<br /> Lee Letter: n881

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 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.1 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.2 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.”3 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?4 [With the
constitution came from the convention, so many members of that body to
Congress, and of those too, who were among the most fiery zealots for
their system, that the votes of three states being of them, two states
divided by them, and many others mixed with them, it is easy to see
that Congress could have little opinion upon the
subject.5 Some denied our right to make
amendments, whilst others more moderate agreed to the right, but denied
the expediency of amending; but it was plain that a majority was ready
to send it on in terms of approbation – my judgment and conscience
forbid the last, and therefore I moved the amendments that I have the
honor to send you inclosed herewith,6 and
demanded the yeas and nays that they might appear on the journal. This
seemed to alarm and to prevent such appearance on the journal, it was
agreed to transmit the constitution without a syllable of approbation
or disapprobation; so that the term unanimously only applied to the
transmission, as you will observe by attending to the terms of the
resolve for transmitting.] Upon the whole, sir, my opinion is, that, as
this constitution abounds with useful reg[u]lations, 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.7

Notes:

Reprinted from Richard H. Lee, Memoir of the Life of Richard Henry Lee, 2
vols. (Philadelphia: H. C. Carey and I. Lea, 1825), 2:78 – 81.

1 See William Blackstone, Commentaries on the Laws of England, 4 vols.
(Philadelphia, R. Bell, 1771 – 72; reprinted from the 4th ed., Oxford:
Clarendon Press, 1770), 1:129.

2 Ibid., 3:379.

3 That is, “Every new tribunal, erected for the decision of facts, without
the intervention of a jury, (whether [the tribunal is] composed of
justices of the peace, commissioners of the revenue, judges of a
court of conscience, or any other standing magistrates) is a step
towards establishing aristocracy, the most oppressive of absolute
governments.” Ibid., p. 380.

4 The following bracketed text is taken from the Pennsylvania Packet of
December 20, 1787, as reprinted in Doc. Hist. of Ratif, 14:369 – 70.
Lee’s grandson, who edited his Memoir in 1825, omitted this sensitive
passage, perhaps because he felt that his grandfather’s
interpretation of the divisive congressional debates on the
Constitution might be misconstrued. Whatever his reason for removing
this section, the text of the remainder of the letter, which was
undoubtedly taken from an FC that has not survived, is clearly
superior to the version printed in the Packet because it more nearly
reflects Richard Henry Lee’s syntax, word choice, and punctuation.

5 In fact, only 10 of the 33 delegates who attended Congress during the
September 26 – 27 debate on the Constitution had also been delegates to
the Philadelphia Convention. In a procedural vote to postpone a
motion made by Lee on the 27th, the majority vote of New Hampshire,
Massachusetts, and Georgia in favor of postponement was supplied by
Nicholas Gilman and John Langdon, Nathaniel Gorham and Rufus King,
and William Few and William Pierce, respectively. William Samuel
Johnson and James Madison cast the deciding votes for Connecticut and
Virginia against Lee’s motion, and William Blount and Pierce Butler
made the opposing votes of North and South Carolina unanimous. See
JCC, 33:540 – 42.

6 See the enclosure in Lee to Elbridge Gerry, September 29. For congressional
action on the Constitution, see Melancton Smith’s Notes, September 27
; Charles Thomson to the States, September 28; and James Madison to
George Washington, September 30.

7 Lee also wrote a brief letter to his niece, Ann Shippen Livingston, on
October 18 regarding his purchase of thread, which would be delivered
to her in Philadelphia by Maryland delegate David Ross on his way
home. Shippen Family Papers, DLC. Ross last attended on October 18 or
19, and Maryland, which had been unrepresented since Nathaniel
Ramsey’s departure in mid-May, did not have two delegates in Congress
again until Benjamin Contee and John Eager Howard took their seats
January 21, 1788. See JCC, 32:292, 33:692, 34:1.