Washington and Lee University

Sender: Richard Henry Lee
Recipient: Arthur Lee

Dear Brother,

It is at all times with great pleasure that I oblige you, and therefore, notwithstanding the request you have now made me, will be attended with many inconveniences, I shall endeavor to give you a just idea of our policy, the state of our Trade, the nature and amount of our Revenue, with an estimate of our military strength. These subjects, if I mistake not, will comprehend within them the information you desired re[ceive]. Tis no less to <you> evident, that our Forefathers in framing the Constitution of this Coun[tr]y, had in view the excellent pattern furnished by the Mother Country; But unhappily for us my brother, it is an exterior semblance only, when you examine seperately the parts that compose this government; essential variations appear between it, and the happily poised english constitution. Let us place the two in comparative points of view, and then the difference will be stricking. In Britain the three simple forms of Monarchy, Aristocracy, and Democracy, are so finely blended; that the advantages resulting from each species separately, flow jointly from their admirable union. The King tho’ possessing the executive power of government, with the third of the legislative, and the House of Commons representing the democratic interest, are each prevented from extending improperly prerogative or popular claims, by a powerful body of Nobles, independent in the material circumstances of hereditary succession to their titles and seats in the second bench of the Legislature. Thus you see of what essential importance is the House of Lords in the British constitution, and how happily their independence is secured. With us, the legislative power is lodged in a Governor, Council, and House of Burgesses. The two first appointed by the crown, and their places held by the precarious tenure of pleasure only. That security therefore which the constitution derives in Britain from the House of Lords, is here entirely wanting, and the just equilibrium totally destroyed by two parts out of three of the Legislature being in the same hands. It happens also unfortunately that the same persons who compose our Council during pleasure, with the Governor, at their head, are the Judges of our General Courts (and only so long as they continue of the Council) where all causes ecclesiastical and civil, both common law and Chancery business is determined. By this injudicious combination, all the executive, two thirds of the legislative, and the whole judiciary powers are in the same body of Magistracy. How severly, but how justly has the accurate Montesquieu determined against so impolitic a union - "Lorsque dans la même personne ou dans le même corps de Magistrature, la puissance legislative est réunie a la puissance executrice, il n’y a point de liberté; parce qu’on peut craindre que le même Monarque ou le même Sénat ne pass des Loix tyranniques, pour les exécuter tyranniquement. Il n’y a point encore de lib[erté] si la puissance [de] juger n’est pas sé parée de la puissance légis[la]tive et de l’exécutrice; si elle etoit jointe a la puissance legislative, le pouvoir sur la vie et la liberté des Citoyens seroit arbitraire; car la Juge seroit Legislateur. Si elle étoit jointe a la puissance exécutrice la Juge pourra it avoir la force d’un oppresseur. Tout seroit perdu si le méme hom meou le méme Corps des Principaux, ou des Nobles, ou du Peuple exerçoient ces trois pouvoirs, celui de faire des Loix, celui d.exécuter les résolutions publiques, et celui de juger les crimes ou les différends des perticuliers" - 1

But how must your surprise increase, when you are informed that even the third or democratic part of our legislature is totally in the power of the Crown! Tis by usage only that elections are directed and Assembly’s called; in our code of laws not one is to be found that directs the calling of new Assembly’s, or that appoints any time for the meeting of the representative body when chosen. To remedy this fundamental error, and to place the liberty of the Subject on a more secure footing, an Act of Assembly was passed upon the principles of the Act of Parliament adopted in England after the Revolution, directing that a new assembly should be called once in seven years at the least, and that the Represent[a]tives when chosen should be convened, at least, once in three years. The more frequent calling of new Assembly’s and the more frequent meeting of them when chosen, was left; as of right it ought, a Prerogative possessions. This Act passed with a suspending clause, but tho it is now 4 Years since its passage, we have never had the royal approbation. May we not hope my brother; that this security to liberty will now be granted, when those great and good men preside who so lately evinced their generous and noble attachment to American Freedom, by opposing with matchless eloquence the Parliamentary right of imposing internal taxes on America. May we not also hope that when these great Personages have leisure from other weighty concerns, that a thorough reform in the faulty parts of our constitution will be directed. It may reasonably be enquired, how it happened, that with so ~ good a pattern as the English constitution, ours should be so exceptionally contrived? The answer is to be found in the arbitrary reign of James [the] first, and the subsequent confusion that happened in that of his Son. The first ocassioned the violent dissolutions of the Company to whom letters Patent were originally granted for this Colony, and the rebellion in the reign of Charles the first, with the consequent disorders in Government, prevented any kind of regularity from taking place in our affairs.

I am happy in being able to say with truth of our Countrymen that they have ever been remarkable for loyalty and firm attachment to their Sovereign. A celebrated instance of this they gave, in refusing as they always did to pay any obedience to the usurped power of Oliver Cromwell, and at the two last wars, no applications from our late or present King were ever made in vain - I have now accomplished the first part of my engagement by giving as accurate an idea of the constitution of this Country as I am able, and that I may not tire you with the length of this letter, I shall defer writing on the three remaining subjects, until some future opportunity. I remain with truth and sincerity

your ever affectionate brother and faithful friend.
R. H. Lee

To Doctor Lee.

Notes:

Lee PapersUniversity of Virginia Archives

Printed in James Curtis Ballagh, The Letters of Richard Henry Lee, Volume 1, 1762 - 1778, pp. 18 - 22.

1 See Esprit de Lois, B. XI. ch. 6.