James Madison Papers

From James Madison to Thomas Jefferson, 22 January 1786

To Thomas Jefferson

Richmond Jan. 22d. 1786

Dear Sir

My last dated Novr 15 from this place answered yours of May 11th. on the subject of your printed notes. I have since had opportunities of consulting other friends on the plan you propose, who concur in the result of the consultations which I transmitted you. Mr. Wythe’s idea seems to be generally approved, that the copies destined for the University should be dealt out by the discretion of the Professors, rather than indiscriminately and at once put into the hands of the students, which, other objections apart, would at once exhaust the Stock.1 A vessel from Havre de Grace brought me a few days ago two Trunks of Books, but without letter or catalogue attending them. I have forwarded them to Orange without exam[in]ing much into the contents, lest I should miss a conveyance which is very precarious at this season, and be deprived of the amusement they promise me for the residue of the winter.

Our Assembly last night closed a Session of 97 days, during the whole of which except the first seven, I have shared in the confinement. It opened with a very warm struggle for the chair between Mr. Harrison & Mr. Tyler which ended in the victory of the former by a majority of 6 votes. This victory was shortly afterwards nearly frustrated by an impeachment of his election in the County of Surry. Having failed in his native County of Charles City, he abdicated his residence there, removed into the County of Surry where he had an Estate, took every step which the interval would admit, to constitute himself an inhabitant, and was in consequence elected a representative. A charge of non residence was nevertheless brought against him, decided agst. him in the Com[m]ittee of privileges by the casting voice of the Chairman, and reversed in the House by a very small majority. The election of Docr. Lee was attacked on two grounds. 1st. of non-residence, 2dly. of holding a lucrative office under Congs. On the 1st. he was acquitted, on the 2d. expelled, by a large majority. The revised Code was brought forward pretty early in the Session. It was first referred to Come. of Cts. of Justice to report such of the bills as were not of a temporary nature, and on their report committed to Comtee of the whole. Some difficulties were raised as to the proper mode of proceeding, and some opposition made to the work itself. These however being surmounted, and three days in each week appropriated to the task, we went on slowly but successfully, till we arrived at the bill concerning crimes and punishments. Here the adversaries of the code exerted their whole force, which being abetted by the impatience of its friends in an advanced stage of the Session, so far prevailed that the prosecution of the work was postponed till the next Session.2 The operation of the bills passed is suspended untill the beginning of 1787, so that if the code sd. be resumed by the next Assembly and finished early in the Session, the whole system may commence at once. I found it more popular in the Assembly than I had formed any idea of, and though it was considered by paragraphs and carried through all the customary forms, it might have been finished at one Session with great ease, if the time spent on motions to put it off and other dilatory artifices, had been employed on its merits. The [adversaries]3 were the speaker, Thruston and Mercer who came late in the session, into a vacan[cy] left by the death [of] Col: Brent [of] Stafford, and contributed principally to the mischieved. The titles in the inclosed List will point out to you such of the bills as were adopted from the Revisal. The alterations which they underwent are too numerous to be specified, but have not materially viciated the work. The bills passed over were either temporary ones, such as being not essential as parts of the System, may be adopted at any time and were likely to impede it at this, or such as have been rendered unnecessary by Acts passed since the epoch at which the revisal was prepared. After the completion of the work at this Session was despaired of it was proposed and decided that a few of the bills following the bill concerning crimes and punishments should be taken up as of peculiar importance.4 The only one of these which was pursued into an Act is the Bill concerning Religious freedom. The steps taken throughout the Country to defeat the Genl. Assessment, had produced all the effect that could have been wished. The table was loaded with petitions & remonstrances from all parts against the interposition of the Legislature in matters of Religion. A General convention of the Presbyterian church prayed expressly that the bill in the Revisal might be passed into a law, as the best safeguard short of a constitutional one, for their religious rights. The bill was carried thro’ the H of Delegates, without alteration. The Senate objected to the preamble, and sent down a proposed substitution of the 16th. art: of the Declaration of Rights. The H. of D. disagreed. The Senate insisted and asked a Conference. Their objections were frivolous indeed.5 In order to remove them as they were understood by the Managers of the H. of D. The preamble was sent up again from the H. of D. with one or two verbal alterations. As an amendment to these the Senate sent down a few others; which as they did not affect the substance though they somewhat defaced the composition, it was thought better to agree to than to run further risks, especially as it was getting late in the Session and the House growing thin. The enacting clauses past without a single alteration, and I flatter myself have in this Country extinguished for ever the ambitious hope of making laws for the human mind.

