THE political capacity of the English people is due in large measure to their great ingenuity in inventing political theories, and their obstinate skepticism in refusing to believe in them. Perhaps no better illustration of these qualities can be found than in the history of that extraordinary theory which, under the name of the “ social compact,” influenced deeply the political life of Europe and America for two centuries. And it is not the least singular fact about a doctrine which proved so destructive to the existing order of things in Europe that it should have originated with a clergyman of the Church of England, and should have been invented by him for the purpose of defending the Established Church against the attacks of its enemies. The truth is, that during the reign of Elizabeth, and for a good while afterwards, the Church of England occupied a very difficult position; for it was assailed on one side by the Catholics, who claimed the authority of a divinely inspired church, and on the other by the Puritans, who referred their system of organization to the express teaching of the Bible. Under these circumstances, the “ judicious Hooker,” as he was afterwards called, instead of meeting his opponents on their own ground by claiming a divine origin for the English ecclesiastical system, parried their attacks by denying that any religious body is under direct, divine guidance in all matters, and asserting that laws for the government of the church may be made by men, and that if according to reason and not repugnant to Scripture they are authorized by God.
Hooker begins his Ecclesiastical Polity1 with a discussion of laws in general. He treats of the condition of men before the existence of civil society, and shows how force might then be resisted by force, and no one had a right to constitute himself a judge in his own case. To escape from this state of things “ there was no way but only by growing unto composition and agreement amongst themselves, by ordaining some kind of government public, and by yielding themselves subject thereto.” A father, he says, has by nature a supreme power within his own family, but rulers “ not having the natural superiority of fathers, their power must needs be either usurped, and then unlawful; or, if lawful, then either granted or consented unto by them over whom they exercise the same, or else given extraordinarily from God, unto whom all the world is subject.” Disregarding this second alternative, Hooker bases government upon the consent of the governed. Not that these need give a special assent to each separate law, for it is enough if they agree, once for all, that their rulers shall have authority to make laws for them. “ And to be commanded we do consent,” he says,
“ when that society, whereof we are part, hath at any time before consented, without revoking the same after the like universal agreement. Wherefore as any man’s deed past is good as long as himself continueth; so the act of a public society of men done five hundred years sithence standeth as theirs who presently are of the same societies, because corporations are immortal; we were then alive in our predecessors, and they in their successors do live still. Laws therefore human, of what kind soever, are available by consent.”
Such was the origin of the theory of the social compact; for although the idea that the authority of the ruler is conferred upon him by the people was not new, I am not aware that any one before Hooker deduced the lawfulness of laws from the voluntary association of individuals to form a civil society.
It would not be safe, however, to make too positive in regard to Hooker’s claim as first inventor, and it is by no means impossible that the theory may have been originated by several persons independently during the last part of the sixteenth and the early part of the seventeenth centuries. The course of thought had for many years been such as to prepare men’s minds to produce and accept a theory of this kind; and, indeed, the doctrine that the power of the king is derived from the consent of his people had recently become very prominent, and had developed until it assumed a form only a little less complete than that of the theory enunciated by Hooker. The desire to get rid of an obnoxious monarch always acted as a strong spur to drive men to opinions which made his tenure of power dependent upon the will of his subjects. The English and Scotch Protestants smarting under the persecutions of the two Marys, the Catholic league in France furious with Henry III., and in their train the Jesuits, all insisted on the right of deposing a king, and often went so far as to justify his assassination. There was, to be sure, a difference in their doctrines, for many of the Catholics maintained that a king must be deposed by the Pope before he could be murdered by a subject, while the Protestants had no such weapon at their command.
The theory once started soon became popular, and before long it was put into practice ; and in fact the first social compact known to history was made on the 11th of November, 1620, in the cabin of the Mayflower. It was clearly no desire to uphold the polity of the Church of England which induced the Pilgrim Fathers thus to emerge from a state of barbarism ; nor does this document appear to have been the result of any democratic doctrines, but rather, as Bradford tells us, of threats of insubordination on the part of certain persons on board, whom no one had power to control, because the patent issued in favor of the Pilgrims covered only a part of the territory then called Virginia, and did not extend to New England.2 The colonists found themselves much in the position of the navigator who sailed off his chart, and was obliged to invent a new one to cover the emergency. The agreement was probably signed by all the men of the party, and it reads as follows : —
“ In ye name of God, Amen. We whose names are underwriten, the loyall subjects of our dread soveraigne Lord, King James, by yc grace of God, of Great Britaine, Franc, & Ireland king, defender of ye faith, &c., haveing undertaken, for ye glorie of God, and advancemente of ye Christian faith, and honour of our king & countrie, a voyage to plant ye first colonie in yc Northerne parts of Virginnia, doe by these presents solemnly & mutualy, in ye presence of God, and one of another, covenant & combine our selves togeather into a civill body politick, for our better ordering & preservation & furtherance of ye ends aforesaid ; and, by vertue hearof to enacte, constitute, and frame such just & equall lawes, ordinances, acts, constitutions, & offices, from time to time, as shall be thought most meete & convenient for ye generall good of ye colonie, unto which we promise all due submission and obedience. In witnes wherof we have hereunder subscribed our names at Cap-Codd ye 11. of November, in ye year of y° raigne of our soveraigne lord, King James, of England, France, & Ireland ye eighteenth, and of Scotland ye fiftie fourth. An° : Dom. 1620.”
The theory of the social compact was not exhausted by this first experiment, but was taken up by Hugo Grotius in his work, De Jure Belli et Pacis, which appeared in 1625. He declares that “ the mother of Natural Law is human Nature itself, and the mother of Civil Law is that very obligation which arises from Consent, which deriving its Force from the Law of Nature, Nature may be called, as it were, the Great Grandmother of this Law also.” Grotius, while inclining to absolute monarchy, says that the questions, in what persons or bodies sovereignty resides, how it is limited and divided, and whether there exists a right to resist and make war upon the sovereign, depend upon the intention of the parties to the contract. But although he founds his political system on the social compact, he dwells upon the theory but little, and it occupies only a very small part of his book. The same thing is true of Milton, who, in his essay entitled The Tenure of Kings and Magistrates,3 traces the outlines of the principles afterwards so fully developed by Locke.
