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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 --MONDAY, DECEMBER 23, 1782
The committee, consisting of Mr. [James] Madison, Mr. [Alexander] Hamilton, and Mr. Fitzsimmons [Thomas] McKean, to whom were referred a letter from Major General Greene, of the 28 October last, and sundry papers accompanying the same, having made the following report:2
[Note 2: 2 Greene's letter is in the Papers of the Continental Congress, No. 155, II, folio 552. It was referred, the indorsement says, on December 10, on which day it was read, to Mr. [James] Madison, Mr. [Alexander] Hamilton, Mr. [John] Rutledge.]
That it appears from the papers referred, that the executive authority of the State of South Carolina, had claimed in behalf of the original owners, citizens of the said State, sundry horses re-captured on land, from the enemy, by a detachment of the forces of the United States, on the general principle "that original owners are entitled to restitution
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of all re-captured property;" that a council of war, to which the said claim was referred by Major General Greene, had decided against its validity, and that he has finally submitted the case to Congress.
On this subject the committee beg leave to observe, that by the 9 of the Articles of Confederation, the United States in Congress assembled, are invested with the sole and exclusive right and power inter alia, of "establishing rules for deciding in all cases what captures on land or water shall be legal, and in what manner prizes taken by land or naval forces in the service of the United States, shall be divided or appropriated," which power, as it involves that of deciding on the right of the enemy to the property captured, necessarily extends to cases of re-capture:
That with respect to captures and re-captures on water, general provision hath been made by several ordinances and acts of Congress:
That with respect to captures on land, partial provision only hath been made; and for cases of re-capture on land, no provision at all, it having been left to the discretion of the military commanders to conform, in the cases omitted, to the general rules of justice and the customs of war, as observed by civilized nations:
That the particular case in question, having been decided in the mode practised in the army in like instances, cannot with propriety be re-judged by Congress, to whom is delegated in cases of capture, a legislative only, and not a judiciary authority:
That nevertheless, since it is both the duty and disposition of Congress, to render the arms of the United States as subservient as possible to the just interests of individuals, as well as to the general defence; and since restitution has been ordained to the original owners, in cases of re-capture on water of property previously captured by the enemy on land,
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the committee are of opinion, that it is expedient to remit in favor of the original owners, the property re-captured by Colonel Kosciuszko, and retained for the use of the United States.
Upon this view of the subject, the committee propose the following resolutions:
That until such general provision shall be made, all property, dead victuals and provender of all kinds being excepted, which shall be recaptured on land from the enemy by forces in the service of the U. States and which shall be satisfactorily proven to have been previously captured from any individual State or without collusion captured or plundered from any inhabitant of the United Negatived. States which shall be specifically restored to such State or to such inhabitant, on their paying therefor such sum not exceeding ¼ of its value, as may have been promised by the Commanding Officers of the Department to the recaptors, or as may be deemed by him a proper compensation to them; provided always that where slaves shall be so re captured restitution shall be made without demand of such sum from the original owners, and provided that this
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resolution shall not be construed to extend to property brought off from the enemy by deserters.1
[Note 1: 1 This report, in the writing of James Madison, is in the Papers of the Continental Congress, No. 19, II, folio 497b.]
The question being taken on the first resolution, resolved in the affirmative.
When the second was under consideration, a motion was made by Mr. [John] Rutledge, seconded by Mr. [John Lewis] Gervais, to strike out the words "and accruing to the use of the United States:"
And on the question, shall those words stand? the yeas and nays being required by by Mr. [John Lewis] Gervais,
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So it was resolved in the affirmative.
The Committee consisting &c. to whom was referred the motion of Mr. [Richard] Peters with respect to keeping the information received by and the parts of the Congress or the proceedings of
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Congress secret so far as the same may be proper or directed by Congress submit the following report.
That it has heretofore been thought expedient by a former Congress that each member on taking his seat should subscribe a written Declaration binding him in the most solemn manner to keep the secrets committed to him as a Member of Congress, and your Committee are of opinion that a similar practice is at least as necessary at this time as in any former period. They therefore propose the following as a draft of a declaration to be signed by each Member of the United States in Congress assembled at present acting therein and by all persons who shall hereafter take their seats as such.
I, A. B., do most solemnly pledge my faith and sacred honour, that I will on no account whatsoever divulge in the whole or in part any information received by Congress or any of their proceedings specially directed by the majority of the United States in Congress assembled to be kept secret, or which shall be by them declared to be in their nature secret, without previously obtaining the leave of Congress for that Purpose either by a general or special order; and that I will hold any person who shall violate this declaration as unworthy the society of men of honour and probity and of course an improper and faithless member of the a Body whose political consequence influence and weight of character so much depends on the individual reputation of its members--and I do hold myself bound by this declaration as well while I shall remain a member of that body as after I shall become a private citizen.
Ordered, That all matters specially directed to be kept secret shall be noted particularly in the journals by the Secretary, that no mistakes may arise on the subject.
That all informations from or communications to the ministers of these States in foreign Parts and all Plans Designs or Information respecting intended military expeditions shall be in their nature deemed secret and not to be communicated without the special license of Congress.1
[Note 1: 1 This report, in the writing of Richard Peters, is in the Papers of the Continental Congress, No. 23, folio 47. According to Committee Book No. 186, a committee, consisting of Mr. [Richard] Peters, Mr. [Hugh] Williamson and Mr. [John Taylor] Gilman, was appointed, December 23, "to report the rules heretofore observed by Congress with respect to keeping secret the information received by them or any part of their proceedings, and to report any further regulations which may be necessary to adopt on that subject." It does not appear when the report was presented.
On this day, according to the indorsement, a letter was read from General Washington, dated Head Quarters December 16, relative to Captain Asgill. It is in No. 152, XI, folio 41.]
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