To James Madison from Edmund Randolph, 21–24 May 1782
From Edmund Randolph
RC (LC: Madison Papers). This four-page letter lacks a cover and a complimentary close. In its original form the letter may have had at least one more page. The handwriting and contents permit no doubt that Randolph wrote the letter. He encoded in the official cipher the words italicized in the present copy.
Richmond May 21. 22. 23. 24. 1782.1
Dear sir
The information, contained in my two last letters, has appeared within these two days to be erroneous. Our resolution against British merchandize passed the committee of the whole house without opposition. An attempt was indeed made to except salt: but Mr. R. H. Lee scouted it out, as I was informed. A bill is ordered to be brought in upon it.2
But so strange is the revolution of things, that this very act of congress became the reason, why the passports, granted under their authority, for the transportation of tobacco to New-York, were yesterday reprobated. I intend to transmit to you a copy of the proceedings.3 The arguments against the power of congress were first drawn from the non-enumeration of it in the confederation.4 This ground soon appeared untenable; and resort was had to the distinction, that passports might issue under their direction for legal purposes; but not for illegal, & that the shipping of tobacco for our enemy was an illicit commerce; as contravening a law of the state.5 But the 14th. article of the treaty of amity with France seemed to operate most strongly on the minds of the house. You will observe, that this article forbids any property of the Americans to be put into hostile bottoms.6 I was summoned to state the matter, as it appeared to congress, when the resolution of the 13th. of february was entered into.7 I informed them, that no debate arose on the occasion, because no distrust was harboured even by the most jealous of congressional usurpation concerning the power of granting these passports.8 I affirmed my opinion to be, that the 2d. article ought not to be understood literally: but that the words “expressly delegated” meant an obvious and direct consequence from the general powers, briefly sketched in the confederation:9 that the exclusive right of determining on war and peace, and the direction of military operations obviously and directly led to the power of granting passports: that a law of the state in 1776. subjected those, who exported Virginian produce to Great Britain, Ireland, or the British W. Indies to certain penalties, unless such exportation was authorized by congress,10 and thereby plainly justified this assumption of power & that altho’ we ranked ourselves among the firmest friends of the Alliance and fixed enemies to the introduction of British manufactures we did not conceive, that we derogated from either that friendship or that enmity, by asserting the right of congress on this subject. I added in answer to the objection, which the treaty of commerce presented, that nothing more was intended by it, than to restrain a trade, carried on by individuals, not to abridge the prerogative of sovereignty. It was not in my province to refute those arguments, which were adduced against the passports, my office being merely to reply to questions. But for this cause, I really think, that I should have experienced very little difficulty in overcoming the opposition. I could not however avoid the mention, that our reputation was concerned in this business; as we had been the instruments of our country in the application to congress for the passports to Bermuda last year,11 and by this means had in a manner asserted the jurisdiction of congress in these cases. I urged the two Mr. Lees to attend to this, and at least to guard our feelings against the wound, to which the inclosed resolution exposes us. Nothing has, as yet, been done in this respect. It is impossible to say, what the fate of the act will be in the senate. But the name of Morris makes them forget the good[,] I fear, of the public[,] and common decency. There is more genius, and more industry, exerted in [an] able matter12 out of doors than so bad a pu[r]pose deserves. Strange, that a particular state should undertake to vindicate the treaty of commerce,13 in contradiction to an Act of congress,14 who alone can judge; and are by the confederation appointed to judge, what its proper construction ought to be.15 Still stranger is it, that our friend, the doctor, should have conceded so much authority to them on the discussion of the ordinance for regulating the post-office,16 and be now anxious to restrict them in a far more necessary point of jurisdiction.
