on repealing the Stamp act. What has become of violated dignity in this case? The people abroad suspect, that all this ado is not, however, made to repair the supposed contempt, nor yet to do justice to Gideon Umpsted and his fellows, but for the benefit of the managers of the puppets. It is thought too much for the same men to sustain the characters of Advocates, Judges, and perhaps_________in this business, An AMERICAN
MS not found; reprinted from the Pennsylvania Packet, or thc General Advertiser, April 22, 1779. Authorship of this article has been attributed to Morris because it appeared over the signature, "An American," the usual pseudonym of Morris.
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1 For a discussion of Morris' own involvement in the case of the Active, see Morris to Joseph Reed, April 9, 1779. For information on Congress' involvement in the case, see Committee on Appeals Decree, December 15, 1778, note.
2 That is, September.
3 Morris was citing the third volume of William Blackstone, Commentaries on the Laws of England, 4 vols. (Oxford: Clarendon Press, 1765-69).
4 Morris was citing Richard Lee, A Treatise of Captures in War (London: W. Sandby, 1759).
5 See JCC, 13:435.
6 "Praemunire" in English law was "an offense against the King and his government." Black's Law Dictionay (St. Paul, Minn.: West Publishing Co., 1979), pp. 1056-57. For its use in English history, see Blackstone, Commentaries, 5:103-17.
7 Morris was citing William Douglass, A Summary, Historical and Political, of the First Planting, Progressive Improvements, and Present State of the British Settlements in North-America, 2 vols. (Boston: Rogers and Fowle, 1749 and 1751).
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