In 1651 the social compact received a new and unexpected turn from the powerful intelligence of Hobbes, the skeptic. This remarkable man wrote during the Commonwealth, and the aversion inspired by some of his religious views was increased to horror by his political theories; for he was an admirer of absolute monarchy, and, strange to say, he made use of the social compact to support his doctrine of the unlimited power of the king. Hobbes appears to have been the first person who really understood the difference between law and morality, and who saw clearly that moral duties do not in themselves impose legal obligations, or confer legal rights. He lays down a series of laws of nature, which he derives from the desire for self-preservation and from the principle that each man ought to be willing in his own interest to strive for peace, and for that end to lay aside part of his natural freedom, and be content “ with so much liberty against other men as he would allow other men against himself.” Thus he starts from a purely self-regarding basis, and yet he brings his precepts up to the standard of the golden rule. The laws of nature, he says, are binding only on the conscience of the individual, and he distinguishes them carefully from laws, properly so called, which are “ the word of him that by right hath command over others; ” a doctrine more elaborately expounded by Austin in his masterly work on jurisprudence. From one of his laws of nature Hobbes draws a conclusion which is sufficiently odd to deserve special notice. He says that where one is trusted to judge between man and man, it is a precept of the law of nature that he judge equally between them. “ And from this,” he continues, “ followeth another law, ' that such things as cannot be divided be enjoyed in common,’ ” or if they can neither be divided nor enjoyed in common, that the entire right be determined by lot. The lot may be arbitrary or natural, and among natural lots he classes primogeniture. Such an explanation of the law of primogeniture is almost as ingenious as the one given in Iolanthe, where the inheritance is likened to a Derby Cup, a sort of racing-prize won by the first-born.
Treating first of the state of nature where " men live without a common power to keep them all in awe,”
Lives in a state of war by nature,” —
a war in which there is no law, and consequently no injustice; in which each man, being bound only by the duty of self-preservation, is entitled to make use of everything for that end, and in which, therefore, each man has a right to everything. It is to get themselves “ out from that miserable condition of warre,” he tells us, that men who naturally love liberty are willing to put a restraint upon themselves and live in commonwealths. Now a man may renounce or transfer any portion of his rights, and when he has done so he is bound not to hinder those to whom he has granted a right from enjoying the benefits of it. Any such hindrance, indeed, would be an injustice. In this way Hobbes founds all right and justice on the transfer of rights, and on that mutual transfer of rights which he calls contract. Having thus laid his foundations by a careful course of reasoning, he declares that a commonwealth is made by covenant of every man with every man, in such manner, as if every man should say to every man, ‘ I authorize and give up my right of governing myself, to this man, or to this assembly of men, on this condition, that thou give up thy right to him, and authorize all his actions in like manner.’ This done, the multitude so united in one person is called a ‘ Commonwealth,’ in Latin civitas. This is the generation of that great ' leviathan,’ or rather, to speak more reverently, of that ‘ mortal god,’ to which we owe, under the ' immortal God,’ our peace and defence.”
Such a description of the institution of a commonwealth by a common contract to invest the sovereign with what may be called a universal power of attorney seems innocent enough, but Hobbes ingeniously draws from it some very startling conclusions. In the first place, the contract cannot be set aside without the consent of every one of the contracting parties ; and certain rights having been transferred to the sovereign, they cannot be withdrawn from him without his own consent. In the second place, the power conferred upon the sovereign cannot be limited by any condition or covenant in favor of the subject, because the whole community cannot be a party to such a covenant, since there is no community until the contract instituting the sovereign has been made ; and if the sovereign make any such covenant with individuals it is of no avail, because every breach of the covenant is the act of each of those individuals done by the sovereign as their agent. From the same principle it follows that the sovereign cannot wrong his subjects or be punished by them, for each of his acts is the act of his subjects themselves. In short, the sovereign must in all cases be absolute, and his rights are incapable of limitation.
Hobbes, like all writers of his time, divides governments into monarchies, aristocracies, and democracies ; and while it does not strictly follow from his premises, he denies the possibility of a mixed form. It is perhaps unnecessary to add that he regards the government of England as an absolute monarchy.
Now although the apologists of absolute monarchy were not wanting in those days, the doctrines of Hobbes were not generally adopted by them, but the theory of the social compact became thereafter almost the exclusive property of the writers of a more democratic school. No doubt the personal unpopularity of Hobbes contributed in no small degree to this result, for his religious views, exaggerated as they were by public report, rendered his name so detested as to throw discredit on his political theories. This was true to such an extent that in 1683 the University of Oxford, in an attempt to uphold Charles II. in his struggle for absolute power, specially condemned certain of the political doctrines of Hobbes, together with those of Milton, Baxter, and other writers of republican tendencies. But the chief reason that the doctrine of divine right became the weapon of the monarchy, and the theory of the social compact was monopolized by the more democratic school, is to be found in the nature of that theory itself, and of the times in which it prevailed. In the first place, those who claimed a divine origin for the established order of things might readily be believed, but it was not so easy to persuade people, that a system of popular government, which had been almost unknown since the foundation of Christianity, was under special divine protection. If, in the second place, the origin and legality of government was to be traced to the consent of the people, it was hardly credible that the people would have so tied their own hands as to be unable to remedy abuses in the system they had instituted ; and it was but natural that the people should interpret the original contract according to their present needs. Moreover, it is evident that a theory which magnified the importance of the people in the institution of the state, and depressed that of the king, was certain to be popular with the multitude, and to be received with little favor at court.
One of the most celebrated writers of the popular school was the unfortunate Algernon Sydney, to whose pen Massachusetts owes her motto. Sydney was accused of connection with the Rye House Plot, and at his trial the manuscript of his Discourses on Government was produced to prove his political sentiments, and became, in fact, the cause of his death. These Discourses were composed as an answer to the Patriarcha, an extremely monarchical book, written by Sir Robert Filmer; but although they found all government upon consent, the social compact is very far from being a prominent feature in them.
