Essays on the Constitution of the United States Part 13

If a power to promote the best interest of the people, necessarily implies a power to do evil, we must never expect such a const.i.tution in theory as will not be open in some respects to the objections of carping and jealous men. The new Const.i.tution is perhaps more cautiously guarded than any other in the world, and at the same time creates a power which will be able to protect the subject; yet doubtless objections may be raised, and so they may against the const.i.tution of each state in the union. In Connecticut the laws are the const.i.tution by which the people are governed, and it is generally allowed to be the most free and popular in the thirteen states. As this is the state in which I live and write, I will instance several things which with a proper coloring and a spice of jealousy appear most dangerous to the natural rights of the people, yet they have never been dangerous in practice, and are absolutely necessary at some times to prevent much greater evil.

The right of taxation or of a.s.sessing and collecting money out of the people, is one of those powers which may prove dangerous in the exercise, and which by the new const.i.tution is vested solely in representatives chosen for that purpose. But by the laws of Connecticut, this power called so dangerous may be exercised by selectmen of each town, and this not only without their consent but against their express will, where they have considered the matter, and judge it improper. This power they may exercise when and so often as they judge necessary! Three justices of the quorum may tax a whole county in such sums as they think meet, against the express will of all the inhabitants. Here we see the dangerous power of taxation vested in the justices of the quorum and even in selectmen, men whom we should suppose as likely to err and tyrannize as the representatives of three millions of people in solemn deliberation, and amenable to the vengeance of their const.i.tuents, for every act of injustice. The same town officers have equal authority where personal liberty is concerned, in a matter more sacred than all the property in the world, the disposal of your children. When they judge fit, with the advice of one justice of the peace, they may tear them from the parent's embrace, and place them under the absolute control of such masters as they please; and if the parent's reluctance excites their resentment, they may place him and his property under overseers. Fifty other instances fearfull as these might be collected from the laws of the state, but I will not repeat them lest my readers should be alarmed where there is no danger. These regulations are doubtless best; we have seen much good and no evil come from them. I adduce these instances to shew, that the most free const.i.tution when made the subject of criticism may be exhibited in frightful colors, and such attempts we must expect against that now proposed. If, my countrymen, you wait for a const.i.tution which absolutely bars a power of doing evil, you must wait long, and when obtained it will have no power of doing good. I allow you are oppressed, but not from the quarter that jealous and wrongheaded men would insinuate. You are oppressed by the men, who to serve their own purposes would prefer the shadow of government to the reality. You are oppressed for the want of power which can protect commerce, encourage business, and create a ready demand for the productions of your farms. You are become poor; oppression continued will make wise men mad. The landholders and farmers have long borne this oppression, we have been patient and groaned in secret, but can promise for ourselves no longer; unless relieved, madness may excite us to actions we now dread.

A LANDHOLDER.

The Landholder, IV.

The Connecticut Courant, (Number 1192)

MONDAY, NOVEMBER 26, 1787.

_Remarks on the objections made by the Hon. Elbridge Gerry, to the new Const.i.tution._(30)

TO THE LANDHOLDERS AND FARMERS.

To censure a man for an opinion in which he declares himself honest, and in a matter of which all men have a right to judge, is highly injurious; at the same time, when the opinions even of honorable men are submitted to the people, a tribunal before which the meanest citizen hath a right to speak, they must abide the consequence of public stricture. We are ignorant whether the honorable gentlemen possesses state dignities or emoluments which will be endangered by the new system, or hath motives of personality to prejudice his mind and throw him into the opposition; or if it be so, do not wish to evade the objections by such a charge. As a member of the General Convention, and deputy from a great state, this honorable person hath a right to speak and be heard. It gives pleasure to know the extent of what may be objected or even surmised, by one whose situation was the best to espy danger, and mark the defective parts of the const.i.tution if any such there be. Mr. Gerry, tho' in the character of an objector, tells us "he was fully convinced that to preserve the union an efficient government was indispensibly necessary, and that it would be difficult to make proper amendments to the old articles of confederation,"

therefore by his own confession there was an indispensible necessity of a system, in many particulars entirely new. He tells us further "that if the people reject this altogether, anarchy may ensue," and what situation can be pictured more awful than a total dissolution of all government? Many defects in the const.i.tution had better be risked than to fall back into that state of rude violence, in which every man's hand is against his neighbor, and there is no judge to decide between them, or power of justice to control. But we hope to shew that there are no alarming defects in the proposed structure of government, and that while a public force is created, the liberties of the people have every possible guard.

