Notes on Debates
MS (LC: Madison Papers). See Notes on Debates, 4 November 1782, ed. n. Immediately preceding the entry for the present date, JM wrote, “Wednesday Novr. 6th. no congress.”
On the reconsideration the Resol: for exchanging the 2 for: officers Its repeal was unanimously agreed to.1
A motion was made by Mr Osgood to assign an early day for filling up the vacancy in the Court of appeals.2 It was opposed on the principle of oeconomy, and the expedient suggested by Mr. Duane3 of empowering a single Judge to make a Court untill the public finances would better bear the expence.4 In favor of the motion it was argued 1. that the proceedings of the Court were too important to be confided to a single Judge.5 2. that the decisions of a single judge would be less satisfactory in cases where a local connection of the judge6 subsisted with either of the parties. 3. that a single judge would be more apt by erroneous decisions to embroil the U. S. in disputes with foreign powers 4. that if there were more than one Judge, & one formed a Court, there might at the same time be two interfering jurisdictions, and that if a remedy could be applied to this difficulty, the course of decisions would unavoidably be less uniform, & the provision of the confederation for a Court of universal appellant Jurisdiction so far contravened.7 5. As there was little reason to expect that the public finances wd. during the war8 be more equal to the public burdens than at present, and as the cases within the cognizance of this Court would cease with the war, the qualification annexed to the expedient ought to have no effect.9 The motion was disagreed to & a committee which had been appointed to prepare a new ordinance for constituting the Court of appeals, was filled up & instructed to make report.10—on the above motion11 an opinion was maintained by Mr. Rutlidge that as the Court was according to the ordinance in force to consist of three Judges any two of whom to make a Court, unless three were in actual appointment the decisions of two were illegal12
Congress went into the consideration of the Report of the committee on the case of Capt: Asgill the British officer allotted to suffer retaliation for the murder of Capt: Huddy. The report proposed
“That considering the letter of the 29th. of July last from the Count de Vergennes to Genl Washington interceding for Capt: Asgil, the Commander in chief be directed to set him at liberty”13
Previous to the receipt of this letter from the Count de Vergennes Congress had been much divided as to the propriety of executing the retaliation, after the professions on the part of the British Commanders, of a desire to carry on the war on humane principles, and the promises of Sr. G. Carlton to pursue as effectually as possible the real authors of the murder: some supposing that these circumstances had so far changed the ground that Congress ought to recede from their denunciation; others supposing that as the condition of the menace had not been complied with, and the promises were manifestly evasive, a perseverance on the part of Congress was essential to their honor & that moreover it would probably compel the enemy to give up the notorious author of the confessed murder. After the receipt of the letter from the Count de Vergennes, Congress were unanimous for a relaxation.14 Two questions however arose on the report of the committee.15 The 1st was on what considerations the discharge of Capt: Asgill ought to be grounded. on this question a diversity of opinions existed. Some concurred with the Committee in resting the measure entirely on the intercession of the French Court; alledging that this was the only plea that could apologize to the world for such a departure from the solemn declarations made both by Congress and the Commander in chief.16 Others were of opinion that this plea if publicly recited would mark an obsequiousness to the French Court, and an impeachment of the humanity17 of Congress, which greatly outweighed the circumstance urged in its favor; and that the disavowal of the outrage, by the British Genl: and a solemn promise to pursue the guilty authors of it, afforded the most honorable ground on which Congress could make their retreat;18 others again contended for an enumeration of all the reasons which led to the measure; lastly others were against a recital of any reasons & for leaving the justification of the measure to such reasons as would occur of themselves.19 This last opinion after considerable discussions prevailed, and the Resol: left as it stands on the Journals.20 The 2d. question was whether this release of Capt: Asgil should be followed by a demand on Gel Carlton to fulfil his engagement to pursue with all possible effect the authors of the Murder.21
On one side it was urged that such a demand would be nugatory after the only Sanction which could enforce it had been relinquished;22 that it would not be consistent with the letter of the Count de Vergennes which solicited complete oblivion,23 and that it would manifest to the public a degree of confidence in British faith which was not felt and ought not to be affected.