The theory, or at least that part of it which affirms that there is a contract between the king and his people, came in very conveniently at the time of the English Revolution ; not, indeed, as a motive for depriving James II. of his throne, but rather as a plausible justification for an act which the nation had determined to commit. The social compact helped to save the country at that time from a very great embarrassment; for the people were not yet worked up to the point of deposing the king, and if it had not been for this theory, and for James’s disinterestedness in taking himself out of the way at the right time, it is not clear how the English would ever have got rid of him. As it happened, however, the Convention was able to come to the following resolution : “ That king James the Second, having endeavored to subvert the Constitution of the Kingdom, by breaking the original Contract between king and people, and, by the advice of Jesuits, and other wicked persons, having violated the fundamental Laws, and having withdrawn himself out of this Kingdom, has abdicated the Government, and that the throne is thereby become vacant.”
It was only about two years after James II. had lost his crown in this complicated way that John Locke, the philosopher, published his Treatises on Government, which, like Sydney’s Discourses, were written as an answer to Filmer’s book, again brought into prominence by the utterances of the Jacobite divines. These Treatises are deeply imbued with the spirit of the common law, and may be said to have been the standard of Whig principles for a hundred years. Locke begins with the proposition — the only one common to all the writers on the social compact — that in a state of naturq all men are equal, but, unlike Hobbes, he is of opinion that the law of nature has a binding force before the institution of civil societies. He declares no one ought to injure another in his health, liberty, or possessions ; and inasmuch as in a state of nature no one has any superiority or jurisdiction over any one else, the execution of the law of nature is put into every man’s hands, so that every one has a right to punish the transgressors of that law. In addition to this right, which belongs to every one, a person injured has a special right to exact reparation from the offender. The right of property in the state of nature Locke derives from the appropriation of such things as before lay in common by bestowing labor upon them, and as examples of this he mentions the gathering of apples from the trees, the killing of deer in the chase, and the tilling and planting of land. According to Locke, therefore, the law of nature invests a man with all the rights of person and property ; and it can be no intention of acquiring legal rights that drives men into political societies, but the desire of protecting and securing those already in existence, and of avoiding that state of war which, although not a necessary condition of the state of nature, is a condition likely to arise from the absence of a common judge. A political society is formed, he says, when a number of men agree to give up to that society their individual right of punishing offenders, and of exacting by their own force redress for injuries ; and in so doing they consent that the majority (unless there is a stipulation for a larger proportion) shall have power to make and execute laws necessary to accomplish the purposes for which the society is formed, and shall have authority to call upon each man to employ his force to carry out the judgments of the society.
In the course of his argument Locke takes occasion to make a very clever hit at the doctrines of the Stuarts, for he declares that the difference between a state of nature and a state of civil society consists in the fact that in the latter there is a known authority, to which every man may appeal, and adds that any one who is not subjected to such an authority is not in a state of civil society. He then draws the conclusion that an absolute prince is in a state of nature with regard to his subjects. By becoming absolute, therefore, a prince forfeits all lawful authority over his subjects, and ceases to be a prince at all. The course of a monarch who aspires to be absolute resembles, in Locke’s opinion, one of those games of chance, in which the player progresses until a throw of the dice brings him upon a number marked with a ditch or other device, when he is cast entirely out of the game, and must begin again at the very beginning.
Locke goes on to discuss the position of the descendants of the original members of the society, and in this matter he is more logical than the other writers upon the subject; for, basing the society upon the consent of the individuals who compose it, he boldly proclaims that no man can bind his children beyond the period of their infancy, and that as each child comes of age he is free to sever his connection with the society, or to declare himself irrevocably a member of it. Even without such a declaration, a person who takes possession of property within the commonwealth, or who resides within its limits, consents to become a member of the society so long as the enjoyment or residence continues ; but he may at any time dispose of his property, leave the commonwealth, and attach himself to another community.
The body politic once constituted, the majority have power to institute the form of government; and this may be a democracy, an oligarchy, or a monarchy, according to the disposition of the power of making laws. When once established the legislature cannot be deprived of its power by the people, unless it acts contrary to its trust, or until it has reached the limits set for its continuance ; but if the legislature has put the executive power into other hands, it may resume that power at its pleasure, and punish for maladministration of the laws.
The subject, however, which interests us the most is to be found in the chapter where he treats " Of the Extent of the Legislative Power ; ” for, in Locke’s opinion, the authority of the legislature is not absolute, but limited by the object for which men entered into the society. He declares that the legislature cannot be “ arbitrary over the lives and fortunes of the people,” and that it “ cannot assume to itself a power to rule by extemporary arbitrary decrees, but is bound to dispense justice and to decide the rights of the subject by promulgated standing laws, and known authorized judges; ” because it was precisely a desire to avoid the inconveniences of having no fixed laws and no certain judge that induced men to enter into society. On the same ground he holds that the " supreme power cannot take from any man any part of his property without his own consent. For the preservation of property ” is “ the end of government and that for which men enter into society.”
Locke proceeds to consider the effect of the acts of the executive and of the legislature done in excess of their authority, and in a chapter devoted to the subject of tyranny lays down the general proposition that “ whoever in authority exceeds the power given him by the law, and makes use of the force he has under his command to compass that upon the subject which the law allows not, ceases in that to be a magistrate, and acting without authority may be opposed, as any other man who by force invades the right of another.” In his concluding chapter on the Dissolution of Government, he carries the same idea still further, and finds two internal causes of dissolution. The first of these is presented when the legislature is altered : which happens when any single person sets up his own will in place of the laws, hinders the meeting of the legislature, or changes the mode of election without the consent of the people ; and in this and all other cases where the government is dissolved, the people are at liberty to provide for themselves a new one. The other cause of dissolution occurs when the legislators or the prince act contrary to their trust; and the former act “ against the trust reposed in them when they endeavor to invade the property of the subject, and to make themselves, or any part of the community, masters or arbitrary disposers of the lives, liberties, or fortunes of the people.” “ Whenever the legislators endeavor to take away and destroy the property of the people, or to reduce them to slavery under arbitrary power, they put themselves into a state of war with the people, who are thereupon absolved from any farther obedience, and are left to the common refuge which God hath provided for all men against force and violence.”
