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Changes Suggested in Ordinance on Captures at Sea, [ca. 12 August] 1781

Changes Suggested in Ordinance on Captures at Sea

MS (NA: PCC, No. 59, III, 283–84).

Editorial Note

The notes below are directly related to Edmund Randolph’s report of 14 August of “an ordinance ascertaining what captures on water shall be legal” (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXI, 861–68). This report stems back, through a series of motions and committee meetings, to JM’s motion of 12 April 1781 on a Court of Appeals (q.v., and especially n. 10). The committee on the establishment of a Court of Appeals in Cases of Capture at Sea was appointed on that date and consisted of Varnum (chairman), Bee, and McKean (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XIX, 375). On 10 May it reported a proposed ordinance which was given a second reading on the following day and thereafter recommitted, as is evidenced in the report of 14 August (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XIX, 496, 497; XXI, 861). Randolph was added to the committee on 18 July (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XX, 764). Seven days later he moved that a committee of three be appointed “to revise the several reports now before Congress which have not been acted upon or finished,” and this led to the appointment of such a committee comprised of himself as chairman, and of Thomas Smith and Roger Sherman (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXI, 788). JM was, therefore, not a member of the committee that drafted the ordinance pursuant to the directive of 18 July.

When JM wrote these notes cannot be certainly established. If they were made before Randolph prepared the report which he submitted to Congress, they probably were meant for his use. If this were the case, they may have led Randolph significantly to alter his first draft (NA: PCC, No. 59, III, 301–4), printed in JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXI, 868–71. If, on the other hand, the notes were taken by JM after Randolph wrote the document laid before Congress on 14 August, they lose most of their significance, except to the slight extent that they include material not found in that paper.

There is no doubt that JM was invited by Randolph to comment upon his first draft. In the left-hand margin of folio 303, JM wrote, “or the fighting under the flag of another nation than that from which the commission is derived.” Randolph accepted this insertion (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXI, 870 n.) to succeed “contrary” in the following sentence, as he had first written it: “The destruction of papers or the possession of double papers by any captured vessel, unless good cause be shewn to the contrary shall be considered as sufficient evidence for condemnation.” By the time the committee laid its report before Congress on 14 August, however, JM’s addition had disappeared and the paragraph had undergone further rephrasing (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXI, 865). In Randolph’s first draft, replete with deletions, interlineations, and marginalia, sometimes so much overlapped as to be difficult to decipher, there may be a few other suggestions by JM, but his handwriting and Randolph’s are too similar to be distinguished with certainty when crowded into a small space.

Since the sequence of roman numerals in JM’s notes, given below, corresponds [p. 218] exactly with those in Randolph’s report of 14 August to Congress and differs from his revised version printed in the journal of 14 September, the notes were almost certainly made at the time that the earlier of these documents was to the fore. The notes do not include the amendments made on 14 August to Randolph’s report; hence they appear to have been prepared before that debate. Because the notes are in the papers of the Continental Congress rather than among JM’s own papers, they probably were tendered by him to the committee. It seems much more likely that he would give to that committee, or to Randolph, suggestions for amending his report before it was presented to Congress than that he would turn over to Randolph a set of notes which mostly summarized what Randolph already had written. Therefore a reasonable conclusion appears to be that these notes were prepared prior to 14 August, when Randolph offered his recommendations to Congress. He also consulted Thomas McKean who, as mentioned above, had been a member of the committee on a Court of Appeals in Cases of Capture.

[ca. 12 August 1781]

Effects subject to Capture & Condemnation

I All ships and other vessels of whatever size or denomination belonging to an Enemy of the U.S. with their rigging apparel and furniture:1

II All goods wares and merchandizes belonging to, and found on board a ship or vessel of, such Enemy:2

III All contraband goods wares and merchandizes belonging to such Enemy, in whosesoever ship or vessel found and, whithersoever destined:3

IV All goods wares and merchandizes found in a hostile bottom, to whomsoever belonging, and whithersoever destined:4

V All contraband goods wares and merchandizes to whomsoever belonging, destined to any port or place within the dominion or possession, [or to a fleet at sea or elsewhere] for the use or operations of such Enemy:5

VI All vessels, goods wares and merchandizes, taken by virtue of letters of marque or reprisal:6

