Essay 72 – Guest Essayist: Joerg Knipprath

If one lived in Virginia during the first couple of centuries or so of European settlement, one could do much worse than being born into the Lee family. Founded in the New World by the first Richard Lee in 1639, its wealth was based initially on tobacco. From that source, the family expanded, intermarried with other prominent Virginians, and established its prominence in the Old Dominion State. Richard Henry Lee and his brother Francis Lightfoot Lee, both signatories of the Declaration of Independence and the Articles of Confederation, were scions of one branch of the family. Henry “Light-Horse Harry” Lee III was a son of Richard Henry Lee’s cousin. Henry III was a precocious officer in the Continental Army, major-general in the United States Army, governor of Virginia, and father of Confederate States Army General Robert E. Lee.

Despite this illustrious background, Richard Henry Lee was in relatively straightened financial circumstances, compared to others in his political circle. Though he was the son of a royal governor of Virginia and plantation owner, Lee inherited no wealth other than some land and slaves. He rented those assets out for support, but depended on government jobs to help maintain his participation in politics. Although Lee studied law in Virginia after returning from an educational interlude in England, it appears he never practiced law. Still, his training became useful when he was appointed Justice of the Peace in 1757 and elected to the House of Burgesses in 1758.

Once in politics, Lee quickly took on radical positions. In September, 1765, he protested the Stamp Act by staging a mock ritual hanging of the colony’s stamp distributor, George Mercer, and of George Grenville, the prime minister who introduced the Stamp Act. Soon it was discovered that Lee himself had applied for that distributor position, which proved rather awkward for his bona fides as a fire-breathing patriot. After a mea culpa speech delivered with the trademark Lee passion, he was absolved and, indeed, lauded for his honesty.

He escalated the protest in 1766 by writing the Westmoreland Resolves, which promised opposition to the Stamp Act “at every hazard, and, paying no regard to danger or to death.” Further, anyone who attempted to enforce it would face “immediate danger and disgrace.” The signatories, prominent citizens of Westmoreland County, Lee’s home, pledged that they would refuse to purchase British goods until the Stamp Act was repealed. Eight years later, this type of boycott was the impetus for the Continental Association, an early form of collective action by the colonies drafted by the First Continental Congress and signed by Lee to force the British to repeal the Coercive Acts.

On March 12, 1773, Lee was appointed to Virginia’s Committee of Correspondence. The first such committee was established in Massachusetts the previous fall under the leadership of Sam Adams to spread information and anti-British propaganda to all parts of the colony and to communicate with committees in other colonies. The trigger was the Gaspee affair. The British cutter Gaspee, enforcing custom duties off Rhode Island, ran aground on a sand bar. Locals attacked and burned the ship and beat the officer and crew. The government, keen on punishing the destruction of a military vessel and the assault on its men, threatened to have the culprits tried in England. The specter of trial away from one’s home was decried by the Americans as yet another violation of the fundamental rights of Englishmen. Other colonies soon followed suit and established their own committees. Letters exchanged between Lee and Adams expressed their mutual admiration and laid the foundation for a lifelong friendship between the two.

Amid deteriorating relations between Britain and her American colonies, Parliament raised the ante by adopting the Coercive or Intolerable Acts (Boston Port Act, Massachusetts Government and Administration of Justice Act, Quartering Act) against Massachusetts Bay. Virginia’s House of Burgesses responded with the Resolve of May 24, 1774, concocted by Lee, his brother Francis Lightfoot Lee, Thomas Jefferson, Patrick Henry, and George Mason, which called for a day of “Fasting, Humiliation, and Prayer” for June 1. Time being of the essence, the authors were not above a dash of plagiarism. They took the language from a similar resolution made by the House of Commons in the 1640s during their contest with King Charles I. The Resolve denounced the British actions as a “hostile invasion.” It called for the Reverend Thomas Gwatkin to preach a fitting sermon. The reverend declined the invitation, not eager to have his church drawn into what he viewed as a political dispute. The royal governor, the Earl of Dunmore, reacted by dissolving the Burgesses. Lee and other radicals thereupon gathered at Raleigh’s Tavern in Williamsburg on May 27. They adopted a more truculent resolution, which declared that “an attack made on one of our sister Colonies, to compel submission to arbitrary taxes, is an attack made on all British America.”

Lee’s visibility in the colony’s political controversies paid off, in that he was selected by Virginia as a delegate to the First Continental Congress and, the following year, to the Second Continental Congress. It was in that latter capacity that Lee made his name. In May, 1776, the Virginia convention instructed its delegates to vote for independence. On June 7, Lee introduced his “resolution for independancy [sic].” The motion’s first section, adopted from the speech by Edmund Pendleton to the Virginia convention, declared:

“That these United Colonies are, and of right ought to be, free and independent States, that they are absolved from all allegiance to the British Crown, and that all political connection between them and the State of Great Britain is, and ought to be, totally dissolved.”