Acts not included in the Revisal

For the naturalization of the Marquis de la fayette.This was brought forward by Col: Henry Lee Jr. and passed without opposition. It recites his merits towards this Country and constitutes him a Citizen of it.

To amend the Act vesting in Genl. Washington certain shares in the River CompaniesThe donation presented to Genl. W. embarrass[ed] him much. On one side he disliked the appearance of slighting the bounty of his Country and of an ostentatious disinterestedness. On the other an acceptance of reward in any shape was irreconcileable with the law he had imposed on himself. His answer to the Assembly declined in the most affectionate terms the emolument allotted to himself, but intimated his willingness to accept it so far as to dedicate it to some public and patriotic use. This Act recites the original act & his answer, and appropriates the future revenue from the shares to such public objects as he shall appoint. He has been pleased to ask my ideas with regard to the most proper objects. I suggest in general only, a part[i]tion of the fund between some institution which would please the [phil]osophical world and some other which may be of [a] popular cast. If your knowledge of the several institutions, in France or else where, should suggest models, or hints, I could wish for your ideas on the case which is no less concerns the good of the common wealth than the character of its most illustrious citizen.

An Act empowering the Governor & Council to grant conditional pardons in certain case[s].Some of the malefactors consigned by the Executive to labour, brought the legality of such pardons before the late Court of Appeals who adjudged them to be void. This Act gives the Executive a power in such cases for one year. It passed before the bill in the revisal on this subject was taken up, and was urged against the necessity of passing it at this Session. The expiration of this Act at the next Session will become an argument on the other side.

An Act giving powers to the Governor & Council in certain cases.This Act empowers the Executive to confine or send away suspicious aliens, on notice from Congs. that their sovereigns have declared or commenced hostilities agst. U. S. or that the latter have declared War agst such sovereigns. It was occasioned by the arrival of two or three Algerines here, who having no apparent object were suspected of an unfriendly one. The Executive caused them to be brought before them, but found themselves unarmed with power to proceed. These adventurers have since gone off.

Act for safe keeping land papers of the Northern Neck.Abolishes the quitrent, and removes the papers to the Registers office.

Act for reforming County Courts.Requires them to clear their dockets quarterly. It amounts to nothing, and is cheifly the result of efforts to render Courts of Assize unnecessary.6

Act to suspend the operation of the Act establishing Courts of Assize.The latter Act passed at last Session required sundry supplemental regulations to fit it for operation. An Attempt to provide these which involved the merits of the innovation drew forth the united exertions of its adversaries. On the question on the supplemental bill they prevailed by 63 votes agst. 49. The best that could be done in this situation was to suspend instead of repealing the original act, which will give another chance to our successors for introducing the proposed reform. The various interests opposed to it, will never be conquered without considerable difficulty.

