Report on Property Recaptured on Land
MS (NA: PCC, No. 19, II, 497b–500b). In JM’s hand. Docketed: “Report on Genl Greene’s Letter of the 28th. of Ocr. 1782 By Mr. Madison Mr. Hamilton Mr. McKean Delivd Decr. 18. 1782. read Monday 23 assigned for the Consideration thereof Passed Decr. 24. 1782” Of this docket, the words “Report on” and the part after “McKean” were written by George Bond, deputy secretary of Congress. The rest of the docket is in JM’s hand. Between “read” and “Monday” in the docket, the date to be inserted, in accordance with the fourth rule of procedure, probably should be 19 December (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XX, 476).
[23 December 1782]
The Committee consisting of Messrs. Madison, Hamilton and McKean1 to whom were referred a letter from Majr. Genl Greene of the 28th. Ocr. last with sundry other papers accompanying the same[,]2 Report
That it appears from the papers referred that the Executive Authority of the State of S. Carolina had claimed in behalf of the Original owners[,] Citizens of the said State, sundry horses recaptured on land from the Enemy by a detachment of the forces of the U. S.;3 on the general principle “that original owners are entitled to Restitution of all recaptured property”;4 that a Council of war to which the said claim was referred by Majr. General Greene had decided against its validity; and that he has finally submitted the case to Congress.
On this subject the Committee beg leave to observe that by the 9th. of the Articles of Confederation, the U. States in Congress assembled are invested with the sole and exclusive right and power inter alia5 of “establishing rules for deciding in all cases what captures on land or water shall be legal, and in what manner prizes taken by land or naval forces in the service of the U.S. shall be divided or appropriated; which power as it involves that of deciding on the right of the Enemy to the property captured, necessarilly extends to cases of recapture.6
That with respect to captures and recaptures on water general provision hath been made by several Ordinances & Acts of Congress.7
That with respect to captures on land, partial provision only hath been made, and for cases of recapture on land no provision at all;8 it having been left to the discretion of the Military Commanders to conform, in the cases omitted, to the general rules of justice, and the customs of war as observed by civilized nations.9
That the particular case in question having been decided in the mode practiced by the army in like instances, cannot with propriety be rejudged by Congress, to whom is delegated in cases of capture a legislative only and not a judiciary authority.10 That nevertheless since it is both the duty and disposition of Congress to render the aims of the U. S. as subservient as possible to the just interests of individuals as well as to the general defence and since restitution has been ordained to the original owners in cases of recapture on water of property previously11 captured by the enemy on land, the Committee are of opinion that it is expedient to remit in favor of the original owners the property recaptured by Col: 12 and retained for the use of the U. States.
Upon this view of the subject the Committee propose the following Resolutions.
That Congress approve of the steps taken by Majr. Genl Greene in the case of the property recaptured on land by Col: Koscuiszko and claimed in behalf the original owners by the Executive Authority of the State of S. Carolina; as stated in his letter of the 28th of Octr. last.13
That so much of the property recaptured as aforesaid and accruing to the use of the U. States, as shall be satisfactorily proven to have been previously captured from Inhabitants of the U. States, be remitted to the original proprietors; excepting only so much, or the value, thereof, not exceeding ¼ of the whole value, as the said Majr Genl Greene may have promised, or may be deemed by him a proper compensation, to the Recaptors.14
That leave be give[n] to the Committee to report an Ordinance declaring in all cases what captures on land shall be legal, and in what manner the same shall be divided or appropriated.15
That untill such general provision shall be made, all property,—dead victuals & provender of all kinds being excepted,16 which shall be recaptured on land from the enemy by forces in the service of the U. States, and which shall be satisfactorily proven to have been previously captured17 from any individual State; or without collusion captured or plundered from any inhabitant of the18 United States, shall be specifically restored to usch State or to such inhabitant; on19 their paying therefor such sum not exceeding 1/4 of its value, as may have been promised by the Commanding officer of the department to the recaptors, or as may be deemed by him a proper compensation to them: provided always that where20 slaves shall be so recaptured, restitution shall be made without21 demand of such sum from the original owners; and provided that this Resolution shall not be construed to extend to property brought off from the Enemy by deserters.22
1. Interlineated above a canceled “Fitzsimmons.” At some time between 10 and 18 December, Thomas McKean replaced John Rutledge on this committee. Rutledge may have been ill or temporarily out of the city. Apparently he did not attend Congress on 12 and 18 December, when tallied polls were recorded in the journal (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXIII, 789–90, 817). When the present report was debated on 23 and 24 December, Rutledge opposed two of the recommendations. See Notes on Debates for those days.
