To Edmund Randolph
RC (LC: Madison Papers). Addressed, “Edmund Randolph Esqr. Richmond.” Docketed, “J. Madison Jr. May 29. 1782.”
Philada. May 29th. 1782.
The inclosed letter1 was put into my hands several weeks ago. As I found by looking into it that it related to a subject decided on in the case of Col. Carrington, and which wd. be communicated by him to Majr. Pierce,2 I thought it unnecessary to transmit it by the Post. This is the first private conveyance3 that has offered.
I wrote to you yesterday morning by the post fully & in Cypher.4 As I am told however the Bearer will probably be in Richmond before the Post, it may not be amiss to repeat to you that we have heard nothing from Carlton since our refusal of the passport to his Secy.5 and that we have authentic information from Europe that insidious attempts have been made both on Dr. Franklin & Mr. Adams, by British Emissaries as well as tempting overtures employed to divide our Ally from us.6 These Machinations have served no other end than to expose the meanness & impotence of our Enemy, and to supply fresh proofs of the indissoluble nature of the Alliance. Mr. Adams begins to advance with considerable speed towards the object of his Mission in Holland.7
The Action in the West Indies is still wrapt up in darkness. The inclosed paper contains a Specimen of the obscure & contradictory advices which have alternately excited our hopes & our apprehensions.8
A Copy of sundry resolutions of the House of Delegates touching the exportation of Tobacco in the Flags, was laid before Congress yesterday by the Superintendt of Finance & ref[erred] to a Committee.9 On a review of the Doctrine of the 9th. art. of the Confederation I believe the right of the State to prohibit in the present case the exportation of her produce can not be controverted.*10 Congress have no authority to enter into any Convention with a friendly power which would abridge such a right.11 They cannot have a greater authority with respect to a Hostile power. On the other side it is equally clear that the State has no authority to grant flags for the exportation of its produce to the Enemy.12 Armed Vessels wd. not respect them, nor would they be more respected in the Courts of Admiralty. Unless Congress & the State therefore act in Concert no Tobacco can be remitted to N.Y. and a further drain of Specie must ensue. When the matter was first opened in Congress the impression was unfavorable to the right of the State, and pretty free strictures were likely to be made on its opposition to the Constitutional power of Congress. It became necessary therefore to recur to the law & the testimony which produced an acquiescence in the contrary doctrine. Their sentiments however with regard to the policy & consistency of the Resolutions are very different. The last Resolution in particular Compared with the preliminary doctr[ines] produces animadversions which I need not recite to you.13 There are several reasons which make me regret much this variance between Congress & Virga. of which a material one is that a great Personage14 will be touched by it since it originates in his Act, & since in a conference between a Committee[,] him & the Superintt. he concurred in the expediency of granting the passports. Gillon is just arrived here with five sail of the Havannah fleet.15 I have not yet heard whether he brings news or not.
J. M. Jr.[?]16
1. Not found.
3. Not identified.
4. See JM to Randolph, 28 May 1782. Late in his life JM or someone at his direction placed a bracket at the beginning of this paragraph and another bracket at the end of the third sentence from the close of the letter, thus indicating the portion which should appear in the first edition of his papers (Madison, Papers [Gilpin ed.] description begins Henry D. Gilpin, ed., The Papers of James Madison (3 vols.; Washington, 1840). description ends , I, 134–36).
10. Now, unlike the day before, when he wrote to Arthur Lee and Randolph (q.v.), JM had come to see “reasons which recommend an interference of the assembly in the case of the Flags.” In the present letter he recognized that “the case” involved a conflict between the authority of Virginia as a sovereign and an action by Congress which had reasonably been implied from its “sole and exclusive right and power of determining on peace and war.” Later in this paragraph JM implies that in this particular instance of conflict between two “rights,” economic advantage and deference to the known wish of Washington should lead Virginia to concede and “act in Concert” with Congress to permit the agreement with the British traders to be fulfilled. The final sentence of JM’s footnote probably refers to the proposed terms of a consular convention with France (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, 201, and n.; Randolph to JM, 21–24 May 1782, and n. 22).
11. By the ninth article of the Articles of Confederation, Congress was forbidden to make a treaty of commerce which would bar a state “from prohibiting the exportation or importation of any species of goods or commodities whatsoever” (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , IX, 915).
13. In its “last Resolution,” after contending that the agreement between the agents of Congress and the British traders violated an ordinance of Congress, a law of Virginia, and the Treaty of Amity and Commerce with France, the House of Delegates appeared both selfish and inconsistent by declaring that “nothing contained in these resolutions shall be construed to prevent the Execution of a Contract entered into by the Agent of this State with the Assent of His Excellency General Washington under the Capitulation with the Traders Capitulants at York for the Amount of Tobacco due for Goods received for the use of the Army” (NA: PCC, No. 75, fols. 367–68). In other words, the government of Virginia insisted, contrary to its own law, upon honoring the contract of its agent, David Ross, with the British traders, even while seeking to prevent Congress, on grounds of illegality, from fulfilling the agreement of its agent, Timothy Pickering, with the same merchants.
16. JM initialed rather than signed the letter, but his initials have become blurred.