Resolution proposing a general meeting of Commssrs from the States to consider and recommend a fœderal plan for regulating Commerce, and appointg as Commssrs from Va. Ed. Randolph, Js. Madison Jr., Walter Jones, St. G. Tucker M. Smith, G. Mason, & David Ross who are to communicate the proposal & suggest time & places for meeting.The necessity of harmony in the comercial regulations of the States has been rendered every day more apparent. The local efforts to counteract the policy of G. B. instead of succeeding have in every instance recoiled more or less on the States which ventured on the trial. Notwithstanding these lessons, The Merchts. of this State except those of Alexandria and a few of the more intelligent individuals elsewhere, were so far carried away by their jealousies of the Northern Marine, as to wish for a navigation Act confined to this State alone. In opposition to those narrow ideas the printed propositions herewith enclosed was made. As printed it went into a Comme. of the whole.7 The alterations of the pen shew the state in which it came out. Its object was to give Congs. such direct power only as would not alarm, but to limit that of the States in such manner as wd. indirectly require a conformity to the plans of Congs. The renunciation of the right of laying duties on imports from other States, would amount to a prohibition of duties on imports from foreign Countries, unless similar duties existed in other States. This idea was favored by the discord produced between several States by rival and adverse regulations. The evil had proceeded so far between Connecticut & Massts. that the former laid heavier duties on imports from the latter than from G. B. of which the latter sent a letter of complaint to the Executive here and I suppose to the other Executives. Without some such self-denying compact it will, I conceive be impossible to preserve harmony among the contiguous States. In the Committee of the whole the proposition was combated at first on its general merits. This ground was however soon changed for that of its perpetual duration, which was reduced first to 25 years, and then to 13 years. Its adversaries were the Speaker, Thruston and Corbin. They were bitter and illiberal against Congress & the Northern States, beyond example. Thruston considered it as problematical, whether it would not be better to encourage the British than the Eastern marine. Braxton and Smith were in the same sentiment[s] but absent at this crisis of the question. The limitation of the plan to 13 years so far destroyed its value in the judgment of its friends that they chose rather, to do nothing than to adopt it in that form. The report accordingly remained on the table uncalled for to the end of the Session. And on the last day the resolution above quoted was substituted. It had been proposed by Mr. Tyler immediately after the miscarriage of the printed proposition, but was left on the table till it was found that Several propositions for regulating our trade without regard to other States produced nothing. In this extremity The resolution was generally acceded to, not without the opposition however of Corbin and Smith. The Commsrs. first name[d] were the Attorne[y] Doctr. Jones and myself. In the House of D. Tucker and Smith were added and In the Senate Mason, Ros[s] and Ronald. The last does not undertake.

The port bill was attacked and nearly defeated.8 An amendatory bill was passed with difficulty thro’ the H. of D. and rejected in the Senate. The original one will take effect before the next Session, but will probably be repealed then. It would have been repealed at this, if its adversaries had known their strength in time and exerted it with Judgment.

A Bill was brought in for paying British debts but was rendered so inadequate to its object by alterations inserted by a Committee of the whole that the patrons of it thought it best to let it sleep.

Several petitions (from Methodists cheifly) appeared in favor of a gradual abolition of slavery, and several from another quarter for a repeal of the law which licences private manumissions. The former were not thrown under the table, but were treated with all the indignity short of it. A proposition for bringing in a Bill conformably to the latter, was decided in the affirmative by the casting voice of the Speaker, but the bill was thrown out on the first reading by a considerable majority.

A considerable itch for paper money discovered itself, though no overt attempt was made. The partizens of the measure, among whom Mr. M. S. may be considered as the most zealous, flatter themselves, and I fear upon too good ground that it will be among the measures of the next session.9 The unfavorable balance of trade and the substitution of facilities in the taxes will have [dis]missed the little specie remaining among us and strengthened the common argument for a paper medium.

Act for postponing the tax of the present year and admitting facilities in payment.This tax was to have been collected in Sepr. last, and had been in part actually collected in specie. Notwithstanding this and the distress of public credit, an effort was made to remit the tax altogether. The party was headed by Braxton who was courting an appointment into the council. On the question for a third reading the affirmative was carried by 52 agst. 42. On the final question, a vigorous effort on the negative side with a reinforcement of a few new members, threw the bill out. The oratory however was not obtained, without subscribing to a postponement instead of remission, and the admission of facilities instead of Specie.10 The postponement too extends not only to the tax which was under collection, and which will not now come in till May, but to the tax of Sepr. next which will not now be in the Treasury till the beginning of next year. The wisdom of seven Sessions will be unable to repair the mischiefs of this single Act.