4. If JM had used the word “restoration” rather than “Restitution,” he would have quoted exactly from the “unanimous opinion” of the Privy Council of South Carolina of 14 October 1782 (NA: PCC, No. 155, III, 567).
5. Among other powers.
6. The quotation from Article IX ends with “appropriated.” A decision involving the “right of the Enemy” would hinge upon whether the “property captured” had been seized as legitimate spoils of war or as wanton plunder. See JM to Randolph, 17 December 1782, nn. 10, 16.
7. Ibid., n. 11. Upon going into effect on 1 February 1782, the ordinance of 4 December 1781 had superseded all previous “resolutions and ordinances” relating to captures or recaptures on water. A supplementary ordinance on this subject was enacted on 26 February 1782 (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXI, 1153–58; XXII, 99–100).
8. See JM to Randolph, 17 December 1782, nn. 11, 15. A decision of the particular matter in controversy hinged in considerable degree upon the status of the horses at the time of their recapture. If, as Governor John Mathews in Privy Council insisted, the horses still were private property, they should have been returned at no cost to their owners except a salvage fee equal to one-fourth of the value of the animals. If, on the other hand, they had become the property of the enemy, as General Greene and his council of war insisted, their recapture converted them into public property of the United States rather than reconverted them into property of their former owners. See n. 6.
On 22 June 1781, when Mathews was a delegate from South Carolina, Congress named him chairman of a committee “to prepare the draught of an ordinance touching captures by land” (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XX, 690). The committee apparently never reported.
9. Here the committee adopted the view expressed by General Greene’s council of war, Charles Cotesworth Pinckney excepted, in its minutes of 16 and 19 October and by the general in his letter of 28 October 1782 to Congress (NA: PCC, No. 155, II, 552–60, 579–84).
10. Under the legislative power conferred by Article IX of the Articles of Confederation, Congress no doubt could amend Article 20 of Section XIII of the Articles of War (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , V, 799) so as to deal with horses recaptured from the enemy, but an amendment for that purpose could not be made retroactive “with propriety.” Congress had no “judiciary authority” to decide an issue between a state and itself or, as in the present instance, one of its own agents (JM to Randolph, 5 November 1782, n. 8).
11. JM interlineated this word.
12. In this space JM intended to insert “Koscuiszko” for Thaddeus Andrew Bonaventure Kosciuszko (1746–1817), who, with the troops under his command, had recaptured the horses from the British on James Island, S.C. Of Polish ancestry, although a native of the Grand Duchy of Lithuania, Kosciuszko was commissioned a colonel of engineers by Congress on 18 October 1776. Skilled in planning and directing the building of fortifications, he served with distinction under General Horatio Gates during the campaign against General John Burgoyne and as superintendent of the defenses of West Point from March 1778 until June 1780. Thereafter, until the spring of 1783, he was with Gates’s or Greene’s army of the southern department, where he again was highly regarded as a military engineer and director of transportation.
