Notes on Debates
MS (LC: Madison Papers). See Notes on Debates, 4 November 1782, ed. n.
The preceeding question having been taken again,1 on a further discussion of the subject. There were in favor of the demand, N. H. R. I. N. Y. Pa. Del: Maryd. Virga. & of the other States some were divided.2
A motion was made by Mr. Rutledge3 of S. C.
“That the Comder in chief & of the S. Department4 be respectively directed whenever the Enemy shall commit any act of cruelty or violence contrary to the laws & usage of war on the Citizens of these States to demand adequate satisfaction for the same, and in case such satisfaction shall not be immediately given, but refused or evaded under any pretext whatsoever, to cause suitable retaliation to be for[th]with made on British officers without waiting for directions from Congress on the subject.”5
When this motion was first made it was espoused by many; with great warmth in particular by the Delegates of N. C. & S. C. as necessary to prevent the delays & uncertainties incident to a resort by the Military Commanders to Congress, and to convince the Enemy that notwithstanding the dismission of Capt: Asgill the general purpose of retaliation was firmly retained.6
Against the motion it was objected 1. that the time & place in which it stood would certainly convey an indirect reprehension of Gel. Washington for bringing before Congress the case of Capt: Asgill & Huddy:7 2. that it manifested a distrust in Congress, which however well founded i[t]8 might be with respect to retaliation ought not to be proclaimed by themselves.9 3. that political & national considerations might render the interference of the supreme authority expedient, of wch. the letter from Ct. de Vergennes in the late case furnished an instance:10 that the resort of the Military Commanders to the Sovereign11 for direction in great and difficult cases, such as those of retaliation would often prove, was a right of which they ought not to be deprived; but in the exercise of which they ought rather to be countenanced. These objections reduced the patrons of the motion to the Delegates of N. C. & S C alone or nearly so. In place of it the declaratory motion on the Journals was substituted.12 This again was objected to as implying that in the cases of retaliation taken up by the Mily: commanders they had proceeded on doubtful authority13 To remove this objection, the amendment was proposed, limiting the preamble to the single act of discharging Capt: Asgill.14 This however was not entirely satisfactory because that particular act could have no constructive influence on the reputed authority of the Generals.15 It was acceded to16 by the votes of several who were apprehensive that in case of rejecting it, the earnestness of some might obtrude a substitute less harmless or that the Resolution might pass without the preamble & be more offensive to the Commander in chief. The first apprehension was the prevailing motive with many to agree to the proposition on the final question.17
This day a letter was rcd. from Gel Washington inclosing one of the 25 of Ocr. from Sr. G. Carlton relative to the demand made on him for a liquidation of accts. and payment of the balance due for maintenance of Prisoners of war; in which the latter used an asperity of language so much the reverse of his preceding correspondence18 that many regard it as portending a revival of the war against the U S.
2. The official journal of Congress does not record this vote. These “other States” could only have been North Carolina and South Carolina, unless the states effectively represented when this tally was taken were fewer in number than those which voted on each of three other motions later on 8 November (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXIII, 716–17).
3. Late in his life, judging from the handwriting, JM interlineated “Rutledge” above a deleted “R” but neglected to strike out the period after the initial.
4. General Nathanael Greene.
5. The printed journal fails to record this motion, and the manuscript of the motion has not been found. For one “act of cruelty” which helps to account for the “great warmth” of the delegates of South Carolina, see Papers of Madison description begins William T. Hutchinson, William M. E. Rachal, et al., eds., The Papers of James Madison (5 vols. to date; Chicago, 1962——). description ends , III, 272, n. 3.
6. JM interlineated “general.” For the resolution of Congress on 7 November directing Washington “to set Captain Asgill at liberty,” see Notes on Debates, 7 November, n. 20. See also JM to Randolph, 29 October 1782, n. 8.
7. That is, the clause “without waiting for directions from Congress on the subject” could be interpreted as a mild reprimand of Washington for bothering Congress again with a subject covered by the resolution quoted in n. 8 of JM to Randolph, 29 October 1782 (q.v.).
8. JM inadvertently wrote “in” rather than “it.”
9. Although some members of Congress shared Washington’s scruples against pursuing a general policy of retaliation (Papers of Madison description begins William T. Hutchinson, William M. E. Rachal, et al., eds., The Papers of James Madison (5 vols. to date; Chicago, 1962——). description ends , III, 323, n. 5), and other members doubted that Congress, being far removed from the scene of an act of alleged “cruelty or violence” by the enemy, could judge equitably whether the deed warranted retaliation, they at the same time recognized that Congress should not publicly surrender its full and rightful authority over retaliation (n. 11, below) by delegating its exercise to the discretion of army commanders.
