Edmund Randolph to Virginia Delegates
Richmond Augt. 4. 1788.
We are seriously alarmed at the invasion made by Congress on the lands of the Virginia troops by their resolution of the 17th. Ultimo.1 The steps, which we have taken upon this Occasion are contained in the inclosed advice.2 But, lest the troubles, which this Act may create, should be ineffectual in obtaining its repeal; or even in restraining Congress from further incroachments, we beg leave to call your attention to a statement, by which (we conceive) they may be opposed on principles of right.
It is immaterial to resort to the resolution of Assembly, which is the first promise of land to the military; as it is expressly incorporated in that Act, which opened the land office in May 1779.3 By this Act locations of Treasury Warrants are prohibited in that tract of Country reserved by resolution of the General Assembly for the benefit of the troops, serving in the present War, and bounded by the Green river and a southeast course from the head thereof to the Cumberland Mountains, with the said Mountains to the Carolina line, with the Carolina line to the Cherokee or Tenissee river, with the said river to the Ohio river and with the Ohio to the said Green river, until the further Order of the General Assembly. (See page 96 of the new revisal, a copy of which is now sent to the Delegation.)4
In November 1781, An Act was passed “to adjust and regulate the pay and accounts of the Virginia line on Continental establishment, and also of the Officers, soldiers, sailors and marines in the service of this State and for other purposes.”5 The fifth6 Clause is to this effect: “Whereas a considerable part of the tract of Country allotted for the officers and soldiers by an Act of Assembly, intituled “An Act for establishing a land office and ascertaining the terms and manner of granting Waste and unappropriated lands,” hath upon the extension of the boundary line of this State and North Carolina, fallen into that State, and the intentions of the said Act are so far frustrated; Be it therefore enacted, that all that tract of land, included within the rivers Mississippi, Ohio and Tenissee and the carolina boundary line, be and the same is hereby Substituted in lieu of such lands so fallen into the said State of North-Carolina to be in the same manner Subject to be claimed by the said officers and soldiers. (See page 146 of the New revisal.)
The fourth Act of October Session 1783, is intituled An Act for surveying the lands given by law to the officers and soldiers on continental and state establishments, and for other purposes.7 It Authorizes certain deputations of Officers, to appoint superintendants of surveys, and two principal Surveyors. The fourth section then provides, that the surveyors under the direction of the superintendants, and the Claimants having a right to survey from the priority of their numbers, shall proceed in the first place to survey all the good lands, to be adjudged of by the Superintendants, in that tract of Country lying on the Cumberland and Tenissee rivers, as set apart by law for the officers and soldiers, and then proceed in the like Manner to survey on the north west side of the river ohio, between the rivers Scioto and the Little Miami, until the deficiency of all military bounties in lands shall be fully and amply made up. (See page 210 of the new revisal.)
In the eighteenth Chapter of the same October Session 1783, the Act follows, which Authorizes “the delegates of this State in Congress, to convey to the United States in Congress Assembled, all the rights of this Commonwealth to the territory northwestward of the river Ohio.”8 It comprizes many conditions; but perhaps the Only one pertinent to the present Case is the following: “That in case the quantity of good lands on the south east side of the Ohio, upon the Waters of Cumberland river, and between the Green river, and Tenissee river, which have been reserved by law for the Virginia troops on Continental establishment should, from the North-Carolina line bearing in further upon the Cumberland lands, than was expected, prove insufficient for their legal bounties the deficiency should be made up to the said troops in good lands to be laid off between the rivers Scioto and Little Miami on the Northwest side of the river Ohio, in such proportions as have been engaged to them by the laws of Virginia. (See page 214. of the new revisal.)
In the new revisal are other laws, in Some manner affecting the lands reserved for the military; but as they do not directly relate to our present observations although they may illustrate some difficulties, which may arise in debate, we shall refer to them by pages and Chapters, viz; page 111, chapter 21—page 135, Chapter 27—page 167, Chapter 47—page 215, Chapter 21.9
We acknowledge, that a deficiency of good lands on the south east side of the Ohio has not yet been officially made known to us; But we have a moral certainty that such a deficiency exists: 1. from a comparison of the probable quantity of Acres, for which Warrants have issued, with the Area and nature of the Country, And 2. from an agreement between the deputations of the Continental and State lines, in which this deficiency is assumed as a truth. We expect however, that time will be allowed for procuring the necessary information, as we shall use no delay.
