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.
, Part II, Essay xii.
2Treatise of Government
, Book II, Chap. viii, § 1l9, 122.
'La souveraineté 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
III, Chap. XV.