10. Were a general authority delegated, higher considerations in a particular case might require Congress to contravene its own resolution. For Vergennes’ letter, see JM to Randolph, 5 November, and nn. 17, 18; Notes on Debates, 7 November 1782, and n. 23.
11. JM no doubt used the term “the Sovereign” as a synonym of “the supreme authority,” appearing earlier in the sentence. The ninth article of the Articles of Confederation delegated to Congress “the sole and exclusive right and power” to make “rules for the government and regulation of the said land and naval forces, and directing their operations” (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XIX, 219).
12. JM interlineated “declaratory.” McKean’s substitute contrasted with Rutledge’s motion in two principal respects. The former, after being amended during the debates, applied to any “commander of a separate army” rather than only to Washington and Greene. Also unlike Rutledge’s, McKean’s motion was “declaratory” of the extent of powers already vested in such a commander rather than an order prescribing what he should and could do in the future “without waiting for directions from Congress.” For McKean’s original motion, see JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXIII, 716–17.
13. JM interlineated “taken up by.” Obviously, as related to the declaratory motion, if the aim of McKean’s motion was not to declare the scope of power in regard to retaliation which these commanders had always had but was rather to sanction retroactively what they had done without authority, the commanders would be as vulnerable as the enemy to the charge of transgressing “the laws or usage of war.”
14. The original preamble of McKean’s motion read, “To prevent any misconstruction which might arise from the preceding resolutions of Congress.” For the “preceding resolutions,” see Notes on Debates, 7 November, and n. 20; Motion on Instruction to Washington, 7–8 November 1782, and n. 7. In accordance with a motion by David Howell, seconded by JM, this preamble was struck out. As a substitute McKean, seconded by James Duane, proposed, “To prevent any misconstruction which may arise from the resolution directing Captain Asgill to be set at liberty.” This was adopted by a vote of seven states to one, with Virginia’s vote ineffective because Bland voted “ay” and JM, “no” (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXIII, 716, 718, 719).
15. That is, the authority of the army commanders, confirmed in McKean’s motion, was a non sequitur of the directive for Asgill’s release, stressed in the preamble (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXIII, 719–20).
16. JM deleted “admitted” and wrote “acceded to” above it.
17. McKean’s original motion with its new preamble was adopted by a vote of 7 to 0. Although twelve states had delegates in Congress, three states were each represented by only one delegate, while the votes of two states were also rendered ineffective as a result of the two delegates from each dividing on the issue (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXIII, 719). JM was probably one of the delegates who, as he comments, supported the motion only to stave off the passage of a substitute even less acceptable.
18. See JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXIII, 720, n. 2. For the background of Carleton’s dispatch, see JM to Randolph, 3 September, n. 8; 8 October 1782, and n. 27. Washington’s dispatch of 1 November to Congress stated only that his enclosure was a copy of the first letter addressed to him by Carleton since 12 September. Carleton’s dispatch was in effect a lecture to and an indictment of the conduct of Washington and Congress with regard to the exchange of prisoners of war. The British commander-in-chief pointed out that for one belligerent to threaten to punish its captives severely unless its enemy, prior to the conclusion of hostilities, paid for their maintenance had been contrary to “the practice of Nations at War” ever “since the barbarous ages.” Carleton added that Congress could easily and “honorably” remove the “burthen” of caring for the prisoners by agreeing to the proposal of exchanging British soldiers for American seamen, especially since he pledged not to employ the soldiers “against the thirteen provinces” for one year after the men were released.
Furthermore, by means of this exchange, Congress at long last would carry out the terms of the Convention of Saratoga (1777) by liberating soldiers who “should have been restored to their Country five years ago” and would also honor the provisions of the cartel concluded by Franklin whereby, without any reciprocity to date, Great Britain had returned from her prisons many seamen to America. See Papers of Madison description begins William T. Hutchinson, William M. E. Rachal, et al., eds., The Papers of James Madison (5 vols. to date; Chicago, 1962——). description ends , II, 167, n. 6; III, 323, n. 3; IV, 412–13; 413, n. 9; Virginia Delegates to Harrison, 20 August, and n. 3; JM to Randolph, 3 September 1782, n. 9. Carleton closed his dispatch by declaring that Congress, by its threats and broken promises, evidently was determined “not only to reject all peace, but to bring the war to the last extremities of rage” (NA: PCC, No. 152, XI, 21, 25–28).