James Madison Papers
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From James Madison to Edmund Randolph, 18 February 1787

To Edmund Randolph

New York Feby. 18th. 1787.

My dear Sir

Your letter for Mr. Jefferson arrived a few hours too late for the packet and must wait for some other conveyance. I have some reason to expect one in ten or fifteen days. Congress have received no late intelligence either from him or Mr. Adams. Nor have any interesting measures yet taken place since they have been assembled in force. Those in expectation relate to 1. The Mississpi. On this subject I have no information to give, not a word having passed concer[n]ing it since my arrival. 2. The treaty of peace. This subject is now depending in the form of a Report from Mr. Jay. I find what I was not before apprized of, that infractions on the part of the U. S. preceded in several instances even the violation on the other side in the instance of the Negroes.1 If Congs. should be able to agree on any measures for carrying the Treaty into execution, it seems probable that the fundamental one will be a summons of the States to remove all legal impediments which stand at present in the way. There seems to be no reason to believe that G. B. will comply on any other conditions than those signified in the communication of Lord Carmarthen to Mr. Adams.2 3. The proposed Convention in May. A great disagreement of opinion exists as to the expediency of a recommendation from Congs. to the backward States in favor of the meeting. It would seem as if some of the States disliked it because it is an extraconstitutional measure, and that their dislike would be removed or lessened by a sanction from Congs. to it. On the other hand it is suggested that some would dislike it the more if Congs. should appear to interest themselves in it. I observe in a late Newspaper that instructions are to be brought forward in the Legislature here to the Delegates in Congress to propose and urge their interposition in favor of the Convention. What the sense of the State is on the merits of the project is not perfectly clear. A refusal a few days ago by a large majority to grant the impost does not augur well.3 Hopes however are entertained. The four States North of it are also still to declare their sentiments. Masts. it is now expected will appoint deputies to the Convention, and her example will be much respected by the three others. The intermediate States from N. York to S. Carolina, Maryland excepted, have made appointments: and Maryland has determined to do so tho’ she has not yet agreed on the individuals. S. Carolina & Georgia are supposed by their Delegates here to be well disposed to back the plan. 4. the troops raising under the authority of Congs. in Massts. The prospect of a close to the turbulent scenes in that quarter has produced a motion for stopping the enlistments. The delegates from the N England States generally and from Massts. in particular are anxious that the motion should be suspended for a few weeks that the influence of the military preparations of the U. S. may be continued in favor of their State Measures, some of which are likely to be pretty vigorous, and to try the strength of their Govt.4 It appears besides that the Ringleader of the insurrection has not been apprehended, and according to report, still harbours mischeif. We begin to experience already the inconveniency of the clause in our treaties stipulating the privileges of the most favored nation: Mr. Vanberkel has got hold of the late Act of our Assembly in favor of French Wines & brandies brought in French bottoms, and contends that it violates the Dutch Treaty.5 He has been told that those privileges are a requital for equal ones granted on the side of France, and that Holland must pay the price before she can claim the concession. His answer is that nothing is said about compensation in the Treaty: that it is expressly stated that the Dutch shall pay no higher duties than the most favored Nation are or shall be obliged to pay. We tell him the compensation is necessarily implied; and that a contrary interpretation would render the Treaty too inconvenient to both the parties to be supposed the true one. He persists in alledging that it is the true one, that the treaty pursues the carrying policy marked by a like stipulation in every Treaty where it could be introduced, and that the clause relative to compensation was intentionally omitted. He means to bring the matter before Congs. and to direct the Dutch Consul to protest agst. the duties in case of their being exacted. He professes and appears notwithstanding to be anxious for an amicable adjustment, and would have foreborne to apply to Congs if we could have authorized a hope that the law would not be actually put in Execution agst. Dutch Cargoes. As it is he means to put a copy of the note to Congs. in our hands, that it may be communicated to the State.6 I have not yet thoroughly investigated the question. The letter of the Treaty is on his side. The equity of it on ours. If his construction be admitted, the U. S. could not purchase the W. India Trade of G. B. or France without letting in Holland to the privileges granted on our part, altho’ she should keep her ports in that quarter shut agst. us: a consideration not only unjust towards us, but creating objections on the part of G. B. or France. A very dismal account of Clarke’s proceedings in the Western Country has been informally laid before Congress, & will be forwarded to your department. If the information be well founded you will probably receive a confirmation thro’ other channels.7 Send me the letter from Mr. Mercer if you please.8 I forgot to ask you for it at the time of my leaving Richmond. Adieu Yrs Affecty.

