CONGRESS. PHILADELPHIA HOUSE OF REPRESENTATIVES, TUESDAY, November 8, 1791 • IN COMMITTEE OF THE WHOLE Debate on the motion to agree to the report of the Secretary at H ar t on the petition of John Torrey. MR. AMF.S obje&ed to the motion for accepting the report of the Secretary at War. He (aid, it must be apparent that ho was placed by accident in a relation to the fubjeft in debate, which he should not have adopted of choice. With very ll ' c knowledge of the parties and their connexions, and the that would be involved by the decision, he seemed to be confider cd as (landing sponsor for the petitioner—He might juftify this ac tive support of the petition, by afTigninsj motives which were common to other gentlemen—But as they have continued silent I will aflign a reason for {peaking, said he, which is peculiar to myfelf. Nothing excites a person to a more fervid defence of his | opinions,than the supposed discovery that they are misunderstood, and the force of the reasons on which he had formed them, undu'y estimated. Congress promifedhalf pay to the officers who should continue in service to the end of the war—This was afterwards made a com mutation for half pay. Major Torrey continued in service till Sept. when he died. The question is, did he continue in fcrviretothe end of the war ? The provisional articles of peace were figued on the 30th No vember, 1782 ; but they were to reraa+rr without force till terms peace should be agreed upon between Great-Britain and France. This took place on the 30th January, 1783, and the ratifications "were exchanged on the 3d February, 1783, at Paris. The provi nal treaty between Great-Britain and America was then a treaty peace, and according to the words of that treaty was concluded. \ccordingly, on the 11 th April, 1783, Congress by a proclamati -1 made known those facts, and the Imputations made, in regard the periods when hostilities (hould cease, by the contracting rties to the treaty. Hostilities did cease, and before the end of oril, 1783, all America was in perteft peace—The late hostile tions shook hands, our veflels failed in fafety—and by sea and nd reconciliation succeeded to boftility. But did all this put an end to the war ? The chitdren in the ft:cet would answer this qucftton—They would fay, it is peace when it is not war. Of all fa£ls, the mod notorious fecms to be the slate of war ; and it is the fa& that the war was at an end, (and not any after resolve of Congrefj.) that the commutation ot Major Torrey was made to hinge upon. When the meaning of a bargain is difputcd, it is usual to search out the intention of the parties when it was made ; supposing, instead of in terpreting a resolve of Congress, any twelve of this body had to try a cafe between two private persons—suppose that a man had P'ven his note of hand for a sum to be paid at the end of the war. Would twelve of this House, or would any jury in th" rrwmrry fau ! hat the cxTnTinxrctt-txyfrgn vrrarrmmntirtrvr nf piivale life, a man would think it touched his chara&er 10 refufe paying his note in such a cafe—Surely a public ought to perform its promise with as much delicacy and exattnefs. Congress did not promise the half pay, and afterwards the commutation on 'the condition that a man should serve till they should think proper to fay the war was at an end. He depended on the flubborn fact that it did end, which no resolution of Congress could change; and not on the refining opinion when the officers might fafely be discharged 1 —for that we fee might be differently formed, according to the different views of policy and fafety at the time. An officer hav- | ing this promise of Congress, has a right to this commutatian on the cefTation of hostilities, in pursuance of the treaty. If this is disputed, the meaning of the words " the end of the war'' should be decided as it was understood at the time of the promise. Will any one believe that the 3d November 1783, was the term ; after the state of war and all the treaties which put an end to it, had been long pafled. If any doubt still remains, writers on the law of nations should be confolted. For the officer may justly claim an execution of the promise according to law ; that is the umpire between government and the people. On appealing to the law of nations, we find that war is defined to be " the state in which a nation prosecutes its right by force" —" Peace is opposed to the state of war—an accommodation is proposed and conditions agreed on, and thus peace puts an end to war." " When the powers at war agree to lay down their arms, the agreement is the treaty of peace." " The general and necessa ry effe£ls of peace, are the reconciliation of enemies and the cefTa tion of hostilities ; it restores thetwo nations to their natural state." Would any jury in this country fay that the matter of fact and the principles of law were not in favor of the petition. Apply these maxims of law to the cafe. The provisional articles of No vember, 1782, were of themselves nothing, it is true, but they were to conftitutethe treaty of peace, whenever Great-Britain and France had agreed on the terms of peace. As these two powers did agree on the 30th January, and ratified the terms on the 3d February, 1783 ; then the provisional articles, to use the very words of the preamble, did conflitute the treaty