Oliver Ellsworth: Landholder V
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 of 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 malecontent of Massachussetts, 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.