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From James Madison to Edmund Randolph, 5 November 1782

To Edmund Randolph

RC (LC: Madison Papers). Unsigned but in JM’s hand. Docketed by Randolph, “J. Madison Nov: 5. 1782.” Except when otherwise noted, the italicized words are those written by JM in the official cipher.

Philada. Novr. 5th 1782

My dear Sir

My last informed you that a proposition had been made in Congress for accepting the territorial Cession of N. York.1 The paper inclosed contains the proceedings which ensued.2 The acceptance of this Cession singly3 met with a negative from Virginia for obvious reasons. In the first place such a measure, instead of terminating all controversy as to the western Country, the object proposed by the original plan,4 introduces new perplexities. And in the 2d. place, an assent from us might be here after pleaded as a voluntary acceptance of the U. States in the room of N. York, as litigants against Virginia.5

On the subsequent motion you will find Virga. divided.6 The proviso expressed in this motion if referred to the territory retained by N. York appeared to me to be at least nugatory, or rather to imply that a Resolution of Congress might operate towards depriving another States of the benefits of the Confederation;7 and if referred to the territory ceded by N. Y. to imply that the 9th art: was the constitutional rule of deciding controversies as well where the U. S. as where a particular state were the party.8 All that Congress could, as I supposed, have properly done, would have been to guard against any biass on future decisions by declaring that their acceptance of the Cession of N. Y. was not to be considered as expressing any opinion as to the rightful claims or limits of that State. But I did not feel myself at liberty to substitute such a proposition because it militated against the guaranty required by Virga. and would have prejudged that condition of her Cession.9

The success of the the middle states in obtaining the Cession of N. Y. has given great encouragement;10 and they are pursuing steadily the means of availing themselves of the other titles. That of Connecticut is proposed for the next object.11 Virginia will be postponed for the last. By inlisting the two preceding into their party they hope to render their measures more effectual with respect to the last12

Besides the effect which may be expected from this coalition with New York on territorial questions in Congress it will I surmise prove very unfriendly to the pretentions of Vermont13 Duane seems not unapprized of the advantage which New York has gained and is already takeing measures for a speedy vote on that question14 Upon the whole New York has either by a fortunate coincidence of circumstances, or by skilful management or by both succeeded in a very important object: by ceding a claim which was tenable neither by force nor by law15 she has acquired with Congress the merit of liberality[,] rendered the title to her reservation more respectable and at least dampt the zeal with which Vermont has been abetted If you should be surprized that these considerations did not dissuade Connecticut from an unqualified acceptance of the cession of New York you will only be affected as others were at the time. The truth is, they were surprized at it them selfs after it was too late and would gladly have revoked their error16

You were also informed in my last of the situation in wch. the affair of Lippencut remained. In the midst of our perplexities a letter arrived from Gel. Washington inclosing an intercession from the Count de Vergennes in favor of the life of young Asgill, founded on a most pathetic and importunate Memorial from his Mother. The Ct. writes to Gel. Washington, as he says not in the quality of a public Minister, but of a man who feels the force of Mrs. Asgill’s supplications.17 He backs his intercession however, with the desire of the King & Queen who were much affected with the Memorial, observes that, altho’ Asgill is no doubt a prisoner to the U: States,18 yet as he became such by an event to which the arms of his Majesty contributed, the interest he takes in behalf of this officer, is the more admissible,19 & signifies that if the British Commander should not in this instance fully comply with the demands of Justice there is reason to believe that future instances of barbarity will be prevented.20

The judgment formed of this intercession by different members is very different. All indeed agree that retaliation cannot be executed in the face of it. But some are of opinion that it luckily affords and ought to be made the ground21 of retreat from that measure;22 while others suppose that our honour will be more wounded by such a public mark both of our obsequiousness to France and of her disapprobation of our views than by23 a retreat of ourselfs on the ground of Carlton’s promise to continue his24 pursuit of the murderer.25 Some think also that an omission in our act of the wish expressed on the part of the King & Queen of France may give umbrage.26 Others again infer from the circumstances of the letter from the Count being addressed to General Washington not to Congress and in his pri[vate]27 not official quality that a public notice of it cannot be expected and that a private explanation by the secretary of foreign affairs to the Minister of France28 will be as much as will be proper

The Minister also received an instruction to interest himself in the affair and had even prepared a memorial to Congress relative to it Having discovered however the diversity of sentiments prevailing in Congress and being apprehensive that his interposition might render the case more perplexing and possibly be not treated with due notice in the final act of Congress[,] he has very prudently29 desisted from his purpose30

Untill Congress shall have come to some decision with respect to the notice to be taken of the intercession above mentioned31 I would not wish it to be generally32 spoken of from this letter.

