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To James Madison from Edmund Pendleton, 9 December 1782

From Edmund Pendleton

Tr (LC: Force Transcripts). In the left margin at the top of the transcription, the clerk wrote “MSS McGuire’s.” 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 , I, xxii, xxiii. A brief extract taken from the missing original of the letter is in Stan. V. Henkels Catalogue No. 694 (1892).

Virga Decem 9th 1782

My Dear Sir,

I am now to thank you for yr favr of the 19th past.1 I formerly acknowledged the receipt of the gold lace, expressed my concern for yr having by reason of the counterfeit Bill, been drawn into an advance on that Occasion, and my resolution to have the money ready to send by Mr Randolph, or the first safe hand.2

In my last to Mr Jones I sent him the state of the Case of the Prisoners which made such noise, & my opinion upon it, which however was reduced to a think3 of small moment, by the opinion of the Court that the Treason law was not contrary to the constitution. the poor fellows are since pardon’d by the Assembly upon condition of the Banishment of two of them, & the third’s becoming a Continental Soldier for the War;4 this method of recruiting has been used with several other Criminals,5 and if they prove good Soldiers they will make the state abundant amends for former offences.

The trial at Trenton will I suppose be a long and solemn one. The Judges I doubt not are good men, tho’ Whipple is a Paltry name, and Arnold a bad one. The Pensylvania Counsel are a sensible body; I don’t know Col. Dyer’s Colleagues, but he will be long winded; I think I have heard that Dr Johnston is very clever.6

I was in hopes Mr Jones would have been able by last Post to have confirmed the Surrender of Gibralter.7 I was disappointed, but was so far happy as to find nothing in the papers which rendered the account brought by the Rising Sun, improbable; a loose report was circulated yesterday, that the French Minister had a confirmation of it, should this be true, yr favr of this week, will confirm the glad tidings.8

I am sorry to find Mr Jones’s health not so well restored as I hoped from his being in Congress; the dregs of his disorder were still hanging about him, wch [can] only be removed by temperate exercise.9

The Conduct of Rhode Island, taken altogether, is really astonishing, and this circumstance in the Union, which I never attended to before, that one little State can stop so important an object, agt the opinion of all the others, may be attended with the worst of consequences. I suppose it extends to no other case but that of a Revenue.10 I took the liberty to hint to a friend at Richmond,11 the propriety of taking up the Subject in a new mode to avoid the consequences of your want of credit abroad; I received for answer, that upon the information from Rhode Island, the Assembly had repealed the Law of this State & had gone no further: and that Gentn. appeared to[o] impatient to put an end to the Session, to admit a hope of their taking up the Subject anew.12 Suppose the 12 States were to renew their laws, without making them dependant on the other,13 with this addition that the sums collected in each state, should be entered to her credit & she charged wth a Proportion of the Interest or principal,14 to the discharge of wch the fund is applied, leaving Rhode Island charged with her proportion,15 which she must discharge some other way, if she don’t approve of this. I se no objection to this method, unless it be supposed that this duty would be considered as such a Clog upon trade as to give Rhode Island an unreasonable advantage in commerce by throwing the imports into that State—an objection wch would be weighty, if several states were in the opposition, but does not appear of much consequence, when applied to a single one, especially if provision be made for Subjecting to the Duty all goods imported there, & afterwards brought into another State, confining the imports exempted to their own consumption. The thought however is sudden & it may be liable to other great objections16 I just hazard it for yr consideration.

Pray what is the glorious News they announce in the papers to have received in Britain from America? Is it the Revolt of part of the New England States mentioned in other Paragraphs? and have they any other ground for a hope of that sort, than what this step in Rhode Island furnishes? I hope not & that it is one of their expiring Puffs.17

Our Assembly have had an Application for a divorce upon the Scriptural ground—the husband was the Petitioner and proved a man in bed with his wife, but the Assembly were such rigid Judges, as to insist upon the old fashioned proof of Rem in Re, & dismiss’d the Petition. It was the case of one Hill a Baptist Preacher, who married a daughter of Colo Philip Johnston.18 I think they might have dismiss’d it upon a better ground, that of it’s being a Judiciary power, which they have no right to exercise. And as none of the Courts at present have the Jurisdiction, they might have appointed one to hear and determine cases of this sort, but not decide it themselves.19 Dr Lee’s Letter is under consideration, & is likely to turn out a Bagatelle.20 I am Dr Sr

Yr mo. Affe Friend

Edmd Pendleton

1Judging from references in the present communication, the missing letter of 19 November from JM to Pendleton must have contained much of the news related in JM’s letter on the same day to Randolph (q.v.).

