Title: To James Madison from Edmund Pendleton, 8 October 1787
From: Pendleton, Edmund
To: Madison, James

Dear Sir
Edmundsbury Octr. 8. 1787.
The Governor in his return drop’d at the Bowling Green, yr. very kind favr. of the 20th. past covering the result of your long labours at Philadelphia, for both of which I thank you. I had heard of and lamented the withholding the Names of the two respectable Gentn. of our delegation, tho’ am yet Ignorant of the ground of their dissention; what ever it was, I cannot approve their Conduct. To expect individual or even State unanimity in Points of so great Magnitude and difficulty, was contrary to all experience: and to maintain ones Opinion by all the Arguments which reason and mental powers afford, is manly & becoming whilst the subject is in agitation & Suspense; but to yield to the decision of a Majority, when further Opposition can have no good, & may produce many bad effects, is not only commendable, but in my opinion an Individual duty. I was afraid that if they Published the reasons of their Conduct, as they would probably think necessary, it might create much dissentions in the State. I am told that what they have done & any thing they may do to justify it, is more likely to injure their own popularity, than prevent the adoption of the Plan, but of this I can form no Judgment of my own, except in the narrow circle I am confined to, wherein high & low run into approbation of the measure. I can’t help submitting it to your consideration, whether a speedy dispatch of it in Congress may not be Useful.
I have read the paper with great Attention, but without the Aid of any Judicious friend to confer with; however I mean to trouble you with my thoughts upon it, as they Occur, which, tho’ I do not flatter my self with a thought that they will be useful to you, will be doing on my part what you seem to have expected, when you did me the honour of sending it.
I began to read it with two Impressions on my mind, with which I think every reader of it should set out. 1st. That something was necessary to be done, and that a Plan, very far short of perfection, was greatly preferable to our present Condition, and which would probably have been considered as desperate, if the Convention had risen without doing anything. 2d. that in Governments as well as other things, perfection is unattainable, and indeed Attempts to approach it, by too much refinement, generally produce more mischief than good. I recollected the very sensible observations of Sr. Wm. Temple “That none was ever perfect, or free from very many & just exceptions. The Republics of Athens, Carthage & Rome, so renowned in the world, & which have furnished Story with the greatest Actions and persons upon the Records of time, were but long courses of disorder & vicissitude, perpetually rolling between the Oppressions of Nobles, the Seditions of the people, the Insolence of Soldiers, or Tyranny of Commanders. The very Ideas of Government have been liable to exceptions as well as their Actual frames & Constitutions. The Republic of Plato, the Principality of Hobbes, the Rotation of Oceana have all been Indicted & found guilty of many faults or great Infirmities. Nay the very kinds of Government have never yet been out of dispute, but equal faults imputed to them all. An Absolute Monarchy ruins the people; one Limited endangers the Prince; an Aristocracy is subject to Emulations of the great, and Oppressions of the poor; and a Democracy to Popular tumults & Convulsions.” His conclusion is “A perfect scheme of Government seems as endless and as useless a search as that of the Universal medicine or the Philosopher’s Stone.” And mine is that all which human wisdom is capable of on this great Occasion is to adopt the form most likely to co-incide with the genius of the People to be governed; to Preserve the great outlines and fundamentals of that form, and avoid, as far as may be, the natural infirmities, which experience has proved to be annexed to it.
A Republic was inevitably the American form, and it’s natural danger Popular Tumults & Convulsions. With these in view I read over the Constitution accurately & do not find a Trait of any Violation of the great Principles of the form, all Power being derived mediately or immediately from the People; No titles or Powers that are either heriditary or of long duration so as to become Inveterate; and the Laws & not the arbitrary Will of any Man, or body of men made the Rule of Government. The People, the Origin of Power, cannot Act personally, & can only exercise their Power by representation—the great bodies of both Fœdral & State Legislatures, are to consist of their immediate choice, and from that choice all other Powers are derived; The secretions required in the choice of the Fœdral Senate and President, seem admirably contrived to prevent Popular Tumults, as well as to preserve that Equilibrium to be expected from the Ballancing Power of the three branches. In The Presidents Power of Negation to the laws, the modification strikes out a happy medium between an Absolute Negative in a Single person, & having no stop, or Cheque upon laws too hastily passed, or the Offspring of Party or Faction. Such as upon a re-consideration, are approved by ⅔ ds. of Each House, ought to Pass independant of any other Power.
The President is indeed to be a great man, but ’tis only in shew to represent the fœdral dignity & Power, having no latent Prerogative, nor any Powers but such as are defined & given him by law. He is to be Commander in Chief of the Army & Navy, but Congress are to raise & provide for them, & that not for above two years at a time. He is to Nominate all Officers, but Congress must first Create the Offices & fix the Emoluments, and may discontinue them at pleasure, & he must have the consent of ⅔ ds. of the Senate to his nomination. Above all his tenure of Office is Short, & the Danger of Impeachment, a powerful restraint agt. abuse of Office. A Political Head and that adorned wth. powderd hair, seems as necessary & useful in Governmt., as that member so adorned in the natural body; and I have observed in the history of the united Netherlands, that their affairs always succeeded best, when they allowed their Stadtholder to exercise his Constitutional powers.
I was struck with an Objection to the Senate having been made the Executive Council; since having a Participation in two branches, they might Influence laws for creating unnecessary Offices, or giving extravagant Salaries to those necessary, & then fill them up with themselves, their families or dependts. & thought it best to have the three branches kept wholly distinct from each other. And as an Execut[iv]e Council was necessary, I cast about for their formation, & thought they might be found in the numbers voted for for President. But when I considered that the Objection has no force, but in the case of a General Corruption pervading the whole Legislative & Executive bodys, and that on such a Supposition it would admit of no remedy, but what was afforded by new Elections or by recurring to Revolution Principles; That in the House of Representatives, as well as the Incapacity of members of either House to be appointed to Offices created whilst they are members, there are considerable cheques on the Senate; and above all as the considerable expence of this Seperate Council is saved (and I am more afraid of expence than fraud) I became reconciled to the mode, as an evil which did not admit of a Remedy, that would not introduce a greater evil.
The like objection occurs to the Senates being made the Triers upon Impeachmts., as they therein Participate in the Judicial Powers, and it may be Added that in case of Impeachment Of the President for Mal Conduct by their advice, they will be a strange Tribunal to Judge of it; at the same time it will be objected to, as borrowed from the British form and approximating too nearly to the obnoxious power of the Lords. Tho’ I do not see any material reason for having taken this trial out of the Judiciary course, yet it is really not so exceptionable as it at first appears. The mode of Prosecution, as generally practiced, is not a favorite with me, being generally the Engine of Party contentions for Offices, and no matter how Seldom practiced. It is in the hands of the House of Representatives, who will not use it in the case Supposed, or if they do, and meet the obstruction, may yet resort to the Courts of Justice, as an Acquital would not bar that remedy—the assimilation to the Power of the Lords, is too futile to merit notice.
The line between the fœdral & State Powers, the most difficult part of the work, appears to me most happily drawn, and I much applaud that Spirit of Amity and concession which produced, and which I hope may continue to perfect it. In the Regulations of Commerce however, I shall hope not to see projects introduced for discouraging foreign Trade, or driving Us too soon into Manufactures, in favr. of wch. our Presses have groaned under labour’d nonsense in the course of this Summer. Trade & manufactures should both be free, and will make their way in proper time.
The restrictions of Paper emissions & unjust tender Laws are alone of value sufficient to outweigh all Objections to the System. In the exclusive right of Coining, I foresee great risque & expence in conveying Bullion & money between the Seat of Congress & the remote States, over-ballancing the fœdral Revenue, wch. seems the only reason for confining it. When Congress had fixed the Proportion of Alloy, the value of the coin, and other regulations to prevent Counterfeits, might not the States have been trusted wth. Coining subject to those Rules?
In Art. 1. S. 9. Clause 5th. are these words “Nor shall Vessels bound to, or from one State, be obliged to enter, clear or pay duties in another,” which do not appear sufficiently explicit. If it was intended to allow a free trade between the States without entry, clearance or duty, (wch. does not seem to be meant, tho’ the words, may bear that construction) will it not tend to defeat all Regulations of Commerce & Revenue? If, as I suppose, It was intended to reach the cases only of casually touching at a State Port they were not bound to, or passing through one State to get to their Ports in another, (as the Vessels of Maryland do thro’ ours in Navigating Chesapeake) there appears to want words of Restriction from trading, added to the exemption.
My last Criticism you will probably laugh at, tho’ it is really a Serious one wth. me. Why require an Oath from Public Officers, and yet interdict all Religious Tests, their only Sanction? Those hitherto adopted have been narrow & illiberal, because designed to preserve Established modes of Worship; But since a belief of a future State of Rewards & Punishments, can alone give consciensious Obligation to Observe an Oath, It would seem that Test should be required or Oaths Abolished.
It is time I had done with my triffling observations, wth. which & a thousand others more material, you had been sufficiently tired at Phila., I will only add my warmest thanks as an Individual, to the Authors of the work for their labours, & declare my unequivocal acceptance of it, with all it’s imperfections.
The Viset you mention of my two old friends from Orange, gave me infinite pleasure. We discussed the Politics of the day and the history of former times; We retraced the familiar Annecdotes of our lives, and in short spent the most agreable week I ever experienced; which I beleive increased the train they found me in of gaining strength & ease from my Complaints, wch. flatter me with hopes of being ab⟨le⟩ to Attend the approaching Courts.
You mention your right of Franking having ceased; I suppose you meant it only as a Member of Convention, & that yr. Congressional Privilege in that way subsists—otherwi⟨se⟩ yr. bargain in this Letter, will be still worse than I intended.
We understand a general Eligibility in Members to Our Convention & expec⟨t⟩ you will come from Congress (where important business will no doubt be Suspended) to make one of them. I wish you every felicity, being Dr. Sir with unreserved Esteem & regard Your very Affe. & obt. servt.
Edmd Pendleton


Title: From James Madison to Crèvecoeur, [ca. 20 December 1787]
From: Madison, James
To: Crèvecoeur

