The writings of James Madison, comprising his public papers and his private correspondence, including numerous letters and documents now for the first time printed. |
| II. |
TO THOMAS JEFFERSON. |
 | The writings of James Madison, |  |
TO THOMAS JEFFERSON.
Dear Sir,—My last was dated in Philada., Octr. 17.
I reached this place on the 14th day after that fixed for
the meeting of the Assembly and was in time for the
commencement of business. Yesterday put an end
to the tedious Session. According to my promise I
subjoin a brief review of its most material proceedings.
An Act for
the establisht.
of Courts of
Assize.
This act was carried through the House
of Delegates against much secret repugnance,
but without any direct and open
opposition. It luckily happened that the latent opposition
wanted both a mouth and a head.[27]
Mr.
Henry had been previously elected Governor and was
gone for his family. From his conversation since I
surmise that his presence might have been fatal. The
Act is formed precisely on the English pattern, and
is nearly a transcript from the bill originally penned
in 1776 by Mr. Pendleton except that writs sent blank
from the Clk. of Genl. Ct. are to issue in the district,
but retd. to Gl. Ct. In the Senate it became a consideration
whether the Assize Courts ought not to be
turned into so many Courts of independent and complete
jurisdiction, and admitting an appeal only to
the bill had not checked the experiment, such a proposition
would probably have been sent down to the
House of Delegates, where it would have been better
relished by many than the Assize plan. The objections
made to the latter were that as it required the
issues to be made up and the judgments to be
awarded in the General Court it was but a partial relief
to suitors, and might render the service of double
setts of Lawyers necessary. The friends of the plan
thought these inconveniences as far as they were real,
outweighed by the superior wisdom & uniformity of
decisions incident to the plan; not to mention the
difference in the frequency of appeals incident to the
different plans. In order to leave as few handles as
possible for cavil the bill omitted all the little regulations
which would follow of course, and will therefore
need a supplement. To give time for this provision
as well as by way of collecting the mind of the
public, the commencement of the law is made posterior
to the next Session of Assembly. The places
fixed for the Assize Courts are Northumberland Court
House, Williamsbg., Accomack Ct. House, Suffolk,
Richmond, Petersburg, Brunswick Ct. House, King &
Queen Ct. House, Prince Edwd. Ct. H., Bedford Ct H.,
Montgomery & Washington Ct Hs alternately, Staunton,
Charlottesville, Fredericksbg, Dumfries, Winchester,
and Monongalia Ct H. Besides the judicial
advantages hoped from this innovation, we consider
it as a means of reconciling to our Govt. the discontented
extremities of the State.
An Act for opening and
extending the
navigation of
Potowmac river.
An Act for
do. do. of
James river.
The subject of clearing these great rivers
was brought forward early in the Session
under the auspices of General Washington,
who had written an interesting
private letter on it to Govr. Harrison
which the latter communicated to the
Genl. Assembly. The conversation of the Genl. during
a visit paid to Richmond in the course of the Session,
still further impressed the magnitude of the object on
sundry members. Shortly after his departure, a joint
memorial from a number of Citizens of Va & Maryland,
interested in the Potowmac, was presented to
the Assembly, stating the practicability and importance
of the work, & praying for an act of incorporation,
and grant of perpetual toll to the Undertakers
of it. A bill had been prepared at the same
meeting which produced the Memorial, and was
transmitted to Richmond at the same time. A like
memorial & bill went to Annapolis where the Legislature
of Maryland were sitting. The Assembly here
lent a ready ear to the project, but a difficulty arose
from the height of the tolls proposed, the danger of
destroying the uniformity essential in the proceedings
of the two States, by altering them,—and the scarcity
of time for negociating with Maryland a bill satisfactory
to both States. Short as the time was however,
the attempt was decided on, and the negociation
committed to Genl. Washington himself. Genl. Gates
who happened to be in the way and Col. Blackburn
were associated with him. The latter did not act, the
two former pushed immediately to Annapolis, where
on Genl. Washington. By his exertions in concert
with Committees of the two branches of the Legislature,
an amendment of the plan was digested in a
few days, passed thro' both' houses in one day with
nine dissenting voices only, and despatched for Richmond,
where it arrived just in time for the close of
the Session. A corresponding Act was immediately introduced,
and passed without opposition. The scheme
declares that the subscribers shall be an incorporated
body, that there shall be 500 Shares, amounting to
about 220,000 dollars, of which the States of Va &
Maryd are each to take 50 shares, that the tolls shall
be collected in three portions, at the three principal
falls, and with the works vest as real estate in the
members of the Company, and that the works shall
be begun within one year, and finished within ten
years, under the penalty of entire forfeiture.
