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To Thomas Jefferson from James Madison, 16 March 1784

From James Madison

Orange March 16. 1784

Dear Sir

Your favour of the 20. Ult. came duly to hand a few days ago. I cannot apprehend that any difficulties can ensue in Europe from the involuntary and immaterial delay of the ratification of the peace, or if there should, that any imputations can be devised which will not be repelled by the collective force of the reasons in the intended protest; some of which singly taken are unanswerable. As you no doubt had recourse to authorities which I have no opportunity of consulting, I probably err in supposing the right of the Sovereign to reject the act of his plenipotentiary to be more circumscribed than you lay it down. I recollect well that an implied condition is annexed by the usage of Nations to a Plenipotentiary commission, but should not have extended the implication beyond cases where some palpable and material default in the Minister could be alledged by the Sovereign. Waving some such plea, the language both of the Commission and of reason seems to fix on the latter as clear an engagement to fulfil his promise to ratify a treaty, as to fulfil the promises of a treaty which he has ratified. In both cases one would pronounce the obligation equally personal to the Sovereign, and a failure on his part without some absolving circumstance, equally a breach of faith. The project of affixing the Seal of the U. S. by 7 States to an Act which had been just admitted to require nine, must have stood self-condemned; and tho’ it might have produced a temporary deception abroad, must have been immediately detected at home, and have finally dishonored the fœderal Councils everywhere. The competency of 7 states to a Treaty of Peace has often been a subject of debate in Congress and has sometimes been admitted into their practice, at least so far as to issue fresh instructions. The reasoning employed in defence of the doctrine has been “that the cases which require 9 States, being exceptions to the general authority of 7 States ought to be taken strictly; that in the enumeration of the powers of Congress in the first clause of art. 9. of the Confederation, the power of entering into treaties and alliances is contradistinguished from that of determining on peace and war and even separated by the intervening power of sending and receiving ambassadors; that the excepting clause therefore in which ‘Treaties and Alliances’ ought to be taken in the same confined sense, and in which the power of determining on peace is omitted, cannot be extended by construction to the latter power; that under such a construction 5 States might continue a war which it required nine to commence, though where the object of the war has been obtained, a continuance must in every view be equipollent to a commencement of it; and that the very means provided for preserving a state of peace might thus become the means of preventing its restoration.” The answer to these arguments has been that the construction of the fœderal articles which they maintain is a nicety which reason disclaims, and that if it be dangerous on one side to leave it in the breast of 5 States to protract a war, it is equally necessary on the other to restrain 7 states from saddling the Union with any stipulations which they may please to interweave with a Treaty of peace. I was once led by this question to search the files of Congress for such lights as the history of the Confederation might furnish, and on a review now of my papers I find the evidence from that source to consist of the following circumstances: In Doctr. Franklin’s “Sketch of Articles of Confederation” laid before Congress on 21 day of July 1775. no number beyond a majority is required in any cases. In the plan reported to Congress by the Committee appointed 11. June 1776. the general enumeration of the powers of Congress in Art: 18. is expressed in a similar manner with the first clause in the present 9th art:, as are the exceptions in a subsequent clause of the 18 art: of the report, with the excepting clause as it now stands; and yet in the Margin of the Report and I believe in the same hand writing, there is a “Qu: If so large a majority is necessary in concluding a Treaty of Peace.” There are sundry other marginal queries in the report from the same pen. Hence it would seem that notwithstanding the preceding discrimination between the powers of “determining on peace” and “entering into Treaties” the latter was meant by the Committee to comprise the former. The next form in which the articles appear is a printed copy of the Report as it had been previously amended, with sundry amendments, erasures and notes on the printed copy itself in the hand of Mr. Thomson. In the printed text of this paper art: 14. the phraseology which defines the general powers of Congress is the same with that in art: 18 of the manuscript report. In the subsequent clause requiring nine States, the text as printed ran thus: “The United States in Congress assembled shall never engage in a war nor grant letters of marque and reprisal in time of peace, nor enter into any Treaties or alliances except for peace,” the words except for peace being erased, but sufficiently legible through the erasure. The fair inference from this passage seems to be 1. that without those words 9 States were held to be required for concluding peace, 2. that an attempt had been made to render 7 States competent to such an Act, which attempt must have succeeded either on a preceding discussion in Congress or in a Committee of the whole, or a special Committee, 3. that on fuller deliberation the power of making Treaties of peace was meant to be left on the same footing with that of making all other Treaties. The remaining papers on the files have no reference to this question. Another question which several times during my service in Congress exercised their deliberations was whether 7 States could revoke a Commission for a Treaty issued by nine States, at any time before the faith of the Confederacy should be pledged under it. In the instance of a proposition in 1781 to revoke a Commission which had been granted under peculiar circumstance in 1779 to J. Adams1 to form a treaty of Commerce with G. B. the competency of 7 States was resolved on (by 7 States indeed) and a revocation took place accordingly. It was however effected with much difficulty, and some members of the minority even contested the validity of the proceeding. My own opinion then was and still is that the proceeding was equally valid and expedient. The circumstances which had given birth to the commission had given place to others totally different; not a single step had been taken under the commission which could affect the honour or faith of the U. S. and it surely can never be said that either the letter or spirit of the Confederation requires the same majority to decline as to engage in foreign treaties. The safest method of guarding against the execution of those great powers after the circumstances which dictated them have changed is to limit their duration, trusting to renewals as they expire, if the original reasons continue. My experience of the uncertainty of getting an affirmative vote even of 7 States had determined me before I left Congress always to contend for such limitations.

