To Edmund Randolph
Printed text (Madison, Papers [Gilpin ed.] description begins Henry D. Gilpin, ed., The Papers of James Madison (3 vols.; Washington, 1840). description ends , I, 90–93; and Madison, Letters [Cong. ed.] description begins [William C. Rives and Philip R. Fendall, eds.], Letters and Other Writings of James Madison (published by order of Congress; 4 vols.; Philadelphia, 1865). description ends , I, 43). The third paragraph of the letter, as here printed, is taken from the Congressional edition; the rest follows the version published in the Gilpin edition. In both of these editions the letter is misdated “May 1, 1781.” See Papers of Madison description begins William T. Hutchinson, William M. E. Rachal, et al., eds., The Papers of James Madison (4 vols. to date; Chicago, 1962——). description ends , III, 100–101.
Philadelphia, May 1, 178.
The case of the vessel captured within North Carolina was some time since remitted to Congress by Governor Harrison. I am glad to find your ideas correspond so exactly with those I had advanced on the subject.1 The legislative power over captures, and the judiciary in the last resort, are clearly vested in Congress by the Confederation. But the judiciary power in the first instance, not being delegated, is as clearly reserved to the Admiralty Courts of the particular States within which the captures are made. Captures made on the high seas must fall within the jurisdiction of the State into which it shall please the captor to carry them. It will be sufficient, I believe, to insert in the instructions to privateers, a clause for preventing the grievance complained of by North Carolina. The anger of Mr. Burke was erroneous in its principle, as well as intemperate in its degree. The offender being an officer of Congress,2 and not of Virginia, Congress, and not Virginia, should have been resorted to for redress.
On a consultation before Doctor Lee left us,3 it was determined that we ought to renew our attempts to obtain from Congress a decision on the cession of Virginia, before the meeting of the Legislature. The attempt was accordingly made, and produced all the perplexing and dilatory objections which its adversaries could devise. An indisposition of the President, which suspended the vote of Maryland, furnished an argument for postponing, which it was prudent to yield to,4 but which is now removed by the arrival of Mr. Wright,5 a new Delegate from that State. We shall call again on Congress for a simple answer in the affirmative or the negative, without going into any unnecessary discussions on the point of right; and should the decision be postponed sine die,6 we hope the State will consider itself at liberty to take any course which its interest shall suggest. It happens very unluckily that Virginia will only have two Representatives present during the interesting business. Mr. Jones cannot be prevailed on to wait the event.7 Colonel Bland thinks the validity of charters unimportant to the title of Virginia, and that the title of the natives militates against the claims of the companies.8 Is not my situation an enviable one?
A letter which I received a few days ago from Mr. Jefferson9 gives me a hope that he will lend his succor in defending the title of Virginia. He professes ignorance of the ground on which the report of the committee places the controversy. I have exhorted him not to drop his purpose, and referred him to you as a source of copious information on the subject. I wish much you and he could unite your ideas on it.10 Since you left us I have picked up several pamphlets which had escaped our researches. Among them are the examination of the Connecticut claim,11 and the charter of Georgia, bound up with that of Maryland and four others.12 Presuming that a better use will be made of them, I will send them by Mr. Jones, requesting, however, that they may be returned by the hands of him, Dr. Lee, or yourself, as the case may be.
A further communication from the French Minister informs us, that the Court of France laments the weakness of our army; insinuates the idea of co-operation in expelling the enemy from the United States; apprehends attempts to seduce the States into separate negotiations, and hopes measures will be taken to frustrate such views. I believe, from this and other circumstances, that the Court of France begins to have serious suspicions of some latent danger. It is extremely probable, that as the enemy relax in their military exertions against this country, they will redouble the means of seduction and division[.]13 This consideration is an additional argument in favor of a full representation of the States. In a multitude of counsellors there is the best chance for honesty, if not of wisdom.
The subject of Vermont has not yet been called up. Their agents and those of the land-mongers are playing with great adroitness into each others’ hands.14 Mr. Jones will explain this game to you. Colonel Bland is still schismatical on this point. I flatter myself, however, that he will so far respect the united opinion of his brethren as to be silent.15 Mr. Lee entered fully into the policy of keeping the vote of Vermont out of Congress.16
The refugees from New York have lately perpetrated one of the most daring and flagrant acts that has occurred in the course of the war. A captain of militia of New Jersey, who unfortunately fell a captive into their hands, was carried to New York, confined successively in different prisons, and treated with every mark of insult and cruelty; and finally brought over to the Jerseys, and in cold blood hanged. A label was left on his breast, charging him with having murdered one of their fraternity, and denouncing a like fate to others. The charge has been disproved by unexceptionable testimony. A number of respectable people of New Jersey have, by a memorial, called aloud on the Commander-in-Chief for retaliation;17 in consequence of which he has, in the most decisive terms, claimed of Sir Henry Clinton a delivery of the offenders up to justice, as the only means of averting the stroke of vengeance from the innocent head of a captive officer of equal rank to the Jersey captain. The answer of Clinton was not received when General Washington despatched a state of the transaction to Congress.18
2. That is, the legal status of the captain of a privateer was derived from a letter of marque and reprisal issued to him by Congress, not by a state.