2See Pendleton to JM, 25 November 1782, and nn. 1, 2.

3Pendleton probably wrote, or intended to write, “thing,” as given in the extract in Henkels Catalogue. See David John Mays, ed., The Letters and Papers of Edmund Pendleton, II, 416–27.

4See 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, 426, n. 17; Randolph to JM, 5 October, n. 3; 26 October 1782, n. 9. Unlike the majority of his fellow justices on the bench of the Court of Appeals, Pendleton concluded in his opinion that judgment in the case at bar could be rendered without answering the “deep, important, &, I will add, an awful question” whether the tribunal could exercise the power of judicial review (David J. Mays, Edmund Pendleton, II, 199–201).

5Although this was the first occasion on which the General Assembly employed “this method of recruiting,” militia courts-martial had been authorized to sentence delinquents to various periods of service in the continental army (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 , IX, 344; X, 84, 225, 261, 417). By a statute enacted on 28 December 1782, the practice was discontinued, because “the periods of such service do not extend to the term of three years, and under the late regulations of the continental army no persons are admitted therein who are engaged for a less time.” Instead, militia delinquents were penalized to serve a year “on board the armed vessels for the defence of Chesapeake bay” (Journal of the House of Delegates description begins Journal of the House of Delegates of the Commonwealth of Virginia; Begun and Held at the Capitol, in the City of Williamsburg. Beginning in 1780, the portion after the semicolon reads, Begun and Held in the Town of Richmond. In the County of Henrico. The journal for each session has its own title page and is individually paginated. The edition used is the one in which the journals for 1777–1786 are brought together in two volumes, with each journal published in Richmond in 1827 or 1828, and often called the “Thomas W. White reprint.” description ends , October 1782, p. 91; 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 , XI, 175).

6William Whipple and Welcome Arnold (JM to Randolph, 19 November 1782, and nn. 12–17). Pendleton’s sally about Whipple reflected the practice of his day, particularly in America, of interchanging double “p’s” and double “f’s” in certain words (see under “whiffet” in Mitford M. Mathews, ed., A Dictionary of Americanisms on Historical Principles [2 vols.; Chicago, 1951], II, 1857). Thus “Whipple” becomes “Whiffle,” or a breeze which blows in unpredictable gusts. Welcome Arnold’s surname reminded Pendleton, of course, of Benedict Arnold. Both Welcome and Benedict were descendants of William Arnold (1587–1678), a prominent Rhode Island leader during the early years of that colony (Isaac N. Arnold, The Life of Benedict Arnold: His Patriotism and His Treason [Chicago, 1880], pp. 16–17). In 1775 Pendleton and Eliphalet Dyer had been delegates in the Continental Congress (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , II, 15, 19). “Dyer,” John Adams recorded in his diary, “is long-winded, round-about, obscure and cloudy, very talkative and very tedious, yet an honest, worthy man, means and judges well” (Charles Francis Adams, Works of John Adams, II, 422–23). For William Samuel Johnson, see JM to Randolph, 19 November 1782, n. 16.

7The letter, presumably dated 26 November, from Jones to Pendleton has not been found.