of peace ; it was then a con cluded \\\'\r\g—And peace in tact took place in the several parts of the world on the appointed days. It has been said that the preliminaries were no more than a sus pension of arms, that the state of war still continued, until a defini tive trebly. To this it is answered, that preliminaries bind the national faith, if violated, the perjured faithlefs nation would kin dle a new war. By the law «f nations there is not such a diftinc tfon as that which isalledged, between preliminary and definitive treaties. Let the authorities for such a diftinftion be produced by those who make it—But they do not exist a truoe does not put an end to a war—a truce is, however, a suspension of war for a fpecified term. At she end of this term, the war begins again of course, without any frefh declaration. But a suspension of hos tilities for an indefinite period, is not a truce, but a peace ; efpeci aily if it is added, that it is agreed upon by the belligerent nations in consequence of a settlement of their disputes, and if it happens in fafl that the war is not revived. Those who make so much of a definitive treaty, and so light of preliminaries, ftiould consider that, on their own system, the for mer is a kind of defeafincc which annuls the latter. But when the definitive treaty isfigncd, the preliminaries,which before were liable to be annulled, now become of force, and the treaty, now become indefeafible, takes its date from the preliminaries. Tho this mode of reasoning has not much weight on my own mind, it ought to have some with those who have fct up the diftincti'on which it is adduced to overthrow. I nefe are the reasons on which I have formed my opinion that the wnr ended in fatl in April, 1783, when hostilities ceased by mutual agreement of the powers at war. My opinion is supported by authority much more reputable than any I can give to it. The law courts in this country have decided it judicially ; cases of captured vcfltls, and thequcHion of inteieft on Britiflt debts,hav« produced deeifions in every state of the Union, unless I am mifin formcd, that the war ended in March or April, 1783. The courts in England, and in every country where the war ipread, on trials of property, have made funilar decisions. Major [orrey died in September, 1783, —(1ia1l this body <(fcide against the fettled rule of ail the law courts ? It remain* to remove some objeflions. It is allcdged, that Congress have by vanous refoJve* fixed , period of the war, and have decUred the 3d November. 1783? istbe term. If they had declared that it ftiould be compli ed from the end of the world,it would not alter the truth of the fa£l. AJtcr declarations ought not to be received to change their own promiles — But a declaration, or a do/.en of them, made for another pur pofc, and not to declare the meaning of the contract, cannot on any principle be received to interpret it. It is not neceflary, how ever, to contend against those resolves of Congress. They are re concileable with the former engagement to Major Toriey. In undertaking to reconcile them, I feel that I impose a task on inyfelf, which is made heavy bv the prepoffeflions of many of my friends ; I believe the minds of gentlemen are perfe£tlv fair, and well disposed to doing the petitioner justice. But I hope I shall not be thought to intend any offrnce, when I remark that certain ideas, such as that this claim is cut off by resolves of Con gress, and that on allowing it, confufion would take phce in the business of the public offices, were darted with the difculfion, and they have remained so woven into the texture cf the debate, that I think it hard to unravel them. It was soon manifeft that there was a general disposition to vote against the petition. This oppor tunity for debate seems to have been accorded as of grace, rather than as a means of removing any existing doubts of their own. Having adopted these opinions, this iw'ather a form of refufal than a mode of enquiring ; and itfeems to have been chosen with every circumstance of decency, and with alf ftedfaftnefs of pur pose. Yet I will proceed to (late, that the point whether the war was at an end when hostilities ended in April, 1783, being already considered fully, we are to look for other reasons than such as re late to the commutation, to explain the resolves of Congress which continued the service oi the officers beyond the end of the war, and as late as November, 1783. A mistake seems to have crept in here, it seems to be supposed that the officers were engaged to serve to the end of the war, just long enough to secure their com mutation. But the commutation depended on one thing—the term of their service on another. Tfce former was their right at the end of the war ; but they were to remain in service till difmilT ed, unless they ftiould think fitfooner to rcfign. They held their commiflions during the pleasure of Congress. Though when the war ended they had a right to the commutation,the/ had no right to fay their service was at an end—They did not chufe to resign —Congress for wife reasons did not chufc to dismiss them. A foreign army was still in New-York. They were sent home on furlough, but drawing pay, and iiableto be called into the field— Congress in their resolves did not fay that it was not peace, but in effect that it was