Yesterday being the 1st. Monday in Novr. The vacant chair was filled by Mr. Boudinot.33 The distribution of the votes was as follows, for Mr. B. New Hampshire Rhode Island Connecticut New Jersey Pensylvania Delaware Maryland[;] for Mr. Bland Virginia South Carolina[;] for Mr. Rutlidge N. C.[;]34 for Mr. Nash New York Massachusetts had no Delegate present but Mr. Osgood. Georgia was wholly unrepresented. As you were present at the last election I need not recite to you the motives to the one in question.35

A letter from Carmichael dated 8 July, says that the Resolutions of Congress & the States against separate negociations with the new British Ministry were exceedingly applauded at the Spanish Court; and that he had discovered that the Imperial & Russian Ministers had renewed an offer of the Mediation of their Courts to Spain. The silence of our other Ministers in letters of later date renders the latter article very doubtful.36

A letter of the 5th. of Sepr. from Mr. Laurens at Nantz repeats his purpose to return to America; adding that the risk of capture & the advice of his friends had led him to apply to the Court of London for a passport via Falmouth & N. York, to Philada. that Ld. Cornwallis had interested himself in his case, and that the passport was to be transmitted to him.37 It was uncertai[n] whether he was to embark [this?] fall, or wait till the spring. Unless the embarkation from a British port was more necessary than I am aware a direct passport from France would in my view have been more eligible38

The army we are informed by a letter from Gel Washington of the 30th. Ult. are going into their winter cantonments. Part of the British fleet, consisting of 14 Ships of the line, 1 of 40 guns, 7 frigates & 14 transports sailed from N. York on the 26th. supposed to be bound to the W. Indies, and to have no troops [on] board. Two vessels were despatched it is said for Charlestown immediately after the arrival of the last packet, for the purpose of countermanding the evacuation.39

Mr. Jones has recovered rapidly within a few days past & has once more got about.40

Your favor of the 26th past was duly received yesterday. I am anxious for the new Cypher which it promises as well for my own use as yours; and for the same reasons.41 I conclude from your silence as to my late communications in L——ls Cypher that the key I sent you some time ago answered its purpose.42

2Enclosure not found but see ibid., n. 13.

3On 29 October. The italicization of “singly” denotes that JM underlined it to emphasize that Congress, by accepting only New York’s offer of cession, had in effect ruled that the conflicting claims of Virginia and Connecticut were invalid. By “negative,” JM meant only that the Virginia delegation voted against acceptance of the New York cession as being legally exclusive. See also Papers of Madison description begins William T. Hutchinson, William M. E. Rachal, et al., eds., The Papers of James Madison (5 vols. to date; Chicago, 1962——). description ends , IV, 34, n. 8.

4This “plan” was embodied in the congressional resolution of 6 September 1780, calling upon the states claiming ownership of western lands to effect a “liberal surrender of a portion” of those territories to the Confederation without raising questions that could not “be now revived with any prospect of conciliation” (ibid., IV, 35, n. 10).

5All of the land ceded by New York was within the area claimed by Virginia. This transfer of alleged title would make the United States rather than New York the potential defendant in any litigation instituted by Virginia on behalf of her own claim to the ownership of the land north and west of the Ohio River. See n. 8, below; and JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXIII, 694. For JM’s opinion of the “flimsy” nature of New York’s title, see Papers of Madison description begins William T. Hutchinson, William M. E. Rachal, et al., eds., The Papers of James Madison (5 vols. to date; Chicago, 1962——). description ends , III, 302; 304, n. 1; 307; 309, n. 4; IV, 154–55; 156, nn. 7 and 9; 201–2. For the western-lands issue during the three months immediately prior to the acceptance by Congress of New York’s offer of cession, see Randolph to JM, 6 August, n. 23; Report on Instructions to Peace Commissioners, 15 August, n. 7; JM to Randolph, 10 September, and nn. 9, 15, 16, 19, 20; 15 October, and nn. 8, 9; 29 October 1782, and n. 13.

6On 30 October Hugh Williamson introduced and Theodorick Bland seconded a motion to make clear that the acceptance by Congress of New York’s cession would not bar “the determination of any dispute that has arisen or may arise concerning territory, between the State of New York and any other state or states in the union, by the 9th Article of Confederation, in the same manner as if this cession had not been made.” After JM had supported and Bland opposed an unsuccessful motion to postpone consideration of Williamson’s proposal, the latter was rejected by a vote of six states in its favor to one against. Of the other five states represented in Congress, Massachusetts and Georgia had only one delegate each, while Pennsylvania, Virginia, and South Carolina also lost their votes because the delegates from each of these states divided equally on the measure (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXIII, 695–96).

