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To James Madison from Edmund Randolph, 18 July 1782

From Edmund Randolph

RC (LC: Madison Papers). Unsigned but in Randolph’s hand. Undocketed and cover missing.

Richmond July 18. 1782.

Dear sir

In my letter of the last week but one, I anticipated the cause of my failure to write by saturday’s post.1 The trial of the flag-ship, whose defence I undertook, added to the debt, due from me to my connections by friendship and blood, detained me in Williamsburg until the afternoon of that day.2

The ship3 was indeed acquitted upon principles of law. But I fear, that the “chasm” in the testimony, by which her acquittal was affected, did not proceed from her innocence, so much as from the non-attendance of a witness.4 I fear, too that she imported a considerable quantity of merchandize. Nay, if it had not been for my aversion to interrupt the schemes of Mr. Morris in the management of finance,5 and my apprehension, lest the enemy should be clamorous and troublesome, if she were condemned without the most direct and pointed evidence—I was so well satisfied with my suspicion[s] that I would have laboured strenuously for confiscating her. For every avenue not explored for the [conta]mination6 of british goods—an evil, which, if it stood single and unmixed with public benefit, arising from other considerations, I would not countenance upon any allurement of lucre whatever. But the forbearance of my temper in this respect was really worn down, when I was informed, that another of the flags, the sloop Good Intent, was basely violating her character. She was permitted to go as far as Boyd’s hole7 on Potomack; but went up to Alexandria without licence. The distance between those ports of the river is about sixty miles. She had on board a very liberal cargo, besides four anchors and four cables for ships; the having of which plainly indicated a design of stealing vessels, after the example of another flag ship8 from Charlestown. I libelled her without hesitation. Her fate will be decided on friday sevennight, and will probably be adverse.9

From what cause has it proceeded, that the notification of the birth of a dauphin reached the hands of our governor on monday last only? Mr: Livingston, from whom the official intelligence did at last come, ought surely to have sent his dispatch, announcing that event by the post, rather than on opportunity, by Winchester: which was the route of the letter.10 Some apology seems necessary for the involuntary omission of our executive to celebrate it, unless the address of the assembly to Ct. Rochambeau has made amends.11

Mr. Ambler12 informs me, that there is not a single letter or paper from Phila. by the mail of to-day. This circumstance deprives me of the pleasure of acknowledging the receipt of any letter from you later than the 2d. instant,13 and induces a belief, that Sir Guy has been again on the highway.14

The inclosure relates to the claim of an honest man, and zealous whig, for salary &c, as an attendant on the hospital here. I represented to him the impracticability of having his account immediately paid off, and the difficulty of obtaining, what he is willing to receive as a substitute for actual payment, a certificate. I must however intrude this business upon your attention so far, as to beg you to have the doctor’s15 demand, placed upon a footing, equally respectable with that, on which demands of a similar nature have been placed.

A late incident will probably try the fortitude of our judiciary, by calling upon them to say, whether a law, contrary to the constitution, is obligatory. The power of pardoning is delegated to the governor by the act of government, under two exceptions only: the one, where the prosecution may have been carried on by the house of delegates, the other when the law shall otherwise particularly direct. [In ei]ther of these instances the house of delegates is declared capable of pardoning. The law against treason, passed at a session, subsequent to the one, which formed the constitution, strips the governor of all authority to pardon in cases of treason and vests that in the general assembly, and thus interchanges with the senate the peculiar rights of the other branch of the legislature.16 Three persons were attainted of treason at the last session of the general court,17 and a vote of pardon was entered into by the delegates. This vote was submitted to the senate for their concurrence, and was negatived by them.18 But the friends of the condemned have procured the suspension of execution in order to try at the next general court the force of their opinion, that the vote of the delegates is an actual pardon, in spite of the disagreement of the senate.