unfafeto disarm. Gentlemen are not well agreed among themselves as to the end of the war. Some fix it at the de finitive treaty of September 3, 1783, others to November 3, — Their conclusions agree as illy with their principles ; for if the definitive treaty put an end to the war, how can the fame gentle men fay that the war was kept alive on the journals of Congress, till November, 1783. Here then were peacc and war fubfiftiug quietly together dui ing two months. The fears of making confufion by opening a door to many ap plications, seem to be groundlels. A man must have died between the end of hostilities, and November 1783, to place a claim on the like footing : The living have had their commutations. They cannot come, and no other officer died in that period as far as I can learn—l have enquired and cannot find at the office of the Se- Tcfirv ax ***7" whicH 1 tJtes with this claim, nor anyreafon to luppofe that any (imilaTljne wilt be" : The cafe is a new one, it ftinds alone, and probably ever will, arid it must be decided on its own merits. Believing the fa£fc to b« indifpuuble that Major Torrey served to the end of the war, confiding in the principles of the law of na tions, and the fettled decisions of the judicial courts, I have endea vored to explain my ideas with perspicuity and to impress them with force. I have said more than questions touching an indivi vidual will, often, be found to merit; bat when public principles are conflrued to the prejudice of private rights, the debate cannot be treated too fcioufly. Mr. Boudinot said.he differed in opinion from the gentleman in his conftru&ion of the business. He did not coincide in the idea that the decision of the present qieftion fliould be on a flrift ly judicial principle. The petition is founded on certain resolu tions and laws of Congress ; and as there are certain eflablifhed rules which have been observed in fettling with every other offi cer similarly circumflanced, Congress cannot now with propriety break, through those rules, to these they ought to adhere, till by the decision of some judicial court it shall appear that they are contrary to the rules of justice. [Here Mr. Ames requeued Mr. Boudinot to point out the rules to which he referred.] Mr. Bou dinot referred to the report now under confederation, which was founded on a resolution of Congress, that the time for which the army was engaged (hould expire in November 1783. This has been made a rule in all the icttlements with the officers of the army. The terms of the contrast, between the officers and the United States,depended (he said) on the decision of the sovereign power ; that was authorised alone to determine when the war should cease. That power was veiled in the then-exifling Congress, who, altho' they entered into provisional articles in Noverpoer 178;, did not however think proper immediately to disband their armies, or put an end to the war, as it was yet uncertain whether those pro visional articles would be ratified by Great-Britain, or a treaty of peace concluded between Great-Britain and France ; a circum stance, which was necessary, beforethofe articles could be defini- tively binding. It was only when the definitive treaty was made,' that Congress determined the period of the war. The army when finally disbanded, and paid up to that day, acknowledged, by accepting their pay, that it was then only the war ended ; and, as far as was in their power, assented to the principle which he maintained, that the provisional artirles had not before put an end to the war. Suppose (continued he) that, on the arrival of the de finitive treaty, Congress had not agreed to the terms, would the war have then been considered as at an end ? would not Conerefs have been in the fame situation, as before the signing ot the pro visional articles ? It was necelfiry f'lat Congress Should, bv a de finitive ast, determine when the war ceased : Congref» had naffed such an ast ; and thehoufe at present cannot with propriety' enter into a resolution to alter the period.—The argument of incon venience ought also, he observed, to have some weight with the house : for if any alteration were now to oe mide in the law it mud have a retrofpeft to all the widows and children of decea'fed officers, who have received half pay for vears pad. Besides mi. Ny officers, who have not hitherto considered themf-Ives as en •uled to half pay, would, in consequence of such an alteration have a right to apply for it. ' Mr I.awranre said he doubted nit the ? entlcrmn who fun ported Ihe peutition was fully fjlisfied as to th- iuftire of t'v clawr, which he advocated with so m „ch „H„ r .he be'd le.iv to IVitehnooimon however o-i the fubjeft, in which he (hjuld dittcr fro m th»t : The eon-raft with the officer* of the !i-r army was. that thof hould be entitled to certain benefvs who served to the end of iV Vir. BH M iior Torrev ..vis not hmci'C.l-nWH, as h- du d ircvio'is to the period u-hen me war crated. an 1 lef, ~-uh-r w dow or orphans,to receive tho ben:fitofthe provifun, allowed by 226 law; his cafe is not contemplated by any exiftiog rcfolution of Congress. It is well known that hostilities ceased at the time* of publifh iog the provisional articles which formed the basis for the treaty of peace ; but can any man fay that every foldjer had a right on that