[ca. 20 December 1787]
Mr Madison presents his compliments to Mr. St John, and troubles him with another letter for Mr. Jefferson.
Mr. M. has received answers to his letters on the subjects of the Crab trees—the Potowmac and—James River. It is doubted whether any Scyons are to be obtained in the neighbourhood of Richmond. If they can, (and there was a chance at one particular place) they are to be forwarded according to direction. A draught of James River is promised as soon as the survey of it can be copied by a careful hand. A Boat with sixteen men has been brought down the Canal from Westham, (the commencement of the canal, about six miles above Richmond) to its termination which is within one mile and a half of Richmond. No draught has yet been taken of the Potowmac. The following extract from a letter answering mine on the subject, is all the information now to be obtained. As far as it extends it may be relied on as perfectly accurate.
“The survey of the Country between the Eastern and Western waters is not yet reported by the Commissioners; though promised to be made shortly, the survey being compleated. No draught that can convey an adequate idea of the work on this River has been yet taken. Much of the labour except at the great falls, has been bestowed on the bed of the river in a removal of Rocks, & deepening the water. At the great falls the labour has indeed been great. The water there (a sufficiency I mean) is taken into a Canal about 200 yards above the cataract and conveyed by a level cut (through a solid rock in some places, & much Stone every where) more than a mile to the lock-Seats, five in number, by means of which when compleated, the Craft will be let into the river below the falls, which together amount to seventy six feet. At the Seneca falls, six miles above the great falls, a channel which has been formed by inundations of the river, is under improvement for navigation. The same in part, at Shanandoah. At the lower falls, where nothing has yet been done, a level cut & locks are proposed.”
“These constitute the principal difficulties, & will be the great expence of this undertaking: The parts of the river between requiring loose stones only to be removed in order to deepen the water where it is too shallow in dry seasons.[”]


Title: From James Madison to Tench Coxe, 20 January 1788
From: Madison, James
To: Coxe, Tench

Dear Sir
N. York Jany. 20. 1788.
I have received and forwarded your letter and pamphlet to Mr. King. The latest information from Boston makes it probable that every aid to the fœderal cause will be wanted there. The antifederal party have found such reinfor⟨ce⟩ments in the Insurgents, and the province of Maine which is afraid of creating obstacles to her separation, that there is the most serious reason to apprehend the friends of the Constitution will be outnumbered. The consequences of such an event elsewhere, are as obvious as they are melancholy. The Legislature at Poughkepsy is much divided on the point of submitting the Constitution to a Convention. The House of Assembly is in the affirmative, and is even supposed to be friendly to the merits. The Senate in its present State is opposed to a Convention. The arrival of the absent members may turn the scale in favor of one. On the merits that branch is certainly in the negative. The little piece by Philanthropos is well calculated to cherish the distrust of a favorable issue to a second Convention, and will be reprinted here. I do not know a better mode of serving the fœderal cause at this moment than to display the disagreement of those who make a common cause agst. the Constitution. It must produce the best effects on all who seriously wish a good general Government. Your commands for the Editor of the papers under the title of Publius, shall be attended to. I am Dear Sir with great respect Yr Obedt. hbl sert.
Js. Madison Jr


Title: To James Madison from George Wythe, 8 September 1788
From: Wythe, George
To: Madison, James

Williamsburgh 8th of september 1788.
I take the liberty, my dear Sir, to desire a mr Prince to call upon you; in case he do not meet with mr. Wickham in Newyork, for about three guineas, the price of some fruit trees, which he is directed to send to me, including freight, &c. I am, as much as I can be any man’s, dear sir, your well-wisher and obedient servant
Go. Wythe.


Title: To James Madison from Edmund Pendleton, 6 October 1788
From: Pendleton, Edmund
To: Madison, James

Dear Sir
Virga. October 6. 1788.
I have to thank you for yr. favr. of the 23d. past, which was the more acceptable, as I had heard that your fever had returned on Your Northern journey, & I feared might have continued your too long Companion.
The Resolutions respecting the Missippi. Navigation, Are of a Balmy Nature, tending to give Repose to those concerned, and impose silence On such as caring nothing about it, used the Subject as an engine of Opposition. Not such is the fixture of the tempory. seat of Congress. I have already met taunts on the Occasion, as the first Instance of Eastern Partiality and influence, which Opposition foresaw would pervade & wholly direct the new Government. In vain did I observe that the measure had a So[u]thern Vote, the answer was that they would by one Artifice or other, always find means to engage such Assistance. I feel concern at the determination, tho’ as temporary it is not in its self important, yet nothing in my Opinion can make a new Government wear a more inauspicious Aspect, than the appearance of favor to one part of the Society over others: a full and Equal diffusion of it’s Powers to the whole, is what all have a right to expect from the Rulers, and will never acquiesce in a Seat of Government so ec-centric & inconvenient as New York; but I hope time & reflection will produce conviction of the impropriety of this vote, before the stable fixure, & indeed operate upon the second meeting of the New Congress. I have not been without my fears that Opposition would use the Subject of Amendments, & a New General Convention for the purpose of keeping the New Government from Operation, tho’ I have heard little on the Subject—some warm friends to it in this County, suspecting that Procrastinating measures might be pushed in Our Assembly, a Majority of whom are Supposed to be unfriendly, are preparing Instructions to their Delegates, To us⟨e⟩ no delay or impropriety in appointing the time & mode of Electing the Delegates—In their votes for Senators or Electors of the President to chuse such only as are known friends to the Governmt.—and not to hasten a Meeting of a Convention to consider of the Amendments, but leave the Government to have previous Operation, that experience may either Sanctify or repel the Alterations proposed, and perhaps discover others not hitherto brought forth.
I suppose I shall be charged as the Author of this Production, but have not the Honr.; they were shewn to me, & I only lick’d them into form. I have heard very little on the subject of the Fœdral Elections, and know not whether they are to be made of one for a District, or the whole ten to be voted for by each Freeholder: I find each has it’s Advocates, tho’ the former seems the only means of securing a dispersed Representation. The Methodist & Baptist preachers swarm thro’ the State, exhibiting daily & nightly, and strugling hard for the Episcopal Flock; some suppose this extraordinary Ardor has a View to those Elections, others to the Glebes and Churches, & some suspect them of designs still more dangerous: However this be, they seem to have hit the lucky minute, since their hearers fall down & go into the Waters by 50’s at a time, over whom they appear to acquire a more than Papistical Influence. It was lucky that this Zeal did not commence ’til the crops of corn were made, otherwise the daily attendance at these exhibitions must have produced extensive temporal wants, however the Spiritual Stock may have been increased. The Crop of Corn is said to be generally plentiful, that of tobacco so in the upper Countrey, but greatly diminished below by the effects of the Gust & wet Season.
The late papers seem to indicate an extension of the Northern War in Europe, itstead [sic] of it’s extinction, which former Accounts had made probable. I fear this is not the crisis favorable to Gallic liberty, and that the struggle will at present prove unfortunate to it’s noble Advocates. Immortal will be the Honr. of America in having given the Tone to that Spirit, as well as to many great & liberal Sentiments adopted in Europe, if we do not forfeit it, by a narrow, divided, selfish Policy, destructive of our Interest & Character together, the dread of which gives me some uneasy Moments.
I hope it is Not true that our Princely friend the Marquis is in the Bastile, the very thought is horrible. I have nothing new to give you & you must submit as usual to a loosing correspondence with Dr. Sir Yr. very Affe. & Obt. Servt.
Edmd Pendleton
Should not you let yr. friends know whether you would chuse to be in the Senate or hs. of Repes.?


Title: From James Madison to Elizabeth House Trist, 29 October [1788]
From: Madison, James
To: Trist, Elizabeth House

New York Ocr. 29 [1788]
At the date of my last on friday was a week since which I have not recd. an answer, I expected by this time to have been in Philada. My plan has been impeded by several circumstances. The only insuperable one has been a continued indisposition which has at length terminated in a complaint which has been promoted by my sedentary life, and which incapacitates me for travelling. I am at present pursuing medical relief, and shall leave this as soon as I can. I calculate on some pretty early day in the approaching week. John will not accompany me, nor probably have much further connection with any corporeal beings; though he enjoys the fallacious hope of being soon recovered, and is fondly persuaded that some little transitory & variable symptom is the only obstacle to it. He is now removed to quarters which will cost me less, where he will be less disturbed & where he will less incommode others. I have an order for his admission into the Almshouse; but for several reasons, I chose rather to submit to the expence, at least for a while, than to avail myself of that resource.
I have heard nothing lately from Mr. Randolph. He quits the Government about this time and goes into the assembly. It is not impossible that he may be succeeded by your friend Col. Grayson, though the event will depend on several contingencies. I have heard from Mr. Jefferson as late as the 12th. of August. He was then well, and by his silence leaves it to be inferred that his whole family was so. Adieu
Js. Madison Jr


Title: List of Candidates for Office, [ca. 1 April–29 September 1789]
From: Madison, James
To:

[ca. 1 April–29 September 1789]

Candidates
Objects
Recommendations

Major J. Gibbon
some place in the Customs
By Col: Ths. M. Randolph

Sharp Delaney
Collection at Philada.
By Mr. Peters. He is now Collector

Jno. Hopkins
Whatever place may be in lieu of the loan office in Virginia
He is now loan Officer

Hudson Muse
Collection on Rappahannock
Now Collector

General Stephens
Collection at Norfolk or some other place in the Customs
Of known character

Abraham Archer
Collection at York Town
Now in Office & recommended by D. Jameson Esqr.

Capt: Saml. Eddins
place of Searcher at do.
now in office, recomd. by David Jameson Esqr. & Mr. Archer.

Jacob Wray
Collection at Hampton
Now in Office

Willm. A. Bayley
place of Searcher at do.
By Miles King Esqr.