Debate on the motion was delayed until July due to the inability or unwillingness of some delegations to consider the issue.

In the meantime, colonies were declaring themselves independent and adopting constitutions of their own. With events threatening to bypass Congress, a committee was selected to draft a declaration of independence. Lee was unavailable. He had hurried back to Virginia, apparently to attend to his wife who had fallen ill. That absence prevented him from participating in the debate on his resolution on July 2. He returned in time to sign the Declaration of Independence.

Lee’s terms in Congress demanded much from him. He was what today would be described as a “workaholic.” On several occasions, this led to illness and absence due to exhaustion. He served in numerous capacities, including as chairman of the committee charged with drafting a plan of union, though most of the work on that project was done by John Dickinson as the principal drafter of the eventual “Articles of Confederation.” Lee was one of sixteen delegates who signed both the Declaration and the Articles.

From 1780 to 1782, Lee put his position in Congress on hold to tend to political matters in Virginia. The state was in relatively sound financial shape and keeping up with its war debt obligations. Lee opposed making the highly-depreciated Continental Currency legal tender. He also took the unpopular position of denouncing the law to cancel debts owed by Virginians to British creditors. “Better to be honest slaves of Great Britain than to become dishonest freemen,” he declared.

On the topic of slaves, Lee inherited 50 from his father. Despite that, he had strong anti-slavery sentiments. In 1769, he proposed that a high tax be assessed against importation of slaves, in order to end the overseas slave trade. Some critics grumbled that he did this only to make his own slaves more valuable, the same charge made against those Virginians who supported the provision in the Constitution which ultimately ended the trade after 1808. His pronouncements on the moral evil of slavery continued. It is unclear if Lee ever manumitted his slaves. The charge of hypocrisy is readily leveled at someone like Lee. But this history also demonstrates the difficulty of extricating oneself from an economic system on which one’s livelihood depends.

One pressing problem at the time was the parlous state of Congress’s finances, made even more dire by the looming obligations of the war debt. Lee’s role in stabilizing the financial situation in Virginia added to his stature in Congress. His fellow-delegates elected him their president during the 1784-1785 session. He was the sixth to serve as “President of the United States in Congress Assembled” after approval of the Articles of Confederation in 1781. Despite the impressive-sounding title as used in official documents, the position was mainly ceremonial. However, a skillful politician such as Lee could use it to guide the debates and influence the agenda of Congress.

Lee opposed proposals to give Congress a power to tax, especially import duties. He also believed that borrowing from foreign lenders would corrupt. Instead, he aimed to discharge the war debts and fund Congress’s needs through sales of land in the newly-acquired western territory. With the end of British anti-migration policy, millions of acres were potentially open to settlers. He hoped that the Western Land Ordinance of 1785, with its price of $1 per acre of surveyed land would raise the needed cash. Alas, poor sales soon dashed those hopes. Indian tribes and the pervasive problem of squatters who simply occupied the land mindful of the government’s lack of funds for troops to evict them contributed to uncertainty of land titles. With Lee’s prodding, Congress belatedly adopted the Land Ordinance of 1787, better known as the Northwest Ordinance. This law, reenacted by the Congress under the new Constitution of 1787, provided some needed stability, but it came too late to benefit the Confederation.

When Virginia accepted the call in Alexander Hamilton’s report on the Annapolis Convention of 1786 to send delegates to a convention to meet the following May in Philadelphia to consider proposals to amend the Articles of Confederation, Lee was elected as one of those delegates. Lee declined the position, as did his political ally Patrick Henry and a number of prominent men in other states. Henry summed up the views of many non-attendees. When asked why he did not accept, Henry, known as a man of many words over anything or nothing, stepped out of character and declared simply, “I smelt a rat in Philadelphia, tending toward the monarchy.”

Once the draft Constitution was approved, the Philadelphia convention sent it to the states for ratification as set out in Article VII. They also sent a copy to the Confederation Congress, with a letter that requested that body to forward its approval of the proposed charter to the states. Lee now attempted a gambit, innocuous on its face, which he hoped would nevertheless undo the convention’s plan. He moved to have Congress add amendments before sending the Constitution to the states. Taking clues from his friend George Mason, the most influential delegate at the convention who refused to support its creation, Lee submitted proposals on free exercise of religion, a free press, jury trials, searches and seizures, frequent elections, ban on a peace-time army, excessive fines, among others. These particulars echoed portions of Mason’s Declaration of Rights which he had drafted for Virginia in 1776.

