CHAPTER III.

THE DUTY OF SUBMISSION TO CIVIL GOVERN

MENT EXPLAINED,

THE subject of this chapter is sufficiently distinguished from the subject of the last, 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 duty, 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 state 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 same general reason that private contracts do, resolves the duty of submission to civil government into the universal obligation of fidelity in the performance of promises. This compact 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 same time determined,) a standing legislature, to whom, under these preestablished 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 constitution, the fundamental laws of the constitution; and form, on one side, the inherent indefcasi

ble prerogative of the crown; and, on the other, the unalienable, imprescriptible 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 enters into a private society is understood, without any other or more explicit stipulation, 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 conclusions.

No social 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 holden, or in any country could be holden, 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 fundamental 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 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 .n 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 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 of 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; or 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 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

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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 limi tations 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 inhabitants 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 conscious 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 apprehend that the validity or authority of the laws depends 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 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 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 ?

How

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 country; a right to parcel it out to whom they pleased, and to annex to the donation what conditions they thought fit. 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 ús, did it not appear to lead to conclusions 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