Gustavus B. Wallace
place in Customs on Rappahannock
Of known character

Xn Febiger
place in Customs at Philada.
of known character

Majr. Lindsay
collection at Norfolk
now in office, of known character

J B Nichols
collection at Norfolk
By Jno. Swanwick

[…]
place in Customs in Va.
of known character

Col: Hanson
place in Customs
By T. Coxe Esqr. of known character

J. Broom
Collection at Wilmington
known character

Moscoe Livingston
place in Customs at Norfolk
By Col: Henry Lee

Thomas Pollard
some place in revenue (particularly on Potowmac)
The Honble Edmd. Pendleton

David Meade Randolph
place in Customs on James River
His own letter only

Joshua Barney
place in line of his profession
By Docr. McHenry

Capt: Richd. Taylor
do. do.
Commander of an armed Vessel during the war in Virga—late of one of the armed vessels for enforcing the trade laws—known to be a brave & worthy man.

Mr. Elliot
Geographer of U. States
By President Madison

Elias Langham Richd. Morris (of Louisa)
Military storeship do.
See his letters a man of capacity & worth

Js. Maury (now in Liverpool)
Consulship in London or Dublin
a man of do. & do.

Thomas Thomson
do. in Portugal
By Mr. Ths. Pleasants.


Title: To James Madison from Edmund Pendleton, 3 May 1789
From: Pendleton, Edmund
To: Madison, James

My Dear Sir
Virga. May 3d. 1789.
I am obliged by yr. two kind favrs. of the 8th. & 19th. Past. I was indeed surprised, & in some measure Chagrined at the tardy Assembling of the members of the fœdral legislature, betraying a want of Zeal Which is rather unfavorable, tho’ it might, & I hope did, proceed from causes less reprehensible, & which may be manifested by future dilligence.
Before this time the Government will have been compleatly Organized by the qualification of the President & Vice President, to the former Gentn. you’l do me the favr. to present my most respectful Complts., & whilst I congratulate the Union upon his appointment & Acceptance, he has my most Cordial wishes for health & every felicity, particularly that of an easy, honourable & successful Administration, as I am sure it will be a wise & upright one—I can’t think of troubling him with a letter to convey this mite on the Occasion. The other Gentn. has my Esteem & good wishes, tho’ I had never the Honr. of an intimacy with him.
Our papers begin to retail your debates, which I am glad of, as it silences that part of Opposition which asserted our total Ignorance of every thing which should be done. Our Members I find shine, one placed in the Chair, & most of the others on the floor. I can’t help wishing your Proposition had Succeeded of making a temporary Provision for Revenue only, & that upon the former digested Plan, leaving the great regulating subject, as it may relate to encouraging American Manufactures, to be considered at more leisure than can now be afforded without Injury in delaying the necessary Revenue—amended, however, by Mr. Lawrence’s proposition of laying a certain per Cent on the cost, without Specifying any Articles, which however proper on the other consideration of the Subject, is not so simple & easy in the collection of revenue merely, (occasioning a long Catalogue of Articles in the adjustment between the Officer & importer instead of one line founded upon the Amount of the Invoice) and may Occasion loss in it, by the Merchts. directing their importations to Articles of the lower Class of duties. As you say the difficulties are adjusted as easily as could be expected, I hope this System is not much departed from. On the other great Subject, I will take the liberty of giving you my thoughts at some future day.
Difficult it is to reconcile our famous disqualifying Act with the promise of Gentn. to give no Obstruction to the new Government, since I can discover no end it has but to realize those high drawn pictures of War between the fœdral & State Judges, & the Officers of both emploied in levying Executions & Collecting taxes. But will it interfere with that law to direct Prosecutions in cases of seisure to be in a State Court, such as you can trust? and in the Genl. Judiciary System to allow the Appeals, under such Regulations as Congress may make, from Judgmts. of the State Courts, without appointing an Inferior Court in each? and to appoint the Collection of Internal taxes to be made by the State Collectors, on their Entring into bond wth. Security to yr. President, & being liable to be moved agt. in a State Court. I just hint this for consideration, without giving my Opinion either way.
Our State Elections seem as remarkably Anti, as those to Congress were Fœdral. You’l have heard of the noble Push yr. brother made at the Hero of Culpeper. I honour him for it, tho’ it seems he lost his Election & carried Mr. David Jameson by it. Mr. Henry is forced into service it is said against his request to be excused. My Complts. to yr. Colleagues. I am Dr. Sir Yr. mo. Affe. friend
Edmd Pendleton


Title: To James Madison from Edmund Pendleton, 15 June 1789
From: Pendleton, Edmund
To: Madison, James

Dr. Sr.
Virga. June 15th. 1789.
Since my last I have recieved a Letter from my nephew Nathaniel Pendleton junr. of Georgia stating his information that besides the Judges of the Superior Court, one Fœdral Judge is to be appointed in each State I suppose for the trial of suits within the Appellate Jurisdiction: That he had written to his friends in New-York to sollicit for his appointment to that in Georgia, & as he had not the Honr. of being personally known to the President or to you, he requested my introduction to both. I will therefore venture to state his situation to you, wch. you’l do me a favr. in communicating to the President, and giving him Assistance if you find on a comparison with Competitors, you can do so, consistent wth. yr. Honr. & the Public Good. He was an Officer in a party who fought bravely without the lines, when Fort Washington was taken, & shared the fate of that Garrison in being a prisoner, in which he continued for some years on Long Island; he was fortunate enough to procure the use of some Books, which I have reason to beleive he read dilligently. After his exchange he went with the Army to the Southward, as one of General Green’s Aids, and at the close of the War applied to the Study of the law under his brother Judge Pendleton of Charles Town—after having procured a licence to Practice in this State and that, he removed to Georgia, where I am happy in hearing, he has met uncommon Success. Having gone through various offices, he was made Attorney General & now a Judge of their Superior Court; wch. I consider as a testimony of his merit, since he was a stranger & could not have procured them by family Interest or Connections. It will at least shew that he is not unpopular in that State, a circumstance perhaps not unworthy of Attention, provided ability & integrity be primarily secured. Your favr. on this Occasion will add to the great number already confer’d on Dr sr. Yr. mo. Affe.
Edmd Pendleton


Title: To James Madison from Edmund Pendleton, 3 July 1789
From: Pendleton, Edmund
To: Madison, James

My Dear Sir
Virga. July 3d. 1789.
Yr. Obliging favr. of the 21st. past, is just come to hand. The question concerning the power of removing Officers was important, and ’twas much better to investigate it fully, tho’ at the expence of a weeks discussion, than take a wrong step in it. I concur in Sentiment with the Decision. The Argument that the Power of removal should follow that of Creation, has weight, but is abundantly overballanced by the Objection that an Executive Officer might intrench himself behind a party in the Senate, setting at defiance the Control of the President & impeachment of the House of Representatives. Permit me to add that I have pleasure in the General complexion of yr. proceedings.
I have reced. from Colo. Lee the Bill for arranging the Judiciary & have, as he requested, sent him a state of amendments to it, of wch. the inclosed is the rough; but have taken the liberty of givg. my Opinion, that like the fabled Cucumber, with any Seasoning, it will be best thrown away.
This department is the Sore part of the Constitution & requires the lenient touch of Congress. To quiet the fears of the Citizens of being drag’d large distances from home, to defend a suit for a small sum, which they had better pay however unjust, than defend with success, is as worthy of attention, as to provide for the speedy Admon. of Justice to honest Creditors.
The Circuit Courts I suppose intended as an Accomodation of these inconveniences, but I think an exceptionable one. The fatigue of the Circuits & other accidents, will generally reduce the Judges to two, a number unsatisfactory to be appealed to for final acquiescence; and to the Supreme Court, they will go at last. Their division in Opinion, wch. must Often happen, will occasion delay, additional trouble & expence—& in appeals from the District Court, if that Judge be one in the Circuit, the Appellee will have a decided advantage.
The District Court will prevent Citizens from being sued out of their state but not from being drawn to great distances within it, which in large states is very injurious, & gave birth to our District Court law. A man may be called from our Monongalia or Washington Counties to Richmond, & successfully defends an unjust suit; he must then pursue his defence into the Circuit Court, & from thence to the Supreme Court; and this, not in cases rarely happening, but in those which will probably be for some time the principal business of the fœdral Courts, I mean the british debts, wch., if for £15. Virga. money, may undergo that operation. The Judgmt. of a single Judge will not be acquiesced in, & appeals will be frequent. The expence of an Additional Judge for each State, is some objection, tho’ not weighty, if utility required it.
Permit me then to ask why is this project necessary? And if it be not a Counter birth to the offspring of our late Assembly, unreasonable jealousy? Have we any Security that Judges of fœdral appointment, will possess Superior ability or Integrity, to those called into that duty by the States? If not, why may not all suits within the Appellate Jurisdiction, be Originated in the state Courts, & from their last resort allow the Appeal to the Supreme Court for large Sums? The Judges of the State Courts are equally independent, take the same Oaths in Spirit, & have the same law to direct their decisions, as the Fœdral. They have their Courts so model’d, as to render Justice Speedy to the Creditor & easy to the Dr., the trial being near his home, & the Admon. so divided as to produce dispatch. The mode will be familiar & easy, & quiet the people’s fears; and I submit it to my Representatives, whether this will not be, at least, the best experiment to make in the Infancy of our Government.
The Circuit part of the Plan suggests a thought worthy of Attention; whether the Supreme Court might not sit in each of those circuits, instead of being Stationary. I suppose one Session a year might be sufficient, and it would give great releif, even in cases of Appeals, & admit perhaps of their being allowed upon a lower scale of Value.
Pray present my Complts. to Mr. Page, & communicate these Sentiments, as I am tired, & can’t do my self the Pleasure to write to him this Post.
My concern for the Presidents illness, & joy at the prospect of his recovery, are proportioned to the Interest we all feel in his happiness.
I am in Sentiment with you that the greatest danger of encroachment is to be apprehended from your house—their being the immediate choice of the people, will, however improperly, produce assumptions of their Original undelegated powers, & Occasion liberties to be taken there, wch. other bodies will not venture on. The reasoning of Publius on their influence has shaken my Objection to the Senate’s being the Executive Council, since it may perhaps require the Union of those two branches to Ballance the Power of the other branch.
I have reced. the Amendments from Mr. Page & see no Objection to them. I am under great Obligations to that Gentn. as well as you for the papers sent me. Your hand writing on the Cover of those papers, announces yr. health & gives me pleasure.
My nephew is just from Orange & left our friends there well as Usual. The Appeals & G. Court were in Session when yr. Oath appeared, we had heard it was not to be taken by two Gentn. of the latter, but all took it.
We have a very dry season, good crops of wheat, but a bad prospect for corn & tobacco. Adieu! My Dr. Sr. Yrs.
Edmd Pendleton

[Enclosure]
Amendments proposed to the Bill “to Establish the Judicial Courts of the United States.”

