As I resided in the capital of your State, Philadelphia, in the time that tried men’s souls, and all my political writings, during the Revolutionary War, were written in that city, it seems natural for me to look back to the place of my political and literary birth, and feel an interest for its happiness. Removed as I now am from the place and detached from everything of personal party, I address this token to you on the ground of principle and in remembrance of former times and friendships.
The subject now before you is the call of a Convention to examine and, if necessary, to reform the Constitution of the State; or to speak in the correct language of constitutional order, to propose written articles of reform to be accepted or rejected by the people by vote, in the room of those now existing that shall be judged improper or defective.
There cannot be, on the ground of reason, any objection to this; because if no reform or alteration is necessary the sense of the country will [begin page 268] permit none to be made; and, if necessary, it will be made because it ought to be made. Until, therefore, the sense of the country can be collected and made known by a convention elected for that purpose, all opposition to the call of a convention not only passes for nothing, but serves to create a suspicion that the opposers are conscious that the Constitution will not bear an examination.
The Constitution formed by the Convention of 1776, of which Benjamin Franklin (the greatest and most useful man America has yet produced), was president, had many good points in it which were overthrown by the Convention of 1790, under the pretence of making the Constitution conformable to that of the United States; as if the forms and periods of election for a territory extensive as that of the United States is could become a rule for a single state.
The principle defect in the Constitution of 1776 was that it was subject, in practice, to too much precipitancy; but the groundwork of that Constitution was good. The present Constitution appears to me to be clogged with inconsistencies of a hazardous tendency, as a supposed remedy against precipitancy that might not happen. Investing any individual, by whatever [begin page 269] name or official title he may be called, with a negative power over the formation of the laws, is copied from the English Government, without ever perceiving the inconsistency and absurdity of it, when applied to the representative system, or understanding the origin of it in England.
The present form of government in England and all those things called prerogatives of the Crown, of which this negative power is one, was established by conquest, not by compact. Their origin was the conquest of England by the Normans, under William of Normandy, surnamed the Conqueror, in 1066, and the genealogy of its king takes its date from him. He is the first of the list.
There is no historical certainty of the time when parliaments began; but be the time when it may, they began by what are called grants or charters from the Norman Conqueror, or his successors, to certain towns and to countries, to elect members to meet and serve in Parliament,1subject to his control; and the custom still continues with the King of England calling the Parliament my Parliament; that is, a Parliament originating from his authority, and over which he [begin page 270] holds control in right of himself, derived from that conquest.
It is from this assumed right, derived from conquest, and not from any constitutional right by compact, that kings of England hold a negative over the formation of the laws, and they hold this for the purpose of preventing any being enacted that might abridge, invade or in any way diminish what they claim to be their hereditary or family rights and prerogatives, derived originally from the conquest of the Country.2 This is the origin of the King of England’s negative. It is a badge of disgrace which his Parliaments are obliged to wear, and to which they are abject enough to submit.
But what has this case to do with a legislature chosen by freemen, on their own authority, in right of themselves? Or in what manner does a person styled Governor or Chief Magistrate resemble a conqueror subjugating a country, as William of Normandy subjugated England, and [begin page 271] saying to it, you shall have no laws but what I please?
The negativing power in a country like America is of that kind that a wise man would not choose to be embarrassed with it, and a man fond of using it will be overthrown by it. It is not difficult to see that when Mr M’Kean negatived the Arbitration Act, he was induced to it as a lawyer, for the benefit of the profession, and not as a magistrate, for the benefit of the people; for it is the office of a chief magistrate to compose differences and prevent lawsuits.
If the people choose to have arbitrations instead of lawsuits why should they not have them. It is a matter that concerns them as individuals, and not as a state or community, and is not a proper case for a governor to interfere in, for it is not a state or government concern: nor does it concern the peace thereof, otherwise than to make it more peaceable by making it less contentious.
This negativing power in the hands of an individual ought to be constitutionally abolished. It is a dangerous power. There is no prescribing rules for the use of it. It is discretionary and arbitrary, and the will and temper of the person at any time possessing it, is its only rule. There [begin page 272] must have been a great want of reflection in the Convention that admitted it into the Constitution. Would that Convention have put the Constitution it had formed (whether good or bad) in the power of any individual to negative? It would not. It would have treated such a proposal with disdain. Why then did it put the legislatures thereafter to be chosen, and all the laws, in that predicament?
