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To James Madison from Edmund Randolph, 5 October 1782

From Edmund Randolph

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

Richmond Octr. 5. 1782.

My dear sir

Mr. Ambler will inform you of the state of your finances and will forward by this post an equal draught with that, remitted a week or two ago.1

We have been and still are deeply engaged in the business of the general court.2 This term seems pregnant with decisions, connected with politics. On a solemn hearing, it was yesterday determined, that no person shall be convicted of treason, unless there be two witnesses to one and the same overt act. The consequence is, that altho’ it should be proved, that twenty or twenty hundred instances of adherence to the enemy be proved, each of them by a single witness, the punishment of treason cannot be executed upon their author. Our law of treason too has for its model the british statutes on the same subject: and the uniform interpretation of them has been, that one witness to one overt act, and another to another of the same species shall amount to a conviction.3 This judgment favors life, but will, I fear, in the event countenance treason.

Mr. Jones has, no doubt, communicated to you a letter, which he received from Mr. Mercer, respecting a passage in Dr. Lee’s correspondence with Mr. Page. It is thought of and spoken of with much severity by some. But I cannot conceive, that the clamor, whic[h] has been excited, is comminsurate with the cause. It may produce events, fit for communication at a future day.4

Pray inform Colo. Bland, that I do not send him a draught on Phila. this week; because Mr. Ambler is obliged to apply his dividend to a bill, drawn by him in favor of Mr. Hunter5

3Since 1521 English courts had interpreted the statutes of treason, the first of which had been enacted by Parliament in 1351, as Randolph stated (The Statutes at Large, of England and of Great Britain and Ireland [new ed.; 10 vols.; London, 1811], I, 326; St. George Tucker, ed., Blackstone’s Commentaries; with Notes of Reference, to the Constitution and Laws, of the Federal Government of the United States; and of the Commonwealth of Virginia [5 vols. in 4; Philadelphia, 1803], IV, 75–76 n.; Samuel Rezneck, “Constructive Treason by Words in the Fifteenth Century,” American Historical Review, XXXIII [1927–28], 544–52). Using British precedent as a general model, the Virginia General Assembly on 12 December 1776 stipulated that the defendant in a trial for treason could only “be legally convicted of open deed by the evidence of two sufficient and lawful witnesses,” or his own voluntary confession (Journal of the House of Delegates of Virginia, Anno Domini, 1776 [Richmond, 1828], p. 93; 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, 168). At Virginia treason trials antedating those to which Randolph referred, the judges assumed that the legislature had not intended to ameliorate current British practice. This assumption probably was made the more readily because their decisions were subject to review by the General Assembly as the final court of appeals.

On 11 November 1782 Governor Harrison submitted to the speaker of the House of Delegates “a report from the Honble Judges of the General Court on five criminals condemned in their last Term for Treason” (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, 373–74). By a statute enacted on 3 December 1782 the General Assembly pardoned all of these men, but four of them had to enlist in the continental army for the duration of the war (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. 11, 29, 36, 37, 38, 42, 51, 58).

4As Randolph assumed, Joseph Jones told JM of this matter. See JM to Randolph, 15 October 1782. Although the date of the letter to Jones has not been ascertained, it was from James Mercer rather than his much younger half-brother John Francis Mercer. See Randolph to JM, 13 December 1782. Arthur Lee was still in Philadelphia when he wrote his controversial letter of undetermined date to Mann Page. Alleged to contain “matter injurious to the public interests,” this letter was referred by the House of Delegates on 20 November 1782 to the Committee on Privileges and Elections for investigation and report (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. 27). For further information about this matter, see Pendleton to JM, 14 October, and n. 13; Randolph to JM, 29 November 1782.

5For the “dividend” of £120, see Ambler to JM, 5 October 1782. Theodorick Bland, who evidently was in debt to James Hunter, Jr., a merchant of Richmond, had authorized him to collect his due from the treasurer of Virginia as soon as money should become available for paying the delegates in Congress a part of what they were owed by the state. For James Hunter, Jr., 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 , I, 298, n. 1; IV, 65, n. 5. The £60 sent to Bland on 20 September may have been an advance payment of half of his “dividend.” See Randolph to JM, 20 September, and n. 2; JM to Randolph, 30 September 1782.

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