In reading this essay of Locke we cannot fail to be struck with the resemblance between some of his deductions and the doctrines of our own jurists ; and we might almost suppose that the Treatises on Government were intended to be a commentary on the principles of American Constitutional Law. For, in fact, the idea that a statute which conflicts with the constitution is not law and has no effect was not altogether an invention of Chief Justice Marshall as has often been supposed, but is a very natural development of certain principles of the English common law.
In the seventeenth century England went through a period of intense political excitement which culminated in the expulsion of James II., and during this time political thought was very philosophical, and busied itself with inquiries about the nature and origin of government. But when the excitement subsided in the reigns of William and of Anne, and was extinguished under the House of Hanover, it was but natural that political thought should adapt itself to circumstances, and, putting off the speculative, assume a positive form. It is for this reason that the theory of the social compact rapidly lost its prominence in England, and in the reigns of the Georges entirely disappeared from view. In France, on the contrary, the middle of the eighteenth century saw political thought enter on a course of active speculation, and consequently the social compact reappeared with all its force and in the old form, although, chameleon-like, it had changed its color to suit its new surroundings. Montesquieu, the most profound of the political thinkers of his day, makes, it is true, no use of the theory; a fact which illustrates his strong common sense. His shrewdness, indeed, is nowhere better shown than in his remarks upon Hobbes’s notion that the state of nature was a state of war; for he wisely suggests that man in a wild condition, instead of living in a state of war, lived in a state of abject terror, and that on seeing a stranger his first impulse, far from being a passion to fight, was probably an uncontrollable desire to run away. Rousseau, on the other hand, reveled in the theory of the social compact. In it he thought he had discovered the key to liberty, and the lamp that was to dispel all ignorance and oppression from the world. He developed it in a style so attractive, and with a spirit so much in sympathy with the feelings that were beginning to spread over Europe, that his book by its popularity has eclipsed all other works upon the subject, and he is commonly supposed to have been the author of the theory. Rousseau’s Contrat Social was first published in 1762 ; and in the same manner that Locke’s Treatises are saturated with the principles of the common law, so the Contrat Social mirrors the doctrines of the coming Revolution.4 It is very evident indeed to-day that France, so long accustomed to a concentrated and despotic government, could not suddenly acquire the habits of personal independence and liberty which give character to the Anglo-Saxon system of government. After clearing away the wreck of feudalism, which had become a mere obstruction in the path of progress, and introducing equality of rights, the French Revolution was destined to leave political power as concentrated and despotic as before; only substituting in the place of the king of France some assembly, directory, emperor, or at the very best some chance popular majority, each one of which, however wise and just he might be, and however much actuated by a desire for the public good, could not fail to govern arbitrarily.
Assuming, like every other writer on the social compact, that all men are by nature free, and that civil society is an artificial contrivance, which requires for its legality the consent of every member, Rousseau inquires how a man can assent to such an arrangement without injuring himself or neglecting his own interests, and he proposes the following problem : “To find a form of association which shall defend and protect with the whole power of the community the person and property of each member, and by which each person, uniting with all, nevertheless obeys only himself, and remains as free as he was before.” This problem he solves by supposing a complete transfer of each member, with all his rights, to the society; because, he says, as each man gives himself entirely to the whole society, he gives himself to no individual, and the condition of all being the same, no one has any interest to render it burdensome for any one else. In another place he expresses his idea of the original contract by saying that each one of us puts himself and all his powers under the direction of the general will (volonté générale), and we receive again each member as an indivisible part of the whole. The idea of this general or common will is the distinctive part of Rousseau’s theory and the key to his whole system.
Rousseau next treats of the sovereign, which is simply this same society as a whole considered in relation to its members; and in his opinion, it is contrary to the nature of the body politic that the sovereign should be able to impose upon himself a law which he cannot break, for it would be simply a case of an individual binding himself by a contract made only with himself. No fundamental law of any kind, therefore, can be binding upon the body of the people ; not even the social compact itself. Moreover, there can be no need of any guarantee against the sovereign power, because, being composed of all the members of the community, it cannot be supposed that this power should want to injure them as a whole, nor can it injure particular individuals. The sovereign, indeed, from the mere fact that he exists, is always what he should be. These last two propositions, although at first sight somewhat surprising, are deduced from the very nature of sovereignty itself, which is in fact nothing else than the aforesaid general will; for it is only to the general will that the members of the society agree to submit themselves. The general will, however, does not mean simply the common will of the members of the society, but is used in a more restricted sense, and denotes the common will of those members only when that will is applied to an abstract or general question affecting the whole community. When the common will is applied to an object of this sort, it is an act of sovereignty, and is called a law ; but a determination upon any particular or personal matter cannot be an act of the general will, or an exercise of sovereignty, and consequently Rousseau refuses to consider as laws at all what we term special or private laws; at most they are decrees or acts of the magistrature. The question naturally presents itself, What is this general will, and who has power to declare it ? To this Rousseau replies that it is the will of the members of the community, and that no one else has power to declare it; nor can it be delegated, because, although a man may say that his will is the same as that of another man at any particular moment, or on any specific question, yet he cannot say that his will in the future, and on any questions that may hereafter arise, will always be the same as that of another person. The power of making laws, therefore, can be delegated neither to a prince nor to a house of representatives, but, while laws may be prepared and discussed by them, they can be enacted only by all the members of the community, duly assembled for the purpose; and for this reason Rousseau declares that the English, who boast of their liberty, in reality are not free.
Now it is all very well to talk of the general will, as if laws were voted unanimously, but every one knows that this is not the case; and to keep up his fiction that each person obeys only himself, and at the same time to give to the majority the power of making laws, Rousseau develops a most ingenious idea. He says that each man desires the fulfillment of the general will, and that, when a law is submitted to the people, the question put to each man is not strictly whether he approves of the law or not, but whether it is in accordance with the general will which he wishes to carry out. Each man gives his advice thereon, and if a man is in the minority it simply proves that he was mistaken about the general will; so that if by chance his opinion had prevailed, he would have done what he did not want to do. A very comforting doctrine, no doubt, to sweeten a bitter pill.
