During the following month, on the 14th of October, 1776, the Continental Congress appointed a special committee, Messrs. Lee, Wilson, and Hall, “to consider what is to be done with Negroes taken by vessels of war, in the service of the United States.”  Here was a profound legal problem presented for solution.  According to ancient custom and law, slaves came as the bloody logic of war.  War between nations was of necessity international; but while this truth had stood through many centuries, the conversion of the Northern nations of Europe into organized society greatly modified the old doctrine of slavery.  Coming under the enlightening influences of modern international law, war captives could not be reduced to slavery.[590] This doctrine was thoroughly understood, doubtless, in the North-American colonies as in Europe.  But the almost universal doctrine of property in the Negro, and his status in the courts of the colonies, gave the royal army great advantage in the appropriation of Negro captives, under the plea that they were “property,” and hence legitimate “spoils of war;” while, on the part of the colonists, to declare that captured Negroes were entitled to the treatment of “prisoners of war,” was to reverse a principle of law as old as their government.  It was, in fact, an abandonment of the claim of property in the Negro.  It was a recognition of his rights as a soldier, a bestowal of the highest favors known in the treatment of captives of war.[591] But there was another difficulty in the way.  Slavery had been recognized in the venerable memorials of the most remote nations.  This condition was coeval with the history of all nations, but nowhere regarded as a relation of a local character.  It grew up in social compacts, in organized communities of men, and in great and powerful states.  It was recognized in private international law; and the relation of master and slave was guarded in their local habitat, and respected wherever found.[592] And this relation, this property in man, did not cease because the slave sought another nation, for it was recognized in all the commercial transactions of nations.  Now, upon this principle, the colonists were likely to claim their right to property in slaves captured.

The confederation of the new States was effected on the 1st of March, 1781.  Art.  IX. gave the “United States in Congress assembled” the exclusive authority of making laws to govern the disposal of all captures made by land or water; to decide which were legal; how prizes taken by the land or naval force of the government should be appropriated, and the right to establish courts of competent jurisdiction in such case, etc.  The first legislation under this article was an Act establishing a court of appeals on the 4th of June, 1781.  It was discussed on the 25th of June, and again, on the 17th of July, took up a great deal of time, but was recommitted.  The committee were instructed to prepare an ordinance