To Edmund Pendleton
Richmond. Novr 30th. 1786.
Your favor of the 19th. inclosing a bill for amending a defective law gave me particular pleasure as it involved a proof of more health than report had allowed you.1 I anxiously wish that a blessing the smallest degree of which in your hands is always producing good to your Country may in the fullest manner be re-established. You are not wrong in supposing apprehensions in many of danger from accelerating a dispensation of Justice. Having always myself been of Opinion that this was the only proper remedy for our diseases, & that delay would only render them less susceptible of any remedy, I have ventured once more to contend for a reform in our general system of Justice, and have obtained leave to introduce a bill for that purpose. I have thought it necessary however to depart in some measure from the Assize plan which was my own choice, and to accede to the views of those who prefer a more compleat jurisdiction in the new tribunals. Should this bill meet with a better fate than its predecessors, an amendment of the County Court Law will be of less urgency.2 In a contrary event, the draught which you have been so good as to prepare will be peculiarly valuable.
The Senate have sent down the Bill making Tobo. a commutable with some material amendments. The disposition of the H. of D. in favor of the Measure is however too strong to suffer an abortion of it; and it is said besides that the Senate will not be inflexible in case of inflexibility in the other House. Our Revenue business according to usage lies back. The additional experience of every Session convinces me that it will not be extricated from its present confusion, unless the task shall be undertaken by one or a few heads in the recess of the Assembly. The Revised Code has been resumed, and a considerable proportion of bills left at the last Session, has been got through. The Criminal bill on which we were wrecked formerly has been shunned till yesterday. It will receive its doom tomorrow, in a form somewhat different from that in which it stands in the Code.3 Some of the alterations, are I think for the better, some evidently for the worse. Our near approach to the end of the Code makes it necessary to ponder well the manner in which it ought to be wound up. The conclusion which I have come to is that the changes which have taken place in some of the bills passed, the changes which will be requisite in those which have, as difficulties from subsequent circumstances have occurred, been skipped over for the time, and the incoherence of the whole, with the laws of posterior date to the digest, render it indispensable that a supplemental revision & adjustment should precede the Ultimate fiat to the system. Under this Conviction I have it in view to propose the appointment of a Committee on the model of that of whose labours, we are availing ourselves. What most embarrasses me is the difficulty of finding proper successors, & the cruelty of throwing the residuary burden on any of the Original labourers.
The inclosed Act marks the present temper of the Assembly towards our Continental system.4 The deputies are not yet appointed under it. It is proposed to select such as will give dignity to the experiment & at the same time be most likely to gain a ratification of the result from those to whom it will be reported. Genl. Washington’s name will probably be placed in the front of the appointment.
You have probably had some intimation of the project before Congs. for bartering the navigation of the Missippi to Spain. Our Western Representatives having been apprized of it called the attention of the Assembly to the danger in a very emphatical Memorial; in consequence of which a pretty pointed remonstrance was yesterday agreed to unanimously by the H. of Delegates. To say nothing of the merits of the project, the season at which it has been brought forward in Congs. was of all possible ones the most ill chosen. With my sincerest wishes for your happiness I remain Dear Sir Yr. Affect Servt.
Js. Madison Jr.
RC (DLC). Addressed by JM. Docketed by Pendleton as “ansd.” Enclosure not found.
1. Pendleton was permanently crippled by a fall from his horse in 1777, but he was often ill through the rest of his life from malaria and other infirmities. In his reply of 9 Dec. Pendleton noted that his health “rises and falls like the flame of an expiring Candle,” but he managed to live for another seventeen years (Mays, Papers of Edmund Pendleton, I, 207–8; II, 460, 477, 479).
2. JM had presented Pendleton’s version of a court reform bill at the October 1784 session of the General Assembly. Passed as “An act for the establishment of courts of assize,” the law was suspended and finally repealed before the date of implementation (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 , XI, 421 n.). JM introduced amendments for the act on 7 Dec., but the House rejected the bill (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. 1786, pp. 92, 107). All efforts to overhaul the county court system were thwarted until long after JM left the House of Delegates. Indeed, Jefferson complained in 1816 of the zealously guarded right of “self-appointment” which county judges would not surrender (Jefferson to John Taylor, 16 July 1816, Albert E. Bergh, ed., The Writings of Thomas Jefferson [20 vols.; Washington, 1907], XV, 45).
3. The controversial bill which had blocked further reform at the October 1785 General Assembly session was the one Jefferson wrote for the code revision as an act “for proportioning crimes and punishments in cases heretofore capital.” JM complained that a “rage agst. Horse stealers had a great influence on the fate of the Bill.” The bill did not “receive its doom” on the following day, as JM predicted, but was delayed until 9 Dec., when it lost by a single vote (JM to Jefferson, 15 Feb. 1787; 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. 1786, p. 96).