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postmasters; Hazard, in sending it on September 21, wrote an exculpatory letter:

From the time that letter was written to this day, I have received neither letter nor message from the President; and, after being kept in suspence till last Friday, was informed by a friend that Mr. Osgood was nominated for Postmaster General, . . . he was formerly one of the Board of Treasury. He was the most attentive to business of any of the Board, and I believe is a man of integrity. He is, in my opinion, the most suitable for the office of any of my competitors; but I think I may add, without vanity, that he neither is as well qualified for it as myself, nor has an equal claim to it. . . . I never heard Mr. O. mentioned as a competitor, . . . As I wish to have a good opinion of him, I hope he has not solicited for the office, and yet I think it hardly possible he could have got it without. If he has, the President's conduct must be very extraordinary. The three oldest officers (and I say three of the best) are now turned out of the service: Mr. Thomson, the late Secretary; Mr. Hillegas, the late Treasurer; and myself. This is the reward of 14 or 15 years' fidelity and fatigue, and of serving the public even with halters round our necks! for you will remember that civil officers were always excepted, when mercy was offered by the British proclamations. The reason of my removal, which is whispered abroad, is lenity to postmasters, . . . . . Upon review of my conduct in office, I find no reason to accuse myself.32 Osgood, who had been an Antifederalist, assured Hazard that he did not solicit the office, and there is no written request for an office in the Washington Papers. He had been an efficient official in the Treasury, but it is probable that Hazard's retention would have been better for the Postoffice, even though, in the light of Washington's known desire to give those "who had behaved well" in similar lines the preference in the service of the United States which they deserved, it is probable that his removal was in part at least for cause. Osgood resigned in 1791.


Washington sent in the nominations of Hamilton and Knox on September 11, 1789, with the minor appointments for the Treasury. Hamilton was confirmed at once, and Knox the next day. September 26 the Senate received the nominations of Jefferson and Osgood, as well as that of Randolph as attorney general, all of which were immediately approved. There was no record vote even on the Osgood appointment. Hamilton took office on September 11

and Knox on the 12th.

The Judiciary

ADMIRALTY CASES UNDER CONTINENTAL CONGRESS ALTHOUGH it is sometimes, perhaps usually, believed that the judiciary system of the United States was a new creation, this is not entirely correct. There were courts dependent upon the Continental Congress and authorized by the Articles of Confederation, though they formed no independent system of the type of the present national judiciary. There were colonial courts of admiralty that broke down when the Revolution began; while that contest caused a swarm of privateers to bring in prizes for adjudication. The states, even before independence, recognized this problem and all of them except New York formed prize courts during the contest. As all of the New York coast remained in the hands of the British, there was no need of an American court. These state courts, however, did not at first embrace captures made by vessels fitted out at Continental


Washington, who as the commander-in-chief was as early as September 1775 sending out vessels to prey upon the British supply ships enroute to besieged Boston, was probably the first to recognize the necessity of a Continental jurisdiction. He wrote Congress on October 5, 1775: "I shall now beg leave to request the determination of Congress as to the Property and disposal of such Vessels and Cargoes as . . . may fall into our Hands. . . . reserving the Settlement of any Claims of Capture to the decision of the Congress." 1 He followed this on November 8 by saying: "These Accidents and Captures point out the necessity of establishing proper Courts without loss of time for the decision of Property and the legallity of Seizures: otherwise I may be involved in inextricable difficulties." 2 Calling attention to the law the Massachusetts Provincial Congress had enacted to handle prize cases, he wrote on November 11: "As the Armed Vessels fitted out at the Continental expence, do not come under this Law, . . . Should not a Court be established by Author

ity of Congress, to take cognizance of the Prizes made by the Continental Vessels?" 3

Congress, taking the need and this advice into consideration, on November 17 appointed a committee of seven to report on the subject. Franklin, who was a member of the committee, had been at headquarters before Boston in October as one of a congressional committee of visit. The report of the committee of seven was made on November 23 and on the 25th Congress resolved to recommend to all of the states to provide for the jurisdiction in cases concerning captures, with jury trial, and that the original trial in all such cases be in the state courts, but with appeal to Congress. Colonial admiralty cases had not been with jury, as the Declaration of Independence complained. This plan was evidently not entirely satisfactory to the General, who, after receiving the resolutions wrote that they only wanted "a Court Established for Trial to make them complete."


The state governments were, especially later, rather grudging respecting the right of appeal to Congress, granting it usually only in cases where the captures had been by Continental vessels. Also they would refuse to respect a reversal in such appeal. Because of this action in a Pennsylvania instance, which led finally to the celebrated Olmstead case, Congress on March 6, 1779, "Resolved, That Congress, or such person or persons as they appoint to hear and determine appeals from the courts of admiralty, have necessarily the power to examine as well into decisions on facts as decisions on the law, and to decree finally thereon, and that no finding of a jury in any court of admiralty, or court for determining the legality of captures on the high seas can or ought to destroy the right of appeal and the re-examination of the facts reserved to Congress: That no act of any one State can or ought to destroy the right of appeals to Congress in the sense above declared: . . "5 But Congress had no power to compel the states to accept its judgment and this resolve was a brutum fulmen.

