University of Virginia Library

THURSDAY, NOVR. 7.

On the reconsideration of the Resol: for exchanging the two
for: 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 1. that the proceedings of the Court were too

important to be confided to a single Judge. 2. 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. 3.
that a single judge would be more apt by erroneous decisions to
embroil the U. S. in disputes with foreign powers. 4. that if
there were more than one Judge, & 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 unavoidably be less uniform, & the provision of the
confederation for a court of universal appellant Jurisdiction so far
contravened. 5. as there was little reason to expect that the public
finances wd. during the war be more equal to the public burdens
than at present, and as the cases within the cognizance of
this court would cease with the war, the qualification annexed to
the expedient ought to have no effect. The motion was disagreed
to & a committee which had been appointed to prepare a new ordinance
for constituting the Court of Appeals, was filled up & 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
Com̃ittee on the case of Capt. Asgill the British officer allotted to
suffer retaliation for the murder of Capt. Huddy. The report
proposed

"That considering the letter of the 29th. of July last from the
Count de Vergennes to Genl. Washington interceding for Capt.
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 Sr G. 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 & 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 1st. was on what considerations the discharge of
Cap. 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: alledging 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 outweighed the circumstance
urged in its favor; and that the disavowal of the outrage, by
the British Genl. 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 reasons & for leaving the
justification of the measure to such reasons as would occur of
themselves. This last opinion after considerable discussions prevailed,
and the Resol. left as it stands on the Journals. The
2d question was whether this release of Cap: Asgill should be followed
by a demand on Gel. 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 &
promise of justice by Gel. Carleton, the least that could be done
by Gel. Washington would be to claim a fulfilment; that the

intercession of the Ct. de Vergennes extended no farther than to
prevent the execution of Capt: 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 & promises of the enemy on which the
challenge was grounded; & would give weight to the charges
both of barbarity and perfidy which had been so often brought
agst. them.

In the vote on this question, 6 States were in favor of the demand
& the others either divided or against it.