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Virginia Delegates to Edmund Randolph, 25 March 1787

Virginia Delegates to Edmund Randolph

New York Mar. 25. 1787.

Sir

Since my last the Delegation has received your Excellency’s two favors of the 16th. ult. and the 8th. inst. The anonymous paper inclosed in the former certainly merits serious attention, and will be communicated to Congress.1

The Report of Mr. Jay on the Note of Mr. Van Berkel has not yet received a decision. The subject of it involves several nice questions which require an accurate attention as well to the federal Constitution as to the Commercial Treaty with Holland.2

Congress have within the course of the past week been investigating the savings which might be derived from an oeconomical revision of the Civil list, and have made reductions of salaries to the amount of about 20,000 dollars. It is proposed to extend the reform to the abolition of such offices as are not indispensible. The Act which has already past shall be forwarded by the next mail.3

The proposition made in the Legislature of this State for renouncing its pretensions with respect to Vermont, seems to meet with obstacles. No definitive question however has yet been taken.4 I have the honor to be Yr. Excelly’s Most Obdt & hble Servt

Js. Madison Jr

RC (PP: Hampton L. Carson Collection). In JM’s hand. Docketed by a clerk.

1JM was mistaken as to the letter of “the 16th. ult.,” which was evidently that of Arthur Campbell to Randolph, 16 Feb. 1787, enclosing “an anonymous exhortation, to the spurious state of Franklin.” Randolph forwarded this letter and its enclosure in his letter to the delegates of 10 Mar. 1787. There may have been a letter of 8 Mar. from Randolph which has not been found.

2See JM to Randolph, 18 Feb. 1787 and nn. 5, 6. Action on this matter was delayed until the following autumn. On 24 Sept. a committee made a report embodying the substance of Jay’s recommendations, which was approved by Congress on 13 Oct. (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXXIII, 522–26, 676).

One of the “nice questions” involved in this complicated affair was the proper construction of Article II of the Dutch treaty with the U.S., which read: “The subjects of the said States General of the United Netherlands shall pay in the ports … of the United States … no other nor greater duties, or imposts of whatever nature … than those which the nations most favored are or shall be obliged to pay; And they shall enjoy all the rights, liberties, privileges, immunities, and exemptions in trade, navigation and commerce which the said Nations do or shall enjoy.” As Jay pointed out, this article took “no notice of cases where compensation is granted for privileges” (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXXIII, 679). Such cases were covered, however, in Article II of the French treaty with the U.S.: “The most Christian King and the United States engage mutually not to grant any particular favor to other nations in respect of commerce and navigation, which shall not immediately become common to the other party, who shall enjoy the same favor freely, if the concession was freely made, or on allowing the same compensation if the concession was conditional” (ibid.). Van Berckel insisted that the Dutch should receive the same exemptions granted to France by Virginia. The Virginia delegates had explained to him that the privileges granted to France were “a requital for equal ones granted on the side of France, and that Holland must pay the price before she can claim the concession” (JM to Randolph, 18 Feb. 1787). The Virginians based their arguments on the letter of French Controller General of Finance Calonne to Jefferson, 22 Oct. 1786, outlining “certain favors and exemptions in commerce” (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXXIII, 522; Boyd, Papers of Jefferson description begins Julian P. Boyd et al., eds., The Papers of Thomas Jefferson (19 vols. to date; Princeton, N. J., 1950——). description ends , X, 474–78, 492 n.; Edward Carrington to JM, 27 Dec. 1786 and n. 1; JM to Jefferson, 15 Feb. 1787). Van Berckel disputed Virginia’s claims for compensation on the grounds that the Dutch treaty was silent on this subject. The delegates replied that compensation was “necessarily implied” (JM to Randolph, 18 Feb. 1787). Jay agreed with the Virginians’ construction of the Dutch treaty, but he nevertheless maintained that the Virginia act violated the treaty because the exemptions granted to France by the act were gratuitous and not a compensation for similar favors granted by France (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXXIII, 679–80; JM to Jefferson, 19 Mar. 1787). He therefore recommended that Virginia repeal the disputed act and reimburse the Dutch for the extra duties paid under that act (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXXIII, 681). Congress agreed to this recommendation on 13 Oct. 1787 (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXXIII, 676).

Another question raised by Jay and the committee considering his report concerned the constitutionality of the Virginia act. Jay suggested that this act violated the spirit of Article VI of the Articles of Confederation, which prohibited states from entering into treaties with foreign nations without the consent of Congress (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXXIII, 682–83). The Virginia act amounted to a “tacit” compact with France (JM to Jefferson, 19 Mar. 1787). The committee accordingly recommended the following resolution in its report of 24 Sept. 1787: “That no individual State can constitutionally, without the Consent of the United States in Congress Assembled, make any compensation for privileges or exemptions granted in trade Navigation or Commerce by any foreign power to the United States or any of them, and that whenever any of the States shall think proper to grant any privileges or exemptions in trade, Navigation, and Commerce, to any foreign Nation gratuitously, such State ought to extend them to such other foreign Nations as by treaties with the United States are to be treated as the most favored Nation” (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXXIII, 526). The first clause of this resolution was an addition to that suggested in Jay’s report (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXXIII, 681). It was eliminated in the resolution approved by Congress on 13 Oct., however, which was identical to the one offered by Jay (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXXIII, 676). The proceedings of Congress “touching the grant of favours to foreign Nations” were transmitted to the states on 18 Oct. (Burnett, Letters description begins Edmund C. Burnett, ed., Letters of Members of the Continental Congress (8 vols.; Washington, 1921–36). description ends , VIII, 658). The Virginia legislature complied with the resolutions during the closing days of the October 1787 session (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 , XII, 514–15).

State violations of national treaties were a matter of deep concern to JM. Jay’s reports on the Van Berckel protest and on infractions of the peace treaty with Great Britain (JM to Randolph, 18 Feb. 1787, n. 1; Notes on Debates, 20 and 21 Mar. 1787) were fresh in his mind as he prepared for the approaching Federal Convention (see Vices of the Political System of the United States, April 1787). JM and his colleagues at Philadelphia sought a solution by making treaties “the supreme Law of the Land” (Art. VI of the Constitution).

4See JM to Washington, 18 Mar. 1787 and n. 5. On 24 Mar. the New York Assembly had received a petition from owners of Vermont lands requesting a copy of the bill acknowledging the independence of Vermont and asking for an opportunity to present their case before the legislature. The arguments of the petitioners against the bill were heard on 28 Mar. (Journal of the Assembly of New-York begun the Twelfth Day of January, 1787, pp. 116–17, 123; Syrett and Cooke, Papers of Hamilton description begins Harold C. Syrett and Jacob E. Cooke, eds., The Papers of Alexander Hamilton (19 vols. to date; New York, 1961——). description ends , IV, 126).

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