James Madison Papers

To James Madison from Hardin Burnley, 28 November 1789

From Hardin Burnley

Richmond Novr. the 28th. 1789

Dr. Sir

A few days ago I wrote a letter to Majr. Madison giving him some information on the general business of the present Session, which I suppose he has probably communicated to you. I now take the liberty of obtruding on you a short communication on the same subject. 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 s[t]ill to confine the collection to specie & specie warrants.

Two or three petitions have been presented which asked a general suspension of executions, for twelve months, they were read, but were denied a referrence. 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 untill the February 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 General Government is still in suspence. In a committee of the whole house the fi[r]st ten were acceeded to with but little opposition for on a question taken, on each seperately, there was scarcely a dissenting voice. On the two last a debate of some lenght [sic] 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 against the word retained in the eleventh proposed amendment,1 and his a[r]gument 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, & more consistant with the spirit of the 1st. & 17th. amendments proposed by Virginia,2 that this reservation against constructive power, should operate rather as a provision against extending the powers of Congress by their own authority, than as a protection to rights reducable 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 are 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 hazzard again, as some who have been decided friends to the ten first think it woud be unwise to adopt them without the 11th. & 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 Fœderal Cons[t]itution 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 Congress 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 General Court to fill the vacancies occasioned by the death of Mr. Cary3 & the removal of Mr. Mercer to the court of appeals. Be pleased to present me respectfully to Col: Madison & his family. With the highest esteem I am Dr Sir yr. Most Obt. Servt.

Hardin Burnley

RC (DLC). Docketed by JM.

1The present ninth amendment: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

2The first amendment proposed by the 1788 Virginia ratifying convention reads: “That each state in the union shall respectively retain every power, jurisdiction and right, which is not by this constitution delegated to the congress of the United States, or to the departments of the federal government.” The seventeenth amendment reads: “That those clauses which declare that congress shall not exercise certain powers, be not interpreted in any manner whatsoever, to extend the powers of congress; but that they be construed either as making exceptions to the specified powers where this shall be the case, or otherwise, as inserted merely for greater caution” (Robertson, Virginia Debates description begins David Robertson, Debates and Other Proceedings of the Convention of Virginia (2d ed.; Richmond, 1805). description ends , pp. 473, 475).

3Richard Cary, the longtime judge of the Virginia Admiralty Court. He had recently been reassigned to the General Court.

Index Entries