Report on Maritime Prizes
MS (NA: PCC, No. 28, fols. 235, 237). The first of these folios is in Samuel Wharton’s hand, the second in JM’s. Docketed: “Ordinance respecting prizes—The Committee consisting of Mr. Wharton, Mr. Madison, Mr. Osgood to whom was referred a letter of the 20 of June from the Agent of Marine, propose the inclosed ordinance—Read June 26, 1782 Ent’d. July 3d. 1782 Fryday next assigned for Second reading. July 5, 1782 Recommitted July 9. Read a first and second time. To morrow assigned for the 3d reading Passed July 10. 1782.” The meaning of “No. 12.,” which Charles Thomson added to the docket, is unknown.
Congress appointed the above committee on 21 June, after listening to a letter to President Hanson written the day before by Robert Morris, agent of marine (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXII, 344, n. 2; NA: PCC, No. 137, I, 559–66). Morris pointed out that although the U. S. frigate “Deane,” commanded by Samuel Nicholson, had captured during April and May 1782 a total of five British naval vessels, privateers, and merchantmen, the money accruing to the treasury from these prizes would equal only about one-half of what it had cost the United States to make this successful cruise possible by outfitting the frigate and paying the wages of her officers and crew. On the other hand, the same ordinances of Congress which restricted the United States to so small a return from these captures assured to the complement of the frigate a handsome bonus in prize money and bounties (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , III, 386–87; IV, 36–37; VI, 954; XIX, 314–16; XXI, 1153–58; XXII, 10–11).
In Morris’ view, the intent of Congress in providing these generous rewards had been to encourage American sailors to attack and conquer the enemy’s armed vessels “of equal or superior force.” The prizes of the “Deane,” on the contrary, were “taken with no other trouble than what attended the chase, nor any other risque than the firing of one or two of the frigates guns, as a signal for the prizes to haul down their colours.” For this reason and to make “the expense of supporting the marine” less burdensome, Morris suggested that hereafter the United States keep one-half of the prize money, except in instances of unusual heroism when Congress should decide to give officers and crew a special award in the form of a larger percentage of the net return from a captured ship.
JM’s membership on the Board of Admiralty between 22 March and 6 June 1780 and his subsequent interest in maritime affairs probably account for his appointment to the present committee (Papers of Madison description begins William T. Hutchinson, William M. E. Rachal, et al., eds., The Papers of James Madison (4 vols. to date; Chicago, 1962——). description ends , II, 4, and n. 2; III, 25, n. 27; 217, editorial note; 218–19, and nn.; 236, editorial note). In August and September 1781, when suggesting changes to the proposed congressional ordinance on captures at sea, JM evidently had not foreseen the inequities that were now being pointed out by Morris (ibid., III, 237–41, and nn.).
[26 June–10 July 1782]
An Ordinance for1 the better distribution of prizes in certain cases.
Be it ordained by the United States in Congress Assembled that so much of the Ordinance entitled “An Ordinance ascertaining what captures on water shall be lawful,” as ordains that upon the capture of a vessel commissioned as a man of war or a privateer, by any of the Vessels of war of the United States of America, the whole of the property condemned shall be adjudged to the Captors, be and the same is hereby repealed;2 and that in all such cases of capture;3
And Be it further ordained by the authority aforesaid that the Resolution of the 15th. of Nov. 1776 giving4 to the Commanders, officers & men of ships or Vessels of war, a5 bounty for every cannon, and for every man belonging to British Ships or vessels of war, captured by them,6 be & the same is hereby repealed.
Done by the U. S. in Congress Assembled &c
1. After this word, JM at first wrote and deleted “rendering the support of the Marine less expensive.” He then interlineated “the better distribution” and completed the title with “of prizes in certain cases.” Whether this alteration and the other alterations noted below were made within the committee or represent amendments by Congress has not been ascertained. As indicated in the headnote and the first paragraph of the editorial note, nearly twenty days intervened between the appointment of the committee and the adoption of its revised report. The exact sequence of the alterations in time is unknown.
2. The ordinance of 4 December 1781, principally drafted by Edmund Randolph. See JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXI, 1153–58, and especially pp. 1156–57.
3. Following this semicolon JM wrote and deleted: “the property condemned shall be decreed;—one half thereof to the United States, and the other half to the Captors, to be divided among them in the proportions as within said Ordinance are directed, unless the U. S. in Congress Assembled shall in reward of conspicuous valour and exertions otherwise specially direct.”
Perhaps Congress’ refusal to accept this passage explains why the report was recommitted on 5 July, following its second reading on that date (see headnote). It may have been then that JM interlineated an asterisk above the semicolon, repeated the asterisk in the margin of the manuscript, and wrote: “of the property condemned one half only shall be adjudged to the Captors, and the other half to the U. S. to be appropriated to their use; unless the Vessel taken be of equal or superior force, in which case the whole shall be adjudged to the Captors; and unless the U. S. in Congress Assembled shall in reward of distinguished valour & exertion otherwise specially direct.”
Possibly at the same time, Samuel Wharton tried his hand at redrafting the passage by writing on a separate sheet (fol. 235): “the whole of the Property condemned shall be adjudged to the use of the Captors if the Vessell taken shall be of equal or Superiour Force to the Vessell making the Capture; otherwise one Half only shall be adjudged to the Captors & the other Half to the use of the united States & shall after Condemnation be so appropriated unless the U. S. in Congress assembled in Reward of distinguished Valour & Exertion shall otherwise specially direct.” Whether the committee chose Wharton’s version rather than JM’s before submitting its revised report on 9 July, or decided to let Congress select one or the other or reject both, is not known. The ordinance as adopted the next day embodied what Wharton had written (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXII, 379–80). JM’s marginal emendation has lines drawn across it.
4. Following this word, JM wrote and struck out “a bounty of.”
5. Here JM interlineated and deleted “an indiscriminate.”
6. JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , VI, 954. By this resolution Congress had promised a bounty of $20.00 “to the commanders, officers and men of such continental ships or vessels of war, as shall make prize of any British ships or vessels of war, for every cannon mounted on board each prize, at the time of such capture, and 8 dollars per head for every man then on board and belonging to such prize.”