Previous to the receipt of the Act from Annapolis
a bill on a different plan had been brought in and proceeded
on for clearing James River. It proposed
that subscriptions should be taken by Trustees and
under their management solemnly appropriated to the
object in view, that they should be regarded as a loan
to the State, should bear an interest of 10 per ct., and
should entitle the subscriber to the double of the
principal remaining undischarged at the end of a
moderate period; and that the tolls to be collected
should stand inviolably pledged for both principal &
interest. It was thought better for the public to present
this exuberant harvest to the subscribers than to
the Potowmac which depended on another authority
as well as our own, we were less at liberty to consider
what wd be best in itself. Exuberant however as the
harvest appeared, it was pronounced by good judges
an inadequate bait for subscriptions even from those
otherwise interested in the work, and on the arrival
and acceptance of the Potowmac plan, it was found
advisable to pass a similar one in favor of James
River. The circumstantial variations in the latter
are 1. the sum to be aimed at in the first instance is
100,000 Dollars only. 2. the shares which are the
same in number with those of Potowmac, are reduced
to 200 dollrs each and the number of public shares
raised to 100. 3. the tolls are reduced to 1/2 of the
aggregate of the Potowmac tolls. 4. in case the falls
at this place where alone tolls are to be paid, shall be
first opened, the Company are permitted to receive
the tolls immediately, and continue to do so till the
lapse of ten years, within which the whole river is to
be made navigable. 5. a right of pre-emption is reserved
to the public on all transfers of shares. These
acts are very lengthy, and having passed in all the precipitancy
which marks the concluding stages of a
Session, abound I fear with inaccuracies.
In addition to these acts joint resolutions have
passed the Legislatures of Maryd & Va for clearing a
road from the head of the Potowmac navigation to
Cheat river or if necessary to Monongalia, & 3333 1/3
Dollars are voted for the work by each State. Pennsylva
is also to be applied to by the Governors of the
if it should be found necessary, from Potowmac
to Yohogania; to which the Assembly here have
added a proposition to unite with Maryland in representing
to Pena the advantages which will accrue to
a part of her citizens from opening the proposed communication
with the Sea, and the reasonableness of
her securing to those who are to be at the expence,
the use of her waters, as a thoroughfare to & from
the Country beyond her limits, free from all imposts
& restrictions whatever, and as a channel of trade
with her citizens free from greater imposts than may
be levied on any other channel of importation. This
Resolution did not pass till it was too late to refer it
to Genl Washington's negociations with Maryland.
It now makes a part of the task allotted to the
Com̃issrs who are to settle with Maryd the jurisdiction
& navigation of Potowmac below tide water. By
another Resolution of this State, persons are to be
forthwith appd by the Executive to survey the upper
parts of Jas river, the country thro' which a road must
pass to the navigable waters of New River, and these
waters down to the Ohio. I am told by a member of
the Assembly, who seems to be well acquainted both
with the intermediate ground and with the Western
waters in question, that a road of 25 or 30 miles in
length will link these waters with Js river, and will
strike a branch of the former which yields a fine navigation,
and falls into the main stream of the Kenhawa
below the only obstructions lying in this river
down to the Ohio. If these be facts James River
from which to Cheat river is indeed computed by
Genl Washington at 20 miles only, but he thinks the
expence of making the latter navigable will require a
continuation of the road to Monongalia, which will
lengthen it to 40 miles. The road to Yohogania is
computed by the Genl. at 30 miles.
By another resolution, Com̃issrs. are to be appd. to
survey the ground for a canal between the waters of
Elizabeth river and those of N. Carolina, and in
case the best course for such a canal shall require the
concurrence of that State, to concert a joint plan and
report the same to the next Session of Assembly.
Besides the trade which will flow thro' this channel
from North Carolina to Norfolk the large district of
Virginia watered by the Roanoak will be doubled in
its value by it.
An Act vesting
in G.
Washington a
certain interest
in the
Companies for
opening James
& Potowmac
rivers.