Several of the honourable Gentlemen's objections are expressed in such vague and indecisive terms, that they rather deserve the name of insinuations, and we know not against what particular parts of the system they are pointed. Others are explicit, and if real deserve serious attention. His first objection is "that there is no adequate provision for representation of the people." This must have respect either to the number of representatives, or to the manner in which they are chosen. The proper number to const.i.tute a safe representation is a matter of judgment, in which honest and wise men often disagree. Were it possible for all the people to convene and give their personal a.s.sent, some would think this the best mode of making laws, but in the present instance it is impracticable. In towns and smaller districts where all the people may meet conveniently and without expense this is doubtless preferable. The state representation is composed of one or two from every town and district, which composes an a.s.sembly not so large as to be unwieldy in acting, nor so expensive as to burden the people. But if so numerous a representation were made from every part of the United States, with our present population, the new Congress would consist of three thousand men; with the population of Great Britain, to which we may arrive in half a century, of ten thousand; and with the population of France, which we shall probably equal in a century and a half, of thirty thousand.

Such a body of men might be an army to defend the country in case of foreign invasion, but not a legislature, and the expense to support them would equal the whole national revenue. By the proposed const.i.tution the new Congress will consist of nearly one hundred men; when our population is equal to Great Britain of three hundred men, and when equal to France of nine hundred. Plenty of Lawgivers! why any gentlemen should wish for more is not conceivable.

Considering the immense territory of America, the objection with many will be on the other side; that when the whole is populated it will const.i.tute a legislature unmanageable by its numbers. Convention foreseeing this danger, have so worded the article, that if the people should at any future time judge necessary, they may diminish the representation.

As the state legislatures have to regulate the internal policy of every town and neighborhood, it is convenient enough to have one or two men, particularly acquainted with every small district of country, its interests, parties and pa.s.sions. But the federal legislature can take cognizance only of national questions and interests which in their very nature are general, and for this purpose five or ten honest and wise men chosen from each state; men who have had previous experience in state legislation, will be more competent than an hundred. From an acquaintance with their own state legislatures, they will always know the sense of the people at large, and the expense of supporting such a number will be as much as we ought to incur.

If the Hon. gentleman, in saying "there is not adequate provision for the representation of the people," refers to the manner of choosing them, a reply to this is naturally blended with its second objection, that "they would have no security for the right of election." It is impossible to conceive what greater security can be given, by any form of words, than we here find.

The federal representatives are to be chosen by the votes of the people.

Every freeman is an elector. The same qualification which enables you to vote for state representatives, gives you a federal voice. It is a right you cannot lose, unless you first annihilate the state legislature, and declare yourself incapable of electing, which is a degree of infatuation improbable as a second deluge to drown the world.

Your own a.s.semblies are to regulate the formalities of this choice, and unless they betray you, you cannot be betrayed. But perhaps it may be said, Congress have a power to control this formality as to the time and places of electing, and we allow they have: but this objection which at first looks frightful was designed as a guard to the privileges of the electors. Even state a.s.semblies may have their fits of madness and pa.s.sion, this tho' not probable is possible.

We have a recent instance in the state of Rhode Island, where a desperate junto are governing contrary to the sense of a great majority of the people. It may be the case in any other state, and should it happen, that the ignorance or rashness of the state a.s.semblies, in a fit of jealousy, should deny you this sacred right, the deliberate justice of the continent is enabled to interpose and restore you a federal voice. This right is therefore more inviolably guarded than it can be by the government of your state, for it is guaranteed by the whole empire. Tho' out of the order in which the Hon. gentleman proposes his doubts, I wish here to notice some questions which he makes. The proposed plan among others he tells us involves these questions: "Whether the several state governments, shall be so altered as in effect to be dissolved? Whether in lieu of the state governments the national const.i.tution now proposed shall be subst.i.tuted?"

I wish for sagacity to see on what these questions are founded. No alteration in the state governments is even now proposed, but they are to remain identically the same that they are now. Some powers are to be given into the hands of your federal representatives, but these powers are all in their nature general, such as must be exercised by the whole or not at all, and such as are absolutely necessary; or your commerce, the price of your commodities, your riches and your safety, will be the sport of every foreign adventurer. Why are we told of the dissolution of our state governments, when by this plan they are indissolubly linked? They must stand or fall, live or die together. The national legislature consists of two houses, a senate and house of representatives. The senate is to be chosen by the a.s.semblies of the particular states; so that if the a.s.semblies are dissolved, the senate dissolves with them. The national representatives are to be chosen by the same electors, and under the same qualifications, as choose the state representatives; so that if the state representation be dissolved, the national representation is gone of course.

