« ПретходнаНастави »
dual, by whatever name or official title he may be called, with a negative 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 kings 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 counties, to elect members to meet and serve in Parliament* subject to bis controul; and the custom still continues with a king of England calling the Parliament my Parliament; that is, a Parliament originating from his authority, and over which he holds controul 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 affect or diminish what they claim to be their hereditary or family rights and prerogatives, derived originally from the conquest of the country.† 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
* Parliament is a French word brought into England by the Normans. It comes from the French verb parler-to speak.
† When a king of England (for they are not an English race of kings) negatives an act passed by the Parliament, he does it in the Norman or French language, which was the language of the conquest, the literal translation of which is, the king will advise himself of it. It is the only instance of a king of England speaking French in Parliament; and shews the origin of the negative.
William of Normandy subjugated England, and 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 law-suits. If the people choose to have arbitration instead of law-suits, 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 must have been reat 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 inconsistencies 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 expence and tediousness of courts of law, has brought its existence to a crisis.
Arbitration is of more importance to society than courts of law, and ought to bave 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 shews they have no opinion of it for themselves.
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 become a species of prostitution that ought to be controuled. 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 expence 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 one of them that the public, as a public, have any concern with.
The criminal cases, being breaches of the peace, are consequently under the cognizance of the government of the State, and the expence of supporting the courts thereof belong 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 in the matter is to establisb 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 the other. It is justice and good judgement that preside by right in a court of arbitration. It is forms, quoted precedents, and contrivances for delay and expence 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 expence 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 expence 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 individuals, ought to have outweighed all such considerations. The present administration of the United States has struck off a long list of useless offices 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.
A great part of the people of Pennsylvannia make a principle of not going to law, and others avoid it from prudential reasons; yet all those people are taxed to support a judiciary to which they never resort, which is as inconsistent and unjust as it is in England to make the Quakers pay
tythes to support the Episcopal church. Arbitration will put an end to this imposition.
Another complaint against the present Constitution of Pennsylvania is the great quantity of patronage annexed to the office of Governor.
Patronage has a natural tendency to increase the public expence by the temptation it leads to (useless in the hands of a wise man like Franklin) multiply offices within the gift or appointment of that patronage. Jobn Adams, in his administration, went upon the plan of increasing offices and officers. He expected by thus increasing his patronage, and making numerous appointments, that he should attach a numerous train of adherents to him who would support his measures and his future election. He copied this from the corrupt system of England; and he closed his midnight labours by appointing sixteen new unnecessary judges, at an expence to the public of thirty-two thousand dollars annually. John counted only on one side of the case. He forgot that where there was one man to be benefited by an appointment, that all the rest had to pay the cost of it; and that by attaching the one to him by patronage, he run the risk of losing the many by disgust, and such was the consequence; and such will ever be the consequence in a free country where men reason for themselves and from themselves, and not from the dictates of others.
The less quantity of patronage a man is incumbered with, the safer he stands. He cannot please every body by the use of it; and he will haye to refuse, and consequently to displease, a greater number than he can please. Mr. Jefferson gained more friends by dismissing a long train of officers, than John Adams did by appointing them. Like a wise man Mr. Jefferson dismantled himself of patronage.
The Constitution of New York, though like all the rest it has its defects, arising from want of experience in the representative system of government at the time it was formed, has provided much better, in this case, than the Constitution of Pennsylvania has done. The appointments in New York are made by a council of appointment composed of the Governor and a certain number of members of the Senate taken from different parts of the State. By this means they have among them a personal knowledge of whoever they appoint. The governor has one vote but no negativc. I do not hear complaints of the abuse of this kind of patronage.
The Constitution of Pennsylvania, instead of being an improvement in the representative system of government, is a