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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, SEPTEMBER 14, 1781

Journals of the Continental Congress, 1774-1789
FRIDAY, SEPTEMBER 14, 1781

A report from the committee of the week was read; Whereupon,

The Committee of the Week report,

That the petition of Stephen McCrea praying for an allowance of Interest on Cash advanced by him for the publick use in Decr. 1776 be referred to the Board of Treasury to take order.

That the petition of Owen Ferris purporting that he is sued for a Debt due from him as a Quarter master and praying for relief be referred to the Board of Treasury.¹

[Note 1: 1 This report, in the writing of George Partridge, is in the Papers of the Continental Congress, No. 32, folio 251.]

Ordered, That a petition of Stephen McCrea be referred to the Board of Treasury to take order;

That a petition of Owen Ferris be referred to the Board of Treasury.

A report from the Board of Treasury was read; Whereupon,

Ordered, That the sum of four thousand nine hundred and one dollars and 41/90 of a dollar in specie certificates payable in one year be advanced to Samuel Miles, quartermaster for Pensylvania, on account of Colonel T. Pickering, quarter-master general, for the payment of a brigade of teams employed in the public service, and for which sum the said quartermaster general is to be accountable.²

[Note 2: 2 This report is in the Papers of the Continental Congress, No. 136, V, folio 463.]

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The committee to whom was re-committed the report on the memorial of Thomas Savage delivered in a report.

The Committee to whom was recommitted their report on the foregoing petition report the following resolution viz:

Resolved, That the Inhabitants of the Island of Bermuda be permitted freely to import Salt into any of the United States 'till the farther Order of Congress, any former Resolutions or Ordinances to the contrary notwithstanding; And all Commanders of Armed Vessells or others citizens of any of the United States are strictly charged and commanded from and after the fifteenth day of October not to molest any of the said Inhabitants navigating upon the high Seas, loaded with Salt, or utensils for procuring the same, or on their Passage from any of the United States to the said Island, provided that on such return they shall be furnished with a Certificate or Clearance of their Cargoes from the Officer of the Port from whence they last departed.

Resolved, That the said Inhabitants be permitted to export in Return for their Salt, Rice, Wheat, Indian Corn, Rye or Barley in Grain.

Resolved, That in proportion to every hundred Bushels of Salt imported as aforesaid, the said Inhabitants, in addition to the grain aforesaid, be permitted to export two Barrels of Beef or Pork and two Barrels of Flour over the above the Provisions necessary for their voyage.

The committee to whom was recommitted their report upon the petition of Thomas Savage report that in lieu of the last resolution formerly reported be inserted the following proviso and resolve:

Provided, That the said Inhabitants be not permitted to export more than Eighty Thousand Bushels of Grain of every kind in the Space of one Year, and in Proportion thereto Monthly; That is to say from the State of New HampshireBushels; M[assachusetts],Bushels &c.

Resolved, That it shall not be lawful to export Money, or any other Articles in Return for the Salt aforesaid, excepting Grain as aforesaid.

Resolved, That the Passports granted to the States of Virginia and Maryland, by a Resolution of theday ofso far as the same have not been actually applied, be and the same are hereby recalled.

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Resolved, That the Quantity of Grain that may be exported by Virtue of any of the Passports aforesaid, be considered as part of the Proportions of said States, mentioned to be exported aforesaid.

Resolved, That no Grain shall be exported by Virtue of these Resolutions till Stipulation be made in the Naval or Clearance of the State from whence the same is to be exported, for discharging the same in the said Island, and for appropriating the same for the Sole Use and consumption of the Inhabitants thereof; which Stipulation shall not be cancelled till a Certificate be produced from three reputable Inhabitants of said Islands Friends to the United States, ascertaining a full Compliance with the Conditions aforesaid.¹

[Note 1: 1 These reports, in the writing of James Mitchell Varnum, are in the Papers of the Continental Congress, No. 41, IX, folios 177 and 179. See September 28, when they were rejected.
The following paragraph was submitted. It is in George Walton's hand and is in the Papers of the Continental Congress, No. 41, IX, folio 181:
Which said quantities of grain shall extend so far as may be wanting for the support of the inhabitants of the Island aforesaid, and that such vessel or vessels as may be employed in bringing the said salt shall give bond and security, that the said grain be landed in Bermudas and upon a certificate being produced from three gentlemen of reputation, friends to the American cause, to be appointed by the inhabitants, the said bond shall be cancelled.
And the following, which is on folio 183:
Resolved, That the grain exported to said Island of Bermuda by virtue of the foregoing resolution in any one year from any one State in the union shall not exceed the amount ofthousand bushels.]

