Session of Virginia Council of State
The eleventh article of Virginia’s Form of Government (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, 116) provided for a Privy Council, or Council of State, of eight members to be chosen by the legislature. Every three years the two houses of the legislature, by joint ballot, removed two of the councilors and thereupon, by the same method, chose two persons in their stead. The two thus displaced must wait at least three years to be eligible for re-election to the council. The president of the Privy Council, chosen annually by its membership, was also the lieutenant governor of the commonwealth. Official action by the council required at least four members to be present at its session. A lesser number sometimes met to discuss public business, but, in order to become effective, decisions had to be approved at the first subsequent meeting when a quorum was present.
From the minutes taken by the clerk at each session and signed by each councilor who was present, the clerk then prepared the finished journal and appended the signatures to it in his own hand. JM’s attendance is therefore a matter of record. The journal also notes when a councilor was in Williamsburg but could not come to a meeting by reason of illness or other cause. On the other hand, the loss of the minutes for the period between 6 April 1779 and 12 May 1780 makes JM’s final eight months of service as a councilor almost a blank. In 1779, however, he probably followed his custom of spending the “sickly season,” from about mid-July to early November, at Montpelier.
Neither the council nor the governor had any significant constitutional authority except when they worked together. According to the Form of Government (Art. 9), the governor should “with the advice of a Council of State, exercise the executive powers of government according to the laws of this commonwealth; and shall not, under any pretence, exercise any power or prerogative by virtue of any law, statute, or custom, of England.” More specifically, the constitution enabled the governor, on advice of council, to grant reprieves and pardons in most instances; to “embody” and direct the militia, and commission or suspend its officers; to name ad interim administrative and judicial officials, when the legislature was not in session; and to appoint justices of the peace, sheriffs, and coroners upon nomination by the court of the county in which they were to serve (ibid., IX, 115–19).
Although these were the only definite duties assigned by the constitution to the governor acting in conjunction with the Council of State, the legislature delegated many special powers to them, both before and while JM was a councilor. These added responsibilities, which were often of an emergency nature occasioned by the Revolution, included a great extension of the powers to appoint state employees; to issue financial warrants; to direct recruiting, training, equipping, provisioning, and utilization of troops and seamen; to erect fortifications, barracks, and military hospitals; to apprehend traitors and take their forfeited property into custody; to suppress domestic insurrections, Indian uprisings, counterfeiting, and the engrossment of essential war commodities; to prevent the exportation of foods and other articles needed by the troops; to maintain fair prices; and to supervise the commonwealth’s lead mines, land office, and navy (ibid., IX, 178–592; X, 15–217, passim).
In view of this impressive variety of important duties, membership on the council was no sinecure. Reflecting the rapid inflation, the total salary which the eight members were to divide annually among themselves, in proportion to the frequency with which each of them appeared at the council meetings, rose from £2,400 to £20,000 (ibid., IX, 435, 521; X, 118, 219). JM took his seat at the council table on 14 January 1778. He had been chosen by the members of the General Assembly on 12 November 1777, when sixty-one votes were cast for him against forty-two others given in favor of his closest competitor, Meriwether Smith. Three days later the Senate confirmed the outcome of this joint ballot (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, unless otherwise noted, is the one in which the journals for 1777–1781 are brought together in one volume, with each journal published in Richmond in 1827 or 1828, and often called the “Thomas W. White reprint.” description ends , October 1777, pp. 25, 29; Brant, Madison description begins Irving Brant, James Madison (6 vols.; Indianapolis and New York, 1941–61). description ends , I, 313–15). The seat to which JM was elected had been vacant for nearly five months. The extant minutes of the council bear witness that JM attended 177 of its sessions. Of these, 170 date in 1778, while the remaining 7 are the only ones during the next year of which any official record survives. With the exception of a week’s illness in May and one day in June, he shared in every session of the council from 14 January to 13 July 1778. Thereafter, until 7 November of that year, he was at Montpelier. Loss of the minutes leaves in doubt the day of his final service as a councilor. In all likelihood it was shortly after 14 December 1779 when the legislature chose him to go to the Continental Congress as one of the delegates from Virginia. (See Credentials as a Delegate to Continental Congress, 14 December 1779, and JM to Benjamin Harrison, 16 [December] 1779.)
