The writings of James Madison, comprising his public papers and his private correspondence, including numerous letters and documents now for the first time printed. |
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MONDAY, 23 DECR.. |
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 | The writings of James Madison, |  |
MONDAY, 23 DECR..
The motion to strike out the words "accruing to the use of the
U. S.," was grounded on a denial of the principle that a capture &
possession by the enemy of moveable property extinguished or
effected the title of the original owners. On the other side this
principle was asserted as laid down by the most approved writers,
and conformable to the practice of all nations; to which was added
that if a contrary doctrine were established by Congress, innumerable
had, on recapture been applied to the public use.[21] See Journal.
Letters were this day recd. from Dr. Franklin, Mr. Jay & the
Marquis de la Fayette. They were dated the 14th of Ocr. That
from the first inclosed copy of the 2d. Comission to Mr. Oswald
with sundry prelimy. articles, and distrusted the British Court.
That from the 2d. expressed great jealousy of the French Govt., &
referred to an intercepted letter from Mr. Marbois, opposing the
claim of the U. S. to the Fisheries. This despatch produced
much indignation agst. the author of the intercepted letter, and
visible emotions in some agst. France. It was remarked here that
our Ministers took no notice of the distinct comons. to Fitzherbert
& Oswald; that altho' on a supposed intimacy and joined in
opposite sentiments as to the views of France. Mr. Livingston told
me that the letter of the Ct. de Vergennes, as read to him by the
Chevr. Luzerne, very delicately mentioned & complained that American
Ministers did not in the negotiations with the British Ministers,
maintain the due com. with those of France. Mr. Livingston inferred
on the whole that France was sincerely anxious for peace.
The Presidt. acquainted Congress that Ct Rochambeau had
communicated the intended embarkation of the French troops for
the W. Indies, with an assurance from the King of France, that
in case the war sd. be renewed agst. U. S. they should immediately
be sent back.
The following letter is from Madison to Edmund Randolph, December 17,
(cypher being represented by italics):
"Since the appointment of the deputation to Rho: Island Congress have
recd. a copy of the refusal of the Legislature of that State to concur in the impost,
with the reasons on which the refusal is grounded. The reasons assigned
are 1st. the inequality of the tax which will bear hardest on the commercial
States, and peculiarly hard on Rho: Island which is the most commercial; 2dly.
the inexpediency of admitting to a collection within the State of so large a tax
an officer unknown to the Constitution, and unaccountable to the authority of
the State. 3dly. the danger to public liberty from such an accession of weight
to the federal Government. I give this recital from memory and therefore only
of the substance of the objections. They are in the hands of a Committee, who
will report such observations as they may deem a fit answer to them. The deputation
has not yet set out, but probably will in the course of this week.
"Vermont has been again on the tapis. Its only advocates were the Delegates
of Rho: Island who are charged with interested views in the case, and
those of N. Jersey who are fettered by instructions from their constituents. I
understand that a Mr. Tichner one of the Agents formerly here is arrived from
Vermont probably in consequence of a signal given of the revolution wch. is taking
place in the federal Councils with respect to them. A little time will
display his errand.
"General Greene has referred to Congress a case which admonishes them of
the necessity of a code for captures & recaptures on land as well as on water.
A detachment of the Continental forces having retaken a number of Horses
which had been taken by the enemy from the Citizens of S. Carolina; the Executive
Authority of the State demanded a restitution, on the general principle
that the Original owners were entitled to all recaptured property. This
demand was laid before a Council of Officers which decided against its validity.
" The General has submitted the case to Congress for their final judgment. It
appears from a review of the proceedings of Congress, that a very defective
provision only has been made for captures, and no provision at all for recaptures,
on land. The opinion of the Council of war is conformable to the practice of
the Army in like cases, and to the rules observed by other nations. The demand
of restitution in favor of the original proprietors is warranted by the
principles of equity and the spirit of the Ordinance relating to Captures on
Water. All that Congress can do in the case will be to remit to the Original
owners the prize which has been adjudged to the U. S. But some general
provision for future cases will be necessary in which it will be not easy to define
the species of property of which restitution may be claimed. To extend the
rule to every species of property would open a door to innumerable disputes and
abuses. I observed on this occasion what had escaped me before, that if Congress
should establish a Court for Captures on land, such cases can come before
it on appeal.
"Letters from Franklin and Jay dated late in [September] shew that a commission
has been issued to Oswald to treat with Commissioners of the Thirteen U.
States, by which some 275 [key not discovered] obstacles were surmounted; and
that Spain meditates an immoderate defalcation of our Western territory. All
this intelligence however has come to us in obscure fragments. I commit it to you
as to a member of Congress on whom secrecy is enjoined and in this cypher as
certainly unknown to all but official persons.
"The inclosed Gazette will inform you of the good fortune of Captain Barry
of the Alliance frigate. It appears from various letters from Europe that the
Jamaica fleet has suffered severely from privateers & the storm.
"The Court at Trenton will finish their business this week it is said. The
Pennsylvanians allege that the cause is going hollow in their favor.
"I have no letter from you by this post which I impute to your visit to
Williamsb.g."—Mad. MSS.
| The writings of James Madison, | |