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To James Madison from Edmund Randolph, 26 October 1782

From Edmund Randolph

RC (LC: Madison Papers). Unsigned but in Randolph’s hand. Cover addressed by him to “The honble James Madison jr. esq of congress Philadelphia.” Docketed by JM, “26. 1782.”

Richmond Octr. 26. 1782.

My dear sir.

Your favor by the last post was duly received, and enabled me to counteract a rumor, which Carleton’s letter had excited, of a thorough disposition and fixed resolution in Great Britain to close the war by the expected mortifications.1

The assembly has not yet met, not more than thirty five members having appeared in town.2 The Mr. Lees have, contrary to their usual practice, failed to appear punctually at the time appointed.3 Mr. Henry, it was said, purposed to retire wholly: but a late letter from him to me gives one full reason to believe, that the report of his abdication is groundless.4

Reformations are talked of in every department, and scrutinies are to be instituted with the fervor of republican jealousy.5 The office of commercial agent has already sunk by the resignation of the holder, and its total unfitness for revival.6 I suspect, that oeconomy will be the ostensible cause of some other capital changes. And where oeconomy will not serve as the pretext for other revolutions, which may be desired, some other principle will be devised.7 I speak at present in parables: because my suspicions may go beyond the truth, and the incompletion of the New cypher prevents the use of names as freely, as I ought to speak for the sake of explicitness. The court being about to rise will enable me to finish this cypher for the next post.8

The great constitutional question which I mentioned to you two or three months ago has been agitated in the general court. But its immense magnitude caused it to be adjourned into the court of appeals. I am firmly persuaded that the general court, had the question been taken, would have pronounced the nullity of the law, as being against the constitution.9 It is proposed by some of the members of the assembly, to convene a committee from the legislative, and judiciary departments who shal[l] enter into a discussion of the subject, and defin[e] the powers of each. At first sight the measure appears eligible, as without an accommodation fou[n]ded upon a reasonable construction of the constitution the appeal must be made to the people. It is add[ed] too as part of the scheme, that a council of revisi[on] shall be established, to keep the legislature in futur[e] cases within its just limits.10

Adieu

3See 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, 307, n. 11. Randolph probably referred above all to Arthur Lee and Richard Henry Lee. For the former’s arrival in Richmond, see JM to Randolph, 8 October 1782, n. 21. Richard Henry Lee first attended the House of Delegates on 4 November 1782 (Journal of the House of Delegates 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 1827 or 1828, and often called the “Thomas W. White reprint.” description ends , October 1782, p. 6).

5See Randolph to JM, 8 November, 16 November, and 22 November 1782.

6By letter of 21 October William Hay (ca. 1749–ca. 1826) resigned the office of commercial agent on the grounds that his “private affairs would not longer permit him to continue” (Calendar of Virginia State Papers description begins William P. Palmer et al., eds., Calendar of Virginia State Papers and Other Manuscripts (11 vols.; Richmond, 1875–93). description ends , III, 351; Journals of the Council of State description begins H. R. McIlwaine et al., eds., Journals of the Council of the State of Virginia (3 vols. to date; Richmond, 1931——). description ends , III, 159). The next day the Governor in Council decided that it was “unnecessary to continue the said Office any longer” (ibid., III, 160). The work of the agent had so greatly lessened that “the receiving and delivering of the public Goods” could be performed by “a single Clerk” subject to “the direction of the Quarter Master” (McIlwaine, Official Letters description begins H. R. McIlwaine, ed., Official Letters of the Governors of the State of Virginia (3 vols.; Richmond, 1926–29). description ends , III, 353). For Hay, see Heads of Families at the First Census of the United States Taken in the Year 1790 … Virginia (Washington, 1908), p. 118; Personal-Property Tax Books, City of Richmond, 1826–1827, MSS, and Richmond City Records, Deed Book 27, p. 286, microfilm, both in Virginia State Library.

8See Randolph to JM, 27 September 1782, and n. 2. The “New cypher,” which Randolph forwarded in his letter of 22 November (q.v.), was received by JM on 2 December. See JM to Randolph, 3 December 1782.

