tience, so long extended to the petitioners, it would be unworthy of the high character of the petitioners themselves.

Having presented to you by the evidence, the wrongs and injuries suffered by the petitioners, in their rights of person and of property, having supplied you with abundance of testimony, showing the manner in which their rights have been violated, having laid before you the ostensible causes which led to the outrage, and satisfied you by the clearest testimony* of its entire groundlessness, I shall not trouble you with any comments upon them, or endeavor to discover the secret springs to the diabolical act, which even now, finds favor in the eyes of some, who hold respectable stations in society, but shall proceed at once to the consideration of those important principles, which are to direct us, in considering this petition. I have avoided going over any statement of facts, leaving, since they are incontrovertible, their necessary application to the legal and equitable considerations, I am now about to propose to you.

We boast that we live under a constitution or frame of government which gives to every citizen full protection in his life, liberty and property, that we live under a constitution or frame of government, which is written down, and which all eyes may see; and this constitution contains the principles of our association as a people. It contains the elements and first principles of our laws; it cannot be changed without our consent; it is in short, the magna charta of our liberties. We look upon it and cherish it, as the title deed of our rights, warranted to us, guaranteed to us, by the bond of every one, who lives under it and claims from it equal rights with ourselves. It is to this we are first to look, when we are wronged, for redress. The constitution is the compact that binds us, it is the contract which the government enters into with the subject, and a breach of it on either side must bring with it a remedy commensurate with the injury.

These principles no one will, we think, controvert; let us

* Certificates of Cutter and Selectmen of Charlestown, in Note 5, Appendix A.

then examine this important instrument and see whether living under it, constitutes protection, subscribing to it, a security to us in the enjoyment of our lives, our liberties and our property. For this purpose, I will group together such parts of it, as I shall have occasion to refer to.

"The end of the institution, maintenance and administration of government is, to secure the existence of the body politic, to protect it, and to furnish individuals who compose it, the power of enjoying in safety and tranquillity their mutual rights and the blessings of life." "It is a social compact, by which the whole people covenants with each citizen and each citizen with the whole people, that we shall be governed by certain laws for the common good."

"Article 1. All men are born free and equal and have certain natural, essential and unalienable rights, among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing and protecting property; in fine, that of seeking and obtaining safety and happi

ness.

Article 10. "Each individual has a right to be protected by it (the government) in the enjoyment of life, liberty and property, according to standing laws. He is obliged consequently to contribute his share to the expense of this protection."

Article 11. 66 'Every subject of the Commonwealth ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs, which he may receive in his person, property or character."'*

I have stated these, as parts of the contract, between the government with each of its citizens, which will be brought into view in the consideration of the petitioners' case. They have sustained an injury, their rights of property have been sacrificed, and their lives endangered, by an open attack upon them, in the very face of the law. The statutes and the constitution have not been secretly evaded, but openly and wantonly violated in the person and property of these petitioners. By the terms of the contract between them and the government, they have "a right to be protected" in the enjoyment of life, liberty and property, and if that protection fails them, they "ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs," which they may receive in their persons, property or character.

*Constitution of Massachusetts.

The first question is, admitting the wrong, admitting them to be the innocent victims through whom the wrong has been done, and through whom the law has been violated,did the government contract or was it bound, to protect these petitioners, in their lives, persons and property? If so, has it provided any certain laws, by which that protection was ensured? and if it has not, is the government now bound to make reparation to them, for the loss that has been occasioned? I had almost assumed that such was the nature of the relation between the government and the subject, — that it was a contract, so palpable does this relation appear.