Page
1. l.
38.
leave out “and shall be called a District Judge.” as unnecessary.

Pa.
2. l.
9.
after discretion, insert “in cases of Admiralty & Maritime Jurisdiction, or the trial of Offences committed on the High Seas.”

Note. Occasional, unfix’d Courts in other Instances are unusual & may be inconvent.

l.
11.
leave out “Alternately at Portland & Portsmouth beginning at the first” & fix it at one

15.
same Amendment as to N. Jersey.

19th.
same —————————— as to Virginia

22.
same as to Georgia.

Note. The Division or the Removal of the Records seem evils of greater Magnitude than holding the Courts at one place; being held Alternate there is a Chance of Carrying the uppr. people to Wms.burg & the lower to Richmond.

23.
leave out from “first[”] to the end of the Clause & insert “But in cases of Admiralty & Maritime Jurisdiction, or the trial of Offences committed on the high Seas, the Courts shall be held at such place in each State as the District Judge thereof shall direct.”

33.
leave out “the before mentioned District” & insert “the above named United States” so they are called & divided into districts, but not mentioned as comprehending one District.

44.
leave out “Districts” & insert “District” or one District Judge may sit in another.

Page
3. l.
12. &c
same amendments to fix Courts at one place.

4. l.
11.
The Oath is rather short; but is it not too much confined when they are to judge according to the Constitution & laws of the United States, wch. make only part of the law they are to judge by—leave out those words & insert “according to law.”

l.
22.
after “Quakers” insert either “and Menonists” Or “and others who religiously scruple the taking of an Oath.”

29.
from “Seas” to the word “except” in the 33d. line, is to me wholly uninteligible

46.
what is meant by a Tort? Is it intended to include suits for the Recovery of debts, or on breach of Contracts, as a reference to the laws of Nations & Fœdral treaties seems to indicate; or does it only embrace Personal wrongs, according to it’s usual legal meaning, or violations of Personal or Official privilege of foreigners? In the last case it will probably be unexceptionable, in the former, very inconvenient.

The next clause seems to take in the debts & may serve to explain the former.

Pa.
5. l.
10.
By mixing foreigners or Citns. of another State, with cases in wch. the United States are parties, do you not give Original Jurisdictn. to the Supreme Court in the Case of foreigners &c if the value exceed 500 Dollars, contrary to the Constitution? or does the words “as the Case may be,” exclude that Constructn.?

24.
leave out “or in which he shall be found at the time of Serving the writ”—Or it will defeat the whole clause. Perhaps it may be not amiss to Add, “unless upon legal process against his person & Estate in the District of his residence, it shall be returned by the Marshall, that neither can be found to inforce an Appearance to the suit.” to reach fugitives.

44.
leave out from the word also to Was in the 45th. line & insert “giving Special bail, if such” wch. Security for Appearance don’t reach

46.
after surety add “& bail.”

leave out dismiss further, & insert “Certify the same together with the.”

47.
after Cause add “to the Circuit Court”

Pa.
6. l.
3.
leave out “still hold to respond the final Judgment” & insert “be discharged” the Special bail being substituted.

Pa.
6. l.
20.
leave out all & insert “in these Cases & in all other Original.”

30.
Why give the Supreme Court exclusive Jurisdn. in suits agt. Consuls & their Domestics, who may be sued in a remote state, & rather chuse to defend them selves there, than go to the Supreme Court; or he might prefer the District or Circuit Court; would it not be better to give Concurrent Jurisdns., & provide liberty to the Deft. to move it to either Court if he chose it—as in the Case of other foreigners.

38.
between all & Actions insert “Original.”

Pa.
7. l.
8.
After Commitment, insert “returnable either before himself on a certain day & at some fixed place within the district of Commitment; or before the next Circuit or District Court of such District” otherwise a Justice of the Supreme Court having unlimited Jurisdictn., may remove a Prisoner from Georgia to New Hampshire, or to the Seat of Congress.

14.
This Power to the Courts of law to excercise a delicate branch of the Chany. Jurisdiction, upon motion, & without the cautionary forms adopted by the Chany., I am apprehensive will introduce much confusion & perhaps Oppression—however experience will best shew it.

Pa.
10. l.
4.
leave out from Courts to Or in the 5th. line

8.
leave out from States to Or in the 9th. line

12.
leave out from States to May in the 15th. line

it is supposed to be the nature of the question & not the event of decision wch. makes the Appeal proper. If an improper Judgmt. is given in favr. of the Prefference to fœdral treaty or laws, the party injured should have the same right to Appl. as the other, in case of a Contrary Judgmt., otherwise the remedy is Partial.

Qu. should there not be some limitation of the sum

for will not the Clause embrace the Case of every British Creditor? And is it intended that they may drag every Dr. for the most triffling sum first thro’ the State Courts & then by Appeal to the seat of Congress.

Pa.
12. l.
29.
leave out “De Talibus Circumstantibus[”] & insert “of the Bystanders duly qualified.”

41.
leave out from District to Or in the 42d. line

If the Witness lives out of the District he seems equally unamenable by the District Court process whether he lives At the ditance of 100 miles or less; and that I suppose the ground of taking his depo.

 The Courts will soon be tired of Oral testimony in Chany.

44.
leave out From District, to before in the 45th. line

Page
15. l.
17.
between the words any & Offence insert “Capital[”]

21.
leave out Crime or & place “Capital”

as I suppose it is not intended to give a Judge of the Superior Court, or a Justice of peace a power to take up & Commit for trial, every Citizen who is suspected to have violated the penal laws of Congress, & incurred a pecuniary fine.


Title: To James Madison from Edmund Pendleton, 2 September 1789
From: Pendleton, Edmund
To: Madison, James

Dr. Sir
Virginia Sepr. 2d. 1789
Besides several Packets of papers I am indebted for your two favrs. of July 15th. & Augt. 21st. reced. since my last. I congratulate you upon having got through the Amendments to the Constitution, As I was very Anxious that it should be done before yr. Adjournment, since it will have a good effect in quieting the minds of many well meaning Citizens, tho’ I am of Opinion that nothing was further from the wish of some, who covered their Opposition to the Government under the masque of uncommon zeal for amendments, & to whom a rejection or a delay as a new ground of Clamour, would have been more agreable. I own also that I feel some degree of pleasure, in discovering Obviously from the whole progress, that the public are Indebted for the measure to the friends of Government, whose Elections were opposed under pretence of their being Averse to Amendmts.
My anxiety is now directed to the event of the Judiciary System. If that ends in a tolerable one, I think yr. proceedings will meet Genl. Approbation and the Government commence under fair Auspices. You must expect to hear some Clamor about expence, as in all Governments, but I think it will be less than might be expected.
If you should Adjourn at the time appointed this will be the last time I shall pay you my respects before that event, so I will wish you a good journey to yr. friends & pleased constituents, & once more repeat an old truth, that I am wth. great esteem & respect Yr. very Affe. friend & Obt. Servt.
Edmd Pendleton
Pray present my best respects to the President.


Title: To James Madison from Edmund Pendleton, 2 April 1790
From: Pendleton, Edmund
To: Madison, James

Dr. Sir
Virga. April 2d. 1790
I should have sooner acknowledged yr. obliging favr. of March 4th., but was taken wth. a Cold about the time of it’s receipt, which, as usual, brought on a fever & short breathing, from which I am but now relieved. I thank you for your Attention to Dr. Murrow’s application.

The Secretary’s Plan of finance is really too deep for my comprehension, I cannot however accord with his position that Public debt is a blessing; it may be a convenient engine to Government, considered as having a distinct Interest from that of the Citizens, but can never be so, where they are united, as ought to be our case. Upon his principles, I wonder he did not assume all private debts, since it would have increased the Public Capital, &, as he reasons, the wealth of America, & would have gained him many Partizans. I did Not know how Virga. might be Affected by this project, but from it’s first Appearance, I had feelings repulsive of the measure on general considerations, of the fœdral debt being thus unnecessarily increased, & difficulties in it’s adjustment multiplied, and that it was an Officious intermedling wth. the State Governments, which will be considered as a stride towards consolidation, and this increased, rather than diminished by his wish to absorb all the Powers of taxation in the fœdral head, as one of the reasons for the Assumption.
My Sentiments on the other great subject you have long known, & I need not repeat them. Yr. Opponents appear to me, instead of considering the subject in a great & general view & applying general principles of Justice to a case new & extraordinary, to have become bar advocates for a favourite measure, calling for precedents, and reiterating maxims establishing the general faith of contracts, without distinguishing their ground, and stating the cases in which they may be departed from, consistent wth. good faith; As if there were no such things as Vices in Contracts, wch. render them Nul in law, Equity & Honour, and that if a sharper can once get a bond signed, or transfer’d, it becomes like a law of the Medes & Persians unalterable, tho’ obtained thro’ the weakness, ignorance of the Subject, or necessity of the other, & an Advantage gained wch. no honest man would insist on: whereas it is one of the great purposes of Society & Government to protect it’s members from such Oppressions. The Statutes of Usury for instance have this foundation, and Courts of Equity are occupied Perhaps half their Sessions, in giving relief in such instances as laws can’t reach & provide against. But “The new Government is declared by the Constitution to be bound for the debts of the old,” true & surely they ought to be, but how does this apply? The question is what is the debt, & to whom it is due? When those are ascertain’d, the obligation to pay is indisputable.
I am almost tempted to say of these Advocates As Warburton does of his, that “so far from a good Argument, to the disgrace of their Profession, they can scarce make a tolerable quibble.” However, we must submit to a Majority & wish for the best.
The Progress of Illumination & liberty in Europe, is pleasing to my feelings as a Man, but peculiarly grateful to me as an American, since I think we may, without Arrogance, Assert that the foundation was laid in this revolution, and the sensible publications on that Occasion. May it proceed wth. as little bloodshed as may be, ’til all mankind are happy. We have not a word of News. That I retain the warmest regard & affection for you is not such, as I am truly Yr. firm friend
Edmd Pendleton


Title: To James Madison from La Forest, 2 April 1790 (Abstract)
From: La Forest, Antoine René Charles Mathurin de
To: Madison, James

2 April 1790, New York. Introduces Dr. Vacher, who served in the Revolutionary War and who has long been employed in the King’s Hospital in France. Vacher has business for which he desires JM’s support.