7Instead of “another States,” JM probably intended to write “another State” or “other States,” but his meaning would have been clearer had he written “a new State” or “new States.” So far as the Williamson-Bland motion related to territory “retained” by New York, the resolution was “nugatory,” in that bordering states could invoke the provisions of Article IX of the Articles of Confederation and appeal to a constitutional tribunal. On the other hand, the resolution might be construed as barring such appeals by future western states not “in the union” in 1782, thus rendering their territorial integrity as unprotected from encroachment by the older states “as if this cession had not been made” (n. 6, above).

Article XI provided for the admission of a “colony” or colonies to the Confederation but afforded them no guarantee of sovereign equality with the original states (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XIX, 221). On the other hand, Congress, on 10 October 1780, nearly five months before the Articles of Confederation became effective, had adopted a resolution pledging that the ceded western territory would be “formed into distinct republican states” which would be “members of the federal union” with “the same rights of sovereignty, freedom and independence, as the other states” (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XVIII, 915). Whether this guarantee would control the interpretation of Article XI of the Articles of Confederation was questionable.

8The ninth article of the Articles of Confederation designated Congress as “the last resort on appeal in all disputes and differences now subsisting or that hereafter may arise between two or more states concerning boundary, jurisdiction or any other cause whatever” (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XIX, 217–18). There was no tribunal authorized to adjudge controversies between a state and the Confederation as such. See n. 5, above.

9See n. 5, above; and also the eighth proviso of Virginia’s offer of cession, as stated in n. 20 of JM to Randolph, 10 September 1782.

10The seven state delegations which had voted unanimously to accept New York’s offer of cession were those of Rhode Island, Connecticut, New York, New Jersey, Pennsylvania, Delaware, and Maryland (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXIII, 694).

11Although Connecticut’s offer of cession had been made on 31 January 1781, Congress delayed accepting it until 14 September 1786 (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XIX, 99; XXXI, 654–55).

12That is, to compel Virginia to withdraw at least some of the provisos attached to her offer of cession, and perhaps enable the western-lands speculators, who were mostly citizens of “the middle states,” to gain from Congress patents or confirmation of their alleged patents to vast acreages in the Northwest Territory. See JM to Randolph, 10 September 1782, n. 20.

13See Papers of Madison description begins William T. Hutchinson, William M. E. Rachal, et al., eds., The Papers of James Madison (5 vols. to date; Chicago, 1962——). description ends , IV, 200–202, and nn. Congress on 17 October had made the Vermont issue the order of the day for 25 October and then for 30 October, but the matter was not taken up until 5 November. On that day it again was postponed over the negative votes of the New York and those of a few other delegates, including JM, who opposed further delay (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXIII, 664, and n. 1, 695–96, 713–14). The New York delegates, who had hoped that the good will engendered by her cession would lead Congress to an outright rejection of Vermont’s bid for independence and statehood, were disappointed by this vote and by one of similar tenor on 14 November 1782 (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXIII, 723–26; Burnett, Letters description begins Edmund C. Burnett, ed., Letters of Members of the Continental Congress (8 vols.; Washington, 1921–36). description ends , VI, 540–42).

14In a letter of 30 October 1782, notifying Governor George Clinton that Congress had accepted New York’s cession, James Duane stated that Virginia’s offer “under some Restrictions which are thought rigid, is suspended: but I have no doubt but this business will be accommodated. Your Excellency is apprized of the Principles which produced our Cession; they will do Honour to our State as well as promote its Interest” (Burnett, Letters description begins Edmund C. Burnett, ed., Letters of Members of the Continental Congress (8 vols.; Washington, 1921–36). description ends , VI, 529).

15See n. 5, above.

16See nn. 5 and 10, above. The encoded passage between “is” and “would” is interlineated above a line of uncoded text too heavily deleted to be read. The delegates of Connecticut must have been “surprized,” indeed. In accepting as valid the cession of the New York title to lands overlapping the claims of their own state, they had unwittingly abjured a portion of the political jurisdiction that the Connecticut legislature in its offer of cession had specifically reserved (Papers of Madison description begins William T. Hutchinson, William M. E. Rachal, et al., eds., The Papers of James Madison (5 vols. to date; Chicago, 1962——). description ends , IV, 34, n. 8).

