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must reside in the people. The constitutional compact, or form of gove ernment, originated from them, with full powers in certain functionaries to enact, from time to time, such laws as should be deemed expedient. Now, if the people see fit to abolish the constitution, the laws which have been established by that government, having been virtually sanctioned by the people, are not annulled by the mere abolition of the
gove ernment by which they were expressly enacted. All laws, tberefore, whether they concern things mala in se, or mala prohibita, remain in full force, and their violation would be punished according to such forms and by such functionaries as remained, or by such as should be subsequently provided. A mere declaration by the people, that a monarchy or an aristocracy, for example, should no longer exist, but that all such delegated powers should revert to the people, would neither abolish existing civil laws, nor deprive the judiciary, and various other depositories of power, of their right, nor lessen their duty to vindicate the laws. If the people indeed, by a proper declaration of their wishes, were expressly to abolish the whole, there can be no question but that the whole political fabric would be dissolved, and every individual would be placed in a mere state of nature, or, at most," of primary society..
“ Revolutions, under any system of melioration, are sufficiently pregnant with evils, without those direful consequences which would necessarily result from the doctrine we have impugned. We presume, therefore, that public policy, and the implied wishes of the people would sanction the opinion, that all revolutions which do not expressly declare by the voice of the people, that all powers, of every kind, should revert to them, and that all laws should be abolished, could have but the effect to revoke those political powers which it appeared to have been the mauifest design of the people to abolish, and to leave all other powers and laws in operation, so far as they can consistently operate, after the constitution or political state is annulled. We have dwelt the more on this point because, obvious as it certainly is, it has not been always practically regarded, as the history of revolutiops abundantly proves. In revolutionary times, when the passions are excited, there are men, and philosophers too, who boldly maintain that revolution implies a dissolution of all compacts, government and laws; that the people, in their majesty, are once more placed in a state of natural equality ; and that all responsibility, except to God, or to the people as in a state of nature, has terminated. In a country like ours, whose constitution and laws so manifestly originate from the people, and where the relations between that people and their functionaries are so clearly defined, we have little to apprehend from revolutions, should they occur; and still less from such dangerous and disorganizing tenets as have sometimes disgraced revolutions in other countries. It was nevertheless, proper that the salutary doctrine of this subject should be clearly inculcated.” pp. 223226.
The doctrine which is thus expounded by Mr. Hoffman, may be branched out into a great variety of important questions. It applies for instance, to the interesting case of French Spoliations, which our government is, at this very moment, called upon to
settle by a diplomatic discussion. What constitutes the identity of a state? What is a revolution in the government, and how far does it affect the rights and duties of the body politic towards other bodies politic, or towards individuals ? At an early period in the history of political philosophy, this important question seems to have been fully considered. Aristotle who discusses it rather sceptically-in the third book of his Politics,* seems to think that the identity of a state depends upon that of its polity or forin of government—but whether a change in the latter exonerates the people or the body politic at large, from obligations previously incurred, he considers a very distinct question. This last difficulty might well have made him doubt the soundness of his previous positions. Thinking, as we do, with Mr. Hoffman, that “the social compact and the constitutional compact are things altogether distinct,” we should propose as a decisive test of the cor vectness of our opinion, the very case which Aristotle admits to be inconsistent with his own. state, uyder a different form of government-another dynastya constitution altered in all its characteristic lineaments and principles, is still bound by the obligations contracted under the old régime, to talk of its identity being determined by the form of its polity, for any other purpose than that of a mere theoretical exactness, would be altogether idle.
Another important point of view in which the same doctrine may be presented, is in relation to allegiance and its legal incidents and consequences. As early as the year 1781, in the case of the Commonwealth us. Chapman,t this question arose in the courts of Pennsylvania, and since that time, it has been frequently discussed and variously settled-if settled it can be said to be-in other states. In two causes which were heard at the last sitting of the Supreme Court of the United States, and which are still held under advisement, the whole doctrine was very fully reviewed in the argument of counsel.
We have reason to expect from that eminent judicatory, a comprehensive exposition of the subject, in its various aspects and relations. It may be observed meanwhile, that our writers and judges, shortly after the revolution, but especially while the madness which "ruled the hour” of the French revolution was raging here as it did elsewhere, too often gave countenance to maxims irreconcileable alike with all the analogies of law and with all the admitted precedents and the necessary policy of civil society.
Chapter 2. + 1 Dall. 53.– That was a mere nisi prius opinion. Besides it was no decision. The Jury found a general verdict of not guilty, at the instance of the Judge, who thought the point too doubtful to be pressed in a capital case.
Indeed, no theory was too wild or extravagant for that age of reason. The popular definition of well-regulated liberty seemed to be that every body might do as he pleased without respect for his neighbours, and all obligations, moral or political, natural or civil, were regarded as inconsistent with the rights of man. It was just the sense of a Greek proverb, which we do not care to translate more literally ελευθέρα Κορκυρα, χεξ' όπου 982815. We observe, however, that the tendency has been, of late, the other way. Leaving those magnificent notions of the rights of nature and the freedom of the individual, to writers whose impracticable speculations are read by us, as Voltaire pleasantly says of them, for the same reason that we keep in our houses the portraits of individuals whom we never saw and never expect to see, our opinions are beginning to be sobered down into something like consistency, with the stern realities of of life-and, we may add, of law.
