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To James Madison from Edmund Randolph, 29 March 1783

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, “March 29th. 1783.”

Richmond March 29. 1783.

My dear Sir

I have just returned from Wmsburg, the seat of a majority of the keenest pursuers of my father’s estate. Nothing, I believe, will content them, but a fair experiment at law: and to guard against this is my object in retaining for the present my office of Attorney general.1 I do not mean, however, by this, that the adhering to it would be desireable by me at any other [se]ason, than this. For at no other would the salary be equal, [a]s you rightly conceive, to the profits of the other side.2 But it is easily foreseen, that the next session will limit, if not wholly abolish, executions, and thus cut off the means of supporting my family, except with great difficulty.3

Among the confederates in forging tobacco notes, &c., two penitents have appeared. Their evidence will be pointed against the inspector, who has been the cornerstone of the villainy. But it is suggested, and with much shew of truth, that an inspector cannot forge his own name. If it should be so adjudged, his acquittal is certain.4

While in Wmsburg, I found a cause depending in the admiralty, the capital point of which is, to decide, whether a capture by a vessel not commissioned, pursuing indeed the course of her voyage, but not repelling a previous attack, is legal. The ordinance is to my apprehension clear enough against my client, the captor: and yet in the eccentricity of human opinion we may catch some advantage, by shewing, that altho’ it enumerates certain persons, capable of capturing, it does not in express terms, exclude all others and therefore as the right of capturing without a commission exists, according to Grotius and Lee under the law of nations, it still exists, the ordinance having no negative words.5

Mr. Wm. Short will probably lose his election. Dr. Walker, who is one of the candidates, will undoubtedly be chosen, and Colo. Nicholas, who is the other, has the murmur of the people strongly in his favor.6 The latter gentleman was at the first breaking of the impost to him, vehement against its revival: but he has seen the subject since in a more dispassionate light, and will, I believe, adopt fit measures for our salvation.7

In the neighbouring county of New-Kent, I have been informed, that one of the candidates, whose interest seems to increase, makes his court to the freeholders by declaring himself against executions and taxes.8 The suspension of the former I advocate now, as I always have: and if british debts should be soon recoverable, that suspension ought not to be taken off, until many years after the firm establishment of our government.9 I do not discover, that the provisional articles fix a future day for their recovery. If recoverable immediately, may they not indanger us, by the possibility of a relapse into the arms of G. B. if not by a restoration of dependence, at least by a destructive connection? Let a merciless british creditor grant indulgence on condition of favoring G. B. in some particular form.10 What is to be the consequence?

I wish to learn, whether Congress assented to the publication of Mr. Morris’s letter of resignation? This letter, united with Rivington’s late account of all the monthly payments from the different states, will constitute a delightful regale of Shelburne’s duplicity.11

1In retaining the attorney generalship, Randolph evidently planned to shield himself behind a privilege of office long established in English legal precedent. He could not be sued in a Virginia inferior court because he was an officer of the state superior courts. During sessions of the superior courts, a suit entered therein against him would be deferred, for he would then be engaged in the performance of public duty (Edward Jenks, “The Story of Habeas Corpus,” in Association of American Law Schools, a committee, comp. and ed., Select Essays in Anglo-American Legal History [3 vols.; Boston, 1907–9], II, 531–48).

3By “executions” Randolph referred to the enforcement of judgments respecting private debts. A statute of 1 July 1782, as amended on 22 December 1782, suspended the payment of debts owed to British creditors (Papers of Madison description begins William T. Hutchinson, William M. E. Rachal, et al., eds., The Papers of James Madison (6 vols. to date; Chicago, 1962——). description ends , IV, 361, n. 40; V, 264, n. 2; 310, n. 10). Randolph implied that by continuing as attorney general during the present “[se]ason,” he might be freed, by effecting a settlement with his father’s creditors, to resume his private practice, but a stay law would no doubt lessen his income by reducing the number of his clients. See Randolph to JM, 1 Feb., and n. 5; 7 Mar.; 22 Mar. 1783.

