CONTENTS.

MONDAY, September 17,....

DEBATES

IN THE

CONGRESS OF THE CONFEDERATION,

FROM NOVEMBER 14, 1782, TO FEBRUARY 13, 1783.

IN CONGRESS, MONDAY, November 4, 1782.

ELIAS BOUDINOT was chosen president, by the votes of New Hampshire, represented by John Taylor Gilman and Phillips White; Rhode Island, by Jonathan Arnold and David Howell; Connecticut, by Benjamin Huntington and Eliphalet Dyer; New Jersey, by Elias Boudinot and John Witherspoon; Pennsylvania, by Thomas Smith, George Clymer, and Henry Wynkoop; Delaware, by Thomas M'Kean and Samuel Wharton; Maryland, by John Hanson, Daniel Carroll, and William Hemsley; the votes of Virginia, represented by James Madison and Theodorick Bland, and of South Carolina, represented by John Rutledge, Ralph Izard, David Ramsay, and John Lewis Gervais, were given to Mr. Bland; the vote of New York, represented by James Duane and Ezra L'Hommedieu, to Abner Nash; the vote of North Carolina, by Abner Nash, Hugh Williamson, and William Blount, to John Rutledge. Massachusetts, having no delegate but Samuel Osgood, had no vote. Georgia had no delegate.

A letter, dated October 30, 1782, from General Washington, was read, informing Congress of his putting the army into winter-quarters, and of the sailing of fourteen ships of the line from New York, supposed to be for the West Indies, and without troops.

A letter, dated July 8, from Mr. Carmichael, at St. Ildefonso, informing Congress of the good effect, in Europe, of the rejection of the proposal of Carleton by Congress and the states; that the king of Spain, speaking of the news at table, praised greatly the probity of the Americans, raising his voice in such a manner that all the foreign ministers might hear him. Mr. Carmichael adds, that he had discovered that the Imperial and Russian ministers, by directions from their courts, had renewed their offered mediation to His Most Catholic Majesty, and that he suspected England was at the bottom of it. Quære.

A letter, dated Nantz, September 5, from Mr. Laurens, notifying his intention to return to America; that, being so advised by his friends, he had applied to the court of London for a passport via Falmouth; that Cornwallis had interested himself therein, and that the passport had been promised.

TUESDAY, November 5.

A resolution passed, authorizing General Washington to obtain the exchange of two foreign officers, notwithstanding the resolution of the 16th of October, declaring that Congress will go into no partial exchanges until a general cartel be settled on national principles. This measure passed, without due consideration, by the votes of New Hampshire, Rhode Island, Connecticut, Delaware, Maryland, North Carolina, and South Carolina. On the motion of Mr. OSGOOD, it was reconsidered, in order to refer the case to the secretary of war and General Washington, to take order. By Mr. MADISON opposition was made against any partial exchange in the face of the solemn declaration passed on the 16th of October, as highly dishonorable to Congress, especially as that declaration was made, in order to compel the enemy to a national convention with the United States. All exchanges had been previously made on the part of the former by the military authority of their generals. After the

letter of General Carleton and Admiral Digby, notifying the purpose of the British king to acknowledge our independence, it was thought expedient by Congress to assume a higher tone. It was supposed, also, at the time of changing this mode, that it would be a test of the enemy's sincerity with regard to independence. As the trial had been made, and the British commander, either from a want of power or of will, had declined treating of a cartel on national ground, it would be peculiarly preposterous and pusillanimous in Congress to return to the former mode. An adjournment suspended the vote on the question for referring the case to the secretary and general to take order.

No Congress.

WEDNESDAY, November 6.

THURSDAY, November 7.

On the reconsideration of the resolution for exchanging the two foreign officers, its repeal was unanimously agreed to.

A motion was made, by Mr. OSGOOD, to assign an early day for filling up the vacancy in the Court of Appeals. It was opposed on the principle of economy, and the expedient suggested, by Mr. DUANE, of empowering a single judge to make a court until the public finances would better bear the expense. In favor of the motion it was argued, first, that the proceedings of the court were too important to be confided to a single judge; secondly, that the decisions of a single judge would be less satisfactory in cases where a local connection of the judge subsisted with either of the parties; thirdly, that a single judge would be more apt, by erroneous decisions, to embroil the United States in disputes with foreign powers; fourthly, that if there were more than one judge, and one formed a court, there might, at the same time, be two interfering jurisdictions, and that, if any remedy could be applied to this difficulty, the course of decisions would inevitably be less uniform, and the provision of the Confederation for a court of universal appellant jurisdiction so far contravened; fifthly, as there was little reason to expect that the public finances would, during the war, be more equal to the public burdens than at present, and as the cases within the cognizance of the court would cease with the war, the qualification annexed to the expedient ought to have no effect. The motion was disagreed to, and a committee which had been appointed to prepare a new ordinance for constituting the Court of Appeals was filled up, and instructed to make report. On the above motion, an opinion was maintained by Mr. RUTLEDGE 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 illegal.

