Changes Suggested in Ordinance on Captures at Sea, [ca. 28 August–4 December] 1781
Changes Suggested in Ordinance on Captures at Sea
MSS (NA: PCC, No. 59, III, 280–82, 295) and excerpts from texts of ordinance printed in , XXI, 961–68, 1153–58. The proper sequence of the PCC folios is 280½, 295, 280, an unnumbered quarter-sheet adjacent to 280½, and 281 and 282.
[ca. 28 August–4 December 1781]
Editorial Note
JM’s connection with this ordinance before and during the debate attending the first reading in Congress is given in Changes Suggested in Ordinance on Captures at Sea, ca. 12 August 1781, and its editorial note and n. 14. The debate aroused by the second reading began on 28 August, was resumed two days later, and continued on 13, 14, 17, and 21 September (, XXI, 916, 921, 958, 961–68, 970, 985–86). The debate during the third reading started on 8 November, proceeded on the 13th and 30th of that month, and closed on 4 December with the adoption of the ordinance (, XXI, 1109, 1113, 1147–48, 1152–58).
During this period of more than three months, JM laid before Congress or the committee, which had been appointed on 25 July to “revise the several reports now before Congress,” a series of suggestions or amendments. Except in three instances (nn. 4, 13, and 15, below), there is no way of determining whether JM suggested these changes to the committee or moved them as amendments during the debates in Congress. The journal makes clear that many alterations in the proposed ordinance were made during its second and third readings. On the few occasions where the texts and authors of these amendments are mentioned, JM’s name does not appear. Although several versions of the proposed ordinance are extant, it cannot be ascertained whether, in any instance where JM might have been concerned, the deletions, interlineations, and marginalia in these versions existed before or were added during the discussions in Congress. For this reason, although some of JM’s alterations may have been offered formally as amendments to a bill which obviously interested him very much, they cannot now be so identified.
All except two of JM’s suggestions had been accepted or rejected by 14 September, when a text of the ordinance, considerably revised from that of ca. 12 August (q.v.), was printed in the journal of Congress (, XXI, 961–68). As given below, the relevant portions of the proposed ordinance as it read on 14 September are separated by the editors into two parts. The first part incorporates in italics both the alterations proposed by JM and accepted, and his notes in the form in which amendments were offered; or, in cases where his proposals caused the deletion of words, those words are shown as struck out. The second part lists JM’s suggestions which had been rejected by 14 September. After that date, although he apparently recommended no further changes, the text of the ordinance was altered to include one brief and one lengthy suggestion which he seems to have drafted before the debate attending the second reading had closed. For this reason the editors have made a third section of these two suggestions which were dealt with by the committee or by Congress prior to the third reading of the bill. Late in December the general subject of this ordinance would again draw JM’s attention. See Motion of Virginia Delegates on Illicit Trade with Great Britain, 26 December 1781.
Suggestions Accepted
[ca. 28 August–14 September 1781]
An Ordinance Relating to Captures
In pursuance of the powers delegated by the Confederation in cases of Captures on Water:
Be it ordained by the United States in Congress assembled, that from and after the first day of November next all resolutions and ordinances of Congress relating to captures or recaptures on water and coming within the purview of this ordinance shall be null and void: But questions of this nature arising before or which shall be undetermined at that day shall be determined at any time during the War with Great Britain according to them, in the same manner, as if this ordinance had never been made. [JM recommended: After Captures—or recaptures. After “before” insert, “or which shall be undetermined at.”]1
If it shall manifestly appear that of any entire thing of which division cannot be made without injury to its value a subject of the enemy and a citizen or a subject of a foreign power not being an enemy are joint holders, the whole shall be condemned and sold for gold or silver; the proper proportion of the net proceeds of which shall be deposited in the treasury of the State in which the sale shall be, to be paid to the order of such citizen or the subject of such foreign power.