The Treasurer is by this act directed to
subscribe 50 shares in the Potowmac &
100 shares in the James River Companies
which shall vest in Genl. Washington &
his heirs. This mode or adding some
substantial to the many honorary rewards
bestowed on him was deemed least injurious
to his delicacy, as well as least dangerous as a
precedent. It was substituted in place of a direct
pension urged on the House by the indiscreet zeal of
some of his friends. Though it will not be an
equivalent succour in all respects it will save the
General from subscriptions which would have oppressed
his finances; and if the schemes be executed
years before the term of his [sic]. At all events it
will demonstrate the grateful wishes of his Country
and will promote the object which he has so much at
heart. The earnestness with which he espouses the
undertaking is hardly to be described, and shews that
a mind like his, capable of great views & which has
long been occupied with them, cannot bear a vacancy;
and surely he could not have chosen an occupation
more worthy of succeeding to that of establishing
the political rights of his Country, than the patronage
of works for the extensive & lasting improvement
of its natural advantages; works which will
double the value of half the lands within the Commonwealth,
will extend its commerce, link with its interests
those of the Western States, and lessen the
emigration of its Citizens by enhancing the profitableness
of situations which they now desert in search
of better.
An Act to
discharge the
people of this
Commonwealth
from
one half of the
tax for the
year 1775 [85].
Our successive postponements had
thrown the whole tax of 1784 on the year
1785. The remission therefore still leaves
three halves to be collected. The plentiful
crops on hand both of corn & tob°,
and the price of the latter which is vibrating
on this river between 36/. & 40/. seem to enable
the Country to bear the burden. A few more
plentiful years with steadiness in our Councils will
put our credit on a decent footing. The payments
from this State to the Continental treasury between
Apl., 83, and Novr., 84, amount to £123,202 11s. 1 1/2,
give you a rude idea of our finances.
An Act giving
James
Rumsey the
exclusive privilege
of constructing
&
navigating
certain boats
for a limited
time.
J. Rumsey by a memorial to the last
Session represented that he had invented
a mechanism, by which a boat might be
worked with little labour at the rate of
from 25 to 40 miles a day, against a
stream running at the rate of 10 miles an
hour, and prayed that the disclosure of
his invention might be purchased by the public. The
apparent extravagance of his pretensions brought a
ridicule upon them, and nothing was done. In the
recess of the Assembly, he exemplified his machinery
to General Washington and a few other gentlemen,
who gave a certificate of the reality & importance of
the invention, which opened the ears of the Assembly
to a second memorial. The Act gives a monopoly
for ten years, reserving a right to abolish it at any
time by paying £10,000. The inventor is soliciting
similar Acts from other States, and will not I suppose
publish the secret till he either obtains or despairs of
them.
An act for
punishing certain
offences
injurious to the
tranquility of
this Commonwealth.
This act authorises ye surrender of a
Citizen to a foreign Sovereign within
whose acknowledged jurisdiction the citizen
shall commit a crime, of wch. satisfactory
proof shall be exhibited to Congress,
and for which in the judgment of Congress the law
of nations exacts such surrender. This measure was
suggested by the danger of our being speedily embroiled
with the nations contiguous to the U. States,
spirit of some of our Western people. In
several instances gross outrages are said to have been
already practiced. The measure was warmly patronized
by Mr. Henry and most of the forensic members,
and no less warmly opposed by the Speaker and
some others. The opponents contended that such
surrenders were unknown to the law of nations, and
were interdicted by our declaration of Rights.
Vattel however is express as to the case of Robbers,
murderers and incendiaries. Grotius quotes various
instances in which great offenders have been given
up by their proper Sovereigns to be punished by
the offended Sovereigns. Puffendorf only refers to
Grotius. I have had no opportunity of consulting
other authorities. With regard to the bill of rights,
it was alleged to be no more or rather less violated
by considering crimes committed agst. other laws as
not falling under the notice of our own, and sending
our Citizens to be tried where the cause of trial arose,
than to try them under our own laws without a jury
of the vicinage, and without being confronted with
their accusers or witnesses; as must be the case, if
they be tried at all for such offences under our own
laws. And to say that such offenders could neither
be given up for punishment, nor be punished within
their own Country, would amount to a licence for
every aggression, and would sacrifice the peace of
the whole community to the impunity of the worst
members of it. The necessity of a qualified interpretation
of the bill of rights was also inferred from the
of our Citizens to the laws of other States, in cases
of treason, felony or other high misdemesnors. The
Act provides however for a domestic trial in cases
where a surrender may not be justified or insisted
upon, and in cases of aggressions on the Indians.
An act for incorporating
the Protestant
Episcopal
Church.
This act declares the Ministers & vestries
who are to be triennially chosen in
each parish a body corporate, enables
them to hold property not exceeding the
value of £800 per annum, and gives sanction to a
Convention which is to be composed of the Clergy
and a lay deputy from each parish, and is to regulate
the affairs of the Church. It was understood by the
House of Delegates that the Convention was to consist
of two laymen for each clergyman, and an amendment
was received for that express purpose. It so
happened that the insertion of the amendment did
not produce that effect, and the mistake was never
discovered till the bill had passed and was in print.