The first appeal came before Congress on August 5, 1776, and was referred to a special committee. This practice continued until on January 30, 1777, a standing committee of five on appeals in cases of capture was authorized, with a register, which, with changes of number, personnel, and number essential to the hearing of appeals, continued to serve until January 15, 1780, when a regular court, such as Washington had desired so long before, was finally erected, impelled partly by the complications of the Olmstead case.




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THIS tribunal, called The Court of Appeals in Cases of Capture, consisted of three judges, appointed and commissioned by Congress, two to constitute a sufficient court, with a register appointed by the court. The court was to hear "all appeals from the courts of admiralty in these United States, in cases of capture, according to the usage of nations and not by jury." The court was to sit at Philadelphia and wherever else it deemed convenient, not farther east than Hartford or farther south than Williamsburg. The report for this court, significantly, is in the handwriting of Oliver Ellsworth. There was an attempt to require trial by jury, but it was rejected by 10 to 2. A week later George Wythe of Virginia, William Paca of Maryland, and Titus Hosmer of Connecticut were appointed judges. Wythe declined and was succeeded by Cyrus Griffin of Virginia. Hosmer died and no successor was appointed. Paca and Griffin conducted the court until the former became governor of Maryland at the end of 1782, when George Read of Delaware succeeded him, and John Lowell of Massachusetts was also appointed.

When the war terminated, cases naturally dwindled, and on December 23, 1784, the judges informed Congress that all cases before them had been determined. The court was not abolished, but salaries were cut off on July 1, 1785, and a per diem allowed in case of further business, of which there were several instances, the court not adjourning sine die until May 16, 1787. On July 24, 1789, President Washington wrote to Charles Thomson, secretary of the Old Congress, acknowledging the tender from him of the "Seal of the Admiralty," as well as the "Great Seal of the Federal Union." 6a In all, some 118 cases of capture were heard on appeal by Continental tribunals; and these, especially the later ones by a formal court in banc, could not have been without considerable influence in accustoming the public mind to the idea of a national judiciary, a supreme court, and in bringing realization of the weakness that lay in the fact that the court had no power to enforce its decisions upon the states, from whose courts the appeals had come.

The Articles of Confederation were submitted by Congress to the states on November 17, 1777. Included in the sole and exclusive powers of the United States in Congress assembled was that of "appointing courts for the trial of piracies and felonies committed on the high seas and establishing courts for receiving and determining finally appeals in all cases of capture, provided that no member of congress shall be appointed a judge of any of the said courts."7


the Articles did not go into effect until March 1, 1781, the institution of the Court of Appeals in Cases of Capture anticipated the formal power, but was long delayed after Congress had decided for that power, since the Articles were framed in 1777. Aside from this provision in the Articles, there was another which made Congress the "last resort on appeal in all disputes and differences. . . between two or more states concerning boundary, jurisdiction or any other cause whatever," and also in disputes over land grants by different states, with a complicated detail of the method to be pursued (see p. 536). Under this power, only one case was adjudicated, that between Connecticut and Pennsylvania over the possession of Wyoming Valley; but two other cases, between Massachusetts and New York and South Carolina and Georgia, were started, though later settled outside.


IN THE Convention of 1787 the judiciary department was framed upon a background of the above facts, as well as those of state experiences. The history of the formation in the convention of this very important element of our federal system is brief in comparison with many matters of less consequence. In the Virginia Plan, for which Madison was undoubtedly chiefly responsible, was included as the ninth resolution the following:

Resd. that a National Judiciary be established to consist of one or more supreme tribunals, and of inferior tribunals to be chosen by the National Legislature, to hold their offices during good behaviour; and to receive punctually at stated times fixed compensation for their services, in which no increase or diminution shall be made so as to affect the persons actually in office at the time of such increase or diminution. that the jurisdiction of the inferior tribunals shall be to hear & determine in the first instance, and of the supreme tribunal to hear and determine in the dernier resort, all piracies & felonies on the high seas, captures from an enemy; cases in which foreigners or citizens of other States applying to such jurisdictions may be interested, or which respect the collection of the National revenue; impeachments of any National officers, and questions which may involve the national peace and harmony."

It is to be noticed that the original as well as the appellate jurisdiction was to be in national courts, and that the jurisdiction was broader than under the Confederation, but less broad than as finally given, except as the last clause gave vaguely a wide discretion.

The resolution as reported to the convention by the committee of the whole on June 13, and as committed, further simplified, to the Committee of Detail on July 23 made the inferior tribunals optional with Congress, placed the appointments in the Senate, and reduced the

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