If such division can be accomplished, but neither the citizen nor the subject of foreign powers nor his agent shall require specific restitution of his property there shall be a sale in the same manner as if the property were indivisible. But if in such case a requisition be made to this effect, the due proportion shall be specifically restored according to the ratio of the number and value of the property [JM suggested, Strike out the words after restored to the end of paragraph.]2
Whose property shall have been originally captured on land from a citizen of the United States and shall be recaptured below high water mark by another citizen thereof restitution shall be made to the former owner upon the payment of a reasonable salvage not exceeding one fourth part of the value, no regard being had to the time of possession by the enemy [JM suggested, After value—no regard being had to the time of possession by the Enemy & (.)]3
In all cases of recapture by an armed vessel fitted out at the expence of the United States of a vessel or other effects belonging to a citizen the Court shall adjudge the proportion which would be due to the United States of such recapture to be remitted to the original owner such citizen; no regard being had to the time of possession by the enemy. [JM’s amended form read: Strike out the parag: & substitute the followg. “In all cases of recapture by an armed Vessel fitted out at the expence of the U. S. of a Vessel or other effects belonging to a Citizen, the Court shall adjudge the proportion wch would be due to the U. S. to be remitted to such Citizen; no regard being had to the time of possession by the Enemy.”]4
Besides those who are duly authorised to make captures by a special commission, captures of the property of an enemy shall be allowed adjudged lawful, [JM’s amendment was, Strike out allowed & insert “adjudged lawful.”]5
when made by a private vessel not having such commission satisfactory proof being produced, that they were made in pursuing the course of her voyage and repelling a previous attack from an enemy. [JM suggested, Between made and in insert “in pursuing the course of her voyages.”]6
by inhabitants of the Country, if made within cannon shot of the shore [JM suggested, Cannon shot of shore]7
Upon the capture of any other vessel if made by a vessel of war belonging to the United States, one half of the property condemned shall be decreed to the United States, and the other half to the captors to be divided as aforesaid; if by a private vessel not having a Commission the whole shall be decreed to the captors to be divided as afore said: [JM suggested, See paper No 12. After half add: “of the property condemned.” Strike out “to be divided as aforesaid.”]8
if by any body or detachment of regular or other troops in the service of the United States, the whole shall be adjudged to the captors to be divided as aforesaid [JM recommended, Strike out as aforesaid]9
if by inhabitants of the country being in arms, the whole shall be adjudged to the captors to be divided as aforesaid equally among them, provided that if any such inhabitant shall be wounded in making the capture, he shall be entitled to two shares and if killed his legal representatives shall be entitled to four shares: [JM recommended: Strike out as aforesaid & insert: “equally among them, provided that if any such inhabitant shall be wounded in making the capture he shall be entitled to 2 Shares, & if killed his legal representatives shall be entitled to 4 shares.”]10
if by the crews of British vessels, the whole shall be adjudged to the captors (except in those instances in which the capture may belong to an American citizen), to be divided at the discretion of the Court. [JM moved, Strike out the parenthesis]11
On recapture by an armed vessel belonging to the United States of a vessel under the protection of a vessel belonging to the enemy [JM suggested, Between recapture & of—insert by an armed Vessel belonging to U.S.]12
or where the vessel retaken is equipped in a warlike manner, [JM suggested, Strike out the word “so” & after equipped add “in a warlike manner.”]13
On recapture by an armed vessel belonging to the United States of a vessel under the protection of an hostile vessel [JM suggested, Between recapture & of—insert by an armed Vessel belongg. to U.S.]14
and where the vessel retaken is not equipped in a war-like manner [JM recommended, Strike out “so” & after equipped add in a warlike manner.]15
Suggestions Rejected
[ca. 28 August–14 September]
The goods wares and merchandizes to be adjudged contraband are the following, that is to say, Cannons, Mortars, fire arms, pistols, bombs, granadoes, bullets, balls, fusees, flints, matches, powder, saltpetre, sulphur, cuirasses, pikes, swords, belts, pouches, cartouche boxes, saddles and bridles … [JM wished to Add to the list of contraband, Cables, large ropes, Masts &c. or substitute the list in the Treaty between U.S. and France(.)]16
In all other cases of recapture restitution shall be made to the owner upon payment of one third part of the true value for salvage, if the property shall have been retaken in less than twenty four hours after the capture.