It is a wonderful mistake, that the French have diffused much specie thro’ the lower country.19 The inhabitants had been too great sufferers under the ravages of the enemy,20 other states had been too active in throwing in their supplies, and the zeal of the contractors had been too ardent, to leave any portion of the french crowns, open to the pursuits of our countrymen. But let it be remembered; that the citizens of Wmsburg. and its neighbourhood do almost universally regret their departure. Equal condescension in commanders, and good order in soldiers were never yet known in any army. As justice and policy united in dictating a compensation for the small destruction of houses, which took place in consequence of their stay in Virginia, so has that compensation been marked by liberality. The president of the college was paid very handsomely for his library, and 1500£ were allowed for his house.21

I have not seen Dr. Coste’s oration in return for the degree conferred on him by our university.22 But I am informed, that he rallies the mode of rearing children, our diet, and in short the whole system of our education with great acrimony: Among other examples of the ill effect of our diet, I am told that he says, that it causes “ventrum prorumpere.”23

1See Randolph to JM, 5 July 1782. By “saturday’s post,” Randolph meant that of 13 July.

2Both Randolph and his wife Elizabeth were natives of Williamsburg (Moncure D. Conway, Edmund Randolph, pp. 36–37; Randolph to JM, 11–13 April, n. 2; 16 August 1782, MS in LC: Madison Papers).

3The “New-York.” See Randolph to JM, 5 July 1782, and n. 3.

4Unidentified, but Randolph may have meant “any witness.”

6With the exception of “For every” and “for the,” the words to this point in the sentence are a doubtful rendition of what Randolph wrote. The brackets mark a hole in the manuscript.

7Governor Harrison had authorized four flag-of-truce vessels, sent from New York City to Virginia to load tobacco in accordance with the agreement made with the traders-capitulant of Yorktown, to ascend the Potomac as far as Boyd’s Hole in King George County, Va., about eighteen miles east of Fredericksburg (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, 195; 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, 259).

8This was the brigantine “Maria.” On 10 May 1782 five members of her crew had deserted at Hampton, Va., seized the sloop “William and John,” and departed in her for New York City. Off the coast of New Jersey they were captured and carried into Egg Harbor. The Court of Admiralty of that state condemned the prize and ordered its sale. The new owner renamed the ship the “Dove,” freighted her with naval stores, and set sail for New London, Conn. A British man-of-war captured the vessel and brought her to New York Harbor. In the meantime Governor Harrison had ordered the detention of the “Maria” at Hampton and written to Carleton demanding reparation or the return of the vessel and cargo. When the “Dove” arrived in New York, Carleton immediately complied. Thereupon, on 26 July 1782, Harrison released the “Maria.” In December of that year Carleton sent Washington 187 guineas “and a half and one Dollar” to enable Harrison to recompense the owner of the “William and John” for the loss of his vessel and her cargo (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, 234–35, 239–40, 271–72, 279, 281, 312–13, 327; 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, 124, 128, 136; 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, 227, 249; 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, 407 and n., 410, 454, 469).

9For exceeding the “limits of her permit” and having British merchandise aboard, the “Good Intent” had been libeled at Alexandria (Randolph to JM, 6 August 1782, MS in LC: Madison Papers). The Court of Admiralty ordered the confiscation and sale of the vessel and her cargo (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, 248; 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, 267).

10See Harrison to Virginia Delegates, 19 July 1782. Robert R. Livingston’s circular letter of 14 May, misdirected by his office to “His Excellency George Harrison Esquire Virginia,” had finally reached the governor on 16 July, after going to Winchester, Va., and from there to the state war office in Richmond, where it was opened and resealed (MS in Virginia State Library).

11See Randolph to JM, 5 July 1782, and n. 7. On 4 July 1782 Harrison “gave an entertainment” in Richmond. Among the thirteen “patriotic toasts” drunk on that occasion was one to “The Queen and Dauphin of France: May he inherit the virtues of his illustrious father” (Virginia Gazette description begins Virginia Gazette, or, the American Advertiser (Richmond, James Hayes, 1781–86). description ends , 6 July 1782).

12Jacquelin Ambler, Virginia state treasurer.

13Q.v.

14That is, the mail might again have been intercepted by the supposed agents of Carleton. See JM to Pendleton, 16 July 1782, and n. 2. When JM’s letter of 9 July reached Randolph is unknown, but he acknowledged its receipt in his letter of 6 August 1782 to JM (MS in LC: Madison Papers).