Although two letters of Edward Coles, written some thirty years after Jefferson’s death, state that Jefferson had told him of JM’s service to Governor Patrick Henry as an amanuensis and as the only member of Virginia’s executive branch who understood French, this recollection is too general and was recorded too long after the alleged facts to be relied upon in the absence of contemporary evidence (Edward Coles to Hugh B. Grigsby, 23 December 1854, Virginia Historical Society; Edward Coles to William C. Rives, 26 March 1858, LC: William C. Rives Papers). In no instance, insofar as any contemporary manuscript is concerned, can JM’s service as a councilor be isolated from that of his fellow members. For this reason, the editors have limited their publication of the council minutes, and of letters from the Governor in Council, to samples illustrative of its problems and procedures on days when JM was in attendance and hence presumably contributed his advice. An edition of the Journals of the Council of the State of Virginia, for the period of JM’s service, was carefully edited by H. R. McIlwaine and published by the Virginia State Library at Richmond in 1932.
Wednesday January 14th 1778
James Madison jun. Esquire, who hath been duly elected a Member of the Privy Council, appeared, and the Oath of Office being administered to him, he took his Seat at the Board accordingly3
Present James Madison jr. Esqr.
A Warrant was issued by the Governor, with the Advice of the Council, upon the public Treasurer for one thousand pounds payable to Benjamin Putney for the use of Mr John Pierce upon Account as purchasing Commissary of provisions.4
The Governor having communicated to the Board a Letter from a Commee of Congress, of the 31st December last, representing the alarming Accounts of the Distresses of the American Army for the Want of provisions, insomuch that it is hinted to Congress, by General Washington, that the Troops, unless an immediate supply is sent, must either “Starve Disolve or Disperse” and asking the advice of the Council thereupon—they do advise his Excellency to give Directions to Colonel Aylett the Continental Commissary, forthwith to send off an active intelligent & proper person to the Northwestern parts of this State in order to buy up all the pork Beef & Bacon that can be procured, & to forward it with all possible Dispatch to Head Quarters, & to procure Waggons for conveying such Salt & other necessaries as his Excellency may think can best be supplyed from hence. All which the Governor orders accordingly And he also with the Advice of Council sent ye said Letter to the Assembly.5
His Excellency informed the Council that he had prevailed on Colonel David Rogers of the Senate, to Convey to the Governor of New Orleans by way of the Missisipi, a Letter which he was anxious to send & laying the same before them it was read approved of & ordered to be recorded.6 His Excellency then laid before the Council the following Instructions to Colonel Rogers which were also approved of viz.
You are to proceed with out Loss of time to engage a Lieutenant, Ensign & twenty eight men on double pay & with them you are to go to New Orleans with Despatches to the Governor of that place. I expect some Goods are to be sent from thence for this State which you will take under your Care & safely convey home with Answers to my Letters. General Hand will be desired to give you Assistance as to the Boats &c necessary for the Trip.7
I desire to know the Strength of the English possessions on Missisippi & whether they supply the West Indies with any & what articles. The present State, Temper & Condition of these people must be gathered by such means as will not endanger Discovery. You are to consider of a proper place to fix a post at for facilitating & securing the Trade to New Orleans & Consult the Spanish Governor on it.8
Describe to that Gentleman the real Strength & situation of Virginia the progress of the War & whatever else he may wish to know of the American Confederacy.
You are to convey my Instructions to Colonel Clark9 by which he is directed to escort you homeward & you are to correspond with me & let me know the upshot of this Business soon as possible.
Adjourned till tomorrow 10 oClock
Signed Dudley Digges
James Madison jr
1. Patrick Henry, governor of Virginia, 5 July 1776 to 1 July 1779, and 30 November 1784 to 30 November 1786.
2. John Blair (1732–1800), a lawyer of Williamsburg, had been a burgess during most of the years 1766–1771, and a member of the Convention of 1776. For a decade after 1778 he held several high judicial offices in his state. He was the rector of the College of William and Mary in 1781, a member of the Constitutional Convention of 1787, and an associate justice of the United States Supreme Court from 1789 to 1796. Nathaniel Harrison (ca. 1708–1786) served on the Council of State from October 1776 to December 1778. From the latter date until his death he was in the state Senate and served as its speaker in the session of October 1779 (Earl G. Swem and John W. Williams, eds., Register of the General Assembly, pp. 10–23; Charles P. Keith and Henry H. Wilson, The Ancestry of Benjamin Harrison [Harrisburg, Va., 1932]). David Jameson (1757–1793), later a correspondent of JM, was a York-town merchant-patriot who became lieutenant governor of Virginia in 1781, after four years on the Council of State. In 1783 he was a member of the state Senate.
