Another member, to wit, Egbert Benson, from New York, appeared, produced his credentials, and took his seat in the House.
Monday, November 7.
Several other members, to wit: from Pennsylvania, William Findlay; from North Carolina, John Baptist Ashe; and from Georgia, Abraham Baldwin; appeared, produced their credentials, and took their seats in the House.
Tuesday, November 8.
Another member, to wit, Andrew Gregg, from Pennsylvania, appeared, produced his credentials, and took his seat in the House.
John Torrey.
The House resolved itself into a Committee of the whole House on the Report of the Secretary of War on the petition of John Torrey, administrator of Major Joseph Torrey, deceased.
Mr. Ames objected to the motion for accepting the Report of the Secretary of War. He said, it must be apparent that he was placed by accident in a relation to the subject in debate, which he should not have adopted of choice. With very little knowledge of the parties and their connections, and the interests that would be involved by the decision, he seemed to be considered as standing sponsor for the petitioner. He might justify this active support of the petition, by assigning motives which were common to other gentlemen; but as they have continued silent, I will assign a reason for speaking, which is peculiar to myself. 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 unduly estimated.
Congress promised half-pay to the officers who should continue in service to the end of the war. This was afterwards made a commutation for half-pay. Major Torrey continued in service till September, 1783, when he died. The question is, did he continue in service to the end of the war? The provisional articles of peace were signed on the 30th November, 1782; but they were to remain without force till terms of 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 provisional treaty between Great Britain and America was then a treaty of peace, and according to the words of that treaty was concluded. Accordingly, on the 11th April, 1783, Congress by a proclamation made known those facts, and the stipulations made, in regard to the periods when hostilities should cease, by the contracting parties to the treaty. Hostilities did cease, and before the end of April, 1783, all America was in perfect peace. The late hostile nations shook hands, our vessels sailed in safety, and by sea and land reconciliation succeeded to hostility.
But did all this put an end to the war? The children in the street would answer this question: they would say, it is peace when it is not war. Of all facts, the most notorious seems to be the state of war; and it is the fact that the war was at an end, (and not any after resolve of Congress,) that the commutation of Major Torrey was made to hinge upon. When the meaning of a bargain is disputed, it is usual to search out the intention of the contracting parties when it was made. Supposing, instead of interpreting a resolve of Congress, any twelve of this body had to try a case between two private persons; suppose that a man had given 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 the country say that the war continued longer than hostilities? In private life, a man would think it touched his character to refuse paying his note in such case. Surely a government ought to perform its promise with as much delicacy and exactness. Congress did not promise the half-pay, and afterward the commutation, on the condition that a man should serve till they should think proper to say the war was at an end. He depended on the stubborn fact that it did end, which no resolution of Congress could change; and not on the refining opinion when the officers might safely be discharged—for that we see might be differently formed, according to the different views of policy and safety at the time. An officer having this promise of Congress, has a right to this commutation on the cessation 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 passed? If any doubt still remains, writers on the law of nations should be consulted. 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 necessary effects of peace, are the reconciliation of enemies and the cessation of hostilities; it restores the two nations to their natural state." Would any jury in this country say, that the matter of fact and the principles of law were not in favor of the petition? Apply these maxims of law to the case. The provisional articles of November, 1782, were of themselves nothing, it is true, but they were to constitute the 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 constitute the treaty of peace; it was then a concluded thing; and peace in fact took place in the several parts of the world on the appointed days.