Sovereignty being confined to the enactment of laws, it is evident that there must exist subordinate authorities in the state, charged with the duty of executing the laws, carrying on foreign relations, etc.; and, as these duties do not partake of the nature of sovereignty, Rousseau entirely rejects the doctrine of the separation of executive, legislative, and judicial powers as advanced by Montesquieu. He divides governments into monarchies, aristocracies, democracies, and mixed forms, according to the composition of these subordinate authorities. They are all instituted by laws, but the selection of the persons to fill the various offices, being a particular and personal matter, is not an act of sovereignty, and must be accomplished by election, by lot, or by some other method established by law. The powers and rights of these authorities cannot rest upon contract, because the sovereignty cannot be alienated or limited, and the magistrates and even the form of government may be changed at any time by an exercise of the general will. In fact, the author of the Contrat Social goes further, and says that every assembly of the people ought to be opened with these two questions : Is it the pleasure of the sovereign to continue the present form of government ? Is it the pleasure of the people to leave in office the present incumbents ? One can hardly imagine a greater encouragement to revolutions, or a more effective manner of bringing all citizens to the polls.
Rousseau sees merits and faults in each form of government, and wisely concludes that the best one is not the same in every country, but varies with the climate, the extent of the territory, and the habits of the people.
The apostle of liberty makes a most surprising application of his views on absolute sovereignty, at the end of his book, when discussing the religious question. He thinks that there ought to be a state religion, which every one must accept on pain of banishment. There can, it is true, be no further persecution on this ground, except that if any person, after having declared his belief in the state religion, behaves as if he did not believe in it, he ought to be punished with death, for he has committed the gravest of crimes : he has lied before the law. He enumerates the positive dogmas which this religion should contain, among which is to be found the sacredness of the social compact; and he adds a single negative one, and that is a condemnation of intolerance. Whoever, therefore, says that there is no salvation outside of the church ought to be driven from the state. In this way, Rousseau would prevent religious intolerance by making persecution a state monopoly. Such must have been the motive of the governing board of a certain college in America, which was for many years accused of filling its vacancies exclusively with persons of one denomination; not with any sectarian purpose, but merely for fear that if a person of a different faith were admitted he would try to fill the board with members of his own church. I do not assert that the charge was true, but it was certainly somewhat amusing.
It is singular that among all the constitutions in which the revolutionary period in France was so prolific, there is no reference to the social compact; and it is even more strange that these documents treat of the matter of private rights rather from an English than a French point of view. A superficial observer, indeed, who should compare the constitution of the 3d of September, 1791, with the constitution of Massachusetts might well doubt which was the French and which the American production. The Frenchman solemnly condemns arbitrary punishment; proclaims the sacredness of private property, insisting that it can never be taken except in case of public necessity, and then only upon due compensation; declares that the legislature has no authority to pass a law violating any of the rights guaranteed by the constitution ; and yet it is not long before he passes votes to execute the king and to confiscate the property of the émigrés. The fact is that Rousseau sympathized with the political sentiments of France far more than the Abbé Sieyes and his fellow constitutional architects, and the French people were much more readily inspired by the theories of Rousseau than by the statesmanship of Mirabeau.
The great theory was not so neglected by the constitution-makers on this side of the ocean; for as we have seen the first social compact known to history made by the Pilgrim Fathers in the cabin of the Mayflower, so we see the most elaborate, if not the last, made in part by the descendants of these same men, and entitled the Constitution of the Commonwealth of Massachusetts. Evidently this relapsing into a state of barbarism and recovering one’s self by means of a social compact was a favorite pastime with the New Englanders.
The second and third clauses of the preamble of this constitution run thus :
“ The body politic is formed by a voluntary association of individuals : it is a social compact, by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good. It is the duty of the people, therefore, in framing a constitution of government, to provide for an equitable mode of making laws, as well as for an impartial interpretation and a faithful execution of them; that every man may at all times find his security in them.
“ We, therefore, the people of Massachusetts, acknowledging with grateful hearts the goodness of the great Legislator of the universe, in affording us, in the course of His providence, an opportunity deliberately and peaceably, without fraud, violence or surprise, of entering into an original, explicit, and solemn compact with each other; and of forming a new constitution of civil government, for ourselves and posterity; and devotedly imploring His direction in so interesting a design, do agree upon, ordain, and establish, the following Declaration of Rights and Frame of Government as the CONSTITUTION OF THE COMMONWEALTH OF MASSACHUSETTS.”
Then follows the Declaration of Rights, in which it is impossible not to see the influence of Rousseau curiously combined with the principles of the common law, of Magna Charta, and of the Bill of Rights; for the truth is, that while our ancestors were deeply imbued with ideas which found their theoretical expression in Locke’s Treatises on Government, they were very much carried away by the writings of the French philosophers. From Montesquieu they borrowed the doctrine of the separation of powers, which has become so thoroughly a part of the American political system, and in fact they accepted theories as the basis of their politic practice to a far greater extent than any other body of AngloSaxons has ever done before or since. This is evident even in the very wording of the Declaration of Rights which we are considering; for when an assembly wishes to declare the existence of a right which is not dependent upon its own action, it naturally uses the present tense, thus, “ Every man has a right.” But if, on the other hand, the assembly wishes to create a right, it uses what I may call the future imperative, and says, “ Every man shall have a right.” The first of these forms is appropriate in making a statement, while the second is the language of command. Now it is worthy of remark that the French legislators usually employ the former expression, but the Anglo-Saxon, both in statutes and constitutions, make use almost invariably of the latter. The Massachusetts Declaration of Rights, however, proclaims these rights in the present tense, with an occasional relapse into the future, especially when treating of matters of detail.
