To James Madison from Edmund Pendleton, 26 May 1783
From Edmund Pendleton
Tr (LC: Force Transcripts). In the left margin at the top of the transcription, Peter Force’s clerk wrote “MSS. [M]c. Guire’s.” See , I, xxii, xxiii. Addressed to “The Honble James Madison, Esq Philadelphia.”
Edmundsbury, May 26th. 1783
My Dear Sir
I am just returned from Richmond much fatigued by the Courts, which for the first time have found full emploiment for their whole terms.1 The manner of doing business, hearing causes in Court for 6 hours, & employing the mornings & evenings in dijesting & settling Opinions, however proper and necessary to be observed in Courts which are, or nearly approach to, the de[r]nier resort of Justice, are a heavy tax upon my advanced age; howe[ve]r when I find it insupportable, I must quit the Office, as I can’t think of relaxing in the other point.2
I am to thank you for your favr of the 13th and for the Pamphlet inclosed,3 which I read over, tho’ for want of time, not with the Attention I wish to give it, & then delivered it to Mr Jones who was before at Richmond.4 Our debt indeed is heavy, & added to our own peculiar demands, will require taxes difficult to be paid; however a radical System, well dejested & strictly pursued; and the practice of Industry & Oconomy, (which so far from being an evil, may produce the greatest good, if it prevents our return to that Indolence & extravagance that was Our Character formerly) will carry us thro’ it in a reasonable time. I am told the 5 pct & other impost, tho’ warmly opposed, will be granted, tho’ perhaps with some modulation wch may not affect the genl principle, particularly to direct the portions allotted annually to our Citizens to be paid them here, to save the carriage & recarriage of the money, & avoid another inconvenience of drawing such quantities of Specie from all the States, to circulate only in the Vortex of Phila. or what other place Congress may sit in. This last seems to be made a great objection, & on that ground some Gentln seem to wish that besides what may be due to our Citizens, we might be allowed to pay good Bills of Exchange to answer our proportion of foreign remittances & prevent the drain of our Specie—however nothing is yet determined on in this business, which the House of Delegates have not taken up.5 Besides repealing the laws which prevented the importation or consumption of British goods (at length passed by the Senate with a clause to make it retro-active from the day it pass’d the other House)6 they have been emploied in a new tobacco Law,7 in a new regulation of Salaries in the civil department, and in Suspending the payment of taxes ’til December next.8 The ground of this last is the short crop, & present unsettled State of trade, which I am satisfied would have made the collection of the whole alarmingly distressing, if not wholly impossible; but I am not so,9 that part of it might not have been received without any great inconvenience, and am certain that Procrastination, by which increased accumulation of Payments are made necessary, is very hurtful to public as well10 as private Debtors; not to take notice of the embarrassment wch may be thrown upon the general System by the delay, perhaps when they have the recommendations of Congress under deliberation, they may find it necessary to revive the collection of part of the taxes, which, as mentd before, I think the true Interest of the people.11 I had almost forgot to mention that they have made their Members again ineligible to Congress.12 A Letter from the Governor will bring on another great constitutional question, the end & consequences of which cant be foreseen. An Act of Assembly has authorised the Executive Upon complaints against County Majistrates to hear them, and if they think it just to remove from office the person complained of. Such a complaint in writing being lodged with the Governor, he laid it before the Council, & proposed the party should be summon’d to answer, & a day fix’d for the hearing, four of the Council determined, & it is so entered in their journal, but the law was against the principles of the Constitution, the general tenor of the Laws, and the liberty of the Citizens, and therefore they would not Execute it. The Govr having several times in vain endeavour’d by remonstrance, to procure a change in their Opinion, at length sent a Copy of the Articles exhibited and of their order, to the House of Delegates, who have not yet discuss’d them; & when they have done so, I do not see how they can mend it, and remove the Objection to their power, which is not increased since they gave force to the former Law, if the Legislature can to any on the Subject. If this branch of the Executive may dispute the force of the law on this ground, it would seem to run thro the whole department, since no line is drawn, to limit the power of Judging on the Subject; a constable may therefore refuse to obey & Execute his Warrant on the same pretence, and so the legislature are at once made subject to the control of the Executive, a Position which I believe is not Supportable by any thing wch can be drawn from the constitution, Law, or the principles of liberty.13
Some Gentn have received wth. great pleasure the Account of Sr Guy Carleton’s tergivisatious conduct respecting the restitution of Our slaves, considering it as a proper excuse for not paying British debts, which, they say, may now Consistent with good faith, be set off against each other, as they ought to have been by the Treaty. This however is at present only common tab[l]e talk, & hath not yet reach’d the Assembly, nor will it be canvassed there, I suppose, until they have the definitive Treaty.14 Mr Jones is better after his journey, than he expected to be.15 I am
Dr Sr Yr mo. affe. & obt. Servt
Edmd Pendleton
1. , VI, 500; Pendleton to JM, 4 May 1783, n. 1. See also , V, 220, n. 6. By law the number of days the High Court of Chancery might sit was limited to eighteen in May and eighteen in November, annually; but the sessions could not begin until “business depending before” the Court of Appeals, which convened late each April and October, was completed (, IX, 390; X, 89–90, 455). Pendleton was a judge on both tribunals.
