1764, the King in privy council approved the report of a committee of council for plantation affairs, relative to the disputes that had for some years subsisted between the provinces of New Hampshire and New York, concerning the boundary line between those provinces, and ordered and declared, the western banks of the river Connecticut to be the boundary line.*

A general superintending power by way of appeal was exercised by the King in council from the decisions of the colonial tribunals. For example, in year 1685, an appeal of William Vaughan, from a verdict and judgment against him in the Courts of New Hampshire, at the suit of Robert Mason, Esq. as proprietor of that province, for certain lands and tenements in Portsmouth in the said province, was heard by counsel before the committee for trade and plantations of the privy council, who reported that the verdict and judgment should be affirmed, and they were ratified and confirmed accordingly by the King in council.† And such appeals from the highest Court in Pennsylvania, and in the other colonies to the King in council were common before the revolution.‡

3 Belknap's Hist. N. Hampshire, 296. Appendix, No. XI.

† Ibid. 345. Appendix, XLI.

It would seem, however, that in some instances the appeal was first to the Governor and council, and from thence to the King in council. See the case of Gordon v. Lowther, 2 Ld. Ray. 1447, a case of that kind, brought from the Island of Barbadoes. In the same case it is stated that the rule was, that the party appealing must procure the proceedings to be transmitted, and proceed, within a year after the appeal allowed in the plantations: and the appeal in that case was dismissed under this rule. In Pennsylvania, (which was a proprietary government) no such appellate jurisdiction was entertained by the Governor and council before the revolution.

II. Of the period during which the national authority was exercised by Congress.

As a necessary consequence of the revolution, the judicial power of the crown in the then colonies, as well as all its other authority, ceased; and from the commencement of the war in April 1775, Congress with the approbation of the colonies and people, and from the emergency of the crisis, exercised the sovereign authority of the country, so far as related to war and peace. They raised armies and navies, and directed military operations, emitted bills of credit, made treaties, and received and sent ambassadors; commissioned privateers, prescribed the objects of capture, and made rules for the distribution of prizes. As the legality of all captures on the high seas depends on the law of nations, and a just and uniform execution of that law is essential to the sovereign power, which might be implicated with foreign nations in the results of its administration, Congress had for this purpose a right of maintaining a control by appeal, in cases of capture, as well over the decisions of juries as of Judges. When Congress, therefore, in November 1775, first authorised the capture of English vessels of war, and of other vessels employed in the service and supply of the English armies, by vessels to be commissioned by Congress or their authority, they recommended to the several Legislatures of the united colonies, as soon as possible to erect Courts of justice, or give jurisdiction to

* Penhallow v. Doane's adms. 3 Dall. 80.

those in being, to determine concerning such captures; the trials thereof to be by a jury, under such regulations as to the respective Legislatures should seem expedient; but that in all cases an appeal should be allowed to Congress, or such person or persons as they should appoint for the trial of appeals, under certain provisos as to the time of demanding, and lodging the appeal, and giving security.*

The application to Congress on appeal was by petition, which, at first, was usually referred to a special committee appointed in each case, consisting of five members. But on the 30th January, 1777, Congress resolved to appoint a standing committee to consist of five members, to hear and determine these appeals, and to them the petitions were referred when presented † Three members were added in May, but in October following the number was restored to five; they, or any three, to hear and determine.

The resolution of Congress of November 1775, above mentioned, was complied with by several States; some allowing appeals to Congress on a larger, some on a more contracted scale. In some instances the acts passed by the States on the subject gave rise to questions concerning the respective authority of Congress, and of the States, which oc

* 1 Journ. Congress, 259, 260. The State Courts of Admiralty also exercised jurisdiction in instance causes. See Hopkinson's reports.

† Journ Congress. The first standing committee of appeals, which was appointed on the 30th January, 1777, consisted of Mr. Wilson, Mr. Sergeant, Mr. Ellery, Mr. Chase, aud Mr. Sherman.

casioned much debate and difference of opinion in Congress, and elsewhere; and some of these questions were not finally determined till after the adoption of the present Constitution. In July 1776, the Legislature of the State of New Hampshire passed an act which allowed an appeal to Congress, or persons appointed by them, only when the vessel capturing was fitted out at the charge of the united colonies; in other cases the appeal was to be to the Supreme Court of judicature of that State.* A citizen of New Hampshire, acting under the commission of Congress, in a vessel owned by citizens of New Hampshire, in October 1777, captured a vessel as prize on the high seas. Being claimed by citizens of Massachusetts, a trial by jury took place in the New Hampshire Court maritime, erected by the act of that State, of July 1776, and the jury found a verdict for the captors. The claimants prayed an appeal to Congress, but the Court refused it, because it was contrary to the law of the State. The claimants then appealed to the superior Court and a jury; there also a verdict was found for the captors. The claimants then prayed an appeal to Congress, and petitioned Congress, who referred it to the committee of appeals, and that committee decided in June, 1779, that they had jurisdiction. After the confederation, the Court of appeals reversed the decrees passed by the Courts

* In November, 1779, the Legislature of New Hampshire extended the license of appeal to Congress to every case wherein the subject of any reign nation in amity with the United States should be interested in the dispute, and allowed it no further.

of New Hampshire, and in the year 1795, the Supreme Court of the United States, on appeal from the Circuit Court of New Hampshire, carried into effect the decree of the Court of appeals.*

In the case of the sloop Active, the jurisdiction of Congress was also disputed. In that case, on a libel in the Court of Admiralty of Pennsylvania, the jury found a verdict distributing the proceeds of a prize among certain claimants. From this sentence, or judgment, an appeal was taken to Congress, and the committee of appeals, in March, 1779, reversed the decree, and ordered process to issue out of the Court of Admiralty of Pennsylvania, to carry the decree of reversal into effect. The Judge of the Court of Admiralty refused to conform to this order, alleging as a reason the act of the Legislature of Pennsylvania, declaring that the finding of a jury should establish the facts in all trials in the Court of Admiralty, without re-examination or appeal; and that an appeal was permitted only from the decree of a Judge. Congress, however, resolved, in March, 1779, that their committee had jurisdiction, and made ineffectual efforts to induce the assembly of Pennsylvania to confer with them on the subject. After the adoption of the present Constitution, the decree of the committee of appeals was enforced in the Courts of the United States.†

• Penhallow v. Doane's adms. 3 Dall. 80.

Bee United States v Peters, 5 Cranch. 115. Ross v. Rittenhouse, 2 Dall: 160. United States v. Bright and others, 3 Hall's Law Journ. 225.

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