Act concerning the erection of Kentucky into an independent State.This was prayed for by a Memorial from a Convention held in Kentucky, and passed without opposition. It contains stipulations in favor of territorial rights held under the laws of Virga. and suspends the actual separation on the decision of a Convention authorized to meet for that purpose, and on the assent of Congress. The boundary of the proposed State is to remain the same as the present boundary of the district.

Act to amend the Militia law.At the last Session of 1784. an act passed displacing all the Militia officers, and providing for the appointmt. of experienced men. In most counties it was carried into execution, and generally much to the advantage of the Militia. In consequence of a few petitions agst. the law as a breach of the Constitution, This act reverses all proceedings under it, and reinstates the old officers.11

Act to extend the operation of the Escheat law to the Northern Neck.From the peculiar situation of that district the Escheat law was not originally extended to it. Its extension at this time was occasioned by a bill brought in by Mr. Mercer for seizing & selling the deeded land of the late lord Fairfax on the ground of its being devized to aliens, leaving them at liberty indeed to assert their pretensions before the Court of Appeals. As the bill however stated the law & the fact, and excluded the ordinary inquest, in the face of pretensions set up even by a Citizen (Martin)12 to whom it is said the reversion is given by the Will; it was opposed as exerting at least a legislative interference in and improper influence on the Judiciary question. It was proposed to substitute the present act as an amendmt. to the bill, in a Committee of the whole which was disagreed to. The bill being of a popular cast went thro’ the H. of D. by a great majority. In the Senate it was rejected by a greater one, if not unanimously. The extension of the escheat law was in consequence taken up and passed.

“Act for punishing certain offences.”To wit, attempts to dismember the State without the consent of the Legislature. It is pointed agst. the faction headed by A. C.13 in the County of Washington.

Act for amending the appropriating Act. Complies with the requisition of Congs. for the present year, to wit 1786. It directs 512,000 dollars the quota of this State, to be paid before May next the time fixed by Congress, although it is known that the postponement of the taxes renders the payment of a shilling impossible. Our payments last year gained us a little reputation. Our conduct this must stamp us with ignominy.

Act for regulating the Salaries of the Civil list.Reduces that of the Govr. from £1000 to £800 & the others some at a greater and some at a less proportion.

Act for disposing of waste lands on Eastern waters.Meant cheifly to affect vacant land in Northern Neck, erroneously conceived to be in great quantity and of great value. The price is fixed at £25 Per Hundred Acres at wch. not an acre will be sold.

An Act imposing addl. tonnage on British vessels …amounting in the whole to 5/. per ton—
  Nothing has been yet done with N. C. towards opening a Canal thro’ the Dismal [Swamp]. The powers given to Commssrs on our part are renewed, and some negociation will be brought about if possible. A certain interest in that State is suspected of being disinclined to promote the object, notwithstanding its manifest importance to the community at large. On Potowmack they have been at work some time. On this river they have about eighty hands ready to break ground, and have engaged a man to plan for them. I fear there is a want of skill for the undertaking that threatens a waste of labour and a discouragement to the interprize. I do not learn that any measures have been taken to procure from Europe the aid which ought be purchased at any price, and which might I should suppose be purchased at a moderate one.

I had an opportunity a few days ago of knowing that Mrs. Carr and her family, as well as your little daughter, were well. I am apprehensive that some impediments still detained your younger nephew from his destination. Peter has been in Williamsburg, and I am told by Mr. Maury that his progress is satisfactory. He has read under him Horace—some of Cicero’s Orations—Greek testament—Æsop’s fables in Greek—ten books of Homer’s Illiad & is now beginning Xenophon, Juvenal & Livy. He has also given some attention to French.

I have paid to le Maire ten guineas. He will set out in about three weeks I am told for France. Mr. Jones has promised to collect & forward by him all such papers as are in print and will explain the situation of our affairs to you. Among these will be the most important acts of the Session, & the Journal as far as it will be printed.