State representation and government is the very basis of the congressional power proposed. This is the most valuable link in the chain of connection, and affords double security for the rights of the people. Your liberties are pledged to you by your own state, and by the power of the whole empire. You have a voice in the government of your own state, and in the government of the whole. Were not the gentleman on whom the remarks are made very honorable, and by the eminence of office raised above a suspicion of cunning, we should think he had, in this instance, insinuated merely to alarm the fears of the people. His other objections will be mentioned in some future number of the:

LANDHOLDER.

The Landholder, V.

The Connecticut Courant, (Number 1193)

MONDAY, DECEMBER 3, 1787.

_Continuation of Remarks on the Hon. Elbridge Gerry's Objections to the new Const.i.tution._

TO THE LANDHOLDERS AND FARMERS.

It is unhappy both for Mr. Gerry and the public, that he was not more explicit in publishing his doubts. Certainly this must have been from inattention, and not thro' any want of ability; as all his honorable friends allow him to be a politician even of metaphysical nicety.

In a question of such magnitude, every candid man will consent to discuss objections, which are stated with perspicuity; but to follow the honorable writer into the field of conjecture, and combat phantoms, uncertain whether or not they are the same which terrified him, is a task too laborious for patience itself. Such must be the writer's situation in replying to the next objection, "that some of the powers of the legislature are ambiguous, and others indefinite and dangerous." There are many powers given to the legislature; if any of them are dangerous, the people have a right to know which they are, and how they will operate, that we may guard against the evil. The charge of being ambiguous and indefinite may be brought against every human composition, and necessarily arises from the imperfection of language. Perhaps no two men will express the same sentiment in the same manner, and by the same words; neither do they connect precisely the same ideas with the same words. From hence arises an ambiguity in all language, with which the most perspicuous and precise writers are in a degree chargeable. Some persons never attain to the happy art of perspicuous expression, and it is equally true that some persons thro' a mental defect of their own, will judge the most correct and certain language of others to be indefinite and ambiguous. As Mr.

Gerry is the first and only man who has charged the new Const.i.tution with ambiguousness, is there not room to suspect that his understanding is different from other men's, and whether it be better or worse, the Landholder presumes not to decide.

It is an excellency of this Const.i.tution that it is expressed with brevity, and in the plain, common language of mankind.

Had it swelled into the magnitude of a volume, there would have been more room to entrap the unwary, and the people who are to be its judges would have had neither patience nor opportunity to understand it. Had it been expressed in the scientific language of law, or those terms of art which we often find in political compositions, to the honorable gentleman it might have appeared more definite and less ambiguous; but to the great body of the people altogether obscure, and to accept it they must leap into the dark.

The people to whom in this case the great appeal is made, best understand those compositions which are concise and in their own language. Had the powers given to the legislature been loaded with provisos, and such qualifications as a lawyer who is so cunning as even to suspect himself, would probably have intermingled; there would have been much more of a deception in the case. It would not be difficult to shew that every power given to the legislature is necessary for national defence and justice, and to protect the rights of the people who create this authority for their own advantage; but to consider each one particularly would exceed the limits of my design.

I shall, therefore, select two powers given them, which have been more abused to oppress and enslave mankind, than all the others with which this or any legislature on earth is cloathed-the right of taxation or of collecting money from the people; and of raising and supporting armies.

These are the powers which enable tyrants to scourge their subjects; and they are also the very powers by which good rulers protect the people against the violence of wicked and overgrown citizens, and invasion by the rest of mankind. Judge candidly what a wretched figure the American empire will exhibit in the eye of other nations, without a power to array and support a military force for its own protection. Half a dozen regiments from Canada or New-Spain, might lay whole provinces under contribution, while we were disputing who has power to pay and raise an army. This power is also necessary to restrain the violence of seditious citizens. A concurrence of circ.u.mstances frequently enables a few disaffected persons to make great revolutions, unless government is vested with the most extensive powers of self-defence. Had Shays, the malcontent of Ma.s.sachusetts, been a man of genius, fortune and address, he might have conquered that state, and by the aid of a little sedition in the other states, and an army proud by victory, become the monarch and tyrant of America. Fortunately he was checked; but should jealousy prevent vesting these powers in the hands of men chosen by yourselves, and who are under every const.i.tutional restraint, accident or design will in all probability raise up some future Shays to be the tyrant of your children.

A people cannot long retain their freedom, whose government is incapable of protecting them.

The power of collecting money from the people, is not to be rejected because it has sometimes been oppressive.

Public credit is as necessary for the prosperity of a nation as private credit is for the support and wealth of a family.

