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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 --SATURDAY, MARCH 6, 17791
[Note 1: 1 At this point the entries are resumed by Charles Thomson.]
A memorial from the Chevalier de la Colombe, was read, desiring to obtain the commission of major in the service of the United States, and to serve as supernumerary aid de camp to Major General Baron de Kalb, who has expressed a desire to have him as such for the ensuing campaign;2 Whereupon,
[Note 2: 2 This memorial, dated March 4, is in the Papers of the Continental Congress, No. 41, II, folio 65. DeKalb's wish is written on the same sheet.]
Resolved, That the prayer of the memorial be not complied with.
A petition of Edward Keran, by order, and in behalf of the Susannah's crew, was read, praying a decision on an appeal wherein they are concerned;3 Whereupon,
[Note 3: 3 This petition is in the Papers of the Continental Congress, No. 41, V, folio 77.]
The Committee to whom was recommitted the report of the committee on the report of the Committee on Appeals, together with the amendments made thereon in a Committee of the Whole, having arranged the same, brought in their report, arranged and amended agreeably to the sense of the committee of the whole, the same was taken into consideration, and thereupon Congress came to sundry resolutions, as follows:
The committee, to whom was referred the report of the Committee on Appeals of January 19, 1779, having, in pursuance of the instructions to them given, examined into the causes of the refusal of the judge of the court of admiralty for the State of Pensylvania, to carry into execution the decree of the court or Committee of Appeals, report,
"That on a libel in the court of admiralty for the State of Pensylvania, in the case of the sloop Active, the jury found a verdict in the following words, viz.
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"'One-fourth of the net proceeds of the sloop Active and her cargo to the first claimants, three-fourths of the net proceeds of the said sloop and her cargo to the libellant and the second claimant, as per agreement between them;' which verdict was confirmed by the judge of the court, and sentence passed thereon. From this sentence or judgment and verdict, an appeal was lodged with the secretary of Congress, and referred to the committee appointed by Congress 'to hear and determine finally upon all appeals brought to Congress' from the courts of admiralty of the several states:
"That the said committee, after solemn argument and full hearing of the parties by their advocates, and taking time to consider thereof, proceeded to the publication of their definitive sentence or decree, thereby reversing the sentence of the court of admiralty, making a new decree, and ordering process to issue out of the court of admiralty for the State of Pensylvania, to carry this their decree into execution:
"That the judge of the court of admiralty refused to carry into execution the decree of the said Committee on Appeals, and has assigned as the reason of his refusal, that an act of the legislature of the said State has declared that the finding of a jury shall establish the facts in all trials in the courts of admiralty, without re-examination or appeal, and that an appeal is permitted only from the decree of the judge:1
[Note 1: 1 These two paragraphs, in the writing of Thomas Burke, is in No. 29, folio 369.]
"That having examined the said act, which is entitled, 'an act for establishing a court of admiralty,' passed at a session which commenced on the fourth of August, 1778, the committee find the following words, viz. 'the finding of the jury shall establish the facts, without re-examination or appeal,' and in the seventh section of the same
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act the following words, viz. 'in all cases of captures an appeal from the decree of the judge of admiralty of this State, shall be allowed to the Continental Congress or such person or persons as they may, from time to time, appoint, for hearing and trying appeals.'
"That although Congress, by their resolution of 25 November, 1775, recommended it to the several legislatures to erect courts for the purpose of determining concerning captures, and to provide that all trials in such cases be had by a jury, yet it is provided that in all cases an appeal shall be allowed to the Congress or to such person or persons as they shall appoint for the trial of appeals;" Whereupon,
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:1
[Note 1: 1 These two paragraphs, with some changes, in the writing of Charles Thomson, are on folio 359.]
That no act of any one State can or ought to destroy the right of appeals to Congress in the sense above declared:
That Congress is by these United States invested with the supreme sovereign power of war and peace:
That the power of executing the law of nations is essential to the sovereign supreme power of war and peace:
That the legality of all captures on the high seas must be determined by the law of nations:2
[Note 2: 2 This paragraph, in the writing of John Jay, is on folio 357a.]
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That the authority untimately and finally to decide on all matters and questions touching the law of nations, does reside and is vested in the sovereign supreme power of war and peace:1
[Note 1: 1 This paragraph, in the writing of Nathaniel Folsom, is on folio 357a.]
That a controul by appeal is necessary, in order to compel a just and uniform execution of the law of nations:
That the said controul must extend as well over the decisions of juries as judges in courts for determining the legality of captures on the sea; otherwise the juries would be possessed of the ultimate supreme power of executing the law of nations in all cases of captures, and might at any time exercise the same in such manner as to prevent a possibility of being controuled; a construction which involves many inconveniencies and absurdities, destroys an essential part of the power of war and peace entrusted to Congress, and would disable the Congress of the United States from giving satisfaction to foreign nations complaining of a violation of neutralities, of treaties or other breaches of the law of nations, and would enable a jury in any one State to involve the United States in hostilities; a construction which for these and many other reasons is inadmissible:
That this power of controuling by appeal the several admiralty jurisdictions of the states, has hitherto been exercised by Congress by the medium of a committee of their own members:
Resolved, That the committee before whom was determined the appeal from the court of admiralty for the State of Pensylvania, in the case of the sloop Active, was duly constituted and authorized to determine the same:
On passing this resolution, the yeas and nays being required by Mr [James] Searle,
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So it was resolved in the affirmative.
