ignorance to intelligence, let them be supposed to have already attained to this condition. It is obvious, that upon first meeting, these persons would be subject to no other laws than those which belong originally and inseparably to their constitution, as intellectual, moral, and physical beings; and which are denominated the laws of nature. We need not now inquire how these laws are made and ascertained; it being sufficient for our purpose, that their universal existence and supremacy are admitted. By them, therefore, the rights of nature, or natural rights, are to be determined and regulated. The term right has many meanings, which need not here be discussed. As a quality of actions it means consistent with law; and therefore the rights of nature depend upon the laws of nature. Wrong, as a quality of action, is the opposite of right, and means, inconsistent with law. Both right and wrong, therefore, in a state of nature, are determined by the laws of nature; and obligation, or duty, is determined in the same way, for it corresponds to right. When we are subjected to any law, we are said to be under obligation to conform to it. This is implied in the very nature of law. The kind of obligation depends upon the nature of the law. If it be a physical law, the obligation is a matter of physical necessity; we cannot help obeying it. If not, the obligation is a matter of choice, and is determined by motives; and herein consists natural liberty, or the freedom of a state of nature. Individuals, in this condition, are under no other restraint, than that which results from an apprehension of the consequences which follow from conformity or non-conformity to the laws of nature; in other words, their conduct is regulated by a sense of moral obligation alone. Having as yet contracted no engagements with one another, each individual is in a state of complete personal independence; and since no one can as yet have acquired any rights which nature does not vouchsafe equally to all, it follows, that, in a state of nature, there is a perfect equality of rights and obligations. And this is the only equality that would exist for we cannot suppose that any two individuals would be absolutely equal in point of fact, either physically or intellectually. The only equality that can exist among men is a moral equality, or an equality of rights and obligations; and this is a fundamental condition of the state of nature.

Such being the relations of men in a state of nature, we may safely conclude that they could not long continue in this primeval condition. A community of angels might need no other restraint upon their actions; but constituted as men are, the moral obligations of a state of nature would not be sufficient to maintain harmony and order. To hinder the strong from oppressing the weak, and prevent might from trampling upon right; in a word, to avoid the nameless evils of anarchy, something more than a moral government would be found indispensable. But a civil government could only be established in one of two ways: by coercion or consent. A government founded on coercion, is called despotism;

and exists whenever one or more individuals make their will the law for the rest of the community, and compel them to submit. Perhaps in the case supposed, some such attempt would be first made. But there being no moral obligation to submit to such usurped dominion, and a strong natural impulse in every bosom to resist it, a despotic government could have no hope of permanency. The first opportunity would be seized to throw it off. This could only be done by concert and co-operation among the disaffected and oppressed. Sooner or later this crisis must arrive; and then, if not at first, there would be a voluntary association, for the purpose of establishing a government by consent. This is what we understand by entering into the social compact; the result of which would be to exchange natural for civil liberty. Each member of the new community would relinquish some portion of his natural rights, to obtain better security for those reserved, which would now be called civil rights. For the reasons before given, the concessions made by each ought to be the same; and the aggregate of these individual concessions would measure and constitute the powers of the new government. As no unnecessary restraint would be voluntarily submitted to by rational men, the problem to be solved, in framing the terms of the compact, would be to construct such a system of government as would effectually secure the general welfare of the whole, at the least possible sacrifice of individual freedom. A government so constructed would be emphatically a free government, since it would derive all its powers from the consent of the governed. The nature and limits of these powers need not here be discussed in detail. It may be well, however, to glance at some of the more general principles by which they would be determined.

It is not improbable that the supposed community would set out with the experiment of holding all things in common, recognizing no separate individual property. If so, the powers of government would extend only to the regulation of the personal rights of the members. But this state of things would not long continue. Experience would soon demonstrate that the only efficient incentive to activity, is the hope of profit and accumulation, which results from the appropriation, to each individual, of the avails of his own labor. The exclusive ownership of property by individuals, therefore, would ultimately, if not at first, become the subject of regulation; and then the powers of government would extend to the regulation of the proprietary as well as personal rights of the members. And we may say, in general terms, that the regulation of these rights would be the whole aim and purpose of the compact creating the government. Such, then, being the objects to which the powers of government would extend, the following general rules ought to regulate their exercise:

1. The powers of government should operate upon conduct only, and not upon opinions. And the reason is, that mere opinions, not carried into action, can affect neither the persons nor property

of others. Besides, the very attempt to regulate opinions would be preposterous; for though government may enforce outward conformity, it cannot, in the nature of things, reach the inward thoughts. Men could not renounce the freedom of opinion if they would; and they would not if they could.

2. They should operate upon civil conduct only, and not upon moral conduct apart from civil. I have touched upon this topic before. The reason is, that government has no concern with men, except in the capacity of citizens, or members of civil society. As moral agents, we are accountable to another and higher power. Human government cannot fix the standard of moral right and wrong; and it should not even attempt to enforce conformity to the standard established by the Creator, any further than the temporal welfare of society requires. Its province does not reach into eternity, but ends with time. This attribute of human power, which may be called its worldiness, depends upon the obvious consideration, that there can be no such thing as merit or demerit, without the liberty of choice. We cannot be good or bad upon compulsion. It is only as free agents that we can deserve praise or blame. Hence we must be careful to distinguish between moral right and wrong and legal right and wrong. Human power may determine the latter; but the former depends upon a superhuman power.