I thought the sense of the term “appropriation” had been settled by the latter practice of Congress to be the same as you take it to be. I always understood that to be the true, the parliamentary and the only rational sense. If no distinction be admitted between the “appropriation of money to general uses” and “expenditures in detail” the Secretary of Congress could not buy quills or wafers without a vote of nine States entered on record, and the Secretary to the Committee of the States could not do it at all. In short unless one vote of appropriation can extend to a class2 of objects, there must be a physical impossibility of providing for them, and the extent and generality of such classes can only be determined by discretion and conveniency. It is observable that in the specification of the powers which require 9 States, the single technical word “appropriate” is retained. In the general recital which precedes, the word “apply” as well as “appropriate” is used. You were not mistaken in supposing I had in conversation restrained the authority of the fœderal Court to territorial disputes, but I was egregiously so in the opinion I had formed. Whence I got it I am utterly at a loss to account. It could not be from the Confederation itself for words could not be more explicit. I detected the error a few days ago in consulting the articles on another subject, and had noted it for my next letter to you. I am not sure that I comprehend your idea of a cession of the territory beyond the Kanhaway and on this side the Ohio. As all the soil2 of value has been granted out to individuals a cession in that view would be improper, and a cession of the jurisdiction2 to Congress can be proper only where the Country is vacant of settlers. I presume your meaning therefore to be no more than a separation of that country from this, and an incorporation of it into the Union; a work to which all three must be parties. I have no reason to believe there will be any repugnance on the part of Virga. The effort of Pena. for the western commerce does credit to her public Councils. The commercial genius of this State is too much in its infancy I fear to rival the example. Were this less the case, the confusion of its affairs must stifle all enterprize. I shall be better able however to judge of the practicability of your hint when I know more of them. The declension of George Town does not surprize me tho’ it gives me regret. If the competition should lie between Trenton and Philada. and depend on the vote of New York it is not difficult to foresee into which scale it will be thrown, nor the probable effect of such decision on our Southern hopes.—I have long regarded the Council as a grave of useful talents, as well as objectionable in point of expence. Yet I see not how such a reform as you suggest can be brought about. The Constitution, tho’ readily overleaped by the Legislature on the spur of an occasion, would probably be made a bar to such an innovation. It directs that 8 members be kept up, and requires the sanction of 4 to almost every act of the Governor. Is it not to be feared too, that these little meliorations of the Government may turn the edge of some of the arguments which ought to be laid to its root? I grow every day more and more solicitous to see this essential work begun. Every days delay settles the Government deeper into the habits of the people, and strengthens the prop which their acquiescence gives it. My field of observation is too small to warrant any conjecture of the public disposition towards the measure; but all with whom I converse lend a ready ear to it. Much will depend on the politics of Mr. H. which are wholly unknown to me. Should they be adverse, and G. M.3 not in the Assembly hazardous as delay is, the experiment must be put off to a more auspicious conjuncture.

