James Madison Papers
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From James Madison to Edmund Randolph, 17 December 1782

To Edmund Randolph

RC (LC: Madison Papers). Unsigned but in JM’s hand. Originally docketed by Randolph, “J. Madison jr. (of Cong) 17 Septr 1782.” Probably upon recovering the letter (Papers of Madison description begins William T. Hutchinson, William M. E. Rachal, et al., eds., The Papers of James Madison (5 vols. to date; Chicago, 1962——). description ends , III, 100), JM canceled “Septr” and wrote “December” in front of “17.” Although dated “17th Decr.,” JM almost certainly wrote the first paragraph early the day before, because he referred to an expected committee report which was submitted to Congress on 16 December (n. 3, below). On the other hand, the last three paragraphs seem to have been written the next day. The postrider, to whom JM alluded in the last paragraph (q.v.), customarily arrived in Philadelphia on Tuesday. This day of the week in mid-December 1782 was the seventeenth.

Except when otherwise noted, the italicized words are those written by JM in the official cipher.

Philada. 17th. Decr. 1782.

My dear Sir

Since the appointment of the deputation to Rho: Island1 Congress have recd. a copy of the refusal of the Legislature of that State to concur in the impost, with the reasons on which the refusal is grounded.2 The reasons assigned are 1st. the inequality of the tax which will bear hardest on the commercial States, and peculiarly hard on Rho: Island which is the most commercial: 2dly. the inexpediency of admitting to a collection within the State of so large a tax an officer unknown to the Constitution, [p. 415] and unaccountable to the authority of the State.3 3dly. the danger to public liberty from such an accession of weight to the foederal Government. I give this recital from memory and therefore only as the substance of the[ir]4 objections. They are in the hands of a Committee who will report such observations as they may deem a fit answer to them.5 The deputation has not yet set out, but probably will in the course of the week.6

Vermont has been again on the tapis. Its only advocates were the delegates of Rho: Island who are charged with interested views in the case, and those of N. Jersey who are fettered by instructions from their Constituents.7 I understand that a Mr. Titchner one of the Agents formerly here is arrived from Vermont, probably in consequence of a signal given of the revolution wch. is taking place in the foederal Councils with respect to them. A little time will display his errand.8

General Greene has referred to Congress a case which admonishes them of the necessity of a code for captures & recaptures on land as well as on water. A detachment of the continental forces having retaken9 a number of Horses which had been taken by the enemy from Citizens of S. Carolina; the Executive Authority of the State demanded a restitution, on the general principle that the original owners were entitled to all recaptured property. This demand was laid before a Council of Officers which decided against its validity. The General has submitted the case to Congress for their final judgment.10 It appears from a review of the proceedings of Congress, that a very defective provision only has been made for captures, and no provision at all for recaptures, on land.11 The opinion of the Council of war is conformable to the practice of the Army in like cases, and to the rules observed by other nations.12 The demand of restitution in favor of the original proprietors is warranted by the principles of equity and the Spirit of the Ordinance relating to Captures on water.13 All that Congress can do in the case will be to remit to the original owners the prizes14 which has been adjudged to the U.S. But some general provision for future cases will be necessary in which it will be not easy to define the species of property of which restitution may be claimed.15 To extend the rule to every species of property would open a door to innumerable disputes and abuses. I observe on this occasion what had escaped me before, that if Congress should establish a Court for Captures on land, such cases can come before it only on appeal.16

(Official Cypher) Letters from Franklin and Jay dated late in September shew that a commission has been issued to Oswald to treat with [p. 416] commissioners of the thirteen United States by which some precedent obstacles were surmounted17 and that18 Spain meditates an immoderate defalcation of our western ter[r]itory19 All this intelligence however has come to us in obscure fragment[s]. I commi[t]20 it to you as to a member of Congress on whom secresy is enjoined and in this cypher as certainly unknown to all but official persons21

The inclosed gazette will inform you of the good fortune of the Capt: Barry of the Alliance Frigate. It appears from various letters from Europe that the Jamaica fleet has suffered severely from privateers & the storm.22