Had that Convention, or the law members thereof, known the origin of the negativing power used by kings of England, from whence they copied it, they must have seen the inconsistency of introducing it into an American Constitution. We are not a conquered people; we know no conqueror; and the negativing power used by kings in England is for the defence of the personal and family prerogatives of the successors of the conqueror against the Parliament and the people. What is all this to us? We know no prerogatives but what belong to the sovereignty of ourselves.
At the time this Constitution was formed, there was a great departure from the principles of the Revolution, among those who then assumed the lead, and the country was grossly imposed upon. This accounts for some of the inconsistencies [begin page 273] that are to be found in the present Constitution, among which is the negativing power, inconsistently copied from England. While the exercise of the power over the state remained dormant it remained unnoticed; but the instant it began to be active it began to alarm; and the exercise of it against the rights of the people to settle their private pecuniary differences by the peaceable mode of arbitration, without the interference of lawyers, and the expense of tediousness of courts of law, has bought its existence to a crisis.
Arbitration is of more importance to society than courts of law, and ought to have precedence of them in all cases of pecuniary concerns between individuals or parties of them. Who are better qualified than merchants to settle disputes between merchants, or who better than farmers to settle disputes between farmers? And the same for every other description of men. What do lawyers or courts of law know of these matters? They devote themselves to forms rather than to principles, and the merits of the case become obscure and lost in a labyrinth of verbal perplexities. We do not hear of lawyers going to law with each other, though they could do it cheaper than other people, which shows they have no opinion of it for themselves. [begin page 274]
The principle and rule of arbitration ought to be constitutionally established. The honest sense of a country collected in convention will find out how to do this without the interference of lawyers, who may be hired to advocate any side of any cause; for the case is the practice of the bar is becomes a species of prostitution that ought to be controlled. It lives by encouraging the injustice it pretends to redress.
Courts in which law is practised are of two kinds: The one for criminal cases, the other for civil cases, or cases between individuals respecting property of any kind or the value thereof. I know not what may be the numerical proportion of these two classes of cases to each other; but that the civil cases are far more numerous than the criminal cases, I make no doubt of. Whether they be ten, twenty, thirty or forty to one, or more, I leave to those who live in the state, or in the several counties thereof, to determine.
But be the proportion what it may, the expense to the public of supporting a judiciary for both will be, in some relative degree, according to the number of cases the one bears to the other; yet it is only of them that the public, as a public, have any concern with. The criminal [begin page 275] cases, being breaches of the peace, are consequently under the cognisance of the government of the state, and the expense of supporting the courts thereof belongs to the public, because the preservation of the peace is a public concern.
But civil cases, that is, cases of private property between individuals, belong wholly to the individuals themselves; and all that government has consistently to do with the matter is to establish the process by which the parties concerned shall proceed and bring the matter to decision themselves, by referring it to impartial and judicious men of the neighbourhood, of their own choosing. This is by far the most convenient, as to time and place, and the cheapest method to them; for it is bringing justice home to their own doors, without the chicanery of law and lawyers.
Every case ought to be determined on its own merits, without the farce of what are called precedents, or reports of cases; because in the first place, it often happens that the decision upon the case brought as a precedent is bad, and ought to be shunned instead of imitated; and in the second place, because there are no two cases perfectly alike in all their circumstances, and therefore, the one cannot become a rule of decision for [begin page 276] the other. It is justice and good judgement that preside by right in a court of arbitration. It is forms, quotes precedents and contrivances for delay and expense to the parties, that govern the proceedings of a court of law.
By establishing arbitrations in the room of courts of law for the adjustment of private cases, the public will be eased of a great part of the expense of the present judiciary establishment; for certainly such a host of judges, associate judges, presidents of circuits, clerks and criers of courts, as are at present supported at the public expense, will not then be necessary. There are, perhaps, more of them than there are criminals to try in the space of a year.
Arbitration will lessen the sphere of patronage, and it is not improbable that this was one of the private reasons for negativing the arbitration act; but public economy, and the convenience and ease of the individual, ought to have outweighed all such considerations. The present Administration of the United States has struck off a long list of useless officers, and economised the public expenditure, and it is better to make a precedent of this, than to imitate its forms and long periods of election, which require reform themselves.