15Dr. William Carter, who died in 1799 at “an advanced age” (Virginia Argus [Richmond], 14 June 1799), was a native of Williamsburg and a hospital surgeon in the southern department from 1 July 1776 to 31 July 1781. Despite JM’s efforts in his behalf, Carter seems to have procured no direct relief from Congress. On 26 May 1784 he asked the Virginia General Assembly for nearly five years’ back pay, with allowances for depreciation. A certificate for the balance was authorized to be issued and charged against the United States (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, unless otherwise noted, 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 1784, pp. 21–22, 27; Gwathmey, Historical Register of Virginians description begins John H. Gwathmey, Historical Register of Virginians in the Revolution: Soldiers, Sailors, Marines, 1775–1783 (Richmond, 1938). description ends , p. 135).

16The Constitution or Form of Government of Virginia, Article IX. The second exception was “where the prosecution shall have been carried on by the House of Delegates” (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, 115–16). The General Assembly in its session of October 1776 enacted a law “declaring what shall be Treason.” The third article of this statute, besides specifically denying to the governor and council the authority to pardon anyone convicted of treason, reserved that prerogative to the legislature (ibid., IX, 168). On the other hand, Article IX of the Form of Government, although authorizing the legislature to deprive the governor and council of their pardoning power, clearly stipulated that it should thereafter be exercised by the House of Delegates rather than by the General Assembly as a whole.

17See Randolph to JM, 15 June 1782, and n. 2. The three men were James Lamb (d. 1785), Joshua Hopkins (d. 1795), and John Caton, all of Princess Anne County. Although the House of Delegates at the May 1782 session responded favorably to a petition to pardon the men, the Senate refused to concur, and the House took no further step in the matter before adjourning, except to determine to let it “lie.” Thereupon “the friends of the condemned,” believing that they were supported by the action of the House of Delegates upon the petition to pardon and no doubt aware of the constitutional issue mentioned in n. 16, above, appealed from the verdict of the General Court to the Court of Appeals. When this higher tribunal affirmed the attainder, a second petition for pardon was laid before the General Assembly at its October 1782 session. By a statute, enacted on 3 December 1782, Lamb and Hopkins were pardoned and banished from the state, and Caton was pardoned with the proviso that he serve in the continental army. The three men apparently returned to Virginia after the war, but only Lamb seems thenceforth to have avoided trouble with the law (Minute Book, House of Delegates, May 1782 description begins Minute Book, House of Delegates, May 1782, MS in Virginia State Library. description ends , pp. 73, 82; 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, 193; 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, unless otherwise noted, 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. 18–19, 51, 58, 60; 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 , XI, 129; John Harvie Creecy, Princess Anne County Loose Papers, 1700–1789, Virginia Antiquary [1 vol. to date; Richmond, 1954], I, 90, 115–16, 133, 149–50; Gwathmey, Historical Register of Virginians description begins John H. Gwathmey, Historical Register of Virginians in the Revolution: Soldiers, Sailors, Marines, 1775–1783 (Richmond, 1938). description ends , p. 139). See also David J. Mays, Edmund Pendleton, II, 187–202; Daniel Call, ed., Reports of Cases Argued and Adjudged in the Court of Appeals of Virginia (6 vols.; Richmond, 1824–33), IV, 5–21.

18This action is not recorded in the fragmentary manuscript minute book of the legislative session of May 1782.

19For contrary opinions, see Papers of Madison description begins William T. Hutchinson, William M. E. Rachal, et al., eds., The Papers of James Madison (4 vols. to date; Chicago, 1962——). description ends , III, 262; Pendleton to JM, 15 April and 22 April 1782.

20That is, to have commodities to sell to the French army between September 1781 and July 1782.

21See the Reverend James Madison to JM, ca. 2 March, and n. 7; 15 June 1782, and n. 14.

22See the Reverend James Madison to JM, 15 June 1782, and nn. 7, 9, 10.

23Abdominal flatulence.

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