On the opposite side it was said that after the confession & promise of justice by Gl Carlton, the least that could be done by Gel. Washington would be to claim a fulfilment; that the intercession of Ct. de Vergennes extended no farther than to prevent the execution of Capt: Asgill, and the substitution of any other innocent victim; and by no means was meant to shelter the guilty; that whatever blame might fall on Congress for seeming to confide in the promises of the enemy, they would be more blamed if they not only dismissed the purpose of retaliating on the innocent, but at the same time omitted to challenge a promised vengeance on the guilty;24 that if the challenge was not followed by a compliance on the part of the enemy, it would at least promulge &25 perpetuate, in justification of the past measures of Congress, the confessions & promises of the enemy on which the challenge26 was grounded; & would give weight to the charges27 both of barbarity & perfidy which had been so often brought agst. them. In the vote on this question 6 states were in favor of the demand & the others either divided or against it.28
1. See Notes on Debates, 5 November 1782, and nn. 1, 2, 3, 13. As adopted by Congress, Daniel Carroll’s motion, seconded by JM, reads: “Resolved, That the same be and hereby is repealed.” The printed journal omits mention of the unanimity of the vote by which the resolution was adopted (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXIII, 715).
2. This motion is not recorded in the printed journal. In 1780 Congress elected William Paca of Maryland, Titus Hosmer of Connecticut, and Cyrus Griffin of Virginia (vice George Wythe of Virginia, who had declined) to be the judges of the newly created Court of Appeals. On 24 May of that year Congress added “in Cases of Capture” to the name of the court (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XVI, 61, 79, 254, 397, 411; XVII, 458; 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, 54, n. 5). The vacancy caused by the death of Judge Hosmer on 4 August 1780 had not been filled (Burnett, Letters description begins Edmund C. Burnett, ed., Letters of Members of the Continental Congress (8 vols.; Washington, 1921–36). description ends , VI, 439 n.). Two weeks after the date of Samuel Osgood’s motion, Congress received word of Paca’s resignation as a judge because of his election as governor by the Maryland General Assembly on 15 November (J. Hall Pleasants, ed., Journal and Correspondence of the State Council of Maryland, 1781–1784, Archives of Maryland, XLVIII [Baltimore, 1931], 305; JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXIII, 746). See also Motion on Court of Appeals in Cases of Capture, 22 November 1782, and n. 1.
3. James Duane of New York.
4. JM may have underlined the words which here are italicized to indicate his disagreement with Duane’s proposal. For a previous example of his use of underlining to express disapproval, see JM to Randolph, 22 October 1782, and n. 15.
5. The ordinance of 15 January 1780 establishing a court “for the trial of all appeals from the courts of admiralty in these United States” provided that, if one of the three judges was absent, the other two would be sufficient “to hold the said court for the despatch of business” (n. 2, above; JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XVI, 61). Duane’s suggestion, if adopted by Congress, would have amended this ordinance by authorizing either judge of a court consisting of two judges to hear an appealed case and render judgment.
6. JM interlineated “of the judge.”
7. Thus, whereas the conflicting decisions of two judges sitting singly at different times or places, or the mutually nullifying opinions of both sitting together, would produce legal chaos, orderliness could be maintained only by having a third judge to determine which ruling would be law. For the “provision,” see Article IX of the Articles of Confederation (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XIX, 217).
8. JM interlineated “during the war.”
9. JM interlineated “annexed to” above a deleted “of.” By “the qualification annexed to the expedient,” JM is referring to Duane’s suggestion and the words underlined as a part thereof.
