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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 --THURSDAY, NOVR. 7.
On the reconsideration the Resol: for exchanging the two for: officers its repeal was unanimously agreed to.
A motion was made by Mr. Osgood to assign an early day for filling up the vacancy in the Court of Appeals. It was opposed on the principle of oeconomy, and the expedient suggested by Mr. Duane, of empowering a single Judge to make a Court until the public finances would better bear the expence. In favor of the motion it was argued 1. that the proceedings of the Court were too important to be confided to a single Judge. 2. that the decisions of a single judge would be less satisfactory in cases where a local connection of the judge subsisted with either of the parties. 3. that a single judge would be
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more apt by erroneous decisions to embroil the U. S. in disputes with foreign powers. 4. that if there were more than one Judge, & one formed a court, there might at the same time be two interfering jurisdictions, and that if a remedy could be applied to this difficulty, the course of decisions would unavoidably be less uniform, & the provision of the confederation for a court of universal appellant Jurisdiction so far contravened. 5. as there was little reason to expect that the public finances wd. during the war be more equal to the public burdens than at present, and as the cases within the cognizance of this court would cease with the war, the qualification annexed to the expedient ought to have no affect. The motion was disagreed to & a committee which had been appointed to prepare a new ordinance for constituting the Court of Appeals, was filled up & instructed to make report.--on the above motion an opinion was maintained by Mr. Rutledge that as the court was according to the ordinance in force to consist of three Judges any two of whom to make a court, unless three were in actual appointment the decisions of two were illegal.
Congress went into the consideration of the report of the Co?ittee on the case of Capt. Asgill the British officer allotted to suffer retaliation for the murder of Capt. Huddy. The report proposed
"That considering the letter of the 29th of July last from the Count de Vergennes to Genl. Washington interceding for Capt. Asgill, the Commander-in-Chief be directed to set him at liberty."
Previous to the receipt of this letter from the Count de Vergennes Congress had been much divided as to the propriety of executing the retaliation, after the professions on the part of the British commanders, of a desire to carry on the war on humane principles, and the promises of Sr G. Carleton to pursue as effectually as possible the real authors of the murder; some supposing that these circumstances had so far changed the ground that Congress ought to recede from their denunciations, others supposing that as the condition of the menace had not been complied with, and the promises were manifestly evasive, a perseverance on the part of Congress was essential to their honor & that moreover it would probably compel the enemy to give up the notorious author of the confessed murder. After the receipt of the letter from the Count de Vergennes, Congress were unanimous for a relaxation. Two questions however arose on the report of the committee. The 1st. was on what considerations the discharge of Cap. Asgill ought to be grounded. On this question a diversity of opinions existed. Some concurred with the committee in resting
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the measure entirely on the intercession of the French Court: alledging that this was the only plea that could apologize to the world for such a departure from the solemn declarations made both by Congress and the Commander in Chief. Others were of opinion that this plea if publicly recited would mark an obsequiousness to the French Court and an impeachment of the humanity of Congress, which greatly outweighed the circumstance urged in its favor; and that the disavowal of the outrage, by the British Genl. and a solemn promise to pursue the guilty authors of it, afforded the most honorable ground on which Congress could make their retreat; others again contended for an enumeration of all the reasons which led to the measure; lastly others were against a recital of any reasons & for leaving the justification of the measure to such reasons as would occur of themselves. This last opinion after considerable discussions prevailed, and the Resol. left as it stands on the Journals. The 2d question was whether this release of Cap: Asgill should be followed by a demand on Gel. Carleton to fulfil his engagement to pursue with all possible effect the authors of the Murder.
On one side it was urged that such a demand would be nugatory after the only sanction which could enforce it had been relinquished; that it would not be consistent with the letter of the Count de Vergennes which solicited complete oblivion, and that it would manifest to the public a degree of confidence in British faith which was not felt and ought not to be affected.
On the opposite side it was said that after the confession & promise of justice by Gel. Carleton, the least that could be done by Gel. Washington would be to claim a fulfilment; that the intercession of Ct. de Vergennes extended no farther than to prevent the execution of Capt: Asgill, and the substitution of any other innocent victim; and by no means was meant to shelter the guilty; that whatever blame might fall on Congress for seeming to confide in the promises of the enemy, they would be more blamed if they not only dismissed the purpose of retaliating on the innocent, but at the same time omitted to challenge a promised vengeance, on the guilty, that if the challenge was not followed by a compliance on the part of the enemy, it would at least promulge and perpetuate, in justification of the past measures of Congress, the confessions & promises of the enemy on which the challenge was grounded; & would give weight to the charges both of barbarity and perfidy which been so often brought agst. them.
In the vote on this question, 6 States were in favor of the demand & the others either divided or against it.
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