Title: From James Madison to Benjamin Rush, [3 May 1790]
From: Madison, James
To: Rush, Benjamin

[3 May 1790]
… Your hint as to addresses from the H. of Rep. to the National Assembly was perfectly new. I am far from thinking that such a measure might not be formed as [to] do credit to this Country and good to both….


Title: To James Madison from Edmund Pendleton, 15 January 1791
From: Pendleton, Edmund
To: Madison, James

Dear Sir
Virga. Jany. 15th. 1791.
I have just received yr. very obliging favr. of the 2d. & have particularly to thank you for yr. Judicious Ansrs. to my several queries on the Subject of British debts, which I can truly say will have great weight with me; whether they will prove Satisfactory in removing my doubts, my head is not in a condition to decide, being just got through a Violent fever, with which I was taken on my return from Richmond, after having sat through the Court in very cold weather with a veteran hardiness, which promised a perfect restoration of my health: Yr. Answer came full as soon as I expected, & have only to fear it may at last have diverted yr. Attention from more important business, wch. I find Congress have already engaged in.
I mentioned to Mr. White two great features in the Bank system wch. struck me as objectionable—a more accurate examination, which I can’t yet venture to impose on my head, might discover others. From Mr. Randolph’s abilities, I expect much improvement in the Judiciary. Perhaps ’tis good Policy in the infancy of Our fœdral Government, to avoid direct taxes, as obnoxious to the Citizens at large: but I confess my own Sentiments on that Subject have ever been that it is a delusion of the people to conceal from them the real expence of Government; and injurious, as at the same time it increases it’s weight; and the principle peculiarly so to the Southern States, by an excessive impost, which, As they don’t manufacture, throws on them an overproportion of the burthen: however I believe it is at present unavoidable; & only complain of that part of the impost, wch. has not revenue for it’s Object, but the encouragement of Eastern & No. Manufactures, at our expence. It is the nature of the Collection, rather than Injustice, which renders the excise Odious, and that perhaps may be so changed as to leave little ground of Objection. I hope however the tax will be confined to the liquors distilled, & not, as was proposed, be extended to the Stills, wch. would particularly affect Virginia abounding in small ones chiefly emploied in distilling the Apple and peach liquor of the proprietor. However I am fully persuaded that such a measure would defeat it’s own purpose, since our Orchards are so unproductive, that the tax would induce the knocking up the stills into old Copper.
The disposal of the public lands, is a great Object, the hastening of which would tend to reduce our Public debt to a moderate Size, & enable us to provide for the annual Interest & sinking part of the principal, so as to see an end of it at some period—but it seems this is not a desirable Object with some people, who promise Us great wealth from a large debt. From the Militia Bill I hope little, being perhaps singular in my Opinion agt. all regulations on that head beyond their regular inrollment & being Armed, & an annual meeting to shew that they are kept so—as to training of the whole, it cannot be made effectual, without a ruinous loss of labour; & considering money to be as necessary in War as men, & that in that Delemma, you can sooner make Soldiers of plowmen than raise money, I think a Republic of Rich husbandmen, better prepared for that state than one of poor Soldiers. 5 or even 10 days training in a year will never make a Soldier, but will in point of labour, collectively produce immence loss to the Community.
The Selection of certain portions for constant training altho’ by rotation, is in my Judgment a standing Army, liable to many important, tho’ perhaps not all the Objections to that Obnoxious body.
The News from Lewis Town of a peace between Br. & Sp. is agreable to me who love peace, but will disappoint many golden dreams for America, formed on the contrary hope.
The meeting of the Drs. to Br. Subjects on the 1st. Instant we are told has produced a Resolution to engage 4 of our eminent lawyers in the defence—handsome fees no doubt are to be raised, from them I shall probably receive a different Solution of my doubts from those you have favour’d me with.
Be pleased to accept in return my most cordial wishes comprised in the Complts. of the Season; & I am sure all Virga. will join me in a hope that you may live to have them often repeated by other friends, after I am in my grave, tho’ none can ever do it with more sincerity than Dr. Sir Yr. much Obliged & Affecte. friend
Edmd Pendleton


Title: To James Madison from James Pendleton, 26 February 1791 (Abstract)
From: Pendleton, James
To: Madison, James

26 February 1791, Culpeper County. Encloses a certificate of military service of a “near neighbour,” Zachariah Delaney, to enable him to collect pay owed him as conductor of military stores with the Southern Army. Asks JM, in a postscript, to take care of the certificate “if it cannot be now drawn.”


Title: To James Madison from Edmund Pendleton, 9 December 1791
From: Pendleton, Edmund
To: Madison, James

Dr. Sir
Virga. Decemr. 9th. 1791.
Having spent 6 days in Richmond in hearing two Gentn. on each side argue the great Question respecting the recovery of British debts, I have for yr. amusement thrown together what I recollect of the General heads of the Argument, which may not comprehend the whole of those since I took no Notes, & give it from a faulty memory. They spake well on both sides, but Mr. Henry was truly great, & for the first time I ever heard him, methodical & connected for 2 days & an half. Grotious, Puffendorf, Vatell, & others were worried in the Service. They were still disputing on the 9th. day from the Commencement when I left the City—no hint from the Judges enabled even a conjecture of their Opinion, but the bystanders who were disinterested, pretty generally thought there could not be a recovery. We hear there is a Plenipo. from London with you to settle this business—at any rate it seems to me that Congress must act in it, before it can be settled either way. The truly distressing Accots. from Miame are universally charged to Br——n, we are very anxious to hear how the affair ends. You’l have the Intelligence of the day from yr. bror. at Richmond. I have only to add that I am grown well & fat, & that I am still as much as ever Dr. sr. Yr. mo. Affecte.
Edmd Pendleton

[Enclosure]

Jones Surviving Partner of Farrel & Jones   of Great Britain Plts.     agt. Thomas Walker   deft.
}
In debt on bond before the Fœdral Circuit Court at Richmond Virga.

The defts. pleaded that the Plt. and his Partner were british Subjects when the debt was contracted, at the commencement of the late War & ever since, and that by the War this debt, then due, was forfeited to the Com.Wealth of Virginia. That pursuant to an Act of Assembly in 1777, he paid the Amount of the debt into the Virginia Loan Office as due to the Plt., & took the receipt directed by the Act, whereby in the terms of that Law, he was discharged of the debt.
The plt. replied the 4th. Article of the Treaty of peace “that there should be no legal impediment on either side to the bona fide recovery in Sterling money of all debts theretofore contracted” and the Fœdral Constitution declaring Treatys the Supreme law, as having repealed all the laws of the Virga. Assembly on the Subject.
The deft. rejoined the Covenants in the Treaty on the part of the british Sovereign for delivering up all American Property then possessed by the Army, to remove his Fleets and Armies from the Territory of the united States & deliver up all the Garrisoned Posts therein, & to live with America in good faith as became friends. Then alledged a breach of those Covenants 1. in refusing to deliver, & carrying away 5000 slaves American Ppty. which they had in possession at the time of the treaty. 2. in retaining the Posts & a large tract of territory within the American limits—& 3. in furnishing the Indians wth. Arms and Amunition, & instigating them to War with the United states contrary to friendship & the rights of Neutrality
The Plt. demur’d, & so the case came on before the Court for Argument.

For the Plt.
For the Deft.

1. Wars betwn. Nation’s don’t affect the Contracts of Indivls.—debts are not confiscatable, are suspended only during the War, & revived by Peace. Therefore all the laws of the Virga. Assembly, tending to confiscate them, were void Ab initio, as contrary to the law of Nations.
1. By the law of Nature & Nations in a War, self preservation was the first principle, and each Nation was to judge for itself, what means were dictated by necessity to effect that end—and that will justify the seizing of debts of individuals, if in their power.

*That America, distress’d for money, to repel an unjust War, & driven to the Source of emitting paper, had a right to seize the debts in aid; wch. was more reasonable as the Crs. then would otherwise have been on a better footing than those of Ama., obliged to receive paper for their debts—Seqn. only then intended, the Paymts. into the Treasury—placed them on an equal footing & preserv’d their money from future depreciation.

That the exemptn. of debts from seizure in War was founded, not on the rights of War, but in the Modn. customs of the Europn. Nations by comn. consent, wch. custom did not bind Ama. for 2 reasons

1. Amas. first effort in War, & not bound by Usuage [sic] to which she was no party.

2. Britain did not consider it as a common War but a Rebellion, & in it’s progress violated all the Rules of humanity practiced in Europe, & therefore not intitled to claim any exemptns. under that Custom.

*That Nations as a Community form but one Moral person represented by the Sovereign Power, & in War, each individual of one is considered as in hostility to each of the other, & debt’s from one to the other, are named among the Hostile things wch. may be seized.

2. That the Virginia laws did not confiscate the debts, but sequestered them only, reserving to future direction, how the money should be disposed of, which had never been declared.
2. The Legislature of Virga. having a right to confiscate the debts, & having Acted upon them so as to take them from, & discharged the Drs. from the Creditors, it was sufft. for the present purpose of the deft., even if there was no actual confiscation, wch. however they asserted had taken place.

The Act of 1777 Sequester’d only, discharged Drs. who pd. into the Loan Office, & left it open for Crs. to apply & claim of the State.

In 1779—All british property in the State was declared to belong to the Com. Wealth, the real Estate by Escheat, the Personal by forfeiture

several tempy. laws prohibited suits by Br. Crs. And

in 1782—a perpetual law declaring that no suit should be brought for the Recovery of a br. debt.

Remedy being taken away the right must follow it.

