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A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates, 1774-1875
Journals of the Continental Congress --TUESDAY, JANUARY 19, 1779
A letter, of the 4, from Major General Sullivan, was read, enclosing letters that passed between him and Major General Prescot:1
[Note 1: 1 This letter is in the Papers of the Continental Congress, No. 160, folio 233; the enclosures are on folios 235--239.]
Ordered, That the same be referred to the committee on the letter of 20th December last, from General Sullivan.
A letter, of 28 December, from honble Meshech Weare, president of New Hampshire, was read, enclosing a copy of a petition from Charles Hunt and others, who were taken and confined for bringing manifestoes into that State from the commissioners of his britannic Majesty, in a flag:
Ordered, That the petition be referred to the committee on the letter from Admiral Gambier.
A letter, of 7, from Mr. Duarti, Captain of the snow of Our Lady of Mount Carmel and St. Antonio, was read:2
[Note 2: 2 Weare's letter is in the Papers of the Continental Congress, No. 64, folio 70; Hunt's petition is in No. 42, III, folio 371; Duarti's letter is in No. 44, folio 63.]
Ordered, That it be referred to a committee of three;
The members chosen, Mr. [James] Lovell, Mr. [James] Searle, and Mr. [Jesse] Root.3
[Note 3: 3 Thomson has noted on No. 36, IV, folio 115, the vote on a committee which answers to this. Two ballots were taken. The vote in the first was: Lovell, 8; Root, 3; Searle, 3; Henry, 1; Ellery, 1; Laurens, 5; Dyer, 3; Carmichael, 1; Drayton, 1; Lewis, 1; Whipple, 2; Smith, 2; Hutson, 1. In the second: Root, 5; Searle, 8; Ellery, 1; Dyer, 3; Whipple, 1; Smith, 1; Hutson, 1.]
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A letter and memorial from Captain [Alexander] Fowler, were read:1
[Note 1: 1 Fowler's letter, dated January 18, is in the Papers of the Continental Congress, No. 78, IX, folio 237.]
Ordered, That they be referred to the committee appointed to confer with General Washington.
A letter, of 18, from Francis Harris, was read,
Ordered, That it be referred to the Board of Treasury.
A letter, of 18, from General Greene, Q. M. G., and,
One, of 18, from W. Bradford, [Jun.] deputy commissary of musters, were read.2
[Note 2: 2 Greene's letter is in the Papers of the Continental Congress, No. 155, I, folio 79; that of Bradford is in No. 78, III, folio 261,]
Ordered, That they be referred to the Board of War.
The hon. Mr. [Henry] Laurens, with the leave of the House, read in his place, and laid on the table, a paper respecting the subject mentioned in his former paper, and that delivered in by Mr. [Francis] Lewis:
Saturday, 16th January, 1779.
Mr President,
I have perused the hońble Mr Lewis' paper delivered and read, at the Table on the 14th Instant, in consequence of a request made to him the 11th by Congress, that he would inform the House of all he knew of a certain Tobacco Ship, and other matters alluded to in a Paper, which in compliance with a similar request to me on the 9th, I delivered in on the 11th.
This honorable House I trust will not have forgotten how repeatedly, before I committed what I had been requested to commit to writing, I intreated Mr Lewis to retire with me into the Library Room, in order to assist my memory if I had in any respect misstated verbally our conversations at York Town, and how immovable he remained in his Chair.
I will not contend with the honorable Gentlemen on the question which of us introduced the conversation: It appears to be totally immaterial. But I do aver he is wrong in his assertion that I "hinted" at "communications made to me by my friends in Charlestown." I do not recollect that ever I received, and I am morally certain I never
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did receive, any communication from Persons in Charlestown "of vessels employed in the public service carrying goods on the private account of some Members of the Secret or Commercial Committee." I not only "hinted" but fully expressed, that I had heard complaints of such transactions from Members of Congress. I asked Mr Lewis how the freight of such private property could be ascertained? If it was consistant with the Public interest to equip and arm ships for the exportation or importation of Private property? What freight could compensate? and added, these appear to me to be very irregular proceedings: in which Mr Lewis perfectly acquicesed.