The tax-law of the last session will be assaulted.17 Mr. Henry, who came down two or three days ago,18 is its enemy so far, as to wish to postpone the collection of the taxes in some counties, whose poverty he says, requires the measure. Six or seven petitions depend before the house to this effect. But the torrent of opinion runs strongly against the infraction of this salutary Act,19 and I am happy now to believe, that it runs equally strong against that weak succedaneum for specie, papermoney.20
The assembly avow themselves staunch to the alliance. The house of delegates yesterday passed adequate resolves, as I hear, against separate negotiation;21 and have appointed committees to prepare bills for the security of shipwrecked property, and in general for all those objects, recommended to them by congress with respect to the consular convention.22 Congress too do not appear unmindful of policy towards the french nation, & particularly towards the queen’s party, whose force will increase upon the birth of a dauphin.23
A practice has prevailed of meeting the public debtors, who were bringing specie into the treasury and giving them specie warrants. By this means public necessity has been often unsatisfied, while the officer of government has received his salary. To avoid a like impropriety of conduct in future, a bill is ordered to be prepared for the appropriation of the revenue, to the various uses, for which it was designed.24
As soon as the senate meets, a resolution will be passed for the nomination of persons to collect documents concerning western territory.25 A delicacy obtains in the mind of Mr. Henry, lest a rupture with congress should injure our more essential interests, and probably the repeal of the cession will be the extent of legislative proceeding at this day.26
I am convinced of the truth of Mr. Matlack’s observation, that no part of Mason’s & Dixon’s line was ex parte. But if this line be 232. miles, and some perches and twenty three miles be added for the tempor[ar]y line proposed, surely the five degrees of longitude, due to Pennsa. will be overrun nine or ten miles.27
I shall scarcely ever be able to give you foreign intelligence. You will expect domestic only. The above therefore being the history of this week’s proceedings of the assembly, I shall only repeat assurances of my friendship.
I shewed your favor of the 14th. May to Colo. Taylor,28 and shall reserve it for Mr. Jones, when he arrives.
Pray send me the journal of 1781.29
1. Randolph interlineated 22. 23. 24. above “May 21. 1782.”
2. See Virginia Delegates to Harrison, 8 January, n. 4; Randolph to JM, 16–17 May 1782, and n. 8. Randolph erred in stating that he had mentioned the resolution in his letter of 10 May. The law enacted by the General Assembly on 2 July 1782 for the seizure in Virginia of “all goods, wares or merchandize, of the growth, produce, or manufacture of Great-Britain, or of any territory depending thereon” made no exception to permit the importation of salt (, pp. 46, 86; , XI, 101–3). For the shortage of salt, see , III, 199–200; 207; 214; 222, n. 2. James Hunter, Jr., remarked in a letter of 27 July 1782 to Theodorick Bland: “I see much distress hanging over us this fall for want of the most necessary article, salt. I would wish you, therefore, and your friends in Congress, to take this matter into thought. The small quantity in hand is hoarded up to watch for an exorbitant price” (Charles Campbell, ed., Bland Papers, II, 87).
3. Later in this paragraph, and in the first paragraph of his letter to JM of 1 June 1782 (q.v.), Randolph makes clear that he enclosed the copy. It is in LC: Madison Papers, II, 28b. This protest by the House of Delegates on 20 May was neither endorsed by the Senate nor intended to serve as instructions to the delegates of Virginia in Congress. The five resolutions comprising the protest declared that “allowing British Traders Capitulants at York to export tobacco to the amount of Monies received for their goods” was unwarranted by the terms of the Articles of Capitulation of Yorktown, and was inconsistent with the request of Congress to have Virginia confiscate British imports, with her own laws forbidding trade with the enemy, and with the Treaty of Amity and Commerce with France. For these reasons, “the vessels now arrived in this state from New York … ought not be permitted to load.”
Having received an attested copy of these resolutions made by John Beckley, clerk of the House of Delegates, and forwarded probably by Daniel Clark, who was in Virginia as Morris’ agent (, III, 256, n. 6; , V, 448), the financier laid them before Congress. John Rutledge, chairman of a committee to which the protest was referred on 28 May, submitted an acceptable report on the next day. After expressing the opinion that the protest had been “founded on misapprehension,” Congress resolved “that the members who are to repair to Virginia, be instructed to make such representations to that State as may remove every obstacle to the execution” of the contract made by Charles Thomson and Robert Morris with the “British Traders Capitulant” (NA: PCC, No. 75, fols. 367–68; , XXII, 308, n. 1, 309–10). On 30 May Congress softened this instruction by adopting a motion, introduced by Abraham Clark and seconded by JM, authorizing the two delegates about to leave on their mission southward “to make such explanations to the legislature of Virginia as they shall deem expedient relative to the transaction which is the subject of the resolutions of the house of delegates of the said State” (, XXII, 311). See also Randolph to JM, 1 June 1782. For “the members who are to repair to Virginia,” see Report on Mission To Inform States of Financial Crisis, 22 May 1782, editorial note.
