2. CHAPTER II
OF THE SOCIAL CONTRACT
Upon the first statement of the system of a social contract various difficulties
present themselves. Who are the parties to this contract? For whom did they
consent, for themselves only, or for others? For how long a time is this
contract to be considered as binding? If the consent of every individual
be necessary, in what manner is that consent to be given? Is it to be tacit,
or declared in express terms?
Little will be gained for the cause of equality and justice if our ancestors,
at the first institution of government, had a right indeed of choosing the
system of regulations under which they thought proper to live, but at the
same time could barter away the understandings and independence of all that
came after them, to the latest posterity. But, if the contract must be renewed
in each successive generation, what periods must be fixed on for that purpose?
And if I be obliged to submit to the established government till my turn
comes to assent to it, upon what principle is that obligation founded? Surely
not upon the contract into which my father entered before I was born?
Secondly, what is the nature of the consent in consequence of which I
am to be reckoned a party to the frame of any political constitution? It
is usually said "that acquiescence is sufficient; and that this acquiescence
is to be inferred from my living quietly under the protection of the laws."
But if this be true, an end is as effectually put to all political science,
all discrimination of better and worse, as by any system invented by the
most slavish sycophant. Upon this hypothesis every government that is quietly
submitted to is a lawful government, whether it be the usurpation of Cromwell,
or the tyranny of Caligula. Acquiescence is frequently nothing more, than
a choice on the part of the individual, of what he deems the least evil.
In many cases it is not so much as this, since the peasant and the artisan,
who form the bulk of a nation, however dissatisfied with the government of
their country, seldom have it in their power to transport themselves to another.
It is also to be observed upon the system of acquiescence, that it is in
little agreement with the established opinions and practices of mankind.
Thus what has been called the law of nations, lays least stress upon the
allegiance of a foreigner settling among us, though his acquiescence is certainly
most complete; while natives removing into an uninhabited region are claimed
by the mother country, and removing into a neighbouring territory are punished
by municipal law, if they take arms against the country in which they were
born. But surely acquiescence can scarcely be construed into consent, while
the individuals concerned are wholly unapprised of the authority intended
to be rested upon it.[1]
Locke, the great champion of the doctrine of an original contract, has
been aware of this difficulty, and therefore observes that "a tacit
consent indeed obliges a man to obey the laws of any government, as long
as he has any possessions, or enjoyment of any part of the dominions of that
government; but nothing can make a man a member of the commonwealth, but
his actually entering into it by positive engagement and express promise
and compact."[2] A singular distinction! implying upon the face of
it that an acquiescence, such as has just been described is sufficient to
render a man amenable to the penal regulations of society; but that his own
consent is necessary to entitle him to the privileges of a citizen.
A third objection to the social contract will suggest itself, as soon
as we attempt to ascertain the extent of the obligation, even supposing it
to have been entered into in the most solemn manner by every member of the
community. Allowing that I am called upon, at the period of my coming of
age for example, to declare my assent or dissent to any system of opinions,
or any code of practical institutes; for how long a period does this declaration
bind me? Am I precluded from better information for the whole course of my
life? And, if not for my whole life, why for a year, a week or even an hour?
If my deliberate judgement, or my real sentiment, be of no avail in the case,
in what sense can it be affirmed that all lawful government is founded in
consent?
But the question of time is not the only difficulty. If you demand my
assent to any proposition, it is necessary that the proposition should be
stated simply and clearly. So numerous are the varieties of human understanding,
in all cases where its independence and integrity are sufficiently preserved,
that there is little chance of any two men coming to a precise agreement,
about ten successive propositions that are in their own nature open to debate.
What then can be more absurd, than to present to me the laws of England in
fifty volumes folio, and call upon me to give an honest and uninfluenced
vote upon their contents?
But the social contract, considered as the foundation of civil government,
requires of me more than this. I am not only obliged to consent to all the
laws that are actually upon record, but to all the laws that shall hereafter
be made. It was under this view of the subject that Rousseau, in tracing
the consequences of the social contract, was led to assert that "the
great body of the people in whom the sovereign authority resides can neither
delegate nor resign it. The essence of that authority," he adds, "is
the general will; and will cannot be represented. It must either be the same
or another; there is no alternative. The deputies of the people cannot be
its representatives; they are merely its attorneys. The laws which the community
does not ratify in person, are no laws, are nullities."[3]
The difficulty here stated, has been endeavoured to be provided against
by some late advocates for liberty, in the way of addresses of adhesion;
addresses originating in the various districts and departments of a nation,
and without which no regulation of constitutional importance is to be deemed
valid. But this is a very superficial remedy. The addressers of course have
seldom any other alternative, than that above alluded to, of indiscriminate
admission or rejection. There is an infinite difference between the first
deliberation, and the subsequent exercise of a negative The former is a real
power, the latter is seldom more than the shadow of a power. Not to add,
that addresses are a most precarious and equivocal mode of collecting the
sense of a nation. They are usually voted in a tumultuous and summary manner;
they are carried along by the tide of party; and the signatures annexed to
them are obtained by indirect and accidental methods, while multitudes of
bystanders, unless upon some extraordinary occasion, remain ignorant of or
indifferent to the transaction.
Lastly, if government be founded in the consent of the people, it can
have no power over any individual by whom that consent is refused. If a tacit
consent be not sufficient, still less can I be deemed to have consented to
a measure upon which I put an express negative. This immediately follows
from the observations of Rousseau. If the people, or the individuals of whom
the people is constituted, cannot delegate their authority to a representative,
neither can any individual delegate his authority to a majority, in an assembly
of which he is himself a member. That must surely be a singular species of
consent, the external indications of which are often to be found, in an unremitting
opposition in the first instance, and compulsory subjection in the second.
[[1]]
Hume's Essays, Part II, Essay xii.
[[2]]
Treatise of Government, Book II, Chap. viii, § 119, 122.
[[3]]
'La souverainetè ne peut être représentée,
par le même raison qu'elle ne peut être aliénée;
elle consiste essentiellement dans la volonté générale,
et la volonte ne se représente point: elle est la même, ou elle
est autre; il n'y a point de milieu. Les députés du peuple
ne sont donc point ses représentans, ils ne sont que ses commissaires;
ils ne peuvent rien conclure définitivement. Toute loi que le peuple
en personne n'a pas ratifiée, est nulle; ce n'est point une loi.'
Du Contrat Social, Liv. III, Chap. XV.