To James Monroe
Richmond Novr. 27. 1784.
Your favor of the 15th inst: came to hand by thurday’s post. Mine by the last post acknowledged your preceding one. The umbrage given to the Comsrs. of the U. S. by the negociations of N. Y. with the Indians was not altogether unknown to me, though I am less acquainted with the circumstances of it than your letter supposes.1 The Idea which I at present have of the affair leads me to say that as far as N. Y. may claim a right of treating with Indians for the purchase of lands within her limits, she has the confederation on her side; as far as she may have exerted that right in contravention of the Genl. Treaty, or even unconfidentially with the Comisrs. of Congs. she has violated both duty & decorum. The fœderal articles give Congs. the exclusive right of managing all affairs with the Indians not members of any State, under a proviso, that the Legislative authority, of the State within its own limits be not violated. By Indian[s] not members of a State, must be meant those, I conceive who do not live within the body of the Society, or whose Persons or property form no objects of its laws. In the case of Indians of this description the only restraint on Congress is imposed by the Legislative authority of the State. If this proviso be taken in its full latitude, it must destroy the authority of Congress altogether, since no act of Congs. within the limits of a State can be conceived which will not in some way or other encroach upon the authority [of the] States. In order then to give some meaning to both parts of the sentence, as a known rule of interpretation requires, we must restrain this proviso to some particular view of the parties. What was this view? My answer is that it was to save to the States their right of preemption of lands from the Indians. My reasons are. 1. That this was the principal right formerly exerted by the Colonies with regard to the Indians. 2. that it was a right asserted by the laws as well as the proceedings of all of them, and therefore being most familiar, wd. be most likely to be in contemplation of the Parties; 3. that being of most consequence to the States individually, and least inconsistent with the general powers of Congress, it was most likely to be made a ground of Compromise. 4. it has been always said that the proviso came from the Virga. Delegates, who wd naturally be most vigilant over the territorial rights of their Constituents.2 But whatever may be the true boundary between the authority of Congs. & that of N. Y. or however indiscreet the latter may have been, I join entirely with you in thinking that temperance on the part of the former will be the wisest policy. I concur with you equally with regard to the ignominious secession at Annapolis.3 As Congs. are too impotent to punish such offences, the task must finally be left to the States and experience has shown in the case of Howel, that the interposition of Congs. agst. an offender instead of promoting his chastisements, may give him a significancy wch. he otherwise wd. never arrive at and may induce a State to patronize an act which of their own accord they would have punished.4 I am sorry to find the affair of Mr. de Marb——s taking so serious a face. As the insult was comitted within the jurisdiction of Pena. I think you are right in supposing the offender could not be transferred to another jurisdiction for punishment. The proper questions therefore are 1. whether the existing law was fully put in force agst. him by Pa.? 2. whether clear provision has been made by that State agst. like contingenc[i]es? Nothing seems to be more difficult under our new Governments, than to impress on the attention of our Legislatures a due sense of those duties which spring from our relation to foreign nations. Several of us have been labouring much of late in the G. Assembly here to provide for a case with which we are every day threaten’d by the eagourness of our disorderly Citizens for Spanish plunder & Spanish blood. It has been proposed to authorize Congs. whenever satisfactory proof shall be given to them by a foreign power of such a crime being committed by our Citizens within its jurisdiction as by the law of Nations call for Surrender of the Offender, & the for[e]ign power shall actually make the demand, that the Executive may at the instance of Congs. apprehend & deliver up the offender. That there are offences of that class is clearly stated by Vattel in particular, & that the business ought to pass through Congs. is equally clear. The proposition was a few days ago rejected in Committee of the whole. To day in the report of the Comme. it has been agreed to by a small majority. This is the most material question that has agitated us during the week past.5 The Bill for a Religious Assesst. has not been yet brought in. Mr. Henry the father of the Scheme is gone up to his Seat for his family & will no more sit in the H. of Delegates, a circumstance very inauspicious to his offspring. An attempt will be made for circuit Courts, & Mr. Jones has it in contemplation to try whether any change has taken place in the Sentiments of the H. of D on the subject of the Treaty.6 He will write to you by this post & I refer to him for what I may have omitted. With sincere regard & esteem I am Dr. Sir Yr. friend & servt.
J. Madison Jr.
RC (DLC). Docketed by JM. Addressed to Monroe “in Congress.”