8Upon his arrival in Delaware Bay on 17 November from the Canary Islands, the master of the American privateer “Rising Sun” reported that word of the surrender of Gibraltar on 17 September had reached Tenerife just before he sailed from there on 20 October 1782 (Pennsylvania Packet, 21 November 1782). If Pendleton heard the fictitious story before it appeared in print, JM probably had related it in his missing letter of 19 November. The Virginia Gazette description begins Virginia Gazette, or, the American Advertiser (Richmond, James Hayes, 1781–86). description ends of 7 December, which Pendleton could have read before writing the present letter, included Gibraltar news brought to Philadelphia by the “Rising Sun” but only to the effect that the combined force of Spanish and French troops had closely invested the stronghold by 15 September with their earthworks and gun emplacements. For the unsuccessful outcome of the siege of Gibraltar, see JM to Randolph, 12 November 1782 (first letter), n. 2. The “French Minister” was La Luzerne.

9See JM to Randolph, 19 November 1782, and n. 22. The journal of Congress records tallied votes on six of the twelve daily sessions between 19 November and 6 December, both inclusive. Joseph Jones voted in all of these polls except on 20 November and 4 December 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, 736–72, passim, and especially 740, 764).

11Later in this sentence the “friend” is identified as one who was anxious for the General Assembly to adjourn. For this reason, he possibly was Charles Carter (1732–1806) of Shirley, Stafford County, who on 27 December 1782 in the House of Delegates seems to have introduced the motion bringing the session to a close the next day (Journal of the House of Delegates description begins Journal of the House of Delegates of the Commonwealth of Virginia; Begun and Held at the Capitol, in the City of Williamsburg. Beginning in 1780, the portion after the semicolon reads, Begun and Held in the Town of Richmond. In the County of Henrico. The journal for each session has its own title page and is individually paginated. The edition used is the one in which the journals for 1777–1786 are brought together in two volumes, with each journal published in Richmond in 1827 or 1828, and often called the “Thomas W. White reprint.” description ends , October 1782, p. 86).

12On 6 December the Virginia House of Delegates adopted a bill, introduced two days earlier, to repeal “an act, to enable the Congress of the United States to levy a duty on certain goods and merchandizes, and also on all prizes.” The Senate concurred on 7 December (Journal of the House of Delegates description begins Journal of the House of Delegates of the Commonwealth of Virginia; Begun and Held at the Capitol, in the City of Williamsburg. Beginning in 1780, the portion after the semicolon reads, Begun and Held in the Town of Richmond. In the County of Henrico. The journal for each session has its own title page and is individually paginated. The edition used is the one in which the journals for 1777–1786 are brought together in two volumes, with each journal published in Richmond in 1827 or 1828, and often called the “Thomas W. White reprint.” description ends , October 1782, pp. 49, 52, 54, 55, 58; 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 , XI, 171). Pendleton’s letter conveyed to JM, and through him to Congress, the earliest word of this fateful action. See Notes on Debates, 24 December, and n. 16; JM to Randolph, 24 December 1782.

13Many of the states, in ratifying the impost amendment, had made their approval contingent upon a prior approval by all or most of the other states (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, 221, n. 11).

14That is, of the debt owed by Congress.

15If by “her proportion,” Pendleton meant a share equivalent to Rhode Island’s percentage of the financial requisition for 1782, it would have been 2.7 per cent (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXI, 1090). See also JM to Randolph, 19 November 1782, n. 11.

16Pendleton’s suggestion was rendered unconstitutional by the following provisions of Article IV of the Articles of Confederation: “and the people of each state shall have free ingress and regress to and from any other state, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions and restrictions as the inhabitants thereof respectively, provided that such restrictions shall not extend so far as to prevent the removal of property imported into any state, to any other state, of which the Owner is an inhabitant; provided also that no imposition, duties or restriction shall be laid by any state, on the property of the united states, or either of them” (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XIX, 215).

17Pendleton probably had read in the Virginia Gazette description begins Virginia Gazette, or, the American Advertiser (Richmond, James Hayes, 1781–86). description ends of 7 December passages with a London date line of 24 September 1782 that reported “great discontents and distresses among the people in the northern provinces, who were absolutely unable to pay the taxes, which had been assessed for the service of the present year” and of a “revolt of a part of the New England provinces” which had “thrown the French Cabinet into a ferment.”