On motion of Mr. [Edmund] Randolph, seconded by Mr. [Roger] Sherman,

Resolved, That until the ratification of some convention between his Most Christian Majesty and the United States, concerning vice consular power, every vice consul of his Most Christian Majesty shall, upon the application of the consul appointing him to the supreme executive power of the State to which he may be sent, receive the exequatur, in like form with the exequatur delivered to a consul mutatis mutandis, and thereupon, the same proceedings shall be had with respect to publication.²

[Note 2: 2 This resolution was also entered in the manuscript Secret Journal, Foreign Affairs.]

Ordered, That the election of a comptroller, treasurer and register be postponed till Tuesday next.

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The committee on the letter, of 28 August, from the governor of Rhode Island, &c.; and

The committee on the letter, of 23 August, from Major General the Marquis de la Fayette, and a paragraph of a letter, of 14 May, from the honble. Doct Franklin, delivered in their respective reports.

Congress resumed the second reading of the ordinance respecting captures, and some time being spent thereon:

AN ORDINANCE RELATING TO CAPTURES.

In pursuance of the powers delegated by the Confederation in cases of Capture on Water.

Be it ordained by the United States in Congress assembled, that N.o. 1. A from and after the first day of November next all resolutions and ordinances of Congress relating to captures or recaptures on water and coming within the purview of this ordinance shall be null and void: But questions of this nature arising N.o 2. before or which shall be undetermined at that day shall be determined at any time during the War with Great Britain according to them, in the same manner, as if this ordinance had never been made.

It shall be lawful to capture and to obtain condemnation of the property hereinafter enumerated if found below high water mark; that is to say.

I. All ships and other vessels of whatsoever size or denomination belonging to an enemy of the United States, with their rigging, tackle, apparel and furniture.

II. All goods wares and merchandizes belonging to and found on board of a ship or other vessel of such enemy.

III. All contraband goods, wares and merchandizes belonging to such Enemy in the ship or other vessel of whatsoever nation found.

IV. All contraband goods, wares and merchandizes to whatever B nation belonging, altho' found in a neutral bottom, if destined for the use of an Enemy.

V 3. All ships or other vessels, goods, wares, and merchandizes belonging to any power or the subjects of any power against which letters of marque or reprisal shall have issued.

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VI 4. All ships or other vessels with their rigging, tackle, apparel and furniture and with their cargoes to whatsoever nation belonging, destined to any port or place invested, besieged or blockaded, by a sufficient force belonging to in the service of or co-operating with the United States, so effectually as that one cannot attempt to enter into such port or place without evident danger.

VII. All ships or other vessels, with their rigging, tackle, apparel and furniture, and with their cargoes, found in the possession of pirates.

The goods wares and merchandizes to be adjudged contraband are the following, that is to say, Cannons, Mortars, fire N.o. 3. arms, pistols, bombs, granadoes, bullets, balls, fusees, flints, matches, powder, salt-petre, sulphur, cuirasses, pikes, swords, belts, pouches, cartouche boxes, saddles and bridles, D in any quantity beyond what may be necessary for the ship's provision and may properly appertain to and be judged N.o. 4. necessary for every man of the ship's crew or for each passenger.

If it shall manifestly appear that of any entire thing of which division cannot be made without injury to its value a subject of the enemy and a citizen or a subject of a foreign power not being an enemy are joint holders, the whole shall be condemned and sold for gold or silver; the proper proportion of the net proceeds of which shall be deposited in the treasury of the State in which the sale shall be, to be paid to the order of such citizen or the subject of such foreign power.

If such division can be accomplished, but neither the citizen nor the subject of foreign powers nor his agent shall require specific restitution of his property there shall be a sale in the same manner as if the property were indivisible. But if in such case a requisition be made to this effect, the due proportion shall be No. 5. specifically restored according to the ratio of the number and value of the property

Whose property shall have been originally captured on land from a citizen of the United States and shall be recaptured below high water mark by another citizen thereof restitution shall be made to the former owner upon the payment of a reasonable salvage not exceeding one fourth part of the value, no regard being had to the time of possession by the enemy.