I remember nothing of the matter respecting the committee's application to the Captain of the ship to take charge of a Packet for the Commissioners at Paris, but I will not set up the deficiency of my memory in opposition to Mr Lewis' assertion. I will therefore admit this preface to have introduced his part of the conversation.
Mr. Lewis acknowledges the Captain replied to the committee at Baltimore that "his ship was chartered by Messrs. Willing and Morris's Clerk, and that the Bills of Loading were filled up shipped by Willing and Morris," and he does not deny that he informed me the consignment was "to the order of Willing and Morris or Willing, Morris & Co." Nor can this be denied. The bills of Loading substantially establish the fact and more, in as much as the "account and risque" were to be "as per Advice," which in Commercial language is synonymous with the order of the Shipper.
Mr. Lewis, after deliberating from Saturday the 9th to Thursday the 14th Instant, has not denied the several allegations contained in my Paper, nor can he, without first eradicating truth and honor from his Breast, which I am pursuaded he is incapable of, deny one of them in substance. It has nevertheless been said, not by Mr. Lewis, that it was a little unfortunate "that Gentlemen who were then in Congress did not remember the circumstance clearly." Some have acknowledged that thay remembered "something about it," and that there were some insinuations made by me.
Gentlemen, who were last winter in Congress, the whole number scarcely ever amounting to seventeen, some of whom are now absent, will call to mind that Congress during the last winter, were constantly engaged in businesses of the highest moment, and which required immediate dispatch. That thay were in many instances obliged to execute their own Resolves, and will admit a possibility therefore, that every Member, Mr. Lewis and myself excepted, may have forgotten the affair of the Tobacco Ship as related by me, more especially as it
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was not quite a new subject when I gave the relation. I had heard somewhat of it antecedently to Mr. Lewis' Account, but only as a matter of suspicion and surmise, and had treated it accordingly. I had no avidity for blasting the reputation of any Gentleman upon a foundation of mere whisper. Besides every Gentleman's observation will convince him that tis not uncommon for Members of a Public Assembly, in which there is much debate on variety of subjects, to lose totally the remembrance of what had been said at a distance of near twelve months by an individual, and not matured into a vote and record.
I beg leave to support this remark by two very recent instances. A Gentleman on the South side of the House, some five or six days ago, in the course of debate strongly alluded to a certain brilliant present. Another Gentleman, situated on the opposite point, warmly animadverted on the first Gentleman's wit. Who was in the right, or who in the wrong, is not my part to determine; but within an hour of the adjournment I asked two Members, who are generally very attentive to every discussion on this floor, their sentiments on that part of the morning's conversation. Each declared "he did not remember a word about it," altho the subject had been boxed from north to south.
On the 11th Instant, a motion was made by an honorable Gentleman, that Mr. Lewis should inform the House of every thing he knew respecting the Tobacco Ship upon Oath. This very morning I applied to a group of five members for the name of the Honorable mover; two or three of these Gentlemen did not even recollect the circumstance; none of them could remember who was the man till I had assisted them. But to return to the business:
I have read the Charter Party for the Ship in question, now named by the extracts which Mr Lewis has produced--the "Farmer, Captain Dashiel."
The contracting parties are Archibald Buchanan of Baltimore and Willing, Morris and Company, by John Brown their Agent. Neither the United States nor Congress, nor any power for acting under or for and on behalf of Congress, is or are expressed or implied in any part of the charter. And it is remarkable that in the six first instances of eight, where the names of Willing, Morris and Company are inserted in this Charter, the words and Company are carefully interlined, as if intended to include and comprehend the Person or Persons, associates and copartners of Willing and Morris as parties in the Covenant, mutually interrested with Willing and Morris in all the risques and benefits of the intended voyage.
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I have perused the Bills of Loading for the Ship's Cargo, dated Baltimore, ninth of January, 1777. These declare the Cargo to be "upon the proper account and risque as per advice," consigned to Thomas Morris.
Upon one of the Bills a special contract under hand and Seal is indorsed,
For the delivery of the Cargo at such Port as Thomas Morris, or Pliarne, Penet and Company, shall order.
For the payment of additional freight and demurrage in certain contingent cases.
