by tacit or express Agreement among the members of the Society, we thus admit, to a certain extent, the opposite Theory of the Social Contract.

821 Again in the case of Usurpations and Revolutions, such as have happened in every country, when the family line of the Governors is broken through; are we to reject all the subsequent actual Government, as not rightly derived from the Patriarchal System, and therefore wrongful? Or are we to allow that long undisturbed Possession may obliterate the wrong of Usurpation? If we take the former side of the alternative, the Patriarchal Theory is not applicable to any existing case of Government for in all countries there have been Usurpations and Revolutions. If we take the latter side, we acknowledge a new element in the Right of Government, namely long Possession, or Prescription; and we shall have to make this, in almost every case, the predominating element.

822 Thus, the Patriarchal Theory cannot be applied to actual Governments, without such modifications as render the Patriarchal Condition by no means the most important part of the Theory. And the same may be said of the Doctrine of the Divine Right of Government. For if we grant that the Rights of the Governors are Divine, as resting upon the Will of God; we may still ask what Rights are included in the Rights of Governors, and in what persons these Rights reside. These questions are in no degree answered, by calling these Rights, Divine Rights. Το which we may add, that there appears to be the same reason for calling the Rights of the subjects, as those of the Governors, Divine.

823 But the opposite Theory, that of the Social Contract, offers no less difficulty, when we attempt to apply it to the greater part of actual Governments. For it is not true that, in any actual social condition, the circumstances of men, and the Rules which they obey, are those which have been determined by their own. Will. In some of the cases in which men have freely combined to found a new and independent Colony, some approximation to this condition may have occurred; but even in those cases, the relations among the Colonists, and the Laws by which they are bound, are determined, in a considerable degree, by their position in the States of which they were previously subjects; and take their course independently of the Will of individuals in the Colony. And in the usual conduct of nations, it is not true that a man, by his own acts, determines all the circumstances of his social con

dition. Man is really, as those assert who borrow their illustration from the Family, born, fostered, taught, and governed, with little or no regard to his own will. And even in respect to Civil Government, the greater part of the circumstances of a man's condition exist before him, and independently of him for example, the institutions, the laws, the customs, the character of the nation, in which he must share, and by which his own habits and actions are mainly regulated. And his Relation to the Government being determined by these External Facts, and not by himself, it seems to be a groundless and inapplicable fiction, to speak of that Relation as founded upon a Contract, to which he is a party.

824 The Assertors of the Theory of a Social Contract have sometimes replied to this objection, by a further assertion; that a man, by continuing to live under a Government, after he arrives at manhood, gives his tacit consent to the Contract by which the Government is established; and is, therefore, bound by its Laws. But this answer leaves abundant room for other questions; as to whether such a tacit consent may reasonably be assumed; and if so, at what period, and under what conditions; and further and especially, what are the terms of the asserted Contract? And, upon the answers to these questions, will depend all the important Doctrines which concern the Rights of the Governors, and of the Governed; and, the theory of the Social Contract, if it be retained in discussing these questions, is little more than a form of expression which leads to no peculiar results.

825 The same may be said of the other forms of expression, which are used to convey the same views. Thus if it be said that the Rights of Government must be regulated by the Natural Rights of Man; the question still recurs, What are the Natural Rights of Man? We have already (412) stated, that all which have been called Natural Rights are so far limited and modified by the Laws of States, that they cannot be treated as universally Natural Rights. The Rights of Man, in each State, are determined by the Laws of the State; and although, as we have also attempted to show (418), Humanity requires that states and men should constantly endeavour to extend to all men the Cardinal or Primary Rights of Man, this Principle will, in a very small degree, aid us in determining the Duties of Subjects towards Governments.

826 Thus the Theory of the Patriarchal nature of Government is, both by the analogy of the Family itself, and by the universal course of human action, compelled to admit a Principle of

Freedom; and the Theory of the Social Contract must include family ties, established institutions, tradition, and assumed consent, as Principles of Order. Each of these Theories is drawn towards the other, in the attempt to make it correspond with the actual condition of nations.

827 But though the Doctrine of the Social Contract has no advantage over the rival Doctrine, as a Historical Theory, it may be a convenient form for the expression of Moral Truths. And this it may be, if we can answer satisfactorily the questions, which convey the objections to the Theory; namely, What are the terms of the Social Contract? under what conditions the consent of men to this Contract may be assumed? and the like.

828 We must, however, recollect, that though we may find convenient modes of stating and discussing Moral Truths, by speaking of the Social Contract, as the ground of the Rights of Government; yet that, in fact, Government has Rights which no Contract among the subjects could give. We have already (786) described these Rights as State Rights; and have shown that they cannot (in ordinary cases at least) be bestowed upon the Government by any agreement among the individuals of which the nation consists; namely, the Right to the National Territory; the Right of Making War; the Right of Capital Punishment; the Right of Imposing Oaths. These Rights are Articles in the Social Contract; but they are Articles such as no Contract among individuals under ordinary circumstances could contain. It is not because it is A Contract, but because it is THE SOCIAL CONTRACT, that the Foundation Deed of Human Societies contains these Covenants.

