Editorial Note

The eleventh article of Virginia’s Form of Government (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, 116) provided for a Privy Council, or Council of State, of eight members to be chosen by the legislature. Every three years the two houses of the legislature, by joint ballot, removed two of the councilors and thereupon, by the same method, chose two persons in their stead. The two thus displaced must wait at least three years to be eligible for re-election to the council. The president of the Privy Council, chosen annually by its membership, was also the lieutenant governor of the commonwealth. Official action by the council required at least four members to be present at its session. A lesser number sometimes met to discuss public business, but, in order to become effective, decisions had to be approved at the first subsequent meeting when a quorum was present.

From the minutes taken by the clerk at each session and signed by each councilor who was present, the clerk then prepared the finished journal and appended the signatures to it in his own hand. JM’s attendance is therefore a matter of record. The journal also notes when a councilor was in Williamsburg but could not come to a meeting by reason of illness or other cause. On the other hand, the loss of the minutes for the period between 6 April 1779 and 12 May 1780 makes JM’s final eight months of service as a councilor almost a blank. In 1779, however, he probably followed his custom of spending the “sickly season,” from about mid-July to early November, at Montpelier.

Neither the council nor the governor had any significant constitutional authority except when they worked together. According to the Form of Government (Art. 9), the governor should “with the advice of a Council of State, exercise the executive powers of government according to the laws of this commonwealth; and shall not, under any pretence, exercise any power or prerogative by virtue of any law, statute, or custom, of England.” More specifically, the constitution enabled the governor, on advice of council, to grant reprieves and pardons in most instances; to “embody” and direct the militia, and commission or suspend its officers; to name ad interim administrative and judicial officials, when the legislature was not in session; and to appoint justices of the peace, sheriffs, and coroners upon nomination by the court of the county in which they were to serve (ibid., IX, 115–19).

Although these were the only definite duties assigned by the constitution to the governor acting in conjunction with the Council of State, the legislature delegated many special powers to them, both before and while JM was a councilor. These added responsibilities, which were often of an emergency nature occasioned by the Revolution, included a great extension of the powers to appoint state employees; to issue financial warrants; to direct recruiting, training, equipping, provisioning, and utilization of troops and seamen; to erect fortifications, barracks, and military hospitals; to apprehend traitors and take their forfeited property into custody; to suppress domestic insurrections, Indian uprisings, counterfeiting, and the engrossment of essential war commodities; to prevent the exportation of foods and other articles needed by the troops; to maintain fair prices; and to supervise the commonwealth’s lead mines, land office, and navy (ibid., IX, 178–592; X, 15–217, passim).

In view of this impressive variety of important duties, membership on the council was no sinecure. Reflecting the rapid inflation, the total salary which the eight members were to divide annually among themselves, in proportion to the frequency with which each of them appeared at the council meetings, rose from £2,400 to £20,000 (ibid., IX, 435, 521; X, 118, 219). JM took his seat at the council table on 14 January 1778. He had been chosen by the members of the General Assembly on 12 November 1777, when sixty-one votes were cast for him against forty-two others given in favor of his closest competitor, Meriwether Smith. Three days later the Senate confirmed the outcome of this joint ballot (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 1777–1781 are brought together in one volume, with each journal published in Richmond in 1827 or 1828, and often called the “Thomas W. White reprint.” description ends , October 1777, pp. 25, 29; Brant, Madison description begins Irving Brant, James Madison (6 vols.; Indianapolis and New York, 1941–61). description ends , I, 313–15). The seat to which JM was elected had been vacant for nearly five months. The extant minutes of the council bear witness that JM attended 177 of its sessions. Of these, 170 date in 1778, while the remaining 7 are the only ones during the next year of which any official record survives. With the exception of a week’s illness in May and one day in June, he shared in every session of the council from 14 January to 13 July 1778. Thereafter, until 7 November of that year, he was at Montpelier. Loss of the minutes leaves in doubt the day of his final service as a councilor. In all likelihood it was shortly after 14 December 1779 when the legislature chose him to go to the Continental Congress as one of the delegates from Virginia. (See Credentials as a Delegate to Continental Congress, 14 December 1779, and JM to Benjamin Harrison, 16 [December] 1779.)

Although two letters of Edward Coles, written some thirty years after Jefferson’s death, state that Jefferson had told him of JM’s service to Governor Patrick Henry as an amanuensis and as the only member of Virginia’s executive branch who understood French, this recollection is too general and was recorded too long after the alleged facts to be relied upon in the absence of contemporary evidence (Edward Coles to Hugh B. Grigsby, 23 December 1854, Virginia Historical Society; Edward Coles to William C. Rives, 26 March 1858, LC: William C. Rives Papers). In no instance, insofar as any contemporary manuscript is concerned, can JM’s service as a councilor be isolated from that of his fellow members. For this reason, the editors have limited their publication of the council minutes, and of letters from the Governor in Council, to samples illustrative of its problems and procedures on days when JM was in attendance and hence presumably contributed his advice. An edition of the Journals of the Council of the State of Virginia, for the period of JM’s service, was carefully edited by H. R. McIlwaine and published by the Virginia State Library at Richmond in 1932.