For payment of the valuation of the ship in case of loss by Willing and Morris.
But neither in that indorsed Contract nor on the face of the Bills does it appear that the United States were in any respect interested or concerned in the voyage.
I have also perused the instrument of valuation of the Ship, dated Baltimore, sixth of January, 1777, signed John Smith, Jonathan Hudson and Daniel Bowley, who declare by the said Instrument that thay were called upon by Achibald Buchanan and John Cornthwait, Copartner of John Brown, in behalf of Willing, Morris and Company, to value the Ship &c. No intimation in this instrument admits even a supposition that the United States were to be answerable in case the Ship should be lost.
It is true that on two of the Bills of Loading there appear the following indorsements:
Philadelphia, Jany 17th, 1777. The within Iron is on acct of the United States of America as pr letter 1. Robt. Morris.
Philadelphia, January 17, 1777. The within Tobacco is on account of the United States of America, as pr letter 1. Robt. Morris.
I shall make no remark on these ex post facto indorsements, nor confront them by the Charter Party, the Bills of Loading, the special indorsed Contract, nor the instrument of valuation; but I honestly confess that those jealousies which Mr Lewis's information had raised in my mind at York Town are not removed. I have caused diligent search to be made in the Commercial Committee's Office for copy of the orders to John Brown or Brown and Cornthwaite for chartering and loading the Farmer, and for their letters in answer, for orders to Mr. Buchanan and his answer, for letters to Thomas Morris and to
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Pliarne, Penet and Company, respecting the consignation and the "advice" of "the proper account and risque" referred to in the Bills of Loading; for the necessary Entries on the Committee's Books of the orders for Chartering, Loading and Insuring the Vessel, which ought to have appeared there in manner and stile clear and explicit.
The Clerk of the office informs me that he has spent many hours seeking for these lights and can discover none of them, nor any papers concerning the Farmer, excepting those before mentioned, which were tyed up in one parcel, and appeared to be all the documents relative to that Ship; but that he had not fully examined every Paper in the Office. It is possible therefore they may hereafter be found.
Neither can I discover the letter which Mr Lewis says Mr Morris sent to Congress informing them of a "rumour spread in Philadelphia that the Ship was taken by the Enemy, but he hoped it was not true, if it was he had fifty Hogsheads of Tobacco on board on his own account."
The first extract produced by Mr Lewis is, copy of an entry on the books, that an order was drawn by the Commercial Committee, 16th April, 1777, on the Treasury for payment of 14,666 2/3 dollars to the owner of the Ship Farmer, for the valuation of that Ship--Chartered and insured by the Committee on public account; said Ship being taken in Chesapeak Bay on the twenty first day of January last, by two of the Enemy's ships of war, as appears by the Captain's protest."
The Protest sets forth that the Ship had been captured, but not of her being chartered and insured by the Committee on Public account: nor does any one of the antecedent documents referred to above tend to induce a belief that she was. The Committee must therefore have derived their knowledge that the ship was "chartered and insured on Public Account" from some other sources of information, for I will not suppose they would have drawn the order for 14,666 2/3 dollars, or have suffered the recited entry to be made in their books, but under the influence of some kind of proofs for their guide in the disposal of public Money.
Two of the Committee are now present. These gentlemen may possibly give the House such information on this head, as will remove every doubt and render further investigation unnecessary.
Sir, I have not been thus minute, from any wish or desire to criminate Mr. Robert Morris. Congress will remember I declared that my views in mentioning this subject at York Town were to do justice to that Gentleman as well as to the Public. But to return to Mr. Lewis' Paper.
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If Mr. Lewis had been satisfied on the 16th of April, 1777, four months before I had the honor of his acquaintance, that the Ship Farmer had been bona fide chartered, insured and loaded on Public Account, I demand, with what view, or for what good purpose did he, eight or ten menths after that date, relate to me, that Captain Dashiel had said his ship "was chartered by Messrs. Willing & Morris's Clerk, and that the bills of Loading which the said Captain had signed were filled up ship'd by Willing & Morris, and that the Committee had therefore concluded that the Cargo was not on public Account."
I quote Mr. Lewis' words of the 14th inst. delivered on Papers not; those which he really spoke to me at York Town.