4. See Motion on Chairman of Congress, 15 April; Virginia Delegates to Harrison, 17 April; Motion To Amend Lee’s Motion on Western Lands, 18 April, and n. 1; Virginia Delegates to Harrison, 23 April; JM to Pendleton, 23 April 1782.
5. Turbutt Wright (1741–1783) of Queen Annes County, Md., had taken his seat in Congress on 29 April 1782 (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXII, 217). Besides having been a member of the General Assembly, 1773–74 and 1781–82, he had helped to draft the constitution of Maryland in 1776 and had served on the state Council of Safety in the following year.
6. On the date of the present letter, Congress resumed consideration of the Boudinot committee report and of Arthur Lee’s revised amendment thereto (JM to Jefferson, 15 January, n. 9; Motion To Amend Lee’s Motion on Western Lands, 18 April 1782, and n. 1). The lengthy report opposed Virginia’s offer of cession, approved New York’s, viewed the land claims of the Indiana Company with favor, and recommended that “the petition of the Illinois and Wabash companies be dismissed” (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXII, 225–32). During the extended discussion on 1 May, the representatives of New York, Virginia, South Carolina, and Georgia defeated a motion to postpone consideration of this report, but Congress adjourned before the Virginians could ask for “a simple answer in the affirmative or the negative” on the offer of their state to cede her title to the Old Northwest (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXII, 223–24, 232–33). See Motion on Delegates’ Financial Interest in West, 2 May, and n. 1; and Motion on Point of Order, 3 May 1782, nn. 3, 4.
7. Joseph Jones attended Congress on 1 May, but he apparently left for Virginia early the next day, before Congress convened. Governor Harrison submitted the issue of the western lands on 6 May to the speaker of the House of Delegates for referral to the Virginia General Assembly when it convened (JM to Randolph, 9 April 1782, n. 5). On 1 June 1782 the legislature appointed George Mason, Jefferson, Randolph, Arthur Lee, and Dr. Thomas Walker as a committee to prepare and publish a defense of Virginia’s western claims (Virginia Delegates to Harrison, 12 March, n. 4; Randolph to JM, 1 June 1782).
8. Although a statement by Bland to this effect has not been found, he probably agreed with Arthur Lee. Deeming “the validity of charters unimportant,” Lee based the title of Virginia and several other states to the trans-Appalachian West almost solely upon the fact that they “individually were sovereign and independent, and upon them alone devolved the rights of the Crown within their respective territories” (Burnett, Letters description begins Edmund C. Burnett, ed., Letters of Members of the Continental Congress (8 vols.; Washington, 1921–36). description ends , VI, 448). See also Instructions on Peace Negotiations, 7 January, and n. 9; Randolph to JM, 10 May 1782, and n. 7. Unlike the Indiana Company, most companies speculating in western lands had not purchased their alleged holdings from Indian tribes (Papers of Madison description begins William T. Hutchinson, William M. E. Rachal, et al., eds., The Papers of James Madison (4 vols. to date; Chicago, 1962——). description ends , II, 178 nn.; III, 288, n. 5; 304, n. 1).
12. The pamphlets probably were the one by the Reverend William Smith, cited in n. 2 of JM to Randolph, 9 April 1782, and six charters comprising that of “Georgia, bound up with that of Maryland” and “four others,” as listed in E. Millicent Sowerby, comp. and ed., Catalogue of the Library of Thomas Jefferson, III, 271, 275.
13. JM encoded the remarks on this subject in the delegates’ dispatch of 30 April 1782 to Governor Harrison (q.v.). He probably encoded this paragraph also.
15. See JM to Pendleton, 23 April 1782, n. 10. On 21 May 1782, in a poll upon John Morin Scott’s motion to refer to a special committee two statutes, recently enacted by the New York General Assembly and generally conciliatory in their offers to the Vermonters, JM voted “ay” and Bland, “no.” Even if both men had voted “ay,” the motion still would have failed to pass (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXII, 281–86).
16. That is, to refuse even to consider admitting Vermont as a state. Between 1 March and 3 April, there were five tallied votes in Congress on the Vermont issue. In four of these, JM and Lee voted alike (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXII, 107–8, 114, 158, 163). During that period Bland was in Virginia. Between 17 and 20 April 1782, there were four tallied votes on the same issue. With the exception of one roll call in which Lee did not share, his stand and JM’s were again the same. Bland and JM differed in viewpoint on three of the polls (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXII, 188–90, 204).