2. Pendleton would be sixty-two years of age on 9 September 1783. Upon the reorganization of the judicial system of Virginia, he resigned on 2 March 1789 as senior judge of the High Court of Chancery to accept election by the General Assembly as a judge of the reconstituted Court of Appeals, the supreme tribunal of Virginia. He served on the bench of this court until his death on 26 October 1803 (David J. Mays, Edmund Pendleton, I, 6; II, 274, 345).
3. The “Pamphlet inclosed” in the missing letter of 13 May from JM was undoubtedly a copy of the one mentioned by him in his letter of that day to Jefferson (q.v., and n. 11).
4. Jones to JM, 25 May 1783, and n. 2.
5. By “5 pct & other impost,” Pendleton almost certainly referred not to the original impost amendment of 3 February 1781 but only to the impost provisions of the plan for restoring public credit, adopted by Congress on 18 April 1783. Those provisions modified and in effect superseded the earlier proposed amendment, for they specified varying ad valorem duties on wines, liquors, teas, coffee, cocoa, pepper, sugars, and molasses, as well as “a duty of five per cent. ad valorem” on “all other goods” (, XIX, 112–13; XXIV, 257). The “plan” probably presumed, although it did not explicitly stipulate, that the money derived from the tariffs would be sent to the Philadelphia “Vortex.” Pendleton’s dislike of any arrangement which depleted Virginia’s meager supply of specie had been often manifested. See , IV, 50; 151–52; 277; 346–47; V, 110; VI, 344.
In mentioning “recarriage,” Pendleton referred to the third paragraph of the plan for restoring public credit, wherein it was provided that when “the revenues established by any State shall at any time yield a sum exceeding its actual proportion, the excess shall be refunded to it” (, XXIV, 258). The “foreign remittances” by Congress would be to pay the interest on, or the principal of, loans from Louis XVI and Dutch bankers as well as the cost of maintaining American diplomatic and consular officials overseas. Foreign consignees of Virginia’s exports, including possibly the tobacco and other “commutables” received in payment of state taxes, paid for them in bills of exchange or in European wares purchased by the Virginia exporters.
6. Ambler to JM, 3 May, n. 5; Randolph to JM, 9 May 1783, and n. 14.
7. On 13 May the House of Delegates appointed a committee to prepare a bill “to amend and reduce the several acts of Assembly, for the inspection of tobacco, into one act.” The measure, which the committee submitted on 21 May, was debated for the first time on 27 May. The lengthy bill was not enacted into law until 28 June 1783 (, May 1783, pp. 6, 14, 16, 18, 23, 98; , XI, 205–46).
8. Randolph to JM, 24 May, and nn. 3, 7; Jones to JM, 25 May 1783, and n. 7.
9. After “so,” Pendleton may have intended to write, or Peter Force’s clerk neglected to copy, “satisfied,” “sure,” or another word of similar import.