Did Mr. Lewis give this strange and inconclusive relation, in order to convince me that our Commercial transactions were not "in a confused state?" Does it seem to have been calculated for hushing my complaints, implied in the hints which he says I gave of "some vessels employed in the public service carrying goods on the private account of some members of the Committee?" Or did it rather, as I have most truly averred, serve to "heighten my jealousies by his frequent repetitions that our Commercial Affairs had been sadly conducted?"
That those affairs had been sadly conducted requires no other proof than half an hour's review of the Committee's Books.
Why did Mr Lewis, after I had briefly mentioned in Congress the information which he had given me of the Tobacco Ship, and had appealed personally to him, call on me and say "I am very sorry you mentioned that affair in Congress, because I intended to mention it to Mr Morris myself?"
And I now appeal to every candid mind, does not Mr Lewis's present and very inconclusive narrative of what he calls a tęte ŕ tęte conversation, tend to excite suspicions of some hidden or unfair proceedings in the case of the Ship Farmer?
The "conclusions of the Committee that the Cargo was not on Public Account" one would naturally suppose were well grounded before thay put the public to the expence of equipping an extra Ship merely for the purpose of carrying dispatches. The owner of the Ship Farmer lived at Baltimore, a conference with him would instantly have removed all the difficulties which Captain Dashiel had raised.
The Ship Farmer was chartered on the third of October, 1776, sailed on the tenth of January, 1777, and captured on the 21st of that month.
According to Mr Lewis' state, the first insinuation that the bulk of the cargo was public property appeared in Mr Morris's letter written subsequently to the capture, informing Congress that he had fifty Hogsheads of Tobacco on board.
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If the Charter, the loading and the insurance had been actually on public account, how came Mr Lewis to remain in ignorance of these interresting facts at least four months and for ought we know, to this hour?
I will beg Mr Lewis' indulgence to ask him another question. If the Vessel was chartered and insured on account of the public, by whose permission and under what stipulations did Mr Morris ship fifty Hogsheads of Tobacco on his private account?
But, Sir, after all these appearances I do not charge Mr Morris with fraud. I never did charge him with fraud, nor did I ever intend to do so from bare appearances. I honestly appealed to the Gentlemen who had made a display of those appearances.
It will rest with Mr Morris, unless the Commercial Committee can now give us satisfaction, by clear explicit unambiguous proofs, to convice this House that his conduct was honest and justifiable.
The best friend Mr Morris has in the world will not more sincerely rejoice than I shall at the sight of such evidence.
If Mr Morris' character has been unjustly drawn into suspicion, I am not the Man who, from malice wantonness, or stupid inattention to business, placed or suffered it to remain in an unfavourable light.
Had I harboured a malignant disposition for blasting that Gentleman's reputation I should long ago have searched for the Papers which I have in the present instance been compelled to exhibit. Every sensible man will acknowledge thay contain ample funds for slanderous whisper. But by the Grace of God I have acted a more generous part. I briefly related to Congress what I had learned from Mr Lewis, and to this Gentleman I appealed as my informant, thence forward contenting myself with the reflection that I had done my duty.
I shall conclude with saying that I have reason to believe I am not the only Gentleman to whom Mr Lewis has at some time or other expressed his dissatisfaction with the affair of the Ship Farmer. A mere dissatisfaction expressed by him has a tendency to excite jealousies in the minds of men ignorant of the facts, but not of the universal opinion "that our Commercial affairs had been sadly conducted."
Henry Laurens.1
[Note 1: 1 This paper, in the writing of Moses Young, but signed by Laurens, is in the Papers of the Continental Congress, No. 19, IV, folio 209.]
Intended to have been laid before Congress Monday the 18th had there been a House.2
[Note 2: 2 In the writing of Laurens.]
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Ordered, That the several papers delivered in by the honble Mr. Laurens and the honble Mr. Lewis be referred to a committee of five, and that they be directed to enquire into the facts therein set forth, and call upon Mr. R. Morris to answer, and that they report to Congress:
The members chosen, Mr. M[eriwether] Smith, Mr. [William] Ellery, Mr. [Oliver] Ellsworth, Mr. [William] Paca, and Mr. T[homas] Adams.