Resolved, That the said committee had competent jurisdiction to make thereon a final decree, and therefore their decree ought to be carried into execution.
On this the yeas and nays being required by Mr. [James] Searle,
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So it was resolved in the affirmative.
Resolved, That the general assembly of the State of Pensylvania, be requested to appoint a committee to confer with a committee of Congress on the subject of the proceedings relative to the sloop Active, and the objections made to the execution of the decree of the Committee on Appeals, to the end, that proper measures may be adopted for removing the said obstacles; and that a committee of three be appointed to hold the said conference with the committee of the general assembly of Pensylvania:1
[Note 1: 1 This paragraph, in the writing of Thomas Burke, is in the Papers of the Continental Congress, No. 29, folio 367. The report as presented is printed under February 2, 1779, ante.]
The members chosen, Mr. [William] Paca, Mr. [Thomas] Burke, aria Mr. R[ichard] H[enry] Lee.
The Committee on the Treasury brought in a report; Whereupon,
Ordered, That a warrant issue on the treasurer, in favour of William Young, steward to the President of Congress, for five thousand dollars advanced for defraying expences of the President's household, and for which the said W. Young is to be accountable.2
[Note 2: 2 This report is in the Papers of the Continental Congress, No. 136, III, folio 139.]
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Treasury Office, March 3, 1779.
Resolved, That a warrant issue on the Treasurer, in favour of the Commercial Committee, on their application, for five hundred thousand dollars for the use of their department; and for which the said Committee are to be accountable.
That a warrant issue on the treasurer in favour of Colonel Lambert Cadwallader, late of the 3d Pensylvania regiment, for five thousand dollars to enable him to discharge the arrears of pay due to the said regiment while under his command, and for which he is to be accountable.
That a warrant issue on Nathaniel Appleton, Esq., commissioner of the continental loan office in the State of Massachusetts bay, in favour of Ebenezer Hancock, deputy paymaster general, on his application, for one hundred thousand dollars, for the use of his department; and for which he is to be accountable.1
[Note 1: 1 This report, dated March 3, is in the Papers of the Continental Congress, No, 136, III, folio 133.]
That a warrant issue on the treasurer in favour of Jeremiah Wadsworth, commissary general of purchases, for two millions and seven hundred thousand dollars, on his application, for the use of his department; for which he is to be accountable.
That a warrant issue on the treasurer in favour of General Mifflin, late quarter master general, for eighty thousand dollars to discharge arrearages claimed to be due in his said late department; and for which he is to be accountable.
Resolved, That a warrant issue on the treasurer, in favour of Dr. Jonathan Potts, deputy director general of the general hospital, on the application of the Medical Committee, for one hundred and fifty thousand dollars, for the use of his department; for which he is to be accountable.
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That a warrant issue on the treasurer, in favour of Colonel B. Flower, commissary general of military stores, on the application of the Board of War, for one hundred and fifty thousand dollars, for the use of his department; for which he is to be accountable.1
[Note 1: 1 This report, dated March 2, is in the Papers of the Continental Congress, No. 136, III, folio 125.]
The Marine Committee to whom it was referred to consider the gratification to be allowed Captain Peter Landsis, for his services in transporting military stores to America, report,
That in consideration of the danger Captain Landais was exposed to whilst he was engaged in that service, and the propriety with which he executed it, he be allowed the sum of 12,000 livres, and that a bill be drawn on France for that sum:
Resolved, That Congress agree to the said report.
The committee, to whom was referred the memorial of Robert Temple, report, that they have examined the several charges in the account exhibited in his memorial, and are of opinion,
That the locust trees, locust nursery, elm, walnut, and oak trees, apple trees, posts and rails and stones, framed fences, sheep house, oak plank, and the building on his wharf, being taken by the orders of the officers of the continental army, and applied to the public use, the said Robert Temple ought to be paid for the same as follows, viz.
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That the destruction of the young fruit trees, and the injuries done to his barns and dwelling house, stables, dairy, and offices, ought to be considered as damages occasioned by the war; and that the said Robert Temple, in respect to the said damages, ought to be in the same situation as all other citizens of the United States who have suffered in the common calamity:
That the sum of £2500, lawful money, of the State of Massachusetts bay, hath been paid to the said Robert Temple, which, deducted from £6702 like money, to which the articles for which he ought to be paid amount, leave a balance of £4202, like money, equal to 14,006 2/3 dollars: Whereupon,
Resolved, That the late quarter master general pay to the said Robert Temple, the said balance of £4202, lawful money, equal to 14,006 2/3 dollars; and that on the settlement of his public accounts he be allowed the same, as well as the £2500 before paid to the said Robert Temple.1
[Note 1: 1 This report, in the writing of Thomas Burke, is in the Papers of the Continental Congress, No. 19, VI, folio 19.]
Adjourned to 10 oClock on Monday.
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