14 



society hath engaged to provide, in lieu of those natural 

 liberties so given up by individuals." 



From the world-wide difference of construction between the 

 founders of our State and the illustrious commentator, it will 

 be perceived that it is not from Magna Charta alone, that we 

 derive our institutions. We must look elsewhere ; for just as 

 are the principles enunciated in the great charter and inesti- 

 mable as the rights secured by it, they are all consistent 

 with a theory of government, which our fathers rejected and 

 which we shall be slow to adopt. Before, however, looking 

 for the causes which led to such different constructions of the 

 rights of persons, and to such different results in relation to 

 the theory of government, I beg to call attention to a veiy 

 prevalent, and, it may become, a very dangerous error. It has 

 been supposed that what would be usurpation in an indi- 

 vidual, if he were despot, autocrat, emperor, or monarch of 

 any description, might be a legitimate exercise of authority 

 if done under a popular government and with the sanction 

 of a majority of the people ; or in other words, that it is the 

 duty of a minority in a popular government always to acqui- 

 esce in and submit to, as right, whatever shall be so deemed 

 by the majority. The nature of the government makes no 

 difference in the true power of the government. Whatever 

 is within the true sphere of government may be done, Avhether 

 the nature of the government be what is called despotic or 

 what is called popular; and whatever is not within its legiti- 

 mate province can be done by neither. It was precisely to 

 define what does belong to government, and what does not* 

 that written constitutions were devised. Those constitutions, 

 the product of our institutions, organize society and define 

 the province to which government is limited. So well had 

 been considered this subject that I have endeavored to illus- 

 trate and enforce — the great truth, that government has but 

 two rightful purposes to accomplish — the protection of itself 

 and the security to each person of the widest freedom of indi- 

 vidual, independent opinion and conduct — that it was taken 



