From John Sullivan, with Petition of John Penhallow
Annapolis Jany 6th 1784
I have selected the papers you were pleased to mention, have numbred them from one to Thirty and noted their Contents in the enclosed Minutes. In my state of objections which I beg you will peruse I omitted to mention that the Claimants have upon obtaining the Decree brought Trover for the vessel and Cargoe and attached the Cargoe of goods to a very great amount which are now held to respond the Judgment, and must wait the decision of Congress on the remonstrance from the Legislature of New Hampshire. This alone seems to furnish a powerful argument in favor of a speedy Decision. I confess myself unable To discover the necessity of giving notice to the Court of Appeals. The Confederation is before the Committee and Congress will put their own Construction upon the Articles whatever may be the opinion of the Court of appeals. The Laws of New Hampshire are before the Committee and the proceedings of the several Courts are obvious; That an appeal was not granted is indubitable; and that by the Laws of New Hampshire no appeal could be granted is beyond controversy: And that the Court of Appeals have taken up and passed upon a matter thus circumstanced cannot be denied.
The first Question, therefore is whether by the Articles of confederation that Court could be vested with such power and 2dly whether if they had such authority by way of appeal they could possibly exercise it without any appeal being had. Surely both these Questions may and ought to be determined by Congress without the voice of the Judges of that Court. When writs of prohibition, Certiorari or mandamus Issue I know of no Instance of the Judges of the Inferior Jurisdiction being called upon to Account for their Conduct and I think it Less necessary in the present than in either of the Cases before mentioned: should it be suggested That by the ratification of the confederation in 1781 it would bear a Retrospective Construction to the time of its formation it may be well to consider the difficulty of fixing the period of its operation. The time of its signing by the members was not at the same time but many months different. Whether Each was bound by the signing of its own Members or all by the signature of the first will become an important Question and as Congress did not act agreably to the Rules Laid Down by the articles of Confederation untill the accession of Maryland it may become a Question no less important whether the proceedings of that honorable Body from 1778 to 1781 are not a mere nullity. All mony grants without nine states and all determinations where less than seven agreed may upon that principle be with propriety disputed. I flatter myself therefore that the view of these and many other difficulties which might be mentioned As naturally arising from that Construction will induce the Committee to confine the operation of the Articles of union to the Day of their ratification; I have the honor to be very respectfully sir your most obedt servt,
Portsmouth October 20. 1783.
The Petition and Memorial of John Penhallow, Joshua Wentworth, Ammi R. Cutler, Nathaniel Folsom, Samuel Sherburne, Jacob Treadwell, Thomas Martin, Moses Woodward, Neal McIntyer, Nathaniel Sherburne in behalf of Daniel Sherburne deceased Keith Spence, George Turner, Richard Champney, Elizabeth Dalling in behalf of Thomas Dalling deceased and Robert Furness all of Portsmouth in the County of Rockingham and State aforesaid, Humbly sheweth. That your Memorialists in the year 1777 were owners of a Brigantine called the McClary being a private armed vessel duly authorized and commissioned to cruise against the enemies of the United States of America, which Brigantine so authorized sailed from Portsmouth, and soon after on the high seas in the month of November in the same year, captured and brought into the port of Piscatagua the Brigantine Lusanna with her cargo and appurtenances which they caused to be libelled in the maritime Court for said State, agreeably to the laws thereof, as British property, as being in the service of the enemy and then carrying supplies to the British fleet and garrison at Hallifax. At the same time in the same Court the principal part of said property was claimed by Elisha Doane and Isaiah Doane of wellfleet in the Commonwealth of Massachusetts, and one James Shepherd an American but at that time in Great Britain. The said Elisha Doane claiming the vessel and the largest part of her cargo. After a full and fair hearing, the Jury gave verdict for the condemnation of the vessel and the whole of her cargo and the Court proceeded to decree thereon agreeably to said verdict; from which decree the said claimants demanded an appeal to the Continental Congress; but the Court on examining the laws of this state found that they allowed of appeals to Congress only in cases where the prizes were taken by vessels fitted out at the charge of the United States, and in every other instance directed that the appeal should be to the superior Court of Judicature for this State. The Court therefore refused the claimants an appeal to Congress, but granted them at their request an appeal to said superior Court, where in September following, at Exeter, the cause was again tried, and after the fullest and most candid hearing thereof by a Jury approved by both parties, they gave a verdict confirming that of the Court below; and the Court proceeded to the definitive sentence agreeably thereto, from which last decree the claimants again demanded an appeal to Congress, which the said superior Court unanimously refused as directly contrary to law; and then proceeded to issue a precept to the sheriff as the law directed, requiring him to sell the said vessel and effects at public vendue, and make distribution among the Captors and others concerned according to law; and the Sheriff made the sale and distribution accordingly with a due return to said Court of his doings therein.
