<br /> Lee Letter: n876

Washington and Lee University

Sender: Richard Henry Lee
Recipient: Elbridge Gerry

Dear Sir,

According to your request I now enclose you the Amendments that I proposed
to the new Constitution.1 I incline to think
that unless some such alterations & provisions as these are
interposed for the security of those essential rights of Mankind
without which liberty cannot exist, we shall soon find that the New
plan of Government will be far more inconvenient than anything
sustained under the present Government. And that to avoid Scilla we
shall have fallen upon Caribdis.

I am yours sincerely,

Richard Henry Lee

It having been found from Universal experience that the most express
declarations and reservations are necessary to protect the just rights
and liberty of Mankind from the Silent, powerful, and ever active
conspiracy of those who govern – And it appearing to be the sense of the
good people of America by the various Bills or Declarations of rights
whereon the governments of the greater number of the States are
founded, that such precautions are proper to restrain and regulate the
exercise of the great powers necessarily given to rulers – In conformity
with these principles, and from respect for the public sentiment on
this subject it is submitted

That the new Constitution proposed for the Government of the U. States be
bottomed upon a declaration, or Bill of rights, clearly and precisely
stating the principles upon which this Social Compact is founded, to
wit; That the rights of Conscience in matters of religion shall not be
violated – That the freedom of the Press shall be secured – That the
trial by Jury in Criminal and Civil cases, and the modes prescribed by
the Common Law for safety of Life in Criminal prosecutions shall be
held sacred – That standing Armies in times of peace are dangerous to
liberty, and ought not to be permitted unless assented to by two thirds
of the Members composing each House of the legislature under the new
constitution – That Elections of the Members of the Legislature should
be free and frequent – That the right administration of justice should
be secured by the freedom and independency of the Judges – That
excessive Bail, excessive Fines, or cruel and unusual punishments
should not be demanded or inflicted – That the right of the people to
assemble peaceably for the purpose of petitioning the Legislature shall
not be prevented – That the Citizens shall not be exposed to
unreasonable searches, seizures of their papers, houses, persons, or
property. And whereas it is necessary for the good of Society that the
administration of government be conducted with all possible maturity of
judgment; for which reason it hath been the practise of civilized
nations, and so determined by every State in this Union, that a Council
of State or Privy Council should be appointed to advise and assist in
the arduous business assigned to the Executive power – therefore, that
the New Constitution be so amended as to admit the appointment of a
Privy Council, to consist of Eleven Members chosen by the President,
but responsible for the advise they may give – for which purpose the
Advice given shall be entered in a Council Book and signed by the Giver
in all affairs of great concern. And that the Counsellors act under an
Oath of Office.

In order to prevent the dangerous blending of the Legislative and Executive
powers, and to secure responsibility – The Privy Council and not the
Senate shall be joined with the President in the appointment of all
Officers Civil and Military under the new Constitution – That it be
further amended so as to omit the Creation of a Vice President, whose
duties, as assigned by the Constitution, may be discharged by the Privy
Council (except in the instance of presiding in the Senate, which may
be supplied by a Speaker chosen from the body of Senators by themselves
as usual) and thus render unnecessary the establishment of a Great
Officer of State who is sometimes to be joined with the Legislature and
sometimes to administer the Executive power, rendering responsibility
difficult, and adding unnecessarily to the Aristocratic influence;
besides giving unjust and needless preeminence to that state from
whence this Officer may come. That such parts of the new Constitution
be amended as provide imperfectly for the trial of Criminals by a Jury
of the Vicinage, and to supply the omission of a Jury trial in Civil
causes or disputes about property between Individuals where by the
Common law it is directed, and as generally it is secured by the
several State Constitutions. That such other parts be amended as permit
the vexations and oppressive calling of Citizens from their own Country
in all cases of controversy concerning property between Citizens of
different States, and between Citizens and foreigners, to be tried in
far distant Courts, and as it may be, without a Jury. Whereby in a
multitude of Cases, the circumstances of distance and expence may
compel men to submit to the most unjust and ill founded demands. That
in order to secure the rights of the people more effectually from
oppression, the power and respectability of the House of
Representatives be increased, by increasing the number of Delegates to
that House where the democratic interest will chiefly reside. That the
New Constitution be so altered as to increase the number of Votes
necessary to determine questions relative to the creation of new or the
amendment of old Laws, as it is directed in the choice of a President
where the Votes are equal from the States; it being certainly as
necessary to secure the Community from oppressive Laws, as it is to
guard against the choice of an improper President. The plan now
admitting of a bare majority to make Laws, by which it may happen that
5 States may Legislate for 13 States tho 8 of the 13 are absent.

