Imatges de pÓgina
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HE fubject of this chapter is sufficiently

distinguished from the subject of the laft, as the motives which actually produce civil obedience, may be, and often are, very different from the reasons which make that obedience a duty.

In order to prove civil obedience to be a moral dury, and an obligation upon the conscience, it hath been usual with many political writers, at the head of whom we find the venerable name of Locke, to ftate a compact between the citizen and the state, as the ground and cause of the relation between them ; which compact, binding the parties for the fame general reason that private contracts do, resolves the duty of submission to civil government into the univerfal obligation of fideliiy in the performance of promises. This compact is twofold :

First, An express compact by the primitive founders of the state, who are supposed to have

convened for the declared purpose of settling the terms of their political union, and a future constitution of government. The whole body is supposed, in the first place, to have unanimously consented to be bound by the resolutions of the majority; that majority, in the next place, to have fixed certain fundamental regulations; and then to have constituted, either in one person, or in an assembly (the rule of succession or appointment being at the fame time determined), a standing legislature, to whom, under these pre-established restrictions, the government of the state was thenceforward committed, and whose laws the several members of the convention were, by their first undertaking, thus personally engaged to obey.—This transaction is sometimes called the social compact, and these supposed original regulations compose what are meant by the conflitution, the fundamental laws of the conftitution ; and form, on one side, the inherent indefeasible prerogative of the crown; and, on the other, the unalienable inprescriptible birthright of the subject.

Secondly, A tacit or implied compact, by all succeeding members of the state, who, by accepting its protection, consent to be bound by its laws; in like manner as whoever voluntarily

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enters into a private society, is understood, without any other or more explicit ftipulation, to promise a conformity with the rules, and obedience to the government of that fociety, as the known conditions upon which he is admitted to a participation of its privileges.

This account of the subject, although specious, and patronized by names the most respectable, appears to labour under the following objections; that it is founded upon a fuppofition false in fact, and leading to dangerous conclufions.

No focial compact, similar to what is here described, was ever made or entered into in reality ; no such original convention of the

people was ever actually held, or in any country could be held, antecedent to the existence of civil government in that country. It is to suppose it possible to call savages out of caves and deserts, to deliberate and vote upon topics, which the experience, and studies, and refinements of civil life alone suggest. Therefore no government in the universe began from this originał. Some imitation of a social compact may have taken place at a revolution. The present age has been witness to a transaction, which bears the nearest resemblance to this political idea,


of any

of which history has preserved the account or memory. I refer to the establishment of the united states of North-America. We saw the people assembled to elect deputies, for the avowed purpose of framing the constitution of a new empire. We saw this deputation of the people deliberating and resolving upon a form of government, erecting a permanent legislature, distributing the functions of sovereignty, establishing and promulgating a code of fundamentai ordinances, which were to be considered by succeeding generations, not merely as laws and acts of the state, but as the very terms and conditions of the confederation; as binding not only upon the subjects and magistrates of the ftate, but as limitations of power, which were to control and regulate the future legislature. Yet even here much was presupposed. In settling the constitution many important parts were presumed to be already settled. The qualifications of the constituents who were admitted to vote in the election of members of congress, as well as the mode of ele&ing the representatives, were taken from the old forms of government. That was wanting from whick every focial union should fet off, and which alone makes the resolutions of the fociety the act of the in


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dividual, the unconstrained consent of all to be bound by the decision of the majority; and

yet, without this previous consent, the revolt, and the regulations which followed it, were compulfory upon diffentients.

But the original compact, we are told, is not proposed as a fakt, but as a fiction, which furnishes a commodious explication of the mutual rights and duties of sovereigns and subjects. In answer to this representation of the matter, we observe, that the original compact, if it be not a fact, is nothing; can confer no actual authority upon laws or magistrates; nor afford

any foundation to rights, which are suppofed to be real and existing. But the truth is, that in the books, and in the apprehension, of those who deduce our civil rights and obligations a pactis, the original convention is appealed to and treated of as a reality. Whenever the disciples of this system speak of the constitution; of the fundamental articles of the constitution; of laws being constitutional or unconstitutional; of inherent, unalienable, inextinguishable rights, either in the prince, or in the people; or indeed of any laws, usages, or civil rights, as transcending the authority of the subsisting legislature, or poffeffing a force and fanction fu.

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