The Charter granted in 1732 [1632] to Lord Baltimore makes, if I mistake not, the Southern Shore4 of the Potowmac the boundary of Maryland on that side. The constitution of Virginia cedes to that State “all the territories contained within its charter with all the rights of property, jurisdiction and Government and all other rights whatsoever,4 which might at any time have been claimed by Virginia, excepting only the free navigation and use4 of the Rivers Potowmac and Pokomaque &c.” Is it not to be apprehended that this language will be constructed into an entire relinquishment of the Jurisdiction of these rivers, and will not such a construction be fatal to our port regulations on that side and otherwise highly inconvenient? I was told on my journey along the Potowmac of several flagrant evasions which had been practised with impunity and success, by foreign vessels which had loaded at Alexandria. The jurisdiction of half the rivers ought to have been expressly reserved. The terms of the surrender are the more extraordinary, as the patents of the N. Neck place the whole river potowmac within the Government of Virginia; so that we were armed with a title both of prior and posterior date, to that of Maryland. What will be the best course to repair the error?—to extend our laws upon the River, making Maryland the plaintiff if she chooses to contest their authority—to state the case to her at once and propose a settlement by negociation—or to propose a mutual appointment of Commissioners for the general purpose of preserving a harmony and efficacy in the regulations on both sides. The last mode squares best with my present ideas. It can give no irritation to Maryld. It can weaken no plea of Virga. It will give Maryland an opportunity of stirring the question if she chooses, and will not be fruitless if Maryland should admit our jurisdiction. If I see the subject in its true light no time should be lost in fixing the interest of Virginia. The good humour into which the cession of the back lands must have put Maryland forms an apt crisis for any negociation which may be necessary. You will be able probably to look into her charter and her laws, and to collect the leading sentiments relative to the matter.

The winter has been so severe that I have never renewed my call on the library of Monticello, and the time is now drawing so near when I may pass for a while into a different scene, that I shall await at least the return to my studies. Mr. L. Grymes told me a few days ago that a few of your Books which had been borrowed by Mr. W. Maury, and ordered by him to be sent to his brother’s the clergyman, on their way to Monticello, were still at the place which Mr. M. removed from. I desired Mr. Grymes to send them to me instead of the Parson, supposing as the distance is less, the books will probably be sooner out of danger from accidents, and that a conveyance from hence will not be less convenient. I calculated also on the use of such of them as may fall within my plan. I lately got home the Trunk which contained my Buffon, but have barely entered upon him. My time begins already to be much less my own than during the winter blockade. I must leave to your discretion the occasional purchase of rare and valuable books, disregarding the risk of duplicates. You know tolerably well the objects of my curiosity. I will only particularize my wish of whatever may throw light on the general Constitution and droit public of the several confederacies which have existed. I observe in Boinauds Catalogue several pieces on the Duch, the German and the Helvetic. The operations of our own must render all such lights of consequence. Books on the Law of N. and N. [Nature and Nations] fall within a similar remark. The tracts of Bynkershoek which you mention I must trouble you to get for me and in french if to be had rather than latin. Should the body of his works come nearly as cheap, as these select publications perhaps it may [be] worth considering whether the whole would not be preferable. Is not Wolfius also worth having. I recollect to have seen at Pritchards a copy of Hawkin’s Abridgt. of Co: Litt: I would willingly take it if it be still there and you have an opportunity. A copy of Deane’s letters which were printed in New York and which I failed to get before I left Philada. I should also be glad of. I use this freedom in confidence that you will be equally free in consulting your own conveniency whenever I encroach upon it; I hope you will be so particularly in the request I have to add. One of my parents would be considerably gratified with a pair of good spectacles which can not be got here. The particular readiness of Dudley to serve you inclines me to think that an order from you would be well executed. Will You therefore be so good as to get from him one of his best pebble and double jointed pair, for the age of fifty five or thereabouts with a good case; and forward them by the first safe conveyance to me at Orange or at Richmond as the case may be. If I had thought of this matter before Mr. Maury set out, I might have lessened your trouble. It is not material whether I be repayed at the bank of Philada. or the Treasury of Virginia, but I beg it may be at neither till you are made secure by public remittances. It will be necessary at any rate for £20 or 30 [to] be left in your hands or in the bank for little expenditures which your kindness is likely to bring upon you.

