Constitutions, Governments, and Charters
June 21, 1805
To the Citizens of Philadelphia
THE people of Pennsylvania are, at this time, earnestly occupied on the subject of calling a convention to revise their State Constitution, and there can be but little doubt that a revision is necessary. It is a Constitution, they say, for the emolument of lawyers.
It has happened that the constitutions of all the states were formed before any experience had been had on the representative system of government; and it would be a miracle in human affairs that mere theory without experience should start into perfection at once. The Constitution of New York was formed so early as the year 1777.
The subject that occupied and engrossed the mind of the public at that time was the Revolutionary War, and the establishment of independence, and in order to give effect to the Declaration of Independence by Congress it was necessary that the states severally should make a practical beginning by establishing state constitutions, and trust to time and experience for improvement. The general defect in all the constitutions is that they are modeled too much after the system, if it can be called a system, of the English Government, which in practise is the most corrupt system in existence, for it is corruption systematized.
An idea also generally prevailed at that time of keeping what were called the legislative, the executive, and the judicial powers distinct and separated from each other. But this idea, whether correct or not, is always contradicted in practise; for where the consent of a governor, or executive, is required to an act before it can become a law, or where he can by his negative prevent an act of the legislature becoming a law, he is effectually a part of the legislature, and possesses full one-half of the powers of a whole legislature.
In this State (New York) this power is vested in a select body of men, composed of the executive, by which is to be understood the governor, the chancellor, and the judges, and called the Council of Revision. This is certainly better than vesting that power in an individual, if it is necessary to invest it anywhere; but is a direct contradiction to the maxim set up, that those powers ought to be kept separate; for here the executive and the judiciary are united into one power, acting legislatively.
When we see maxims that fail in practise, we ought to go to the root, and see if the maxim be true. Now it does not signify how many nominal divisions, and sub-divisions, and classifications we make, for the fact is, there are but two powers in any government, the power of willing or enacting the Laws, and the power of executing them; for what is called the judiciary is a branch of executive power; it executes the laws; and what is called the executive is a superintending power to see that the laws are executed.
Errors in theory are, sooner or later, accompanied with errors in practise; and this leads me to another part of the subject, that of considering a constitution and a government relatively to each other.
A constitution is the act of the people in their original character of sovereignty. A government is a creature of the constitution; it is produced and brought into existence by it.
A constitution defines and limits the powers of the government it creates. It therefore follows, as a natural and also a logical result, that the governmental exercise of any power not authorized by the constitution is an assumed power, and therefore illegal.
There is no article in the Constitution of this State, nor of any of the states, that invests the Government in whole or in part with the power of granting charters or monopolies of any kind; the spirit of the times was then against all such speculation; and therefore the assuming to grant them is unconstitutional, and when obtained by bribery and corruption is criminal. It is also contrary to the intention and principle of annual elections.
Legislatures are elected annually, not only for the purpose of giving the people, in their elective character, the opportunity of showing their approbation of those who have acted right, by re-electing them, and rejecting those who have acted wrong; but also for the purpose of correcting the wrong (where any wrong has been done) of a former legislature. But the very intention, essence, and principle of annual election would be destroyed, if any one legislature, during the year of its authority, had the power to place any of its acts beyond the reach of succeeding legislatures; yet this is always attempted to be done in those acts of a legislature called charters.
Of what use is it to dismiss legislators for having done wrong, if the wrong is to continue on the authority of those who did it? Thus much for things that are wrong. I now come to speak of things that are right, and may be necessary.
Experience shows that matters will occasionally arise, especially in a new country, that will require the exercise of a power differently constituted to that of ordinary legislation; and therefore there ought to be in a constitution an article, defining how that power shall be constituted and exercised. Perhaps the simplest method, that which I am going to mention, is the best; because it is still keeping strictly within the limits of annual elections, makes no new appointments necessary, and creates no additional expense. For example,
That all matters of a different quality to matters of ordinary legislation, such, for instance, as sales or grants of public lands, acts of incorporation, public contracts with individuals or companies beyond a certain amount, shall be proposed in one legislature, and published in the form of a bill, with the yeas and nays, after the second reading, and in that state shall lie over to be taken up by the succeeding legislature; that is, there shall always be, on all such matters, one annual election [which] takes place between the time of bringing in the bill and the time of enacting it into a permanent law.
