John Jay Papers
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John Jay’s Draft Resolution in Congress, 15 April–3 May 1776

John Jay’s Draft Resolution in Congress

[Philadelphia, 15 April–3 May] 17761

Whereas it is both unjust as well as impolitic that any Nat Americans should ^afford^ aid to the Enemies of their Country, eith and particularly in the Seizure of Vessels ^or other Property^ belonging to Inhabitants of these Colonies or by purchasing ^of the Enemy^ any of their Property so seized

Resolved that all Americans who shall so aid our E be guilty of the said Offences ought to be liable for the Damages which the Persons injured thereby ^by such seizure^ may sustain thereby—

Resolved therefore that it be recommended to all the Legislatures & Conventions in these united Colonies to enact a Laws, or ordinances for the purposes aforesaid ^where Courts competent to the Cognizance of ^such^ Cause, do not already exist to erect them^ And to the End that the same2 may be executed with the greater Facility as well as Justice said ^Laws or Ordinances in the different Colonies may the better correspond, and their objects obtained with ^the great Facility & Justice^

Resolved That the Party injured as afd. ought to commence his Action agt. the offender ^who ought to be entitled to Bail^ in the Court so erected or to be erected in the Colony where the Offence3 shall happen, be committed, and where the same shall happen on the high Seas then in those Colonies next that he may think proper Offender ^can or shall be taken, and that the Proceedings in the said Action ought to be According to the Modes^ of Proceeding usual used in the said Colony in Civil Causes—And that Appeals Appeals be reserved to ^the Proper^ adm [from?] Judjmts given in such Action, be adm to this Congress be admitted ^ought to be admitted ^& prosecuted^ as in other civil Action, except in Colonies where^ ^[in margin] Judges the Govrs. or others appointed by the King were heretofore Judges in Error, In all which Causes the Appeal ought to be to the Conventions of such Colony Colonies the Conventions ought to appoint proper persons to recieve & determine such Appeals^ provided ^neverthe^ the other of ^that^ the Partys shall claim ^demandg^ the same within one month after [final?] Judgmt. thereon shall be given ^& give reasonable Security for prosecuting the same in ^which^ all further Proceedings ought to^ in Which Case a Transcri Execution should be stayed, & a Transcript of the Record certified by the Judge or Judges of such Court ought to be forth with transmitted to this Congress—^till the sd. Appeal be determined^ And whereas it may happen that the Estate or Effects of the Def[endan]t. may not be in the Colony in which such Cause may be tryed but in some other ^whereby in case Judgmt shd. pass agt. the Def[endan]t. the Dam[age]s. cannot be levied^ Resolved ^that^ in all such Cases a Transcript of the Record certified ^by the Judge or Judges of the sd. Court ^as Afd ought^ on the Request of the Pl[ain]t[iff] to be transmitted to the Judge ^or Judges^ of the Court to be erected or to be erected as afd. in the Colony where the Estate or Effects of such Def[endan]t. may be Which Judge or Judges on Rec[eip]t. thereof ought to award Execution ^& cause Execution^ of the sd. Judmt to be had

Resolved that reason ^Resolved further that Costs agreable^ to the Laws & usage of the Colony in which such Actions may be commenced & prosecuted ought to be allowed in these and ^as^ in other civil Actions—

And the better to prevent any vexatious Suits being commenced under Color of the said Laws or Ordinances Resolved that the Pl[ain]t[iff] ought previous to the commencemt of the said action to make Aff[idavi]t. of the Cause of Action & file the same with the Clerk of the Court, & further give ^Bond with^ Security ^to the sd. Clerk^ to prosecute the said Action to Judgmt. & in Case Judgmt shd. pass ^on the appeal (in case there shd be one) determined^ agt. him to pay the Def[endan]t. his Costs, and the ^such^ Clerk ought whenever ^in Case Judgmt ^ shd pass the sd. Action shd. be finally determined agt. the Pl[ain]t[iff]. to assign the sd. Bond to the Def[endan]t.

Dft, NNC (EJ: 12950). Endorsed: “Dr. Resolutions in Congress agt. purchasg the Enemy’s Prizes &c.” Additional endorsement in another hand: “by J. Jay 1776.”

1On 15 Apr. 1776, JJ, Carter Braxton (1736–97), and George Wythe of Virginia were appointed to prepare a resolution “whereby persons resident, having property in America, who assist any of the enemies of these United Colonies in the captures of vessels or goods, may be made liable to make good the damages to the sufferers.” These resolutions were drafted by 3 May, the date listed in JJ’s account with the New York Provincial Congress as his last day of service in the Continental Congress, after which he left Philadelphia to visit his wife’s family in Elizabethtown en route to New York. LDC description begins Paul H. Smith et al., eds., Letters of Delegates to the Continental Congress, 1774–1789 (26 vols.; Washington, D.C., 1976–98) description ends , 3: 329.

The carefully prepared resolutions were never considered by Congress, probably because the debates on independence placed supporters of the British cause in a different legal position from that envisioned by JJ’s proposed statutes. The Declaration of Independence forced Congress to reconsider and revise all earlier resolutions on privateering and the confiscation of British goods in a series of resolutions beginning in July 1776. JCC description begins Worthington C. Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, D.C., 1904–37) description ends , 5: 605–6; 6: 885, 986.

2Here JJ reworked “same” into “said,” as given below.

3Here JJ reworked “Offence” into “Offender,” as given below.

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