From Edmund Pendleton
Virga. July 21. 1790
I am indebted to you for two or three Letters,1 besides Packets of papers, An Arrear probably as convenient to you in yr. Congressional Engagements, affording little liesure for reading uninteresting letters, as it was unavoidable by me, having been for more than 3 weeks closely confined in Attending the Court of Appeals, wherein we dispatched much buisiness [sic], none worth communicating as of General concern, except the establishing a point, much controverted in our Courts, that an express promise to pay a debt, bar’d by the famous six Months law, shall subject the Debtor to payment, notwithstanding the Negative words of that Act—an Opinion in wch. the 5 Judges were unanimous.2 I am safe return’d to Caroline in better health than usual, tho’ fatigued in travelling, & have been lounging for rest. I am happy to find that Potowmac stands on so good grounds as the Permanent seat of Congress;3 I could not help wishing that the temporary Residence had remain’d at New-York, as a recompence for their expence in yr. Accommodation; to save the expence & trouble of a double removal of the Public Offices; and from a conviction, that Philidelphia is in bad order for yr. reception, & must incur a considerable expence to be in order: besides I doubt, from former experience, whether those Citizens may not more intermeddle with the Fœdral proceedings, than they have at York. However you Gentn. on the Spot could much better judge of all these, & other circumstances, than we at a distance.
I hope some Accommodating Spirit has allayed the fury of debate on the great Subject of Assumption,4 to prevent your Session terminating in a temper which must injure Government in Character & Interest. At the same time caution seems necessary, that we do not by yielding too much, fortify & Cherish an Opinion, some Gentn. appear to have entertained, that they are to dictate to the Union, against the sense of a Majority on a full discussion. I wished to have earlier mentioned to you the Subject of the British debts, & submitted to you whether it would not be expedient & indeed necessary for Congress to pass a law on that Occasion, as I know there will otherwise be considerable difficulties in the minds of the State Judges at least, in deciding suits which may come before them on the present footing. Tho’ too late for this Session, I mention them for your Reflection in the Recess.
The Treaty is “there shall be no legal impediment to the bona fide recovery of debts on either side.”5 Is this a law of Repeal in itself, & what is the extent of it? Does it repeal all Acts of limitation, & such as regulate the modes of proving debts? Or is it rather a Covenant by the contracting parties to remove legal impediments by their respective laws, & meant to be confined to such as the War had introduced?
Was not the latter the sense of the Congress who made the treaty, when they called on the States to repeal the several laws containing such Impediments?
The New Constitution “All Treaties made, or which shall be made, under the Authority of the United States, shall be the Supreme law of the land.”6 What law is here meant? Is it like those of the Medes & Persians, unalterable? Or may not the contracting powers annul it by consent? Or a breach on one side discharge the other from an Obligation to perform it’s part? And how are these circumstances to be communicated to each Nation but by their respective Governmts.? It seems placed on the ground of the Other laws of Nations, to which all Municipal laws must yield, & is directly opposed to the State Constitutions & laws. But must not the National Government regulate all National Affairs? Does not the Coupling Treaties with the Constitution & laws of the United States, indicate that the latter are to introduce & give force to the former in the Society? The former question here Occurs, whether this Treaty be a law in itself repealing all others, or an Executory Covenant to pass laws for the purpose? Do Congress mean the debts shall be paid, if Britain refuses to perform the Treaty on her part, giving up the Western posts &c? And do not all these circumstances combine to prove the propriety of a law of Congress to settle the Subject? Perhaps you’l consider these as mere sceptical whims; if so pray throw them by & take no further notice of them, tho’ I fear unless they are removed, & I am obliged to decide on the question, they will have a serious effect on the Judgment of Dear Sir Yr. very Affe. friend
RC (owned by Richard Gilder, Jr., New York, N.Y., 1990). Docketed by JM. Extract printed in PJM description begins Robert J. Brugger et al., eds., The Papers of James Madison: Secretary of State Series (1 vol. to date; Charlottesville, Va., 1986—). description ends , 13:282.
1. JM’s letter of 2 May 1790 was a reply to Pendleton’s of 21 Apr. The only other surviving letter from JM is that of 22 June (PJM description begins Robert J. Brugger et al., eds., The Papers of James Madison: Secretary of State Series (1 vol. to date; Charlottesville, Va., 1986—). description ends , 13:154–57, 184–85, 252–53).
2. For a discussion of this case, Beall v. Edmundson, see Johnson et al., Papers of John Marshall, 5:488–93.
3. For a discussion of the congressional decision to establish a national capital, see Madison at the First Session of the First Federal Congress, 8 Apr.–29 Sept. 1789 (PJM description begins Robert J. Brugger et al., eds., The Papers of James Madison: Secretary of State Series (1 vol. to date; Charlottesville, Va., 1986—). description ends , 12:59–62).
4. For JM’s opposition to the assumption of state debts and to Alexander Hamilton’s financial plans in general, see PJM description begins Robert J. Brugger et al., eds., The Papers of James Madison: Secretary of State Series (1 vol. to date; Charlottesville, Va., 1986—). description ends , 13:xvii–xx.
5. Pendleton paraphrased article 4 of the definitive Treaty of Peace (1783) between Great Britain and the U.S. (Miller, Treaties description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (8 vols.; Washington, 1930–48). description ends , 2:154).
6. Article 6, clause 2, of the U.S. Constitution.