Government is properly defined to be an association by a people, enacting rules of conduct for the common good. Men surrender some of their natural rights to the government for this common good; they do not surrender them without an equivalent; they surrender, for instance, the rights of reprisal for wrongs committed to the government, and receive in lieu of it, the right of protection, and in case of attack, a sufficient legal remedy. This is common knowledge. The association is a compact; every association, that is voluntary is a compact or agreement, and the declaration therefore which shows that there is a compact, necessarily points out the terms of it. When the subjects of Great Britain compelled their rulers to establish the charters of their liberties, it was nothing more than a declaration of the contract between them. It was a contract put in writing, which was binding upon the subject and the prince. The magna charta of England, is the title deed, under which men acquire* and enjoy their rights, and like every deed contains covenants for their acquisition and enjoyment. Our constitu

*The establishment of magna charta, and its generous provisions for all classes of freemen against the complicated oppression of the feudal system; the petition of right, early in the reign of Charles I, asserting by statute the rights of the nation as contained In their ancient laws, and especially in "the great charter of the liberties of England" and the bill of rights at the revolution in 1688," were so many contracts, defining the duties of government and people. These bills of rights are "the muniments of freemen, shewing their title to protection.

tion is a social compact, an agreement, in which the whole people, that is, the government, covenants with each citizen. Man gives up his natural rights by this contract, for certain social rights, his natural, for political liberty, — a portion of his rights are surrendered to the other contracting power, for the protection of the remainder, — that protection is contracted to be given in consideration of the surrender. 1 Bl. Com. 126. Allegiance and submission is the right of the governor, protection, the right of the people. 1 Bl. Com.

123.

It

Establishing then this position, we are next to inquire, if protection against riots, or other forcible and illegal acts committed by one man or one set of men, upon the rights of person or property of another, is one of the terms of the contract between this Commonwealth and its citizens, and it is only necessary to ask the question, to perceive the answer. certainly is, for this is plainly and unequivocally stated to be the great object of the association. An infraction of the duty of submission on the part of the subject to the law, is punishable by the terms of the compact, and there should be some remedy for a failure of protection. A failure on the part of the government in the duty of protection, is a breach of the contract on their part. "Each individual has a right to be protected by it," (the government,) are the words of the compact, in the enjoyment of life, liberty and property, according to standing (that is fixed and known) laws;" and laws must be made that shall attain this object, — for, says the constitution again, "every subject ought to find a certain remedy by having recourse to the laws, for all injuries or wrongs, he may receive in his person, property or char

It being shewn then, that the constitution is nothing but a compact or agreement between the whole people, that is, the government, with its members, by which each surrenders to the whole, certain natural for political rights; that among the number, is the natural right of remedying by force the wrongs committed against one's person and property; that in con

sideration of this surrender by the subject, the government agrees to become the protector of the person and property of the subject, by providing him with a certain remedy "for all injuries and wrongs, he may receive in his person, property or character;" the next inquiry is, whether the government has performed that part of their contract.

They are bound to protect the subject, and this is to be accomplished in one of two ways. -1st. By the enactment of sufficient laws, for the prevention, as far as is possible, of injuries or wrongs; and 2d, by affording to the subject, a certain remedy, in case the law fails to prevent the injuries and wrongs complained of. Preventive laws may be sufficient or not, according to the nature of the crime or act to be prevented and a law that may seem sufficient, will not be so, unless means are also taken to protect it from open violation. The law in itself may be sufficient, but it will be treated by the jurist as no law at all, unless there goes with it the power of enforcing it. A law, that can be disregarded with impunity, is a nullity, and the government fails in its contract, unless it enforces the law which it ordains for the protection of the subject. In the present case, we do not complain, that the law punishing the actual outrage upon our rights was insufficient, but that the provisions against the first illegal steps, which led to its occurrence were wholly inadequate. The lives of the petitioners have been endangered, their property has been destroyed by an open systematic violation of the law; now if the government are in fault, if this has happened through their remissness in not providing for the enforcement of their laws, it is the same thing as if they had passed no laws at all. By enacting laws against outrages, of which we complain, they admit the claim we have upon their protection. What laws have they passed against riots, that led to the criminal acts, by which we are the sufferers ?*

By stat. 1786, c. 38, be it enacted that "if any persons, to

*The petitioners paid taxes on the real estate alone, in Charlestown, at the rate of about seventy dollars per year.