<br /> Lee Letter: n879

Washington and Lee University

Sender: Richard Henry Lee
Recipient: Samuel Adams

Having long toiled with you my dear friend in the Vineyard of liberty, I do
with great pleasure submit to your wisdom and patriotism, the
objections that prevail in my mind against the new Constitution
proposed for federal government – Which objections I did propose to
Congress in form of amendments to be discussed, and that such as were
approved might be forwarded to the States with the Convention
system.1 You will have been informed by
other hands why these amendments were not considered and do not appear
on the Journal, and the reasons that influenced a bare transmission of
the Convention plan, without a syllable of approbation or
disapprobation on the part of Congress. I suppose my dear Sir, that the
good people of the U. States in their late generous contest, contended
for free government in the fullest, clearest, and strongest sense. That
they had no idea of being brought under despotic rule under the notion
of “Strong government,” or in form of elective despotism: Chains being
still Chains, whether made of gold or iron.

The corrupting nature of power, and its insatiable appetite for increase,
hath proved the necessity, and procured the adoption of the strongest
and most express declarations of that Residuum of natural rights, which
is not intended to be given up to Society; and which indeed is not
necessary to be given for any good social purpose. In a government
therefore, where the power of judging what shall be for the general
wellfare, which goes to every object of human legislation; and where
the laws of such Judges shall be the supreme Law of the Land: it seems
to be of the last consequence to declare in most explicit terms the
reservations above alluded to. So much for the propriety of a Bill of
Rights as a necessary bottom to this new system – It is in vain to say
that the defects in this new Constitution may be remedied by the
Legislature created by it. The remedy, as it may, so it may not be
applied – and if it should, a subsequent Assembly may repeal the Acts of
its predecessors for the parliamentary doctrine is “quod legis
posteriores priores contrarias abrogant” 4 Inst.
43.2 Surely this it not a ground upon which
a wise and good man would choose to rest the dearest rights of human
nature. Indeed, some capital defects are not within the compass of
legislative redress. The Oligarchic tendency from the combination of
President, V. President, & Senate, is a ruin not within the
legislative remedy. Nor is the partial right of voting in the Senate,
or the defective numbers in the house of representatives. It is of
little consequence to say that the numbers in the last mentioned
Assembly will increase with the population of these States, because
what may happen in twenty five or 27 years hence is poor alleviation of
evil, that the intermediate time is big with; for it often happens that
abuse under the name of Use is rivetted upon Mankind. Nor can a good
reason be assigned, for establishing a bad, instead of a good
government, in the first instance, because time may amend the bad. Men
do not choose to be sick because it may happen that physic may cure
them. Suppose that good men came first to the administration of this
government; and that they should see, or thing [think] they see, a
necessity for trying criminally a Man without giving him his Jury of
the Vicinage; or that the freedom of the Press should be restrained
because it disturbed the operations of the new government – the
mutilation of the jury trial, and the restraint of the Press would then
follow for good purposes as it should seem, and by good men. But these
precedents will be followed by bad men to sacrifice honest and innocent
men; and to suppress the exertions of the Press for wicked and tyrannic
purposes – it being certainly true that “Omnia mala exempla exbonis orta
sunt: sed ubi imperium ad ignaros out minus bonos pervinit, novum illud
exemplum ab dignis et idoneis ad indignos et non idoneos
fertur.”3 In proof of this, we know that the
wise and good Lord Holt, to support King William and revolution
principles, produced doctrines in a case of Libel (King against Bear)
subversive both of law and sound sense; which his Successor Lord
Mannsfield (in the case of Woodfall) would have availed himself of for
the restraint of the Press and the ruin of
liberty.4 It would appear therefore, that
the consideration of human perversity renders it necessary for human
safety, that in the first place, power not requisite should not be
given, and in the next place that necessary powers should be carefully
guarded. How far this is done in the New Constitution I submit to your
wise and attentive consideration. Whether, for the present, it may not
be sufficient so to alter the Confederation as to allow Congress full
liberty to make Treaties by removing the restraining clauses; by giving
the Impost for a limited time, and the power of regulating trade; is a
question that deserves to be considered.

But I think the new Constitution (properly amended) as it contains many
good regulations, may be admitted – And why may not such indispensable
amendments be proposed by the Conventions and referred With the new
plan to Congress, that a new general Convention may so weave them into
the proffer’d system as that a Web may be produced fit for free men to
weave? If such amendments were proposed by a capital state or two,
& a willingness expressed to agree with the plan so amended; I
cannot see why it may not be effected. It is a mere begging the
question to suppose, as some do, that only this Moment and this Measure
will do. But why so, there being no war external or internal to prevent
due deliberation on this most momentous business. The public papers
will inform you what violence has been practised by the Agitators of
this new System in Philadelphia to drive on its immediate
adoption5 As if the subject of Government
were a business or passion, instead of cool, sober, and intense
consideration. I shall not leave this place before the 4th of November – in the mean time, I shall be happy to hear from
you.6 My best compliments are presented to
Mrs. Adams, and I pray to be remembered to Gen. Warren, Mr. Lovell
& the good Doctor Holten when you see him.

I am, with sentiments of
the truest esteem & regard, dear Sir your affectionate friend,

Richard Henry Lee

Notes:

Receiver’s copy, Adams Papers, New York Public Library.

1 For Lee’s “amendments,” see Lee to Elbridge Gerry, September 29.

2 Lee’s quote is from the fourth of Sir Edward Coke’s Institutes: “because
subsequent laws nullify earlier laws which are contrary.” See Doc.
Hist. of Ratif., 8:39n.3.

3 That is, “all bad examples are derived from good ones; but when power comes
to the ignorant or the less good, the new example is transferred from
the worthy and fit to the unworthy and unfit.” See ibid., p. 39n.4.

4 For an explanation of this passage, see ibid., 13:325n.3.

5 For the “violence” in Philadelphia, see ibid., pp. 293 – 306; and Robert L.
Brunhouse, The Counter-Revolution in Pennsylvania, 1776 – 1790
(Harrisburg: Pennsylvania Historical Commission, 1942), pp. 200 – 202.

6 For Adams’ December 3 reply to this letter, see Doc. Hist. of Ratif.,
14:333 – 34.