Ordered, That the consideration of the report of the committee, respecting goods taken for public service, be farther postponed till to Morrow.
The honble Mr. [Elbridge] Gerry communicated to Congress two invoices of goods shipped at Bilboa, and consigned to him by Messrs. Gardoqui & Sons; one dated, 24 September, 1778, by Captain Ives, arrived; the other, September 16, 1778, by the Hawke, Captain Smith, of whose arrival there is no advice:
Ordered, That they be referred to the Committee of Commerce.
The Committee on Appeals brought in a report:
The Commissioners of the Court of Appeals of the United States have the Honor to report to Congress the annexed proceedings in the Case of the Sloop Active, brought into that Court on Appeal, in order that Congress may take such measures in that behalf, as so extraordinary and important a subject may require.
Wm. Hy Drayton
William Ellery
John Henry, Junr.
O. Ellsworth
Philadelphia, January 19th, 1779.1
[Note 1: 1 This report, in the writing of William Henry Drayton, is in the Papers of the Continental Congress, No. 29, folio 355. See under January 21, 1779, post.]
Thomas Houstoun Esq &ca Appees ads. Gideon Olmstead &ca, ApptsIn the Court of Commissioners of Appeal for the United States of America.
At a Court held at the State House in the City of Philadelphia on the twelfth Day of December, in the year of our Lord one thousand seven hundred and seventy
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eight, before the Honorable William Henry Drayton, William Ellery, John Henry, the younger, and Oliver Elsworth, Esqrs., Commissioners appointed by the Honorable Congress to hear, try and determine all Appeals from the Courts of Admiralty of the Several American states to Congress, came the parties, as well appellants as appellees in the above cause by their respective advocates, and after solemn argument, and full hearing of the said parties by their said advocates the said Court took time to consider thereof and held the same under advisement until the fifteenth day of December aforesaid.
At which day the said court, being again met, proceeded to the publication of their Definitive sentence or decree upon the said appeal, which being read and filed is in the words following to wit:
We, the Commissioners appointed by the Honorable Congress of the United States of America to hear try and determine all appeals from the Courts of Admiralty of the several states aforesaid to Congress, having heard and fully considered as well all and singular the matters and things set forth and contained in the record or minute of the proceedings of the Court aforesaid in the above cause as the argument of the advocates of the respective parties in the above appeal, do thereupon adjudge and decree that the judgement or sentence of the Court of Admiralty aforesaid be in all its paris revoked, reversed and annulled. And we do further decree and adjudge that the sloop or vessel called the Active, with her tackle, apparel and furniture, and the goods, wares and merchandizes laden and found on board her at the time of her capture as mentioned in the claim of Gideon Olmstead, Artemas White, Aquilla Rumsdale and David Clark, the appellants, be condemned as lawful Prize to and for the use and behoof of them the said Appellants, and that process issue out of the Court of Admiralty aforesaid, Commanding the Marshal of the said Court to sell the aid Sloop Active and her cargo at public vendue for the highest price that can be gotten for the same, and, after deducting the costs and charges of the trial in the said Court of Admiralty, and the expences attending the sale of the said sloop &c., that he pay the residue of the monies arising from the said sale unto the appellants aforesaid their Agent or Attorney. And we do further adjudge and decree that the appellees pay unto the appellants in this cause the sum of 280 dollars for their costs and charges by them expended in sustaining and supporting their said appeal.
William Hy. Drayton.
John Henry.
William Ellery.
O. Ellsworth.
December 15th, 1778.
A certified copy of all which proceedings was regularly transmitted to the Judge of the Court [of] Admiralty aforesaid by the Register of this court.
Afterwards, to wit on the twenty eighth day of December aforesaid, at a Court held at the State House aforesaid, present all the commissioners above named, the Advocates on the part of the Appellants exhibited to the said Court certified copies
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of two papers, the one purporting to be a second decree or sentence of the said Court of Admiralty in the above cause, and the other purporting to be a writ or warrant from the Judge to the Marshall of the said Court, which being severally read are as follows to wit:
Thomas Houstoun Esq. &ca appees ads. Gideon Olmstead, Artemas White Aquila Rumsdale and David Clark, appts Claimts of the Sloop Active and her cargo.In the Court of Admiralty for the State of Pennsylvania.