4Randolph to JM, 1 Mar., and nn. 2, 3; 15 Mar. 1783. Thomas Chiles of Caroline County was the “penitent” who, by turning state’s evidence in exchange for an executive pardon, enabled Colonel Samuel Temple to arrest the other “confederates” (JCSV description begins H. R. McIlwaine et al., eds., Journals of the Council of the State of Virginia (4 vols. to date; Richmond, 1931——). description ends , III, 230–31; Va. Gazette description begins Virginia Gazette, or, the American Advertiser (Richmond, James Hayes, 1781–86). description ends , 29 Mar. 1783). Being a key witness and fearing that his confession had imperiled his life, Chiles was protected, at least until after the trial, by a guard of militia provided at Governor Harrison’s direction (JCSV description begins H. R. McIlwaine et al., eds., Journals of the Council of the State of Virginia (4 vols. to date; Richmond, 1931——). description ends , III, 241, 268; Cal. of Va. 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, 466, 474). By 1785, perhaps still apprehensive for his own safety, Chiles had left Caroline County (Caroline County Court Records, Personal Property Tax Books, 1783–1785, MSS in Va. State Library).

The most notorious of the criminals was John Purcell. After his escape from the jail at Fredericksburg, his recapture, and his conviction for forgery by the General Court, he escaped from the “public Gaol” at Richmond on 27 October 1783. There were grounds for believing that he had fled to North Carolina (JCSV description begins H. R. McIlwaine et al., eds., Journals of the Council of the State of Virginia (4 vols. to date; Richmond, 1931——). description ends , III, 304, 380; Va. Gazette description begins Virginia Gazette, or, the American Advertiser (Richmond, James Hayes, 1781–86). description ends , 29 Mar.; 1, 8, and 22 Nov. 1783; Caroline County Court Records, Order Book, 1781–1785, p. 216, microfilm in Va. State Library; Harrison to the governors of North and South Carolina, 10 Dec. 1783, in Executive Letter Book, 1783–1786, pp. 68, 243–44, MS in Va. State Library).

5The “cause” has not been identified. The crux of the matter, legally considered, was the stipulation of the ordinance, largely drafted by Randolph and enacted by Congress on 4 December 1781, confining a legitimate prize to one taken by a vessel which had participated in the fight. Neither the ordinance nor Hugo Grotius in De jure belli ac pacis required the captor to be “commissioned” with a letter of marque, but Grotius failed to mention the obligation of the captor to have taken part in the battle occasioning the capture (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXI, 1153–58, esp. p. 1156; Papers of Madison description begins William T. Hutchinson, William M. E. Rachal, et al., eds., The Papers of James Madison (6 vols. to date; Chicago, 1962——). description ends , III, 217–21; 235–43, esp. 238; Hugo Grotius, De jure belli ac pacis, II, [1925], 626–27, 663–66, 788–90).

“Lee” was Sir George Lee (1700–1758), dean of arches and a lord commissioner of appeals in prize cases, 1753–1758. Randolph probably had consulted Sir George Lee, Sir George Paul, et al., Report on Procedure in Prize Cases (London, 1753). “It was a principle of English and foreign Admiralty law that a captor without commission had no legal title to his prize,” although exceptions were occasionally made (Richard Pares, Colonial Blockade and Neutral Rights, 1739–1763 [Oxford, 1938], pp. 3 and n., 101, 105, 146).

6About a week after Randolph wrote the present letter, elections to the Senate and House of Delegates of the General Assembly were held in Virginia. In Albemarle County neither Dr. Thomas Walker, who was seeking re-election as a delegate, nor William Short, who had entered the lists for the first time, was elected. Those chosen were George Nicholas and Edward Carter (Swem and Williams, Register description begins Earl G. Swem and John W. Williams, eds., A Register of the General Assembly of Virginia, 1776–1918, and of the Constitutional Conventions (Richmond, 1918). description ends , p. 17). For Walker, see Papers of Madison description begins William T. Hutchinson, William M. E. Rachal, et al., eds., The Papers of James Madison (6 vols. to date; Chicago, 1962——). description ends , I, 242, n. 3; for Short, ibid., III, 270, n. 2.