9See 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, 424; 426, nn. 16, 17; Randolph to JM, 5 October 1782, and n. 3. The outcome of the memorable “Case of the Prisoners,” known as Caton v. Commonwealth in the law reports (4 Call [Va.] 5), hinged upon the answers which should be made to the following questions: (1) Could a measure of the General Assembly be a valid law if one of its provisions contravened the Form of Government of Virginia? If the legislators had traversed the constitution intentionally, they evidently had assumed that they were empowered to amend it or at least to disregard it. No provision for amendment was included in the Form of Government which a convention, acting on behalf “of the good People of Virginia,” had framed in June 1776 (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 , IX, 113–14). (2) If the pardoning provision of the statute “declaring what shall be Treason,” enacted by the General Assembly at its session of October 1776, was unconstitutional, should or should not the courts of Virginia apply the law in cases involving defendants accused of that crime? (3) Could the judges exercise the power of judicial review over acts of the branch of the government which had appointed them and which could remove them from office (ibid., IX, 117)?

Disagreeing on the answers to these questions because of their “Novelty and difficulty,” the judges of the General Court in October 1782 adjourned the “Case of the Prisoners” to the Court of Appeals for decision. This tribunal was presided over by Edmund Pendleton. In 1776 he also had presided over the convention which framed the Form of Government and over the House of Delegates of the General Assembly which enacted the law concerning treason. On 2 November 1782, after concluding in spite of some dissent that the Court of Appeals had appellate jurisdiction over criminal as well as civil actions, the justices divided six to two on the main question. Although the rationales of the concurring opinions, to the extent that they are revealed by Pendleton’s own notes on the “Case of the Prisoners,” were not completely in accord, the majority held that the Virginia General Assembly lacked constitutional authority to violate the Form of Government, that the statute at issue did not embody such a violation beyond a reasonable doubt, and, much less clearly, that the oaths taken by the judges to uphold the Form of Government would compel them, although with painful reluctance, to enforce the constitution rather than a statute whenever they clearly conflicted and were relevant to a case brought before the Court of Appeals. In a letter of ca. 2 December to Joseph Jones, Pendleton enclosed his notes about the opinions expressed by the justices of the court. Jones seems to have given these notes to JM (LC: Force Transcripts, fols. 8695–8716; Pendleton to JM, 8 November, and 9 December; Randolph to JM, 8 November 1782).

For an excellent account of the “Case of the Prisoners” and of the excitement in Richmond aroused by the constitutional issues in controversy at the trial, see David John Mays, Edmund Pendleton, 1721–1803 (2 vols.; Cambridge, Mass., 1952), II, 187–202. On 3 December 1782 the Virginia General Assembly extended provisional pardons to the three defendants (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, 426, n. 17). For Randolph’s general position on the issue, see his letter of 8 November 1782, and n. 7.

10Although the “members of the assembly” to whom Randolph referred have not been identified, Henry Tazewell (1753–1799), a lawyer of Williamsburg, probably was one of them. On 19 November the House of Delegates named him chairman of a committee to submit a bill for striking from the law defining treason the provision unconstitutionally vesting in the General Assembly, rather than in the House of Delegates, the power to pardon traitors. The preamble of the repealing act, which the House of Delegates adopted on 23 November, affirmed “the bounden duty of the representatives of the People at all times to preserve the constitution inviolate” (Journal of the House of Delegates 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 1827 or 1828, and often called the “Thomas W. White reprint.” description ends , October 1782, pp. 24, 29, 33). Being sustained both by the terms of the treason law then in force and by the opinion of the Court of Appeals (see n. 9; also, Pendleton to JM, 8 November 1782), the Senate tabled the proposed measure. Before it adjourned, the House of Delegates necessarily again sought the concurrence of the Senate in bills for pardoning traitors (Journal of the House of Delegates 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 1827 or 1828, and often called the “Thomas W. White reprint.” description ends , October 1782, pp. 40, 41, 42, 60, 64). Judging from the silence of the records, no suggestion for either the legislative-judiciary committee or “the council of revision” was made to the House of Delegates at the October 1782 session.

Tazewell became a judge of the General Court, 1785–1793, and of the Court of Appeals, 1793–1794. From 1794 until his death he was a United States senator.

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