VII All Vessels with their cargoes to whomsoever belonging, destined to any port or place, blocked up by Vessels of war belonging to, in the service of, or co-operating with the U. States (insert besieged & shut up by batteries):7

VIII All vessels with their cargoes in the possession of Pirates or Robbers on the high seas:—If they be not claimed within a year & [p. 219] a day. If claimed within that time to be restored, reserving 1/3 for salvage, to the captor. (Salvage to be discretionary)8

The following captures shall not be lawful. viz,9

I Of Vessels belonging to a foreign nation other than the Enemy10 although laden with articles belonging to the Enemy; Vessels bound to a blockaded place being always excepted:

II Of property belonging to an Enemy found in bottoms belonging to such foreign nation: Contraband articles being always excepted:

III Of Vessels or other property to whomsoever belonging, under protection of such foreign power:

No Prince nor State, nor subject of either, shall be adjudged an Enemy, until some act of the U. States in Congress Assembled shall be made declaratory thereof:11 [But if a hostile attack be made prior to such declaratory act by any armed Vessels belonging to such Prince or State or the subjects thereof, being authorized for that purpose, on an Vessel belonging (to)12 the U.S. or their Citizens, in such case, a capture of the Vessels so attacking, shall be adjudged lawful.]

The goods, wares & merchandizes to be adjudged contraband are the following, to wit.13

Such port or place only is to be considered as blocked up, into which no Vessel can enter without evident danger on account of Vessels of war stationed there, or land batteries.14

1This paragraph is as Randolph has it in his report (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXI, 861), except that he used “whatsoever” instead of “whatever” and inserted “tackle” between “rigging” and “apparel.” In his earlier draft (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXI, 868 n.) Randolph had written, after “belonging to” and before “with their rigging,” “the king of Great Britain, or any subject of the said King, any power or subject of a power; being an Enemy of the United States of America.” In this draft “the king of Great Britain, or any subject of the said king” is crossed out.

2This is nearly the same as the paragraph laid before Congress (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXI, 861) but markedly differs from Randolph’s earlier draft. In that draft he again made particular reference to the British king and emphasized that the phrase “goods wares and merchandizes” was meant to include “slaves.”

3In the left-hand margin, after drawing a clenched hand with a finger pointing to this article, JM wrote “qu. as to this.” This reminder apparently refers only to his underlined words, “and, whithersoever destined.” These words also appear in the report to Congress, but with a line drawn through them, apparently indicating that Randolph struck them out in deference to JM’s query, or that they were deleted during the debate on 14 August. Otherwise, Randolph’s report submitted to Congress corresponds with JM’s note, except that Randolph wrote “in the ship or other vessel of whatsoever nation found” instead of JM’s awkward “in whosesoever ship or vessel found” (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXI, 862). Article Three of Randolph’s preliminary draft deals with contraband goods owned by France or neutral nations rather than by an enemy (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXI, 868 n.).

4This article is not duplicated in Randolph’s report presented to Congress. [p. 220] Although his fourth article is struck out, with nothing substituted, it reads, “All goods, wares and merchandizes found in a ship or other vessel of an enemy, [the property of neutrals always excepted].” Thomas McKean wrote the clause in brackets. This article, in subject matter, is unlike that of Article Four of Randolph’s first draft (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXI, 862, 868 n.).

5Although JM interlineated in his notes “for the use or operations” above “port or place,” he probably intended the insert to follow the words of the note which he bracketed. The fifth article of Randolph’s report to Congress reads, “All contraband goods, wares and Merchandizes, to whatsoever nation belonging.” Following this, “destined for the use and operations of the enemy” is crossed out (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXI, 862). This deletion probably was made in committee rather than as an outcome of debate in Congress, because in the manuscript of Randolph’s report the comma is struck out and replaced by a period (NA: PCC, No. 59, III, 297). In his preliminary draft, unlike in his report to Congress and in JM’s notes, Randolph did not enumerate the types of property “lawful to capture” on the high seas, except that his Article Four is identical with JM’s Article Six (q.v.) (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXI, 868 n.).

6See n. 5, above. At this point Randolph’s report to Congress reads, “All Ships or other vessels, goods, wares and merchandizes [belonging to any Power or the Subjects of any Power] against which letters of marque or reprisal [shall] have issued” (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXI, 862). The clause within the brackets was written by McKean.