The Court at Trenton will finish their business this week it is said. The Pennsylvanians alledge that the cause is going hollow in their favor.23

I have no letter from you by this post which I impute to your visit to Williamsbg.24

3Between “tax” and “an,” JM canceled “by.” In referring to “the Constitution,” JM meant that of Rhode Island rather than the Articles of Confederation. See JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXIII, 788. On 3 February 1781, during the debate preceding the adoption of the impost amendment by Congress on that day, JM had tried unsuccessfully to have the proposal “vest Congress with full power to collect” the 5 per cent tariff, but the levying of it should be done by the state legislatures, not by Congress (Papers of Madison description begins William T. Hutchinson, William M. E. Rachal, et al., eds., The Papers of James Madison (5 vols. to date; Chicago, 1962——). description ends , II, 303–4; 304, n. 3). The amendment referred to the states for ratification explicitly conferred power upon Congress to levy the duty but was silent about the locus of authority to appoint and supervise the customs collectors. On the other hand, both Rhode Island, in a justification of her refusal to sanction the amendment, and the committee named by Congress to propose a reply to the justification assumed that the tariff would be collected by congressional appointees.

The committee’s report, drafted by Alexander Hamilton and agreed to by Congress on 16 December, contended that, if the amendment went into effect, the collection of the duties would come within the purview of Article IX of the Articles of Confederation, delegating to Congress the power to appoint such “civil officers as may be necessary for managing the general affairs of the United States under their direction.” The report also affirmed that the “legislature must always have a discretionary power of appointing Officers, not expressly known to the constitution, and this power will include that of authorising the Federal Government to make the appointments in cases where the general welfare may require it” (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXIII, 801–3).

4This word, rendered partly illegible by a tear in a fold of the page, could have been “these.”

5See headnote.

6On 17 December Hamilton reported that the committee, mentioned in n. 3, above, was of the “opinion, that the deputation appointed to go to the State of Rhode Island, ought to proceed as soon as possible.” Congress agreed to this recommendation [p. 417] (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXIII, 811–12). See also JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXIII, 772; Notes on Debates, 24 December; JM to Randolph, 24 December 1782.

8For Isaac Tichenor, who had returned to Philadelphia after also having been there in April 1782 as a member of a commission from Vermont, see Papers of Madison description begins William T. Hutchinson, William M. E. Rachal, et al., eds., The Papers of James Madison (5 vols. to date; Chicago, 1962——). description ends , IV, 134, n. 2; 164, and n. 1; E[liakim] P. Walton, ed., Records of the Governor and Council of the State of Vermont (8 vols.; Montpelier, 1873–80), III, 14, 16. On 18 December Congress listened to a letter addressed at Albany to President Boudinot on 16 November by Jacob Cuyler, formerly deputy commissary general of purchases for the continental army, enclosing and endorsing a copy of a letter of 8 November to him from Tichenor, then in Bennington. Being one of Cuyler’s “assistant purchasers” from 1777 to 1780 and lacking public funds, Tichenor had heavily pledged “his own credit” in buying provisions. He informed Cuyler that he was in immediate danger of being imprisoned in New Hampshire “as a common debtor,” unless Congress enabled him to pay what he owed (NA: PCC, No. 78, VI, 155–62). Congress referred these documents to a committee, comprising JM, chairman, Richard Peters, and John Taylor Gilman. On 20 December 1782 Congress accepted this committee’s report, written by Peters, recommending the transmittal of the letters to Governor Meshech Weare of New Hampshire, with the suggestion that he quash the lawsuits against Tichenor, in accordance with the resolutions of Congress of 20 February and 19 March 1782 (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXIII, 819, n. 1, 822, and n. 2). The resolutions particularly relevant to the matter at issue had been drafted by JM and adopted by Congress on 19 March 1782. See Papers of Madison description begins William T. Hutchinson, William M. E. Rachal, et al., eds., The Papers of James Madison (5 vols. to date; Chicago, 1962——). description ends , IV, 91–92; 92, nn. 1, 5; JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXII, 138–39.

