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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 --FRIDAY, JULY 16, 1779
A letter, of 11, from Christopher Hele, was read:
Ordered, That it be referred to the Committee on former letters from the same.
A letter, of 14, from J. G. Duarti, was read:1
[Note 1: 1 Hele's letter is in thePapers of the Continental Congress, No. 78, XI, folio 439; that of Duarti, in No. 44, folio 87.]
Ordered, That the report of the committee on the memorial from J. Codman and J. G. Duarti be taken into consideration on Monday next, immediately after reading the public dispatches.
The Committee, to whom was referred the Memorial of Mr. John Codman, Junior, Agent for Captain John Garcia Duarte, of the Snow,Nostra Senhora de Carmo é Santo Antonio, the Memorial of the said Captain, and other papers respecting the capture of the said Snow and her cargo by Captain Joseph Cunningham, Commander of the private vessel of War, called thePhenix, report:
That they find Mr. Carter Braxton, and Mr. Phripp, of the State of Virginia, and Mr. Robert Morris of this State, are concerned as owners in the said PrivateerPhenix, and they cannot learn with certainty the names of any other owners. That in obedience to the order of the House they Attempted to confer with Mr. Morris, by requesting in writing that he would meet them at the State House the 7th. instant, at six o'Clock P. M, to which Mr. Morris replied "that it was impossible for him to appear on behalf of the owners of the PrivateerPhenix; that he was interested one twenty fourth part in that vessel; but was not authorized by the owners; that he did not know who they are, except Carter Braxton, Esquire, of Virginia; that Mr. Braxton, and another gentleman in Virginia are authorized to act for the whole; that it would be improper for him to interfere, especially in a transaction that never had his approbation; that whatever charges should fall to his share he would readily comply with, and that he had pressed Mr. Braxton to come up on the occasion."
Your Committee cannot but express their surprize at the reasons offered by Mr. Morris for not interfering in this transaction at the present period, since it is apparent that he interfered "on behalf of
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Mr. Braxton and others, the owners of the PrivateerPhenix" by his Memorial and Petition to Congress of the 6th. March, 1778; and it is in consequence of the resolution of Congress of May 11th. following passed conformably to the prayer of the said Memorial and Petition, that application is now made by Captain Duarti and his agent Mr. Codman; And your Committee apprehend that Mr. Morris, and each owner of thePhenix, is answerable for the consequences arising from orders given by any one or more of them under the authority and instructions of the whole.
The Committee have seen a certified copy of Mr. Braxton's orders to Captain Cunningham dated the 16th. December, 1776, in which the following words are contained:
"Or should you hear that the Portuguese are actually taking our vessels, in that case you may seize any of theirs.
"And in the same orders Mr. Braxton writes:
"The company to whom the PrivateerPhenix belongs, have instructed Mr. Phripp and myself to give such direction as appear to us necessary."
And your Committee find a letter of Instructions to the Prizemaster [John] Wardwell, in which Captain Cunningham declares, that in seizing Captain Duarte's vessel he acted in obedience to his orders.
Your Committee are of opinion that the orders given by Mr. Braxton were illegal and highly injurious to the good faith and honor of these United States, and that the original owners of the Portuguese Snow ought to obtain justice and reparation for all the losses and damages which they have sustained in consequence of such illegal orders.
They have conferred with Captain Duarte and Mr. Codman, and find that by the aforesaid seizure, Captain Duarti, and the owners of the Snow have suffered considerable damages, amounting in gross to 4000 half Johannes, equal to £7100 Sterling, as appears by the account herewith delivered, and the Committee are well assured and believe that the several articles in the said account are very moderately rated.
Capt. Duarte and Mr. Codman have informed the Committee that there remains in the Custody of the Board of War at Boston, 4703/8 half Johannes, and divers small pieces of Gold and Silver, the whole value according to the nearest computation amounting to £865 Sterling--And also one silver cup, and one plate and three
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surplices set apart for church service which are not included in the Estimate of damages.
Your Committee recommend that the Board of War at Boston be directed to deliver to Captain Duarte or his order the above mentioned articles of half Johannes, small pieces of Gold and silver, and also the church furniture.