It was argued in Chapman's case, that “ the doctrine of perpetual allegiance to be found in the books, applies only to established and settled government, not to the case of withdrawing from an old government and erecting a distinct one. That in this latter case, every member of the community has a right of election, to resort to which he pleases—that even after the new system is formed, he is entitled to express his dissent, and dissenting from a majority, to retire with impunity to another country.' This doctrine is taken from Vattel and some other publicists, who seem to consider the case of a change in the Constitution of a government or the dismemberment of an en.pire as an exception to that universal and fundamental rule of all corporations, that the will of the majority is constructively the will of the whole body. There appears to us to be no foundation in reason for any such distinction. If the majority-whether actual or constructive-of a body politic, has a right to bind the minority without its consent, in any case, it has a right to do som except where positive law interferes-in all.* As for a change of the Constitution of a State-a thing, regarded in Europe as a portentous convulsion in the moral world--it would be rather a startling proposition, we suspect, in any part of this country, to ascribe such serious consequences to so very slight a cause. It seems to be one of our favourite nationalamusements to pull down and put up our governments. No one among us, we believe, ever thought that if it pleased the majority of a people to indulge itself in an innocent recreation of this sort, the minority had any better right to take it in dudgeon than to quarrel with the most trivial
* That is to say, in a simple, consolidated government. VOL IV.NO. 7.
amendment of the law. Even in Virginia, that has hitherto adhered to her established institutions with all her characteristic firmness of purpose and practical good sense, a freeholdsuffrage-man would scarcely think his allegiance to the State dissolved by the triumph of the more philosopbic (si Diis placet) and liberal spirit of the nineteenth century. If it is meant to affirm that a citizen may expatriate himself whenever he shall see fit to do so without the consent, express or implicit, of his country, we readily comprehend, though we do not accede to the proposition. But we cannot conceive how any one, admitting the principle of allegiance, as laid down by our soundest lawyers, can persuade himself that it does not apply to the case of a revolution. For, after all, what is a revolution ? In our own country, thirteen regularly organized, distinct, and, to many purposes, independent commonwealths, were connected by the bond of a sort of confederacy or allegiance, (the name is immaterial) with their common mother country, as they have since been united with one another. Every thing, however, that can constitute a separate and perpetual body-politic, was to be found in each of them before the great schism-legislation, judicature, a perfect community of interests among the inhabitants of a designated territory, united thoughts and counsels, equal hopes and hazards in every public and private enterprise-in war, the commune periculum, una salus-in peace, the name of brothers, and the right hand of friendship, and the endearing charities of the hearth and the homestead-in short, a social compact, as clearly defined, as religiously consecrated, as indissolubly knit together as it is posgible to conceive. A dispute about an assumed right of the mother country is decided by the majority against her pretensions. It is further determined, by the same majority, that the colonies or provinces no longer owe any allegiance to a government which has affected to set at nought the principles of the great constitutional compact of the empire. The umpirage of the sword is resorted to, and the issue is favorable to our revolutionary doctors. All connexion with the mother country ceases, and the internal government of the State goes on as it did before. By what process of reasoning is it attempted to be made out, that the majority of the body-politic, which has thus determined the question of allegiance in the name of the State, and thus maintained its position by force, has not a right to decide upon this most vital concern, as it was wont to do upon all others ? Political orthodoxy, in Republics, is the same thing as religious orthodoxy in the Romish church. It means the decree of an æcumenical council-the voice of the majority, which is infallible, because it is paramount. The conciliabulum and the anti
pope, are the pope and the council of the minority; just as in civil wars, the treason which is successful, exchanges names and characters, as it does places, with the exiled dynasty and its suffering loyalists. The people of these States—that is to say, the majority in the name of the whole-declared, on the fourth of July 1776, that they owed no allegiance to the British government—that it had been ipso jure extinguished by the infractions of the political compact there set forth—and the object of the declaration was to announce this indisputable fact to the world. By what authority can Courts of justice, acting under this very government, affect to question the truth of the declaration ? And, if they admit it, then how can they deny to the majority of an independent, sovereign people, the right of deciding for the whole ? The English courts, according to Folliot vs. Ogden,* can look no further back than to the treaty, because their government did not acknowledge the independent existence of the States before. A different rule has been deduced from the same principle in this country. Our judges, in a question of property, ł did not hesitate to deny to the British antenati the rights of any supposed inter-community of allegiance from the date of the Declaration. The consequences are inevitable in all analogous
We may lay it down, without hesitation, that all who were born and domiciled here at that time-(we might go further, but it is not necessary)—all who were parties to what Mr. Hoffman calls the social compact, as contra-distinguished from the constitutional-owed a natural allegiance, not to the government, but to the body-politic, of their respective States, and are presumed to have assented to the separation which the majority of that body-politic declared to exist. If this position be not maintained, then we are forced to adopt the principle of arbitrary, unrestricted self-expatriation. There is no other alternative. If severing a federative or colonial union—if changing the form of the executive power, is to release every citizen from his duties to his country, there is no change in the laws that might not have the same effect. For instance, we doubt whether any act of legislation or constitution-making whatever has produced a more decided effect upon the character of society and its destinies in South Carolina, than the Statute of Distributions. If a convention were called, and every article in the constitution, (except perhaps the representation of the parishes in the Senate) changed, it would not be so much felt at the end of a generation or two. In a word, there seems to be no colour of reason in the theory, that, by a revolution in the form of its political constitution, society is resolved into the state of nature, and . 3 Term. Rep. p. 726.
+ Dawson's Lessee vs. Godfrey, 4 Cranch.