9Above “retaken” appears an interlineated and canceled “from the Enemy.”

10On 10 December, having received General Nathanael Greene’s dispatch of 28 October and its eight accompanying documents, Congress referred them to a committee comprising JM, chairman, Alexander Hamilton, and John Rutledge (NA: PCC, No. 155, II, 552–97). The subject of Greene’s lengthy letter was a controversy between him and most of his senior officers in “council of war” on the one hand, and Governor John Mathews of South Carolina and his Privy Council on the other, over the rightful ownership of horses, taken from South Carolinians by the enemy and subsequently recaptured by a contingent of Greene’s army. Greene and his council of war, excepting Colonel Charles Cotesworth Pinckney of South Carolina, cited Article IX of the Articles of Confederation in regard to “prizes,” Article 20 of Section XIII of the Articles of War in regard to matériel captured from the enemy, the “Law of Nations,” and the “practice” of Washington’s army, in support of a decision that the animals belonged to “the public” and not to their original owners (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , V, 799; XIX, 217). In accordance with this decision, although admitting the “nice and delicate” nature of the “principles” at issue, Greene directed that some of the horses should be sold, and that their former owners should be assured of most of the proceeds from the auction, if Congress upheld the claim made in their behalf by the governor and Privy Council of South Carolina (NA: PCC, No. 155; II, 552–60, 571–78, 595–97).

In his demurrer, after challenging the correctness of Greene’s interpretation of the Articles of Confederation and Articles of War, Pinckney supported the stand of Governor Mathews in Council to the effect that Greene should purchase from or return to the original owners all of the horses, and that, in either instance, the owner should pay to “the recaptors” one-fourth of the animal’s value (NA: PCC, No. 155, II, 563–70).

11JM had shared in the drafting of the provision of the ordinance of 4 December [p. 418] 1781, which stipulated that an American’s property captured by the enemy on land and later recaptured at sea by a citizen of the United States should be returned to its original owner, provided that he pay “a reasonable salvage, not exceeding one-fourth part of the value” (Papers of Madison description begins William T. Hutchinson, William M. E. Rachal, et al., eds., The Papers of James Madison (5 vols. to date; Chicago, 1962——). description ends , III, 237; JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXI, 1155). Although neither this nor any other ordinance of Congress specifically provided for the return to its owner of property taken by the enemy on land and subsequently retaken on land by American troops, Pinckney argued (n. 10) that the principle embodied in the ordinance of 4 December 1781 should apply to recaptures on land as well as on the ocean.

12Between “observed” and “by” JM deleted “among.” “The Articles of War” adopted by Congress (n. 10) had been modeled upon those of Great Britain. Besides pointing out that their Article 20 of Section XIII, appealed to by General Greene, did not mention horses, Pinckney stressed that the interpretation of these Articles should harmonize with “the Spirit” of the Revolution without regard to their British meaning. In his words, “as every Citizen contributes in proportion to his property toward the defence of the Union[,] the union is bound to protect him in the secure possession of it as far as possible” (NA: PCC, No. 155, II, 563–68).

13See n. 11, above.

14After writing “proper”[ty], JM canceled it and interlineated “prizes.”

15Probably because of the coming of peace, the Continental Congress never established a “general provision” on the subject during 1783.

16JM underlined “appeal.” The first paragraph of Article IX of the Articles of Confederation delegated to Congress “sole and exclusive right and power” to establish “courts for receiving and determining finally appeals in all cases of captures” (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XIX, 217). For the report of JM’s committee (n. 10, above), see Report on Property Recaptured on Land, 23 December 1782.

17On 13 December, Congress received Benjamin Franklin’s dispatches of 12 August, 3 September, and 26 September. The last of these enclosed a copy of King George III’s revised commission to Richard Oswald to serve as a peace commissioner. On 16 December John Jay’s dispatch of 28 September, also enclosing a copy of this commission, was laid before Congress (NA: PCC, No. 185, III, 50; Wharton, Revolutionary Diplomatic Correspondence description begins Francis Wharton, ed., The Revolutionary Diplomatic Correspondence of the United States (6 vols.; Washington, 1889). description ends , V, 655–59, 682–84, 763–64, 764 n., 779).