It is the rapidity with which a self-interested speculation, or a fraud on the public property, can be carried through within the short space of one session, and before the people can be apprised of it, that renders it necessary that a precaution of this kind, unless a better can be devised, should be made an article of the Constitution.
Had such an article been originally in the Constitution, the bribery and Corruption employed to seduce and manage the members of the late Legislature, in the affair of the Merchants’ Bank, could not have taken place. It would not have been worthwhile to bribe men to do what they had not the power of doing. That Legislature could only have proposed, but not have enacted the law; and the election then ensuing would, by discarding the proposers, have negatived the proposal without any further trouble.
This method has the appearance of doubling the value and importance of annual elections. It is only by means of elections, that the mind of the public can be collected to a point on any important subject; and as it is always the interest of a much greater number of people in a country, to have a thing right than to have it wrong, the public sentiment is always worth attending to. It may sometimes err, but never intentionally, and never long.
The experiment of the Merchants’ Bank shows it is impossible to bribe a small body of men, but it is always impossible to bribe a whole nation; and therefore in all legislative matters that by requiring permanency differ from acts of ordinary legislation, which are alterable or repealable at all times, it is safest that they pass through two legislatures, and a general election intervene between. The elections will always bring up the mind of the country on any important proposed bill; and thus the whole state will be its own Council of Revision. It has already passed its veto on the Merchants’ Bank bill, notwithstanding the minor Council of Revision approved it.
New Rochelle, June 21, 1805.
To the Citizens of Pennsylvania on the
Proposal for calling a Convention
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 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 pretense 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 principal defect in the Constitution of 1776 was, that it was subject, in practise, to too much precipitancy; but the ground work 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 a precipitancy that might not happen. Investing any individual, 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 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 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 1aws; 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 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 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 must have been 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 defense 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 expense 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 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.
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 practise of the bar is become 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 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 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 in 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 neighborhood, 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 judgment that preside by right in a court of arbitration. It is forms, quoted 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 individuals, ought to have outweighed all such considerations. The present Administration of the United States has struck off a long list of useless officers, and economized 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 Pennsylvania 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 tithes to support the Episcopal Church. Arbitration will put an end to this imposition.
Another complaint against the Constitution of Pennsylvania, is the great quantity of patronage annexed to the office of governor.
Patronage has a natural tendency to increase the public expense, by the temptation it leads to (unless in the hands of a wise man like Franklin) to multiply offices within the gift or appointment of that patronage. John 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 labors by appointing sixteen new unnecessary judges, at an expense to the public of $32,000 annually. John counted only on one side of the case. He forgot that where there was one man to be benefited by an appointment, all the rest had to pay the cost of it; and that by attaching the one to him by patronage, he ran 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 in-cumbered with the safer he stands. He cannot please everybody by the use of it; and he will have 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 whomsoever they appoint. The Governor has one vote, but no negative. 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 departure from the principles of it. It is a copy in minature of the Government of England, established at the conquest of that country by William of Normandy. I have shown this in part in the case of the king’s negative, and I shall show it more fully as I go on. This brings me to speak of the Senate.
The complaint respecting the Senate is the length of its duration, being four years. The sage Franklin has said, “Where annual election ends, tyranny begins”; and no man was a better judge of human nature than Franklin, nor has any man in our time exceeded him in the principles of honor and honesty.
When a man ceases to be accountable to those who elected him, and with whose public affairs he is intrusted, he ceases to be their representative, and is put in a condition of being their despot. He becomes the representative of nobody but himself. I am elected, says he, for four years; you cannot turn me out, neither am I responsible to you in the meantime. All that you have to do with me is to pay me.