The Court taking into consideration the decree of the Court of Appeals in this cause reversing the judgement or sentence of this Court in the same cause and further decreeing a condemnation of the said Sloop Active her tackle, apparel, furniture, and cargo as prize &c., and that process of this Court should issue for the sale of the said sloop, her cargo &c., and for the distribution of the monies arising from the said sale after deducting costs to the claimants, above named, their agents or Attorney, after mature consideration is of opinion, that altho' the Court of Appeals have full authority to alter or set aside the decree of a Judge of this Court, yet that the finding of the Jury in the cause does establish the facts in the same cause without re-examination or appeal. And therefore the verdict of the Jury still standing and being in full force this court cannot issue any process or proceed in any manner whatsoever, contradictory to the finding of the said Jury, and therefore doth now decree, order and adjudge that the Marshall of this court be commanded to sell at public vendue, for the highest price that can be gotten for the same, the said sloop or vessel called the Active, her tackle, apparel and furniture and the goods, wares and merchandizes laden and found on board her at the time of her capture &c; and after deducting the costs and charges of the trial, condemnation, and sale thereof out of the monies arising from the said sale, that he bring the residue thereof into court there to remain ready to abide the further order of this court therein.
December 28th, 1778.Geo. Ross.
Court of Admiralty Pennsylvania ss:George Ross Esq., Judge of the Court of Admiralty for the State of Pennsylvania.
To Mathew Clarkson, marshal of the City and County of Philadelphia, [L. S.] Greeting: Whereas at a Court of Admiralty lately held at Philadelphia upon the bill of Thomas Huston Esq. qui tam &c., exhibited to the said Court, it was adjudged and decreed that the Sloop or Vessel called the Active, her tackle, apparel and furniture, and the goods wares and merchandizes, laden and found on board her at the time of her capture should be condemned as prize and sold, and that after deducting the costs and charges of the trial, condemnation and sale thereof out of the monies arising from the said sale, of the residue of the said monies, three fourth parts should be paid unto the said Libellant, and a certain James Josiah, a claimant in the said cause, to and for the use of themselves &c.; and that the remaining one fourth part of the said residue, should be paid unto Gideon Olmstead, Artemas White, Aquilla Rumsdale and David Clark other claimants in the said
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cause to and for their use &c., according to the verdict of the Jury impanelled and sworn to try and determine &c. in the said cause, From which judgement or sentence the said Gideon Olmstead and others last abovementioned appealed to the Honorable Congress of the United States of America, or such court or authority as they should appoint to hear and determine the said Appeal. And it was in such manner proceeded that the Honorable the Court of Commissioners of Appeal for the said states did, by their decree transmitted unto this Court, reverse, annul, and make void all and every part of the judgement or sentence of the Court of Admiralty aforesaid. And did further adjudge and decree that the said Sloop Active &c. was lawful prize and that process of this Court should issue, commanding a sale thereof, and that after deducting costs &c. the residue of the monies arising from the sale &c. should be paid to the claimants last abovementioned, their agent or attorney to and for their sole and absolute use and disposal &c. This court therefore taking into consideration the premises and being of opinion that consistent with the laws of this State it cannot carry into execution the whole of the said sentence of the honorable the Court of Commissioners of Appeals aforesaid, yet willing so far as the same sentence appears legal to carry it into effect, and to prevent as far as possible any injuries or losses which the parties to this cause or either of them may be liable unto by the vessel and cargo &c. remaining in their present situation, do therefore hereby command you forthwith to sell at public vendue for the highest price that can be gotten for the same, the said sloop or vessel called the Active, her tackle, apparel and furniture, and the goods, wares and merchandizes, laden and found on board at the time of her said capture; and after deducting the costs and charges aforesaid, to bring the residue of the said monies into Court ready to abide the further order of this Court. And how you shall have executed this writ make return to me at a Court of Admiralty to be held at my chambers in Philadelphia, the 7th Day of January next, together with this writ. Given under my hand and seal at Philadelphia, the 28th Day of December, in the year of our Lord one thousand seven hundred and seventy eight.