The constitution of Massachusetts was not the last nor the most extraordinary application of the social compact in this country, for the fever of theory at one time attacked even the bench, and grave judges were heard to say that a statute was invalid if repugnant to the principles of justice and civil liberty. Even Judge Story was carried away by this idea, and at times used very loose language on the subject; but no one, perhaps, ever went further than Chief Justice Hosmer, of Connecticut, who said in one case,5 “ With those judges who assert the omnipotence of the legislature, in all cases where the Constitution has not interposed an explicit restraint, I cannot agree. Should there exist, what I know is not only an incredible supposition, but a most remote improbability, a case of direct infraction of vested rights, too palpable to be questioned and too unjust to admit of vindication, I could not avoid considering it as a violation of the social compact, and within the control of the judiciary.” At first sight this appears to be merely a ridiculous attempt to engraft a new doctrine upon the common law, but however absurd the attempt may have been, it was in reality a logical deduction from the teachings of John Locke, and was not so unprecedented as one might suppose ; for it was long doubtful in England whether the judges had not authority to disregard, as void, an act of Parliament, if they considered it against natural equity or common right and reason, because, in the words of Hobart, “ jura naturales sunt immutabilia, and they are leges legum.” Such a power was frequently claimed by the judges,6 and in one case, at least,7 Lord Coke actually refused to apply an act of Parliament, on the ground that it made a man a judge in his own case. Although the claim was abandoned by the judges early in the last century, yet the doctrine that the legislature must respect private rights, and that no one ought to be deprived of his property without compensation, remained a cardinal principle of English legislation until within the last few years. This principle is protected in America by the various constitutions, and it has long been settled that the courts have power to disregard a statute only when it conflicts with some provision in the constitution. Hosmer’s theory has been entirely exploded, and the spectre of a social compact has long ceased to disturb the quiet labors of the bench.
I have so far made no reference to the German writers, not because they do not discuss the social compact, for after the middle of the seventeenth century almost all the German publicists devoutly believed in it. In fact, they entirely adopted and Germanized it, or, as some malicious critic might say, in the words of Sheridan, they treated it as gypsies do stolen children, disfigured it to make it pass for their own. There are, however, two reasons why I have not mentioned the German writers before. The first is the lack of space in this sketch to touch upon any one but Kant, the most famous of them all, and his writings are later than those we have so far considered. A second reason is the existence of certain peculiarities of thought characteristic of the Germans, which are not to be found among the more prominent writers of other races, and which may be in some measure explained by the political condition of the German people. The most marked of the peculiarities to which I refer is a tendency to confuse morality and law. This may be said to be a universal failing with the German publicists, and it is this, more than anything else, that makes their writings so difficult to read, and so unsatisfactory when read. Another peculiarity, which, although not so general, is nevertheless very common with the Germans, is the attempt to combine in the same political system certain inviolable natural rights of individual citizens with an unlimited authority on the part of the sovereign. Hobbes and Rousseau, while differing so much in their views, agree in attributing absolute authority to the sovereign power in the state, and declare that the rights of the subject are created by and are dependent upon its will. Locke, on the other hand, starts with certain natural legal rights possessed by the citizens as individuals, limits the authority of the sovereign power accordingly, and maintains that any attempt on its part to violate these rights is itself unlawful. But the Germans, in trying to reconcile the unlimited power of the state with the inviolable rights of the citizens, only puzzle themselves afresh with the old conundrum, What would happen if an irresistible force should meet an immovable obstacle ?
I have said that these peculiarities of thought can be to some extent explained by the political condition of the German race. The people had been so long unaccustomed to taking any part in the discussion of public affairs, and were so unused to transacting judicial business on juries, etc., that, with a type of mind naturally metaphysical, they very easily fell into an excessively abstract and theoretical, as distinguished from a positive and practical, way of looking at political problems. It is but natural that the German philosopher should not clearly separate the study of law as it is from the study of law as it should be, and this is but a step from the confusion of law and morality. It is but natural, also, that he should not appreciate the bearing of public policy on legal questions, and should strive to found his legal system on a priori reasoning; that, to adopt an expression of Judge Holmes,8 we should find a characteristic yearning in the German mind for an internal juristic necessity for law. The introduction of the Roman law probably contributed in some degree to these results ; for it is to be observed that this law did not come to the Germans as it did to the Romans, in the form of a slow growth, but was received as a complete system, and was accepted not on account of the veneration which is derived from long habit and association, but because the German jurists believed in the inherent justice of its principles. For a person who confuses the positive law with law as it should be, it is natural to confuse the rights which the subject ought to have with those rights which he actually possesses, and we are not much surprised to find such a person asserting at one moment that the subject has certain inviolable natural rights, and at another that the authority of the sovereign is unlimited. Moreover, it is to be remembered that the Germans, like all Teutons, had a highly developed sense of individuality, and yet during the period of which we are speaking they lived under autocratic governments. We see in their writings, therefore, an almost pathetic longing for personal independence coupled with an unconquerable respect for the established authorities.
Kant was, perhaps, the most German of the Germans, and in his writings the qualities to which I have referred are to be found very fully developed. He published his first political treatise in 1793, at the age of sixty-nine, as one of a series of essays upon the proverb, “ That may be all very well in theory, but it will not work in practice.”The humor of discussing the social compact under such a title was unfortunately lost upon the author, who attempted to show that although such a compact could not be looked upon as an actual fact, yet as a theory it was the basis of certain political principles which ought to be acted upon in practice. The only other treatise of much importance in which he discusses our subject is his Metaphysical Principles of the Theory of Law, published in 1796, and deeply influenced by the writings of Rousseau.
Kant begins his first treatise with the remark that the contract by means of which a commonwealth is formed differs from all other contracts of association in this : that while the latter are made for various purposes, the former is the only one which is its own object. The object of the social compact, therefore, is not the promoting of the happiness of the contracting parties, but merely the institution of a commonwealth ; that is, the creation of a condition of things in which the members are possessed of legal rights, and he defines right in his own lucid way, as the limitation of the freedom of each man on the condition that it is consistent with the freedom of every other man, as far as this is possible according to universal laws. The foundations upon which alone a commonwealth can be erected in accordance with the pure rational principles of human rights are the liberty, equality, and self-sufficiency of its members. The last of these I shall explain later, but the others require immediate attention. The purpose for which a commonwealth is instituted being merely the creation of the rights of its members, and not the direct promotion of their happiness, no man can be compelled to be happy in any particular manner, but each man has a right to pursue his own happiness in the way he thinks best, so long as he does not interfere with the right of every other man to do likewise in accordance with the universal law. This is that liberty to which every member of the community is entitled as a man. Any attempt, therefore, on the part of the government to treat its subjects as children, and provide for their happiness, is the worst possible despotism.