The conduct of the Pennsylvania Senate in 1800, respecting the choice of electors for the Presidency of the United States, shows the impropriety and danger of such an establishment. The manner of choosing electors ought to be fixed in the Constitution, and not be left to the caprice of contention. It is a matter equally as important, and concerns the rights and interests of the people as much as the election of members for the State Legislature, and in some instances much more.
By the conduct of the Senate at that time, the people were deprived of their right of suffrage, and the State lost its consequence in the Union. It had but one vote. The other fourteen were paired off by compromise—seven and seven. If the people had chosen the electors, which they had a right to do, for the electors were to represent them and not to represent the Senate, the State would have had fifteen votes which would have counted.
The Senate is an imitation of what is called the House of Lords in England, and which Chesterfield, who was a member of it, and therefore knew it, calls “the Hospital of Incurables.” The Senate in Pennsylvania is not quite a hospital of incurables, but it took almost four years to bring it to a state of convalescence.
Before we imitate anything, we ought to examine whether it be worth imitating, and had this been done by the Convention at that time, they would have seen that the model from which their mimic imitation was made, was no better than unprofitable and disgraceful lumber.
There was no such thing in England as what is called the House of Lords until the conquest of that country by the Normans, under William the Conqueror, and like the king’s negative over the laws, it is a badge of disgrace upon the country; for it is the effect and evidence of its having been reduced to unconditional submission.
William, having made the conquest, dispossessed the owners of their lands, and divided those lands among the chiefs of the plundering army he brought with him, and from hence arose what is called the House of Lords. Daniel de Foe, in his historical satire entitled The Trueborn Englishman, has very concisely given the origin and character of this House, as follows:
The great invading Norman let them know
What conquerors, in after times, might do;
To every musketeer he brought to town,
He gave the lands that never were his own—
He cantoned out the country to his men,
And every soldier was a denizen;
No parliament his army could disband.
He raised no money, for he paid in land;
The rascals, thus enriched, he called them Lords.
To please their upstart pride with new made words,
And Domesday Book his tyranny records;
Some show the sword, the bow, and some the spear,
Which their great ancestor, forsooth, did wear;
But who the hero was, no man can tell,
Whether a colonel or a corporal;
The silent record blushes to reveal
Their undescended dark original;
Great ancestors of yesterday they show,
And Lords whose fathers were—the Lord knows who?
This is the disgraceful origin of what is called the House of Lords in England, and it still retains some tokens of the plundering baseness of its origin. The swindler Dundas was lately made a lord, and is now called noble lord! Why do they not give him his proper title, and call him noble swindler, for he swindled by wholesale. But it is probable he will escape punishment; for Blackstone, in his commentary on the laws, recites an act of Parliament, passed in 1550, and not since repealed, that extends what is called the benefit of clergy, that is, exemption from punishment for all clerical offenses, to all lords and peers of the realm who could not read, as well as those who could, and also for “the crimes of house-breaking, highway-robbing, horse-stealing, and robbing of churches.”
This is consistent with the original establishment of the House of Lords, for it was originally composed of robbers. This is aristocracy. This is one of the pillars of John Adams’ “stupendous fabric of human invention.” A privilege for house-breaking, highway-robbing, horse-stealing, and robbing of churches! John Adams knew but little of the origin and practise of the Government of England. As to constitution, it has none.
The Pennsylvania Convention of 1776 copied nothing from the English Government. It formed a Constitution on the basis of honesty. The defect as I have already said, of that Constitution was the precipitancy to which the legislatures might be subject in enacting laws. All the members of the Legislature established by that Constitution sat in one chamber, and debated in one body, and this subjected them to precipitancy. This precipitancy was provided against, but not effectually.
The Constitution ordered that the laws, before being finally enacted, should be published for public consideration. But as no given time was fixed for that consideration, nor any means for collecting its effects, nor were there then any public newspapers in the State but what were printed in Philadelphia, the provision did not reach the intention of it, and thus a good and wise intention sank into mere form, which is generally the case when the means are not adequate to the end.
