of the Federal Constitution, but are necessarily limited to objects within the purpose of its own institution. The inquiry then comes, what are those objects? We need not look far to find them. They are developed in the Constitution. They are to form a government which shall better secure the rights and promote the ends for which men enter into society and voluntarily organize a government over themselves. Those rights and ends are well defined in the preamble to the Constitution to be "the enjoyment of the right of life, liberty, and property, and of pursuing happiness." With this view all conventions are convened in free States. Existing rights of persons and property are a supposed pre-existing status. Conventions are used merely to secure them. They are none of them derived by grant, express or implied, from either the conventions or the great body of society at large. Conventions and written constitutions are means used by the people, not to confer those rights, for each man brought them with him into society, but the better to secure their enjoyment, under a properly organized government, adequate to their protection. If a convention, under such a commission to provide for the protection of the right of property, were to attempt arbitrarily to abolish the right altogether, they would as clearly transcend their power, and attempt to usurp a power not given as a physician who wilfully kills a patient whom he has only power to heal. The proposition is not therefore true, is not at all tenable, that we hold our property by the good-will and pleasure of the present convention. We hold it by a right anterior to the institution of government, a right above their reach, and which they cannot abolish.

Nor is this merely true because they are only delegates, exercising a necessarily limited power, derived from a majority of the people. The power of that majority is a mere delegated trust power, which is itself under a similar necessary limitation. When a man joins other men in a journey to California, it is for the purpose of mutual security of life and property. They have the power to rob and murder him, but it is a power of mere brute force, the power of the strongest, not at all derived from any authority, express or implied, derivable from the act of association. The great principle of civil liberty,

consecrated by the blood of the Revolution, is, that “all rightful government is founded on the consent of the governed. No man or set of men can ever be presumed voluntarily to consent to being arbitrarily robbed or murdered.

It matters not whether the government be in the hands of a majority of the people, or in those of a selected or delegated few, no such presumption can ever be justly indulged against a minority of the governed. Whatever power there may be in the majority to rob or murder, it is only the power of the strongest. It has no moral basis; it is no way derivable from the social compact.

There is no such distinction in reference to this subject as that attempted to be made between right and power. They are, in this aspect, correlative and equivalent terms. The right gives the power; the want of it disproves the power. So also the power carries with it the right. But right and expediency are not the equivalents of each other. The right may exist without expediency in its exercise. With this distinction kept properly in view, it may be confidently affirmed that the convention has no power over property which it has not a right to exercise. When they have no right, neither have they any power.

As the attempt has been gravely made to distinguish between such right and power, the convention ought formally to negative any such distinction. Absolute, arbitrary power in government is so abhorrent to every intelligent lover of civil liberty, that we should heedfully discountenance anything which even looks like giving it a recognition among us. Absolute arbitrary power over the lives, liberty, or property of freemen exists nowhere in a republic, not even in the largest majority of the people. This principle is as sacred as truth and justice, and should be as enduring. The convention will do itself much honor by permanently engrafting the principle on our bill of rights. It has not been done by previous conventions only from oversight, or rather more probably from the belief that it was sufficiently elucidated by the other principles contained in the Bill of Rights. But so important a principle should be affirmed in the most unambiguous terms, and not left to be made out by mere inference or reasoning.

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CHAPTER II.

MARCH 3, 1858.

POWER OF MAJORITIES OVER CONSTITUTIONS.

No. I.

THERE are many well meaning, ignorant persons who honestly suppose that all republicanism consists in the principle that the majority ought to govern. From this sound principle, when properly understood, they deduce the non sequitur, that the majority has an indefeasible, natural right to govern as it pleases. There can be no greater heresy against the true principles of civil liberty than this. There is no basis of natural right or justice for the power of a thousand men not merely to govern themselves, who all think alike and have the same interests, but also to govern nine hundred and ninety other men, who think differently and have different interests. "All rightful government rests upon the assent of the governed." The right of the majority to govern rests upon the express or implied assent of the minority. In strict justice the power has no natural basis but that. If it come in any other way, it is the result of usurpation or force.

