Imatges de pÓgina


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 society, 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 supposition 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 original. 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&ting the representatives, were taken from the old forms of government. That was wanting from which


social union should fet off, and which alone makes the resolutions of the society the act of the inK 3


dividual, the unconstrained consent of all to be bound by the decision of the majority; and yet, , without this previous confent, the revolt, and the regulations which followed it, were compul. sory upon

diffentients. But the original compact, we are told, is not proposed as a fact, but as a fiction, which furnishes a commodious explication of the mutual rights and duties of sovercigns and subje&s. 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 supposed 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 poffefsing a force and fanction fu

perior to what belong to the modern acts and ediets of the legislature, they secretly refer us to what passed at the original convention. They would teach us to believe, that certain rules and ordinances were established by the people, at the same time that they settled the charter of government, and the powers as well as the form of the future legislature; that this legislature consequently, deriving its commission and existence from the consent and act of the primitive assembly (of which indeed it is only the standing deputation), continues subject in the exercise of its offices, and as to the extent of its power, to the rules, reservations, and limitations which the same afsembly then made and prescribed to it.

“ As the first members of the state were bound “ by express stipulation to obey the government “ which they had erected, so the succeeding in“ habitants of the fame country are understood

to promise allegiance to the constitution and government they find established, by accepting its protection, claiming its privileges, and

acquiefcing in its laws; more especially, by " the purchase or inheritance of lands, to the “ possession of which, allegiance to the state is “ annexed, as the very fervice and condition of " the tenure.” Smoothly as this train of arguK4


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ment proceeds, little of it will endure examination. The native subjects of modern states are not conscious of any stipulation with their lovereigns, of ever exercising an election whether they will be bound or not by the acts of the legislature, of


alternative being proposed 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


their recognition or consent. In all ftipulations, whether they be expressed or implied, private or public, formal or construđive, the parties ftipuç lating must both possess the liberty of affent and refusal, and also be conscious of this liberty ; which cannot with truth be affirmed of the subjects of civil government, as government is now, or ever was, actually administered. This is a defect, which no arguments can excuse or supply: all presumptions of consent, without this consciousness, or in opposition to it, are vain and erroneous, Still less is it possible to recon

idea of stipulation the practice, in which all European nations agree, of founding allegiance upon

the circumstance of nativity, that is, of claiming and treating as subjects all those who are born within the confines of their dominious, although removed to another country in

cile with any

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