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