Report on the Case of the Brig Lusanna
[8 January 1784]
Your Committee find that by a resolution of Congress of Nov. 25. 1775. it was recommended to the legislatures of the several states to erect courts for determining the cases of captures from the enemy on the High seas, and it was declared that in all cases an appeal should be allowed to Congress or such persons as they should appoint for the trial of appeals.
That this resolution was complied with by the several states, some of them ceding appeals to Congress on a larger and some on a more contracted scale; and New Hampshire particularly by their act of assembly of 1776 allowing them only in cases of captures by armed vessels fitted out at the charge of the United states, and reserving the appeal in all other cases to the Supreme court of their own state.
That the course of Congress was to appoint a Committee for the trial of every special appeal till the 30th. day of Jan. 1777. when a standing Committee was appointed to hear and determine appeals from the courts of admiralty in the respective states.
That the brigantine McClary a private armed vessel owned by John Penhallow and others, citizens of N. Hampshire, captured on the high seas in the month of Nov. 1777. the brigantine Lusanna, the subject of the present question, carried her into Piscataqua in the state of N. Hampshire and libelled her before the Maritime court of the said state, whereon the said vessel and cargo were by the said court condemned.
That the claimants Elisha Doane and others prayed an appeal to Congress which being refused, they appealed to the Superior court of N. Hampshire where the sentence being confirmed they again prayed an appeal to Congress which was refused, and the sentence carried into effect by a sale and distribution of the vessel and cargoe.
That on the 9th. day of Octob. 1778. the said Elisha Doane petitioned Congress for a revision of the said sentence, which petition being referred to the Committee of Appeals they in May 1779. summoned the libellants to appear before them in defence of their right.1
That on the 22d of the same month Congress resolved that certain resolutions of theirs of Mar. 6. 1779. relative to their controul over all jurisdiction in cases of capture on the high seas should be transmitted to the several states2 and they be respectively requested to take effectual measures for conforming therewith.
That they were accordingly transmitted to the state of New Hampshire the legislature whereof by their act of Nov. 1779. extended the license of appeal to Congress to every case3 wherein any subject of any foreign nation in amity with the U.S. should be interested in the dispute, and allowed it no further.
That in May 1780. a court of appeals was established by Congress with jurisdiction over all matters respecting appeals in cases of capture then depending before Congress or the Commissioners of appeals consisting of members of Congress.
That all these transactions were prior to the completion of the Confederation which took place on the 1st. day of Mar. 1781.
That on the 17th. of September 1783. the Court of appeals proceeded to consider the case of the said Elisha Doane and others against the brig Lusanna, John Penhallow libellant and to reverse the said sentences passed by the Inferior and Superior courts of N. Hampshire.
Whereupon your committee have come to the following resolution.
Resolved that the said capture having been made by citizens of N. Hampshire and carried in and submitted to the jurisdiction of that state before the completion of the confederation, while appeals to Congress in such cases were absolutely refused by their legislature, neither Congress nor any persons deriving authority from them had jurisdiction in the said case.
MS (DLC: PCC, No. 44); entirely in TJ’s hand, with deletions and corrections, only the more important of which are noted below; endorsed by Charles Thomson: “Report Mr Ellery Mr Hand Mr Spaight Mr Jefferson Mr Lee On letter 6 Novr from Legislature of New Hampshire. Ent. read Jany 12. 1784.” The Journals do not mention such a report either on 9 or 12 Jan. 1784, but Committee Book (DLC: PCC, No. 186) contains this entry: “Report Jany 9.”
Actually, the report was completed and handed in on 8 Jan. 1784 but not read until the 12th owing to TJ’s illness; on the former date Abiel Foster wrote Meshech Weare that the “Committee … this morning laid on the Table a Report respecting that affair. The Secretary informed me that Mr. Jefferson, who drew up the report, had sent it in; but desired it might not be read till he could attend, which the state of his Health did not permit to do on this day.” Foster went on to describe Sullivan’s interest in the case: “Genl. Sullivan in a Letter to Congress, and which was presented at the same time with your Hon’rs, has particularly and in my opinion in a convincing manner, stated the objections against the proceedings of the Court of Appeals in this Cause; he hath also attended the Committee and taken every possible precaution to obtain speedy and just decision. The Committee consisted of five members, and I am informed were unanimous in their report. However, no more than seven States are present, so that one disenting Voice may reject the report: should there appear to be a danger of this I shall move to postpone the affair till a larger number of States are convened, which I hope will soon be the case. Whatever is in my power shall be done to set aside a judgment, which I conceive to be highly derogatory to souvereignty of the State I have the Hon’r to represent, and injurious to a respectable Number of its Citizens” (Burnett, Letters of Members description begins Edmund C. Burnett, ed., Letters of Members of the Continental Congress description ends , vii, No. 477). The report, as Foster feared, was debated and postponed on 13 Jan.; surprisingly, when it was brought up again on 21 Jan. and a motion made that it be postponed until New Hampshire should be fully represented Foster voted against postponement (TJ voted for it). The report was again under consideration and postponed on 19, 23, 24, and 30 Mch. 1784 (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, 17–20, 38–41, 151, 156, 163, 174–5).
It is understandable that it should have received such opposition, for the case, which dragged on for many years, involved at least three important constitutional issues, to say nothing of private and political questions: (1) the date at which the Articles of Confederation became operative; (2) the jurisdiction of the court of appeals set up by Congress under Article IX whereby Congress was given the right of establishing courts “for receiving and determining finally, appeals in all cases of captures”; and (3) the right of Congress “in any way to reverse or controul the decisions, judgments or decrees of such court of appeals” (same, xxvi, 174). When, on 30 Mch. 1784, a motion was made to postpone consideration of the report in order to consider a motion that it would be “improper” for Congress to reverse or control the decisions of the court of appeals in any way, TJ voted against it. The motion was lost, and immediately afterward another to approve the report was also defeated because the Virginia delegation was evenly divided, TJ and Mercer voting in favor of the report and Hardy and Monroe against it (same, xxvi, 175). TJ was thus spared the embarrassment of having to vote on the specific question of Congress’ right to reverse or set aside the decisions of a court established by it for “finally determining” cases involving capture.
1. The following was deleted at this point: “which they accordingly did by their counsel and the said Committee on a hearing of both parties reported to Congress that.”
2. The following was deleted at this point: “whereupon Congress by their resolution of May 22. 1779.”
3. TJ first wrote “all cases” and then altered it to read as above.