On 13 October 1783, about nine months before Kosciuszko returned to Europe, Congress commissioned him a brigadier general (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , VI, 888; XXIV, 489, 498, n. 2; XXV, 673). During his visit to America from August 1797 to May 1798, Congress paid him the balance of his long overdue salary and granted him five hundred acres of land in the Northwest Territory. From 1789, when he was commissioned a major general in the Polish Army, until the Congress of Vienna in 1815, his career epitomized the efforts of the Poles by war and negotiations to maintain or regain their independence. His stature as a champion of liberty and hero of Poland was enhanced when, after being defeated in battle, severely wounded, and captured in 1794, the Russians imprisoned him for two years (Antoni Gronowicz, Gallant General, Tadeusz Kosciuszko, trans. by Samuel Sorgenstein [New York, 1947]).
13. JM interlineated “Koscuiszko” above a canceled misspelling of the name, which appears to have been “Kousistkow.” In the right margin opposite this paragraph, George Bond wrote “passed.” Bond’s notations beside each of the three remaining resolutions indicate that Congress, in accord with the eighth rule of procedure, debated and voted upon the four proposals seriatim. See JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XX, 477; XXIII, 828, 830.
14. In this paragraph JM interlineated “previously,” “value,” “Majr,” and “by him.” During the debate on 23 December on this second recommendation of the committee, JM, or more probably George Bond, underlined the passage here italicized. The underlined words are those that John Rutledge, seconded by John Lewis Gervais, moved be struck out. The motion failed by a vote of 2 (Rhode Island and South Carolina) to 7 (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXIII, 828; Notes on Debates, 23 December 1782, and n. 2). After “proprietors” all of the second resolution is both underlined and canceled. In the margin to the right of the resolution, Bond wrote and canceled “negative”; then penned beneath the excised word, “passed with the Exception.” These entries and cancellations relate to the somewhat confused action resulting from the debate on the next day (Notes on Debates, 24 December 1782).
In regard to “a proper compensation,” Greene had been silent in his correspondence with Governor Mathews, but he informed Congress that, although he offered a “premium for the encouragement of enterprize” by his troops in capturing horses from the enemy, he “generally” limited the reward to a sum far less than that paid by an owner when recaptured property was restored to him by the government of his state. The owner’s “salvage” fee usually equaled 25 per cent of the value of his recovered property (NA: PCC, No. 155, II, 556–57).
15. On 24 December George Bond wrote “passed” in the margin to the left of this resolution (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXIII, 830; Notes on Debates, 24 December 1782, and n. 20). See also JM to Randolph, 17 December 1782, and n. 15.
16. Above “property” JM interlineated and canceled what may have been “tantu,” possibly with the intention of writing “tantum quod,” meaning “only.” Beside the cancellation Bond wrote “dead,” seemingly to modify “victuals.” The most probable explanation is that it was pointed out in debate that unless JM’s proposed exception were limited to livestock already slaughtered before recapture, a commander could have them slaughtered at any time following recapture in order to reclassify them as “victuals.” “Victuals” designated food for human beings, “provender,” for beasts.
17. Between “shall” and “be,” “have been” was canceled, and between “previously” and “captured,” the phrase “& without collusion captured or plundered from” was also canceled.
18. JM interlineated “any” and “the.”
19. Immediately preceding “on,” “provided nonetheless that” is deleted.
20. Immediately following “where,” the word “any” was canceled.
21. The next five words were written by JM above a deleted “demand whatsoever on.”
22. By designating slaves as the one type of property which, upon being recaptured and returned to the owner, did not oblige him to pay salvage to the recaptor, the proposal of the committee conformed with the views of the Privy Council of South Carolina but differed from a provision of the ordinance of Congress of 4 December 1781 (n. 7, above; also NA: PCC, No. 155, II, 569–70; JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXI, 1155–56). In his letter to Congress on 28 October 1782, Greene stressed that, if recaptured horses had to be returned to their original owners, the desertion by British dragoons mounted on captured horses would be discouraged (NA: PCC, No. 155, II, 559–60). Since the resolutions were debated seriatim (n. 13, above), and the third resolution was not voted on until 24 December 1782 (nn. 14, 15, above), it was on that day that George Bond drew a line diagonally across the entire final paragraph of the present report and wrote “negatived” in the left margin. For further mention of this report by JM, see Notes on Debates, 23 December 1782.