Another circumstance still more singular is that the
act is so construed as to deprive the Vestries of the
uncontrouled right of electing Clergymen, unless it
be referred to them by the canons of the Convention,
and that this usurpation actually escaped the eye both
of the friends and adversaries of the measure, both
parties taking the contrary for granted throughout
the whole progress of it. The former as well as the
latter appear now to be dissatisfied with what has
been done, and will probably concur in a revision if
not a repeal of the law. Independently of these
But the necessity of some sort of incorporation
for the purpose of holding & managing the
property of the Church could not well be denied, nor
a more harmless modification of it now obtained. A
negative of the bill too would have doubled the
eagerness and the pretexts for a much greater evil,
a general Assessment, which, there is good ground
to believe was parried by this partial gratification of
its warmest votaries. A Resolution for a legal provision
for the "teachers of the Christian Religion"
had early in the Session been proposed by Mr.
Henry, and in spite of all the opposition that could
be mustered, carried by 47 agst. 32 votes. Many
Petitions from below the blue ridge had prayed for
such a law; and though several from the presbyterian
laity beyond it were in a contrary stile, the Clergy of
that Sect favored it. The other Sects seemed to be
passive. The Resolution lay some weeks before a
bill was brought in, and the bill some weeks before
it was called for, after the passage of the incorporating
act it was taken up, and on the third reading, ordered
by a small majority to be printed for consideration.
The bill, in its present dress proposes a tax of blank
per Ct. on all taxable property for support of Teachers
of the Christian Religion. Each person when he
pays his tax is to name the society to which he dedicates
it, and in case of refusal to do so, the tax is to
be applied to the maintenance of a school in the
County. As the bill stood for some time, the application
in such cases was to be made by the Legislature
was determined by a majority of 7 or 8 that the word
"Xn." should be exchanged for the word "Religious."
On the report to the House the[28] pathetic zeal of the
late Governor Harrison gained a like majority for
reinstating discrimination. Should the bill pass into
a law in its present form it may & will be easily
eluded. It is chiefly obnoxious on account of its dishonorable
principle and dangerous tendency.
The subject of the British debts underwent a reconsideration
on the motion of Mr. Jones. Though
no answer had been recd. from Congress to the Resolutions
passed at the last Session, a material change
had evidently taken place in the mind of the Assembly,
proceeding in part from a more dispassionate
view of the question, in part from the intervening exchange
of the ratifications of the Treaty.[28] Mr. Henry
was out of the way. His previous conversation I
have been told, favored the reconsideration; the
Speaker, the other champion at the last Session
against the Treaty, was at least half a proselight.
The proposition rejected interest during the period
of blank and left the periods of payment blank. In
this form it was recd. with little opposition and by a
very great majority. After much discussion & several
nice divisions the first blank was filled up with
the period between the 19 of Apl., 1775, and the 3
of March 1783, the commencement and cessation
of hostilities; and the second with seven annual
of the Glasgow merchants were submitted
to the H. of D. in which they signified their readiness
to receive their debts in four annual payments, with
immediate security and summary recoveries at the
successive periods and were silent as to the point of interest.
Shortly after were presented memorials from
the Merchants of this Town & Petersburg representing
the advantage which a compliance with the Glasgow
overtures would give the foreign over the
domestic creditors. Very little attention seemed to
be paid by the House to the overtures, tho', as the
Treaty was not to be literally pursued, the shadow
of assent from the other party was worthy of being
attended to. In the Senate the bill met with a diversity
of opinions. By a majority of one voice only
an attempt to put all our domestic debts on the same
footing with British debts was lost. Whether this
was sincere or a side blow at the bill I am unable to
say. An attempt was next made to put on the same
footing all those who left this Country and joined the
other side, or who remained within the British territories
for one year at any time since the 19 Apl., 1775, or
who refused a tender of paper money before Jany., 1779.
These discriminations were almost unanimously disagreed
to by the H. of D. The Senate insisted.
The former proposed a conference. The Senate
concurred. The Conference produced a proposition
from the H. of D. to which the Senate assented;
but before the assent was notified an incident happened
which has left the bill in a very singular situation.
The delays attending this measure had spun it out to
the day preceding the one prefixed for a final adjournment.
