James Madison Papers

To James Madison from Benjamin Waller, 28 November 1785

From Benjamin Waller

Williamsburg Novr. 28th. 1785


Colo. Richard Cary, on his return from Richmond delivered me a friendly Hint from Mr. Matthews; but whether from the Councillor or Delegate, of that name,1 he did not say, nor indeed did I ask; so that I am at a Loss which of them to thank. The Purport was, that Umbrage was taken at my not attending the Court of Appeals at Richmond. Presuming on a former half-Year’s acquaintance, I venture to address you on the Subject, instead of writing, at Random, to either of the above Gentlemen. True it is, Sir, that I have not attended that Court; and sorry I am that the Default of so insignificant a Member should give Offence. It is a fact; that my appointment to the two Offices I have been honoured with by the General Assembly, were conferred merely through their own Grace and Favor, without Solicitation: that then, and at all other times, I expressed a Compliance to serve in any Station they thought proper; provided it might be performed down here; but that I could not travel any Distance from home in my old Age. During my Seat in Council, the two Sessions of the Court of Appeals held here, and at every Court of Admiralty, I never absented myself from Duty a Day, not even an hour. Until lately the Court of Appeals hath dispatched little business, but not for Want of Members. I own it is my Duty to attend, however useless; but now advanced in my 70th: Year, subject to the natural Infirmities incident thereto, and thereby chiefly confined at home; can I, my good Sir, with any Pretence to Prudence, quit Quiet & Retirement (almost the only remaining Comforts) to launch into Noise, a Crowd, and a new World, (for few of my Co-temporaries are left) and possibly be exposed to Ridicule and Contempt? Whether the World be tired of us, or We of the World, or both possibly mutually weary of each other, Tempus abire est, We must either decently yield to Succession, or be shouldered out.

When by an Act, in 1779, the Courts were removed to Richmond, I should have resigned; had not the next Session of Assembly fixed the Admiralty Court here. When, after fleeing from Leslie & Arnold twice, I found I must fall under the Power of Lord Cornwallis, and expected to be paroled, or carried into Captivity, that this Disability might not be detrimental, I wrote a Letter of Resignation to the Governor, and sent it to Major Day2 for a Conveyance; but he, scarcely escaping himself, left the Letter behind him. After the Enemy had quitted the Town, and I had, by a lucky accident, escaped a Parole, hearing of the Letter, I sent for and destroyed it. For, having been severely pillaged by the Enemy; a little by others; and grievously by the Paper Money, and the advantages taken under the Laws relating to it, I was obliged to take this Step to pay taxes and subsist.

During the War, the Admiralty Court did much Business, and decided more Property than any Court in the State; the Commonwealth’s Share of the Condemnations, I am persuaded, did then fully defray the Judges Salaries. Since the Peace Matters are changed. As soon as the Assise Courts were established, I resolved to resign, if alive, at the Commencement of the Act: accordingly the inclosed have been written, but kept back ’til a proper Season. A Quarter’s Salary will be due to me at their Date; but if, contrary to the modern Custom, a Month’s Wages extraordinary should be thought too much, at dismissing a greyheaded Servant, be pleased to alter the Date. The good natured manner of merry Charles, his discharging Lord Chancellor Shaftsbury, hath never been impeached. Ignorant to whom the Resignation should be directed; out of Session I know to the Governor; but whether to one or both of the Speakers, during the Session, is to me doubtful. Be so kind, Sr. when the time is arrived, to seal and deliver one or both of them on my behalf; and pardon all this Trouble.3 I trust your Humanity will do this, and oblige, Sr., Yr. mo: obt. Servt.

Ben Waller

RC (DLC). Letter and cover in a clerk’s hand. Franked by Waller. Docketed by JM. Enclosure of Waller’s letter of resignation to Speaker of House of Delegates, 2 Dec. 1785 (Vi).

1Col. Richard Cary was an Admiralty Court judge. Councillor Matthews was Sampson Matthews of Augusta County (JCSV description begins H. R. McIlwaine et al., eds., Journals of the Council of the State of Virginia (4 vols. to date; Richmond, 1931——). description ends , III, 2 and passim; “Virginia Legislative Papers,” VMHB description begins Virginia Magazine of History and Biography. description ends , XV [1907–8], 14; see Papers of Madison description begins William T. Hutchinson et al., eds., The Papers of James Madison (8 vols. to date; Chicago, 1962——). description ends , V, 265 n. 9); Delegate Mathews was Thomas Mathews (1742–1812) of Norfolk borough (Swem and Williams, Register description begins Earl G. Swem and John W. Williams, eds., A Register of the General Assembly of Virginia, 1776–1918, and of the Constitutional Conventions (Richmond, 1918). description ends , p. 22; DAR Patriot Index [Washington, 1966], p. 444; Cal. of Va. State Papers description begins William P. Palmer et al., eds., Calendar of Virginia State Papers and Other Manuscripts (11 vols.; Richmond, 1875–93). description ends , X, 119–20).

2Maj. Benjamin Day (1753–1821) took oath at Williamsburg 9 Jan. 1781 as assistant in the Adjutant General’s Office. He later served as the Fredericksburg mayor (Gwathmey, Historical Register of Virginians description begins John H. Gwathmey, Historical Register of Virginians in the Revolution: Soldiers, Sailors, Marines, 1775–1783 (Richmond, 1938). description ends , p. 214; S. J. Quinn, The History of the City of Fredericksburg, Virginia [Richmond, 1908], pp. 194–95, 220, 336).

3Waller’s letter of resignation was received and held in abeyance on 5 Dec. John Tyler was elected judge of the Court of Admiralty to replace him 20 Dec. 1785 (JHDV 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 either 1827 or 1828 and often called the “Thomas W. White reprint.” description ends , Oct. 1785, pp. 71, 100). Although the three judges of the Court of Admiralty were not commissioned as jurists on the Court of Appeals, however, they took the oath of office and served on the appeals bench (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 , X, 90).

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