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LETTER FROM THE Hon. RICHARD HENRY LEE, Esq.
ONE OF THE DELEGATES IN CONGRESS FROM THE STATE OF VIRGINIA,
TO HIS EXCELLENCY, EDMUND RANDOLPH, ESQ..
GOVERNOR OF SAID STATE.
NEW YORK, October 16, 1787. It has hitherto been supposed a fundamental maxim, that, in govern ments rightly balanced, the different branches of legislature should be un connected, and that the legislative and executive powers should be sepa. rate. In the new Constitution, the President and Senate have all the executive, and two thirds of the legislative power.
of the legislative power. 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 critic 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 for four years' duration; and Virginia (for example) has one vote of thirteen in the choice of him, and this thirteenth vote not of the people, but electors, two removes from the people. The Senate is a body of six years' duration, and, as in the choice of President, the largest state has but a thirteenth vote, so is it in the choice of senators. 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, 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, 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 favor 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, render that house of little effect, to promote good or restrain bad government. But what the
power given to this ill-constructed body? To judge of what may be for the general welfare; and such judgments, when made the acts of Congress, become the supreme laws of the land. This seems a power coëxtensive with every possible object of human legislation. Yet there is no restraint, in form of a bill of rights, to secure (what Doctor Blackstone calls) that residuum of human rights which is not intended to be given up to society, and which, indeed, is not necessary to be given for any social purpose. The rights of conscience, the freedom of the press, and the trial by jury, are at mercy. It is there
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 - the states being from fifty to seven hundred miles in extent ? This mode of irial, 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 Courts, in appeals, jurisdiction both as to law and fact.
Judge Blackstone, in his learned Commentaries, art. Jury Trial, says, “ It is the most transcendent 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 neighbors and equals a constitution that, I may venture to affirm, has, under Provi. dence, 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 intrusted to the magistracy, a select body of men, and those generally selected, by the prince, of such as enjoy the highest offices of the state, these 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 always be attentive to the good of the many." The learned judge further says, that “every tribunal, selected for the decision of facts, is a step towards establishing aristocracy — the most oppressive of all governments.”
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 succeedipg assembly may repeal the provisions. The evil is found resting upon constitutional botton; and the remedy, upon the mutable ground of legislation, revocable at any annual meeting. It is the more unfortunate that this great security of human rights — the trial by jury - should be weakened by 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, to be tried in a distant court, where the Congress may sit; for although inferior congressional courts may, for the above purposes, 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 reasonably, the people will be exposed to endless oppression, and the necessity of submitting, in multitudes of cases, to pay unjust demands, rather than follow suitors, through great expense, to fardistant tribunals, and to be determined upon there, as it may be, without a jury.
In this congressional legislature, a bare majority of votes 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 monopoly upon the five Southern States, whose circumstances and productions are essentially different from those of theirs, although not a single man of these voters are the representatives of, or amenable to, the people of the Southern States. Can such a set of men be, with the least color of truth, called a representative of those they make laws for? It is supposed that the policy of the Northern States will prevent such abuses. Bu how feeble, sir, is policy, when opposed to interest, among trading people! and what is the restraint arising from policy? Why, 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 commodities as ours, and of such extent? and if we had ihe ships, from whence are the seamen to come? - 4,000 of whom, at least, will be necessary in Virginia. In questions so liable to abuse, why was not the necessary vote put to two thirds of the members of the legislature ?
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 thein, it is easy to see that Congress could have little opinion upon the subject.
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 forbade the last; and therefore I moved the amendments that I have the honor to send you enclosed herewith, 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 terın “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 regulations, 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 wellfounded 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, humble servant,
RICHARD H. LEE.
GOUVERNEUR MORRIS TO GENERAL WASHINGTON
PHILADELPHIA, October 30, 1787. Dear Sir: The states eastward of New York appear to be almost unanimous in favor of the new Constitution, (for I make no account of the dissension in Rhode Island.) Their preachers are advocates for the adoption; and this circumstance, coinciding with the steady support of the property, and other abilities of the country, makes the current set strongly, and I trust irresistibly, that way.
Jersey is so near uninimity in her favorable opinion, that we may count with certainty on something more than votes, should the state of affairs hereafter require the application of pointed arguments. New York, hemmed in between the warm friends of the Constitution, will not VOL. I.
easily, unless supported by powerful states, make any important struggle, even though her citizens were unanimous, which is by no means the case. Parties there are nearly balanced. If the assent, or dissent, of the New York legislature were to decide on the fate of America, there would still be a chance, though I believe the force of government would preponderate, and effect a rejection. But the legislature cannot assign to the people any good reason for not trusting them with a decision on their own affairs, and must therefore agree to a convention. In the choice of convention, it is not improbable that the federal party will prove strongest ; for persons of very distinct and opposite interests have joined on this subject.