The equality of the members of the community follows naturally, as a corollary from their liberty, and may be expressed by saying that each man has the same rights against every other man, the sovereign only excepted, that every other man has against him. Such an equality is not inconsistent with the greatest difference in property, and even in rank ; for it is not necessary that the actual rights of every man should be the same, but only that there should be no legal barrier to prevent any man from acquiring the property and rights, or rising to the position enjoyed by another member of the community. Kant declares, therefore, that rank and privilege cannot be hereditary, but must be open to every person who, by his talent, diligence, and good fortune, is capable of attaining to them.
Now one would naturally suppose, after such a discussion, that Kant regarded the right to liberty and equality as in reality a right, and that in his opinion an act of the sovereign which violated this right would be unlawful, and might be resisted by the subject. But the fact is that so far we have been considering only the immovable, without taking account of the irresistible, and in this case it is the latter which carries the day. For although Kant appears to base his system upon an original contract, and, starting from the premise that it is only to himself that a man can do no wrong, declares that no one can have power to legislate for a community except by virtue of a fundamental law resting on the universal will of the people, and that even the right of the majority to bind the minority can derive its force only from an original contract agreed to by every one, yet he regards the social compact not as the actual foundation of law, but merely as a theory, giving rise to certain principles to which laws ought to conform. He goes so far, indeed, as to condemn the notion that any social contract was actually made on the ground that such a doctrine encourages the idea of popular sovereignty, and gives rise to insurrection and rebellion; and while in one place he argues strongly in favor of the right of free speech, in another he tells us that, for practical purposes, the origin of the supreme power is unsearchable by the people who are subjected to it, and that to throw doubt upon it is a crime.
Kant, however, does not look on the social compact as a mere idle theory. In fact, the object of one of his treatises appears to be to show its practical importance ; not, indeed, in establishing rights, but in furnishing a rule by which to test the rectitude of laws. He states the test in this way: If a law is so made that it is impossible that a whole people should give its assent to it (a law conferring hereditary privileges, for example), then the law is not just;9 but if such an assent is merely possible, then the law must be held to be just. This test, however, is useful only as a guide to the law-giver, and it is not to be applied by the subjects, who have in all cases no duty but to obey. If the sovereign departs from this test, and even if he violates the original contract, the subjects are not justified in resisting him ; because the sovereign being by definition supreme in the state, there can be no higher power to decide controversies between him and his subjects, or to enforce the rights of the latter. It is only by submission to his universal law-giving will that a condition in which legal rights exist is possible at all, and to resist the sovereign, therefore, is to bring about a state of things where all right ceases, or at least where it. can no longer have any effect, and this is in the highest degree unlawful.
If such assertions as these, Kant says, draw upon him the reproach of flattering monarchs to excess, he hopes that he may be spared the accusation of too much favoring the people when he maintains, in opposition to Hobbes, that they retain certain indestructible rights against the sovereign, and he stigmatizes as horrible Hobbes’s doctrine that the sovereign can do no injustice to the subject. But a closer investigation shows that his own views do not differ very much from those which he abhors, except that he objects to calling a spade a spade, and Hobbes does not ; for these indestructible rights — which, by the way, only entitle the subject to express Ids opinion in public affairs and to make a statement of his grievances — are not enforceable (zwangsrecht), and depend for their exercise entirely on the good will of the sovereign.
Kant discusses at some length the rightful form of government, meaning by that not the form which alone can rightfully command the obedience of its subjects, but the only form of government constructed according to pure principles of right, and serving as a model which all others ought gradually to be made to resemble. He accepts to its fullest extent the principle of the separation of the legislative, executive, and judicial powers, and claims that the first belongs exclusively to the people or their representatives. It is in this connection that the curious doctrine of the self-sufficiency of the citizen, to which I have already referred, becomes of importance, for, in Kant’s opinion, all the citizens are not capable of taking part in legislation, but only those who are self-supporting and therefore independent; and in this category he does not mean to include all persons who are supported by their own exertions, but distinguishes between those who give their labor for hire and those who bestow their labor upon articles which they afterwards sell, — the former having no right to vote, while the latter are in the fullest sense citizens. The separation of powers does not afford, it appears, a sufficient security to the citizen, and we must never forget the fundamental axiom that it is only to himself that a man can do no wrong. Any person, therefore, who is set to judge may do an injustice, and the people ought to judge themselves by a jury taken from among them, which decides all matters of fact and leaves to the court the questions of law. This is a strange application of Rousseau’s fiction that every one in the state legislates only upon himself.
When Kant proceeds to discuss the criminal law, the characteristic yearning of the German mind seizes him with great violence, and rejecting indignantly all motives of expediency, he seeks an internal juristic necessity drawn from the nature of the crime itself. He finds it in the principle of equality that one ought to incline no more to one side than to another, and says, therefore, whatever wrong you have done to another, that you must do to yourself. It would take too long to explain here how, from this doctrine of an eye for an eye and a tooth for a tooth, he deduces the fact that imprisonment is the appropriate punishment for theft, but it is obvious that death is the proper retribution for murder. So severe is he in the application of this intrinsic justice that he considers it a crime to allow a murderer to live, and declares that if a community determines, with the consent of every member, to break up and disperse, the last murderer in prison must be executed before they do so, in order that the guilt of violating justice may not fall upon the people. A friend of mine has suggested that if this principle were so extended as to keep the community together until all the other criminals in jail had served out their sentences, it would probably have the desirable effect of preventing the community from breaking up at all.
The theory of the social compact appears to have had a peculiar fascination for the German mind, for it was taken up by Kant’s successors, and it is only quite recently that it has been finally abandoned by them.
We have traced the history of this extraordinary theory from the time of its first appearance at the end of the sixteenth century, and we have seen it used to support the most divergent doctrines and the most conflicting opinions; and in fact, like certain ingenious Yankee inventions, it was capable of being applied to almost any service, although really adapted to none. No better example, indeed, can be found of the fact so strongly urged by Lecky that men are chiefly persuaded, not by the logical force of arguments, but by the disposition with which they view them. We have seen the theory started by a zealous churchman to uphold his church. We have seen it wielded by Hobbes in favor of absolute monarchy in England. We have then seen it taken up by Locke as a shield to individual right and in defense of the limitation of the constitution ; and later still by Rousseau, as an argument for an unbridled democracy. We have seen its working here on the constitution of Massachusetts ; and after lighting the world for two centuries, we have seen it give a last despairing flicker in the courts of the United States, and fade away in the dim light of German metaphysics. It now remains for us to mark the causes of its rise and fall.