When the last mentioned sum of £865 Sterling is deducted from the first sum of £7100 Sterling, there will remain £6235, which is computed to be the real damage sustained by the Captain and owners of the Captured Snow.
Your Committee are of opinion, although by the Law of Nations Congress are not bound to make pecuniary satisfaction for acts committed in contrary to and in direct violation of their commissions by the Commander of any vessel of war belonging to any of these states, yet as from the present circumstances of the states it is difficult for injured Foreigners to obtain ample redress by the ordinary course of law in such instances as the present, your Committee for the manifestation of the good faith, honor, and justice of Congress, and from the peculiar circumstances attending the case beg leave to recommend:
That immediate satisfaction, be made to Captain Duarte and the owners of his Snow by granting to the said Captain bills of exchange for the amount of £6235 Sterling or an equivalent in livres tournois.
That the Board of Treasury be directed to prepare one or more serfs of bills as Captain Duarte shall request for the said sum of £6235 on the Minister Plenipotentiary, at the Court of Versailles, payable in Paris eighteen months after date, with interest from the date at the rate of 6. per cent. per annum, granting four bills to each set, and that such bills be signed by the President of Congress.
The Committee further recommend that the most effectual measures be taken, in order to compel the owners of the PrivateerPhenix to repay the said sum of £6235 Sterling, or to make provision for paying in due time the bills so to be drawn, together with the full interest and charges thereon. And for this purpose the following resolutions are submitted to the consideration of Congress.
Resolved, That the order given by Carter Braxton, Esq. of Virginia to Capt. Cunningham authorizing him to seize Portuguese Vessels, was illegal, contrary to, and in direct violation of, the commissions granted by Congress to Vessels of War, and highly injurious to the good faith, honor and interests of the United States of America.
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Resolved, That each and every of the owners of the PrivateerPhenix under whose authority or instruction such order was given is, and ought to be answerable for the consequences of carrying the order into execution.
Resolved, That it is necessary Captain Duarte should vest Congress or some person or persons to be nominated by them with full powers for recovering from the owners of the Privateer Ship of WarPhenix, all the damages sustained by the capture of his Snow, and also that he should deliver to Congress every paper and document relative thereunto which are in his hands or in the hands of his Agent.
Resolved, That a clear and full state of the case of the Snow,Nostra Senhora de Carmo é Santo Antonio, and copies of all necessary vouchers be transmitted to his Excellency Thomas Jefferson, Esq. Governor of Virginia, and that he be requested in the name of the United States of America, to take the most speedy and effectual measures consistent with the laws and constitution of that State, for compelling Carter Braxton, Esq. Agent for the owners of the PrivateerPhenix, and sole subscriber of the orders given Captain Cunningham, to repay the said sum of £6235 Sterling in good bills of exchange, or in gold or silver, or to give good and sufficient security to make provision for discharging in due time the bill or bills to be drawn for the said sum, together with the interest and charges thereon or for indemnifying these states, against all damages which may arise from a failure on his part.
The Committee find that there rests in the hands of the Board of War at Boston £15,246,,13,,9 lawful money of the State of Massachusetts, being the nett proceeds of the sale of the Portuguese Snow, and of so much of her cargo and effects as were sold in Boston, which sum ought to have been put into the Loan Office, agreeable to a resolution of Congress of the 11th. of May, 1778, and they recommend that the said sum of £15,246,,13,,9 be delivered to Mr. Braxton or his order, for the benefit of the Owners of the PrivateerPhenix, immediately after he shall have paid the sum of £6235 Sterling or shall have given good and sufficient security for the payment thereof as abovementioned.
Lastly. The Committee recommend that copies of all the papers recommended to be sent to the Governor of Virginia, be transmitted to the President and Council of the State of Pennsylvania and that they be requested to call on Robert Morris, Esq in like manner as the Governor of Virginia is requested to call on Carter Braxton, Esq. in case full satisfaction shall not be obtained from Mr. Braxton within
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three months from the present date, of which due notice will be given by Congress.1
[Note 1: 1 This report is in thePapers of the Continental Congress, No. 44, folio 13.]
