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To James Madison from Edmund Randolph, 15 February 1783

From Edmund Randolph

RC (LC: Madison Papers). Unsigned and without complimentary close but in Randolph’s hand. Cover addressed by him to “The honble James Madison jr. Esq. of congress Philadelphia.” The date line and many words in the first six and last six lines of the text are so blotted as to be illegible or doubtfully legible.

Richmond Feby. 15. 1783

My dear sir

I had resolved before the receipt of your favor of the 2d. instant to change our cypher [to] a form less abstruse and more comprehensive.1

A hand bill from Baltimore has revived [and encouraged]2 expectation of peace. It has, no doubt, reached you, and will appear to want every mark of authenticity. Yet I cannot persuade those, with whom I converse, that peace is too much intangled by opposite pretentions and hopes, to be adjusted in a short time, even after the European congress shall have entered seriously into the business.3

Speculation itself is at rest, and not a breath moves the political surface. So that news is of all things, except specie, the most scarce.4

Among the records of 1710, I find an instruction from Queen Anne to her governor here to grant lands according to the charter. This extension plainly alludes, from the context to that of 1609, not of 1676.5

[p. 245]

The acts of assembly in 1753 & 1754, concerning settlements on the Mississippi afford no mean argument in support of our title: they having been confirmed by the king. And a standing instruction to the governors farther shews, that every act was sent over for the royal inspection.6 Therefore every act referring to similar points with these may be considered, as having equal force.

I perceive, that the boundaries between Penn & Lord Baltimore have been discussed before the british chancellor. The argument is to be found in Vezey’s reports 1. Vol. p. [444] and contains much in support of my idea of our charter, and as much against it.7 Do borrow the book, read the case, and suggest your thoughts.8

1Randolph almost certainly meant to refer to JM’s letter of 4 Feb. 1783 (q.v., and n. 10).

2Harrison to Delegates, 15 Feb. 1783, and n. 2. The bracketed words are a doubtful rendition of those so blotted that only a few letters can be discerned.

3Randolph was assuming that peace could come only after a “congress” of commissioners from Great Britain, France, Spain, the Netherlands, and the United States had succeeded in reaching agreement despite conflicting “pretentions and hopes” of the nations they represented.

4Harrison to Delegates, 31 Jan., and n. 7; 7 Feb., and n. 4; Ambler to JM, 1 Feb. 1783.

5On 1 June 1782 the Virginia General Assembly appointed a committee of five, including Randolph, “to collect all Documents and Proofs necessary for establishing the Right of this State to it’s Western Territory” (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, 91, n. 4; 198, n. 7; 305). A variety of circumstances had obliged Randolph, with almost no help from his colleagues, to perform this unexpectedly difficult task (ibid., IV, 306, n. 3; 395; V, 30; 308–9; 312, n. 18). From its outset, in defending Virginia’s title to the territory west and northwest of the Appalachian Mountains, Randolph had stressed that the westward boundaries of Virginia, as stipulated in the charter of 1609 granted by King James I to the London Company, remained unaltered even though that charter had been annulled in 1624 (ibid., IV, 228, n. 7). For the charter of 10 October 1676, granted by King Charles II “to his subjects of Virginia,” see ibid., V, 10; 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 , III, 315–16.

In response to a plea of 19 October 1708 by the Council of Virginia that a current “restraint & prohibition on the takeing up of Land be removed,” Queen Anne in Council on 23 February 1710 rescinded the restrictions and permitted the resumption of land grants “as by the charter” theretofore allowed. Because she took no exception to the colonial Council’s protestation that Virginia land tenures were too “interwoven” in grants based upon provisions of the charters of 1609 and 1676 to be altered without “the greatest Confusion,” she could be said to have tacitly recognized the continuing legality of the charter of 1609 and hence of the boundaries therein stipulated (H. R. McIlwaine et al., eds., Executive Journals of the Council of Colonial Virginia [6 vols.; Richmond, 1925–66], III, 194–95, 247; Leonard Woods Labaree, ed., Royal Instructions to British Colonial Governors, 1670–1776 [2 vols.; New York, 1935], II, 590, 808).

6The general instructions of a governor of a royal province required him to [p. 246] forward to the sovereign in Privy Council for review and possible disallowance every act of the legislature except one designed to meet a temporary emergency. Randolph referred to “An Act for further encouraging persons to settle on the waters of the Mississippi,” assented to by the governor of Virginia on 19 December 1753, and “An Act for the encouragement and protection of the settlers upon the waters of the Mississippi,” similarly assented to on 23 February 1754 (H. R. McIlwaine, ed., Journals of the House of Burgesses of Virginia, 1752–1755, 1756–1758 [Richmond, 1909], pp. 115–16, 127, 130, 132, 170, 181, 183–84, 185; 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 , VI, 355–56, 417–20). By not disallowing these measures, the King in Council acknowledged at least tacitly the right of the government of Virginia to include all the territory directly west and northwest of the Appalachian Mountains in Augusta County, mentioned in the statute of 1753, and to foster and control settlements along “the waters of the Mississippi.”

7This page number, completely illegible in the text, is what Randolph probably wrote (Francis Vesey, Senior, comp., Reports of Cases Argued and Determined in the High Court of Chancery, in the time of Lord Chancellor Hardwicke, from the year 1746–7, to 1755 … [2 vols.; Dublin, 1771], I, 444–55, and esp. 454). The suit of Penn v. Lord Baltimore, involving a controversy concerning the rightful boundary between the provinces of Pennsylvania and Maryland, was argued in 1745 and 1750 before the High Court of Chancery. In his opinion, delivered on 15 May 1750, the lord high chancellor declared that, although a suit involving a disputed boundary in America was outside the original jurisdiction of his tribunal, he still could hear the arguments of the parties to the case and issue a decree, subject to appeal to the King in Council, because a royal court of equity could take cognizance of any issue where the litigants had agreed “on articles executed in England under seal for mutual consideration.” This assumption of jurisdiction obviously ran counter to Randolph’s insistence that in domestic affairs a committee of Congress, and hence Congress itself, could not exercise the unconstitutional authority to decide among the charter claims of Virginia and other states to overlapping territory north and west of the Ohio River (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, 284–86; 286, nn. 1, 5; IV, 32–33; 35, n. 10). On the other hand, both Randolph and JM had granted, for the sake of obtaining congressional unanimity in forming international policies, that the crown lands had “devolved,” as a result of the Revolution, “upon the United States, collectively taken” (ibid., V, 56–57).

Although Randolph could not welcome the lord high chancellor’s decree in favor of the Penn family, even though its charter postdated that of Lord Baltimore by about fifty years, this judgment was based mainly on the fact that many more citizens of Pennsylvania than of Maryland had settled in the disputed area. Randolph therefore could quote with approval the lord high chancellor’s statement: “But now in cases of this kind, of two great territories held of the crown, I will say once for all, that long possession and enjoyment, peopling and cultivating countries, is one of the best evidence of title to lands, or district of lands in America, that can be; and so have I thought in all cases since I have served the crown; for the great beneficial advantages, arising to the crown from settling, &c. is, that the navigation and the commerce of this country is thereby improved. Those persons, therefore, who make these settlements, ought to be protected in the possession, as far as law and equity can.”

Philip Yorke (1690–1764), first Earl of Hardwicke, was lord high chancellor from 1737 until 1756, after serving successively as solicitor general, attorney general, and chief justice.

8There seems to be no evidence that JM followed Randolph’s suggestion or that Randolph adverted later to the matter.

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