Mr. Wm. Hay’s in sinking a well on the declivity of the Hill above the proposed seat of the Capitol and nearly in a line from the Capitol to Belvidere, found about seventy feet below the surface, several large bones apparently belong[in]g to a fish not less than the Shark, and what is more singular, several fragments of potters ware in the stile of the Indians. Before he reached these curiosities he passed thro’ about fifty feet of soft blue clay. I have not seen these articles, having but just heard of them, & been too closely engaged; but have My information from the most unexceptionable witnesses who have. I am told by Genl. Russel,14 of Washington County, that in sinking a Salt-well, in that County he fell in with the hip bone of the incognitum, the socket of which was about 8 inches diameter. It was very soft in the subterraneous State, but seemed to undergo a petrifaction on being exposed to the air. Adieu affectly—

Promotions. Edwd. Carrington & H. Lee Jr. added to R. H. Lee,
Js. Monroe, and Wm. Grayson, in the delegation to Congress.
Carter Braxton to the Council
Jno. Tyler to Court of Admiralty in room of B. Waller resd.
prices current. Tobo. 23/. on James River and proporti[on]ally elsewhere.
Wheat 5/ to 6/. per Bushel
Corn 15/ to 20/ per Barrel
Pork 28/ to 30/. per Ct.

RC (DLC). No cover. Not signed. Enclosures missing. Italicized words, unless otherwise noted, are those encoded by JM using the code Jefferson sent him 11 May 1785.

1JM was advising Jefferson against his proposed distribution of copies of the Notes on the State of Virginia to the William and Mary student body.

2The Revised Code remained half finished. At the Oct. 1786 session JM’s aide Thomas Mathews reintroduced the remaining bills and guided twenty-three into law. The residue fell victim to indifference and apathy, since JM’s return to Congress left a power vacuum in the House of Delegates that was filled by Patrick Henry. Henry was no particular friend of reform and by inclination tended to react negatively to any proposition from either JM or his coadjutor Jefferson. See Boyd, Papers of Jefferson description begins Julian P. Boyd et al., eds., The Papers of Thomas Jefferson (18 vols. to date; Princeton, N. J., 1950——). description ends , II, 322–24.

3The code numbers and Jefferson’s interlinear deciphering read “authors” but later JM corrected his error and wrote “adversaries” above it.

4John Francis Mercer, whose conduct chagrined Jefferson in Congress, seized on the bill “concerning crimes and punishments” and found himself leading a determined band in the opposition (JM to Monroe, 9 Dec. 1785). Later, JM reported the same bill was again defeated, owing to a “rage agst. Horse stealers” (JM to Jefferson, 15 Feb. 1787 [DLC]).

5For reasons not now clear, a group in the House that included John Francis Mercer, Francis Corbin, Carter Henry Harrison, and Speaker Benjamin Harrison tried to emasculate the preamble Jefferson wrote for the bill establishing freedom of religion as it first appeared in 1779. JM does not spell out their desired changes, but Jefferson later reported that efforts were made to insert the words “Jesus Christ” ahead of the phrase—”the holy author of our religion.” They definitely tried to drop the whole of Jefferson’s preamble and insert instead the gist of Article XVI of the Virginia Declaration of Rights. As the other leading petition against the General Assessment bill indicated, “Deism with its baneful Influence is spreading itself over the State” (Vi: Westmoreland County petition [2 Nov. 1785]). The substitute motions were beaten back in the House on 16 Dec. (38 ayes, 66 noes) and again on 29 Dec. (35 ayes, 56 noes), but several of Jefferson’s appeals that smacked of a deistic philosophy were dropped in Committee of the Whole deliberations (Boyd, Papers of Jefferson description begins Julian P. Boyd et al., eds., The Papers of Thomas Jefferson (18 vols. to date; Princeton, N. J., 1950——). description ends , II, 545–46).

