Consent of the governed

“ The framers of our system of government embodied in the Declaration of Independence the statement that to secure the rights which are therein declared to be inalienable and in respect to which all men are created equal, "governments are instituted among men deriving their just powers from the consent of the governed." ”

“ It can only derive its just powers from the consent of the governed, and can be established only under a fundamental law which is self-imposed. Every citizen of suitable age and discretion has, in my judgment, a natural right to participate in its formation. ”

“ In the thirteenth century, when we get the beginnings of representative government, there is no question of the people making positive proposals in legislation, but there is a distinct belief that the consent of the governed ought to be obtained by the ruling power. ”

“ It may be argued of course that everyone residing in a settled society, which secures him in his rights of person and property, has the benefit of the society from the mere fact of his residence in it, and is therefore morally bound to accept its laws. But this is to abandon the doctrine of obligation being founded on consent. Residence in a territory governed by a certain sovereign can only be taken to imply consent to the rule of that sovereign, if there is any real possibility of relinquishing it, and this there can scarcely ever be. ”

“ "Our present political position has been achieved in a manner unprecedented in the history of nations. It illustrates the American idea that governments rest on the consent of the governed, and that it is the right of the people to alter or abolish them at will whenever they become destructive of the ends for which they were established. ”

“ Even the most despotic government cannot stand except for the consent of the governed which consent is often forcibly procured by the despot. Immediately the subject ceases to fear the despotic force his power is gone. ”

“ It is to institutions that the consent to be governed is given. The consent is always a highly complex affair. It implies a civilization. It is qualified, limited, infinitely diversified, and is in every case regulated by historic fact. For instance, under a limited monarchy, it is a consent to be governed by a particular dynasty after special ceremonies, tempered by some priesthood, subject to such and such customs,—each and all existing in the imagination of the subject. For government is entirely a matter of the imagination, and it is inconceivable that it should ever be anything else. ”

“ It is further denied that Congress is under any obligation, arising either from the Constitution itself or from the precedents of the Nation's action under it, to ask the consent of the inhabitants in acquired territory to the form of government which may be given them. ”

“ But they deem it their duty solemnly to declare that, while they hold sacred the principle, that consent of the people is the only pure source of just and legitimate power, they cannot admit the right of the state legislatures to denounce the administration of that government to which the people themselves, by a solemn compact, have exclusively committed their national concerns. ”

“ By the Constitution, they said, their consent was essential to the validity of the laws enacted by the People, and it would tend the better to facilitate the several matters, which had to be transacted with them, for the representatives of the People to show a regard to them and their interest. ”

“ A sovereign, committing the interests of his nation with a foreign power to the care of a person, whom he has selected for that purpose, cannot intend to subject his minister in any degree to that power; and, therefore, a consent to receive him implies a consent, that he shall possess those privileges, which his principal intended he should retain—privileges which are essential to the dignity of his sovereign, and to the duties he is bound to perform. ”

“ Also we must realize that the authority that makes the law is itself superior to it, and that if it consents to apply to itself the rules that it applies to others the consent is free and may be withheld. ”

“ Nothing is said of the manner in which this consent may be given by the State or accepted by the Nation. But if this important limitation can in any way be made the subject of agreement or compact, pray, Sir, where will you stop? What other power or prerogative of the State may not be limited also, especially where there is nothing in the Constitution against any such limitation? All this I adduce simply by way of illustration. There is no question now of any limitation, in the just sense of this term. ”

“ It assails the doctrine of conventions, which invests the people, by representation, with unlimited power. It assails all our constitutions, under which the people, by representation, possess an uncontrolled legislative and executive power. And instead of the sovereignty fully, fairly and honestly allowed to the people by our policy, it limits their rights to the subordinate privilege of consenting to law. A law is irrepealable by consent, and one, obtained by surprise, manacles a nation forever. ”

“ It is consent alone, that makes any human laws binding; and as a learned author observes, a purely voluntary submission to an act, because it is highly in our favor and for our benefit, is in all equity and justice, to be deemed as not at all proceeding from the right we include in the Legislators, that they, thereby obtain an authority over us, and that ever hereafter, we must obey them of duty. ”

“ It was, therefore, as individuals, and only as individuals, each acting for himself alone, that they declared that their consent—that is, their individual consent, for each one could consent only for himself—was necessary to the creation or perpetuity of any government that they could rightfully be called on to support. ”

“ There is, therefore, no alternative but to say, either that the separate, individual consent of every man, who is required to aid, in any way, in supporting the government, is necessary, or that the consent of no one is necessary. ”

“ By what reasons, then, is the law induced to allow this far-reaching operation to the fact of agreement? Why should the mere consent of the parties be permitted in this manner to stand for a title of right? Are not rights the subject-matter of justice, and is justice a mere matter of convention varying with the wills of men? ”

“ Any restriction upon it, deriving validity from an external source, would imply a diminution of its sovereignty to the extent of the restriction, and an investment of that sovereignty to the same extent in that power which could impose such restriction. All exceptions, therefore, to the full and complete power of a nation within its own territories, must be traced up to the consent of the nation itself. ”

“ No body can have a power to make laws over a free people, but by their own consent, and by authority receiv'd from them: It follows then, either that the people of this province have consented & given authority to the parent state to make laws over them, or that she has no such authority. ”