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In all cases of recapture by an armed vessel fitted out at the No. 6. expence of the United States of a vessel or other effects belonging to a citizen the Court shall adjudge the proportion which would be due to the United States of such recapture to be remitted to the original owner such citizen; no regard being had to the time of possession by the enemy.

In all other cases of recapture restitution shall be made to the owner upon payment of one third part of the true value No 7. for salvage, if the property shall have been retaken in less than twenty four hours after the capture.

But if it shall not have been retaken until the expiration of twenty four hours after the capture restitution shall not be made of any part.

Besides those who are duly authorised to make captures by a No. 8. E special commission, captures of the property of an enemy shall be allowed adjudged lawful,

1. when made by a private vessel not having such commission No. 9. satisfactory proof being produced, that they were made in pursuing the course of her voyage and repelling a previous attack from an enemy.

2. by any body or detachment of regular soldiers. 3. by inhabitants of the Country, if made within No 10. cannon shot of the shore.

4. by an armed vessel sailing under a commission of his Most Christian Majesty.

5. by the crews of British vessels, while captures of this sort are licensed by the British.

Recaptures shall be made by no other person than those authorized to make Captures, except the Crews of vessels retaken.

The destruction of papers or the possession of double No. 11. papers by any captured vessel shall be considered as evidence for condemnation unless good cause be shown to the contrary.

From and after the first day of November which shall be in the year of our Lord one thousand seven hundred and Eighty-one, any letters of passport or safe conduct granted before the twenty seventh day of March last under the Authority of Congress to any person whatsoever for removal of property from a place beyond sea within the Dominions or possessions of the British King shall be void.

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Upon the capture of a vessel commissioned as a Man-of-War or privateer, by any of the ships vessels of war of the United States of America, the whole of the property condemned shall be adjudged to the captors to be divided in the following manner, that is to say No. 12.

Upon the capture of any other vessel if made by a * vessel of war belonging to the United States, one half of the property condemned shall be decreed to the United States, and the other half to the captors to be divided as aforesaid; if by a No. 13. private vessel not having a Commission the whole shall be decreed to the captors to be divided as aforesaid: if by any body or detachment of regular soldiers regular or other troops in the service of the United States, the whole shall be adjudged to the captors to be divided as aforesaid to be divided according to the portions of pay respectively allowed them in proportion No. 14. to the pay in the line of the army; if by inhabitants of the country being in arms, the whole shall be adjudged to the captors to be divided as aforesaid equally among them, No. 15. provided that if any such inhabitant shall be wounded in making the capture, he shall be entitled to two shares and if killed his legal representatives shall be entitled to four No. 16. shares: if by the crews of British vessels, the whole shall be adjudged to the captors (except in these instances which the capture may belong to an American citizen), divided at the discretion of the Court.

On recapture by an armed vessel belonging to the United No. 17. States of a vessel under the protection of a vessel belonging to the enemy equipped in a warlike manner commissioned as a man-of-war or privateer, or where the vessel retaken is equipped in a warlike manner, the proportion to be No. 18. withdrawn from the original owners shall be divided as in the case of a capture of an enemy's vessel equipped in a warlike manner commissioned as a man-of-war or privateer.

On recapture by an armed vessel belonging to the United No. 19. States of a vessel under the protection of an hostile vessel not equipped in a warlike manner commissioned as a man-of-war No. 20. or privateer; and where the vessel retaken is not equipped in a war-like manner the proportion to be

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withdrawn from the original owner shall be divided as in the case of an hostile vessel not equipped in a warlike manner No. 5. commissioned as a man-of-war or privateer.

The rules of decision in the several courts shall be the resolutions and ordinances of the United States in Congress assembled, public treaties, when declared to be so by an act of Congress, and the law of Nations, according to the general usages of Europe. Public treaties shall have the preeminence in all trials.

