people, and no Constitution or instrument containing a delegation of the powers of Government can be regarded as irrevocable, or as divesting the people, the true sovereign, of supreme control in State affairs.

A Constitution is no more a contract than a common law power of attorney, which vests no personal interest in the agent. It is an appointment, an authority, merely during the pleasure of the principal. If the people of a free State should express their designs, their hopes and fears, when they adopt their Constitution, they would utter something of this sort: "We have a high moral trust to execute in the conservation of our rights and liberties, which can only be effected by ordaining and executing a code of laws founded upon natural justice; we cannot personally attend to this business-in some cases it is inconvenient, and in others impossible; we are compelled, therefore, in so far as we cannot attend to the work of government in person, to entrust it to agents; but how much power we ought to entrust to them, and how we should guard and secure the proper exercise of the functions of Government, we have not had experience enough to determine with accuracy; nor do we know how far we can rely upon the fidelity of agents in this business; the whole thing is an experiment-but a great and solemn experiment, involving an observance of the moral laws of the Divine Being, and the security of the rights and happiness of His creatures. With doubt and hesitation we commit this power to our agents, throwing around it such safeguards as our acquaintance with human infirmity has suggested. We may find occasion for multiplying and strengthening these safeguards, and for remodeling the instrument containing the delegation of power; but for the present, and until experience shall have made us wiser and we shall otherwise direct, we stand upon the present grant of power to our agents, and authorise them to wield it according to our declared intention. We will dismiss them if they prove unfaithful; and by our experience of the machinery of Government, which we now set in motion, we may be able to adopt a wiser plan if this shall not answer the requirements of humanity."

5

Is not this the fair import of a Constitution, viewed as an instrument by which the people delegate the powers of Government to their representatives; and if so, how can it be claimed that such powers are irrevocable?

Moreover, a strict consideration of the function of Government, divests it of all authority except to insure the protection of rights. This reduces it to the mere exercise of moral force, and renders it purely a moral concern. What is just? -this is the ever-recurring question of the State. Is it right? -this will forever follow after its decisions. These involve the lives, the happiness, and the well-being of every citizen, and hence the highest moral responsibility to the laws of the Creator. I have regarded Government as an attempt by mankind to conform to the moral laws of the Universe, and the Legislator as the mere "minister and interpreter" of the natural laws which control the moral actions of men.

If I am correct in this, then society cannot bind itself to a form of government which in any respect does violence to the natural laws without offence to the Supreme Ruler of the Universe. And even although a Constitution were to be regarded as a contract, yet the moment it is found to work a wrong which can be remedied by a new instrument, that moment it becomes revocable as immoral and mischievous. A contract cannot be upheld which subserves immoral purposes, and a Constitution would fall for the same reason. However, I perceive no contract in a Constitution, but rather a mere power, which is good until revoked, and which may be revoked or amended at the pleasure of the body which granted it.

I speak of a contract as between the body politic and the agents of the State; and also of a contract as between the citizens themselves, which is to bind them without the continued consent of the majority. There is an obligation on the part of every citizen to obey the present Constitution until the majority of the people shall adopt another.

This is the American doctrine respecting the Constitution of Government, and it has been steadily persisted in from the Declaration of Independence to the present time, That

*

Declaration asserts broadly the supremacy of the popular will, and that whenever any Government fails to answer its proper design, it is the right of the people to alter or abolish it, and to institute another. The various States of the Federal Union have asserted the same thing in their respective Constitutions, and have practiced upon that principle by remodeling at pleasure their fundamental laws; and I believe no enlightened American at present doubts this supreme power of the people over the Constitution of Government.

But a difficulty has arisen in the minds of some persons as to the power of the people over a Constitution in which there is provided a mode of amendment by the Legislatureno other mode of amendment being forbidden.

It is contended that such a Constitution can only be amended in the mode pointed out by the instrument itself—that the people, by adopting that mode, have necessarily precluded any other, and that it is nothing short of revolution to call a Convention in such a case to remodel the fundamental law of the State.

This difficulty can scarcely be considered serious in the case supposed, since the Constitution does not expressly negative any other mode of amendment than the one pointed out by that instrument. If the supreme power of the State reside in the people, and their original right to make and amend their fundamental laws be conceded, as it is by all the American Constitutions, then the objector must first annihilate this supreme power which is inherent in the people, before he can have any ground to stand upon. This he may attempt, perhaps, by showing a case where the people have adopted a clause in their Constitution prohibiting any amendment except in a mode directed by that instrument. This brings us back to the old question, whether a people can bind themselves irrevocably to any form of Government or mode of administration? I have supposed it impossible-because the sovereign power of the State cannot be bound in such a manner as to diminish its supremacy; and because the moral laws of the Creator interfere to annul the obligation whenever the majority of the people perceive that it works injustice.

