James Madison Papers

Instruction to Virginia Delegates in re Confiscated Property, 17 [and 23] December 1782

Instruction to Virginia Delegates
in re Confiscated Property

RC (NA: PCC, No. 69, II, 429–32). Docketed, “Resolutions of the Genl. Assembly of Virginia Read March 20. 1783. Referred to Mr. Osgood   Mr. Mercer   Mr. Fitzsimmons.”

In General Assembly

Tuesday the 17th of December 1782.1

Whereas Resolutions in States which end in a dissolution of their former Government or constitution, bear no similarity to contests between independant Nations in which the object is the defence & support of their Constitutions & Governments inasmuch as in the former the life, liberty and property of the individual are risqued, in the latter the powers & rights of the whole community in their political capacity are hazarded. Resolved therefore unanimously that when the former constitution or social compact of this Country & the Civil Laws which existed under it, were dissolved—a Majority of the Inhabitants had through necessity, an unquestionable natural right to frame a new social compact & to admit as parties thereto, those only who would be bound by the Laws of the Majority—& consequently as no individual can claim immunities, privileges or property in any community but under the Laws of that community, so all those who were members of the former government which and its dependant Laws have been dissolved, abrogated and made void—cannot have legal claim to any immunity, privilege or property under our present constitution, or those Laws which flow from it if they were not parties to the present Social compact originally, or have [not] become parties by the subsequent Laws thereof.

Resolved unanimously that the Laws of this State confiscating property held under the Laws of the former Governments (which have been dissolved and made void) by those who have never been admitted into the present social compact being founded on Legal Principles, were strongly dictated by that principle of common Justice which demands that if virtuous Citizens in defence of their natural & Constitutional rights, risque their life, liberty and property on their success, the vicious Citizens, who side with Tyranny & oppression, or who cloak themselves under the masque of neutrality, should at least hazard their property and not enjoy the benefits procured by the labours and dangers of those whose destruction they wished

Resolved, unanimously2 that all demands or requests of the British Court for the restitution of property confiscated by this State being neither supported by Law, equity or policy, are wholly inadmissable, & that our Delegates in Congress be instructed to move Congress, that they may direct their deputies who shall represent these States in the General Congress for adjusting a peace or truce, neither to agree to any such restitution, or submit that the Laws made by any Independant State of this Union, be subjected to the adjudication of any power or powers on Earth.3

Archibald Cary S. S.

Jno Tyler: S. H. D.4

1Although the manuscript is dated only 17 December, the Senate of the Virginia Assembly concurred with the instructions on 23 December, or six days after they had been adopted by the House of Delegates (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. 69, 70, 76).

2The preamble and the three resolutions were drafted by John Francis Mercer and printed in the Virginia Gazette description begins Virginia Gazette, or, the American Advertiser (Richmond, James Hayes, 1781–86). description ends of 28 December 1782. See Randolph to JM, 27 December 1782.

3This assertion of state sovereignty was even more unqualified than that made in the similar resolution adopted by Congress on 12 August in response to Sir Guy Carleton’s remark about the “highest confidence” entertained by King George III “that the Loyalists shall be restored to their possessions, or a full compensation made them for whatever Confiscation may have taken place.” See Report on Washington-Carleton Correspondence, 12 August 1782. Jefferson viewed the instruction as “a declaration of a doctrine of the most mischeivous tendency,” by seeming to assert that “on changing the form of our government all our laws were dissolved, and ourselves reduced to a state of nature” (Jefferson to Randolph, 15 February 1783, in Boyd, Papers of Jefferson description begins Julian P. Boyd et al., eds., The Papers of Thomas Jefferson (17 vols. to date; Princeton, N.J., 1950——). description ends , VI, 247). See also Harrison to Virginia Delegates, 23 August 1782; JM to Randolph, 7 January 1783 (LC: Madison Papers).

4The initials stand for speaker of the Senate and speaker of the House of Delegates, respectively. Although the Virginia delegates probably received these resolutions on 20 January with Governor Harrison’s dispatch of 4 January (McIlwaine, Official Letters description begins H. R. McIlwaine, ed., Official Letters of the Governors of the State of Virginia (3 vols.; Richmond, 1926–29). description ends , III, 420–21), they waited until 20 March 1783 before submitting the resolutions to Congress. They were then referred to a committee of which John Francis Mercer was a member (n. 2, above; JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXIV, 204, n. 1). See Randolph to JM, 20 December 1782, and n. 3.

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