A petition of Evan Evans, Robert Allison and James Worrell, was read,2 representing that by virtue of a resolution of the supreme executive council of Pensylvania, of 27 August, 1777, which was passed in pursuance of a recommendation of Congress, they took down the leaden spouts of sundry persons and delivered the same to Captain Joseph Watkins, commissary of ordnance and military stores; that the owners of the houses are demanding their money of the petitioners, and therefore praying Congress to appoint some persons to value the said lead and give orders for payment:
[Note 2: 2 This petition, dated July 16, is in thePapers of the Continental Congress, No. 41, III, folio 51.]
Ordered, That the same be referred to the Board of War.
The Board of War report,
That they have attended to the letter of Colonel John Brown, relative to Colonel James Easton, referred to them, and upon examining into the case of Colonel Easton, they find that a charge had been exhibited against him and Colonel Brown, then Major Brown, by General Arnold, for plundering the effects of prisoners taken at Sorel: that on the 26 April, 1776, Congress resolved that the commissioners from Congress in Canada, should be instructed to cause enquiry to be made by a court martial, or otherwise, into the said charge, so far as it respected Colonel Easton: that on the first of August, 1776, Congress resolved that Colonel John Brown should be allowed the rank and pay of lieutenant colonel in the continental army from the 20 day of November, 1775, to that time:
That James Easton was entitled to the rank of colonel in the continental army from the 1st day of July, 1775, and to the pay of a colonel from that day until he should be discharged, which it was declared ought to be done as soon as
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a court of enquiry should report in his favour, or a court martial should determine upon his conduct, and their sentence be carried into execution: that it seems no such enquiry or court martial has ever been, and at this late period, probably never will be held: that it was the duty of Colonel Easton long since to have procured such court to sit, or if that had been found impracticable, to have informed Congress thereof: that it does not appear he has done or attempted to do either, but has contentedly drawn his pay to this time; Whereupon,
Resolved, That Colonel James Easton be dismissed from the service of the United States.1
[Note 1: 1 This report, dated July 14 (present, Pickering and Peters), is in thePapers of the Continental Congress, No. 147, III, folio 519.]
A letter, of the 14, from the Board of War, was read,2 enclosing a letter of 26 June from Samuel Safford, lieutenant colonel, informing, that William Sherman, pay master of Colonel Warner's regiment, had offered to resign, which, as he has not settled the accounts of the regiment since raised, and has in his hands a considerable sum of money which is its due, the said lieutenant colonel thinks ought not to be admitted until his accounts are settled.
[Note 2: 2 This letter is in thePapers of the Continental Congress, No. 147, III, folio 523. Safford's is on folio 527.]
An address from A. Lee, Esq. to his excellency, the President of the honble the Congress of the United States of America, dated Paris, February 10, 1779, was read, containing an answer "to a letter under the signature of Silas Deane, to the citizens of America", and accompanied with copies of letters and papers referred to therein as vouchers.
Resolved, That the Letters and vouchers transmitted by Arthur Lee, Esquire, relative to his vindication against charges, suggestions or representations of Silas Deane, Esquire, be sealed up and carefully preserved, until Congress shall determine to procede to hear and determine concerning the conduct of the said parties, which Congress will do as soon as they shall have gone through the Business of Finance,
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Foreign Affairs, and what relates to the Army and Navy of the United States, and not before.1
[Note 1: 1 An undated motion in the writing of Thomas Burke. It was seconded by James Duane. It is in thePapers of the Continental Congress, No. 36, IV, folio 153.]
At a Board of War,July 16, 1779.
Present, Col Pickering and Mr Peters.
The Board having considered the letter of Colonel Malcolm, referred to them by Congress, beg leave to report:
That Officers left out of the late arrangement of the Army are not considered as retaining their rank or Command in the line.2
[Note 2: 2 This report is in thePapers of the Continental Congress, No. 147, III, folio 539.]
Adjourned to 10 oClock to Morrow.
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