Motion on Court of Appeals
MS (NA: PCC, No. 36, I, 137–40). Docketed, “Motion of Mr Madison April 12. 1781 Referred to Mr Varnum Mr Bee Mr McKean.”
[12 April 1781]
That the Judges of appeal in cases of Capture1 hold their sessions at Williamsburg in the state of Virginia on the first monday of November in each year—at Philadelphia on the first monday of april—at Hartford in Connecticut Boston M. Providence R.I.2 on the first monday of June—and at the place where Congress shall be sitting on the first monday of September.3
That when an appeal is prayed in any case and granted[,] the states order their respective Judges that full and fair Copies in one record be sent up to the Court of appeals.
That the appellant in every cause pay to the register of appeals thirty specie dollars or the real equivalent before the cause shall be argued—the said monies to be deducted from the salary of the said register.4
That the Judges have a discretionary power of determining the costs—but that only one advocate’s fee be charged upon the party who are to pay the costs at no more than thirty specie dollars for each cause or its real equivalent.
That the states be called upon to order their respective marshals to carry into immediate execution the decrees of Judgments of the said Court under the penalty of dismission by the said Court of appeals and action for damages in the Courts of common law at the suit of the party injured.
That the Judges of appeal in cases of capture be also the Judges for the trial of piraces and felonies committed on the high seas whose commissions shall be during good behavior.5
That their sessions be held at the places above-mentioned and immediately upon the adjournment of the Court of appeals. That the states be called upon to order their sheriffs and Gaolers to attend the said Court when necessary: and to remove all persons charged with piracy or felony on the high seas to the Gaol most convenient for Trial.
That the states of R. I. M.6 Connecticut Pennsylvania and Virginia be requested to furnish proper apartments for holding the said Courts in their respective dominions.
That the Judges be authorized to appoint a person in each of the places above-7mentioned to act as register and clerk of the said Courts, whose salary shall be 5008 specie dollars pr. annum or the real equivalent to be paid yearly9 from the continental Treasury, the said officer paying all the incidental charges of the Court such as wood, paper, ink &c. and also an under officer to keep the peace and attend the Court while sitting.
That the Judges be complimented with a black robe by the united states as proper to appear in during the sitting of the Courts.
That as the expences of such extensive duty in traveling, Books and other matters will be great
That the said Judges be allowed each five thousand dollars pr. annum or the real equivalent to be paid by the continental Treasurer in quarterly payments.
That the said Judges or their registers be allowed or entitled to no perquisites of office whatever.10
1. The ninth article of the Articles of Confederation, ratified on 1 March 1781, confirmed the power of Congress, exercised on 15 January 1780, to establish a court for the trial of all appeals “from the courts of admiralty in these United States, in cases of capture” (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XVI, 61). In accordance also with the ninth article, which granted to Congress “the sole and exclusive right and power … of appointing courts for the trial of piracies and felonies committed on the high seas,” an ordinance on 5 April 1781 conferred original jurisdiction in cases of this nature upon a tribunal in each state comprising the justices of the supreme court thereof, sitting with a judge of that state’s court of admiralty (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XIX, 355). See n. 5, below.
2. Above “Hartford” JM wrote “Boston,” and above “Boston” he wrote “Providence.” Above “Connecticut” and on a line with “Boston” appears “R.I.,” and above “R.I.” on a line with “Providence,” JM wrote “M.” Clearly he reversed the proper order of the “R.I.” and the “M.”
3. JM put an asterisk here to signify that the following three paragraphs, which are at the end of the manuscript, were to be inserted at this point.
4. Because of the rearrangement mentioned in n. 3, and an afterthought leading him in the ninth paragraph of his proposal to specify $500 as the register’s salary, JM here deleted “from the salary of 800 dollars above-mentioned.”
5. Although the sixth paragraph of JM’s proposals is ambiguous, he apparently intended to supplement the ordinance of 5 April by providing that appeals might be taken from the decisions of the courts established by that ordinance to the court created by the ordinance of 15 January 1780 (n. 1, above). On the other hand, this paragraph may be interpreted to mean that the Court of Appeals in Cases of Capture was to have original rather than appellate jurisdiction over cases involving felonies and piracies on the high seas. If this was JM’s intent—and it seems very unlikely that it was—he viewed his proposal as superseding the ordinance of 5 April 1781 and as another move toward having the central government occupy the maximum domain of authority allotted to it in the Articles of Confederation. At least in framing the fifth paragraph, conferring upon the judges the power to dismiss recalcitrant state marshals, he must have had this broad “nationalizing” purpose in mind.
6. “M.” and “R.I.” above it are interlined in the manuscript above “Connecticut.”
7. JM inadvertently wrote “above” twice in succession.
8. JM originally wrote “800.”
9. JM originally wrote “quarterly.”
10. Congress referred JM’s proposals to a committee whose members were James Mitchell Varnum (R.I.), Thomas Bee (S.C.), and Thomas McKean (Del.). The ordinance submitted to Congress by these men on 10 May was soon returned to them for alteration. Their amended text, dealing wholly with the Court of Appeals in Cases of Capture, and containing nothing of an explicit nature about the matters in JM’s fifth and sixth paragraphs, mentioned above, was reported to Congress on 4 June, read a second time on 25 June, and adopted in part on 18 July (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XX, 496, 497, 599, 694, 761–64). The enacted portion did little more than reaffirm the resolutions of 15 January 1780 creating the Court of Appeals in Cases of Capture. The remainder of the proposed ordinance, dealing chiefly with the procedure of the court and the powers of its three judges, was sent back for revision to the same committee, with Edmund Randolph of Virginia added as a fourth member. Upon his motion, Congress increased the duties of the committee by directing it to prepare not one but two ordinances, the second of them to include, among other subjects, provisions “for regulating the proceedings of the admiralty courts of the several states in cases of capture” (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XX, 764). To the subsequent proposals of this committee, first submitted to Congress on 14 August, JM would offer many amendments (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXI, 861–71, 916, 921, 961–68; see Changes Suggested in Ordinance on Captures at Sea, ca. 12 August 1781).