10. Either Pendleton in his letter or the clerk in his transcription inadvertently repeated “as well.”
11. Three tax bills were introduced in the House of Delegates during the session of May 1783, but only one of them became a law. On 18 June a committee reported a measure “to ascertain certain duties and imposts, and to establish adequate funds for the discharge of this State’s quota of the principal and interest of the debt of the United States.” Eight days later the House adopted this proposal, but it was not acted upon by the Senate (, May 1783, pp. 63, 65, 70, 82, 84–85, 86). On 27 June the House voted to hold over until the autumn session a bill introduced the preceding day “to levy certain duties for the use of Congress” (ibid., May 1783, pp. 86, 93). On 28 June the General Assembly enacted a statute “to amend the act for appropriating the public revenue.” This measure, which was introduced two days earlier in fulfillment of a resolution adopted on 11 June, was adopted by the House of Delegates on 27 June and by the Senate the next day (ibid., May 1783, pp. 48–49, 68, 70, 87, 88, 90, 93, 96, 99). This law stipulated that a part of the proceeds from the tax on land “shall be applied to the use of congress, towards paying this state’s quota of the interest of the debt due by the United States”; and that a part of the proceeds from the tax on slaves “shall be applied towards making good to congress any deficiency which may arise in this state’s quota of interest due on the debts of the United States, so as to make good to congress the annual sum of four hundred thousand dollars” (, XI, 247–48). These sources, however, would provide no income until late in 1783 at the earliest, for the same session suspended the collection of taxes until 20 November in that year (Randolph to JM, 9 May 1783, and n. 4).
On 10 September 1782 Congress had asked Virginia to furnish $174,000 as its share of “the interest of the domestic debt.” On 18 October of that year, Congress requisitioned Virginia for $290,000 “for the service of the year 1783” (, XXIII, 564, 571, 666). If the General Assembly replaced the latter sum with the $256,487 allotted to Virginia in the plan for restoring public credit (, XXIV, 259), the total of that amount and the $174,000 would still be over $400,000. Robert Morris, superintendent of finance, reported to Congress that between 1 December 1782 and 30 June 1783 Virginia forwarded, omitting fractions of dollars, $104,403. Between 1 July and the close of 1783 the state paid an additional $68,444 (NA: PCC, No. 137, II, 757–61; , 4 Jan., 8 Feb., 5 Apr., 7 June, 5 July, 2 Aug., 6 Sept., 4 Oct., 1 Nov., and 6 Dec. 1783; 3 Jan. 1784). The sources of revenue enabling Virginia to make these payments seem mainly to have been the sale of tobacco and hemp received in payment of taxes in 1782 and the surplus in the fund hitherto used to meet the expense of recruiting soldiers. For that fund, see , VI, 280, n. 7; 282, n. 3; 303, n. 4; 439. Morris also agreed that Virginia should count as a part of its requisitioned quota the money spent to subsist continental troops of the state upon their return from the southern army (, III, 195, 199, 200; , III, 415, 510; , May 1783, p. 40; Ambler to JM, 1 June 1783).
12. Randolph to JM, 15 May 1783, and n. 8.
13. , VI, 346–47; 347, n. 5. On 20 February 1783 at a meeting of the Virginia Executive, the four privy councilors who attended, including John Marshall, differed from Governor Harrison by holding that the statute of 2 December 1778 delegating to the Executive the power, after a conclusive hearing, to remove a justice of peace for “misconduct, neglect of duty, or malpractices” violated the Form of Government by unconstitutionally delegating judicial power to the Executive (, IX, 478; , III, 221–22). Instead of “but” after “journal,” Pendleton probably wrote “that.” On 21 and 26 May 1783 the governor and dissident privy councilors, respectively, submitted their contrasting views to the House of Delegates. Although the documents were referred to the committee of the whole house on the state of the commonwealth, it cannot be demonstrated that the matter was discussed therein (, May 1783, pp. 14, 22; Pendleton to JM, 2 June 1783). Pendleton appears to have agreed with the governor.
14. , VI, 422; Walke to Delegates, 3 May, and nn. 2, 3, 5–7; JM to Randolph, 6 May, n. 6; 13 May; JM Notes, 8 May; 26 May, and n. 1; Harrison to Delegates, 9 May, and n. 6; Randolph to JM, 15 May, and n. 5; Delegates to Harrison, 20 May, and n. 3; Jones to JM, 25 May 1783.
15. Ambler to JM, 3 May, n. 4; Pendleton to JM, 4 May, and n. 3; Jones to JM, 25 May 1783, and n. 1.