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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 --WEDNESDAY, AUGUST 14, 1782
The committee, consisting of Mr. [Arthur] Lee, Mr. [John] Rutledge, and Mr. [Ezekiel] Cornell, to whom was referred a letter of the 5, from Major General Gates, brought in a report; Whereupon,
The Committee to whom the letter from Major General Gates dated August 5th 1782 was referred, have had the same under consideration and submit the following resolution--
Whereas Congress by a resolution of the 5th day of October, 1780, directed the Commander in Chief to order a Court of Enquiry to be held on the conduct of Major General Gates; and General Greene having stated that the situation of the Southern Army rendered such a Court of Enquiry during the campaign impracticable, and having also written "That he had opportunity of viewing the ground where Genl. Gates fought, as well as the disposition and order of battle, from all which he was more fully confirmed in his former sentiments, that General Gates was unfortunate, but not blamable, and that he was confident from all the enquiries he has since made General Gates will acquit himself with honor" it is therefore
Resolved, that the said Resolution of the 5th Day of October 1780 be revoked, and that Major General Gates do return to his duty in the main army as the Commander in Chief shall direct.2
[Note 2: 2 This report, in the writing of Arthur Lee, is in the Papers of the Continental Congress, No. 19, II, folio 403. General Gates's letter, dated Philadelphia, August 5, is in No. 154, II, folio 369.]
On motion of Mr. [John] Rutledge, seconded by Mr. [Ezekiel] Cornell,
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Resolved, That the resolution of the 5 day of October, 1780, directing a court of enquiry on the conduct of Major General Gates, be repealed; and that he take command in the main army, as the Commander in Chief shall direct.
On the question to agree to this, the yeas and nays being required by Mr. [Abraham] Clark,
{table}
So it was resolved in the affirmative.
The Committee [Mr. John Morin Scott, Mr. James Madison, Mr. John Witherspoon] to whom was referred the joint application of the Agents for the States of Connecticut and Pennsylvania notifying to Congress their appointment of Commissioners for hearing and determining the matter in Question between the said States, and requesting Congress to determine how much shall be allowed to the said Commissioners for their services and in what manner, and by whom they shall be paid, Report that they have duly considered such parts of the Articles of Confederation of these United States as in any wise respect the subject matter of the said notification. That in the opinion of the
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Committee no award of costs can by the law of the land be made by any Judicatory in any cause whatsoever unless provision be made for the purpose by some express and positive law.
That the Articles of Confederation are entirely silent as well with respect to the allowance to the Commissrs for their services in the present case as to the parties by whom, and the manner in which the same shall be paid. Which allowance as well as all other necessary expences, tho' they would properly, between private parties, be considered as costs of suit, yet the award of costs, as it implies not only a recompense for injury to the gaining party, but also a penalty on the losing party for litigiousness, would in the opinion of the Committee be inconsistent with the dignity of Sovereign and Independent States.
That the Committee are of opinion nevertheless that the appointment of the Commissioners having been made by voluntary act of the parties in the mode prescribed by the Articles of Confederation, the Commissioners may lawfully proceed in the execution of their trust at the expence of one of the parties, if the other party on demand made should neglect or refuse to make the necessary provision on their part for such expence.
That the usual allowance to Commissioners in similar cases, before the declaration of the Independence of these United States, was a guinea per day, and their expences, which allowance and expence were equally borne and defrayed by the parties.
That tho' Congress cannot authoritatively interpose in the present case any farther than to order the said notification to be entered on their Journals; yet as the parties have requested them to determine what allowance shall be made to the Commissioners appointed by them and in what manner and by whom the same shall be paid, the Committee beg leave to report the following Resolution to wit:
Resolved, That the written Notification subscribed by the respective agents of the states of Connecticut and Pennsylvania of the appointment of Commissioners to constitute a court for hearing and determining the matter in question between the said states, be entered at length on the Journals of Congress, to serve as perpetual evidence of the said appointment.
Resolved, That it be and it is hereby recommended to each of the said contending parties to make suitable provision for the payment of one moiety ofper day and the one moiety of the reasonable expences of each Commissioner, who shall undertake the execution
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of the trust, for every day he shall attend that service, and from time to tune as the same shall by him be required.1
[Note 1: 1 This report, in the writing of John Morin Scott, is in the Papers of the Continental Congress, No. 20, I, folio 337. The indorsement shows that it was delivered on this day, entered and read. See ante August 12 and post August 23.]
Ordered, That a letter, of 13th, from William Geddes, desiring leave of absence for three or four weeks to visit his family, be referred to the Superintendant of Finance.2
[Note 2: 2 This order was entered only in the Journal kept by the Secretary of Congress for the Superintendent of Finance: Morris Papers, Congressional Proceedings.
On this day, according to the indorsement, a petition, dated Barcelona, February 27, 1782, from John Guy Gautier, was read. It is in the Papers of the Continental Congress, No. 42, III, folio 242, and John Jay's note of transmittal is written upon it.
Also, a letter of August 13, from the Secretary at War, laying the memorial of three Canadian Officers, belonging to General Hazen's regiment, before Congress. It is in No. 149, I, folio 579.]
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