To James Madison from Edmund Randolph, 19 April 1782
From Edmund Randolph
RC (LC: Madison Papers).
Richmond April 19. 1782.
Dear Sir
I derive the sincerest pleasure from the prospect, which your punctuality of correspondence presents. I could not begin my part of our intercourse by letter until the last week: but the obstacles must be invincible, which shall prevent me from a weekly return in future.1
Our maritime code requires a small alteration. From the deference, which we paid to the ante-confederational institutions of congress, we were led into one,2 which may produce discontent, and probably goes beyond our power. A vessel, when seized, may be carried according to the late ordinance into any court of admiralty.3 Justified by this law, a privateer brought a few weeks since into our admiralty, a prize, made within the jurisdiction of North Carolina.4 I say, that it was made within the jurisdiction of North Carolina, not because this was a point confessed, but because the court considered it as proved; and proceeded on it as a fact. The owner of the captured ship pleaded that she was not triable here. This objection, after a solemn argument, was overruled. Governor Burke being highly inflamed at this procedure, demanded restitution from our executive. They “being,” as Mr. Harrison expressed their imbecility on a former occasion, “the poorest and most impotent executive throughout the continent,”5 could not interfere in any forensic business; whereby the law was left to its operation, and condemnation took place. Mr. Burke repeated his demand of restitution, and threatened reprisal. The answer to his menace was mild and decent, but representing the danger, and confusion, which would flow from such a measure. This unlucky affair occurred before my arrival at this place, and therefore I retail it to you upon the information of another, which does not appear very distinct. However it rests here for the present. Upon these facts I submit the following queries:
1. Does the power of ascertaining, what captures on water are legal, involve a power to infringe the sovereignty of a state so far, as to authorize the withdrawing of a vessel seized within the jurisdiction of its admiralty to the inquiry of a court of another? Strictly the words of the confederation admit not such a construction,6 and by no view of the matter can such a power be rendered necessary or subservient to the welfare of the United States.
2. Ought not the inferior courts to be placed more within the reach and controul of congress, or at least of the court of appeals? The purpose, for which the investiture of congress with a superintendence of maritime affairs was intended, will be considerably defeated, if the court of a particular state shall be free from check in great national questions.
The old solution for high prices, to wit a great demand, and a scanty supply, can scarcely account for the exorbitancy of every thing of foreign growth offered for sale here. For 1. goods are not so scarce, as to warrant a merchant to bring cloth from Phila., which is sold there for £3. by the yard and selling it here for 15 dollars: 2. money is so confined in its circulation, and credit for merchandize is so generally refused, that the number of buyers is small. I cannot but suspect, that paper-money will have a resurrection under some form or other.7 It is talked of with much earnestness in certain parts of the country. As I do not know, in what garb or light this fiend of darkness is to be clothed, I shall not execrate it, as yet.
I can assure you, that I return to the law with a species of sorrow. It is not often, that I lament my want of patrimony; but, when obliged to exchange a pursuit, liberal and extensive, like politicks, for reports and entries, I surely do not commit an unpardonable Sin in reprehending my father for not handing down a fortune to me.8 This melancholy reflection paves the way for an answer to your invitation to Phila. I must recover, what I expended there, and see a firm establishment for our support, before I set my face northwards. Let the assembly provide funds; I shall have immediately a violent conflict with prudence.9
Can you send me a copy of the examination of the Connecticut claim?10 I believe, that I shall say something in print upon the territorial rights of Virginia, if the legislature shall not adopt the better measure of forcing Mr. Jefferson or Mr. Mason to undertake the work.11
Adieu my dear friend.
Pray contrive me a paper every week. I will send you the subscription by Mr. F. Webb, who will visit you soon.12
2. The antecedent of “one” is the “maritime code” adopted by Congress on 7 April 1781 (, XIX, 361–64).
3. In April 1776 Congress had agreed upon the form of commission and instructions to be issued to the captain of a privateer. This commission obliged him only to bring his prizes to “some convenient ports in the said colonies, in order that the courts which are or shall be there appointed to hear and determine causes, civil and maritime, may proceed, in due form, to condemn the said captures, if they be adjudged lawful prize” (, IV, 247–48, 253). Following the adoption of the Articles of Confederation, Congress on 7 April 1781 revised these instructions but still permitted prizes, wherever captured, to be brought “to judgment in any of the courts of admiralty that now are or hereafter may be established in any of these United States” (, XIX, 362). In spite of Randolph’s scruples that the sovereignty of each state, affirmed in Article II of the Articles of Confederation, obliged prizes to be condemned by the admiralty court of the state in whose waters the capture occurred, Congress did not modify the instructions of 7 April 1781 in this regard before the close of the war. See n. 6, below.
4. Randolph is referring to the case of “Three Friends.” See Harrison to Virginia Delegates, 23 March, and n. 1, and 12 April 1782, n. 3.
5. In characterizing the executive of Virginia, Randolph approximately quoted from Governor Harrison’s letter of 21 January 1782 to General Greene (Jameson to JM, 26 January 1782, n. 1). Randolph obviously used “imbecility” in the sense of impotence rather than of mental debility.
6. In his reply of 1 May 1782 (q.v.), JM agreed with Randolph’s contention that the ninth article of the Articles of Confederation, by conferring upon Congress the authority to establish “courts for receiving and determining finally appeals in all cases of captures,” assumed that each state would create a court of admiralty with original jurisdiction over captures occurring inside the boundaries of that state (n. 3, above). This assumption was in no way weakened by the further provision in the same article, giving Congress “the sole and exclusive right … of establishing rules for deciding in all cases, what captures on land or water shall be legal,” or by the stipulation in the sixth article that privateering commissions and letters of marque or reprisal, issued by a state, must conform with “such regulations as shall be established by the united states in congress assembled” (, XIX, 216–17).
7. The Virginia General Assembly at its session of May 1782 did not issue more bills of credit.
8. At the onset of the Revolution John Randolph (ca. 1727–1784), Edmund’s father, had been the attorney general of the Crown and a burgess in the provincial assembly from the College of William and Mary. True to his allegiance to King George III, he had fled to England in 1775 with his wife and two daughters, Susanna and Ariana (, I, 240–43, 244, 268–70; III, 116). Edmund’s uncle, Peyton Randolph (d. October 1775), had willed his estate to his wife (d. 1783) and, upon her death, to his brother John, with the proviso that, upon John’s death, the property would descend to Edmund, except for £500 to each of Edmund’s sisters. Having assumed the obligation of discharging the large debts owed by his father in Virginia and of sending money, whenever opportunity offered, to him in England, Edmund was financially embarrassed in the spring of 1782. He would soon be additionally burdened by the management of the land and slaves left by Mrs. Peyton Randolph upon her death. At the time of the present letter Edmund was dependent upon his rapidly growing law practice for most of his income (Moncure D. Conway, Edmund Randolph, pp. 48–50).
9. Although the Virginia General Assembly in its session of May 1782 provided for paying the long overdue salaries and allowances of the delegates, Randolph did not return to Congress (Jameson to JM, 9 March, n. 4; Virginia Delegates to Harrison, 12 March 1782, n. 4).
10. See JM to Randolph, 9 April 1782, and n. 2.
11. George Mason. See , II, 52–53; 178, n. 3; JM to Randolph, 9 April, and n. 5; Randolph to JM, 1 June 1782, and n. 3.
12. Foster Webb, Jr. See Jameson to JM, 9 March, n. 2; Randolph to JM, 16–17 May; and JM to Randolph, 4 June 1782.