Here we flattered ourselves this very troublesome cause ended, when to our great surprize in May 1779 your Memorialists received a very short notification from some persons at Philadelphia (who it seems were appointed a Court of Commissioners in all maritime causes) acquainting them that the same cause (already twice tried, and by the laws of this State completely ended) was brought before them by Col. Doane & al: by way of complaint and would be again tried on the 21st. day of June then next, at Philadelphia. Notwithstanding the surprize of your memorialists at so unexpected a summons, they proceeded with the greatest caution and prudence. They consulted Counsel thereon, and were by them advised to send a person to appear in their behalf at Philadelphia on the day appointed for the trial, there to plead to the jurisdiction of the Court, deny their authority to take cognizance of this cause, and strenuously urge as a principal reason for such a plea. That such an authority was directly repugnant to, and a violation of the laws of this State, by which your memorialists held their lives and all that is dear to them, and which very laws were made in consequence of a Resolve of Congress, in which they particularly recommended the trial by Jury which this new constructed Court entirely took away. This plea was made and enforced by Counsel which your memorialists engaged in their behalf at Philadelphia, but with no other effect than to produce a suspension of a trial on the merits ‘till the matter could be laid before the Legislature of this State, in order that they might be prevailed upon to rescind and wholly disannul that law of this state upon which the whole process was bottomed. This the Legislature utterly refused to do. But passed an act giving an appeal to Congress in cases where foreigners were claimants, and in that alone and even this did not retrospect but only related to future causes. This act with the determinations of the General Assembly for this State was seasonably transmitted to Philadelphia to be laid before a new Court of appeals, the first being abolished; together with instructions to your Memorialists Counsel to renew the plea to the jurisdiction of the Court (in case they should presume to try the cause) and should this fail, to intreat a continuance of the cause until your memorialists should receive some material evidence from Great Britain, which they had already sent for, relative to the payment of the insurance on this property. They were also at the expense of again sending a person on purpose to attend the Court at Philadelphia, and instruct the Counsel. But to his and their great astonishment, before he arrived there the cause was brought on, the plea to the jurisdiction was over ruled, the laws of this State were treated with the utmost redicule. The plea for the continuance was wholly disregarded, and the said Agent arrived there just in season to hear the decree of the Court, which reversed the sentences of our Superior and Inferior maritime Courts, and ordered a restoration of the property to the claimants.
In this manner a cause so essentially affecting the Sovereignty and Independence of this State, as well as the rights and property of your memorialists, was decided, without their being cited by the Court of Appeals to appear, or even informed by advertisement in any Gazette of the time or place of the setting of the Court.
Since these very extraordinary, extra-judicial proceedings your memorialists have been threatened on their refusal to comply with the said sentence with being dragg’d to Philadelphia, and there put to bail, or imprisoned until they shall restore the said property or pay a sum amounting to many times the prime cost thereof, both of which are utterly impossible. The goods having many years since been distributed among a thousand hands, and now entirely consumed. And as to the money, they conceive that justice and the laws of the State will protect them from being obliged to pay Besides the illegal and assumed authority of this extraordinary Court of Appeals in this case, and their very extraordinary conduct preceding their final decree, there is something if possible, still more astonishing in the decree itself.
The evidence which was laid before them at the trial on the merits was the same that appeared at our Courts, and is in substance as follows. It was clearly and incontestably proved by the papers found on board the vessel (which is the evidence pointed out, as well by the resolves of Congress, as by the laws of the State) that the vessel was bound to Halifax, and it was proved by witnesses then lately arrived from thence, that there were then at that place a British fleet and garrison. That her cargo was to be delivered at Halifax, part of which was manifestly designed for the use of the army and navy there. The supercargo thereof (one Shearjashub Bourne) a Son in law to Elisha Doane, was strongly recommended to several of the principal governmental officers at Halifax, as a zealous friend of the British Government, as having several other vessels which he would gladly get into their service, and whose design was to purchase prize vessels at Halifax to be employed in that way. It appeared from his own memorial to the Lords of trade, that he fled from america, from persecution, as he called it, from his Countrymen whom he modestly stiled Rebels, that he employed Governor Hutchinson to assist him in that business, that he had employed the same vessel but the voyage before in carrying Ordnance Stores to Gibraltar, and caused her to wear British Ordnance Colours, that he had uniformly in all his letters to London, Bristol &c. called her his and at the Custom house took out a register, swearing that he was the sole owner thereof. The invoice of the goods was marked with the initial letters of his name. They were not charged at the cash price but higher; which would not have been the case, had they been the property of Elisha Doane, who they proved had then money in the hands of the gentlemen who shipped them. The vessel was insured at a high premium in London. The greatest part of which was expressly against American Privateers and she sailed with a British convoy. These are some of the circumstances that fully appeared at the trials here, and at Philadelphia. In addition to all which, it can now be proved by the confession of said Bourne and Shepherd that the Insurance on this property has since been paid, over and above all this, Elisha Doane died long before this trial, so that the decree is principally in favor of a dead man.
