RICHARD HENRY LEE TO GEORGE MASON. 105

May 15, 1787, CHANTILLY.

DEAR SIR-It has given me much pleasure to be informed that General Washington and yourself have gone to the Convention. We may hope, from such efforts, that alterations beneficial will take place in our Federal Constitution, if it shall be found, on deliberate inquiry, that the evils now felt do flow from errors in that constitution; but, alas! sir, I fear it is more in vicious manners, than mistakes in form, that we must seek for the causes of the present discontent. The present causes of complaint seem to be, that Congress cannot command the money necessary for the just purposes of paying debts, or for supporting the federal government; and that they cannot make treaties of commerce, unless power unlimited, of regulating trade be given. The Confederation now gives right to name the sums necessary, and to apportion the quotas by a rule established. This rule is, unfortunately, very difficult of execution, and, therefore, the recommendations of Congress on this subject have not been made in federal mode; so that States have thought themselves justified in non-compliance. If the rule were plain and easy, and refusal were then to follow demand, I see clearly, that no form of government whatever, short of force, will answer; for the same want of principle that produces neglect now, will do so under any change not supported by power compulsory; the difficulty certainly is, how to give this power in such manner as that it may only be used to good, and not abused to bad, purposes. Whoever shall solve this difficulty will receive the thanks of this and future generations. With respect to the want of power to make treaties of trade, for want of legislation, to regulate the general commerce, it appears to me, that the right of making treaties, and the legislative power contended for are essentially different things; the former may be given and executed, without the danger attending upon the States parting with their legislative authority, in the instance contended for. If the third paragraph of the sixth article were altered, by striking out the words, in pursuance of any treaties already proposed by Congress, to the courts of France and Spain; and the proviso stricken out of the first section in the ninth article, Congress would then have a complete and unlimited right of making treaties of all kinds, and, so far, I really think it both right and

necessary; but this is very different from, and in danger far short of, giving an exclusive power of regulating trade. A minister of Congress may go to a foreign court with full power to make a commercial treaty; but if he were to propose to such court that the eight northern States in this Union, should have the exclusive right of carrying the products of the five southern States, or of supplying these States with foreign articles, such a proposition of monopoly would be rejected; and, therefore, no danger here from the power of making treaty; but a legislative right to regulate trade through the States may, in a thousand artful modes, be so abused as to produce the monopoly aforesaid, to the extreme oppression of the staple States, as they are called. I do not say that this would be done, but I contend that it might be done; and, where interest powerfully prompts, it is greatly to be feared that it would be done. Whoever has served long in Congress, knows that the restraint of making the consent of nine States necessary, is feeble and incompetent. Some will sometimes sleep, and some will be negligent, but it is certain that improper power not given cannot be improperly used.

The human mind is too apt to rush from one extreme to another; it appears, by the objections that came from the different States, when the Confederation was submitted for consideration, that the universal apprehension was, of the too great, not the defective powers of Congress. Whence this immense change of sentiment, in a few years? for now the cry is power, give Congress power. Without reflecting that every free nation, that hath ever existed, has lost its liberty by the same rash impatience, and want of necessary caution. I am glad, however, to find, on this occasion, that so many gentlemen, of competent years, are sent to the Convention, for, certainly, "youth is the season of credulity, and confidence a plant of slow growth in an aged bosom." The States have been so unpardonably remiss, in furnishing their federal quotas, as to make impost necessary, for a term of time, with a provisional security, that the money arising shall be unchangeably applied to the payment of their public debts; that accounts of the application, shall be annually sent to each State; and the collecting officers appointed by, and be amenable to the States: or, if not so, very strong preventives and correctives of official abuse and misconduct, interpose, to shield the people from

SUGGESTIONS FOR THE NEW SYSTEM.

107

oppression. Give me leave, sir, to detain you a moment longer, with a proposition that I have not heard mentioned. It is that the right of making paper money shall be exclusively vested in Congress; such a right will be clearly within the spirit of the fourth section of the ninth article of the present confederation. This appears to me, to be a restraint of the last importance to the peace and happiness of the Union, and of every part of it. Knaves assure, and fools believe, that calling paper money, and making it tender, is the way to be rich and happy; thus the national mind is kept in constant ferment; and the public councils in continual disturbance by the intrigues of wicked men, for fraudulent purposes, for speculating designs. This would be a great step towards correcting morals, and suppressing legislative frauds, which, of all frauds, is the most hateful to society. Do you not think, sir, that it ought to be declared, by the new system, that any State act of legislation that shall contravene, or oppose, the authorized acts of Congress, or interfere with the expressed rights of that body, shall be ipso facto void, and of no force whatsoever?