Lee’s strategy was that the states should ratify either the original version, or a revised one with any or all of the proposed amendments. If no version gained approval, a second convention could be called which would draft a new document that took account of the states’ recommendations. One facet of this “poison pill” approach alone would have doomed the Constitution’s approval. As drafted, assent of only nine states’ conventions was needed for the new charter to go into effect among those states. For anything proposed by Congress, the Articles of Confederation required unanimous agreement by the state legislatures. Since support of a bill of rights, which the Constitution lacked, was a popular political position, it was likely that enough states would vote for proposed amendments to that end. In that event, the original Constitution would fall short of the nine states requirement, and Lee’s approach would require a second convention. It was feared—or hoped, depending on one’s view of the proposed system—that this would doom the prospect of change to the structure of governing the United States.

The pro-Constitution faction had the majority among delegations to Congress. Lee’s clever maneuver was defeated. However, rather than conveying the “Report of the convention” to the states with its overt approval, Congress sent it on September 28, 1787, without taking a position.

In the Virginia ratifying convention, Henry and others continued on the path Lee had laid out, of seeking to derail the process and to force a second convention. Like many other Americans, Lee was not opposed to all of the new proposals, but believed that, on the whole, the general government was given too much power. The new Constitution was a break with the revolutionary ethos that had sparked the drive to independence and was alien to the republicanism which was a part of that ethos. The opponents’ conception of unitary sovereignty clashed with that of the Constitution’s advocates who believed, such as Madison asserted in The Federalist, that the new government would be partly national and partly confederate. To the former, such an imperium in imperio was a mirage. Sooner or later, the larger entity would obliterate the smaller, the general government would subdue the states. Likewise, in the entirety of human history, no political entity the size of the United States had ever survived in republican form. To the classic republicans rooted in the struggle for independence who now were organizing to oppose the Constitution, the very existence of an independent central government threatened the republic. Of course, if any version of such a government were to be instituted, a bill of rights was indispensable.

The writings of an influential Antifederalist essayist, The Federal Farmer, have often been attributed to Lee. As with the works of William Shakespeare, historians debate these essays’ authorship. The claim that Lee wrote them was first made nearly a century after these events. No contemporary sources, including Lee or his political associates, mention him as the writer. The essays, presented in the form of letters addressed to The Republican, were collected and published in New York in late 1787 to influence the state ratifying convention. The Republican is Governor George Clinton, a committed Antifederalist who was the presiding officer of that convention and a powerful politician who remains the longest-serving governor in American history. Clinton himself is believed to have authored a number of important essays under the pseudonym Cato. Both Federal Farmer and Cato were so persuasive that they alarmed the Constitution’s supporters to the point that The Federalist addresses them by name to dispute their assertions.

Lee was in New York attending Congress during this time, and he was a prolific writer of letters, so it is possible he composed these, as well. Moreover, the arguments in the essays paralleled Lee’s objections about the threat the new system posed to the states and to American republicanism. The similarity extended even to the specific point that Lee made that the composition of the House of Representatives was far too small to represent adequately the variety of interests and classes across the United States.

However, Lee never wrote anything as systematic and analytically comprehensive as the Federal Farmer letters. What he intended for public consumption, such as his resolves, motions, and proclamations were comparatively brief and, like his rhetoric, to the point and designed to appeal to emotions. John Adams wrote during the First Continental Congress, “The great orators here are Lee, Hooper and Patrick Henry.” St. George Tucker, a renowned attorney from Virginia and authority in American constitutional law, described Lee’s speeches: “The fine powers of language united with that harmonious voice, made me sometimes think that I was listening to some being inspired with more than mortal powers of embellishment.” Historian Gordon Wood has contrasted Lee’s passionate style with the moderate tone and thoughtfulness of the Federal Farmer letters and asserts that Lee did not write them.

If not Lee, who? More recent scholarship has claimed that Melancton Smith, a prominent New York lawyer who attended the state convention, wrote these essays. Smith eventually voted for the Constitution in the narrow 30-27 final vote, which might explain the essays’ moderation in their critiques of the Constitution. His background as a lawyer might account for the close analysis of the document’s provisions. That said, the case for Smith and against Lee is also based on conjecture.

Once the Constitution was adopted, Lee, like Patrick Henry, made his peace. Henry used his influence in the state legislature to take the “unusual liberty” of nominating Lee to become one of Virginia’s two initial United States Senators. In that position Lee supported the Bill of Rights, although he considered its language a weak version of what it was supposed to achieve. Soon, however, Lee parted ways with his old political ally Henry and sided with Hamilton’s expansionist vision of the national government and its financial and commercial policies.

Lee died, age 62, on June 19, 1794. Thus ended the life of a man whose advice still commands attention: “The first maxim of a man who loves liberty, should be never to grant to rulers an atom of power that is not most clearly and indispensably necessary for the safety and well being of society.”

Joerg W. Knipprath is an expert on constitutional law, and member of the Southwestern Law School faculty, Professor Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow. Read more from Professor Knipprath at: http://www.tokenconservative.com/.

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