7JM apparently intended “besieged” as a replacement for “blocked up,” and to follow “Vessels of war” with “[or] shut up by batteries.” See also n. 14, below. In contrast to Article Six, in this instance Randolph may have intended to clarify JM’s suggestion by writing: “All Ships or other vessels, with their rigging, tackle, apparel and furniture, and with their Cargoes, to whatsoever nation belonging destined to any port or place blocked up by vessels of war blockaded by [a sufficient force] belonging to, in the service of, or co-operating with the United States or commanded by batteries on land so as to render it dangerous to enter therein [so effectually as that one cannot attempt to enter into such a port without evident danger]” (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXI, 862). In view of the grammar, the deletion by Randolph after “port or place” and the addition by McKean of “a sufficient force” were probably made before the report was submitted to Congress. Whether the other deletion and addition were made before or after the report reached Congress is not known.

8The portion of JM’s note to the colon seems to have become in Randolph’s report to Congress, “All ships or other vessels with their rigging, tackle, apparel and furniture, and with their cargoes, found in the possession of pirates” (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXI, 862). Randolph may not have incorporated in this article the remainder of JM’s note, because its contents more appropriately belonged in the latter portion of the proposed ordinance devoted to regulations for the guidance of prize courts in reaching their decisions (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXI, 867).

9The following four paragraphs, down to the colon in the fourth paragraph, appear to have been closely followed by Randolph in preparing his report for Congress, but they are all struck out of that report, probably as a result of the debate in that body (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXI, 862). This portion of JM’s notes, and of Randolph’s report also, seems to be, in considerable part, an expansion of Randolph’s draft, beginning, “The following Captures shall not be lawful, viz:—” and continuing through “No prince, nor other State, nor any subject of the same shall be adjudged an enemy, until by some act of Congress shall be made declaratory thereof” (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXI, 868 n.).

10JM interlineated “other than the Enemy” over a bracketed “not associated in the war with the Enemy.”

11The portion from here to the end of the paragraph was enclosed in brackets by JM and struck out. Neither this deleted portion, nor anything resembling it in thought, appears in Randolph’s draft or in the report he laid before Congress.

[p. 221]

12Inserted by the editors.

13This corresponds with the wording of Randolph’s report to Congress with the exception of “to wit” and the fact that JM did not continue by listing the particular “goods, wares & merchandizes,” as in JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXI, 863. In his draft Randolph at this point had merely reminded himself to list the types of goods denominated as contraband in Article XXVI of the Treaty of Amity and Commerce with France, 6 February 1778 (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XI, 349; XXI, 869 n.). He fulfilled this intent in his suggested ordinance laid before Congress. See below, Changes Suggested in Ordinance on Captures at Sea, 28 August–4 December 1781, first paragraph of “Suggestions Rejected.”

14This paragraph, which JM struck out after writing it, appears to have been an attempt to rewrite Article Seven, above. Following this final paragraph of his notes, JM began a new one with the words “Nothing shall” but then deleted them. Possibly he intended to go back to the subject of contraband and write the equivalent of Randolph’s sentence, “No goods, wares nor merchandizes, not worked into the form of some instrument or thing prepared for war by land or sea, shall be reputed contraband” (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXI, 863). As a result of the debate on 14 August, the articles in Randolph’s report (and in JM’s notes) defining the ships and goods subject to capture and condemnation were accepted by Congress, perhaps with the alterations mentioned above. So, too, were many of the later portions of Randolph’s report only slightly touched upon in JM’s notes. The types of capture which would not be lawful, as defined in Randolph’s report (and in JM’s notes), were either not submitted to Congress on 14 August, or were submitted and rejected. At the close of that day’s session, the report was held over for later debate. Although this was resumed on 28 August (q.v.), the next fruitful discussion of the matter appears to have been on 14 September 1781. The report to which these notes pertain was clearly a re-emphasis of the congressional “Plan of 1776” and of the principles laid down by the Russian-promulgated Armed Neutrality of 1780 (Samuel Flagg Bemis, A Diplomatic History of the United States [4th ed.; New York, 1960], pp. 25–26; Papers of Madison description begins William T. Hutchinson, William M. E. Rachal, et al., eds., The Papers of James Madison (2 vols. to date; Chicago, 1962——). description ends , II, 56, n. 3; 167, n. 3).

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