With respect to this state, I am far from being decided in my opinion that they will consent. True it is, that the city and its neighborhood are enthusiastic in the cause; but I dread the cold and sour temper of the back counties, and still more the wicked industry of those who have long habituated themselves to live on the public, and cannot bear the idea of being removed from the power and profit of state government, which has been, and still is, the means of supporting themselves, their families, and dependants, and (which is perhaps equally grateful) of depressing and humbling their political adversaries. What opinions prevail more southward, I cannot guess. You are in a better condition than any other person to judge of a great and important part of that country.
I have observed that your name to the new Constitution has been of infinite service. Indeed, I am convinced that, if you had not attended that Convention, and the same paper had been handed out to the world, it would have met with a colder reception, with fewer and weaker ad. vocates, and with more, and more strenuous, opponents. As it is, should the idea prevail that you will not accept the Presidency, it would prove fatal in many parts. The truth is, that your great and decided superiority leads men willingly to put you in a place which will not add to your personal dignity, nor raise you higher than you already stand. But they would not readily put any other person in the same situation, because they feel the elevation of others as operating, by comparison, the degradation of themselves; and, however absurd this idea may be, yet you will agree with me, that men must be treated as men, and not as machines, much less as philosophers, and least of all things as reasonable creatures, seeing that, in effect, they reason not to direct, but to excuse their conduct. Thus much for the public opinion on these subjects, which is not to be neglected in a country where opinion is every thing.
I am, &c., GOUVERNEUR MORRIS.
GOUVERNEUR MORRIS TO TIMOTHY PICKERING,
Dated, MORRISANIA, December 22, 1814. My Dear Sir: What can a history of the Constitution avail towards interpreting its provisions ? This must be done by comparing the plain import of the words with the general tenor and object of the instrument.
That instrument was written by the fingers which write this letter. Having rejected redundant and equivocal terms, I believed it to be as clear as our language would permit; excepting, nevertheless, a part of what relates to the judiciary. On that subject, conflicting opinions had been maintained with so much professional astuteness, that it became necessary to select phrases which, expressing my own notions, would not alarm others, nor shock their self-love; and to the best of my recollection, this was the only part which passed without cavil.
But, after all, what does it signify that men should have a written constitution, containing unequivocal provisions and limitations? The legislative lion will not be entangled in the meshes of a logical net. The legislature will always make the power which it wishes to exercise, unless it be so organized as to contain within itself the sufficient check. Attempts to restrain it from outrage, by other means, will only render it more outrageous. The idea of binding legislators by oaths is puerile. Having sworn to exercise the powers granted, according to their irue intent and meaning, they will, when they feel a desire to go farther, avoid the shame, if not the guilt, of perjury, by swearing the true intent and meaning to be, according to their comprehension, that which suits their purpose.
JAMES MADISON TO MR. SPARKS.
Dated, MONTPELLIER, April 8, 1831. Dear Sir: I have woly received your letter of March 30th. In answer to your inquiries “especting the part acted by Gouverneur Morris in the Federal Convenös of 1787, and the political doctrines maintained by him," it may be justly said that he was an able, an eloquent, and an active member, and shared largely in the discussions succeeding the 1st of July, previous to which, with the exception of a few of the early days, he was absent.
Whether he accorded precisely with the “political doctrines of Hamilton," I cannot say. He certainly did not incline to the democratic side," and was very frank in avowing his opinions, when most at variance with those prevailing in the Convention. He did not propose any outline of a constitution, as was done by Hamilton ; but contended for certain articles (a Senate for life particularly) which he held essential to the stability and energy of a government capable of protecting the rights of property against the spirit of democracy. He wished to make the weight of wealth balance that of numbers, which he pronounced to be the only effectual security to each, against the encroachments of the other.
The finish given to the style and arrangement of the Constitution fairly belongs to the pen of Mr. Morris; the task having, probably, been handed over to him by the chairman of the committee, himself a highly respectable member, and with the ready concurrence of the others. A better choice could not have been made, as the performance of the task proved. It is true that the state of the materials, consisting of a reported draft in detail, and subsequent resolutions accurately penned, and falling easily