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trates of the state, 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 electing the representatives, were taken from the old forms of government. That was wanting, from which every social union should set off, and which alone makes the resolution of the society the act of the individual ,-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 compulsory upon dissentients.
But the original compact, we are told, is not proposed as a fact, but as a fiction, which fúrnishes à 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 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 practis, the original convention is appealed to and treated of as 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, inalienable, 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 possessing a force and sanction superior to what belong to the modern acts and edicts 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 pri mitive assembly (of which indeed it is only the standing deputation,) continues subject, in the ex. ercise of its offices, and as to the extent of its power, to the rules, reservations, and limitations, which the same assembly 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 inhabi. tants of the same country are understood to promise allegiance to the constitution and government they find established, by accepting its protection, claiming its privileges, and acquiescing 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 service and condition of the tenure.” Smoothly as this train of argument proceeds, little of it will endure examination. The native subjects of modern states are not con scious of any stipulation with the sovereigns, of ever exercising an election whether they will be bound or not by the acts of the legislature, of any alternative being proposed to their choice, of a promise either required or given; nor do they appre. hend that the validity or authority of the laws de pends at all upon their recognition or consent. In all stipulations, whether they be expressed or implied, private or public, formal or constructive, the parties stipulating must both possess the liberty of assent 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 de. fect, 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 reconcile with any 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 dominions, although removed to another country in their youth or infancy. In this instance certainly, the state does not presume a compact. Also, if the subject be bound only by his
own consent, and if the voluntary abiding in the country be the proof and intimation of that consent, by what arguments should we defend the right, which sovereigns universally assume, of prohibiting, when they please, the departure of their subjects out of the realm ?
Again, when it is contended that the taking and holding possession of land amounts to an acknowledgment of the sovereign, and a virtual promise of allegiance to his laws, it is necessary to the validity of the argument to prove, that the inhabitants who first composed and constituted the state, collectively possessed a right to the soil of the coun. try ;-a right to parcel it out to whom they pleased, and to annex to the donation what conditions they thought fit. How came they by this right? An agreement amongst themselves would not confer it ; that could only adjust what already belonged to them. A society of men vote themselves to be the owners of a region of the world :-does that vote, unaccompanied especially with any culture, enclosure, or proper act of occupation, make it theirs ? does it entitle them to exclude others from it, or to dictate the conditions upon which it shall be enjoyed ? Yet this original collective right and ownership is the foundation for all the reasoning by which the duty of allegiance is inferred from the possession of land.
The theory of government which affirms the existence and the obligation of a social compact, would, after all, merit little discussion, and, however groundless and unnecessary, should receive no opposition from us, did it not appear to lead to conelusions unfavourable to the improvement and to the
peace of human society. 1st, Upon the supposition that government was first erected by, and that it derives all its just authority from, resolutions entered into by a convention of the people, it is capable of being presumed, that many points were settled by that convention,
anterior to the establishment of the subsisting lei gislature, and which the legislature, consequently,
has no right to alter, or interfere with. These i points are called the fundamentals of the constitu
Lion; and as it is impossible to determine how
many, or what they are, the suggesting of any such serves extremely to embarrass the deliberations of the legislature, and affords a dangerous pretence for disputing the authority of the laws. It was this sort of reasoning (so far as reasoning of any kind was employed in the question) that produced in this nation the doubt, which so much agitated the minds of men in the reign of the second Charles, whether an act of parliament could of right alter or limit the succession of the crown.
2dly, If it be by virtue of a compact that the subject owes obedience to civil government, it will follow that he ought to abide by the form of government which he finds established, be it ever so absurd or inconvenient. He is bound by his bargain. It is not permitted to any man to retreat from his engagement, merely because he finds the performance disadvantageous, or because he has an opportunity of entering into a better. This law of contracts is universal : and to call the relation between the sovereign and the subjects a contract, yet not to apply to it the rules, or allow of the effects, of a contract, is an arbitrary use of names, and an unsteadiness in reasoning, which can teach nothing. Resistance to the encroachments of the supreme magistrate may be justified upon this principle; recourse to arms, for the purpose of bringing about an amendment of the constitution, never can. No form of government contains a provision for its own dissolution : and few governors will consent to the extinction, or even to any abridgment, of their own power. It does not therefore appear, how despotic governments can ever, in consistency with the obligation of the subject, be changed or mitigated. Despotism is the constitution of many states : and whilst a despotic prince exacts from his subjects the most rigorous servitude, according to this account, he is only holding them to their agreement. A people may vindicate, by force, the rights which the constitu- ! tion has left them; but every attempt to narrow the prerogative of the crown, by new limitations, and in opposition to the will of the reigning prince, whatever opportunities may invite, or success fol
low it, must be condemned as an infraction of the compact between the sovereign and the subject.
3dly, Every violation of the compact on the part of the governor, releases the subject from his allegiance, and dissolves the government. I do not perceive how we can avoid this consequence, if we found the duty of allegiance upon compact, and confess any analogy between the social compact and other contracts. In private contracts, the violation and nonperformance of the conditions, by one of the parties, vacates the obligation of the other. Now the terms and articles of the social compact being no where extant or expressed; the rights and offices of the administrator of an empire being so many and various; the imaginary and controverted line of his prerogative being so liable to be overstepped in one part or other of it: the position, that every such transgression amounts to a forfeiture of the government, and consequently authorizes the people to withdraw their obedience and pro-vide for themselves by a new settlement, would endanger the stability of every political fabric in the world, and has in fact always supplied the disaffected with a topic of seditious declamation. If occasions have arisen in which this plea has been resorted to with justice and success, they have been occasions in which a revolution was defensible on other and plainer principles. The plea itself is at all times captious and unsafe.
Wherefore, rejecting the intervention of a compact as unfounded in its principle, and dangerous in the application, we assign for the only ground of the subject's obligation, THE WILL OF GOD AS COLLECTED FROM EXPEDIENCY.
The steps by which the argument proceeds, are few and direct. _“ It is the will of God that the happiness of human life be promoted :"—this is the first
step, and the foundation not only of this, but of every moral conclusion. “ Civil society conduces to that end :'--this is the second proposition." Civil societies cannot be upholden, unless, in each, the interest of the whole society be binding upon every part and member of it:"__this is the third step, and conducts us to the conclusion, namely, that so long as the interest of the whole