Js. M.

RC (DLC).

1JM served on the committee to resume consideration of Jay’s report of 13 Oct. 1786 on infractions of the peace treaty by the U.S. and Great Britain (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXXI, 781–874; XXXII, 43 n.). Jay pointed out that American violations, such as laws impeding the recovery of debts owed to British citizens, occurred before the British had carried off American slaves (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXXI, 867–69).

2The communication of British Foreign Secretary Carmarthen to Adams of 28 Feb. 1786 (included 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 , XXXI, 783–84]) stated that Great Britain would uphold its treaty obligations only when justice had been “done to british Creditors.”

3On 16 Feb. a member of the New York Assembly indicated that he would introduce a resolution instructing the state delegation in Congress to recommend a convention of the states “for the purpose of revising the articles of confederation” (extracts of debates in the New York Assembly, N. Y. Journal, and Weekly Register, 22 Feb. 1787). JM was unsure of the prospects for this resolution because the Assembly rejected the impost amendment on 15 Feb. (Journal of the Assembly of the State of New-York, At their Tenth Session, begun … the Twelfth Day of January, 1787 [New York, 1787], p. 52). Nevertheless, the motion passed (ibid., pp. 55, 59–60), and the New York delegates accordingly carried out their instructions on 21 Feb. (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXXII, 72; Notes on Debates, 21 Feb. 1787).

4Introduced by Charles Pinckney of South Carolina on 14 Feb., the motion was postponed on 19 Feb. after a lengthy debate. JM voted with the New Englanders on this occasion. JM was a member of the committee to consider Pinckney’s motion. See JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXXII, 57, 61, 62–64; Notes on Debates, 19 Feb. 1787.

5Dutch minister plenipotentiary Pieter Johan van Berckel protested against “An act to impose certain duties,” passed by the Virginia legislature during its October 1786 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, 289–90). He claimed that the exemption from duties of French brandy imported into Virginia by French vessels violated the most-favored-nation clause (Art. II) of the Dutch treaty with the U.S. (Miller, ed., Treaties and Other International Acts, II, 61–62).

6On 20 Feb. van Berckel lodged a formal protest with Jay, who made a report agreeing in substance with the protest on 14 Mar. (Diplomatic Correspondence of the U.S., III, 437–42; JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXXIII, 678–83). For the subsequent action taken on this matter, see Virginia Delegates to Randolph, 25 Mar. 1787. n. 2.

7The “very dismal account of Clarke’s proceedings” was an extract of a letter “from a gentleman in Kentucky to his Friend in Philadelphia,” dated 12 Dec. 1786 (printed in Cal. of Va. State Papers description begins William P. Palmer et al., eds., Calendar of Virginia State Papers and Other Manuscripts (11 vols.; Richmond, 1875–93). description ends , IV. 202). It was referred to the secretary of Congress, who transmitted it to Governor Randolph on 16 Feb. (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXXII, 60 n.; Burnett, Letters description begins Edmund C. Burnett, ed., Letters of Members of the Continental Congress (8 vols.; Washington, 1921–36). description ends , VIII, 540–41). According to the writer of the extract (alleged to be James Wilkinson), George Rogers Clark had been “playing Hell” and was “eternally drunk” while leading a recent expedition against the Wabash Indians. Clark was accused of seizing the property of Spanish traders at Vincennes and of plotting an attack “against St. Louis and the Natchez.” For an account of Clark’s expedition and its aftermath, see James, Life of George Rogers Clark, pp. 347–80. Disavowing Clark’s actions, Governor Randolph and the council requested the attorney general to institute legal proceedings against those “appearing to be culpable” of “this offence against the law of Nations” and ordered a special proclamation to be issued disclaiming the seizure of Spanish property (JCSV description begins H. R. McIlwaine et al., eds., Journals of the Council of the State of Virginia (4 vols. to date; Richmond, 1931——). description ends , IV, 47).

8Probably John F. Mercer’s letter to JM of 23 Dec. 1786. This letter contained a lengthy discussion of the legal aspects of the British debt question, which JM perhaps thought would be of interest to Randolph.

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