and 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 he acts."It is evident that this opinion,while it sustains 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 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 all 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 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 these 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 authority,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 separately,and not by all the people in the several provinces or States jointly."No language could be stronger than this,to disarm Judge Story'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 Patterson and Iredell sustained the power of Congress in the particular case,but lend us 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 Congress exercised them,and because they were sustained in so doing by the approbation of the several colonies or States,whose representatives they were.Surely,then,our author was neither very accurate nor very candid in so stating this decision as to give rise to the idea that,in the opinion of the Supreme Court,Congress possessed original sovereign powers,by the consent of "the people of the United States."Even,however,if they court had so decided,in express terms,it would have been of no value in the present inquiry,as will by-and-by be shown.
The examination of this part of the subject has probably already been drawn out to too great an extent;but it would not be complete without some notice of another ground,upon which our author rests his favorite idea ?that the people of the colonies formed,"one people,"or nation.