In the first commission, signed by King George III on 7 August 1782, Oswald had been instructed to engage in peace parleys with the agents of the thirteen “colonies or plantations” in North America. When Franklin and Jay refused to negotiate as long as the British government designated them as commissioners of “colonies,” Oswald so informed the court of London (ibid., V, 613–14, 614 nn., 681, 685, 699, 712). For the substitution of “thirteen United States of America” for “colonies” in Oswald’s second commission, dated 21 September, and deemed by Franklin and Jay, upon receiving a copy of it six days later, to conform in its wording with their instructions from Congress, see Conversation between Livingston and La Luzerne, 23 September, and n. 9; JM to Randolph, 24 September, and n. 3; 30 September 1782, and n. 13; Wharton, Revolutionary Diplomatic Correspondence description begins Francis Wharton, ed., The Revolutionary Diplomatic Correspondence of the United States (6 vols.; Washington, 1889). description ends , V, 749, and n., 762, 778–79. John Adams and Henry Laurens, the other American peace commissioners then in Europe, did not reach Paris until 26 October and 29 November 1782, respectively (ibid., V, 838; VI, 86). See also Notes on Debates, 23 December 1782, and n. 4.

18JM used 79, the cipher for “ain,” rather than 790 for “that.”

19In his dispatch of 12 August to Robert R. Livingston, Franklin wrote: “Mr. Jay will acquaint you with what passes between him and the Spanish ambassador respecting the proposed treaty with Spain. I will only mention that my conjecture of that court’s design to coop us up within the Allegheny Mountains is now manifested. I hope Congress will insist on the Mississippi as the boundary, and the [p. 419] free navigation of the river, from which they could entirely exclude us” (Wharton, Revolutionary Diplomatic Correspondence description begins Francis Wharton, ed., The Revolutionary Diplomatic Correspondence of the United States (6 vols.; Washington, 1889). description ends , V, 657). Jay’s dispatch of 18 September, in which he set forth Spain’s intention to bar the United States from the Gulf of Mexico and Mississippi River, and his opinion, contrary to Franklin’s, that France would support Spain to these ends, was read in Congress on 24 December 1782 (NA: PCC, No. 185, III, 50). See also Notes on Debates, 24 December 1782.

20JM neglected to encode the last letter of both “fragments” and “commit.”

21Although JM did not encode “as certainly,” his underlining indicated his disbelief that only “official persons” possessed the key to the official cipher. For other examples of underlining for a similar purpose, see JM to Randolph, 30 September, and n. 13; Notes on Debates, 7 November 1782, and n. 4. Not having received Randolph’s letter of 13 December (q.v., and n. 4) announcing his resignation as a delegate from Virginia, JM considered his friend still an “official” person to whom confidential information presented to Congress could be revealed.

22JM interlineated “suffered.” For “Capt: Barry” and the “Jamaica fleet,” see Harrison to Virginia Delegates, 14 December, and n. 2; Virginia Delegates to Harrison, 17 December 1782, and n. 8.

23See JM to Randolph, 13 August, and n. 13; 19 November, and n. 12. The court at Trenton, which had been convened to decide the boundary dispute between Connecticut and Pennsylvania, was still listening to the counsels’ arguments. These were not concluded until Christmas eve. Perhaps JM had been told by his close friend, William Bradford, Jr., the attorney general of Pennsylvania, that he expected “a speedy & a favourable determination.” By a unanimous vote of the five commissioners, the court decided on 30 December 1782 “that the State of Connecticut has no right to the lands in controversy” (Pennsylvania Archives description begins Samuel Hazard et al., eds., Pennsylvania Archives (9 ser., 138 vols.; Philadelphia and Harrisburg, 1852–1949). description ends , 1st ser., IX, 695, 732; JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXIV, 6, 31–32). The word “hollow” is a colloquialism meaning “complete, thorough, out-and-out.”

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