as the cement of civil society. And this is what we mean by the original contract of society; which, though perhaps in no instance it has ever been formally expressed at the first institution of a state, yet, in nature and reason, must always be understood, and implied in the very act of associating together; namely, that the whole should protect all its parts, and that every part should pay obedience to the will of the whole; or, in other words, that the community should guard the rights of each individual member; and that in return for this protection each individual should submit to the laws of the community." It is in this sense, that the preamble of the constitution of Massachusetts asserts, that "the body politic is formed by a voluntary association of individuals; that it is a social compact, by which the whole people covenants with each citizen and each citizen with the whole people, that all shall be governed by certain laws for the common good;" and that in the same preamble, the people acknowledge with grateful hearts, that Providence had afforded them an opportunity "of entering into an original, explicit, and solemn compact with each other, and of forming a new constitution of civil government for themselves and their posterity." It is in this sense too, that Mr. Chief Justice Jay is to be understood, when he asserts, that "every state constitution is a compact made by and between the citizens of a state to govern themselves in a certain manner; and the constitution of the United States is, likewise, a compact

1 1 Black. Comm. 47; see also 1 Hume's Essays, Essay 12. — Mr. Hume considers, that the notion of government, being universally founded in original contract, is visionary, unless in the sense of its being founded upon the consent of those, who first associate together, and subject themselves to authority. He has discussed the subject at large in an elaborate Essay. Essay 12, p. 491.

2 Chisholm v. State of Georgia, 3 Dall. R. 419; 2 Cond. Rep. 635, 668; see also 1 Wilson's Law Lect. 305.

made by the people of the United States, to govern themselves as to general objects in a certain manner.' He had immediately before stated, with reference to the preamble of the constitution, "Here we see the people acting, as sovereigns of the whole country; and in the language of sovereignty, establishing a constitution, by which it was their will, that the state governments should be bound, and to which the state constitutions should be made to conform." 1

§ 327. But although in a general sense, and theoretically speaking, the formation of civil societies and states may thus be said to be founded in a social compact or contract, that is, in the solemn, express or implied consent of the individuals composing them; yet the doctrine itself requires many limitations and qualifications, when applied to the actual condition of nations, even of those, which are most free in their organization.2 Every state, however organized, embraces many persons in it, who have never assented to its form of government; and many, who are deemed incapable of such assent, and yet who are held bound by its fundamental institutions and laws. Infants,. minors, married women, persons insane, and many others, are deemed subjects of a country, and bound by its laws; although they have

1 In the ordinance of congress of 1787, for the government of the territory of the United States northwest of river Ohio, in which the settlement of the territory, and the establishment of several states therein, was contemplated, it was declared, that certain articles therein enumerated "shall be considered as articles of compact between the original states and the people and states in the said territory, and for ever remain unalterable, unless by common consent." Here is an express enumeration of parties, some of whom were not then in existence, and the articles of compact attached as such only, when they were brought into life. And then to avoid all doubt, as to their obligatory force, they were to be unalterable, except by common consent. One party could not change or absolve itself from the obligation to obey them:

2 See Burke's Appeal from the New to the Old Whigs.

never assented thereto, and may by those very laws be disabled from such an act. Even our most solemn instruments of government, framed and adopted as the constitutions of our state governments, are not only not founded upon the assent of all the people within the territorial jurisdiction; but that assent is expressly excluded by the very manner, in which the ratification is required to be made. That ratification is restricted to those, who are qualified voters; and who are, or shall be qualified voters, is decided by the majority in the convention or other body, which submits the constitution to the people. All of the American constitutions have been formed in this manner. The assent of minors, of women, and of unqualified voters has never been asked or allowed; yet these embrace a majority of the whole population in every organized society, and are governed by its existing institutions. Nay more; a majority only of the qualified voters is deemed sufficient to change the fundamental institutions of the state, upon the general principle, that the majority has at all times a right to govern the minority, and to bind the latter to obedience to the will of the former. And if more than a plurality is, in any case, required, to amend or change the actual constitution of the society, it is a matter of political choice with the majority for the time being, and not of right on the part of the minority.

§ 328. It is a matter of fact, therefore, in the history of our own forms of government, that they have been formed without the consent, express or implied, of the whole people; and that, although firmly established, they owe their existence and authority to the simple will of the majority of the qualified voters. There is not probably a single state in the Union, whose constitution has not been adopted against the opinions and wishes of

a large minority, even of the qualified voters; and it is notorious, that some of them have been adopted by a small majority of votes. How, then, can we assert with truth, that even in our free constitutions the government is founded in fact on the assent of the whole people, when many of them have not been permitted to express any opinion, and many have expressed a decided dissent? In what manner are we to prove, that every citizen of the state has contracted with all the other citizens, that such constitution shall be a binding compact between them, with mutual obligations to observe and keep it, against such positive dissent ? If it be said, that by entering into the society an assent is necessarily implied to submit to the majority, how is it proved, that a majority of all the people of all ages and sexes were ever asked to assent, or did assent to such a proposition? And as to persons subsequently born, and subjected by birth to such society, where is the record of such assent in point of law or fact? 1

§ 329. In respect to the American revolution itself, it is notorious, that it was brought about against the wishes and resistance of a formidable minority of the people; and that the declaration of independence never had the universal assent of all the inhabitants of the country. So, that this great and glorious change in the organization of our government owes its whole authority to the efforts of a triumphant majority. And the dissent on the part of the minority was deemed in many cases a crime, carrying along with it the penalty of confiscation, forfeiture, and personal, and even capital punishment; and in its mildest form was deemed an unwarrantable outrage upon the public rights, and a total disregard of the duties of patriotism.

1 See 1 Hume's Essays, Essay 12.

§ 330. The truth is, that the majority of every organized society has always claimed, and exercised the right to govern the whole of that society, in the manner pointed out by the fundamental laws, which from time to time have existed in such society. Every revolution, at least when not produced by positive force, has been founded upon the authority of such majority. And the right results from the very necessities of our nature; for universal consent can never be practically required or obtained. The minority are bound, whether they have assented or not; for the plain reason, that opposite wills in the same society, on the same subjects, cannot prevail at the same time; and, as society is instituted for the general safety and happiness, in a conflict of opinion the majority must have a right to accomplish that object by the means, which they deem adequate for the end. The majority may, indeed, decide, how far they will respect the rights or claims of the minority; and how far they will, from policy or principle, insist upon or absolve this is a matter, on which to its own notions of justice or convenience. In a general sense the will of the majority of the people is absolute and sovereign, limited only by its means and power to make its will effectual. The declaration of independence (which, it is historically known, was not the act of the whole American people) puts the doc

them from obedience. But decided for itself, according

1 1 Tucker's Black. Comm. App. 168; Id. 172, 173; Burke's Appeal from the New to the Old Whigs.

2 Mr. Dane, in his Appendix to the ninth volume of his Abridgment, has examined this subject very much at large. See, especially, pages 37 to 43. Mr. Locke, the most strenuous asserter of liberty and of the original compact of society, contends resolutely for this power of the majority to bind the minority, as a necessary condition in the original formation of society. Locke on Government, B. 2, ch. 8, from § 95 to § 100.