Thus we have stated the principal facts and circumstances of this very extraordinary and all important cause and having done this, we look up to your honors as the guardians of our rights and the vindicators of your own laws, and the Independency of this State, for your counsel and assistance; which we do with the greater boldness as we feel a consciousness that we have in no respect been remiss in our duty, but in every instance, have strictly and religiously adhered to the laws of the State, of which we are subjects.
We conceive the authority by which our property has lately been tried, to be assumed and arbitrary to an extreme, by no means justified by the confederation, even if that had been completed at the time of the trials in this State, infinitely less so, as it was not until long after the sentence of our supreme judicial Court within the State, and finally had the authority been just, the exercise of it as manifested by the decree, is as unjust, and iniquitous as the consequences (should it be carried into effect) are ruinous to the interests of your Memorialists, and the peace, dignity and happiness of this State.
One thing more we would suggest, which is, that by the final decree of the Court within this State, one half of the property was adjudged to the Captors, with which we had no concern, who have since been dispersed, or died, excepting four or five widows and Orphans who are in great poverty and distress, and therefore utterly unable to pay any proportion with your Memorialists, who must be wholly accountable if the aforementioned decree of the said Court of Appeals should be carried into effect.
To conclude. It is in the honor, justice, wisdom and authority of the Supreme Legislature of this State that we now wholly confide. The dispute between individuals is ended; and it is now with your honors to say, whether we, who have at such vast expence and trouble endeavored to support and vindicate the laws of this state, shall in turn receive support from them. Or whether your honors will see your laws trampled on, your authority derided, and a number of faithful subjects utterly ruined. Those subjects who have ever stood the foremost to defend those laws, and that State, against the rapacious attempts of a foreign enemy.
|John Penhallow||Moses Woodward|
|Josh Wentworth||Neil McIntire|
|Ammi Ruhamah Cutler||Nathl. Sherburne|
|Nathl. Folsom||Keith Spence|
|Samll. Sherburne||Geo. Turner|
|Jacob Treadwell||Richard Champney|
|Tho. Martin||Robt. Furniss|
A true copy Examined by
C. Thomson Secy
RC (DLC: PCC, No. 44): at foot of text: “Governor Jefferson.” The “enclosed Minutes” of the thirty documents referred to by Sullivan have not been identified, though all of the documents pertained to the case of the brigantine Lusanna and some are filed with Sullivan’s letter in DLC: PCC. The petition of John Penhallow and others, a key document in the dossier considered by the committee of which TJ was a member, is taken from the text attested by TJ as Secretary of State, 15 Feb. 1793, as “a true copy from the records of the Department of State” and also by Joseph Pearson, Secretary of State for New Hampshire, 22 Oct. 1793, as “a true copy [except for two minor errors silently corrected in text printed above] of an original petition and memorial … now in my office”; MS now in McGill University Library, Montreal, Canada.
On 26 Dec. 1783, Abiel Foster, delegate from New Hampshire, received from President Meshech Weare of that state a letter of 10 Nov. enclosing one from the legislature of 6 Nov. (in DLC: PCC, No. 44) pertaining to the case of the brig Lusanna; these were handed to Foster by Sullivan, who had come to defend the interests of the libellants (Foster to Weare, 26 Dec. 1783, Burnett, Letters of Members description begins Edmund C. Burnett, ed., Letters of Members of the Continental Congress description ends , vii, No. 467). These communications, together with one from Sullivan of 30 Dec. 1783, were laid before Congress on 2 Jan. 1784 and were referred to a committee of five, including TJ, “respecting the powers of court of appeals” (Committee Book, DLC: PCC, No. 186, under date of 2 Jan. 1784). Sullivan’s present letter was obviously written as a result of a request made by TJ when Sullivan attended meetings of the committee (see report of the committee, 8 Jan. 1784). in my state of objections: This may have been Sullivan’s letter of 30 Dec. 1783 (same). Sullivan had also come to Congress to press his own claim for depreciation pay and his memorial on that subject was laid before the same committee, but TJ and Lee did not join in the report (Committee Book, DLC: PCC, No. 186; JCC description begins Worthington C. Ford and others, eds., Journals of the Continental Congress, 1774–1789, Washington, D.C., 1904–37, 34 vols. description ends , xxvi, 14).