Geo. Ross.
And hereupon it was moved on the part of the Appellants aforesaid that process might issue to the Marshal of the Admiralty of Pennsylvania commanding him to execute the decree of this Court; and after argument had thereon the Court appointed Monday, the 4th Day of January next, at 5 O'clock in the afternoon, for hearing a further argument upon the said motion.
And afterward, to wit on the 4th Day of January aforesaid, at eight O'clock in the morning, the said Court being again convened upon the pressing and special instance and request of the claimants in this cause, present the Honorable William Henry Drayton, William Ellery and John Henry Esqrs, Commissioners as aforesaid &c.
It was moved and suggested by the advocates for the said claimants that notwithstanding the decree of this court above set forth and transmitted to the Judge of the Court of Admiralty aforesaid, the said Judge had appointed the hour of nine this morning for the Marshal of the said Court, to pay into the said Court the monies arising from the sale of the said Sloop Active, her cargo &c., and prayed that the Register of the said Court might be sworn and examined in support of the said
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motion and suggestion. Whereupon the said Register being sworn his deposition was taken down in the words following to wit:
United States of America ss:
On the 4th day of January, in the year of our Lord one thousand seven hundred and seventy nine, before us the subscribers, Commissioners appointed by Congress to hear, try and determine all appeals from the Courts of Admiralty of the several states aforesaid to Congress, personally appeared Andrew Robeson, Register of the Court of Admiralty for the State of Pennsylvania, and being duly sworn deposeth and saith, that he, as Register aforesaid, received notice from the Judge of the said Court by the Marshal of the said Court to attend at the Chambers of the said Judge at nine O'Clock this morning, for the purpose of making a minute or record of the said Marshal's having paid into the said Court the monies arising from the sale of the cargo of the Sloop Active, lately libelled against in the said Court by Thomas Houston &c., and further saith not.
Sworn the day and year aforesaid before us William Henry Drayton, John Henry, William Ellery.
Whereupon the advocates prayed that an injunction might issue out of this Court directed to the Marshal of the Court of Admiralty aforesaid, and Commanding him to detain and keep in his hands and custody the monies aforesaid until the further order of this Court, which prayer being granted by the said Court, process issued in the words following to wit.
United States of America ss.:
The honorable the Court of Commissioners of appeal for the United States of America, To Matthew Clarkson Esq., Greeting: Whereas at a Court lately held at Philadelphia in the state of Pennsylvania upon the appeal of Gideon Olmstead, Artemas White, Aquilla Rumsdale and David Clark, from the sentence or Decree of the Court of Admiralty of the State aforesaid to this Court, upon hearing and full consideration of all and singular the matters and things, set forth and contained in the record or Minutes of the proceedings of the said Court in a certain cause there lately depending, wherein Thomas Houston Esq. was Libellant and the above named Gideon Olmstead &c. claimants. After solemn argument and full hearing of the Advocates of the respective parties in the said Appeal, it was adjudged and decreed by this court that the judgement or sentence of the Court of Admiralty aforesaid should be in all its parts, revoked, reversed and annulled, and that the Sloop or vessel called the Active, her cargo &c., should be condemned as lawful prize for the use of the said Appellants, and that process should issue out of the said Court of Admiralty, commanding the Marshall of the said Court to sell the said sloop and her cargo for the highest price that could be gotten for the same and after deducting the costs and charges arising on the trial, condemnation and sale thereof to pay the residue of the monies arising from the said sale unto the said appellants, their agent or Attorney, And whereas a copy of the decree of this Court hath been regularly transmitted to the Judge of the said Court of Admiralty, and by a certified copy of the proceedings of the said Court since receiving the said decree it appeareth manifestly to this Court that the said Judge hath refused to pay obedience to the said decree and did, on the 28th Day of December last, issue process returnable on the seventh day of January instant, Commanding you as Marshal of the said court of Admiralty,
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to make sale of the said sloop, her cargo &c. And after deducting the costs and charges aforesaid to lodge the residue of the monies arising from the said sale in the Court aforesaid ready to abide the further order of the said Court, and Whereas on the 28th Day of December aforesaid a motion was made in this Court for a writ to issue to the said Marshal commanding him to execute the decree of this Court, and further argument on the said Motion was appointed to be heard at five O'Clock this afternoon; and whereas it is testified to this Court on oath that this day at nine O'clock in the forenoon is by special order of the said judge appointed for you to lodge the monies arising from the said sale in the said Court whereby the writ upon the motion aforesaid, if this Court shall think proper to issue such will be eluded.