10. On 14 February 1782 Congress appointed Thomas McKean, Elias Boudinot, and Richard Law (Conn.) as a committee to draft two bills—one to establish courts for receiving and determining appeals in cases of capture, and the other, to be recommended to the states, for regulating courts of admiralty (NA: PCC, No. 186, fol. 13). The measures to be proposed, if adopted by Congress, would supersede or at least supplement earlier ordinances, which JM had shared in drafting, on the same subject (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, 66–67; 67, nn. 1, 5; 68, n. 10; 217–18).
Although the McKean committee submitted recommendations on 30 March, and Congress then assigned a date for their consideration (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXII, 153–54), the subject seems to have been shelved thereafter until Osgood’s motion of 7 November 1782 (n. 2, above). By then Richard Law had been absent from Congress for nearly six months (Burnett, Letters description begins Edmund C. Burnett, ed., Letters of Members of the Continental Congress (8 vols.; Washington, 1921–36). description ends , VI, xliii), and Boudinot had become president of Congress (Notes on Debates, 4 November 1782, and n. 5). For this reason, Congress on 7 November joined JM and John Rutledge with McKean, chairman, as the reconstituted committee (NA: PCC, No. 186, fol. 66). Thereafter for the remainder of 1782, except for the election of two judges, the Court of Appeals in Cases of Capture again disappears as a subject of attention both in the printed journal of Congress and in JM’s notes on debates. See Motion on Court of Appeals, 22 November, and n. 1; Notes on Debates, 5 December 1782, and n. 3.
11. The words “the above motion” are interlineated above a deleted “this Motion.”
12. See n. 7, above.
13. This is an approximately accurate quotation from the manuscript of the report. See n. 15, below.
14. To this point in his summary of the opposing views about the Asgill affair, JM repeated the essence of what he had written to Randolph on 5 November 1782 (q.v., and nn. 17–20, 22, and 30). JM interlineated “notorious” in the preceding sentence above a deleted “confessed.”
15. Much of the debate summarized by JM was occasioned not by the committee’s recommendation “to set Capt: Asgill at Liberty” but by the preamble, or justificatory clause, reading, “on Considering the Letter of the 29 July last from Count de Vergennes to the Commander in Chief” (NA: PCC, No. 19, I, 183–84).
17. JM interlineated this word above two or three heavily crossed-out words which may have been “independent powers.”
19. The word “reasons,” occurring three times in this passage, was in each instance a substitution by JM for “motives.” At this point in the debate, JM probably introduced his motion on an instruction to Washington, 7–8 November 1782 (q.v., and its n. 4).
20. Congress adopted Rutledge’s motion, reading only, “That the Commander in Chief be, and he is hereby directed to set Captain Asgill at liberty” (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXIII, 715). In other words, Congress eliminated the justificatory clause, quoted in n. 15.
21. See JM to Randolph, 27 August 1782, and n. 12. The remainder of the debate on 7 November, as recorded by JM, may have focused upon the second portion of his motion on an instruction to Washington, 7–8 November 1782 (q.v.).
22. That is, Carleton’s efforts, if any, to “fulfil his engagement” were assumed to have been prompted mainly by a desire to prevent Asgill’s execution. JM interlineated “Sanction” above a deleted “measure.”
23. In his dispatch of 29 July 1782, Vergennes assured Washington that, in interceding for Asgill’s release, “I am very far from engaging you to seek another victim. The pardon to be perfectly satisfactory must be entire” (NA: PCC, No. 152, XI, 9–12).
24. The phrase “on the guilty” is interlineated above a deleted “for an acknowledged murder.”
25. The expression “promulge &” was interlineated by JM.
26. JM deleted “it” and substituted “the challenge.”
27. From this word to the end of the sentence, JM at first wrote, “of barbarity agst. the enemy and perfidy which had been so often brought agst. the enemy.”
28. The portion of the motion mentioned in n. 21, above, came to a vote before Congress adjourned on 7 November but failed to carry by a margin of one state only. JM and his supporters were encouraged sufficiently to revive the motion as soon as Congress reconvened. See Motion on Instruction to Washington, 7–8 November; Notes on Debates, 8 November 1782.