As regards the administration of the moral laws, a people can only oblige themselves to walk by such light as they may enjoy for the time being. The moment the majority perceive a better light, it is their duty to direct their course by it, and their poor covenant, written in ignorance and darkness to abide by error, must fall to the ground. "No engagement," says Vattel, "can oblige, or even authorize, a man to violate the laws of nature." These laws are no less moral than physical, and are as obligatory upon a State as upon individuals.

Again, the American Constitutions all regard Government as based on the consent of the people. Those who expressly adopt a Constitution, consent to it-and those who afterward live contentedly under it tacitly consent to it as the supreme law. But whenever the majority of the people rise up and demand a reformed Constitution, it is their right to have itand they will have it, since the consent which gave all the vitality to the existing Constitution is withdrawn, and of course it falls for want of moral support. Another takes its place. But it is said that this is revolution. Let us not be frightened at the sound of a word. It is a change—a peaceful, moral change, promising a healthy improvement in State affairs. It is a step of progress-it may be of great progress in the cause of human rights and liberty. It is a work of reform in the errors of the past, based upon a broader and more enlightened experience. The case may demand a great and comprehensive reform-an uprooting of public evil and a thorough purification of the government. It may then be so broad and comprehensive, so enlightened and liberal, so pure and just, as to amount to a revolution—a great and peaceful moral revolution, in the mode of administering the powers of Government; and if so, then I say, so much the better. Let the revolution come, and trust the result to the enlightened moral natures of the living generation-those men of better experience, who are to bear the burdens of Government and to reap all its benefits.

"A law," says Mr. Bentham, "is proposed to a legislative assembly, who are called upon to reject it upon the simple ground that by those who

in some former period exercised the same power, a regulation was made having for its object to preclude for ever, or to the end of an unexpired period, all succeeding legislators from enacting a law to any such effect as that now proposed. Now, it appears quite evident that at every period of time, every legislature must be endowed with all those powers which the exigency of the times may require, and any attempt to infringe on this power is inadmissible and absurd. The sovereign power at any one period can only form a blind guess at the measures which may be neces sary for any future period; but by this principle of immutable laws, the Government is transferred from those who are necessarily the best judges of what they want, to others who can know little or nothing about the matter. The thirteenth century decides for the fourteenth; the fourteenth makes laws for the fifteenth; the fifteenth hermetically seals up the sixteenth, which tyrannizes over the seventeenth, which again tells the eighteenth how it is to act, under circumstances which cannot be foreseen, and how it is to conduct itself in exigencies which no human wit can anticipate.

"Men who have a century more of experience to ground their judgment on, surrender their intellect to men who had a century less experience, and who, unless the deficiency constitute a claim, have no claim to preference. If the prior geneneration were in respect of intellectual qualification ever so much superior to the subsequent generation-if it understood so much better than the subsequent generation itself the interests of that generation, could it have been in an equal degree anxious to promote that interest, and consequently equally attentive to those facts with which, though in order to form a judgment it ought to have been, it is impossible it should have been acquainted?"

"In a word, will its love for that subsequent generation be quite so great as that same generation's love for itself?

"Not even here, after a moment's deliberate reflection, will the assertion be in the affirmative. And yet it is their prodigious anxiety for the welfare of their posterity that produces the propensity of these sages to

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up the hands of this same posterity for evermore-to act as guardians to its perpetual and incurable weakness, and take its conduct forever out of its own hands. If it be right that the conduct of the nineteenth century should be determined, not by its own judgment, but by that of the eighteenth, it will be equally right that the conduct of the twentieth century should be determined, not by its own judgment, but by that of the nineteenth. And if the same principle were still pursued, what at length would be the consequence ?-that in process of time the practice of legislation would be at an end. The conduct and fate of all men would be determined by those who neither knew nor cared anything about the matter; and the aggregate body of the living would remain forever in subjection to an inexorable tyranny, exercised, as it were, by the aggregate body of the dead."

Rev. Sydney Smith, in commenting upon these passages of Mr. Bentham, addresses "all Noodledom" in this wise:

"The despotism of Nero and Caligula would be more tolerable than an irrevocable law. The despot, through fear or favor or in a lucid interval, might relent; but how are the Parliament who made the Scotch Union, for example, to be awakened from that dust in which they repose-the jobber and the patriot, the speaker and the door-keeper-the silent voter and the men of rich allusions, Cannings and cultivators, Barings and beggars-making irrevocable laws for men who toss their remains about