The ground-work, however, of that Constitution was good, and deserves to be resorted to. Everything that Franklin was concerned in producing merits attention. He was the wise and benevolent friend of man. Riches and honors made no alternation in his principles or his manners. The Constitution of 1776 was conformable to the Declaration of Independence and the Declaration of Rights, which the present Constitution is not; for it makes artificial distinctions among men in the right of suffrage, which the principles of equity know nothing of; neither is it consistent with sound policy. We every day see the rich becoming poor, and those who were poor before, becoming rich. Riches, therefore, having no stability, cannot and ought not to be made a criterion of right. Man is man in every condition of life, and the varieties of fortune and misfortune are open to all.
Had the number of representatives in the Legislature established by that Constitution been increased, and instead of their sitting together in one chamber, and debating and voting all at one time, been divided by lot into two equal parts, and sat in separate chambers, the advantage would have been, that one-half, by not being entangled in the first debate, nor having committed itself by voting, would be silently possessed of the arguments, for and against, of the former part, and be in a calm condition to review the whole.
And instead of one chamber, or one house, or by whatever name they may be called, negativing the vote of the other, which is now the case, and which admits of inconsistencies even to absurdities, to have added the votes of both chambers together, and the majority of the whole to be the final decision—there would be reason in this, but there is none in the present mode. The instance that occurred in the Pennsylvania Senate, in the year 1800, on the bill for choosing electors, where a small majority in that House controlled and negatived a large majority in the other House, shows the absurdity of such a division of legislative power.
To know if any theory or position be true or rational, in practise, the method is, to carry it to its greatest extent; if it be not true upon the whole, or be absurd, it is so in all its parts, however small. For instance, if one house consists of 200 members and the other 50, which is about the proportion they are in some of the states, and if a proposed law be carried on the affirmative in the larger house with only one dissenting voice, and be negatived in the smaller house by a majority of 1, the event will be, that 27 control and govern 223, which is too absurd even for argument, and totally inconsistent with the principles of representative government, which know no difference in the value and importance of its members but what arises from their virtues and talents, and not at all from the name of the house or chamber they sit in.
As the practice of a smaller number negativing a greater is not founded in reason, we must look for its origin in some other cause.
The Americans have copied it from England, and it was brought into England by the Norman Conqueror, and is derived from the ancient French practise of voting by orders, of which they counted three; the Clergy (that is, Roman Catholic clergy), the Noblesse (those who had titles), and the Tiers État, or Third Estate, which included all who were not of the two former orders, and which in England are called the Commons or common people, and the house in which they are represented is from thence called the House of Commons.
The case with the Conqueror was, in order to complete and secure the conquest he had made, and hold the country in subjection, he cantoned it out among the chiefs of his army, to whom he gave castles, and whom he dubbed with the title of Lords, as is before shown. These being dependent on the Conqueror, and having a united interest with him, became the defenders of his measures, and the guardians of his assumed prerogative against the people; and when the house called the Common House of Parliament began by grants and charters from the Conqueror and his successors, these lords, claiming to be a distinct order from the Commons, though smaller in number, held a controlling or negative vote over them, and from hence arose the irrational practise of a smaller number negativing a greater.
But what are these things to us, or why should we imitate them? We have but one order in America, and that of the highest degree, the order of sovereignty, and of this order every citizen is a member of his own personal right. Why then have we descended to the base imitation of inferior things? By the event of the Revolution we were put in a condition of thinking originally. The history of past ages shows scarcely anything to us but instances of tyranny and antiquated absurdities. We have copied some of them, and experienced the folly of them.
Another subject of complaint in Pennsylvania is the judiciary, and this appears to require a thorough reform. Arbitration will of itself reform a great part, but much will remain to require amendment. The courts of law still continue to go on, as to practise, in the same manner as when the State was a British colony. They have not yet arrived at the dignity of independence. They hobble along by the stilts and crutches of English and antiquated precedents. Their pleadings are made up of cases and reports from English law books; many of which are tyrannical, and all of them now foreign to us.
