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Deficiencies of the Confederation

CHAPTER 5|Document 18

Richard Henry Lee to George Mason

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 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.

The Founders' Constitution
Volume 1, Chapter 5, Document 18
http://press-pubs.uchicago.edu/founders/documents/v1ch5s18.html
The University of Chicago Press

The Papers of George Mason, 1725--1792. Edited by Robert A. Rutland. 3 vols. Chapel Hill: University of North Carolina Press, 1970.