6JM still hoped that he could keep alive the bill for the circuit, or assize courts which had passed at the Oct. 1784 session. Opponents of the bill who feared a diminution of their local authority apparently worked for this so-called reform bill that made a pretense at clearing up crowded dockets. If the county courts kept litigation from piling up, then the need for a circuit court (to reduce the backlog of cases) would diminish. Besides the entrenched county justices, some lawyers were ambivalent about the heavy dockets. JM’s friend, Archibald Stuart, favored the Assize Court bill but gleefully reported that in Augusta County the prospect was for a lawyer’s paradise. Augusta “is the best Courtt ever I attended there are now about seven hundred Causes On the Docket & there are no Attys but Nicholas and Bowyer” (Stuart to John Breckinridge, 26 Jan. 1786 [DLC: Breckinridge Family Papers]).

7The public printer was ordered to prepare 200 copies of the four resolutions offered by Joseph Prentis on 14 Nov. 1785 to the Committee of the Whole (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. 1785, pp. 36–37). JM undoubtedly sent the broadside, a copy of which Julian Boyd found at the New York Public Library (Evans description begins Charles Evans, ed., American Bibliography … 1639 … 1820 (12 vols.; Chicago, 1903–34). description ends 19352) of the 14 Nov. resolution calling for the regulation of commerce by Congress. These dealt with the key issues of vesting in Congress a power to regulate commerce and the imposition of a federal 5 percent import duty. As JM explained, he grew petulant as the localists prevailed, and ultimately he voted to kill the resolution on commercial powers because of the thirteen-year limit imposed by the House majority.

8The so-called Port bill was JM’s measure of 8 June 1784 restricting foreign vessels to certain Virginia ports. Opposition to the law was spreading in the tidewater but it was not repealed “in the next Session,” as JM expected. However, it was drastically amended at the Oct. 1787 session (Hening, Statutes description begins William Waller Hening, ed., The Statutes at Large; Being a Collection of All the Laws of Virginia, from the First Session of the Legislature, in the Year 1619 (13 vols.; Richmond and Philadelphia, 1819–23). description ends , XII, 434–38).

9Petitions from Brunswick and Campbell counties would be offered at the Oct. 1786 session calling for a new emission of paper currency, but the majority (including JM) was unimpressed (JM to Jefferson, 4 Dec. 1786 [DLC]; 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. 1786, pp. 15–16). “M. S.” was Meriwether Smith, whose attachment to a paper-money act was notorious. JM’s notes for a speech made against the proposed paper-money bill were probably used in the 1 Nov. 1786 debates (Madison, Writings [Hunt ed.] description begins Gaillard Hunt, ed., The Writings of James Madison (9 vols.; New York, 1900–1910). description ends , II, 279–81).

10The “facilities” were “facility notes,” a kind of paper money that might be heavily discounted but still was preferable to no circulating medium at all. By whatever name, the tobacco notes circulating in the period also filled the functions of specie and in Virginia may have been colloquially called “facilities” (Mathews, Dictionary of Americanisms, p. 575; Hening, Statutes description begins William Waller Hening, ed., The Statutes at Large; Being a Collection of All the Laws of Virginia, from the First Session of the Legislature, in the Year 1619 (13 vols.; Richmond and Philadelphia, 1819–23). description ends , XII, 259).

11The ancient militia laws were revised by the act of the Oct. 1784 General Assembly which broadened the base of a county’s defense force. But petitions from Amherst and Washington counties attacked the constitutionality of the law, and a new bill was brought in to meet this objection. JM served on the committee that prepared the first law but seems to have avoided involvement in this revision, which passed the House on 5 Jan. 1786 (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. 1785, p. 129).

12Thomas Bryan Martin (1731–1798) was the executor of Lord Fairfax’s will. The question of whether Fairfax’s holdings had become the property of enemy aliens arose because of his death in 1781. The matter was not finally settled until the U. S. Supreme Court upheld Fairfax’s division of his estate according to his will.

13Some time later, when the letter was returned to him, JM by a notation identified A. C. as “Arthur Cambel.”

14Brig.-Gen. William Russell (d. 1793) served as colonel of the 13th Virginia Regiment, was captured at Charleston, exchanged, and breveted a brigadier-general in Nov. 1783 (Heitman, Historical Register Continental description begins F. B. Heitman, Historical Register of Officers of the Continental Army during the War of the Revolution (Washington, 1914). description ends , p. 478).

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