enters into a private society, is understood, without any other or more explicit ftipulation, to promife 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 fubject, although fpecious, and patronized by names the most respectable, appears to labour under the following objections; that it is founded upon a fuppofition falfe in fact, and leading to dangerous conclufions.

No focial compact, fimilar to what is here described, was ever made or entered into in reality; no fuch original convention of the people was ever actually held, or in any country could be held, antecedent to the exiftence of civil government in that country. It is to fuppofe it poffible to call favages out of caves and deferts, to deliberate and vote upon topics, which the experience, and ftudies, and refinements of civil life alone fuggeft. Therefore no government in the universe began from this original. Some imitation of a focial compact may have taken place at a revolution. The prefent age has been witness to a tranfaction, which bears the nearest resemblance to this political idea,

of

of any of which history has preserved the account or memory. I refer to the establishment of the united states of North-America. We faw the people affembled to elect deputies, for the avowed purpose of framing the conftitution of a new empire. We faw this deputation of the people deliberating and refolving upon a form of government, erecting a permanent legislature, diftributing the functions of fovereignty, establishing and promulgating a code of fundamental ordinances, which were to be confidered by fucceeding generations, not merely as laws and acts of the ftate, but as the very terms and conditions of the confederation; as binding not only upon the fubjects and magiftrates of the ftate, but as limitations of power, which were to control and regulate the future legislature. Yet even here much was presupposed. In fettling the conftitution many important parts were prefumed to be already fettled. The qualifications of the conftituents who were admitted to vote in the election of members of congrefs, as well as the mode of electing the reprefentatives, were taken from the old forms of government. That was wanting from which every focial union fhould fet off, and which alone makes the resolutions of the fociety the act of the individual,

K 3

dividual, the unconftrained confent of all to be bound by the decifion of the majority; and yet, without this previous confent, the revolt, and the regulations which followed it, were compulfory upon diffentients.

But the original compact, we are told, is not propofed as a fact, but as a fiction, which furnithes a commodious explication of the mutual rights and duties of fovercigns and fubjects. In anfwer to this reprefentation 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 magiftrates; nor afford any foundation to rights, which are fuppofed to be real and exifting. But the truth is, that in the books, and in the apprehenfion, 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 difciples of this fyftem fpeak of the conftitution; of the fundamental articles of the conftitution; of laws being conftitutional or unconftitutional; of inherent, unalienable, inextinguishable rights, either in the prince, or in the people; or indeed of any laws, ufages, or civil rights, as transcending the authority of the fubfifting legiflature, or poffeffing a force and sanction fu

perior to what belong to the modern acts and edicts of the legislature, they fecretly refer us to what paffed at the original convention. They would teach us to believe, that certain rules and ordinances were established by the people, at the fame time that they fettled the charter of government, and the powers as well as the form of the future legislature; that this legiflature confequently, deriving its commiffion and exiftence from the consent and act of the primitive affembly (of which indeed it is only the ftanding deputation), continues fubject in the exercise of its offices, and as to the extent of its power, to the rules, refervations, and limitations which the fame affembly then made and prescribed to it.

"As the firft members of the ftate were bound

by exprefs ftipulation to obey the government "which they had erected, fo the fucceeding in"habitants of the fame country are understood "to promife allegiance to the conftitution and "government they find etablished, by accept

ing its protection, claiming its privileges, and

acquiefcing in its laws; more efpecially, by "the purchase or inheritance of lands, to the "poffeffion of which, allegiance to the ftate is "annexed, as the very fervice and condition of "the tenure." Smoothly as this train of argu

ment proceeds, little of it will endure examination. The native subjects of modern states are not confcious of any ftipulation with their fovereigns, of ever exercising an election whether they will be bound or not by the acts of the legiflature, of any alternative being propofed to their choice, of a promise either required or given; nor do they apprehend that the validity or authority of the laws depends at all upon their recognition or confent. In all ftipulations, whether they be expreffed or implied, private or public, formal or conftructive, the parties flipu, lating must both poffefs the liberty of affent and refufal, and also be confcious of this liberty; which cannot with truth be affirmed of the fubjects of civil government, as government is now, or ever was, actually adminiftered. This is a defect, which no arguments can excufe or fupply: all prefumptions of confent, without this consciousness, or in oppofition to it, are vain and erroneous. Still lefs is it poffible to reconcile with any idea of ftipulation the practice, in which all European nations agree, of founding allegiance upon the circumftance of nativity, that is, of claiming and treating as fubjects all those who are born within the confines of their dominions, although removed to another country in