It was a great step gained in behalf of the rights of man, or civil liberty, when it was determined that the minority ought never to govern. But there would have been no such gain if it had been settled, at the same time, that the majority has a right to govern according to its own unbridled discretion. All government, says the sage, is but a necessary evil. So government by the majority, like any other mode, is but a thing of necessity, and to be rightfully allowed only so far as necessity requires. Such is the theory of a republic, as elucidated in our written constitutions, withholding as they do in their Bills of Rights large classes of subjects from the control or power of majorities. A State Constitution that allowed the majority unrestrained power over all or most of those subjects would not be a republican form of government in the American

sense, nor within the true meaning of the Federal Constitution. The governing party in Church or State, whether the minority or majority, will always play the tyrant or oppressor towards its opponents. All history proves this. No example to the contrary can be found in the history of any nation. Men, whether acting singly or in multitudes, have ever proved themselves untrustworthy of absolute power over their fellow men. Man is naturally intolerant, persecuting, and tyrannical in his disposition. Either as an hereditary sovereign or a ruling majority, he is wholly unworthy of absolute trust. The last Kentucky convention did itself great honor by enunciating this great principle in unambiguous language, and engrafting it as follows upon our bill of rights: -"Absolute arbitrary power over the lives, liberty, or property of freemen exists nowhere in a republic-not even in the largest majority." It should be a fundamental axiom with us, that when any part of our nation agrees to meet, through delegates, in convention for the purpose of forming a constitution, it is always with the express understanding that it shall be thus republican in its principles and structure. The assent of no American can be implied to any but that form of government. Without that assent, express or implied, there will be wanting the great essential to all rightful government.

The Declaration of Independence, in self-justification, has consecrated the sacred right of revolution: "Whenever any form of government becomes destructive of the inalienable rights of man." Under his right to overthrow a tyrannical government, it is attempted now to inaugurate a new dogma, which shall give a bare majority the right to overthrow, when and how they please, a constitution that destroys none of the inalienable rights of men. We are told that this is a divine, inalienable right of the majority, which, if it could be alienated. for a day, could be done forever; that the majority cannot so fetter its own power and cannot even temporarily resign its divine right to enslave the minority. This is a new teaching to the nation, who have never heretofore been taught faith in any such divine right of majorities. All our written constitutions, our jurisprudence, and our legislation teach an entirely different lesson. They teach that the rule of the bare majority

governing should nowhere prevail except as a matter of necessity, and that there are various matters about which a bare majority should not be trusted with power. Prominent among those stands the power, by convention or otherwise, to abolish or amend a constitution. There is not one of our written constitutions which provides for its own amendment or revision, that does not put restraint upon the will of the majority in accomplishing an amendment or revision; not one that does so restrain it in ordinary legislation, and not one that does not disregard it altogether as to certain sacred subjects, and among them the unanimity required in the verdicts of juries. The teaching of all gives anything rather than a divine origin or inalienable sanctity to the rights of majorities. Such concurrence on the part of the whole nation must place the justice and policy of limiting the power of the majority upon an impregnable basis. He must be a bold man indeed who would endeavor to enforce his peculiar notions to the contrary.

Mr. Buchanan is that man. In his Kansas message, in order to extenuate the injustice of forcing the Lecompton Constitution upon the Territory against the known will of four-fifths of its voters, he says the injustice will be only temporary, because, as he says, the majority will have the immediate right and power to abolish this Constitution and adopt another, even though the Constitution itself says it shall not be altered for six years. This novel heresy against civil liberty is so important that it should be stated in Mr. Buchanan's own words. Here they are:

"The will of the majority is supreme and irresistible, when expressed in an orderly and lawful manner. It can unmake constitutions at pleasure. It would be absurd to say that they can impose fetters on their own power which they cannot afterwards remove. If they could do this, they might tie their own hands just as well for a hundred as for ten years.

"If, therefore, the provision for changing the Constitution of Kansas after the year 1864 would be constituted into a prohibition to make such change, previous to that period, it would be wholly unavailing. The Legislature already elected may, at its first session, adopt all necessary means for giving effect to the popular will.”