That the new Constitution be so amended as to place the right of
representation in the Senate on the same ground that it is placed in
the House of Delegates thereby securing equality of representation in
the Legislature so essentially necessary for good government.

Notes:

Receiver’s copy, Daughters of the American Revolution, Washington, D.C.,
2000X-48b. Endorsed by Gerry: “Colonel R H Lees propositions to amend
the Constitution, Sepr 1787.”

1 These proposed “Amendments” had first been introduced in Congress during
debate on September 27, but were not entered on the journals. Cf.
Melancton Smith’s

Notes, September 27, note 12; and JCC, 33:540 – 44. Lee also sent copies of
the amendments to George Mason (October 1), William Shippen, Jr.
(October 2), Samuel Adams (October 5), and Gov. Edmund Randolph
(October 16). Manuscript copies were widely circulated in Virginia
and the amendments were first published in the November 16 edition of
the Winchester Virginia Gazette. They were published again, together
with Lee’s October 16 letter to Randolph, in the December 6 issue of
the Petersburg Virginia Gazette, which was reprinted in the
Pennsylvania Packet on December 20. The Packet printing was
subsequently reprinted in newspapers and pamphlet anthologies
throughout the United States and these constituted Lee’s chief public
opposition to the Constitution. For the distribution and printing of
Lee’s amendments and the intense opposition they provoked, see Doc.
Hist. of Ratif., 8:59 – 61, 14:364 – 66. For an assessment of Lee’s
pivotal role in rousing early doubts about the proposed constitution
in its present form, see Richard Leffler, “`A Peep Behind the
Curtain’: Richard Henry Lee and the Early Opposition to the
Constitution,” Documentary Editing 9 (September 1987): 1 – 6.

It had long been assumed, based upon slim contemporary evidence, that Lee
also wrote the letters of “The Federal Farmer,” dated October 8 – 10,
12 – 13, in rebuttal to “The Republican.” They became available in New
York in pamphlet form as early as November 8. One of the most
significant antifederalist publications penned during the debate over
the Constitution, Observations Leading to a Fair Examination of the
System of Government Proposed by the Late Convention. … In a
Number of Letters from the Federal Farmer to the Republican went
through four editions, three of which are extant (Evans, Am.
Bibliography, nos. 20,454 – 56). It was widely distributed and elicited
numerous essays by detractors and supporters that were published in
newspapers throughout the states. They were followed in May 1788 by
An Additional Number of Letters from the Federal Farmer to the
Republican (ibid., no. 21,197).

The attribution of these pseudonymous essays to Lee was first questioned by
William W. Crosskey in a cryptic note in the second volume of his
Politics and the Constitution in the History of the United States, 3
vols. (Chicago: University of Chicago Press, 1953 – 80), 2:1300, and
thoroughly refuted two decades later by Gordon S. Wood. Arguing that
the link to Lee rested solely on an assertion by “New England” in a
December 24 article in the Connecticut Courant, Wood traced the
growing acceptance of that assumption over the next two centuries.
Examining Lees’s writings and the Federal Farmer’s letters afresh,
Wood found it unlikely they were “the product of the same mind,” and
concluded that “nothing of what we know of Lee’s life and career,
none of the remains of his correspondence, nothing in his grandson’s
Memoir published in 1825 suggest that Lee was the author of the
Federal Farmer essays.” Besides, he argued, other evidence “points to
the likelihood that he was a New Yorker.” See “The Authorship of the
Letters from the Federal Farmer,” WMQ, 31 (April 1974): 299 – 308. For
the essays themselves and a review of their publication, see Doc.
Hist. of Ratif., 14:14 – 54; and Storing, Complete Anti-Federalist,
2:214 – 357, which also includes the “additional” letters.

In a similar vein, six essays by “Cincinnatus,” published in the New York
Journal from November 1 to December 6 in answer to an October 6
speech by James Wilson to the citizens of Philadelphia, were also
attributed by contemporaries to Richard Henry Lee, a claim equally
ignored by recent authorities. See Doc. Hist. of Ratif., 13:529 – 34,
14:11 – 14, 124 – 28, 186 – 91, 303 – 10, 360 – 64; and Storing, Complete
Anti-Federalist, 6:5 – 33.