But who are to judge of this deficiency? Remember, gentlemen, that the Act of October 1783 appointing superintendants, was passed before the Act of Cession; and consequently the latter is to be interpreted under the influence of the former. It may perhaps be said, that the cession being posterior repeals the preceding Act. To this we answer, that they Are both Compacts, and the very terms of the Condition leave the subject as it stood upon former laws. If therefore our construction be right, the superintendants and surveyors are the sole judges of the deficiencies, and their locations on the North West side evidence their Opinion that it exists. Respect for Congress, and an Observance of precise form may indeed require a report to be made to your body; And you find, that we are and shall continue active in procuring it. But we cannot forbear to think, that the lands between the Scioto and Little Miami are in fact withdrawn from the Cession to Congress, until Virginia shall declare herself to be satisfied for her Continental Military.
At the beginning of this letter we expressed an Apprehension of great discontent, which the late resolution of Congress might excite. In what shape this discontent may appear, we pretend not to divine. But a Circumstance has come to our knowledge, which renders the danger somewhat more than conjectural. After the Cession to Congress and on the 17th. day of December 1783, the deputations of each line, entered into an Agreement, of which a Copy is inclosed. The Country on the southeast side was thereby divided between the two lines According to specified limits, under this reservation; that “the separation of interest is not to be considered as existing, in case the Continental line shall meet with any hinderance or obstacle in locating or surveying their bounty lands on the North West side of the Ohio river, by means of any disagreement between this state and Congress on account of the Cession, except so far as the Surveying may have gone before notice of such hinderance shall be given by the surveyor on the part of the Continental line to the surveyor on the part of the state line.” Now the probable event of your resolution is, either that the state line may be deprived of their Complement of lands, or the continental line may be obliged to take such as are Worthless.
We therefore leave to your discretion the management of this delicate business; begging your excuse for intruding upon you with so long and in some expressions perhaps too strong a letter. We doubt not that this communication will be considered as intended only for yourselves. I have &c.
Note! We have grounds to believe, that the Added Country, between the Mississippi, Ohio And Tenissee and Carolina line may be lost to the State line by the many Caveats now depending. Of this we shall require a statement from the superintendents.
The Postscript to the President of Congress is Occasioned by the Sickness of our transcribing Clerk.10
FC (Executive Letter Book description begins Executive Letter Book, 1786–1788, manuscript in Virginia State Library. description ends ). In a clerk’s hand. Enclosures not found.
2. Printed in 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 , IV, 273–74. The Council of State ordered the superintendents of bounty surveys for veterans of the Continental and state lines to provide the necessary information concerning a possible shortage of good lands on the southeast side of the Ohio.
3. 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, 50–65.
4. The “new revisal” was the so-called Chancellors’ Revisal of 1785 (PJM description begins William T. Hutchinson et al., eds., The Papers of James Madison (vols. 1–10, Chicago, 1962–77; vols. 11—, Charlottesville, Va., 1977—). description ends , VII, 233, 234 n. 8).
5. 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, 462–68.
6. Should be “eighth.”
7. 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, 309–13.
8. Ibid., XI, 326–28.
9. Ibid., X, 159–62, 373–75; XI, 81–85, 335–37.
10. Randolph also wrote to the president of Congress on 4 Aug. protesting the resolution of Congress of 17 July (Executive Letter Book description begins Executive Letter Book, 1786–1788, manuscript in Virginia State Library. description ends ; PCC). The RC of this second letter, written by a clerk, has a postscript in Randolph’s hand informing the president that the Virginia delegates would receive a printed copy of the laws of the state. The letter was read in Congress on 14 Aug. and referred to a committee (which included JM) on 20 Aug. As a result of this committee report of 28 Aug., Congress passed a resolution on 1 Sept. stating that the action taken on 17 July “was not meant, nor is so to be interpreted as to infringe any stipulation in the cession made by Virginia to the United States; and that it is not the intention of Congress to take any further measures at present respecting the lands between the Scioto and Little Miami but to allow a reasonable time” for Virginia to submit evidence of the deficiency of good lands southeast of the Ohio (JCC description begins Worthington C. Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXXIV, 429 n., 444 n., 469 and n., 475–76). See also Randolph to Virginia Delegates, 8, 15, and 16 Oct. 1788.