But if it shall not have been retaken until the expiration of twenty four hours after the capture restitution shall not be made of any part [In a comment, partially destroyed by a tear in the manuscript, JM wrote, See papers time of possession by the Enemy.]17
The destruction of papers or the possession of double papers by any captured vessel shall be considered as evidence for condemnation unless good cause be shewn to be contrary. [JM wrote: Alter so as to read thus: The destruction of papers unless good cause be shewn therefor, or the possession of double papers by a captured vessel, shall be considered as evidence for condemnation.]18
if by any body or detachment of regular or other troops in the service of the United States, the whole shall be adjudged to the captors to be divided according to the portions of pay respectively allowed them in proportion to the pay in the line of the army: [JM recommended, insert “according to the proportions of pay respectively allowed them.”]19
Suggestions Accepted
[15 September–4 December]
All ships or other vessels, with their rigging, tackle, apparel and furniture, and with their cargoes, found in the possession of pirates. [JM suggested: The Goods wares & merchandizes belonging to an Enemy (contraband goods and goods destined to a blockaded or besieged port being always excepted) found in a Vessel, belonging to a foreign nation other than an enemy, shall in no case be Subject to condemnation.]20
To the Commander in Chief of the Navy of the U.S. shall be allotted 1/20 part of all prizes taken by an Armed Vessel or Vessels under his orders and command: when there shall be no such Commander in chief the 1/20 part allotted to him shall be paid into the Treasury of the U.S. To the Captain of any single armed vessel 2/20 parts, but if more ships or vessels be in company when a prize is taken then the 2/20 parts shall be divided equally among all the Captains:
To the Captains of Marines, Lieutenants and Masters 3/20 parts of all prizes taken when they are in company, to be divided equally among them:
To the Lieutts. of Marines, Surgeons, Chaplains, pursers, boatswains, gunners, carpenters, masters mates & the Secretary of the fleet 2/20 parts & one half of 1/20 part, to be divided equally among them:
To the following petty warrant officers, viz midshipmen, (allowing for each ship six, for each Brig four & for each sloop two) Captains Clerks Surgeons Mates, Stewards, Sail Makers, coopers, armorers, (allowing for each Vessel one of each only) boatswains mates, gunners Mates, carpenters Mates, (allowing for each Vessel two of each) Cooks, Cockswains (allowing for each vessel one of each) Sergeants of Marines (allowing 2 for each ship & 1 for each brig & sloop) 3/20 parts to be divided equally among them, and when a prize is taken by any Vessel on board or in company of which the Commander in Chief is, then the Commander in Chief’s Cook or Cockswain shall be added to the said petty warrant officers, and share equally with them:
The remaining 8/20 parts and ½ of 1/20 part shall be divided among the rest of the Vessels company or companies, as it may happen, share & share alike.
No officer nor man shall have any share but such as are actually on board their several Vessels when any prize or prizes shall be taken, excepting only such as may have been ordered on board any other prizes before taken or sent away by his or their commanding officers:21
1. , XXI, 961; NA: PCC, No. 59, III, 280½. JM used the dash after “Captures” to mean “insert.” In the final form of the ordinance, the month was changed from “November next” to “February next,” and “except as is herein after excepted” was inserted after “ordinance” in the fourth line (, XXI, 1153).
2. , XXI, 962; NA: PCC, No. 59, III, 295. The words in this paragraph remained unaltered in the ordinance as adopted on 4 December (, XXI, 1155).
3. , XXI, 962; NA: PCC, No. 59, III, 295. The “&” at the close of JM’s comment is clearly superfluous. By the time Congress adopted the ordinance, the opening word “whose” had been changed to “where,” and “from a State, or” had been inserted before “a citizen of the United States” (, XXI, 1154).
4. The abbreviated form in which this paragraph was left following the debate of 14 August (, XXI, 864) was expanded in committee before the proposed ordinance was again submitted to Congress. As shown in the text, JM wished merely to alter the paragraph by deleting three words and substituting two words for three others (, XXI, 963; NA: PCC, No. 59, III, 295). No further change in wording was made during the subsequent debates (, XXI, 1155).
5. , XXI, 963; NA: PCC, No. 59, III, 280. Except for deleting the “a” before “special” and adding “when made,” followed by a colon at the close, this passage remained unchanged after 14 September (, XXI, 1156).
6. , XXI, 963; NA: PCC, No. 59, III, 280. This passage follows immediately after “adjudged lawful” in the next preceding one. JM had probably meant to indicate that the insert “in pursuing the course of her voyages” should be put between “made” and “and.” The wording of this passage, and of the passages hereafter quoted in this section of the text, remained unaltered in the ordinance as finally adopted, except that “voyage” rather than “voyages” was retained (, XXI, 1156–58).