This ordinance shall commence in force on the first day of November next

Done &c.¹

[Note 1: 1 This report, in the writing of Charles Thomson, is in the Papers of the Continental Congress, No. 59, III, folio 273. The following paper, in the writing of James Madison, indicates the amendments which were made at his suggestion. It is on folios 280, 295, and 280:

• No. 1. After Captures--or recaptures.
• No. 2. After "before" insert, "or which shall be undetermined at."
• No. 3. After rule VII. insert--The goods, wares, and Merchandizes belonging to an Enemy (contraband goods and goods destined to a blockaded or besieged port being always excepted) found in a vessel, belonging to a foreign nation other than an enemy, shall in no case be subject to condemnation.
• No. 4. Add to the list of contraband, cables, large ropes, Masts &c: or substitute the list in the Treaty between U.S. and France.
• No. 5. Strike out the words after restored to the end of paragraph. After value--no regard being had to the time of possession by the Enemy and
• No. 6. Strike out the paragraph and substitute the following: "In all cases of recapture by an armed vessel fitted out at the expense of the U.S. of a vessel or other effects belonging to a citizen the Court shall adjudge the proportion which would be due to the U.S. to be remitted to such citizen; no regard being had to the time of possession by the enemy.
• No. 7. See papers [here the paper is torn off] time of possession by the Enemy.
• No. 8. Strike out allowed and insert "Adjudged lawful."
• No. 9. Between made and in insert "in pursuing the course of her voyage."
• No. 10. Cannon shot of shore.
• No. 11. Alter so as to read thus: The destruction of papers unless good cause be shewn therefor, or the possession of double papers by a captured vessel, shall be
• considered as evidence for condemnation.No. 12. See paper No. 12.
• *After half add: "of the property condemned."
• No. 13. Strike out "to be divided as aforesaid."
• No. 14. Strike out as aforesaid and insert: "According to the proportions of pay respectively allowed them."
• No. 15. Strike out as aforesaid and insert: "equally among them, provided that if any such inhabitant shall be wounded in making the capture he shall be entitled to two shares, and if killed his legal representative shall be intitled to 4 shares."
• No. 16. Strike out the parenthesis.
• No. 17. Between recapture and of insert by an armed vessel belonging to U.S. No. 18. Strike out the word "so" and after equipped add "in a warlike manner."
• No. 19. Between recapture and of insert, by a vessel of war an armed vessel belonging to U. S.
• No. 20. Strike out "so" and after equipped add in a warlike manner.

Paper No. 12 referred to is also in Madison's writing and is on folio 281. It is as follows:
No. 12. To the Commander in Chief of the Navy of the United States shall be allotted 1/20 part of all prizes taken by an armed vessel or vessels under his orders and command: when there shall be no such commander in chief the 1/20 part allotted to him shall be paid into the Treasury of the United States. To the Captain of any single armed vessel 2/20 parts, but if more ships or vessels be in company when a prize is taken then the 2/20 parts shall be divided equally among all the Captains.
To the Captains of Marines, Lieutenants and Masters 3/20 parts of all prizes taken when they are in company, to be divided equally among them:
To the Lieutenants of Marines, Surgeons, Chaplains, pursers, boatswains, gunners, carpenters, masters mates and the secretary of the fleet 2/20 parts and one half of 1/20 part to be divided equally among them:
To the following petty warrant officers, viz: Midshipmen, (allowing for each ship six, for each Brig four and for each sloop two) Captains Clerks, Surgeons Mates, Stewards, Sail Makers, Coopers, Armourers, (allowing for each vessel one of each only) boatswains mates, Gunners Mates, Carpenters Mates, (allowing for each vessel two of each) Cooks, Cockswains (allowing for each vessel one of each) Serjeants of Marines (allowing 2 for each ship and 1 for each brig and sloop) 3/20 parts to be divided equally among them. And when a prize is taken by any vessel on board or in company of which the Commander in Chief is, then the Commander in Chief's Cook or Cockswain shall be added to the said petty warrant officers, and share equally with them:
The remaining 8/20 parts and 1/2 of 1/20 part shall be divided among the rest of the vessels company or companies, as it may happen, share and share alike.
No officer nor man shall have any share but such as are actually on board their several vessels when any prize or prizes shall be taken, excepting only such as may have been ordered on board any other prizes before taken or sent away by his or their commanding officers:
The following paper, in the writing of James Lovell, has reference to the report as indicated by the marginal letters. It is on folio 293.
REMARKS ON THE PROPOSED ORDINANCE OF CONGRESS RELATING TO CAPTURES

