From James Madison
Orange [Va.] Decr 5. 1789.
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 first subscriber of it, as indeed is pretty evident from the stile and strain of it. The other 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.2 “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.3 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 Com[mitte]e 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.4 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.5 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.”6
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
ALS, DLC:GW; copy, in Madison’s writing, DLC: Madison Papers.
2. The letter to Madison was from Col. Hardin Burnley of Hanover County and Richmond. See Rutland, Madison Papers, description begins William T. Hutchinson et al., eds. The Papers of James Madison, Congressional Series. 17 vols. Chicago and Charlottesville, Va., 1962–91. description ends 12:455–57.
5. The seventeenth amendment suggested in the Virginia Ratifying Convention 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, Debates and Other Proceedings of the Convention of Virginia, description begins David Robertson. Debates and Other Proceedings of the Convention of Virginia, Convened at Richmond, on Monday the Second Day of June, 1788, for the Purpose of Deliberating on the Constitution Recommended by the Grand Federal Convention. 2d ed. Richmond, 1805. description ends 475).
6. Richard Cary (c.1739–1789), of Warwick County, served on the General Court from December 1788 until his recent death. James Mercer was appointed to the reorganized Court of Appeals in November 1789 (Journals of the Council of State of Virginia, description begins H. R. McIlwaine et al., eds. Journals of the Council of the State of Virginia. 5 vols. Richmond, 1931–82. description ends 5:136) and served until his death in 1793.