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 them from obedience. But this is a matter, on which it decides for itself, according 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.2 The declaration of independence (which, it is historically known, was not the act of the whole American people) puts the doc

1 1 Tucker's Black. Conn. 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 I 95 to

trine on its true grounds. Men are endowed, it declares, with certain unalienable rights, and among these are life, liberty, and the pursuit of happiness. To secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed. Whenever any form of government becomes destructive of these ends, it is the right of the people (plainly intending, the majority of the people) to alter, or to abolish it, and to institute a new government, laying its foundation on such principles, and organizing its powers in such forms, as to them shall seem most likely to effect their safety and happiness.

331. But whatever may be the true doctrine, as to the nature of the original compact of society, or of the subsequent institution and organization of governments consequent thereon, it is a very unjustifiable course of reasoning to connect with the theory all the ordinary doctrines applicable to municipal contracts between individuals, or to public conventions between nations. We have already seen, that the theory itself is subject to many qualifications; but whether true or not, it is impossible, with a just regard to the objects and interests of society, or the nature of compacts of government, to subject them to the same constructions and conditions, as belong to positive obligations, created between independent parties, contemplating a distinct and personal responsibility. One of the first elementary principles of all contracts is, to interpret them according to the intentions and objects of the parties. They are not to be so construed, as to subvert the obvious objects, for which they were made; or to lead to results wholly beside the apparent intentions of those, who framed them.1

It was the consideration of the consequences deducible from the theory of an original subsisting compact between the people, upon the

§332. Admitting, therefore, for the sake of argument, that the institution of a government is to be deemed, in the restricted sense already suggested, an original compact or contract between each citizen and the whole community, is it to be construed, as a continuing contract after its adoption, so as to involve the notion of there being still distinct and independent parties to the instrument, capable, and entitled, as matter of right, to judge and act upon its construction, according to their own views of its import and obligations? to resist the enforcement of the powers delegated to the government at the good pleasure of each? to dissolve all connexion with it, whenever there is a supposed breach of it on the other side? These are momentous questions, and go to the very foundation of every government founded on the voluntary choice of the people; and they should be seriously investigated, before we admit the conclusions, which may be drawn from one aspect of them.2

first formation of civil societies and governments, that induced Doctor Paley to reject it. He supposed, that, if admitted, its fundamental principles were still disputable and uncertain; that, if founded on compact, the form of government, however absurd or inconvenient, was still obligatory; and that every violation of the compact involved a right of rebellion and a dissolution of the government.* Mr. Wilson (afterwards Mr. Justice Wilson) urged the same objection very forcibly in the Pennsylvania Convention for adopting the constitution. 3 Elliot's Debates, 286, 287, 288. Mr. Hume considers the true reason for obedience to government to be, not a contract or promise to obey; but the fact, that society could not otherwise subsist.†

19 Dane's Abridg. ch. 187, art. 20, § 13, p. 589.

2 Mr. Woodeson (Elements of Jurisp. p. 22,) says, "However the historical fact may be of a social compact, government ought to be, and is generally considered as founded on consent, tacit or express, or a real,

*Paley's Moral Philosophy, B. 6, ch. 3. But see Burke's Reflections on the French Revolution, ante, p. 293, 294.

1 Hume's Essays, Essay 12.

§333. Take, for instance, the constitution of Massachusetts, which in its preamble contains the declaration already quoted, that government "is a social compact, by which the whole people covenants with each citizen, and each citizen with the whole government;" are we to construe that compact, after the adoption of the constitution, as still a contract, in which each citizen is still a distinct party, entitled to his remedy for any breach of its obligations, and authorized to separate himself from the whole society, and to throw off all allegiance, whenever he supposes, that any of the fundamental principles of that compact are infringed, or misconstrued? Did the people intend, that it should be thus in the power of any individual to dissolve the whole government at his pleasure, or to absolve himself from all obligations and duties thereto, at his choice, or upon his own interpretation of the instrument? If such a power exists, where is the permanence or security of the government? In what manner are the rights and property of the citizens to be maintained or enforced? Where are the duties of allegiance or obedience? May one withdraw his consent to-day, and re-assert it to-morrow? May one claim the protection and assistance of the laws and institutions to-day, and to-morrow repudiate them? May one declare war against all the others for a supposed

or quasi compact. This theory is a material basis of political rights; and as a theoretical point, is not difficult to be maintained, &c. &c. Not that such consent is subsequently revokable at the will, even of all the subjects of the state, for that would be making a part of the community equal in power to the whole originally, and superior to the rulers thereof after their establishment." However questionable this latter position may be, (and it is open to many objections,*) it is certain, that a right of the minority to withdraw from the government, and to overthrow its powers, has no foundation in any just reasoning.

* See 1 Wilson's Lectures, 417, 418, 419, 420.