4. That is, the Articles of Confederation.
5. The October 1776 session of the Virginia General Assembly had enacted a law on this subject which, besides many other provisions, specifically banned trade in tobacco with the enemy (, IX, 162).
6. Since Article XIV of the Treaty of Amity and Commerce dealt with merchant ships of France or the United States trading in enemy ports rather than with enemy merchantmen trading in the ports of France or the United States, it was irrelevant to the agreement between agents of Congress and the merchants-capitulant of Yorktown. Randolph should have cited Articles XV and especially XVI of the treaty, providing for the seizure of prohibited goods, even though not contraband, on enemy ships loaded in a port of France or the United States (, XI, 430–33). In short, the treaty banned a traffic which Congress and the Virginia General Assembly had also prohibited. The controversy involved not only a conflict between states’ rights and confederation power but also between the terms of a treaty made by commissioners of Congress and the terms of an agreement, also ratified by Congress, made or endorsed by its appointees, including Washington, Morris, Charles Thomson, and Timothy Pickering, the quartermaster general.
7. JM had been a member of the committee which had prepared the resolution, adopted by Congress on 11 (not 13) February 1782, providing for carrying out the agreement mentioned in n. 6 (, XXII, 70–71). Although Randolph’s appearance before the House on 20 May is unrecorded in the minute book, it must have been near the end of the session of that day, when the matter was considered in committee of the whole (, p. 48).
8. Charles Thomson, in accord with the directive of 11 February (n. 7), had issued passports about 1 April 1782 to the masters of the British merchant ships at New York City, assuring them of safe conduct as flag-of-truce vessels to proceed to Virginian ports to load 685 hogsheads of tobacco consigned to the merchants-capitulant of Yorktown (Lee to JM, 16 May 1782, and n. 7).
9. The second of the Articles of Confederation reads: “Each State retains its sovereignty, freedom and independence, and every power, jurisdiction, and right, which is not by this confederation expressly delegated to the United States, in Congress assembled” (, IX, 908).
10. For this act, see , IX, 171.
12. Although Randolph wrote 34, the cipher for “matter,” he probably should have written 816. 731. 24, standing for “manner.” See Randolph to JM, 16–17 May 1782, and nn. 13 and 17.
13. See n. 6, above.
14. See n. 7, above.
15. The ninth of the Articles of Confederation conferred upon Congress “the sole and exclusive right and power” of “entering into treaties and alliances, provided that no treaty of commerce shall be made, whereby the legislative power of the respective states shall be restrained from … prohibiting the exportation or importation of any species of goods or commodities whatsoever.” The thirteenth of the Articles of Confederation declared that “Every State shall abide by the determinations of the United States, in Congress assembled, on all questions which, by this confederation, are submitted to them” (, IX, 915, 925).
16. The ninth of the Articles of Confederation granted to Congress complete authority to establish and regulate an interstate postal service and to determine the postage charges (, IX, 919). When Arthur Lee had “conceded so much authority” to Congress is unknown, but he may have done so on 11 March 1782 during the debate on a proposed ordinance designed to reform the postal service and to render it profitable by centralizing the control of its operation and personnel in the postmaster general of the United States (, XXII, 121–26).
17. See Harrison to Virginia Delegates, 11 January, and n. 4; Jameson to JM, ca. 12 January, n. 8; 23 February 1782, and n. 6. See also Charles Campbell, ed., Bland Papers, II, 81–82.
