To Edmund Pendleton
Richmond Jany 9th. 1787.
My Dear Sir
Your favor of the 9th. Ult. has been so long on hand unanswered that I can not now acknowledged it without observing in apology for the delay that I waited for some measures of which I wished to communicate the event. The district bill of which I formerly made mention, was finally thrown into a very curious situation, and lost by a single voice. I refer you for its history to Col. Pendleton, who was here at the time and is now with you. An attempt has been since made to render the General Court more efficient by lengthening its terms, and transferring the criminal business to the Judges of the Admiralty. As most of the little motives which cooperated with a dislike to Justice, in defeating the District Bill happened to be in favour of the subsequent attempt, it went through the House of Delegates by a large Majority. The Senate have disappointed the majority infinitely in putting a Negative on it, as we just learn that they have done, by a single voice.1 An amendment of the County Courts has also been lost, through a disagreement of the two Houses on the subject. Our merit on the score of Justice has been entirely of the negative kind. It has been sufficient to reject violations of this Cardinal virtue, but not to make any positive provisions in its behalf.
The revised code has not been so thoroughly passed as I hoped, at the date of my last. The advance of the Session, the coldness of a great many, and dislike of some to the subject, required that it should be pressed more gently than could be reconciled with a prosecution of the work to the end. I had long foreseen that a supplemental revision as well of some of the articles of the Code, as of the laws passed since it was digested, would become necessary, and had settled a plan for the purpose with myself. This plan was to suspend the laws adopted from the Code, untill the supplement could be prepared, and then to put the whole in force at once. Several circumstances satisfied me of late that if the work was put within the reach of the next Assembly, there would be danger not only of its being left in a mutilated state, but of its being lost altogether. The observations in your favor above acknowledged, encouraged me to propose that the parts of the Code adopted should take effect without waiting for the last hand to it. This idea has been pursued, and the bills passed at the last Session are to commence as then determined, those passed at the present being suspended untill July next.2 I would myself have preferred a suspension of the former also untill July, for the sake of a more thorough promulgation, and of a cotemporary introduction of the laws many of which are connected together but the Senate thought otherwise, and in a ticklish stage of the Session, the friends of the Code in the H. of. D. joined me in opinion that it would be well to create no unnecessary delays or disagreements.3 I have strong apprehensions that the work may never be systematically perfected for the reasons which you deduce from our form of Government. Should a disposition however continue in the Legislature as favorable as it has been in some stages of the business, I think a succession of revisions, each growing shorter than the preceding, might ultimately bring a completion within the compass of a single Session.4 At all events the invaluable acquisition of important bills prepared at leisure by skilful hands, is so sensibly impressed on thinking people by the crudeness and tedious discussion of such as are generally introduced, that the expence of a continued revision will be thought by all such to be judiciously laid out for this purpose alone. The great Objection which I personally feel arises from the necessity we are under of imposing the weight of these projects on those whose past services have so justly purchased an exemption from future labours. In your case the additional consideration of ill health, became almost an affair of Conscience, and I have been no otherwise able to stifle the remorse of having nominated you along with Mr. Wythe and Mr. Blair for reviewing the subject left unfinished, than by reflecting that your colleagues will feel every disposition to abridge your share of the burden, and in case of such an increase of your infirmity as to oblige you to renounce all share, that they are authorized to appoint to, I will not say to fill, the vacancy. I flatter myself that you will be at least able to assist in general consultations on the subject, and to adjust the bills unpassed to the changes which have taken place since they were prepared. On the most unfortunate suppositions my intentions will be sure to find in your benevolence a pardon for my error.
The Senate have saved our Commerce from a dreadful blow which it would have sustained from a bill passed in the H. of. D. imposing enormous duties, without waiting for the concurrence of the other States or even of Maryland. There is a rage at present for high duties, partly for the purpose of revenue, partly of forcing manufactures, which it is difficult to resist. It seems to be forgotten in the first case that in the arithmetic of the Customs as Dean Swift observes 2 & 2 do not make four, and in the second that manufactures will come of them selves when we are ripe for them.5 A prevailing argument among others on the subject is that we ought not to be dependent on foreign nations for useful articles, as the event of a war may cut off all external supplies. This argument certainly loses its force when it is considered that in case of a war hereafter, we should not stand on very different ground from what we lately did. Neutral Nations, whose rights are becoming every day more & more extensive, would not now suffer themselves to be shut out from our ports, nor would the hostile Nation presume to attempt it. As far as relates to implements of war which are contraband, the argument for our fabrication of them, is certainly good.
