Memorandum from Edmund Randolph
These “hasty notes” were most probably replies to queries (not found) that JM had posed to Edmund Randolph sometime during the early days of the Virginia General Assembly session in 1799. In his research for that part of the Report of 1800 that dealt with the common law, JM no doubt surveyed the handful of important court decisions that supported the doctrine that the English common law was included in the federal law system. Thus, JM would have sought information about Henfield’s case (1793), in which Randolph, as attorney general of the United States, had given a formal opinion. Gideon Henfield was an American citizen who enlisted on a French privateer that engaged in hostilities against Great Britain in defiance of the American policy of neutrality proclaimed by President Washington. In the absence of a statute criminalizing Henfield’s behavior, Randolph had supported his prosecution on the grounds that “the treaty created the offence.” According to Randolph’s opinion here, the common law had had no bearing on the criminality of the act, it had merely “annexed the mode of prosecution and penalty.” The case was not, therefore, strictly analogous to the Isaac Williams case (1799), in which Williams, who had been commissioned as a French officer, was convicted for violating the Jay treaty when his argument that he was a naturalized citizen of France was thrown out by the judge on the basis of the common-law doctrine of perpetual allegiance (see Edmund Randolph’s Notes on the Common Law, ca. Sept. 1799, Editorial Note).
In the absence of other documentation, it is difficult to say what reasons JM might have had for his queries to Randolph. He might have intended to consider each of the decisions that supported the common-law doctrine and include them in his report on a case-by-case basis, examining and refuting each one. Or he might simply have wanted enough information to challenge any Federalist who tried to enlist the prestige of Edmund Randolph in the common-law cause by using Henfield’s case as a precedent.
(Secondary sources used for this note: Goebel, History of the Supreme Court, 1:624–27; Malone, Jefferson and His Time description begins Dumas Malone, Jefferson and His Time (6 vols.; Boston, 1948–81). description ends , 3:119–21; Reardon, Edmund Randolph, pp. 231–32.)
[ca. December 1799]
E. R. to J. M.
1. On such a question, the opinion of no individual is of weight.
2. On no occasion would it be quoted by those, who will quote it, but to shew, that at a moment, when party had not taken deep root, and consequences to one or the other side were not foreseen, the opinion was sincere.
3. Genet demanded Henfields liberation. It was enough to say to a foreign minister, that the laws (no matter whether state or fœderal) justified his trial.
4. It is probable therefore, that the general question, now under discussion, never came into my consideration, being unnecessary. I think, that it was certain; but at this distance of time, I can rely on no recollection of what passed in my mind, and must stand upon what the words import.
5. This must have been the idea, if I meant to say, that he was triable at common law in the fœderal courts: that the treaties, by stipulating for peace with the U. S, in substance prohibited the citizens of the U. S. from engaging in war against the nations, with whom the treaties subsisted: that treaties being the supreme law, and the judicial act (p. 74.)1 having provided, that the laws of the States should be the rule of decision, where they should apply, the laws of Pennsylvania, within whose boundaries the offence was committed, comprehending the common law, would aid the treaty: which had specified no penalty for Henfield’s crime, by one of its general principles; namely, that when a statute forbids a thing to be done, without annexing a penalty, the common law makes it indictable and punishable, as a misdemeanor. This, I believe, was the doctrine, which I urged at the trial.
6. This opinion does not bring up the common law, as the law of the U. S; because the treaty created the offence, and the common law only annexed the mode of prosecution and penalty; whereas the common law, as the law of the U. S. would create offences.
7. Suppose the judicial act to be unconstitutional in adopting the common law penalty, and annexing it to the offence by treaty. Could the attorney general advise the President to pronounce that law unconstitutional, when a foreign nation was the litigant party? When Henfield himself was in the ordinary channel of having the question of constitutionality decided by the judiciary?
8. Whether an offence against the U. S. be cognizable in a state-court, I know not. Much may be said on the subject.
9. But after all, the opinion imputed, even if it were fixed on the attorney general, (which it cannot be) was abominably wrong.
Preserve these hasty notes.
RC (DLC). Addressed by Randolph to JM “at Watson’s.” Docketed by JM. Dated ca. 1799 in Index to the James Madison Papers. Conjectural date here assigned on the basis of JM’s residence in Richmond during the 1799–1800 session of the Virginia General Assembly and his writing of the Report of 1800 during December 1799.
1. Randolph referred to section 34 of the “Act to Establish the Judicial Courts of the United States,” printed in The Laws of the United States of America (3 vols.; Philadelphia, 1796; Evans description begins Charles Evans, ed., American Bibliography … 1639 … 1820 (12 vols.; Chicago, 1903–34). description ends 31356), 1:74.