“ How any man can have consented to institutions established in distant ages, it will be difficult to explain. In the most favourite residence of liberty, the consent of individuals is merely passive, a tacit admission in every community of the terms which that community grants and requires. As all are born the subjects of some state of other, we may be said to have been all born consenting to some system of Government. ”

“ But I do not rest this point on judicial authority, a higher power confers inviolable sanctity on the right of the inhabitants, and proprietors of land in the disputed territory, which this Court will never question. The ordinance of 1787 is declared to be a compact between the original states and the people and states in the said territory, and 'shall forever remain inviolable, unless by common consent.' 1 Laws of the United States, 478. ”

“ The sovereign who attempts to transfer his kingdom to another by his sole authority does an act in itself null and void, and not binding on his subjects. To make such a conveyance valid, the consent of the people is required, as well as of the prince. ”

“ For as the remove of the old laws and customs are by the people's consent, which is proved by their frequent petitioning and requests of such a thing: so the enacting of new laws must be by the people's consent and knowledge likewise. ”

“ That consent, taken in connection with the conditions upon which the award was authorized, operated as an approval of the original compact, and of its continuance in force under the sanction of congress. The consent of congress to any agreement or compact between two or more states is sufficiently indicated, when not necessary to be made in advance, by the adoption or approval of proceedings taken under it. ”

“ The law, the statute, is not the agreement, but something created by the agreement; and something which, when created, has a new character, and acts by its own authority. So the Constitution of the United States, founded in or on the consent of the people, may be said to rest on compact or consent; but it is not itself the compact, but its result. When the people agree to erect a government, and actually erect it, the thing is done, and the agreement is at an end. ”

“ When there are three bodies so concerned in the legislation that the united consent of all is indispensable to give validity to any act, to claim for any one of them so paramount an authority that, even if it should adopt a manifestly mischievous course, neither of the others should have the right to control or check or correct the error, would be to make that body the irresponsible master of the whole government and nation ”

“ This business can only belong to him who continually overlooks the whole community and its requirements, and who is responsible for the continuous supreme rule of the law: to the administrator of the executive power. He proclaims the matter of the law, as given in the conception of Rights and in the geographical position of the state; which matter receives its form, that is, its binding power over each individual, only by that individual's consent, that is, his consent to remain in the state, but not expressly his consent to any particular law. ”

“ If he does not, the government must remain unchanged, unless the sovereign consents to an alteration. In America, our governments have been clearly created by the people themselves. The same authority that created can destroy; and the people may undoubtedly change the government, not because it is ill exercised, but because they conceive another form will be more conducive to their welfare. I have stated the reasons for departing from the rigid article in the Confederation requiring a unanimous consent. ”

“ Russell & Co. (288 U.S. 476, 53 S.Ct. 447, 77 L.Ed. 903) , supra: 'The federal nature of the right to be established is decisive-not the source of the authority to establish it.' Here the right to be established is one created by the state. If that is so, it is unimportant that federal consent is the source of state authority. ”

“ for metaphysicians and politicians may dispute forever, but they will never find any other moral principle or foundation of rule or obedience, than the consent of governors and governed. ”

“ Nothing in this Republic can be law without consent—the free consent of the House; the free consent of the Senate; the free consent of the Executive, or, if he refuse it, the free consent of two-thirds of these bodies. Will any man deny that? Will any man challenge a line of the statement that free consent is the foundation rock of all our institutions? And yet the programme announced two weeks ago was that if the Senate refused to consent to the demand of the House, the Government should stop. ”

“ The only idea they have ever manifested as to what is a government of consent, is this—that it is one to which everybody must consent, or be shot. ”

“ Magna Charta, and Declaration of Rights, only say that such powers shall not be exercised but with consent of Parliament; and experience has proved that the making their consent necessary has sufficiently secured a proper exercise of those powers. The best writers also agree that such powers may always be lodged with representatives. We have all the security which a people sensible and jealous of their liberties can wish for. ”

“ On this subject can any thing be more pointed than the provisions of the constitution, which, contrary to most of the other provisions, cannot be altered but with the consent of every State in the Union. Why then shall we cry over what we cannot prevent, like a school boy? Each State, so long as she confines herself within the limits of her constitutional powers, must be the exclusive judge of her own conduct; and it becomes not one State, influenced by different feelings, habits, and interests, to pronounce upon the conduct of another. ”

“ Again: 'The suability of a state without its consent was a thing unknown to the law. This has been so often laid down and acknowledged by courts and jurists that it is hardly necessary to be formally asserted. ”

“ The terms and conditions, upon which any society is formed and organized, must' essentially depend upon the will of those, who are associated; or at least of those, who constitute a majority, actually controlling the rest. Originally, no man could have any right but to act for himself; and the power to choose a chief magistrate or other officer to exercise dominion or authority over others, as well as himself, could arise only upon a joint consent of the others to such appointment; and their consent might be qualified exactly according to their own interests, or power, or policy. ”

“ For if they are free, and able to make their own laws, the consent of the whole people expressed by a custom counts far more in favor of a particular observance, that does the authority of the sovereign, who has not the power to frame laws, except as representing the people. ”