<br /> Lee Letter: b368

Washington and Lee University

Sender: Richard Henry Lee
Recipient: Edmund Randolph

Dear Sir,

I was duly honoured with your favour of September 17th, from Philadelphia, which should have been acknowledged long before now, if the nature of the business it related to had not required time. The establishment of the new plan of government, in its present form, is a question that involves such immense consequences, to the present times and to posterity, that it calls for the deepest attention of the best and wisest friends of their country and mankind. If it be found right, after mature deliberation, adopt it; if wrong, amend it at all events: for to say that a bad government must be established for fear of anarchy, is really saying that we should kill ourselves for fear of dying! Experience, and the actual state of things, show that there is no difficulty in procuring a general convention, the late one having been collected without any obstruction; nor does external war, or internal discord, prevent the most cool, collected, full, and fair discussion of this all-important subject. If, with infinite ease, a convention was obtained to prepare a system, why may not another convention, with equal ease, be obtained to make proper and necessary amendments? Good government is not the work of short time, or of sudden thought. From Moses to Montesquieu the greatest geniuses have been employed on this difficult subject, and yet experience has shown capital defects in the systems produced for the government of mankind. But since it is neither prudent nor easy to make frequent changes in government, and as bad governments have been generally found the most fixed, so it becomes of the last importance to frame the first establishment upon grounds the most unexceptionable, and such as the best theories with experience justify; not trusting, as our new constitution does, and as many approve of doing, to time and future events to correct errors that both reason and experience, in similar cases, now prove to exist in the new system. It has hitherto been supposed a fundamental truth that, in governments rightly balanced, the different branches of legislature should be unconnected, and that the legislative and executive powers should be separate. In the new constitution, the president and senate have all the executive and two-thirds of the legislative; and in some weighty instances (as making all kinds of treaties which are to be the laws of the land) they have the whole legislative and executive powers. They jointly appoint all officers, civil and military, and they (the senate) try all impeachments, either of their own members or of the officers appointed by themselves. Is there not a most formidable combination of power thus created in a few? and can the most critical eye, if a candid one, discover responsibility in this potent corps? or will any sensible man say that great power, without responsibility, can be given to rulers with safety to liberty? It is most clear that the parade of impeachment is nothing to them, or any of them, as little restraint is to be found, I presume, from the fear of offending constituents.

