Chapter 12

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 assemblies, 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 constitution now proposed shall be substituted?” 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 assemblies of the particular states; so that if the assemblies 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 Constitution._

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 Constitution 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 Constitution 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 circumstances 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 Massachusetts, 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 constitutional 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 constitutional 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 passed 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 instituted 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 assemblies. There are many reasons why their decisions ought not to be left to courts instituted 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 assembly 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 constitution, 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.

A LANDHOLDER.

The Landholder, VI.

The Connecticut Courant, (Number 1194)

MONDAY, DECEMBER 10, 1787.

He that is first in his own cause seemeth just; but his neighbor cometh and searcheth him.

TO THE LANDHOLDERS AND FARMERS:

The publication of Col. Mason’s(31) reasons for not signing the new Constitution, has extorted some truths that would otherwise in all probability have remained unknown to us all. His reasons, like Mr. Gerry’s, are most of them _ex post facto_, have been revised in New Y——k by R. H. L.(32) and by him brought into their present artful and insidious form. The factious spirit of R. H. L., his implacable hatred to General Washington, his well-known intrigues against him in the late war, his attempts to displace him and give the command of the American army to General Lee, is so recent in your minds it is not necessary to repeat them. He is supposed to be the author of most of the scurrility poured out in the New-York papers against the new constitution.

Just at the close of the Convention, whose proceedings in general were zealously supported by Mr. Mason, he moved for a clause that no navigation act should ever be passed but with the consent of two thirds of both branches;(33) urging that a navigation act might otherwise be passed excluding foreign bottoms from carrying American produce to market, and throw a monopoly of the carrying business into the hands of the eastern states who attend to navigation, and that such an exclusion of foreigners would raise the freight of the produce of the southern states, and for these reasons Mr. Mason would have it in the power of the southern states to prevent any navigation act. This clause, as unequal and partial in the extreme to the southern states, was rejected; because it ought to be left on the same footing with other national concerns, and because no state would have a right to complain of a navigation act which should leave the carrying business equally open to them all. Those who preferred cultivating their lands would do so; those who chose to navigate and become carriers would do that. The loss of this question determined Mr. Mason against the signing the doings of the convention, and is undoubtedly among his reasons as drawn for the southern states; but for the eastern states this reason would not do.(34) It would convince us that Mr. Mason preferred the subjects of every foreign power to the subjects of the United States who live in New-England; even the British who lately ravaged Virginia—that Virginia, my countrymen, where your relations lavished their blood—where your sons laid down their lives to secure to her and us the freedom and independence in which we now rejoice, and which can only be continued to us by a firm, equal and effective union. But do not believe that the people of Virginia are all thus selfish: No, there is a Washington, a Blair, a Madison and a Lee, (not R. H. L.) and I am persuaded there is a majority of liberal, just and federal men in Virginia, who, whatever their sentiments may be of the new constitution, will despise the artful injustice contained in Col. Mason’s reasons as published in the Connecticut papers.

_The President of the United States has no council, etc._, says Col. Mason. His proposed council(35) would have been expensive—they must constantly attend the president, because the president constantly acts. This council must have been composed of great characters, who could not be kept attending without great salaries, and if their opinions were binding on the president his responsibility would be destroyed—if divided, prevent vigor and dispatch—if not binding, they would be no security. The states who have had such councils have found them useless, and complain of them as a dead weight. In others, as in England, the supreme executive advises when and with whom he pleases; if any information is wanted, the heads of the departments who are always at hand can best give it, and from the manner of their appointment will be trustworthy. Secrecy, vigor, dispatch and responsibility, require that the supreme executive should be one person, and unfettered otherwise than by the laws he is to execute.

_There is no Declaration of Rights._ Bills of Rights were introduced in England when its kings claimed all power and jurisdiction, and were considered by them as grants to the people. They are insignificant since government is considered as originating from the people, and all the power government now has is a grant from the people. The constitution they establish with powers limited and defined, becomes now to the legislator and magistrate, what originally a bill of rights was to the people. To have inserted in this constitution a bill of rights for the states, would suppose them to derive and hold their rights from the federal government, when the reverse is the case.

_There is to be no ex post facto laws._ This was moved by Mr. Gerry and supported by Mr. Mason,(36) and is exceptional only as being unnecessary; for it ought not to be presumed that government will be so tyrannical, and opposed to the sense of all modern civilians, as to pass such laws: if they should, they would be void.

_The general legislature is restrained from prohibiting the further importation of slaves for twenty odd years._ But every state legislature may restrain its own subjects; but if they should not, shall we refuse to confederate with them? their consciences are their own, tho’ their wealth and strength are blended with ours. Mr. Mason has himself about three hundred slaves, and lives in Virginia, where it is found by prudent management they can breed and raise slaves faster than they want them for their own use, and could supply the deficiency in Georgia and South Carolina; and perhaps Col. Mason may suppose it more humane to breed than import slaves—those imported having been bred and born free, may not so tamely bear slavery as those born slaves, and from their infancy inured to it; but his objections are not on the side of freedom, nor in compassion to the human race who are slaves, but that such importations render the United States weaker, more vulnerable, and less capable of defence. To this I readily agree, and all good men wish the entire abolition of slavery, as soon as it can take place with safety to the public, and for the lasting good of the present wretched race of slaves. The only possible step that could be taken towards it by the convention was to fix a period after which they should not be imported.

_There is no declaration of any kind to preserve the liberty of the press, etc._ Nor is liberty of conscience, or of matrimony, or of burial of the dead; it is enough that congress have no power to prohibit either, and can have no temptation. This objection is answered in that the states have all the power originally, and congress have only what the states grant them.

_The judiciary of the United States is so constructed and extended as to absorb and destroy the judiciaries of the several states; thereby rendering law as tedious, intricate and expensive, and justice as unattainable by a great part of the community, as in England; and enable the rich to oppress and ruin the poor._ It extends only to objects and cases specified, and wherein the national peace or rights, or the harmony of the states is concerned, and not to controversies between citizens of the same state (except where they claim under grants of different states); and nothing hinders but the supreme federal court may be held in different districts, or in all the states, and that all the cases, except the few in which it has original and not appellate jurisdiction, may in the first instance be had in the state courts and those trials be final except in cases of great magnitude; and the trials be by jury also in most or all the causes which were wont to be tried by them, as congress shall provide, whose appointment is security enough for their attention to the wishes and convenience of the people. In chancery courts juries are never used, nor are they proper in admiralty courts, which proceed not by municipal laws, which they may be supposed to understand, but by the civil law and law of nations.

Mr. Mason deems the president and senate’s power to make treaties dangerous, because they become laws of the land. If the president and his proposed council had this power, or the president alone, as in England and other nations is the case, could the danger be less?—or is the representative branch suited to the making of treaties, which are often intricate, and require much negotiation and secrecy? The senate is objected to as having too much power, and bold unfounded assertions that they will destroy any balance in the government, and accomplish what usurpation they please upon the rights and liberties of the people; to which it may be answered, they are elective and rotative, to the mass of the people; the populace can as well balance the senatorial branch there as in the states, and much better than in England, where the lords are hereditary, and yet the commons preserve their weight; but the state governments on which the constitution is built will forever be security enough to the people against aristocratic usurpations:—The danger of the constitution is not aristocracy or monarchy, but anarchy.