The Executive of S. Carolina, as I am informed by the Attorney, have demanded of Virginia the surrender of a citizen of Virga. charged on the affidavit of Jonas Beard Esqr. whom the Executive of S. C. represent to be “a Justice of the peace, a member of the Legislature, and a valuable good man,” as follows: that “three days before the 25th. day of Octr. 1783 he (Mr. Beard) was violently assaulted” by G. H. during the sitting of the Court of General sessions, without any provocation thereto given, who beat him (Mr. B) with his fist and switch over the face head and mouth, from which beating he was obliged to keep his room until the said 25th. day of Octr. 1783. and call in the assistance of a physician.” Such is the case as collected by Mr. Randolph from the letter of the Executive of S. C. The questions which arise upon it are 1. Whether it be a charge of high misdemesnor within the meaning of the 4 art: of confederation. 2. Whether in expounding the terms high misdemesnor the Law of S. Carolina, or the British Law as in force in the U. S. before the Revolution, ought to be the Standard. 3. If it be not a casus fœderis what the law of Nations exacts of Virginia. 4. If the law of Nations contains no adequate provision for such occurrences, Whether the intimacy of the Union among the States, the relative position of some, and the common interest of all of them in guarding against impunity for offences which can be punished only by the jurisdiction within which they are committed, do not call for some supplemental regulations on this subject. Mr. R. thinks Virginia not bound to surrender the fugitive untill she be convinced of the fact by more substantial information, and of its amounting to a high misdemesnor, by inspection of the law of S. C. which, and not the British law, ought to be the criterion. His reasons are too long to be rehearsed.

I know not my dear Sir what to reply to the affectionate invitation which closes your letter. I subscribe to the justness of your general reflections. I feel the attractions of the particular situation you point out to me; I can not altogether renounce the prospect; still less can I as yet embrace it. It is far from being improbable that a few years more may prepare me for giving such a destiny to my future life; in which case the same or some equally convenient spot may be commanded by a little augmentation of price. But wherever my final lot may fix me be assured that I shall ever remain with the sincerest affection & esteem Yr. friend and servant,

J. Madison Jr.

RC (DLC: Madison Papers); endorsed; a number of words and phrases were deleted and others substituted by interlineation, some of them perhaps many years later when Madison received the letters he had written to TJ (see notes below).