7. , XXI, 963; NA: PCC, No. 59, III, 280. This passage, like the immediately preceding one, should be read as a completion of the unfinished sentence ending “adjudged lawful when made,” as in n. 5, above, and was adopted on 14 September.
8. , XXI, 964; NA: PCC, No. 59, III, 280. “Paper No 12” (NA: PCC, No. 59, III, 281) contains a long insertion by JM, written before 14 September, which he either did not try to have, or did not succeed in having, incorporated in the ordinance until after that date. For this reason, it will be quoted in the chronological part of this item dated 15 September to 4 December.
9. , XXI, 964; NA: PCC, No. 59, III, 280. “Upon the capture of any other vessel,” although separated by two other dependent “if” clauses from this passage, is the necessary preface.
10. , XXI, 964; NA: PCC, No. 59, III, 280. This passage from the journal should be prefaced by the phrase quoted at the beginning of n. 9. When writing the insert, JM underlined “killed.” Strangely, the term “legal representatives” (executors?) was used rather than “heirs and assigns.”
11. , XXI, 964; NA: PCC, No. 59, III, unnumbered sheet adjacent to 280½. This passage should be prefaced by the phrase quoted at the beginning of n. 9. By eliminating the parenthesized words, JM clearly sought to enhance the temptation offered British crews to mutiny.
12. , XXI, 964; NA: PCC, No. 59, III, unnumbered sheet adjacent to 280½.
13. , XXI, 964; NA: PCC, No. 59, III, unnumbered sheet adjacent to 280½. Obviously, JM made this recommendation to the committee rather than as a motion in Congress, because the word “so,” which must have preceded “retaken” or “equipped,” does not appear in the report as submitted to Congress.
14. , XXI, 964; NA: PCC, No. 59, III, unnumbered sheet adjacent to 280½.
15. , XXI, 964; NA: PCC, No. 59, III, unnumbered sheet adjacent to 280½. The comment in n. 13 is applicable here also.
16. , XXI, 962; NA: PCC, No. 59, III, 295. For the articles of contraband mentioned in the Treaty of Amity and Commerce of 6 February 1778, see , XI, 439. In 1795, during the debate on the Jay Treaty, JM referred to the present ordinance but no longer believed that ship timber and cordage should be contraband (, VI, 248–49).
17. , XXI, 963; NA: PCC, No. 59, III, 280. Apparently JM was reminding himself to refer to some “papers,” now unidentifiable, about the time-periods named in the paragraph, and, if these papers should so warrant, to suggest that the time-periods be changed. Since these paragraphs remained unaltered, except to be combined into one paragraph, he evidently discovered no reason to try to amend them, or, trying, failed to carry his point (, XXI, 1156).
18. , XXI, 963, 1156; NA: PCC, No. 59, III, 280.
19. , XXI, 964; NA: PCC, No. 59, III, 280. “Upon the capture of any other vessel,” although separated by two other dependent “if” clauses from this passage, is the necessary preface. In this instance, JM’s suggestion was apparently accepted for a time but later replaced by an equivalent phrase.
20. , XXI, 962; NA: PCC, No. 59, III, 280½. Although not accepted prior to 14 September, this amendment, changed only by inserting “invested” after “blockaded,” was incorporated in the ordinance finally adopted (, XXI, 1154). It followed a considerably amended introduction dealing with contraband goods found in neutral bottoms but making no mention of pirates.
21. NA: PCC, No. 59, III, 281–82. See n. 7, above. In the first paragraph, “when there shall be no such Commander in chief the 1/20 part allotted to him shall be paid into the Treasury of the U.S.” is not in JM’s hand. All the provisions were probably recommended to the committee before the debate attending the third reading of the proposed ordinance, which began in Congress on 8 November. The wording of JM’s suggestions is unaltered in the ordinance adopted by Congress on 4 December 1781, except that “the” is inserted in the next to the last paragraph after “half of” (, XXI, 1109, 1157–58). JM wrote, upside down as compared with the other writing on NA: PCC, No. 59, III, 282, and crossed out, “The Commander in cheif of the navy of the U.S. shall receive 1/20 part of the proceeds of all.” Apparently he deemed this to be a false start and began again on what is now folio 281. After filling it, he completed his recommendations on the sheet he had meant to use at the outset.