Protest of Virginia Delegates
MS (NA: PCC, No. 30, fols. 557–59). In JM’s hand, except for Joseph Jones’s and Edmund Randolph’s signatures. A copy in the library of Duke University is not in the hand of any of the Virginia delegates.
[10 October 1781]1
That no misconstruction unfavorable to the territorial rights of the State of Virginia may be put on the refusal of its Delegates to exhibit evidence in support of them before the Committee to whom the territorial Cessions of Virginia New York and Connecticut were referred according to the request of that Committee and the example of the Delegates from New York and Connecticut; the considerations on which that refusal was grounded, and of which the Committee were verbally apprized before any progress was made in the present enquiry, are now stated to them in writing.2
First. The Acts of Congress3 in compliance with which the abovementioned Cessions were made are founded on the supposed inexpediency of discussing the questions of right, & recommends to the several States having territorial claims in the Western Country, a liberal surrender of a portion of those claims for the benefit of the United States as the most advisable means of removing the embarrassments which such questions created. To make these acts of surrender then, the basis of a discussion of territorial rights is a direct contravention of the Acts of Congress, and tends to diminish the weight and efficacy of future recommendations from them to their Constituents.
Secondly. If the present discussion has been opened upon an opinion that Congress can assume for the use of the United States any portion of territory claimed by an individual State and supposed by them not to fall within its limits, we are now to learn the page of the Confederation4 in which this power is delegated; if upon an opinion that Congress may exercise jurisdiction in territorial controversies between individual States, we refer the Committee to the Article of the Confederation which vests an exclusive jurisdiction in such cases in another tribunal.5
Thirdly. The Cases now before the Committee may eventually be brought before that constitutional tribunal. Ought not its decrees to be free from the bias & suspicion to which they may be exposed by the most indirect prejudication on the subject of right by so high an Authority as Congress, or even a Committee of Congress?
Fourthly. Although it should be confessed that the cognizance of territorial rights belongs to Congress or a Committee of Congress (against which position we strenuously protest) yet the very form of conducting this business, if scanned by the ordinary rules of Justice, is manifestly and essentially defective. Without any previous notice to the parties of an intention to discuss questions of right and receive evidence relating to them, nay, after expressly holding forth to them an intention to exclude all such questions, they are now called upon to exhibit the evidence which supports their respective claims, by which means prepossessions in favor of one party may be created by arguments and representations which another party is unprepared to controvert.
Fifthly. Nor can the conditions or reservations annexed to some of the Cessions6 render a discussion of territoria[l] rights necessary to determine the Authority of Congress to accept them. For even if these reservations should interfere with the claims of any other State, what injury can arise, since the doors of the Constitutional tribunal will not be barred to them and it may at the same time be declared by Congress that such acceptance shall in no wise affect them.
James Madison Junr.
1. Two bits of evidence support the assignment of this date to the protest. The Duke University Library copy, which appears to have been made in the autumn of 1781, is headed, “Reasons assigned by the Delegates of Virginia to the Committee for territorial Cessions; for refusing to exhibit Evidence touching the Rights of Virginia, October 10th. 1781.” In their letter of 9 October to Governor Nelson (q.v.), the delegates implied that they would probably have an opportunity the next day to present their “written reasons” to the committee. It submitted its report to Congress on 3 November 1781 (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXI, 1098).
4. Articles of Confederation.
5. Although this is an accurate assertion, it leaves the erroneous impression that Article IX of the Articles of Confederation conferred no authority upon Congress in arranging for the tribunal. The article provides that “The United States, in Congress assembled, shall also be the last resort on appeal in all disputes and differences now subsisting, or that hereafter may arise between two or more states concerning boundary, jurisdiction or any other cause whatever.” Whenever a state, involved in such a dispute, “shall present a petition to Congress, stating the matter in question, and praying for a hearing, notice thereof shall be given, by order of Congress, to the legislative or executive authority of the other State in controversy, and a day assigned for the appearance of the parties by their lawful agents, who shall then be directed to appoint, by joint consent, commissioners or judges to constitute a court for hearing and determining the matter in question; but, if they cannot agree, Congress shall name three persons out of each of the United States, and from the list of such persons each party shall alternately strike out one, the petitioners beginning, until the number shall be reduced to thirteen; and from that number not less than seven, nor more than nine names, as Congress shall direct, shall, in the presence of Congress, be drawn out by lot; and the persons whose names shall be so drawn, or any five of them, shall be commissioners or judges to hear and finally determine the controversy, so always as a major part of the judges who shall hear the cause shall agree in the determination.” At the close of the section of Article IX dealing with the mode of deciding disputes between states, the range of possible decisions by the tribunal is limited by the proviso that “no State shall be deprived of territory for the benefit of the United States” (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , IX, 916–18).
6. For the principal “conditions or reservations” included in the act of cession by the Virginia General Assembly, see Papers of Madison description begins William T. Hutchinson, William M. E. Rachal, et al., eds., The Papers of James Madison (2 vols. to date; Chicago, 1962——). description ends , II, 77–78; Journal of the House of Delegates description begins Journal of the House of Delegates of Virginia, March 1781 Session in Bulletin of the Virginia State Library, XVII, No. 1 (January 1928). description ends , October 1780, p. 80.