• A. Not sufficiently clear in the expression should be thus "Nevertheless all captures and recaptures which shall have been made and all admiralty suite and causes which shall have been instituted before the said -- day of -- shall be conducted adjudged and determined upon in same manner as if this ordinance had not been made."
• B. If destined for the use of an Enemy--Quere--how shall this be ascertained?
• C. This article being very important I beg leave to observe upon it; that an enemy may by virtue thereof cover the whole of their property upon the seas, unless the Law could point out such Substantial Proofs of the property of the Ship as cannot easily be counterfeited or procured for the purpose of deception as for instance, that every Ship said to be neutral shall produce her Register with the official seal of the neutral nation; or if transfers have been made those transfers certified and authenticated by the like official seal--otherwise she stroll not be deemed a neutral Bottom so as to protect enemies goods on board. At any rate I think the word Capture in this clause C. should be omitted, as captains of Privateers cannot judge at sea of the propriety of the Capture in nice cases. If they take without any Colour of Law, they are subject to pay costs, Damages and other penalties; but if the case should be a doubtful one they ought to take and let the Court determine, whether Prize or not. This prohibition may perhaps be construed to subject them to damages in all cases of acquittal, however doubtful the case may be.
• D. Quere--Should not cables, large ropes, masts &c. necessary for a Fleet be included?
• E. After the Words "shall be allowed" add--and adjudged agreeably to the Laws of this ordinance. Quere--as to non-commissioned vessels: Regular soldiers or citizens inhabitants cannot take unless the property be driven on the shore or very near it. All other parts of the ordinance restrict the jurisdiction to the limits of low water mark, within cannon shot of the shore. Is it intended that the Prize shall be taken by Cannon shot from the shore; or that the inhabitants may go out in Boats and take prizes in that distance without commission. The distance had better be ascertained by miles.
• F. Should be thus

Any Captured vessel having double papers or clearances shall be subject to condemnation.
The following, in James Madison's writing is on folio 283:
EFFECTS SUBJECT TO CAPTURE AND CONDEMNATION

• I. All ships and other vessels of whatever size or denomination belonging to any Enemy of the U.S. with their rigging, apparel and furniture:
• II. All goods, wares and merchandizes, belonging to, and found on board a ship or vessel of such Enemy:
• III. All contraband goods, wares, and merchandizes belonging to Qu: as to this such Enemy, in whosesoever ship or vessel found and whithersoever destined:
• IV. All goods, wares, and merchandizes found in a hostile bottom, to whomsoever belonging, and whithersoever destined:
• V. All contraband, goods, wares, and merchandizes to whomsoever belonging, destined to any port or place for the use or operations within the dominion or possession, [or to a fleet at sea or elsewhere] of such enemy:
• VI. All vessels, goods, wares and merchandizes, taken by virtue of letters of marque or reprisal:
• VII. All vessels with their cargoes, to whomsoever belonging, destined to any port or place, blocked up by vessels of war belonging to, in the service of or co-operating with the U. States: (insert besieged and shut up by batteries.)
• VIII. All vessels with their cargoes in the possession of Pirates or Robbers on the high seas--if they be not claimed within a year and a day--if claimed within that time, to be restored reserving 1/3 for salvage to the captor (Salvage to be discretionary).

The following Captures shall not be lawful, viz:

• I. Of vessels belonging to a foreign nation not associated in the war with the Enemy other than an enemy although laden with articles belonging to the Enemy; vessels bound to a blockaded place being always excepted:
• II. of property belonging to an Enemy found in bottoms belonging to such foreign nation: Contraband articles being always excepted:
• III. of vessels or other property to whomsoever belonging, under protection of such foreign power.

No Prince nor State, nor subject of either, shall be adjudged an Enemy, until some act of the United States in Congress assembled shall be made declaratory thereof. But if a hostile attack be made prior to such declaratory act by any armed vessels belonging to such Prince or State or the subjects thereof, being authorised for that purpose, or any vessel belonging to the citizens in such case the capture of the vessel so attacking, shall be adjudged lawful.
The goods, wares and merchandizes to be adjudged contraband are the following to wit:
Such port or place only is to be considered as blocked up, into which no vessels of war stationed there, or land batteries.
The following, in James Mitchell Varnum's writing, is on folio 279. It was not incorporated in the ordinance:
If such goods, wares and Merchandize should be water borne in any neutral or other vessel, navigating northward of the Latitudeand evidently destined to any port within the United States, the same shall be liable to Capture and condemnation; provided, however, that upon proofs being made that such goods, wares and Merchandize shall be free, if proof be made of their having been previously captured by an Enemy at War with Great Britain, and legally condemned.
See under December 4.]

Adjourned to 10 o'Clock on Monday.

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