Congress went into the consideration of the report of the committee on the case of Captain Asgill, the British officer allotted to suffer retaliation for the murder of Captain Huddy. The report proposed,

"That, considering the letter of the 29th of July last, from the Count de Vergennes to General Washington, interceding for Captain Asgill, the commanderin-chief be directed to set him at liberty."

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 Sir Guy Carleton 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 denunciations, 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; and 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. Two questions, however, arose on the report of the committee. The first was, on what considerations the discharge of Captain Asgill ought to be grounded. On this quesjon a diversity of opinions existed. Some concurred with the committee in resting he measure entirely on the intercession of the French court; alleging that this was he only plea that could apologize to the world for such a departure from the solemn leclaration made both by Congress and the commander-in-chief. Others were of pinion that this plea, if publicly recited, would mark an obsequiousness to the French court, and an impeachment of the humanity of Congress, which greatly out

weighed the circumstance urged in its favor; and that the disavowal of the outrage by the British general, and a solemn promise to pursue the guilty authors of it, afforded the most honorable ground on which Congress might make their retreat. Others, again, contended for an enumeration of all the reasons which led to the measure. Lastly, others were against a recital of any reason, and for leaving the justification of the measure to such reasons as would occur of themselves. This last opinion, after considerable discussions, prevailed, and the resolution was left as it stands on the Journals. The second question was, whether this release of Captain Asgill should be followed by a demand on General Carleton to fulfil his engagement to pursue with all possible effect the authors of the murder.

On one side, it was urged that such a demand would be nugatory, after the only sanction which could enforce it had been relinquished; that it would not be consistent with the letter of the Count de Vergennes, which solicited complete oblivion; 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 and promise of justice by General Carleton, the least that could be done by General Washington would be to claim a fulfilment ; that the intercession of the Count de Vergennes extended no farther than to prevent the execution of Captain 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; that, if the challenge was not followed by a compliance on the part of the enemy, it would at least promulge and perpetuate, in justification of the past measures of Congress, the confessions and promises of the enemy on which the challenge was grounded, and would give weight to the charges both of barbarity and perfidy which had been so often brought against them.

In the vote on this question, six states were in favor of the demand, and the others either divided or against it.

FRIDAY, November 8.

The preceding question having been taken again, on a further discussion of the subject, there were, in favor of the demand, New Hampshire, Rhode Island, New York, Pennsylvania, Delaware, Maryland, Virginia, and of the other states some were divided.

A motion was made by Mr. RUTLEDGE, of South Carolina, "That the commander-in-chief, and of the southern department, be respectively directed, whenever the enemy shall commit any act of cruelty or violence, contrary to the laws and usage of war, on the citizens of these states, to demand adequate satisfaction for the same; and in case such satisfaction shall not be immediately given, but refused or evaded under any pretext whatsoever, to cause suitable retaliation to be forth with made on British officers, without waiting for directions from Congress on the subject." When this motion was first made, it was espoused by many with great warmth, in particular by the delegates of North Carolina and South Carolina, as necessary to prevent the delays and uncertainties incident to a resort by the military commanders to Congress, and to convince the enemy that, notwithstanding the dismission of Captain Asgill, the general purpose of retaliation was firmly retained.

Against the motion it was objected, first, that the time and place in which it stood would certainly convey an indirect reprehension of General Washington, for bringing before Congress the case of Captain Asgill and Huddy; secondly, that it manifested a distrust in Congress, which, however well founded it might be with respect to retaliation, ought not to be proclaimed by themselves; thirdly, that political and national considerations might render the interference of the supreme authority expedient, of which the letter from the Count de Vergennes, in the late case, furnished an instance; that the resort of the military commanders to the sovereign for direction in great and difficult cases, such as those of retaliation would often prove, was a right of which they ought not to be deprived, but in the exercise of which they ought rather to be countenanced. These objections reduced the patrons of the motion to the delegates of North Carolina and South Carolina alone, or nearly so. In place of it, the declaratory motion on the journal was substituted. This again was objected to, as implying that, in the cases of retaliation taken up by the