George Nicholas (ca. 1749–1799), who had moved to Albemarle County after serving as a delegate from Hanover County in 1781, was elected in 1783 and again in 1786–1788 (Swem and Williams, Register description begins Earl G. Swem and John W. Williams, eds., A Register of the General Assembly of Virginia, 1776–1918, and of the Constitutional Conventions (Richmond, 1918). description ends , pp. 17, 23, 26). A son of Robert Carter Nicholas, he was graduated from the College of William and Mary in 1772, rose to the rank of lieutenant colonel in the continental army between 1776 and 1777, and served as an aide-de-camp to Governor Thomas Nelson in 1781 (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 , I, 98 and n. 124, 105; III, 48, 61; JCSV description begins H. R. McIlwaine et al., eds., Journals of the Council of the State of Virginia (4 vols. to date; Richmond, 1931——). description ends , I, 73, 325, 339; II, 468). Admitted to the bar in the autumn of 1778, Nicholas was appointed acting attorney general of Virginia during Randolph’s absence as a delegate to Congress late in 1781 and early in 1782 (JCSV description begins H. R. McIlwaine et al., eds., Journals of the Council of the State of Virginia (4 vols. to date; Richmond, 1931——). description ends , II, 187, 402; III, 4). In the session of May 1781 of the General Assembly, probably influenced by Patrick Henry, Nicholas was among the delegates most critical of Thomas Jefferson’s conduct as governor (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 , IV, 261–62, 264, 268; VI, 105–9), but subsequently became Jefferson’s firm supporter. In 1788 Nicholas was a prominent member of the Virginia convention that ratified the Federal Constitution. After moving to Kentucky in 1790, he served as principal draftsman of the first constitution of that state and its first attorney general. Between 1785 and 1795 he corresponded frequently with JM (LC: Madison Papers). See Huntley Dupre, “The Political Ideas of George Nicholas,” Register of the Kentucky State Historical Society, XXXIX [1941], 201–23.

7The vote on 6 and 7 December 1782, by which the Virginia General Assembly repealed its ratification of the proposed impost amendment to the Articles of Confederation, was not tallied in the journal of the House of Delegates (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 1827 or 1828, and often called the “Thomas W. White reprint.” description ends , Oct. 1782, pp. 55, 58). There is no evidence that a serious attempt was made in the session of May 1783 of the General Assembly to revive the impost act.

8New Kent County is immediately east of Henrico County, where Randolph lived. In the April elections the incumbents, Colonel William Dandridge, Jr. (1743–1822), and John Watkins (d. ca. 1787), were re-elected as delegates from New Kent County to the Virginia General Assembly (Lineage Book of the National Society of the Daughters of the American Revolution, CXL [1934], 100; New Kent County Records, Personal Property Tax Book, 1787, MS in Va. State Library; Swem and Williams, Register description begins Earl G. Swem and John W. Williams, eds., A Register of the General Assembly of Virginia, 1776–1918, and of the Constitutional Conventions (Richmond, 1918). description ends , pp. 16, 18). Possibly Randolph’s reference was to an unsuccessful candidate. If he meant either of the incumbents, Dandridge was considerably the larger holder of realty and personalty, but by the same token he could have been the larger debtor (New Kent County Records, Land Tax Books, 1783–1787; Property Tax Books, 1783–1787, MSS in Va. State Library). On 20 June 1783 a vote was tallied in the House of Delegates on a motion to suspend until the October session further consideration of a bill “for the relief of debtors.” Neither Dandridge’s nor Watkins’ name appears in the tally (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 1827 or 1828, and often called the “Thomas W. White reprint.” description ends , May 1783, p. 70).

9Randolph to JM, 7 Feb.; 15 Feb.; 9 May; 24 May 1783. Randolph’s point of view may have reflected in some degree the pressure upon him by his father’s creditors (Randolph to JM, 7 Mar. 1783, and citations in n. 4). See also Papers of Madison description begins William T. Hutchinson, William M. E. Rachal, et al., eds., The Papers of James Madison (6 vols. to date; Chicago, 1962——). description ends , IV, 357–58; 361, n. 40.

10Article IV of the provisional articles of peace between Great Britain and the United States stated only: “It is agreed that creditors on either side shall meet with no lawful impediment to the recovery of the full value, in sterling money, of all bona fide debts heretofore contracted” (Wharton, Revol. Dipl. Corr description begins Francis Wharton, ed., The Revolutionary Diplomatic Correspondence of the United States (6 vols.; Washington, 1889). description ends ., VI, 98). See JM to Randolph, 8 Apr. 1783, and n. 2.

11Randolph to JM, 15 Jan., and n. 13; 15 Mar.; 22 Mar. 1783, and n. 10; JM Notes, 26 Feb., and n. 14; 27 Feb. 1783. For James Rivington, publisher of the Royal Gazette of New York City, see Papers of Madison description begins William T. Hutchinson, William M. E. Rachal, et al., eds., The Papers of James Madison (6 vols. to date; Chicago, 1962——). description ends , I, 133, n. 5. For the Earl of Shelburne’s alleged duplicity, see Randolph to JM, 3 Jan.; Delegates to Harrison, 18 Mar., n. 4; JM Notes, 12–15 Mar., and n. 4; 19 Mar. 1783, and nn. 7, 12.

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