Our latest information from the Eastwd. has not removed our apprehensions of ominous events in that quarter. It is pretty certain that the seditious party has become formidable to the Govt. and that they have opened a communication with the viceroy of Canada. I am not enough acquainted with the proceedings of Congress to judge of some of the points, which you advert to. The regulations of their land office have appeared to me nearly in the light in which they do to you. I expect to set out in a few days for N. York where I shall revive my claim to a correspondence which formerly gave me so much pleasure and which will enable me perhaps to answer your queres. The end of my paper will excuse the abrupt but Affecte. Adieu.
Js. Madison [Jr.]
RC (DLC). Docketed by Pendleton. Bracketed letters obscured in right margin.
1. The district court bill aroused a coalition of opponents who deterred passage of a reform bill until 1788. One Virginian who agreed with JM concerning the defeated bill mentioned here later castigated its opponents as “desperate men, and corrupt citizens” seeking “to screen themselves from their creditors” (“Aristides,” Va. Independent Chronicle description begins Virginia Independent Chronicle (Richmond: Augustine Davis, 1786–90). Beginning on 13 May 1789 entitled, Virginia Independent Chronicle, and General Advertiser. description ends , 21 Mar. 1787). The court reorganization of 22 Dec. 1788 made some of the changes JM had sought in his assize court bill of 1784 (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 , XII, 730–66). JM’s frustrating experiences with the problem of court reform are set forth in Papers of Madison description begins William T. Hutchinson et al., eds., The Papers of James Madison (9 vols. to date; Chicago, 1962——). description ends , VIII, 163–65, 442–43, 445. The local justices of the peace were accused of being part of the recalcitrant faction opposed to any court reforms, preferring the power roles they held under the existing court structure that dated from 1748 (Cullen, “St. George Tucker and Law in Virginia, 1772–1804,” [Ph.D. diss., ViU, 1971], p. 20).
2. JM had continued to support the bills held over from the October 1785 session, when he introduced the revisors’ code (Papers of Madison description begins William T. Hutchinson et al., eds., The Papers of James Madison (9 vols. to date; Chicago, 1962——). description ends , VIII, 391–99). A new committee of revisors was created by the resolution JM offered on 27 Dec. to implement the bill he drafted ca. 4 Dec.
3. As JM explained in his letter to Jefferson on 15 Feb. 1787, the friends of a revised code were fearful of Patrick Henry’s influence in succeeding sessions of the General Assembly. Henry had left the governorship, but the expectation that he would be chosen as a delegate by his new county of residence—Prince Edward—was confirmed in the spring election.
4. JM was too optimistic. Between 1787 and 1790 three successive revisors’ committees were appointed; ultimately a report was brought out, which was acted upon in 1792. Published in 1795 as The Revised Code of 1792, the compilation did not include Jefferson’s education bill (No. 79 of the first report), which was not enacted (as part of a general act) until 1796 (Boyd, Papers of Jefferson description begins Julian P. Boyd et al., eds., The Papers of Thomas Jefferson (19 vols. to date; Princeton, N. J., 1950——). description ends , II, 322–24, 535 n.; Charles T. Cullen, “Completing the Revisal of the Laws in Post-Revolutionary Virginia,” VMHB, description begins Virginia Magazine of History and Biography. description ends LXXXII , 84–99).
5. JM alluded to Jonathan Swift’s 1728 essay, An Answer to a Paper, Called a Memorial of the Poor Inhabitants, Tradesmen and Labourers of the Kingdom of Ireland. “But I will tell you a Secret, which I learned many Years ago from the Commissioners of the Customs in London: They said, when any Commodity appeared to be taxed above a Moderate Rate, the Consequence was to lessen that Branch of the Revenue by one Half; and one of those Gentlemen pleasantly told me, that the Mistake of Parliaments, on such Occasions, was owing to an Error of computing Two and Two to make Four; whereas, in the Business of laying heavy Impositions, Two and Two never made more than One; which happens by lessening the Import, and the strong Temptation of running such Goods as paid high Duties” (Herbert Davis, ed., The Prose Writings of Jonathan Swift [14 vols.; Oxford, 1957–68], XII, 21).