18The Reverend Francis Hill (d. 1820?) of Charles City County prayed in his memorial of 12 November “to be dissolved from the bonds of matrimony,” because his wife, nee Elizabeth Johnston, had caused him “extreme misery” by her scandalous intimacy with his overseer. On 6 December 1782 the report of the Committee for Religion, to which the petition had been referred, was submitted and tabled (Journal of the House of Delegates description begins Journal of the House of Delegates of the Commonwealth of Virginia; Begun and Held at the Capitol, in the City of Williamsburg. Beginning in 1780, the portion after the semicolon reads, Begun and Held in the Town of Richmond. In the County of Henrico. The journal for each session has its own title page and is individually paginated. The edition used is the one in which the journals for 1777–1786 are brought together in two volumes, with each journal published in Richmond in 1827 or 1828, and often called the “Thomas W. White reprint.” description ends , October 1782, pp. 13, 55). The committee decided that Hill was unable conclusively to prove his wife guilty of an act of adultery (“Rem in Re”), and that there was strong evidence of his cruel treatment of her, of his connivance with his overseer to establish grounds for divorce so that he could marry a younger woman who had caught his fancy, and of his adamant refusal to be reconciled with his wife, even though she had “consented” to be with him (MS memorial and report in Virginia State Library).

Hill left Charles City County in 1787, but what happened to him thereafter has not been determined with certainty. He may have been the Francis Hill who settled in Greensville County in 1790 and who, shortly before his death, described himself in his will as “Late an Atty. at law, but now a Baptist minister” (Personal-Property Tax Book, Charles City County, 1787, MS; Greensville County Court Records, Will Book 3, 1816–1826, pp. 155–56, microfilm; both in Virginia State Library).

Phillip Johnston (d. ca. 1817), a lawyer who had risen from the rank of captain to that of lieutenant colonel in the militia of Caroline County between 1773 and 1780, served with Pendleton and others as Anglican vestrymen of St. Asaph Parish (T. E. Campbell, Colonial Caroline, pp. 243, 284, 370, 371, 434, 467; Gwathmey, Historical Register of Virginians description begins John H. Gwathmey, Historical Register of Virginians in the Revolution: Soldiers, Sailors, Marines, 1775–1783 (Richmond, 1938). description ends , p. 424; Land-Tax Books, Caroline County, 1817–1818. MSS in Virginia State Library).

19On 17 December 1782 the House of Delegates laid over for consideration “on the third Thursday in May next” a bill “to establish spiritual jurisdiction in certain cases, in the High Court of Chancery” (Journal of the House of Delegates description begins Journal of the House of Delegates of the Commonwealth of Virginia; Begun and Held at the Capitol, in the City of Williamsburg. Beginning in 1780, the portion after the semicolon reads, Begun and Held in the Town of Richmond. In the County of Henrico. The journal for each session has its own title page and is individually paginated. The edition used is the one in which the journals for 1777–1786 are brought together in two volumes, with each journal published in Richmond in 1827 or 1828, and often called the “Thomas W. White reprint.” description ends , October 1782, pp. 66, 68, 70). See Randolph to JM, 20 December 1782. Not until 19 February 1827 did the General Assembly enact a comprehensive law placing divorce cases within the purview of the superior courts; and even then appeal might be made to the Assembly, provided that a divorce had not already been granted (Journal of the House of Delegates description begins Journal of the House of Delegates of the Commonwealth of Virginia; Begun and Held at the Capitol, in the City of Williamsburg. Beginning in 1780, the portion after the semicolon reads, Begun and Held in the Town of Richmond. In the County of Henrico. The journal for each session has its own title page and is individually paginated. The edition used is the one in which the journals for 1777–1786 are brought together in two volumes, with each journal published in Richmond in 1827 or 1828, and often called the “Thomas W. White reprint.” description ends , December 1826, p. 170; Acts Passed at a General Assembly of the Commonwealth of Virginia … [Richmond, 1827], pp. 21–22).

20See Pendleton to JM, 14 October, and n. 13; 8 November, and n. 8; Randolph to JM, 5 October, and n. 4; 29 November, and nn. 7, 11; 13 December 1782.

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