Several of the members went over to Manchester
in the evening, with an intention it is to be
presumed of returning the next morning. The severity
of the night rendered their passage back the next
morning impossible. Without them there was no
house. The impatience of the members was such as
might be supposed. Some were for stigmatizing the
absentees and adjourning. The rest were some for
one thing, some for another. At length it was
agreed to wait until the next day. The next day presented
the same obstructions in the river. A canoe
was sent over for enquiry by the Manchester party,
but they did not chuse to venture themselves. The
impatience increased, warm resolutions were agitated.
They ended however in an agreement to wait one day
more. On the morning of the third day the prospect
remained the same. Patience could hold out no longer
and an adjournment to the last day of March ensued.
The question to be decided is whether a bill which has
passed the House of Delegates, and been assented to
by the Senate; but not sent down to the H. of D.,
nor enrolled, nor examined, nor signed by the two
Speakers and consequently not of record, is or is not
a law? A bill for the better regulation of the customs
is in the same situation.
After the passage of the Bill for British debts
through the H. of D. a bill was introduced for liquidating
the depreciated payments into the Treasury,
and making the debtors liable for the deficiency. A
every stage of the first bill. It was opposed by[29] Governor
Harrison principally and laid asleep by the
refusal of interested members to vote on the question,
and the want of a quorum without them.
Among the abortive measures may be mentioned
also a proposition to authorise the collection of the
impost by Congress as soon as the concurrence of
twelve States should be obtained. Connecticut had
set the example in this project. The proposition
was made by the Speaker & supported by the late
Governor. It was disagreed to by a very large majority
on the following grounds 1 the appearance of a
schism in the Confederacy which it would present to
foreign eyes. 2. its tendency to combinations of
smaller majorities of the States. 3. the channel it
would open for smuggling; goods imported into
Rhode Island in such case might not only be spread
by land through the adjacent States, but if slipped
into any neighbouring port might thence be carried
duty-free to any part of the associated States. 4. the
greater improbability of a union of twelve States on
such new ground, than of the conversion of Rhode
Island to the old one. 5 the want of harmony among
the other States which would be betrayed by the miscarriage
of such an experiment, and the fresh triumph
& obstinacy which Rhode Island would derive from it.
The French vice Consul in this State has complained
to the Assembly that the want of legal power
his decrees nugatory, and exposes his person to insults
from dissatisfied litigants. The Assembly have
taken no step whatever on the subject being at a loss
to know what ought to be done, in compliance either
with general usage or that of France in particular. I
have often wondered that the proposed Convention
between France and the U. S. for regulating the consular
functions has never been executed. The delay
may prove unfriendly both to their mutual harmony
& their commerce.
Mr. Henry was elected successor to Mr. Harrison
without competition or opposition. The victims to
the article requiring a triennial removal of two Counsellors
were Merrywether Smith & General Christian.
Young Mr. Roane and Mr. Miles Selden take their
places. Mr. Short's place is filled by Mr. Joseph
Jones.
Nothing has passed during the session concerning
an amendment of the State Constitution. The friends
of the undertaking seem to be multiplying rather
than decreasing. Several Petitions from the Western
side of the Blue ridge appeared in favor of it; as
did some from the Western side of the Alleghany
praying for a separate Government. The latter may
be considered all of them as the children of A. C's
ambition. The Assize Courts and the opening of
our Rivers are the best answers to them.
The Revisal has but just issued from the press. It
consists of near 100 folio pages in a small type. I
shall send you six copies by the first opportunity.
Acting members of the Committee, but no fund
having been provided for payment, no use could be
made of the warrants. I drew yours however &
carried them up to Orange, where they now lye. A
vote of this Session has provided a fund which
gives them immediate value. As soon as I get home
I shall send the dead warrants to Mr. Nichs Lewis, who
may exchange them for others, and draw the money
from the Treasury. Mr. Peter Carr is I hear now in
Williamsburg, he did not get there so soon as I expected,
but I have not heard the circumstances which
delayed him. On the best enquiries I could make for
a stand for his younger brother I could hear of none
preferable to the Academy in Prince Edward, and
accordingly recommended that in a letter to Mrs.
Carr. I have rec'd no answer, but am told by Mr.
Underwood her neighbour that he is at school with a
very proper man who has lately opened a school very
convenient to Mrs. Carr. If this is the case it will be
improper to remove him.
I have not yet had the pleasure of a line from you
since you left Boston, nor do I know when I shall
next find a subject for another to you. As soon as I
do you may be assured that you shall hear from me
& that I am in the meantime with sincerest friendship
Present my respects to Miss Patsy & Mr. Short.
| The writings of James Madison, | |