3. They should be revocable at pleasure, by the people who granted them. The reason is, that if one generation could bind its successors for any definite period, it might, on the same principle, bind them for ever; and thus make slaves of all posterity. Perpetual powers would be clearly incompatible with liberty. Each generation must have the option of dissenting from powers previously conferred; and then, from its omission to dissent, its continued assent may be presumed. How far this general principle has been departed from, in the case of charters, will be considered hereafter.

4. The system must be founded on a perfect equality of rights. The reason is, that an intelligent people would consent to no other arrangement. Enjoying this equality in the state of nature, we cannot doubt that they would insist upon retaining it under the compact. Sooner than voluntarily disfranchise themselves, by yielding up rights to be enjoyed by others having no better claim than themselves, they would undoubtedly refuse to join in the compact.

5. It must be agreed, that in all points of difference, the majority shall prevail. This would be a matter of necessity. Absolute unanimity on all subjects is out of the question. Concession therefore must come from some quarter, or compulsion would follow. If resort be had to physical force, the majority must of course prevail; and the only way to avoid this resort would be for the minority to submit without it. This would be the more readily agreed to, however, for another reason, there is always a

fair presumption, that of two sides of a question, that side on which the greatest number of free minds concur, is the right side. This indeed may not always be true, and therefore it might be expedient to provide, that certain very important measures should require the concurrence of something more than a bare majority. But still it must obviously be a preliminary condition to the first movement, that the majority shall prevail.

§ 6. Idea of a Constitution. Setting out, then, with the position that while all are to have equal rights, yet in cases of difference of opinion, the majority are to prevail; the question would now be, who shall exercise the functions of government? Or, in other words, where shall the supreme power or sovereignty of the community be lodged? Since all power belongs originally to the people in mass, it is probable that, in the first instance, arrangements would be made for exercising it personally; each member participating equally in all public affairs. This would constitute a simple democracy. But it would obviously be adapted only to a small and compact population. When the people should become numerous and widely diffused, they would find it inconvenient, if not impracticable, to assemble for public business, as often as occasion would require; and when assembled, there would be too many voices to act with energy and despatch. These considerations would suggest the adoption of some other scheme. And since we cannot suppose that a wise people would consent to give up the fundamental doctrine, that all power belongs of right to them, the problem would be to substitute some form of government, which would retain this great democratic principle, and at the same time obviate the necessity of a direct participation by each individual in all public affairs. This could only be done by adopting the principle of representation, whereby one person would be authorized to represent or act for any given number. In this way, the system might be adapted to any amount of population or extent of territory; while at the same time, the great body of the people could attend, with little interruption, to their private affairs. The representatives, to whom authority would thus be delegated, would be the servants and not the masters of their constituents, whose will it would be their office to execute; and the government would now be changed from a simple, to a representative democracy. But since representatives ought not to be trusted with unlimited discretion, some method must be devised for defining their powers. And as it would be difficult, if not impossible, to give them special instructions for each particular occasion, a set of general and permanent instructions would be provided to serve for all occasions. And this is what we understand by a constitution. In other words, a constitution is a written expression of the sovereign will of the people, in relation to the form and powers of government. Proceeding from the people in their supreme capacity, as the highest earthly power, it could be transcended or abrogated by them only; while to their representatives, it would be a supreme and inviolable

law. In framing this constitution, one of the leading objeets would manifestly be, to define with all possible accuracy the powers delegated to government. This might be done by enumeration, or by prohibition, or by a combination of both. First, all the powers to be exercised might be specifically enumerated; and thus all powers not specified, would, for that reason, be prohibited; because the grant would be special, and the prohibition general. But the difficulty of this method would be to make an enumeration so full and complete as to reach all the details of municipal regulation. Again, all powers not to be exercised might be specially prohibited, and thus all powers not thus prohibited, would, for that reason, be conferred; because here the prohibition would be special, and the grant general. This method would be less difficult than the other, because there are fewer things to be prohibited, than to be authorized. And the manner of prohibition might be twofold. Some things might be directly prohibited, by declaring in so many words that they shall not be done; while other things might be indirectly prohibited, by a declaration of certain fundamental rights of the people, which should never be infracted. But after all, absolute certainty could scarcely be attained in either way. And even when both should be combined, much, probably, would still remain to be deduced from the fundamental doctrines of the social compact.

§ 7. Checks and Balances. The definition of delegated powers by a written constitution, would thus be the first grand movement towards free government. But as yet, there would only be a government on parchment. To give directions is one thing; to insure obedience is a very different thing. These powers are to be exercised by men over men; and it would be necessary to take all possible precautions to secure their proper administration. The two principal qualities required in the officers of government, in order to insure a good administration, are ability and fidelity. Accordingly in constructing the machinery of the constitution, all efforts would be directed to these two points; and the results would constitute what are denominated the checks and balances of the government. On the nice adjustment of these, the experiment would mainly depend. For unless delegates can be prevented from abusing the trust committed to them, a representative government would be little better than a despotism. What, then, are the safeguards of delegated power? Some of the more important I will briefly describe.

1. Mode of designating Officers. Much would depend upon the mode of designating the public functionaries. They should not be designated by lot, because this would render their fitness a mere matter of chance; and the only other method which suggests itself, is by suffrage. As the right of suffrage would, on the principle of equality before mentioned, be universal, every individual would thus be enabled to exercise his judgment as to the qualifications of the candidates; and we may reasonably presume that the best men