17See Papers of Madison description begins William T. Hutchinson, William M. E. Rachal, et al., eds., The Papers of James Madison (5 vols. to date; Chicago, 1962——). description ends , IV, 199, n. 18; JM to Randolph, 29 October 1782, and nn. 5, 7, and 8. On 30 October, having received Washington’s dispatch of 25 October enclosing a translated copy of Vergennes’ dispatch of 29 July interceding for Asgill and a copy of Lady (Charles) Asgill’s letter of 18 July to Vergennes, Congress referred these documents to the Rutledge committee (Fitzpatrick, Writings of Washington description begins John C. Fitzpatrick, ed., The Writings of George Washington, from the Original Sources, 1745–1799 (39 vols.; Washington, 1931–44). description ends , XXV, 295–96; JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXIII, 695, n. 2). “Distracted with fear and grief,” Lady Asgill asserted that her husband was at the point of death, that her only daughter had become mentally deranged because of the impending execution of Captain Charles Asgill, and that he, “her only Son” and as “dear as he is brave” was only nineteen years of age (NA: PCC, No. 152, XI, 13–15). For the report of the Rutledge committee, see Notes on Debates, 7 November 1782, and nn. 15, 20, 22, 23, 28.

18JM interlineated “to the U: States” and wrote “Asgill” above a deleted “the officer in question.” King Louis XVI and Queen Marie Antoinette had expressed to Vergennes their desire that the “Inquietudes of an unfortunate Mother may be calmed, and her tenderness reassured” (NA: PCC, No. 152, XI, 9–12).

19That is, because Asgill had been made a prisoner of war as a result of the surrender of Cornwallis’ army, a victory to which the French probably had decisively contributed.

20See JM to Randolph, 27 August 1782, and n. 12. Vergennes’ knowledge of the British conciliatory efforts being exerted by Carleton in the United States, and by ministerial agents in Paris, to separate America from her French ally probably accounts for his belief that “instances of barbarity” would not recur.

21Below JM’s 667, signifying a meaningless “du,” Randolph wrote “675-ground.”

22See Papers of Madison description begins William T. Hutchinson, William M. E. Rachal, et al., eds., The Papers of James Madison (5 vols. to date; Chicago, 1962——). description ends , IV, 199, n. 18; JM to Randolph, 29 October 1782, n. 8.

23Below JM’s 16, the cipher for “France,” which obviously is out of place at this point in the passage, Randolph wrote “160 by.”

24Below JM’s 47, the cipher for “ed,” which clearly is irrelevant, Randolph wrote “7. his.”

25See n. 20, above.

26See n. 18, above.

27JM omitted 587.617, the ciphers for “va” and “te,” respectively.

28Robert R. Livingston and the Chevalier de La Luzerne, respectively. Livingston’s correct title was, of course, “secretary for foreign affairs.”

29Although JM should have encoded the “ud” in this word as 423, he wrote 433, the cipher for “ready.”

30According to La Luzerne’s dispatches to Vergennes on 29 October and 9 November 1782, he did not intercede with Congress on Asgill’s behalf, because he was confident that Vergennes’ letter to Washington would accomplish the desired purpose (William E. O’Donnell, Chevalier de La Luzerne, p. 215, n. 117). La Luzerne’s decision to desist “from his purpose” may have been reached after conferring with JM. A copy of the proposed “memorial,” written in French and in JM’s hand, is in LC: Rives Collection of Madison Papers.

32JM underlined rather than encoded this word.

33See Notes on Debates, 4 November 1782, and nn. 1, 3, 4, and 5.

34JM omitted “N. C.” Randolph interlineated it.

35Between “motives to the” and “one,” JM heavily deleted several words which may have been, “choice of the.” The last election had occurred on 5 November 1781, when John Hanson of Maryland was chosen to be “President of the United States in Congress Assembled” (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXI, 1100). See also JM to Pendleton, 5 November 1782, and n. 8. For Boudinot’s comment about his election, see Burnett, Letters description begins Edmund C. Burnett, ed., Letters of Members of the Continental Congress (8 vols.; Washington, 1921–36). description ends , VI, 536.

37Ibid., and n. 15.

38JM evidently believed that Henry Laurens’ contemplated mode of return to the United States was another illustration of his too friendly relations with the enemy. He would have been better advised, according to JM, to sail in a French flag-of-truce ship. See Comments and Motion in re Laurens, 19 September, and n. 1; JM to Randolph, 24 September 1782, and nn. 20 and 32.

42JM had employed the Lovell code in enciphering a portion of his letter of 15 October 1782 to Randolph (q.v., and n. 6). In his letter of 27 August 1782 (q.v.), JM had enclosed to Randolph a key to the Lovell code.

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