James Madison Papers
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From James Madison to George Washington, 5 December 1789

To George Washington

Orange Decr. 5. 1789.

Dear Sir

Since my last I have been furnished with the inclosed copy of the letter from the Senators of this State to its Legislature.1 It is well calculated to keep alive the disaffection to the Government, and is accordingly applied to that use by the violent partizans. I understand the letter was written by the first2 subscriber of it, as indeed is pretty evident from the stile and strain of it. The other3 it is said, subscribed it with reluctance. I am less surprized that this should have been the case, than that he should have subscribed at all.

My last information from Richmond is contained in the following extract from a letter of the 28th. Novr. from an intelligent member of the H. of Delegates.4 “The revenue bill which proposes a reduction of the public taxes one fourth below the last year’s amount is with the Senate. Whilst this business was before the H. of Delegates a proposition was made to receive Tobacco & Hemp as commutables, which was negatived; the House determining still to confine the collection to specie and specie warrants. Two or three petitions have been presented which asked a general suspension of Executions for twelve months; they were read, but denied a reference. The Assembly have passed an Act for altering the time of choosing Representatives to Congress, which is now fixed to be on the third Monday in September, suspending the powers of the Representative until the Feby. after his election. This change was made to suit the time of the annual meeting of Congress. The fate of the Amendments proposed by Congress to the Genl Government is still in suspense. In a Come. of the whole House the first ten were acceded to with little opposition; for on a question taken on each separately, there was scarcely a dissenting voice. On the two last a debate of some length took place, which ended in rejection. Mr. E. Randolph who advocated all the others stood in this contest in the front of opposition. His principal objection was pointed agst. the word ‘retained’ in the eleventh proposed amendment, and his argument if I understood it was applied in this manner—that as the rights declared in the first ten of the proposed amendments were not all that a free people would require the exercise of, and that as there was no criterion by which it could be determined whether any other particular right was retained or not, it would be more safe and more consistent with the spirit of the 1st & 17th. amendts. proposed by Virginia that this reservation agst. constructive power, should operate rather as a provision agst. extending the powers of Congs. by their own authority, than a protection to rights reducible to no definitive certainty. But others, among whom I am one, see not the force of the distinction; for by preventing an extension of power in that body from which danger is apprehended, safety will be ensured, if its powers be not too extensive already, & so by protecting the rights of the people & of the States, an improper extension of power will be prevented & safety made equally certain. If the House should agree to the Resolution for rejecting the two last I am of opinion that it will bring the whole into hazard again, as some who have been decided friends to the ten first think it would be unwise to adopt them without the 11 & 12th. Whatever may be the fate of the amendments submitted by Congress, it is probable that an application for further amendments will be made by this Assembly, for the opposition to the federal Constitution is in my opinion reduced to a single point, the power of direct taxation—those who wish the change are desirous of repeating the application, whilst those who wish it not are indifferent on the subject, supposing that Congs. will not propose a change which would take from them a power so necessary for the accomplishment of those objects which are confided to their care. Messrs. Joseph Jones & Spencer Roane are appointed Judges of the Genl. Court to fill the vacancies occasioned by the death of Mr. Cary & the removal of Mr. Mercer to the Court of appeals.”

The difficulty started agst. the amendments is really unlucky, and the more to be regretted as it springs from a friend to the Constitution. It is a still greater cause of regret, if the distinction be, as it appears to me, altogether fanciful. If a line can be drawn between the powers granted and the rights retained, it would seem to be the same thing, whether the latter be secured, by declaring that they shall not be abridged, or that the former shall not be extended. If no line can be drawn, a declaration in either form would amount to nothing. If the distinction were just it does not seem to be of sufficient importance to justify the risk of losing the amendts. of furnishing a handle to the disaffected, and of arming N. C. with a pretext, if she be disposed, to prolong her exile from the Union. With every sentiment of respect & attachment I am Dr. Sir Yr. Obedt. & hble servt

Js. Madison Jr.

RC and enclosure (DLC: Washington Papers); FC and copy of enclosure (DLC). RC docketed by Washington. FC made by JM at a later time.

1This was the letter of Richard Henry Lee and William Grayson to the Virginia legislature of 28 Sept. 1789, enclosing the constitutional amendments recommended by Congress. In their letter the Virginia senators regretted their failure to obtain “those radical amendments” proposed by the Virginia ratifying convention. “It is impossible for us not to see the necessary tendency to consolidated empire in the natural operation of the Constitution,” they added, “if no further amended than as now proposed.” In addition to the Ms copy (in an unknown hand) enclosed by JM, there is a printed copy of the letter under date of 28 Sept. 1789 (DLC: Washington Papers). The letter is reprinted in Documentary History of the Constitution, V, 217–18.

2In the FC, JM placed an asterisk here and wrote in the margin, “*R. H. Lee.”

3In the FC, JM placed an asterisk here and wrote in the margin, “*Col. Grayson.”

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