The president is of four years duration, and Virginia (for example) has one vote, out of thirteen, in the choice of him. The senate is a body of six years duration, and as, in the choice of president, the largest state has but a thirteenth part, so is it in the choice of senators; and this thirteenth vote, not of the people, but of electors, two removes from the people. This latter statement is adduced to show that responsibility is as little to be apprehended from amenability to constituents, as from the terror of impeachment. You are, therefore, sir, well warranted in saying that either a monarchy or aristocracy will be generated: perhaps the most grievous system of government may arise! It cannot be denied, with truth, that this new constitution is, in its first principles, most highly and dangerously oligarchic; and it is a point agreed that a government of the few is, of all governments, the worst. The only check to be found in favour of the democratic principle, in this system, is the House of Representatives, which, I believe, may justly be called a mere shred or rag of representation, it being obvious, to the least examination, that smallness of number, and great comparative disparity of power, renders that house of little effect to promote good, or restrain bad government. But what is the power given to this ill-constructed body? To judge of what may be for the general welfare, and such judgment, when made that of Congress, is to be the supreme law of the land. This seems to be a power co-extensive with every possible object of human legislation. Yet there is no restraint, in form of a bill of rights, to secure (what Dr. Blackstone calls) that residuum of human rights which is not meant to be given up to society, and which, indeed, is not necessary to be given for any good social purpose. The rights of conscience, the freedom of the press, and the trial by jury, are at mercy. It is, indeed, stated that, in criminal cases, the trial shall be by jury; but how? in the state? What then becomes of the jury of the vicinage, or, at least, from the county in the first instance; for the states being from fifty to seven hundred miles in extent, this mode of trial, even in criminal cases, may be greatly impaired; and in civil cases the inference is strong, that it may be altogether omitted, as the constitution positively assumes it in criminal, and is silent about it in civil causes. Nay, it is more strongly discountenanced in civil cases, by giving the supreme court, in case of appeal, jurisdiction, both as to law and fact. Judge Blackstone, in his learned commentaries, (article Jury Trial,) says, it is the most transcendant privilege which any subject can enjoy, or wish for, that he cannot be affected either in his property, his liberty, or his person, but by the unanimous consent of twelve of his neighbours and equals. A constitution, that I may venture to affirm, has, under providence, secured the just liberties of this nation for a long succession of ages; the impartial administration of justice, which secures both our persons and our properties, is the great end of civil society. But if that be entirely trusted to the magistracy, a select body of men, and those generally selected by the prince, or such as enjoy the highest offices of the state, their decisions, in spite of their own natural integrity, will have frequently an involuntary bias towards those of their own rank and dignity. It is not to be expected, from human nature, that the few should be always attentive to the good of the many. The learned judge further says, that “every new tribunal, erected for the decision of facts, is a step towards establishing aristocracy, the most oppressive of all governments.” The answer to these objections is, that the new legislature may provide remedies! But as they may, so they may not, and if they did, a succeeding assembly may repeal the provisions. The evil is found resting upon constitutional bottom, and the remedy upon the mutable ground of legislation, revocable at every annual meeting. It is the more unfortunate that this great security of human rights, the trial by jury, should be weakened in this system, as power is unnecessarily given, in the second section of the third article, to call people from their own country, in all cases of controversy about property between citizens of different states and foreigners, to be tried in a distant court where the Congress may sit; for although inferior congressional courts may, for the above purpose, be instituted in the different states, yet this is a matter altogether in the pleasure of the new legislature; so that if they please not to institute them, or if they do not regulate the right of appeal, the people will be exposed to endless oppression, and the necessity of submitting to pay unjust demands rather than follow suitors, through great expense, to far distant tribunals, and to be determined upon there, as it may be, without a jury. In this congressional legislature a bare majority can enact commercial laws, so that the representatives of the seven northern states, as they will have a majority, can, by law, create the most oppressive monopolies upon the five southern states, whose circumstances and productions are essentially different from theirs, although not a single man of their voters are the representatives of, or amenable to, the people of the southern states. Can such a set of men be, with the least colour of truth, called representatives of those they make laws for? It is supposed that the policy of the northern states will prevent such abuses! but how feeble, sir, is policy when opposed to interest among trading people, and what is the restraint arising from policy? It is said that we may be forced, by abuse, to become ship-builders; but how long will it be before a people of agriculture can produce ships sufficient to export such bulky and such extensive commodities as ours; and if we had the ships, from whence are the seamen to come? four thousand of whom, at least, we shall want in Virginia. In questions so liable to abuses, why was not the necessary vote put to two-thirds of the members of the legislature? Upon the whole, sir, my opinion is, that, as this constitution abounds with useful regulations, at the same time that it is liable to strong and fundamental objections, the plan for us to pursue will be to propose the necessary amendments, and express our willingness to adopt it with the amendments; and to suggest the calling a new convention for the purpose of considering them. To this I see no well-founded objection, but great safety and much good to be the probable result. I am perfectly satisfied that you make such use of this letter as you shall think to be for the public good. And now, after begging your pardon for so great a trespass on your patience, and presenting my best respects to your lady, I will conclude with assuring you that I am, with the sincerest esteem and regard, dear sir,

Your most affectionate and obedient servant,

Richard Henry Lee



Printed in R. H. Lee, Memoir of Richard Henry Lee, 2:78. Printed also in James Curtis Ballagh, The Letters of Richard Henry Lee, Volume 2, 1779 – 1794, pp. 450 – 55.