James Madison Papers

To James Madison from James Monroe, 22 November 1788

From James Monroe

Richmond Novr. 22. 1788

Dear Sir

Your favor of the 5th. was not presented me untill the day before yesterday, or it should have been answer’d sooner. I think with you the act of Congress respecting the missisippi an acquisition on that side, and therefore an happy circumstance. It must make an impression on the new government, and if the disposition of Spain shod. be what I had reason to believe it was, before the commencment of the late unfortunate negotiation, I am persuaded an amicable adjustment upon our principles on that subject will be found an easy thing.

The arrangment of the Judiciary is the principal subject before the house. It has been agreed by all to pass by the question “whether the Judiciary may declare a law, in their opinion agnst the Constitution, void,” as calculated to create heats & animosities that will produce harm. A desire prevails of amending the district court law, but in what manner has not been fully discover’d. A plan is before the house for instituting a court of appeals, as seperated from the other courts, by having new members appointed from the country. This to form a court of impeachment to try the genl. court, the latter the appls. The appeals to be likewise a court of dernier resort upon appl. A conversation took place wherein it was propos’d to take three Judges of the genl. ct. & with the 3. chancelors form a court of appls. as the dernier resort, and as the court of impeachment to institute one occasionally in the mode designated by the confederation for deciding territorial controversies, or somewhat in that way. The Executive to nominate 15 or any given number and to have them reduc’d to 5. by the Judges or their council & the council for the legislature striking off one each, untill reduc’d to that number. The former plan is before the house and whether it will meet with opposition is incertain.1

It is generally agreed to make no other alteration in the revenue system than by such change in the appropriation as will supply the defect of the impost, wh. will belong to the U S. after march. Whether the impost system of the State shall cease then, or continue untill contrary provisions are made, seems to be a doubtful question. An apprehension that other States may lay theirs aside and open their ports free from duty in the interval, has weight on the minds of some and disposes them for a similar measure, especially as they suppose the amt. will belong to the U S. but I rather believe ours will be continued untill Congress direct otherwise, let the revenue accrue to whom it may. I am with real esteem yr. fnd. & servant

Jas. Monroe

RC (DLC). Addressed by Monroe and franked.

1The General Assembly on 22 Dec. created a separate court of appeals, consisting of five judges elected by the joint ballot of both houses of the legislature (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, 764–68). The judges chosen were Edmund Pendleton, John Blair, Paul Carrington, Peter Lyons, and William Fleming (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 1777–1790 are brought together in three volumes, with each journal published in Richmond in either 1827 or 1828, and often called the “Thomas W. White reprint.” description ends , Oct. 1788, p. 120). The first two were transferred from the High Court of Chancery and the last three from the General Court. George Wythe remained as sole judge of the High Court of Chancery. On the court reorganization of 1788, see Cullen, “St. George Tucker and Law in Virginia, 1772–1804” (Ph.D. diss., ViU, 1971), pp. 100–119.

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