3. The oath prescribed by law (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, 120) and administered by Governor Henry was as follows:
“I [James Madison, Jr.] elected one of the privy council of Virginia by the representatives thereof, do solemnly promise and swear, that I will, to the best of my skill and judgment, execute the said office diligently and faithfully according to law, without favour, affection, or partiality; and that I will be faithful to the commonwealth of Virginia, and will support and defend the same, according to the constitution thereof, to the utmost of my power; and that I will keep secret such proceedings and orders of the privy council as the board shall direct to be concealed, unless when the same shall be called for by either house of assembly. So help me God.”
4. Benjamin Putney (ca. 1746–post–1819), a tobacco merchant, an ensign, and later a second lieutenant of Surry County militia, was a state tobacco inspector and a member of the House of Delegates in 1778. He moved to North Carolina sometime after 1790 (Journal of the Senate of the United States, 15th Cong., 2d sess. [Washington, 1818], p. 211; John D. Boddie, Colonial Surry [Richmond, 1948], pp. 161, 171). John Pierce, Sr. (ca. 1736–?a. 1819), of James City County was named purchasing commissary of provisions on 17 October 1777. After serving as assistant commissary general for Virginia from December 1780 to September 1781, he was commissary general until his resignation on 12 January 1782. In April 1785 he became the sheriff of his county. He was a member of the House of Delegates from 1787 to 1798 (H. R. McIlwaine et al., eds., Journals of the Council of the State of Virginia [Richmond, 1931——], II, 11; III, 431; Calendar of Virginia State Papers, II, 424, 663; III, 18).
5. See below, Henry to Virginia Delegates, 20 January 1778 and nn. 2, 3. Washington’s grim comment about the fate of his army is in his letter of 23 December 1777, which was referred to the Board of War on 29 December (Journals of the Continental Congress, IX, 1065; Fitzpatrick, Writings of Washington description begins John C. Fitzpatrick, ed., The Writings of George Washington, from the Original Sources, 1745–1799 (39 vols.; Washington, D.C., 1931–44). description ends , X, 192).
6. Henry asked Bernardo de Gálvez (ca. 1746–1786), governor of Louisiana since 1777 and later the captor of Baton Rouge and Natchez (1779), Mobile (1780), and Pensacola (1781), to assist Rogers in moving supplies from New Orleans to Fort Pitt, and to loan money to Virginia. Henry also suggested to Gálvez that it would be in Spain’s interest to unite West Florida to the United States, for thereby he would stop the rivalry with Spain of the English settlement in that area of Florida (H. R. McIlwaine, ed., Official Letters of Virginia Governors, I, 227–29). Irish-born David Rogers (d. 1779) was a major in the militia of Ohio County and briefly its first county lieutenant in 1777. On 20 January 1778, the Council of State approved a warrant of £625 to defray his expenses and those of the thirty men accompanying him. By mid-August 1779, he was at Kaskaskia with two boatloads of goods from New Orleans. On 4 October 1779, near the mouth of the Licking River in Kentucky, Indians killed Rogers and fifty-six persons with him (ibid., I, 104 n.; Journals of the Council of State, I, 358, 444; II, 69; III, 312; James Alton James, ed., George Rogers Clark Papers, 1771–1781 [Springfield, Ill., 1912], pp. 38 n., 356; Ross B. Johnston, ed., West Virginians in the American Revolution [Parkersburg, W. Va., 1959], p. 239).
7. Brigadier General Edward Hand (1744–1802) of Pennsylvania, who became adjutant general of the Continental Army, 1781–1783, and a member of Congress, 1784–1785, was ordered by Congress on 10 April 1777 to go to Fort Pitt to “take measures for the defence of the western frontiers.” Congress relieved him of his onerous assignment in May 1778 (Journals of the Continental Congress, VII, 252; XI, 417). Henry’s letter to him, describing Rogers’ mission, is in H. R. McIlwaine, ed., Official Letters of Virginia Governors, I, 230.
8. In his letter to Gálvez, Henry proposed to construct “a fort at some place at the mouth of the Ohio,” but added that whether this should or should not be erected would hinge upon “what Your Excellency considers it advisable to reply to me.”
9. George Rogers Clark (1752–1818), who would capture Kaskaskia and Vincennes from the British in the summer of 1778, reinforced Rogers with about forty men a year later. Most of the forty shared Rogers’ own fate (above, n. 6).