Our courts require to be domesticated, for as they are at present conducted, they are a dishonor to the national sovereignty. Every case in America ought to be determined on its own merits, according to American laws, and all reference to foreign adjudications prohibited. The introduction of them into American courts serves only to waste time, embarrass causes, and perplex juries. This reform alone will reduce cases to a narrow compass easily understood.
The terms used in courts of law, in sheriffs’ sales, and on several other occasions, in writs, and other legal proceedings, require reform. Many of those terms are Latin, and others French. The Latin terms were brought into Britain by the Romans, who spoke Latin, and who continued in Britain between 400 and 500 years, from the first invasion of it by Julius Cæsar, fifty-two years before the Christian era. The French terms were brought by the Normans when they conquered England in 1066, as I have before shown, and whose language was French.
These terms being still used in English law courts, show the origin of those courts, and are evidence of the country having been under foreign jurisdiction. But they serve to mystify, by not being generally understood, and therefore they serve the purpose of what is called law, whose business is to perplex; and the courts in England put up with the disgrace of recording foreign jurisdiction and foreign conquest, for the sake of using terms which the clients and the public do not understand, and from thence to create the false belief that law is a learned science, and lawyers are learned men.
The English pleaders, in order to keep up the farce of the profession, always compliment each other, though in contradiction, with the title of my learned brother. Two farmers or two merchants will settle cases by arbitration which lawyers cannot settle by law. Where then is the learning of the law, or what is it good for?
It is here necessary to distinguish between lawyer’s law, and legislative law. Legislative law is the law of the land, enacted by our own legislators, chosen by the people for that purpose. Lawyer’s law is a mass of opinions and decisions, many of them contradictory to each other, which courts and lawyers have instituted themselves, and is chiefly made up of law-reports of cases taken from English law books. The case of every man ought to be tried by the laws of his own country, which he knows, and not by opinions and authorities from other countries, of which he may know nothing. A lawyer, in pleading, will talk several hours about law, but it is lawyer’s law, and not legislative law, that he means.
The whole of the judiciary needs reform. It is very loosely appointed in most of the states, and also in the general government. The case, I suppose, has been, that the judiciary department in a constitution has been left to the lawyers, who might be in a convention, to form, and they have taken care to leave it loose. To say, that a judge shall hold his office during good behavior, is saying nothing; for the term good behavior has neither a legal nor a moral definition.
In the common acceptation of the term, it refers rather to a style of manners than to principles, and may be applied to signify different and contradictory things. A child of good behavior, a judge of good behavior, a soldier of good behavior in the field, and a dancing-master of good behavior in his school, cannot be [of] the same good behavior. What then is the good behavior of a judge?
Many circumstances in the conduct and character of a man may render him unfit to hold the office of a judge, yet not amount to cause of impeachment, which always supposes the commission of some known crime. Judges ought to be held to their duty by continual responsibility, instead of which the Constitution releases them from all responsibility, except by impeachment, from which, by the loose, undefined establishment of the judiciary, there is always a hole to creep out. In annual elections for legislators, every legislator is responsible every year, and no good reason can be given why those intrusted with the execution of the laws should not be as responsible, at stated periods, as those intrusted with the power of enacting them.
Releasing the judges from responsibility, is in imitation of an act of the English Parliament, for rendering the judges so far independent of what is called the Crown, as not to be removable by it. The case is, that judges in England are appointed by the Crown, and are paid out of the King’s civil list, as being his representatives when sitting in court; and in all prosecutions for treason and criminal offenses, the King is the prosecutor.
It was therefore reasonable that the judge, before whom a man was to be tried, should not be dependent, for the tenure of his office, on the will of the prosecutor. But this is no reason that in a government founded on the representative system a judge should not be responsible, and also removable by some constitutional mode, without the tedious and expensive formality of impeachment. We remove or turn out presidents, governors, senators, and representatives, without this formality. Why then are judges, who are generally lawyers, privileged with duration? It is, I suppose, because lawyers have had the formation of the judiciary part of the Constitution.
