Debates in the Several State Conventions on the Adoption of the Federal Constitution, Vol. 5

Contents:

Thursday, November 7

The resolution referred to above repealed. Motion by Mr. Osgood to fill the vacancy in the Court of Appeals—Opposed by Mr. Duane on the ground of economy—Arguments for and against the motion—Debate on the report of the committee on the case of Capt. Asgill—Debate on the question of making a demand on Gen. Carleton, to fulfill his engagement to pursue the authors of Capt. Huddy’s murder.

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 eases 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 he 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 commander-in-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 question a diversity of opinions existed. Some concurred with the committee in resting the measure entirely on the intercession of the French court; alleging that this was the only plea that could apologize to the world for such a departure from the solemn declaration made both by Congress and the commander-in-chief. Others were of opinion that this plea, if publicly recited, would mark an obsequiousness to the French court, and an impeachment of the humanity of Congress, which greatly [p.3] out-weighed the circumstance urged m 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.

Contents:

Related Resources

None available for this document.

Download Options


Title: Debates in the Several State Conventions on the Adoption of the Federal Constitution, Vol. 5

Select an option:

*Note: A download may not start for up to 60 seconds.

Email Options


Title: Debates in the Several State Conventions on the Adoption of the Federal Constitution, Vol. 5

Select an option:

Email addres:

*Note: It may take up to 60 seconds for for the email to be generated.

Chicago: Elliot, Jonathan, ed., "Thursday, November 7," Debates in the Several State Conventions on the Adoption of the Federal Constitution, Vol. 5 in The Debates in the Several State Conventions, on the Adoption of the Federal Constitution, as Recommended by the General Convention at Philadelphia, in 1787, ed. Jonathan Elliot (Philadelphia: J. B. Lipincott Company, 1901), Original Sources, accessed April 20, 2018, http://www.originalsources.com/Document.aspx?DocID=CPPTUT46HQLZHXA.

MLA: . "Thursday, November 7." Debates in the Several State Conventions on the Adoption of the Federal Constitution, Vol. 5, edited by Elliot, Jonathan, in The Debates in the Several State Conventions, on the Adoption of the Federal Constitution, as Recommended by the General Convention at Philadelphia, in 1787, edited by Jonathan Elliot, Vol. 5, Philadelphia, J. B. Lipincott Company, 1901, Original Sources. 20 Apr. 2018. www.originalsources.com/Document.aspx?DocID=CPPTUT46HQLZHXA.

Harvard: (ed.), 'Thursday, November 7' in Debates in the Several State Conventions on the Adoption of the Federal Constitution, Vol. 5. cited in 1901, The Debates in the Several State Conventions, on the Adoption of the Federal Constitution, as Recommended by the General Convention at Philadelphia, in 1787, ed. , J. B. Lipincott Company, Philadelphia. Original Sources, retrieved 20 April 2018, from http://www.originalsources.com/Document.aspx?DocID=CPPTUT46HQLZHXA.