We are this day many millions poorer than we should have been had a well arranged government taken place at the conclusion of the war. All have shared in this loss, but none in so great proportion as the landholders and farmers.

The public must be served in various departments. Who will serve them without a meet recompense? Who will go to war and pay the charges of his own warfare? What man will any longer take empty promises of reward from those, who have no const.i.tutional power to reward or means of fulfilling them? Promises have done their utmost, more than they ever did in any other age or country. The delusive bubble has broke, and in breaking has beggared thousands, and left you an unprotected people; numerous without force, and full of resources but unable to command one of them. For these purposes there must be a general treasury, with a power to replenish it as often as necessity requires. And where can this power be more safely vested, than in the common legislature, men chosen by yourselves from every part of the union, and who have the confidence of their several states; men who must share in the burdens they impose on others; men who by a seat in Congress are incapable of holding any office under the states, which might prove a temptation to spoil the people for increasing their own income?

We find another objection to be "that the executive is blended with and will have an undue influence over the legislature." On examination you will find this objection unfounded. The supreme executive is vested in a President of the United States; every bill that hath pa.s.sed the senate and representatives, must be presented to the president, and if he approve it becomes law. If he disapproves, but makes no return within ten days, it still becomes law. If he returns the bill with his objections, the senate and representatives consider it a second time, and if two-thirds of them adhere to the first resolution it becomes law notwithstanding the president's dissent. We allow the president hath an influence, tho'

strictly speaking he hath not a legislative voice; and think such an influence must be salutary. In the president all the executive departments meet, and he will be a channel of communication between those who make and those who execute the laws. Many things look fair in theory which in practice are impossible. If lawmakers, in every instance, before their final decree, had the opinion of those who are to execute them, it would prevent a thousand absurd ordinances, which are solemnly made, only to be repealed, and lessen the dignity of legislation in the eyes of mankind.

The vice-president is not an executive officer while the president is in discharge of his duty, and when he is called to preside his legislative voice ceases. In no other instance is there even the shadow of blending or influence between the two departments.

We are further told "that the judicial departments, or those courts of law, to be inst.i.tuted by Congress, will be oppressive." We allow it to be possible, but from whence arises the probability of this event? State judges may be corrupt, and juries may be prejudiced and ignorant, but these instances are not common; and why shall we suppose they will be more frequent under a national appointment and influence, when the eyes of a whole empire are watching for their detection?

Their courts are not to intermeddle with your internal policy, and will have cognizance only of those subjects which are placed under the control of a national legislature. It is as necessary there should be courts of law and executive officers, to carry into effect the laws of the nation, as that there be courts and officers to execute the laws made by your state a.s.semblies. There are many reasons why their decisions ought not to be left to courts inst.i.tuted by particular states.

A perfect uniformity must be observed thro' the whole union, or jealousy and unrighteousness will take place; and for a uniformity one judiciary must pervade the whole. The inhabitants of one state will not have confidence in judges appointed by the legislature of another state, in which they have no voice. Judges who owe their appointment and support to one state, will be unduly influenced, and not reverence the laws of the union. It will at any time be in the power of the smallest state, by interdicting their own judiciary, to defeat the measures, defraud the revenue, and annul the most sacred laws of the whole empire. A legislative power, without a judicial and executive under their own control, is in the nature of things a nullity. Congress under the old confederation had power to ordain and resolve, but having no judicial or executive of their own, their most solemn resolves were totally disregarded. The little state of Rhode Island was purposely left by Heaven to its present madness, for a general conviction in the other states, that such a system as is now proposed is our only preservation from ruin. What respect can any one think would be paid to national laws, by judicial and executive officers who are amenable only to the present a.s.sembly of Rhode Island? The rebellion of Shays and the present measures of Rhode Island ought to convince us that a national legislature, judiciary and executive, must be united, or the whole is but a name; and that we must have these, or soon be hewers of wood and drawers of water for all other people.

In all these matters and powers given to Congress, their ordinances must be the supreme law of the land, or they are nothing. They must have authority to enact any laws for executing their own powers, or those powers will be evaded by the artful and unjust, and the dishonest trader will defraud the public of its revenue. As we have every reason to think this system was honestly planned, we ought to hope it may be honestly and justly executed. I am sensible that speculation is always liable to error.

If there be any capital defects in this const.i.tution, it is most probable that experience alone will discover them. Provision is made for an alteration if, on trial, it be found necessary.

When your children see the candor and greatness of mind, with which you lay the foundation, they will be inspired with equity to furnish and adorn the superstructure.