We may now proceed to consider the Questions above stated: What are the Terms of the Social Contract? and the like. We may observe that English Writers very generally speak of the Social Compact instead of Contract, but in exactly the same

sense.

CHAPTER V.

THE SOCIAL CONTRACT IS THE CONSTITUTION.

829 BEFORE we attempt to determine what are the Terms of the Social Contract, since we are to use the expression for the purpose of expressing moral and political Doctrines, let us consider what Doctrines it has commonly served to express.

The most noted instance in which this Contract was referred to, was in the Vote of the Houses of Lords and Commons of England, which deposed James the Second, declaring that he had "broken the Original Contract between king and people." And this case exemplifies the purpose for which the phrase has generally been used in this Country; namely, to express that there are cases in which the subject's Duty of Obedience is annulled, and Resistance to the Governors becomes justifiable. When this is alleged to have happened in consequence of some violation of liberty or justice by the Governor, he is said to have "broken the Original Contract." And this phrase serves well to express, in a plain and forcible manner, the condemnation of the transgression, and the steps which it is held to justify.

830 For the breach of a Contract is an offence on which all men look with hatred and anger; and when a Contract is broken, in a fundamental manner, by one of the parties, the Obligation of the other party to perform his share of it ceases. Those who have to speak for the People, want to say, that the king's crimes have made Obedience cease to be a Duty of the People; and they cannot say this in any more intelligible or plausible way, than by saying, that the King has broken the Original Contract of King and People.

831 But this language, when used as a justification of Resistance to the Governors by their subjects, has this disadvantage; that while it refers to general Rules of Law, it makes one Party the Judge in their own case, which is against all Rules of Law. For if the People allege, against the King, a charge of Breach of Contract, they ought to bring the case before some Tribunal where justice may be done to both Parties. And if, before this is done, they resist the King's authority, he may, with at least equal plausibility, charge the offense of Breach of Contract upon them. They may charge him with Tyranny, and he may charge them with Rebellion; and these charges are not made more intelligible by calling them Breaches of the Original Contract.

832 It may be of use to recollect here what was formerly said (317) of Cases of Necessity; of which Rebellion, justified by Tyranny, is one. We cannot lay down beforehand any exact moral Rules for such cases, nor is it desirable to do so. We have already said (316), that we cannot define the circumstances of Cases of Necessity, because they must be those in which a good man does not violate the general Rule without great struggle and reluctance. For, (to repeat the arguments there used), if we were to define be

forehand the conditions under which resistance to Governors, and Rebellion, are proper, and were to give Rules for such cases; those who accepted our Rules would, when the occasion arrived, take the course of Resistance and Rebellion without reluctance or compunction; and even before the time came, would be enquiring whether they had arrived at a point where they might cast off the Duty of Obedience and the Affection of Loyalty. And further, when these Cases of Necessity arrive, men are not calm and tranquil enough to apply Rules of action; and would, in practice, pervert any Rules which we would give. We cannot pretend to give a Formula for the justification of Rebellion; and the phrase of the "King having broken the Original Contract," so far as it is merely a Formula, cannot be a justification; although if there really be a justifying necessity, this phrase may serve to express it.

833 Since we are thus compelled to abstain from laying down Rules for Cases of Political Necessity which justify Resistance, it may be allowable to illustrate, by example, the manner in which such cases are to be regarded. I will take, as my example, the writings of a very able man who considered himself compelled, by the necessity of the case, to join in the Resistance to Charles the First, namely, Philip Hunton. He wrote a Book "On Monarchy in General; and the Monarchy of England in particular;" and in this, among other points, he treats of the question of Resistance to the Monarch rendered necessary by his transgressions. He does not employ the phraseology of the Original Contract Theory, which at that time had not become familiar. But he discusses the Question, which, in that or any other form, is one of extreme difficulty: Who is to be Judge when the Contract is broken? As he states the question, it is, "Who shall be Judge of the excesses of the Sovereign Lord in Monarchies of this composure?" that is, in Mixed and Limited Monarchies. In reply, he says, that this cannot be the Monarch himself, for then you destroy the frame of the State, and make it absolute: since to bind a Prince to a Law, and to make him the Judge of his deviation from that Law, is to absolve him from all Law. Nor can the Community and their Deputies be the Judges in such a case; for then we put the Supreme Power in that body, and destroy the essence of the Monarchy for the Ruler is the immediate Minister of that Power to which he is accountable for his actions. "So that," he says, "I conceive, in a limited legal Monarchy, there can be no stated Judge of the Monarch's actions, if there grow a fundamental difference between him and the community. But you will say," he adds, "it is

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