1. Monroe assumed that JM understood the reaction of some delegates in Congress toward what appeared to them as state interference in Indian affairs. The New York commissioners assembled at old Fort Stanwix but were not able to complete their negotiations because the Mohawk chief, Brant. was convinced that the tribes should deal directly with representatives of the Confederation (Randolph C. Downes, Council Fires on the Upper Ohio [Pittsburgh, 1940], pp. 288–90). Some delegates in Congress considered that the New York commissioners were acting in a spirit of defiance rather than cooperation (Burnett, Letters description begins Edmund C. Burnett, ed., Letters of Members of the Continental Congress (8 vols.; Washington, 1921–36). description ends , VII, 584 n. 3, 587, 613).
2. The Articles of Confederation granted Congress “the sole and exclusive right and power” of “regulating the trade and managing all affairs with the Indians, not members of any of the states, provided that the legislative right of any state within its own limits be not infringed or violated.…” (Art. IX). This wording allowed the Virginia General Assembly to declare on 9 June 1779 that “the Commonwealth of Virginia has the exclusive right of a pre-emption, from the Indians, of all lands within the limits of its own chartered territory,… and that such exclusive right of pre-emption will, and ought to be, maintained by this Commonwealth to the utmost of its power” (JHDV description begins Journal of the House of Delegates of the Commonwealth of Virginia; Begun and Held at the Capitol, in the City of Williamsburg. Beginning in 1780, the portion after the semicolon reads, Begun and Held in the Town of Richmond. In the County of Henrico. The journal for each session has its own title page and is individually paginated. The edition used is the one in which the journals for 1777–1786 are brought together in two volumes, with each journal published in Richmond in either 1827 or 1828 and often called the “Thomas W. White reprint.” description ends , May 1779, p. 39). In short, Virginia was denying the claims made under any Indian treaties not sanctioned by its own laws or emissaries, and particularly the early Treaty of Fort Stanwix (3 Nov. 1768) which land speculators were still using to dispute Virginia’s jurisdiction over its western lands. As JM discerned, consistency demanded that Virginia recognize the right of New York to make Indian treaties although it was an awkward situation for a nationalistic lawmaker who ordinarily was impatient with the claimants of states rights.
3. The “ignominious secession at Annapolis” was the apparently unannounced departure of three members of the Committee of the States on 11 Aug. 1784 (Dana, Dick, and Blanchard) who left Annapolis and thereby effectively dissolved the shadow government supposed to operate between sessions of Congress (see Monroe to JM, 15 Nov. 1784). Actually, Dana had told the Massachusetts Assembly he was ill and could not stay at his post in Congress, adding, “I wish another member might come on to supply my place” (Burnett, Letters description begins Edmund C. Burnett, ed., Letters of Members of the Continental Congress (8 vols.; Washington, 1921–36). description ends , VII, 566).
4. The right of David Howell, a Rhode Island delegate, to serve as a member of Congress was challenged under the provision that no delegate was eligible to serve for “more than three years in any term of six years” (Art. V). Howell, who had earlier flouted the rules of Congress, was challenged to two duels but held on to his seat when a tired Congress decided further wrangling was useless (Burnett, Letters description begins Edmund C. Burnett, ed., Letters of Members of the Continental Congress (8 vols.; Washington, 1921–36). description ends , VII, 534, 536; Papers of Madison description begins William T. Hutchinson et al., eds., The Papers of James Madison (8 vols. to date; Chicago, 1962——). description ends , V, 372–73).
5. With the affair involving Marbois in mind, the General Assembly had passed an extradition act on a third reading earlier in the day by a vote of 44 to 43—”a small majority” indeed (JHDV description begins Journal of the House of Delegates of the Commonwealth of Virginia; Begun and Held at the Capitol, in the City of Williamsburg. Beginning in 1780, the portion after the semicolon reads, Begun and Held in the Town of Richmond. In the County of Henrico. The journal for each session has its own title page and is individually paginated. The edition used is the one in which the journals for 1777–1786 are brought together in two volumes, with each journal published in Richmond in either 1827 or 1828 and often called the “Thomas W. White reprint.” description ends , Oct. 1784, p. 42).
6. Joseph Jones was the prime mover in an effort to resolve the British debt problem so that Great Britain could not use the nonpayment of old debts as an excuse for occupation of western frontier outposts in violation of the Treaty of Paris. Jones’s resolutions called for installment payment of the debts and were soon discussed in the Committee of the Whole, and then became the basis of a bill which was rejected on a technicality (JM to Jefferson, 9 Jan. 1785).