These are therefore to command and firmly enjoin you to detain and keep in your safe custody, the whole of the monies arising from the sale of the said sloop and her cargo &c., saving and excepting the costs and charges aforesaid until the further order of this court be made known unto you as you will answer the contrary at your peril. Given at Philadelphia in the State of Pennsylvania the fourth day of January in the year of our Lord one thousand seven hundred and seventy nine.
William Henry Drayton.
William Ellery.
John Henry, Jun.
And now, to wit, at five O'Clock in the afternoon of the said fourth Day of January, at a Court held at the State house aforesaid, present the honorable the Commissioners last above named, the Register produced to the said Court the return endorsed by the abovementioned Mathew Clarkson Esq. on the above recited writ or injunction which being read, is in the words following to wit:
In obedience to a writ under the hand and seal of the Honorable George Ross Esq. Judge of the Court of Admiralty for the State of Pennsylvania, I have deposited in the said court the monies arising from the sale of the cargo of the Sloop Active within mentioned, the said Sloop being yet unsold no monies have come into my hands on account of her. So answers
Matthew Clarkson,
Marshal of said Court.
Philadelphia, January 4th, 1779.
To the honorable the Court of Commissioners of Appeal.
And inasmuch as it doth not sufficiently appear to the said Court from the said return whether the monies therein mentioned were paid into the said Court of Admiralty, previous or posterior to the receipt of the said writ, and the said Marshal not being present in Court, the Register of this Court was sworn and examined and his deposition being reduced to writing at the foot of the said return is in the words following to wit.
United States of America ss.:
Andrew Robeson, Register of the Court abovementioned, being duly sworn deposeth and saith that he delivered the within writ to the abovenamed Matthew Clarkson, Esq., Marshal of the Court of Admiralty abovementioned, at the Chamber of, and in presence of the Judge of the said Court before the hour of ten this morning, and
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previous to the payment of the monies to the said Judge, as certified above by the said Marshal.
Sworn January 4th, 1779, in open Court.
William Hy Drayton.
William Ellery.
John Henry, Jun.
Whereupon the Court declared and ordered to be entered on record, that as the Judge and Marshal of the Court of Admiralty of the State of Pennsylvania had absolutely and respectively refused obedience to the decree and writ regularly made in and issued from this Court to which they, and each of them, were, and was bound to pay obedience, this Court being unwilling to enter into any proceedings for contempt lest consequences might ensue at this juncture dangerous to the public peace of the United States will not proceed farther in this affair nor hear any appeal until the authority of this court shall be so settled as to give full efficacy to their decrees and process.
Ordered, that the Register do prepare a state of the proceedings had upon the decree of this court, in the case of the Sloop Active, in order that the Commissioners may lay the same before Congress.
United States of America ss.:
I, Andrew Robeson, Register of the acts, matters and causes done transacted tried and decided in the honorable the Court of Commissioners of Appeal for the United States of America, do hereby certify the above and aforegoing to be a true and [L.S.] exact copy of the records or minutes of the proceedings of the said Court in the Appeal of Gideon Olmstead and others from the decree of the Court of Admiralty of Pennsylvania; having carefully compared the same with the original thereof now remaining in my office at Philadelphia in the State of Pennsylvania.
In witness whereof I have hereto set my hand and seal the 5th Day of January, in the year of our Lord one thousand seven hundred and seventy nine.
Andrew Robeson, R. C. A.
Ordered, To lie on the table.
The committee appointed to confer with General Washington brought in a partial report, and desired leave to sit again; at the same time, desiring to know whether it is the sense of Congress that they should insert in their next report the plan of operations for the next campaign, that may come to their knowledge in the course of their conferences with the commander in chief.
After some debate thereon,
Adjourned to 10 oClock to Morrow.
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