event to demand a discharge? Surely not. The provisional ar ticles had the peace in contemplation, bu" the army was not to be riifcharged till the articles of the definitive treaty were ratified by the belligerent powers. The army of the United States was there fore only furloughed, and retained the power of retail ing th-m into service ; and had the officers and loldiers been re cajled from their furloughs to take the field, it would have breu a continuance of the fame war ; but it the definitive tr aty had been signed and hostilities had commenced the very next day, it would have been a new war, and would have been profccuted on entirely new principles. The 2d article of the provisional treaty looks forward to a future period tor a condufion of the war—and ne inferred that the definitive articles being latiiied, and the ratifica- tions exchanged, alone constituted a termination of the war. Mr. La wrance added some observations on the legal ideas of Mr. Ames, in which he also differed from that gentleman ; and concluded by expn fling his approbation of the report of the Secretary of war. Mr. Ames's remarks were further combated by Mr. William, son, Mr. Dayton, Mr. Hillhoufe, Mr. Wadfworth, Mr. Clark, and Mr. White. Mr. Wayne was'oppofed to the report, and Hated certain par ticulars to shew that the army was not furloughed by Congress, becaufeit was apprehended there would beany further demand for their services, but becaufeit was inconvenient to give them an absolute discharge at that period. The motion for accepting the Secretary's Report was carricd by a large majority. WEDNESDAY, November 9. Mr. Sumpte# from South-Carolina, and Mr. Murray from Maryland, appeared, and took their feats. The Speaker laid before the house a letter from the executive of the State of Maryland, en closing a copy of the resignation of William I'inckney, who had been eletfted one of the Re prel'entatives of that State, and a certificate of the eletflion of John Francis Mercer, to serve in his stead. On motion of Mr. Seney, those communicati ons were referred to tiie committee of elections. Mr. Sedgwick, of the committee appointed to prepare a bill for the renewal of destroyed or loft certificates, represented to the house the im polfibility of guarding against fraud, when ap plications Ihould be made for the renewal of those that inighc be said to have been Jolt ; and moved that the committee should be discharged from the further conlideration of the fubjetfl, so saras it extends to 101 l certificates. Some remarks being made for and against the motion ; aud the queition being taken oil it, and 1011, Mr. Sedgwick soon after reported a bill for the renewal of 101 l or destroyed certificates, which was read a firft time. Mr. White laid on the table a resolution that a committee ihould be appointed to bring in a bill to provide for the settlement of unliquidated claims against the United States. Oil motion of Mr. Benfon, the committee of the whole houfc was discharged from the fur ther consideration of the proposed amendments to the constitution, which were then referred to a committee of seven. On motion of Mr. Lawrance, resolved that the attorney-general should be diredted to report to the house such further information as he might partefs, r dative to the operation of the judicial system. Mr. Vining called up a motion, heretofore made by him, for the appointment of a commit tee to prepare a bill or bills to establish an uni form system of bankruptcy throughout the Unit ed States, The queflion being taken on the mo tion, and carried, a committee was accordingly appointed. A committee was also appointed (pursuant to a motion heretofore made by Mr. Fitzfiraons,and since amended) to bring in a bill or bills, for the regulation of pilots, and the fuperintendance of the beacons, buoys, and public piers in the bay and river of Delaware, and in the bay of Chesa peake, and the rivers difeinboguing thereinto. The report of the Secretary of the department of war, on the petition of John Younglove, and thecounte r-petition offundry inhabitants of the slate of New-York, being then called up, a reso lution was moved, That the prayer of the petition offundry in habitants of the counties of Albany and Washing ton, in the (late of New-York, for the repeal of so much of clie acffc, entitled, "An acft for the re lief of disabled folJiers and feainen lately in the service of the United States, and of certain other persons," as relates to the pen lion of John Young love, cannot be granted. [John Younglove having been, but not then actually being in the service of the United States, was disabled in his own house, in repelling an at tack of the enemy during the late war. He ob tained from the late Congress a pension ; and the contra petitioners endeavored to efl'edi the cation of the grant. All the papers on this fub jedl being referred ro the secretary of the war de partment, he reported as his opinion, that Mr. Younjrlove did nor, by any of the existing acfts of Congress, seem entitled to a penfion.j An intereding debate took place on the pro priety of withdra ving the pension. On the one land, it wis urged, that if Mr. Younglove s title •v is admitted, every man, who might fnfFer 111 •lis person or liis property, from an attack ox the
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