The Preamble to the Sequestration Act of 1777, shews the Assembly Adopted the Law of Nations as to debts, intending to Sequester & not confiscate.  Britain had never confiscated debts
The Preamble indeed shews the Wish of the Assembly that the War should be conducted upon the humane Principles of modern practice they waited 2 yrs. in that vain hope, under the experienced departure on the part of Br——n from every article of that custom—except indeed as to confiscatn. of debts, which they forebore, not from tenderness, but that Subject being agt. them, they wished it to sleep.

It was all America had for retaliation, & in 1779, the Virga. Assembly embraced it, & proceeded to confiscation.

It was alledged that the slaves alone Plundered from Virga. contrary to the modern rules of War, were more than sufft. to have pd. all the debts due from the Citizens to Br. Subjects. And the defts. concluded that under the law of Nature & nations, the rights of War, the Municipal law, & the principles of Eq. the debts were extinguished, & could not be recovered, unless under the Treaty.

3. The treaty intitled the Plts. to a recovery, which being declared by the fœdral Constitution to be the Supreme law of the land, repealed the Virga. Acts, and removed every legal impediment to a bona fide recovery, & of course that which declared a payment into the Loan Office to be a discharge to the Drs.
3. 1. Treaties must be distinguished according to the subject matter of them—such Covenants as are within the Power of the Executive, have force by the Treaty itself: but such as tend to alter Laws established, not being within those powers, must receive their confirmation from the Legislature, wch. by the Constitution is the Congress. A contrary construction, would enable the President & Senate to repeal any Law of the United States, by throwing it into the form of a Treaty.

That the 4th. Article of the Treaty being to Act upon subsisting laws, which neither of the contracting Sovereignties had power to repeal, could only amount to Covenants by each that their respective Leges. should pass laws to effect the purpose.

So it was understood in America, & Congress recommended it to the State Assemblies, Who then held the whole legislative power, to pass laws for removing the Obstructions—which proving ineffectual, that Legislation is vested in Congress by the new Constitution, but ’til they exercise the Power by Passing a law, the Virga. Acts stand unrepealed, & obstruct the Plts. recovery.

2. Considering it as a law, the Court must view it as a law of Treaty, & interpret it according to the rules for construing Treaties established by the law of Nations; according to which, compacts of mutual engagements, are to be considered as reciprocal Conditions precedent, each party saying to the other, I will do this, provided you do that. Therefore the Party making an Infraction can’t complain of a breach.That in this view, the Virga. Assembly by their Act of 1787, removing all obstructns. to the recovery, when Britain had performed the Treaty on her part, spake the language of the law of Nations on the Subject.

That on Infractn. of a Treaty by one Nation, the other had his Election to go to War, make reprisals, or withhold his Stipulated Engagements in Satisfaction, or indeed they might wave it altogether—discussns. on that Subject are in Europe confined to the Cabinets of Sovereigns; but by the fœdral Constitution is, as a law, consigned to the Courts of Justice, who must say what the law is; & congress not having waved the Infraction, or made it’s Election as to the remedy, the Court must say that the Aggressing party, is not intitled to any benefit from the Treaty, as facts are stated in the proceedings, leaving it to Governmt. to Act on the Subject freely, and not by a premature Judgmt. for the debts, deprive them of One (perhaps the best) alternative of their choice.

That a partial performe. on the part of Br. was no performance, & did not change the law.

That considg. Britain as the stronger, and America as the weaker Nation, it was justifiable & wise in America, to withhold her performance, except as to friendship & Commerce, ’til Brn. had done all on her part

4th. That tho’ the fact of Infraction was admitted by the Demurrer, yet that was a matter of Sovereignty, to be adjusted between the two Governing Powers, and not to be discussed in a Court of Justice
4th. Here again was reiterated the Observation that the members of a nation form but one Moral person. That the Plt. having no right to recover but under the Contract of his Sovereign, must abide the fate of that whole Compact, & be bound by his Kings infractn., which deprives him of the benefit, & resort there for his Satisfaction; whilst the American Citizen, sued under the Contract of his Sovereign Power, has a right to stand in the Place of that Power, & avail himself of that breach of the Treaty, wch. has annulled the Engagement by which alone he was compelled to pay. And so the Court must consider it, until Congress or the Governmt. shall Act upon it, & remove the Objectn.

Or suppose it a contract between Plt. & deft. of things to be mutually done, the Plt. can’t recover if he has made a breach on his part.


Title: To James Madison from Edmund Pendleton, 8 February 1792
From: Pendleton, Edmund
To: Madison, James

Dear Sir
Virginia Feby. 8th. 1792.
Your obliging favr. of the 21st. past has just made it’s way hither through the Frost, and with it’s inclosures, was a high treat in my present houseburnt state.
I think anticipating the taking another Census, & shortning the Operation of any fractional inconvenience arising from the former, a happy expedient, & more constitutional than any Arrangement of those fractions, which it seems to me Congress had no power to meddle with, further than to change the ratio from 1 to 30. M, to 1 for a larger number, which would have attained more nearly, the great principle of proportionate representation, if such could have been hit on. Our Assembly have made short work of it, & directed us next week to send you Addl. members, even one more than at 1 for 30. M, if it was the time for any election, considering Kentucky as already Seperated: I understand some Elections will be made, tho’ I hope the Candidates mean only to trie each other’s foot, in the Jocky phraze, & will not go to Philadelphia to meet the mortification of being sent back. I am sorry our Assembly took this unthinking step, however—it was in a hurry, & I suppose they had been informed, that the Election of supplimentary members to the present Congress had been Agitated in Congress, but not that it was rejected; however a little reflection might have evinced the Step to be unwarrantable.
I thank you for your purpose of sending me the Minister’s Report on Manufactures, which I had been taught by a paper signed “Caius,” to suspect was another link in the Chain of funded debt, Assumption, Bank &c to raise & Establish a monied Interest for the Support of Government, regardless of the great Aggricultural Interest of the States: The Specimens furnished in the papers are not calculated to remove the impression—every sentiment appears to me as Heterodoxical in Commercial Policy, as the ground itself is unwarrantable by the Constitution. His bounties, premiums & protecting laws, however Speciously displayed, are neither more or less than taking money from the Southern States (who cannot, nor is it their interest at present to enter into extensive Manufactures) & give it to the Eastern, for the purpose of enriching the latter by a monopoly of our trade. This is attempted to be grounded on the Maxim that the Interest of part of a society is to be sacrificed to the good of the whole; a perverse application, if we had associated for any such purpose, which is not the Case; we have not committed our Individu[a]l Interests to the fœdral Government in one consolidated Mass, well knowing they were too discordant for an Union—but the General Interest of the whole as concerned wth. foreign Nations—that is the General Welfare Congress may raise money to provide for, which words plainly refer to the Stipulated Powers of the Government. One half the states are in a situation to commence Manufactorers—the other half in a different State & find tillage their Interest. Their Wish is to barter their produce for implements of husbandry & necessaries; & to raise the price of the former & lessen that of the latter, Competitors at Market is their policy. The present System strikes directly at that Interest, by driving from Us all foreign Competition, & leaving us at the mercy of a few. Nor is this all the evil—they can’t Supply us—for I believe after all the puffs of Manufacture on paper, the whole from Pensylva. Eastward, would not furnish real necessaries to one of our large Counties—so that after we have paid them an enormous price for a partial Supply, we must give foreigners the like price for the residue. And this is a situation we are to purchase—the doctrine is heretical, I had almost said damnable. If Manufacture is their Interest, & it wants aid to cherish it, let their bounties, premiums &c come from their State Treasurys, to enable them to bring their Commodities to ours & other markets upon equal terms with their rivals: this is common policy, & is just, because those pay the purchase money who receive the benefit—we shall always give them the preference, and indeed are inclined voluntarily to give them some Advantage, but shall not submit to be driven into an Oppressive Monopoly. I am tired of the Subject & have fatigued you, so conclude wth. repeating that I am always & Affecty., Yours
Edmd Pendleton


Title: To James Madison from Edmund Pendleton, 14 March [1792]
From: Pendleton, Edmund
To: Madison, James

Dr. Sir
Virginia March 14. 1791. [1792]
I am further Obliged by yr. Esteemed favr. of the 21st. & the Papers, a feast to a recluse shut up from Intelligence for a long spell of frosty weather. Yr. sudden Animadversions on the Subject of bounties to Classes of men in a few States, prove you needed not any hints from me on the Occasion, nor had I a conception you did, when I hazarded my thoughts on that important affair, or do so, on any other, I mean rather to gain information, & retract my errors when you satisfy me they are such, or firmly retain sentiments which meet yr. Approbation. In this view I hazard some serious reflections which have occured on hearing of the late enormous Speculations in b & Ch. stock, not from any compassion for the loss of the Speculators, not an Atom of which I feel, but from the Agency which the Bank was to have had in it, which impressed on my mind a question—whether a Member of Congress ought to be a Bank-Director? wch. I recollect to have seen stated as a doubt in some paper awhile agoe, but then took little notice of it; many other Objections seem to arise from the Nature & constitution of the Bank.
A critical skanning of the words of the Constitution, speaking of your Speaker as an Officer, & the President pro tempore of the Senate without that Character, might literally admit of the former, & not the latter being called to the Presidency, but fair Interpretation would seem to exclude both
1. because yr. Speaker is mentd. as an Officer of the House, not of the States, wch. I suppose was such as was meant to be called to the Presidency.
2. It would seem to require a Stable Officer & not temporary ones, for it might happen at a time when no such Speaker or Prest. of the Senate was in being.

3. But the most important of all is, that it ought to have been thrown on some Executive Officer, & not on any Legislative or Judiciary one. The Secrety. of State was the Obvious proper Officer, since the functions of his Office were of the most General unconfined nature—the Present Officer, I am sure, furnished no reasons for Objectn., tho’ it might for delicacy in our Representation. I wish that of others may proffit by the example.
The Northern Cocks are true game they die hard on the Representation Bill.
Mr. Corbin stands elected as Mr. Page’s Colleague by 193 votes collected from the returns of 5 Sherifs out of 11 in the District. I am My Dr. Sir Yr. constant & Obliged friend
Edmd Pendleton
I have just reced., but not read, the Secretary’s Report.


