To James Madison from Edmund Randolph, 23 August 1783
From Edmund Randolph
RC (LC: Madison Papers). Unsigned, but in Randolph’s hand. Cover addressed to “The honorable James Madison jr esq. of congress now in Philadelphia.” Docketed by JM, “August 23. 1783.”
Richmond1 August 23. 1783.
My dear friend.
My trip to Baltimore, from which I returned last sunday, has occasioned the chasm in my correspondence.2
Mr. Nathan met me according to appointment, with an elaborate argument, prepared on paper by Mr. Sargent. In this he pressed the decision of the former arbitrators,3 first as conclusive, and afterwards, at least as a reasonable guide for the judgment of the Maryland referees.4 These topics not being received with much countenance, he insisted upon the efficacy of the bills as draughts for specie—upon the obligation, arising from the assumpsit—and upon the obligation arising from the delay in renouncing that assumpsit.5 But before we had proceeded further in the inquiry, the arbitrators asked Mr. Nathan and myself for some evidence of the currency of Virginia bills at New Orleans.6 Neither being able to produce it, and the hurry of their own business not suffering them to spend as much time in the discussion as might be necessary, they declined all further interference at present; fixing the third tuesday in december for the resumption of the affair at Alexandria.7
The effect of the assumpsit and the subsequent delay are indeed thorns in the path. But if right could be made to prevail, I should expect Nathan’s condemnation This however is hardly to be hoped: and Virginia will probably receive no other satisfaction from my trips to Alexandria and Baltimore, than to learn that a Jew merchant, unconnected with America, took up bills on Virginia from pure magnanimity, or affection for her.8
The governor’s proclamation, expelling the obnoxious adherents to british interest, continues to give great disquiet to the friends of those, who fall within that description.9 Mr. Jefferson has taken Dr. Turpin by the hand, and in a long letter to him attempted to shew, that his case belongs not to the offensive class. The Dr: went to Scotland in his infancy for his education. He was surprized there by the American war, with his studies incomplete. He made various attempts to return to Virginia; but being disappointed in his efforts for this purpose, and unable as he says to support himself by other means, he entered as surgeon on board of a british ship of war. While in the service he was captured at York. From these facts, tenderness is due to Turpin. But I cannot admit, that the necessities of that gentleman would protect him from the operation of the law as it now stands; because they do not seem to have been incapable of being supplied thro channels, which were not hostile. Mr. J. doubts whether surgeons ought to be ranked among the instruments of hostility, and refers to a proposition from Carlton to consider them as exempt from the rights of war.10 But I believe, that he might find more examples than one of a surgeon being executed for treason in joining the king’s enemies.11
1. In the Virginia Gazette of 6 September 1783, Randolph, after stating that he planned to move to Richmond, advertised for sale his property of 470 acres located on the Brook road about six miles from that town. He added that the approximately 80,000 “corn hills” on the two hundred acres of cleared land “will soon be in wheat.” This was the estate known as Pettus’s, which Randolph, having for a time rented, later bought from Dabney Pettus (, IV, 148, n. 2).
3. For Simon Nathan, Jonathan Dickinson Sergeant, and the long background of Nathan’s claim against the state of Virginia, see , III, 20; 21, n. 2; 22, nn. 3, 4; also the other citations under Nathan in the index of that volume, and the indexes of volumes V and VI. For the “appointment” in Baltimore and the reason for Randolph’s trip there, see Jones to JM, 21 June, nn. 12, 23; Randolph to JM, 28 June, and nn. 7, 8; JM to Randolph, 8 July 1783, and n. 5; , III, 282; , VI, 319–21.
4. The names of the “Maryland referees” of the arbitration scheduled to begin on 10 August are unknown. On 9 July Daniel Dulany (1722–1797) of Annapolis had been requested to represent Virginia, but receiving no reply from him, the governor and Council on 24 July “authorized and empowered” Randolph himself “to nominate and appoint” an arbitrator for the state (, III, 275; Executive Letter Book, 1783–1786, pp. 171, 179–80, MS in Va. State Library).
5. The matter at issue, involving many thousands of dollars. was whether some of the bills of exchange drawn against Virginia. which Nathan apparently had bought for specie either in Havana or from Oliver Pollock in New Orleans in 1779 and 1780, were for amounts in depreciated currency or in “hard money.” For Pollock, see , III, 99, n. 1; 256, n. 6; 344, n. 2; IV, 377–78; V, 208, n. 5; VI, 439; 474; 475, nn. 4, 5; 476, nn. 6, 7; 502; Delegates to Gálvez, 4 May, and nn. 2, 3; JM to Jefferson, 20 May, n. 4; Jones to JM, 14 June 1783, n. 28.