The term, “contempt of court,” which has caused some agitation in Pennsylvania, is also copied from England; and in that country it means contempt of the King’s authority or prerogative in court, because the judges appear there as his representatives, and are styled in their commissions, when they open a court, “His Majesty the King’s Justices.”
This now undefined thing, called contempt of court, is derived from the Norman Conquest of England, as is shown by the French words used in England, with which proclamation for silence, “on pain of imprisonment,” begins, “Oyez, Oyez, Oyez.” This shows it to be of Norman origin. It is, however, a species of despotism; for contempt of court is now anything a court imperiously pleases to call so, and then it inflicts punishment as by prerogative without trial, as in Passmore’s case, which has a good deal agitated the public mind. This practise requires to be constitutionally regulated, but not by lawyers.
Much yet remains to be done in the improvement of constitutions. The Pennsylvania Convention, when it meets, will be possessed of advantages which those that preceded it were not. The ensuing Convention will have two constitutions before them; that of l776, and that of 1790, each of which continued about fourteen years. I know no material objection against the Constitution of 1776, except that in practise it might be subject to precipitancy; but this can be easily and effectually remedied, as the annexed essay, respecting “Constitutions, Governments, and Charters,” will show. But there have been many and great objections and complaints against the present Constitution and the practise upon it, arising from the improper and unequal distribution it makes of power.
The circumstance that occurred in the Pennsylvania Senate in the year 1800, on the bill passed by the House of Representatives for choosing electors, justifies Franklin’s opinion, which he gave by request of the Convention of 1776, of which he was president, respecting the propriety or impropriety of two houses negativing each other. “It appears to me,” said he, “like putting one horse before a cart and the other behind it, and whipping them both. If the horses are of equal strength, the wheels of the cart, like the wheels of government, will stand still; and if the horses are strong enough, the cart will be torn to pieces.”
It was only the moderation and good sense of the country, which did not engage in the dispute raised by the Senate, that prevented Pennsylvania from being torn to pieces by commotion.
Inequality of rights has been the cause of all the disturbances, insurrections, and civil wars, that ever happened in any country, in any age of mankind. It was the cause of the American Revolution, when the English Parliament sat itself up to bind America in all cases whatsoever, and to reduce her to unconditional submission. It was the cause of the French Revolution; and also of the civil wars in England, in the time of Charles and Cromwell, when the House of Commons voted the House of Lords useless.
The fundamental principle in representative government is, that the majority governs; and as it will be always happening that a man may be in the minority on one question, and in the majority on another, he obeys by the same principle that he rules. But when there are two houses of unequal numbers, and the smaller number negativing the greater, it is the minority that governs, which is contrary to the principle. This was the case in Pennsylvania in 1800.
America has the high honor and happiness of being the first nation that gave to the world the example of forming written constitutions by conventions elected expressly for the purpose, and of improving them by the same procedure, as time and experience shall show necessary. Government in other nations, vainly calling themselves civilized, has been established by bloodshed. Not a drop of blood has been shed in the United States in consequence of establishing constitutions and governments by her own peaceful system. The silent vote, or the simple yea or nay, is more powerful than the bayonet, and decides the strength of numbers without a blow.
I have now, citizens of Pennsylvania, presented you, in good will, with a collection of thoughts and historical references, condensed into a small compass, that they may circulate the more conveniently. They are applicable to the subject before you, that of calling a convention, in the progress and completion of which I wish you success and happiness, and the honor of showing a profitable example to the states around you, and to the world.
Yours, in friendship,
New Rochelle, NT., August, 1805.
 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 shows the origin of the negative.
 The practise of voting by orders in France, whenever the States-General met, continued until the late Revolution. It was the present Abbé Sieyès who made the motion, in what was afterward called the National Assembly, for abolishing the vote by orders, and established the rational practise of deciding by a majority of numbers.
 Hear ye, hear ye, hear ye.