To the Greeks and to those of the Romans who looked at jurisprudence from a philosophic point of view, law was merely a department of morals; and this explains the absence among the ancients of any attempt to discover a special basis for the obligation of legal duties. When the Teutonic race, on the other hand, first appeared on the borders of the Roman Empire, it was still in that early stage of civilization in which the rightfulness of existing institutions is assumed without question ; in which it is enough that no one remembers a time when things were otherwise, and custom undisputed has the force of law. Under these circumstances legislation is unknown, and the slow change which takes place in the laws is brought about through the administration of justice and the exercise of those powers which we should class to-day among the executive functions of government. During the course of the Middle Ages, as the political needs of the day developed and were better understood, the idea of legislation as something distinct from administration, and as an intentional change in the existing law, begins to appear, but the form which it assumes is characteristic of the political views of the day. The lawyers, deriving their ideas from the writings of the Roman jurists, asserted at quite an early period that the king was the source of all legislative power; but underlying this doctrine and constantly cropping up we find the principle that any change in the law requires the consent of those whom it concerns. Such a claim was almost universal in the matter of taxation, and even on questions of general legislation it was constantly recurring where the change was clearly seen to affect anything more than the mere administration of the law. Now it must be remembered that in feudal times little or no distinction was made between public and private rights. All right, from that of the king to demand from his vassal an aid to ransom him from captivity, to that of the smallest land-owner to exact a heriot on the death of his tenant, was looked upon as private property. It was but natural, therefore, that an innovation in the law should be considered to require the consent of those whose property was to be affected by it, whether it were the grant of a “ free aid,” or a change in the established custom of the realm, and this idea cannot be better expressed than in the famous saying of Edward I.: “That which toucheth all shall be allowed of all.” The conceptions of the Middle Ages upon this subject, therefore, were not of a character to excite political speculation, had that been an easy thing to arouse in those days, because the rightfulness of all property was assumed without question, and of course there could be no doubt of the right of every man to dispose of his own. When, however, the Renaissance gave a new impulse to thought, and men began to distinguish more accurately between public authority and private right, it was unavoidable that they should investigate the rightfulness of that authority, and even inquire about the origin of property. The question, therefore, presented itself : Whence has a government a right to compel a man to act against his will, and what gives the binding force to law? There was one obvious way to answer the question, and that was to ascribe a divine origin to government; but this view of the matter, for reasons which I have already explained, became monopolized by one school of political thinkers, and consequently discredited among those who did not agree with their tenets. One other solution of the difficulty suggested itself, and that was the consent of the person interested; for clearly a man cannot be wronged by an act to which he has freely consented, and what easier than to suppose a universal compact made at some remote period, by which every one consented to the institution of a government, and agreed to be bound by the laws enacted by it ? Such a contract appeared, therefore, to many men the only way of accounting for the rightfulness of government, and its existence was assumed without hesitation ; for anarchists being few in those times, every one was constrained to allow the lawfulness of some government or other, and when belief is indispensable it is easy to believe.
In this way the theory of the social compact met with a very general acceptance, and yet it contained within itself the seeds of its own destruction, because if the theory were logically carried out, each man, when he came of age, ought to have a right, as Locke maintained, to sever his connection with the body politic and declare his freedom from its laws ; but such a doctrine, greatly impairing, as it must, the effect of the theory, and giving a constant encouragement to lawlessness, could not be admitted for a moment. The theory, moreover, rested on the assumption that a contract is binding in a state of nature when other rights do not exist, but such an assumption, although plausible, is clearly seen to be false by any one who will take pains to think about it. Spinoza and Leibnitz pointed this out in the earlier days of the discussion, but the tide was too strong to be stemmed at that time. As a matter of history, indeed, it is well known to students of the early forms of law that the right to compel the performance of a contract is not developed until long after the right to property is well established. But undoubtedly the chief causes of the decline of the theory were the change in the general tone of thought from speculative to positive, and the complete absurdity of such a compact from an historical point of view, — an absurdity which became more evident as a knowledge of semi-barbarous races became more extensive. It may well be doubted whether any one ever believed in the making of an actual compact of this kind by people in a state of nature. Just imagine a crowd of half-naked savages grouped around an ancient oak, while an old chief under its boughs explains to them that they have reached the point when it is advisable to form a civil body politic, and that it is proposed to agree, among other things, that when they become sufficiently civilized to understand the meaning of king, lords, and commons and to appreciate the benefits of taxation, then the king shall not have power to levy any tax without the consent of his faithful commons. Imagine the savages clashing their spears and shields in token of universal approval, and breaking up with a further understanding that the sacredness of the social compact shall instantly be made an article of the state religion.
A. Lawrence Lowell.
- Published in 1594.↩
- Bradford’s History of Plymouth Plantation. The 2. Booke.↩
- Written in 1649, in justification of the execution of Charles I.↩
- The differences between Rousseau’s teaching and the course of things in the French Revolution are more apparent than real. His one restriction, for example, on the power of the people is to be found in his doctrine that no law can be made which is not of general application; but this, of course, could not be applied in any country where the reverence for law is not very much greater than it was in France and it was especially valueless in a country where so much legislation was in reality accomplished by the decrees of the magistrates. His theory that nothing can be enacted except directly by an assembly of the whole people may, perhaps, have contributed to the contempt with which the mob of Paris treated the national legislature, but was clearly inapplicable to a land of anything like the size of France.↩
- Goshen vs. Stonington, 4 Conn. Rep. 209 at 225.↩
- See Doctor and Student, c. vi, p. 154. Day vs. Savadge, Hobart, 85, at 87. Calvin’s Case, 7 Rep. 1, at 13 b and 14 a. City of London vs. Wood, 12 Mod. (669, at 687.↩
- Bonham’s Case, 8 Rep. 114 a.↩
- Holmes on the Common Law, page 207.↩
- It is impossible to render correctly the German word gerecht, which does not distinctly imply whether the act in question is right from a legal or from a moral point of view. No doubt the absence of words clearly distinguishing between moral and legal right is partly caused by, and has helped to aggravate, the confusion of the Germans upon this subject.↩