<br /> Lee Letter: b374

Washington and Lee University

Sender: Richard Henry Lee
Recipient: Edmund Pendleton

Dear Sir –

The manner in which we have together struggled for the just rights of human nature, with the friendly correspondence that we have maintained, entitles us, I hope, to the most unreserved confidence in each other, upon the subject of human rights, and the liberty of our country. It is probable that yourself no more than I do, propose to be hereafter politically engaged; neither therefore expecting to gain, or fearing to loose, the candid part of mankind will admit us to be impartial judges, at least of the arduous business that calls you to Richmond, on the second of next month. I do not recollect to have met with a sensible and candid man who has not admitted, that it would be both safer and better if amendments were made to the new constitution, proposed for the government of the United States; but the friends to the idea of amendments divide about the mode of obtaining them, some thinking that a second convention might do the business, whilst others fear that the attempt to remedy by another convention, would risk the whole. I have been informed that you wished amendments, but disliked the plan of another convention; the just weight that you have in the councils of our country, may put it in your power, sir, to save from arbitrary rule a great and free people; I have used the words arbitrary rule, because great numbers fear that this will be the case, as it may be so under the new proposed system, when they reflect on the unvarying progress of power in the hands of frail man; to accomplish the ends of society by being equal to contingencies infinite, demands the deposit of power great and extensive indeed, in the hands of rulers, so great as to render abuse probable, unless prevented by the most careful precautions; among which, the freedom and frequency of elections, the liberty of the press, and the trial by jury, with the independency of the judges, seem to be so capital and essential, that they ought to be secured by a bill of rights, to regulate the discretion of rulers in a legal way, restraining the progress of ambition and avarice within just bounds. Rulers must act by subordinate agents generally, and however the former may be secure from the pursuits of justice, the latter are forever kept in check by the trial by jury, where that exists in all its rights. This most excellent security against oppression, is a universal, powerful, and equal protection of all. But the benefit to be derived from this system, is most effectually to be obtained from a well informed and enlightened people; here arises the necessity for the freedom of the press, which is the happiest organ of communication ever yet devised, the quickest and surest means, of conveying intelligence to the human mind. I am grieved to be forced to think, after the most mature consideration of the constitution proposed, that it leaves the three essential securities above stated, under the mere pleasure of the new rulers; and why should it do so, sir, since the violation of these cannot be necessary to good, but will be always extremely convenient for bad government. It is a question deserving intense consideration, whether the state sovereignties ought not to be supported, perhaps in the way proposed by Massachusetts in their first, third, and fourth, amendments. Force and opinion seem to be the two ways alone, by which men can be governed, the latter appears the most proper, for a free people, but remove that, and obedience, I apprehend, can only be found to result from fear, the offspring of force; if this be so, can opinion exist, without competent knowledge of those who govern, and can that knowledge take place, in a country so extensive as the territory of the United States, which is stated by captain Hutchins at a million of square miles; whilst the empire of Germany, contains but 192,000, and that of France, but 163,000 square miles, the almost infinite variety of climates, soils, productions, manners, customs, and interests, renders this still more difficult, for the universal government of our legislature; but very practicable to confederated states, united for mutual safety and happiness, each contributing to the federal head, such a part of its sovereignty, as would render the government fully adequate to these purposes, and no more. The people would govern themselves more easily, the laws of each state, being adapted to its own genius and circumstances; the liberties of the United States would probably be more secure, than under the proposed plan, which, carefully attended to, will be found capable of annihilating the state sovereignties, by the power given to push the operations of their government, under the general legislative right, of commanding taxes without restraint, and seizing the productive revenues that the states may happily fall upon, for their support, and this right, powerfully supported by the congressional court of justice, and by the sacred tye of oath upon all the state judges, will probably prove so strong as to render resistance vain, and the state governments as feeble and contemptible as was the senatorial authority, under the Roman emperors; the name existed, but the thing was gone. I have observed, sir, that the sensible and candid friends of the proposed plan agree that amendments would be proper, but fear the consequences of another convention. I submit the following as an effectual compromise, between the majorities and formidable minorities, that generally prevail. It seems probable, that the determinations of four states, will be materially influenced by the determination of Virginia, which places a strong obligation on this country, to be unusually cautious and circumspect in her conventional conduct; the mode proposed is something like that pursued by the convention parliament of England in 1688. In the act of ratification, insert plainly and strongly, such amendments as can be agreed upon, and say, that the people of Virginia do insist upon, and mean to retain them as their undoubted rights and liberties, which they intended not to part with, and if these are not obtained and secured by the mode pointed out by the fifth artic[l]e of the convention plan, in two years after the meeting of the new congress, that Virginia shall be considered as disengaged from this ratification; in the fifth article it is stated, that two thirds of Congress may propose amendments, which being approved by three fourths of the legislatures, become parts of the constitution; so that the new Congress may obtain the amendment of Virginia, without risking the convulsion of a convention. Thus the beneficial parts of the new system may be retained, and a just security be given for civil liberty, whilst the friends of the system will be gratified, in what they say is necessary, to wit, the putting the government in motion, when, as they again say, amendments may, and ought to be made. The good consequences resulting from this method, will probably be, that the undetermined states may be brought to harmonize, and the formidable minorities in many assenting states, be quieted by so friendly and reasonable an accommodation; and thus the perpetual opposition that will inevitably follow, (the total adoption of the plan) from the state legislatures, may be happily prevented, and united exertions take place. In the formation of these amendments, localities ought to be avoided as much as possible. The danger of monopolized trade may be removed, by calling for the consent of three fourths of the United States, on regulations of commerce. The trial by Jury to be according to the course of proceeding in the state, where the cause criminal or civil is tried, and confining the supreme federal court to the jurisdiction of law, excluding fact. To prevent surprises, and the fixing of injurious laws, it would seem to be prudent to declare against the making laws perpetual, until the experience of two years at least, had vouched their utility; it being much more easy to get a good law continued, than a bad one repealed. The amendmentsof Massachusetts, appear to be good so far as they go, except the second, and extending the seventh to foreigners, as well as the citizens of other states in this union; and for their adoption, the aid of that powerful state may be secured. The freedom of the press, is by no means sufficiently attended to by Massachusetts, nor have they remedied the want of responsibility, by the impolitic combination of president and senate. It does appear to me, that in the present temper of America, if the Massachusetts amendments with those herein suggested being added, and inserted in the form of our ratification as before stated, that Virginia may safely agree, and I believe that the most salutary consequences would ensue. I pray, sir, that God may bless the convention with wisdom maturity of counsel, and constant care of the public liberty, and that he may have you in his holy keeping. With very great esteem and regard I have the honour to be, dear sir,

Your most obedient and very humble servant,

Richard Henry Lee



Printed in R. H. Lee Memoir of Richard Henry Lee, 2:90. Printed also in James Curtis Ballagh, The Letters of Richard Henry Lee, Volume 2, 1779 – 1794, pp. 469 – 74. A variant text is printed in the Virginia Historical Register, 2:99.