Madison probably did not know that TJ himself was the author of the provisions in the Virginia Constitution of 1776 which confirmed the territories and jurisdiction granted by charter to Maryland, Pennsylvania, and North and South Carolina, except for the reservation of navigation rights (see Vol. 1: 383, 385, note 19). These terms of the surrender (an “error” as Madison regarded them) were ultimately confirmed by arbitration and approved by Congress a century later when the Maryland-Virginia boundary in the Potomac was fixed at the south or right bank at low water; the grant to Baltimore included the Potomac river to high water on the south shore, but the United States Supreme Court in Maryland v. West Virginia, 217 U.S. 577–80, found that “the evidence is sufficient to show that Virginia, from the earliest period of her history, used the South bank of the Potomac as if the soil to low water mark had been her own.” See TJ to Madison, 25 Apr. 1784, and also Paullin, Atlas of the Historical Geography of the United States, Plate 100 D. An immediate result of Madison’s concern was a Virginia-Maryland conference at Mount Vernon in 1785 which, in turn, led to the Annapolis Convention of 1786 (Washington, Writings, ed. Fitzpatrick, xxvii, 375; Brant, Madison, ii, 375ff.). I am informed by the attorney: On 27 Jan. 1784 Randolph wrote to Madison enclosing the ten-page rough draft of his letter of 21 Jan. to Gov. Harrison concerning the Hancock case; Brant, Madison, ii, 453, note 11, is mistaken in supposing the first of these letters to be lost, for both are in DLC: Madison Papers. That letter was not, as Mr. Brant also supposed, similar to the one written by Randolph to TJ on 30 Jan. 1784; for, having enclosed his long opinion on the case, Randolph only needed to remark in his letter of 27 Jan. to Madison that he was transmitting a paper “sent to the governor.” The “extraordinary letter … from the Governor of South Carolina” demanding that Hancock be surrendered for trial was turned over to Randolph on 17 Jan. 1784. He recognized at once that the case involved “a question of delicacy and danger. If it be unduly refused, it may produce a rupture of fœderal harmony; if unduly gratified, it will furnish cause for the most bitter complaint against that authority, which shall transport a citizen to a foreign tribunal, for trial on a penal accusation‥‥ The demanded citizen himself, who has mixed his fortunes with those of the commonwealth, may well ask in what page of the social compact it is found, that protection can be withdrawn from him, before the proper jurisdiction, within the commonwealth, shall determine that he has forfeited his claim thereto”; but Randolph finally concluded that the “intelligence transmitted by the Governor of South Carolina either in point of fact or law, does not warrant delivery of George Hancock.” Madison thought that fugitives from justice should be surrendered in all but a few cases, but Gov. Harrison informed Gov. Guerard that he considered Hancock’s crime as “nothing more than a common assault and … by complying with the demand to deliver up the body of a citizen on such grounds and for such an offense without his ever being heard would be betraying the trust reposed in me of governing the state by its laws and supporting the individuals of it in their just rights and liberties.” He added, however: “I would not be understood to mean, that the confederation is not a part of the law of the land. I only differ with your excellency on the construction of it, and the manner of fixing guilt on a criminal before such a violence is committed on the common rights of mankind as the seizing a person and sending him in an ignominious manner to another country to be tried would be” (Randolph to Harrison, 21 Jan. 1784; Madison to Randolph, 10 Mch. 1784, both in DLC: Madison Papers; Harrison to Guerard, 16 Feb. 1784, Executive Letter Book, Vi). But Harrison was far more troubled by the difficulty of the case than he admitted to Guerard, and when the General Assembly met in May, he requested that a law be enacted to direct the method of complying with the terms of Article iv of the Confederation. “Happily,” he concluded, “his [Hancock’s] offense was not of such a nature as to come either within the meaning or intention of the Confederation. If it had been otherwise I should have found myself in difficulties and embarrassments which the legislature could only free me from” (Harrison to Speaker of the House, 3 May 1784, Executive Letter Book, Vi). As a result, Bill No. 59 of the Revisal of the Laws was adopted, with amendments (Hening, xi, 408–10; see Vol. 1: 481–5, especially notes 12 and 13).

1All italicized words preceding this point were underscored in MS, but this and subsequent words in italics were (except as noted below) written in code and decoded interlineally by Madison late in life. TJ no doubt decoded these passages on a separate (and missing) paper as was sometimes his custom. The editors have verified Madison’s decoding, employing Code No. 3.

2This word was not written in code and was underlined in MS.

3Madison completed the initials by interlineation, making them read “Henry … and G. Mason”; this, of course, was done late in life.

4These words were not written in code and were underlined in MS.

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