laws of a state, but also those laws which are called fundamental, or which define the established constitution or sovereign power.

This species of authority, which gives legal force and stability to the executive and legislative powers in every country, is not of a novel description. It is in fact precisely the same thing as what is called "prescription;" which I believe is the most secure foundation for all the personal or political rights by which our property, lives and liberties are secured.---It appears to me clearly to follow from hence, that whenever the constitutional authority of a state is founded on this sound legal basis of prescription, any proposal to introduce, at a subsequent period a new power, is, in every case, an attempt to alter its constitution, and in many, may amount to an attempt to subvert it.---I shall not presume to define what particular acts would amount to a moderate proposal for alteration, or reform; or what would amount to an attempt to destroy the ancient constitution of a state, and to substitute a new one, as matter of experiment, in its place.---Still less shall I venture to give an opinion whether the proposal to be deduced from the resolution which I have been discussing, is of the former or of the latter description. I shall content myself, in this place, by referring to the next head of discussion, in which I shall endeavour to shew what is the true practical meaning to be deduced from the extraordinary Resolution.-In the mean time, however, I must be permitted to say, that I think it not quite prudent to make the constitutions of states a subject for experiments, especially when the alteration to be proposed, means to alter or modify its fundamental laws.Vattel tells us, that "great changes in a "state are delicate and dangerous operations;" and that "innovations are not to be made, without the "most pressing reasons, or an absolute necessity."---It can never be said too often, that "the example of

that men were acquainted with the arts of government a priori," before society existed; and I think it would not be very easy to discover, when, where and how, such a period could exist.--But, passing by all speculation on such a subject, it is pretty clear that certain rules and regulations, few and simple, must have been acted upon, from the very first commencement of society, and from thence it necessarily follows, that some person, or assembly of persons, or both united, must have in fact carried these rules and regulations into effect, and have had power to enforce them. An "executive power" must, therefore, have immediately existed. It is perfectly obvious, that new wants and new duties would soon call for new rules and regulations, and that some person, or assembly of persons, must contrive and propose them. Hence a sort of "legislative power," or the office of making laws, must have soon followed."

If these rules and regulations, at first adapted only te present circumstances, were found in further practice, beneficial, and if these first executive and legislative powers acted honestly and wisely, they would necessarily be acquiesced in, and the longer they were acquiesced in, the whole system and primitive, constitution would from year to year possess greater authority; till by degrees it would acquire a title to its continuance by prescription which supposes originally, or rather is equivalent, in effect, with, what is called common consent; which in this sense is, by a sort of fiction, supposed to mean the concurrent consent of the individuals composing the society; I say, by a sort of fiction, because I think it impossible, for the reasons before given, that any formal assent in fact, in the nature of a contract, can ever have had any existence.

It is perfectly obvious, that this species of concurrent assent not only sanctions and confirms the first

laws of a state, but also those laws which are called fundamental, or which define the established constitution or sovereign power.

This species of authority, which gives legal force and stability to the executive and legislative powers in every country, is not of a novel description. It is in fact precisely the same thing as what is called "prescription;" which I believe is the most secure foundation for all the personal or political rights by which our property, lives and liberties are secured.---It appears to me clearly to follow from hence, that whenever the constitutional authority of a state is founded on this sound legal basis of prescription, any proposal to introduce, at a subsequent period a new power, is, in every case, an attempt to alter its constitution, and in many, may amount to an attempt to subvert it.---I shall not presume to define what particular acts would amount to a moderate proposal for alteration, or reform; or what would amount to an attempt to destroy the ancient constitution of a state, and to substitute a new one, as matter of experiment, in its place.--Still less shall I venture to give an opinion whether the proposal to be deduced from the resolution which I have been discussing, is of the former or of the latter description. I shall content myself, in this place, by referring to the next head of discussion, in which I shall endeavour to shew what is the true practical meaning to be deduced from the extraordinary Resolution.-In the mean time, however, I must be permitted to say, that I think it not quite prudent to make the constitutions of states a subject for experiments, especially when the alteration to be proposed, means to alter or modify its fundamental laws.--Vattel tells us, that "great changes in a "state are delicate and dangerous operations;" and that "innovations are not to be made, without the "most pressing reasons, or an absolute necessity."--It can never be said too often, that "the example of

"France ought to be a warning to Great Britain." Reform was also the cry in that country.---The Reformers themselves, who meant well, were the first victims of their own presumption; and it will be difficult to say what established class of society has not suffered by the events in France.--I believe that all have suffered, and are still suffering, to an extent, and in a degree, before unheard of.

I shall now proceed to consider; 1st. the application of this general doctrine to the Constitution of Great Britain; 2dly, I shall offer some comments on the meaning of the words "common consent" in Parliament, and by ACT of PARLIAMENT, as used in the Petition of Right.

In examining the first question, I shall not use one word of my own. I find my sentiments most accurately conveyed in the words of the late Sir Eardley Wilmot, Chief Justice of the Common Pleas, whose talents, learning, rank and integrity, give as much authority to an individual opinion as that of any constitutional lawyer who can be named.---The whole paper is to be found in the history of his life, and is said to have been composed by him on the supposition, that the Judges would be called upon to give their opinion in the House of Peers on the question of the constitutional right to tax America, no one state or town of which had any representative in the British Parliament. I omit of course all that relates to that question, which has no common feature with the present; the passage however which I quote is entire. "The obligation "i. e. to pay taxes in England) arises from the original "contract expressed or implied, by which individuals "have agreed to pay what the supreme legislative

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power commands them to pay. That contract ascer→ "tains how that supreme legislature should be consti"tuted; that is, the King, the House of Lords, and a ર body of men, to be from time to time nominated by,

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a particular class, intrusted by the whole community "with that nomination.---But the members of that "association are not bound to pay a tax because they

are represented; but because they have agreed to pay "what the supreme power, consisting of that represen"tative, together with the King and the House of "Lords, shall command them to pay. What proves "this doctrine beyond the possibility of a doubt, is, "that the Representatives can no more give their "Constituents' money away without the concurrence "of the King and the House of Lords, than the King " and the Lords could take it without their con

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currence.

"The forms and fashions of passing money bills, "do not vary and alter the source of the obligation, "which reaches all indiscriminately, whether they have "a voice in the elections of the members of the House of "Commons, or not."

"The consent of the non-electors lies a degree "lower; but it lies at the bottom as to every exertion "of legislative anthority, as well as the original contract, "to make the nomination. It is the nomination of the "whole community by the medium of a defined part of "it. The only difference is, that the electors may change the individuals they name at every new elec "tion. But the non-electors cannot vary the electors "whom they have agreed to intrust with the nomination "for them. But still they consent to be bound by "what those representatives do in concurrence with "the King and the Lords."

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I shall now offer, in conclusion, some comments on the words "common consent" in Parliament, and by act of Parliament.-I must, in the first place, observe that I believe this is the very first case in the history of the world, in which an attempt has been made to introduce a most material alteration in the Constitution of a great country, by a new interpretation of a single