17. Joshua Huddy (ca. 1745–1782) of Monmouth County, N.J., a captain of state artillery and at times a privateersman, had been a locally prominent leader in the internecine strife between patriots and Tories in his county. The Tories were usually called “refugees,” because many of them had fled to New York City, whence their armed raids were directed by the Board of Associated Loyalists (Papers of Madison description begins William T. Hutchinson, William M. E. Rachal, et al., eds., The Papers of James Madison (4 vols. to date; Chicago, 1962——). description ends , III, 52–55; 55, n. 2). On 24 March a party of “refugees” captured Huddy at Tom’s River, N.J., and imprisoned him in New York City. General Clinton, apparently given to understand that Huddy would be exchanged for a Tory or Tories held captive in New Jersey, delivered the prisoner to the custody of Captain Richard Lippincott (1745–1826), a refugee from Shrewsbury, Monmouth County. At Middletown Point, near his home, Lippincott hanged his prisoner on 12 April, allegedly as a reprisal for the recent “murder” by militia of Philip White, a refugee kinsman of Lippincott. Upon the arrival of Huddy’s body at Monmouth Court House (Freehold) for burial, fourteen spokesmen for a large mass meeting addressed a memorial to Washington telling the story of Huddy’s execution, supplying written testimony that he had been in prison when White was killed, and requesting the commander-in-chief to demand Lippincott or an officer of equivalent rank from Clinton for condign punishment (New Jersey Archives description begins William S. Stryker et al., eds., Documents Relating to the Revolutionary History of the State of New Jersey (2d ser.; 5 vols.; Trenton, 1901–17). description ends , 2d ser., V, 400, 424–25; Franklin Ellis, History of Monmouth County, New Jersey [Philadelphia, 1885], pp. 213, 216–17, 219–20, 223–25; Katherine Mayo, General Washington’s Dilemma [New York, 1938], pp. 71–74, 82–84, 88, 94–95, 99).
18. On 20 April, after receiving the Monmouth County memorial and the opinions of “the general and field officers” of his army, Washington wrote to Congress, enclosing a copy of the memorial, of his letter to Clinton demanding that Lippincott be delivered up for hanging, and the affidavits of sundry witnesses of Huddy’s execution and of White’s death from bullets fired by his captors when he tried to escape. On 29 April Congress unanimously resolved that the enemy’s “unprecedented and inhuman cruelties, so contrary to the laws of nations and of war, will no longer be suffered with impunity” and that Washington’s “fixed purpose of exemplary retaliation” had “their firmest support” (Fitzpatrick, Writings of Washington description begins John C. Fitzpatrick, ed., The Writings of George Washington, from the Original Sources, 1745–1799 (39 vols.; Washington, 1931–44). description ends , XXIV, 135–39, 144–45, 146–47; JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXII, 217–18). In May 1782, over three months before General Sir Guy Carleton, Clinton’s successor as commander-in-chief of the British Army in North America, let Washington know that Lippincott had been obeying orders and hence had been exonerated by a court-martial, Washington took the alternative step, mentioned in his letter to Clinton, of having a British prisoner of captain’s rank selected by lot to go to the gallows in case Lippincott should not be delivered for execution. Much to Washington’s embarrassment, the lot fell upon Captain Charles Asgill, a prisoner under the Yorktown capitulation and a member of an influential British family. Yielding to pressure from the government of France, Congress on 7 November 1782 directed Washington “to set Captain Asgill at liberty” (Fitzpatrick, Writings of Washington description begins John C. Fitzpatrick, ed., The Writings of George Washington, from the Original Sources, 1745–1799 (39 vols.; Washington, 1931–44). description ends , XXIV and XXV, passim; JCC, XXIII, 652–53, 662 and n., 689–91, 695 n., 715, 718–19, 829 n., 845; Wharton, Revolutionary Diplomatic Correspondence description begins Francis Wharton, ed., The Revolutionary Diplomatic Correspondence of the United States (6 vols.; Washington, 1889). description ends , V, 462–63, 463 n., 617–18, 634–36, 833, 870, 872; VI, 64–65; Madison, Writings [Hunt ed.] description begins Gaillard Hunt, ed., The Writings of James Madison (9 vols.; New York, 1900–1910). description ends , I, 252–53 n.). A gratifying result of the Huddy episode was the dissolution of the Board of Associated Loyalists (Thomas Jefferson Wertenbaker, Father Knickerbocker Rebels: New York City during the Revolution [New York, 1948], p. 232).