Title: To James Madison from Edmund Pendleton, 28 April 1792
From: Pendleton, Edmund
To: Madison, James

My Dear Sir
Richmond April 28th. 1792.
I know not whether this will find you in Phila. but I steal a moment to acknowledge, & thank you for 2 Packets received since I came here. The Presidents getting the Representation Bill placed on constitutional ground by his Negative, and the Stand made by the Judges agt. an unconstitul. Law, seem [to] give Genl. pleasure; Some few present Members of Our Assembly, & those who have imbibed prejudices there formerly, excepted as to the Judges. An Impeachment is said to be talked of—they don’t seem to approve so much the Conduct of the Gentn. at New York on the like Occasion.
The fate of the Speculators at N. Y. almost Ceases to be the subject of conversation, tho’ it is said that a few here are involved in it. The principle topic of Conversation now is Mr. Temple’s proclamation. The trade don’t appear Satisfied with the explanation given by the Minister Plenipo, the rather as Mr. Hamilton, the Consul for this State, is said to have reced. no Instructn. to explain it, or a word on the Subject but directions to publish the Proclm. I fear it will have a Serious effect on the price of our Staple—perhaps the Alarm has partly that object in view, & another in getting Br. Ships prefer’d in freight; I wish it was settled. We have had no Case worth entertain[in]g you with—a deep but dry one is before Us—a devise of land to the son & heir without limitatio[n]—all the rest of his estate Real & Personal to his wife & daughr.—does the heir take a fee by the devise? If not, does he take the Rev[ersio]n by descent, or is it included in the Residuary devise to his wife & daughr. A 2d. Argt. is finished & our conference floor covered wth. Books Antient & modn.—(the heir’s Artillery now turned agt. him) & yet it is acknowledged to be a new case. I am wth. unchange. Esteem, Dr Sr. mo. Affy. Yrs.
Edmd Pendleton


Title: Notes on the Draft of Thomas Jefferson’s Letter to George Hammond, [ca. 16 May 1792]
From: Madison, James
To:

Editorial Note
George Hammond, the first British minister to the United States, arrived in Philadelphia in October 1791 and presented his credentials to President Washington on 11 November. Some two weeks later, Secretary of State Jefferson attempted to ascertain the minister’s powers to settle American differences with Great Britain with respect to the failure of the former mother country either to fulfill the terms of the seventh article of the 1783 Treaty of Paris or to make more generous arrangements for Anglo-American commerce. Since Hammond had no powers to make any commercial agreement, Jefferson decided to concentrate on the violations of the 1783 treaty, where Hammond had justified Great Britain’s refusal to honor the terms of article 7 on the grounds that the United States had not observed the engagements contained in articles 4, 5, and 6. On 15 December 1791, Jefferson suggested that he and Hammond specify “the particular acts which each considers to have been done by the other in contravention of the treaty,” and he “set the example” by complaining of Great Britain’s refusal to withdraw its garrisons from posts in the American Northwest and its abduction of a considerable number of slaves at the end of the war for independence (Boyd, Papers of JeffersonJulian P. Boyd et al., eds., The Papers of
          Thomas Jefferson (22 vols. to date; Princeton, N.J., 1950—)., 22:409–10).
Hammond eventually responded on 5 March 1792 with a lengthy account of the failure of both Congress and the states to assist Loyalists and British creditors in their efforts to recover confiscated property and long-outstanding debts. The minister presented his indictment in the broadest terms and relegated the evidence to support his case to five appendices listing various acts and legal proceedings, which, he declared, exemplified the grievances he was protesting. Jefferson’s rebuttal was far more thoroughly researched and more focused in its argument, and by early May he had prepared a sixty-six-page draft (DLC: Jefferson Papers), which he showed first to JM and then, after receiving JM’s three pages of comments by 16 May, to Treasury Secretary Hamilton and Attorney General Randolph. JM, of course, hardly needed to be convinced of the merits of Jefferson’s arguments, and his comments reflected, as much as anything, the different temperaments of the two Virginians, with JM urging his friend to be either more restrained or more precise in the wording of some of his statements. But on the points that JM did raise, his comments clearly influenced Jefferson’s subsequent revisions of his note, which, after it had obtained the president’s approval in cabinet, was sent to the British minister on 29 May 1792 (see ASPAmerican State Papers: Documents,
          Legislative and Executive, of the Congress of the United States … (38 vols.;
        Washington, 1832–61)., Foreign Relations, 1:188–200; Jefferson to Hammond, 29 May 1792, Boyd, Papers of JeffersonJulian P. Boyd et al., eds., The Papers of
          Thomas Jefferson (22 vols. to date; Princeton, N.J., 1950—)., 23:551–602 and nn.; Bemis, Jay’s Treaty, chap. 5; Malone, Jefferson and His TimeDumas Malone, Jefferson and His Time
        (6 vols.; Boston, 1948–81)., 2:412–17; and Syrett and Cooke, Papers of HamiltonHarold C. Syrett and Jacob E. Cooke, eds., The Papers of Alexander Hamilton (27 vols.; New York, 1961–87)., 11:408–14).

[ca. 16 May 1792]

－
p.  1.
(a)—
was the evidence of none produced?

＋
p   1.
(b)—
what meant by “its different administrations”－& whatever its meaning is it a circumstance sufficiently marked to enforce the appeal?

－
p.  2.
(a)—
Is not “foreign” likely to be criticized as not applicable in its ordinary & strongest sense—distant Country—unknown judges or some equivalent epithets might be free from the objection if a real one.

＋
p.  3.
(a)
Might not a more apt word be substituted for perpetual chains which is not literally just—nor congruous with the idea of becoming murderers &c.

＋
p.  5.
(a)
wd. it be superfluous to guard the universality of these terms so as to correspond with “the apud hostes inventas” & “apud nos reperta” of Bynk. In their unqualified sense they extend to hostile property found with neutral nations—Quer. also whether a State of war, as now understood, permits the seizure of property in the broad sense of Bynkershook—if there be ground for this doubt, some such words as “in its rigor” might be thrown in.

＋
p.  5.
(b)—
will not this be called drawing up the curtain just dropped on the tragedy of the War? The expression might, if requisite, receive a less harsh form, without weakening the inference.

＋
p   7.
(a).
May not the word “idle” give offence, as Hammond has rejected or disregarded the difference stated.

＋
p.  9.
(a).
Mr. T. Pitt & Mr. Wilberforce seem to have very obscure ideas of the powers of Congs. & the obligation taken on them by the word recommend. Lord Hawke seems not to understand the difference between recommending, & the constitutional power of making requisitions.

May not these proofs be repelled, if Mr. H. chooses, by alledging want of accuracy & authenticity in the publication—& wd. it be amiss to admit both sub modo—without relinquishing the sufficiency of the general scope & complexion of the debate which could not well be mistaken.

☓

＋
p. 17.
(a).
Is this consistent with the journals & reports of the Commissrs, which shew that they opposed & that the British Negociators urged the admission of the people in question, to citizenship in this Country.

－
p. 15.
(b)
Why invert the geographical order of the States—if in compliance with Mr. H. a little explanatory amendment is suggested in loco.

＋ ☓ p. 15
(a)
Is it so clear, as to need no proof or remark, that confiscation is compleat by the Law—without the subsequent process for carrying the law into effect? Perhaps Mr. H.s Memorial may admit what is assumed. In that case the quere is superseded.

＋
p. 28
(a).
Are not these acts of Jany. that is prior to Apl. 11. 1783. thrown out of the question by the distinction with which the review sets out

＋
p 28.
(b)
“will excuse my answering”—Is this phrase correct—sd. it not be excuse my not answering or excuse me from answering?

－
p. 30
(a).
See ☓ p. 15 (a)

－
p. 31—
(a).
See p. 17 (a).

＋
p. 31.
(b).
quer. whether so much here & p. 32. as animadverts on the Refugees &c. be necessary—and if not whether it be expedient.

＋
p. 36
(a).
May not this be viewed as unnecessarily pointed?

＋
p. 36
(b).
From accts. given of the Furr trade it is doubtful whether so great a proportion of it ever passed thro’ the present U. S. as to place it among the [“]most valuable branches of their commerce.”

＋
p. 37.
(a)
Is it clear that a nation can rightly make general war in the first instance, for a breach of any treaty—or even a Treaty of peace?

＋
p. 41—
(a).
Quer. whether so dishonorable an object can be prudently inferred from regulations which ostensibly were not at all, & perhaps really very little considered in that relation.

＋
p. 42.
(a).
as the laws of all the States as well as of G. B. subject the body to restraint for debt, wd. it not be as well to omit this general denunciation of the practice as agst. reason?

＋
p 42
(b).
Is not this pre-eminence to the civil law liable to misconstruction?

＋
p. 44.
(a)
The unwillingness to infringe the Treaty, seems here to be stated as the cheif, if not sole motive agst. paper money

＋
p. 44
(b).
Is not the value of paper emissions too strongly expressed. The depreciation was considerable in all & great in some cases. It is also a tender in N. Jersey yet in certain cases (Quer.) unless superseded by the Constitution.

＋
p. 58.
(a)—
see p. 31. (b)—as it is admitted that Modifications in the recovery of debts existed in some States—is not the positition [sic] too broad that our Courts have been as open as theirs?

p. 62
(a)
Quere. whether this reasoning is applicable to the case of positive & express stipulations between two Countries. In ordinary cases the individual foreigner claims under the law & the tribunals for expounding it, & his sovereign can not interfere unless for palpable & culpable wrong. In the former case, an innocent error of the Judge which might defeat the stipulation, might be ground of complaint & satisfaction.

－
p. 63
(a)
To this it may be said—that the law being known, justice could not claim interest; & of course no National complaint wd. be warranted.

－
p. 65 /
(a)
Does not this suppose that if America had been conquered, not only forfeitures wd. have taken place—but without payt. of the dbts of the traitors—a thing not presumable?

＋
p. 66.
(a)
will not the forced exile of some form an exception here? It wd. seem also that the departure of an alien Creditor in all cases results of necessity on the event of a war, yet it is not the Modern practice to abate interest during war.