Thomas Jefferson, when governor of Virginia. and the Council of State had accepted the sums mentioned on the bills as being a public debt to be paid in specie or its equivalent in tobacco. This, in the terminology of 1783, was an assumpsit, or “contract not under seal,” which, if unfulfilled within the time specified on the bills, made at least a private debtor subject to suit for breach of contract (an action in assumpsit) by the creditor. At the close of 1780, having been assured that in 1779 Virginia paper money was heavily discounted in terms of specie in the district of Kentucky, the Illinois country, and the lower Mississippi Valley, and hence that Pollock had listed most if not all of his charges for goods in depreciated currency, Jefferson, the Council of State, and soon the Virginia General Assembly joined “in renouncing that assumpsit.” Jefferson wrote on 1 January 1781, “as our Assumpsit was on Mr. Nathans own Word we do not think that any Error into which we have been led by want of Information or Misinformation can in Equity be irrevocable” (, III, 315, 320, 322–33; IV, 283).
6. That is, whether Virginia paper money had been current in New Orleans and, if so, at what varying rates of depreciation on the dates of Pollock’s bills.
7. Randolph used “interference” in the sense of intervention or arbitration between two or more parties in conflict. The “third tuesday in december” was 16 December 1783. Randolph’s written report of the meeting at Baltimore, including the decision to resume the conference in December, was approved by Governor Harrison and the Council of State on 22 October. Two days earlier, with his message to the Virginia General Assembly, Harrison had enclosed Randolph’s report and Nathan’s request “that funds may be provided to discharge what may be awarded him” in December (, III, 298; Executive Letter Book, 1783–1786, pp. 221–22, MS in Va. State Library). Upon being laid before the House of Delegates on 4 November, the first day a quorum assembled, these papers were referred to the committee of the whole on the state of the commonwealth (, Oct. 1783, p. 7). This committee presented no report on the subject during the rest of the session. In June 1784 Randolph reported to the Virginia House of Delegates that “accident” had prevented the arbitration in December 1783 (, May 1784, pp. 56–57).
8. Randolph meant that when Nathan purchased the controversial bills of exchange he was a Spanish subject living in Havana rather than a resident of Philadelphia (, III, 320).
9. Randolph to JM, 12 July, and n. 2; 18 July, and n. 5; Jones to JM, 21 July 1783, and n. 6.
10. Ibid., n. 6. Perhaps Randolph had been furnished by Jefferson with a copy of his long letter of 29 July to Philip Turpin, or Turpin had shown the letter to Randolph (, VI, 324–33, and esp. p. 328). For General Sir Guy Carleton’s letter of 7 July 1782 to Washington, and the latter’s reply on 18 August 1782, see , V, 42–43; , XXV, 26, 38, 196.
11. Treason had been defined by the Virginia General Assembly as levying “war against this commonwealth in the same,” or as adhering “to the enemies of the commonwealth within the same, giving to them aid and comfort in the commonwealth or elsewhere.” The accused person, if “legally convicted of open deed by the evidence of two sufficient and lawful witnesses, or their [his] own voluntary confession,” was sentenced to “death without benefit of clergy,” and would “forfeit his lands and chattels to the commonwealth, saving to the widows of such offenders their dower in the lands.” Pardon of the traitor could be extended only by the General Assembly (, IX, 168). This law, which did not except surgeons from its provisions, clearly made Dr. Philip Turpin subject to trial for treason. He had been born in Virginia and served as a surgeon with the British in that state during its invasion by Cornwallis’ army (Randolph to JM, 18 July 1783, n. 6).
Randolph’s surmise was correct. With sufficient data available, he might from many “examples” have noted that of Dr. Archibald Campbell (1707–1753), attainted for participation in the Jacobite uprising in Scotland in 1745. Eventually captured, the doctor was tried, sentenced, and executed, despite the fact that he had ministered to the needs of “several of the king’s troops that fell wounded” (T[homas] B[ayly] Howell, comp., A Complete Collection of State Trials and Proceedings for High Treason and Misdemeanors … [34 vols.; London, 1816–28], XIX, cols. 733–46). Another proscribed participant in the rebellion, young Dr. Hugh Mercer (ca. 1725–1777), escaped to America, settled at Fredericksburg, Va., and died from wounds received at Princeton while leading a brigade of “the king’s enemies” (Joseph M. Waterman, With Sword and Lancet: The Life of General Hugh Mercer [Richmond, 1941]).