My respects, if you please, to your brethren of the Convention, from this State, and pardon me for the liberty I have taken of troubling you with my sentiments on the interesting business that calls you to Philadelphia. I have the honour to be, with affectionate esteem and regard,

Your friend and servant,

RICHARD HENRY LEE.

George Mason, Esq.'

The Convention met on Friday, the 25th of May, seven States being represented. On the following Monday nine other deputies took their seats, and Connecticut and Maryland were added to the number of States present. The rules as reported were read. Mr. King of Massachusetts objected to that one authorizing any member to call for the yeas and nays and have them entered on the minutes. Colonel Mason seconded the objection, adding "that such a record of the opinions of members would be an obstacle to a change of

1 "Life of Richard H. Lee," vol. ii., p. 71.

them on conviction; and in case of its being hereafter promulgated must furnish handles to the adversaries of the result of the meeting." The rule was then rejected. Madison tells us in his report of these debates that previous to the opening of the Convention it had been a subject of discussion among the members present, as to how the States should vote in the Convention. Several of the members from Pennsylvania had urged that the large States unite in refusing to the small States an equal vote, but Virginia, believing this to be injudicious if not unjust "discountenanced and stifled the project." On the 29th the real business of the Convention was opened by Edmund Randolph, who as Governor of Virginia was put forward as spokesman by his colleagues. He began by saying that as the Convention had originated from Virginia, and the delegation from this State supposed that some proposition was expected from them, the task had been imposed on him. After enumerating the defects of the Confederation, he detailed the remedy proposed. This latter was set forth in fifteen resolutions and was called afterwards the Virginia plan of government. Charles Pinckney from South Carolina had also a draft of a federal government, which was read and like the former referred to a committee of the whole House.

The first proposition debated was a resolution presented by Edmund Randolph but formulated by Gouverneur Morris, "That a national government ought to be established consisting of a Supreme Legislative, Executive, and Judiciary." Here South Carolina asked if Mr. Randolph meant to abolish the State governments. Doubts were expressed by members from Massachusetts and South Carolina whether the deputies could discuss a system founded on different principles from the Federal Constitution. Gouverneur Morris explained the difference, as he conceived it, between a federal and a national government. The term federal, however, was to change its signification, and to be used by the advocates of a "national government " to describe themselves. 1" Madison Papers," vol. ii., p. 724.

DELINQUENT STATES COULD NOT BE COERCED. 109

George Mason spoke after Mr. Morris, and put his finger on one of the chief weaknesses of the existing system. He observed, "not only that the present Confederation was deficient in not providing for coercion and punishment against delinquent States, but argued very cogently that punishment could not in the nature of things be executed on the States collectively, and therefore that such a government was necessary as could directly operate on individuals, and would punish those only whose guilt required it." This was a cardinal principle, that coercion could not be used against States. And here George Mason was in direct opposition to a clause in the sixth resolution of the Virginia plan, as presented by Edmund Randolph, which declared that the National or Federal legislature should have the power "to call forth the force of the Union against any member of the Union failing to fulfil its duty under the Articles thereof." Of all the Virginia delegation, apparently, Washington, Madison, Randolph, McClurg, and Mason, the latter alone saw clearly the danger here, and he was the first one in the Convention to suggest the solution of the difficulty which was subsequently adopted.

On the 31st of May Georgia was represented in the Convention, making ten States present. It was agreed without debate on this day that the "National Legislature" ought to consist of two branches, but the succeeding resolution, that the members of the first branch ought to be elected by the people of the several States, provoked some discussion. It was opposed, says Yates, "strange to tell by Massachusetts and Connecticut, who supposed they ought to be chosen by the legislatures; and Virginia supported the resolve, alleging that this ought to be the democratic branch of government, and as such immediately vested in the people.' Colonel Mason spoke first after Sherman and Gerry, and Madison followed after Wilson, of Pennsylvania, all three of the latter contending for an election of the larger branch of P. 748.

1 Ibid.,

Yates' Minutes, Elliot's Debates," second edition, 1861, vol. i., p. 392.