19. Contrary to Randolph’s expectation, the General Assembly on 1 July extended the due dates for paying taxes because of “the late cruel ravages of the enemy and destruction of private property, together with the great burthens already borne by the good people of this state” (, p. 85; , XI, 9–12, 66–71; Randolph to JM, 1 June, and 27–29 June 1782, n. 8).
20. See Randolph to JM, 5 May, n. 7. “Substitute” is an approximate equivalent of “succedaneum.”
21. See Virginia Delegates to Harrison, 14 May, n. 13; Lee to JM, 24 May 1782. Randolph underlined “staunch to the alliance,” but the phrase is not italicized here in order to keep it distinct from the italicized portions of the letter which he wrote in code. The House of Delegates adopted these “adequate resolves” on 24 May. Hence “yesterday” connotes that Randolph, in spite of his dating of the letter, wrote this paragraph on the 25th, or had been misinformed, or had misconstrued what he had heard (, p. 52).
22. For the law on this subject, enacted on 1 July, see ibid., p. 85; , XI, 51–54. See also Randolph to JM, 20 June 1782. Randolph had been the chairman of the committee to which Congress referred the recommendations from the court of Versailles of what the provisions of a consular convention might be (, III, 201, and n.; , XXI, 792–804; XXII, 17–26, 25–28 n.). On 9 January 1782, during the debate on the committee’s report, Congress agreed to request each state to establish “a speedy mode of administrating justice” between French subjects and American citizens, and to vest “persons in the neighbourhood of the seacoast with powers to secure shipwrecked property in the most effectual manner” (, XXII, 25). See also , XXII, 53; and , III, 214. The Virginia General Assembly in the session of May 1782 adopted “An act concerning wrecks” (, XI, 51–54), but if the legislators considered other matters pertinent to the proposed consular convention between the United States and France, they may have concluded that the statute of 24 December 1779 “for the protection and encouragement of the commerce of nations acknowledging the independence of the United States of America” covered the subject adequately (ibid., X, 202–3; , October 1779, p. 108).
23. See Report on Form of Public Audience for La Luzerne, 7–9 May, editorial note, and n. 7; Revised Reply of President of Congress to La Luzerne, 8–12 May 1782. Queen Marie Antoinette (1755–1793), a daughter of the Empress Maria Theresa and a sister of the Emperor Joseph II, had married the future King Louis XVI in 1770. The “queen’s party” favored Austria in foreign affairs and opposed all reforms of a liberal cast in France. The enthusiasm aroused by the long-awaited birth of an heir to the throne served momentarily to lessen the queen’s unpopularity (Louis Gottschalk, Lafayette and the Close of the American Revolution [Chicago, 1942], pp. 346, 348; Louis Gottschalk, Lafayette between the American and the French Revolution, pp. 153, 342).
24. For this law, designed in part to prevent treasury clerks and other minor officials, in a time of depreciating paper currency and rising prices of commodities, from profiting personally by trafficking in the specie and specifics received by the Commonwealth in payment of taxes and duties, see , XI, 12–14.
26. The May 1782 session of the General Assembly did not repeal the offer of cession made by the Assembly on 2 January 1781 (, II, 300, n. 2).
27. See Randolph to JM, 26 April 1782, and n. 2. Timothy Matlack was secretary of the Supreme Executive Council of Pennsylvania. Whether his “observation” was oral or written is not known, but it clearly was a rejoinder to Governor Harrison’s protest against beginning the survey of the boundary between Virginia and Pennsylvania from the western end of the Mason-Dixon line. In Harrison’s view the western portion of that line, having been run only by the surveyor appointed by Pennsylvania after the surveyor named by Maryland had suspended his work, perhaps deviated too far south. Hence to begin at its termination and proceed due west might result in giving land to Pennsylvania which rightfully belonged to Virginia.
28. Probably Colonel James Taylor (1732–1814) of Caroline County. He was in Richmond to represent his district in the state Senate (Louis A. Burgess, comp. and ed., Virginia Soldiers of 1776 [3 vols.; Richmond, 1927–29], I, 440; , p. 17).