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.

888. 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.

889. 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 say. ing, that the King has broken the Original Contract of King and People.

890. 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 offence 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.

891.

It may be of use to recollect here what was formerly said (414) 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 (413), 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 beforehand 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 inquiring 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.

892. 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 all one way to absoluteness to assign him no Judge, as to make him his own Judge." Hunton answers, "I say not simply in this case there is no Judge: but that there can be no Judge legal and constituted within that frame of Government: it is a transcendent case beyond the provision of the Government, and must have an extraordinary Judge."

893. He then proceeds to deliver his own judgment on such a case; which is this: "that if the transgression of the Sovereign be of lesser moment, it is to be borne by public patience, rather than endanger the being of the State by a contention between the Head and Body politic. But if it be mortal, and such as, suffered, dissolves the frame and life of the Government, and Public Liberty; then the illegality and destructive nature is to be set open, and redress sought by Petition; which failing, the auther pronounces that "prevention by Resistance ought to be." But yet he once more repeats his cautions and preliminaries: "First, that the case is such, must be made apparent: and if it be apparent, and an appeal be made ad conscientiam generis humani, especially of those of that community, then the fundamental Laws of that Monarchy must judge, and pronounce the Sentence in every man's Conscience;

and every man, as far as concerns him, must follow the evidence of truth in his own soul, to oppose or not to oppose." This power of judging in such a case, he adds, implies no civil superiority in those who judge; being, not authoritative and civil, but moral; belonging to us, not as citizens, but as reasonable creatures.

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894. I have made these quotations from Hunton, because it is desirable to show how far the struggles of mind of a conscientious man, in a particular case in which resistance to the Government seemed to become necessary, are removed from the familiarity and positiveness with which Rules of such cases, in the general form, are sometimes laid down, by writers of Morals. Hunton's judgment, that, under the English Constitution, resistance to the Sovereign might become necessary, has the more weight, because it is combined with a strong admiration of the "Architecture" of the English Constitution; whereof," he says, "I must declare myself to be so great an admirer, that, whatever more than human wisdom had the contriving of it, whether done at once, or by degrees found out and perfected, I conceive it unparalleled for exactness of true policy in the world." His grief at the necessity of discussing such questions is strongly expressed. "O let no Son of this State," he says, "account it presumption in me, for putting in my judgment, and speaking that which I conceive might, if not remove, yet mitigate this fatal distemperature of our common Mother: at another time, perhaps, it might be censurable, but in this exigence, laudable."

895. We conceive, then, that Cases of Resistance to Government are Cases of Necessity; and as such, Cases for which no Rule can be given. The use of the phrase "Original Contract" does not enable us to give any special Maxims on this subject. Still, as we have seen that the object of the