1. Papers of Madison description begins William T. Hutchinson, William M. E. Rachal, et al., eds., The Papers of James Madison (6 vols. to date; Chicago, 1962——). description ends , IV, 148, n. 2.

2. Randolph’s letters of 22 February and 1 March do not mention Patrick Henry. Randolph, who was a correspondent of Henry, regretted that his influential friend had not been present in the October 1782 session of the Virginia General Assembly (Papers of Madison description begins William T. Hutchinson, William M. E. Rachal, et al., eds., The Papers of James Madison (6 vols. to date; Chicago, 1962——). description ends , V, 78; 79, n. 16; 217; 262; 282; 339; 340, n. 11; 453). Although Henry attended the May 1783 session, he did not effectively fulfill Randolph’s hopes (Randolph to JM, 21 June 1783, MS, Pennsylvania Historical and Museum Commission).

3. That is, with John Francis Mercer in Congress, there was no one to dispute the domination of the General Assembly by the Lees.

4. That is, as attorney general of Virginia. See Papers of Madison description begins William T. Hutchinson, William M. E. Rachal, et al., eds., The Papers of James Madison (6 vols. to date; Chicago, 1962——). description ends , IV, 160; 162, n. 8; V, 60; 62, n. 20; 308–9; Randolph to JM, 1 Feb., and n. 5; 29 Mar. 1783, and nn. 1, 3. Possibly among the “most capital” of John Randolph’s creditors, and certainly absent, was Arthur Lee (Moncure D. Conway, Edmund Randolph, p. 49).

5. JM to Randolph, 11 Feb., and n. 3; 18 Mar. 1783. A split in the manuscript at the fold obscures several of Randolph’s words. The expression “paltry pittances” is suggested by the few remaining vestiges of what he wrote.

6. Archibald Cary, speaker of the Senate, and John Tyler, Sr., speaker of the House of Delegates of the Virginia General Assembly. See Papers of Madison description begins William T. Hutchinson, William M. E. Rachal, et al., eds., The Papers of James Madison (6 vols. to date; Chicago, 1962——). description ends , III, 162, n. 3; IV, 30, n. 2.

7. Randolph implied that the subject of his paragraph had been suggested to him by a document lately received. Though this perhaps was Jefferson’s letter of 15 February (Boyd, Papers of Jefferson description begins Julian P. Boyd et al., eds., The Papers of Thomas Jefferson (18 vols. to date; Princeton, N.J., 1950——). description ends , VI, 246–49), it almost certainly was the copy by JM of his notes on Jefferson’s memorandum for Barbé-Marbois, which had reached Randolph in two installments not long before (JM to Randolph, 7 Jan., n. 10; 18 Feb., and n. 5; 25 Feb. 1783). Judging from JM’s surviving notes, a copy of them would hardly have stimulated the comments made by Randolph in the present paragraph; nor would the brevity of the notes have obliged JM to devote two occasions to the preparation of a copy of them. For these reasons JM’s existent notes probably are only the portion of a larger whole from which the first installment of the copy sent to Randolph was made. Reinforcing this inference is JM’s own statement in the autumn of 1782 that Jefferson’s memorandum was “voluminous” (Papers of Madison description begins William T. Hutchinson, William M. E. Rachal, et al., eds., The Papers of James Madison (6 vols. to date; Chicago, 1962——). description ends , V, 7–11; 331).

In Jefferson’s Notes on the State of Virginia, of which his memorandum for Marbois was a forerunner, the beginning pages of the chapter entitled “Constitution” treat of some of the charters of Virginia in a manner obviously reflected in the existing notes taken by JM on the memorandum. Following the references to charters, the remainder of the chapter describes the making of the Virginia Constitution of 1776 and above all criticizes some of its provisions and emphasizes the disregard of them by the public officials of the commonwealth during the war (William Peden, ed., Notes on the State of Virginia by Thomas Jefferson [Chapel Hill, N.C., 1955], pp. 110–29).