Title: From James Madison to Tench Coxe, [ca. 13 January 1794]
From: Madison, James
To: Coxe, Tench

[ca. 13 January 1794]
Mr. Madison presents his thanks to Mr. Coxe for the paper sent him a few days ago on the subject of sugar, tob. whale oil and rice. Mr. M will be further obliged to him for any aids he may possess toward an elucidation of the amt. of re-exports from G. B. If Mr. Coxe can add brief & early answer to the following queries, Mr. M. will also be sensible of the favor. 1. Of the grain & flour of late years exported to G. B. what proportion was probably consumed there? 2. Is rice or tobo. sent from Portugal or Spain at all to the French or Dutch markets, where no discrimination exists in favor of the American? 3. How far is the British discrimn. in favor of our woods really operative? 4. In estimating reexports it seems requisite to include the value of raw materials which make a part of any manufactured article. Indigo and not IR [indigo root?] ashes for example—How much of these articles are so reexported? The best guide that occurs is the ratio of exported manufs. to the totality produced. Anderson states the latter abt. 50 mils. What is the amount of the former?


Title: From James Madison to James Monroe, 14 December 1794 (Abstract)
From: Madison, James
To: Monroe, James

14 December 1794, Philadelphia. Introduces Robert S. Van Rensselaer, who “proposes to make a tour through some parts of Europe, and wishes for an opportunity of being made known to you.”


Title: To James Madison from Edmund Pendleton, 30 January 1795
From: Pendleton, Edmund
To: Madison, James

Dr. Sir
Virga. Jany. 30. 1795.
I have to thank you for two favrs. covering some Papers and the Anti-Lee Pamphlet. I recollect to have seen in the course of the Summer a Puff in some paper recommending it to the Voters to chuse representatives of the principles of that Gentn., who had distinguished himself from his Colleagues for true patriotism, but little immagined he would have ventured on a Serious Address to his Constituents, on the ground of having Superior Sagacity or Patriotism to 18 of his Countrey-men.
Taylor’s health seems gradually recovering, tho’ yet far from perfect—his little family have yet frequent returns of Agues, his farms & the tuition of his boys are his chief emploiment. I don’t know that he has lately medled with politics, except in considering the unconstitutionality of the Carriage tax by way of Argument for our defence on that Occasion—and this will it seems be lost time, as we hear nothing of a suit, and begin to apprehend there will be none, supposing that so few in the state, are in the Opposition, it is better to loose their taxes than risque a decision of the question—whether it be so or not, I can’t determine & can only say an exemption on that ground, don’t answer my purpose, which was not to be eased of my due share of contribution to the public revenue, but to Arrest a Precedent, apparently in principle against the Constitution, & in it’s effects tending to introduce Partiality & Oppression in future Selections of Articles for direct taxation. I consider the Opinion of the Chief Justice on the Subject as somewhat Oracular. He does indeed admit that there may be a direct Specific tax, which is a fair decision of the question; but what does he mean by saying “Congress will usually embrace such Objects as are Uniform through the States” if not to admit the power in Congress to impose such direct Specific taxes, without adhering to the apportionment between the States required by the constitution, and in it’s exercise not even to regard (tho’ he supposes they usually would) the uniformity wch. he seems to substitute for Apportionment, the governing principle of all direct taxes—and considering the example by wch. he illustrates, importing that there would be neither difficulty or partiality in a tax on Coaches, (altho’ there may be States in wch: one is not to be found) I confess I do not count on having his Opinion in Our favr. in case it shall come to a decision in his presence. The ground I take is that the power of Congress in all cases of direct taxes, general or Specific is limited to a certain mode, that is to apportion the sum required to be raised by them between the States, & tax each state for it’s proportion—the only protection of the Minor States in Congress from Oppression, by a partial selection of Articles by a Majority.
Has the complaint of the French Officers at New York been attended wth. any Serious effects? Adieu! Yr. Affe. friend
Edmd Pendleton


Title: To James Madison from Hubbard Taylor (Enclosure), [9 August 1795]
From: Taylor, Hubbard
To: Madison, James

[9 August 1795]

[Enclosure]
A Madisons Lands

1000 Acres Panther’s Creek
1000 Do. Do.  both Patented
 500 Do. Elk horn. Platt retd to W. Green

Location on sandy made by H Green: W. Green can give information respectg it & they are to have one half the land

one fourth of 1000 Acres (Deed to H. Taylors Devisees) at the mout[h] of Locust Creek on the Ohio—part of Mercer Survey.

1000 Acres Military Lands


Title: Madison and the Hiatus at the State Department, 4 March–2 May 1801 (Editorial Note)
From:
To:

Editorial Note
In mid-December 1800 Jefferson wrote JM and asked him to come to Washington before 5 March to “assuage the minority [in Congress], & inspire in the majority confidence & joy unbounded, which they would spread far & wide on their journey home.” In his reply JM expressed his concern to Jefferson about the still-unsettled presidential election and his reluctance to appear in Washington “before the commencement of the authority from which the call would proceed.” JM also alluded to their earlier discussions concerning the post he should hold in the event Jefferson won the election. That the two held generally the same viewpoint on foreign policy had long been obvious to such political opponents as Alexander Hamilton. As early as 1797 Hamilton had proposed that one of the pair be appointed to negotiate with the French (Jefferson to JM, 19 Dec. 1800 [DLC: Rives Collection, Madison Papers]; JM to Jefferson, 10 Jan. 1801 [DLC]; Syrett and Cooke, Papers of HamiltonHarold C. Syrett and Jacob E. Cooke, eds., The Papers of Alexander Hamilton (26 vols.; New York, 1961–79)., 25:232).
The time when JM could assume his post as secretary of state hinged on the circumstances in his life. In December JM had suffered an attack of rheumatism at Richmond that grew steadily worse. Not only was JM suffering ill health, the declining health of his father made daily claims on his attention. JM’s worst fears proved justified when his father died on 27 February. In addition to the personal crisis JM now faced, his father left an extensive estate to be settled according to a complicated will, and the burden fell on JM as executor.
Jefferson’s election by the House of Representatives on 17 February also presented JM with another concern, the political turmoil the country might encounter when Republicans took over the presidency. Earlier he had reminded Jefferson of the problems that might result if Adams appointees resigned before the Senate was in session. The difficulties posed by a vacancy in the critical secretary’s post for even one day were solved when the outgoing secretary, John Marshall, was authorized to execute those duties on a pro tempore basis on 4 March. Jefferson, suspicious of any Federalist, was determined not to continue this situation one moment longer than necessary. The immediate problem he faced was to find a trusted Republican to handle the State Department during the transitional period. On 5 March Jefferson appointed Levi Lincoln to handle those duties on a temporary basis (JM to Jefferson, 10 Jan. 1801, Jefferson to Marshall, 2 and 4 Mar. 1801, Marshall to Jefferson, 2 Mar. 1801, Jefferson to Lincoln, 5 Mar. 1801 [DLC: Jefferson Papers]).
Lincoln’s responsibilities as acting secretary of state were extensive. He received and acted on letters of recommendation addressed to JM, corresponded with foreign legates, and handled many of the routine matters of office in consultation with the able chief clerk of the department, Jacob Wagner. Through the months of March and April, Lincoln sought and received Jefferson’s direction on the handling of applications for office, consular accounts, and other matters. It was a burden that Lincoln admitted was becoming heavy when he wrote to Jefferson on 16 April: “It is much to be regreted, that Mr. Madison[’s] indisposition continues” (Pichon to Jefferson, 2 Apr. 1801, Lincoln to Jefferson, 21 Mar., 9 and 16 Apr. 1801, Jefferson to Lincoln, 10, 17, and 25 Apr. 1801 [DLC: Jefferson Papers]).
Jefferson’s correspondence with JM, along with his April residence at Monticello, kept the lines of communication open; and Jefferson’s personal experiences as secretary of state led him to make decisions on the department and map the broad outlines of the foreign policy he wished to pursue. On some matters he tried to defer action until JM could arrive in Washington. On others he assumed the duties himself, such as meeting with foreign diplomats and selecting consular appointees (Jefferson to Carlos Martínez de Yrujo, 24 Mar. 1801, Jefferson to Tobias Lear, 26 Mar. 1801, Jefferson to Josef Yznardy, 26 Mar. 1801 [DLC: Jefferson Papers]).
For the first two months of his commission, JM did not formally exercise the duties of office or participate in all the decisions. He did not in fact take the oath of office until 2 May, the day after his arrival in Washington. Yet Jefferson’s intentions were clear from his correspondence with JM, and that early period appears as one of transition to JM’s full command of the department (William Cranch to W. S. Shaw, 15 May 1801 [MHi: Bass Papers]).


Title: To James Madison from Thomas Appleton, 5 March 1801 (Abstract)
From: Appleton, Thomas
To: Madison, James

5 March 1801, Leghorn. Encloses copy of Cathcart’s 3 Jan. circular letter, received on 3 Feb. Has forwarded copies to American consuls in Sicily, Naples, Elba, Genoa, Barcelona, Málaga, and Alicante; believes as a result all Americans now in Mediterranean will avoid capture. Discusses his effort to enlist aid of Belleville, French chargé d’affaires in Tuscany, in persuading pasha to wait longer for arrival of regalia from U.S. Encloses copy of Belleville’s letter to French chargé d’affaires in Tripoli; “the letter to the french Agent being open Mr. Cs. judgement must direct him in the Use he may make of it.” Explains that “in adopting this Step I considered, that on a former occasion france was to have mediated in the peace we contemplated with Algiers; and that our late treaty with that republick might justify in your opinion, a proceedure, which under other circumstances, you might not approve of.” Discusses European military and naval developments. Encloses copy of Napoleon’s 16 Jan. armistice in Italy, concluded under “Disgraceful conditions,” and copy of official intelligence of peace agreement there [not found]. Postscripts announce apparent end of Leghorn blockade, convey latest military and diplomatic news, and correct earlier information on the source he drew upon in relief of American seamen in 1800.

   RC and enclosures (DNA: RG 59, CD, Leghorn, vol. 1). RC 8 pp.; docketed by Wagner as received 25 May. Enclosures 7 pp.

   A full transcription of this document has been added to the digital edition.