In his memorandum for Marbois, Jefferson almost surely summarized “the modes in which the Constitution was formed” and its shortcomings both in theory and in practice. Granting that the chapter entitled “Constitution” follows in general the arrangement of the portion of the memorandum on the same subject and that notes by JM on the memorandum were originally considerably longer than now exist, he logically would have devoted his second installment to Randolph to the subjects just mentioned.

That JM did so seems the more probable in view of the similarity between several of Randolph’s remarks in the present paragraph and those by Jefferson in his Notes on the State of Virginia. Jefferson commented that in the spring of 1776, “Independence, and the establishment of a new form of government, were not even yet the objects of the people at large.” At that time, since neither of these objectives had “been opened to the mass of the people,” the voters were “not thinking of independance and a permanent republic” when they elected delegates to the convention scheduled to meet in May. Hence the voters could not have vested the delegates with the power to make a constitution, could not have regarded the convention as of higher status than a legislature, and, consequently, must have viewed the constitution as equivalent only to a statute. During the Revolution, the Virginia General Assembly had frequently transgressed this statute and legally could have rescinded it altogether (Notes [Peden ed.], pp. 121–24). This disregard of the Constitution had been, Jefferson conceded, “with no ill intention. The views of the present members [of the omnipotent legislature] are perfectly upright. When they are led out of their regular province, it is by art in others, and inadvertence in themselves” (ibid., p. 120). Randolph’s remarks clearly express agreement with several of these observations and challenge the accuracy of others. See n. 8, below; also Boyd, Papers of Jefferson description begins Julian P. Boyd et al., eds., The Papers of Thomas Jefferson (18 vols. to date; Princeton, N.J., 1950——). description ends , VI, 278–80; JM to Randolph, 8 Apr. 1783, n. 10.

8. The tear in the manuscript, mentioned in n. 5, renders the phrase “equally interesting” only a probably correct decipherment of what Randolph wrote. The “notes” were for his brief as attorney general in the “Case of the Prisoners” (Caton v. Commonwealth), which JM had requested (Papers of Madison description begins William T. Hutchinson, William M. E. Rachal, et al., eds., The Papers of James Madison (6 vols. to date; Chicago, 1962——). description ends , V, 183–84; 184, n. 3; 217; 218, n. 9; 261; 263; 265, n. 7; 290; 382; 384, n. 4; 474; Randolph to JM, 15 Jan., and n. 6; 7 Feb. 1783, and n. 10). These “notes” in Randolph’s hand extend for twelve pages not counting one page bearing only JM’s docket, “Notes of Mr. Randolph on the case of Traytors pardoned by Resolve of House of Delegates” (LC: Madison Papers, Vol. 91). In view of this docket, which normally would follow the close of a document, the notes may be both the portion enclosed with the present letter and the “remainder” forwarded at an undetermined time later, even though Randolph’s argument appears to be incomplete. In JM’s letter of 18 March to Randolph (q.v.), receipt was acknowledged of the present letter and its enclosure, but neither man in his correspondence with the other during at least the next three months mentioned the “remainder.”

The notes of Randolph have a particular interest when taken together with his criticisms of Jefferson’s comments in the memorandum for Marbois. A main premise of Randolph’s argument in the “Case of the Prisoners” was that the Form of Government framed by the Virginia Convention of 1776 was a fundamental law or constitution, created to provide “public happiness” and “a touchstone” with which every statute of the General Assembly must conform. This constitution was formed by the representatives of the people, “the fountain of power,” and from “the mouth of every civilian do we hear a recurrence to first principles preached.” As for the nature of a constitution, continued Randolph, it is “A compact, in which the people themselves are the sole parties and which they alone can abrogate.… That we have a constitution in my sense of the word, will not, I presume, be controverted.” As pointed out in n. 7, Jefferson had controverted this view.

9. Q.v.