and obeyed without question-against whom to hesitate is treason, and to rebel is blasphemy. The other holds that all human associations are resolvable into a contract more or less akin to what is going on day by day between man and man, having a beginning and an end, a subject-matter and a remedy.

Between these extremes most men vibrate, and it is a matter of temperament, of age, of prosperity, of education, to which side each will most incline. Both theories have merits, and both have defects. In all ages and all times. nature seems to predispose a sufficient array of contemporaries, so as to weigh evenly in these opposing scales. To assert or believe that a governor is placed over the governed, and maintained there irrespective of human influences and human wants, and that no derangement in the mutual adaptation justifies a change in the governor, in his prerogatives and his duties, is a dogma which it is too late in the world's history to maintain. On the other hand, to say that no respect is due to tradition, no virtue lies in habitual obedience-that there is no merit in adhering to good forms till better are made clearly apparent -that there is no natural harmony between a thoughtful governor and generous, industrious, and well-conditioned subjects, is equally far from the truth.1 There is a divine right on the one side as well as the other. Each theory contains but half a truth, and their conjunction is needed to reconcile both phases of human life. What is clear is, that there is and can be no mutual relation or dealing between man and man on any subject, but that which is resolvable more or less into contract. When slavery ceases, contract

DOMITIAN, in European systems of government, seems entitled to some credit as to the theory of divine right. He insisted on his officials beginning, "Our Lord and God commands so and so."Suet. Dom.

1 "The comfort and basis of all governments is the mutual good affection that subsists between the magistrate and the people. If, on the one hand, the magistrate does not love the people, or if, on the other hand, the people do not look up to their magistrate with love and respect, that country never can go on in comfort and prosperity." -Per Rooke, J. 25 St. Tr. 1149. "The subjects have, in their several public and private capacities, as legal a title to what are their rights by law as a prince to the possession of his crown."-Gen. Stanhope, R. v Sacheverell, 5 St. Tr. 5.

necessarily begins. The most divine of divine rights is, in modern times, to improve and amend the municipal laws whencesoever derived, until all modes of oppression and wrong are made less oppressive and less wrongful-to be satisfied with no limit to the amelioration of every chapter and verse of the law, till it approaches nearer and nearer to the standard of justice which every individual carries in his own breast, and which advancing education and experience help him to define more and more clearly the higher he rises in the scale of civilisation.

Opponents of the theory of original contract.-Some vainly imagine that they reduce the theory of original contract to an absurdity, when they assert that no record exists of a large multitude of adult men and women co-equal in rights and powers meeting in a spacious plain, and choosing a governor and bargaining for their fealty on terms and conditions. They affect to pronounce all this an idle fiction. It is true enough that, except perhaps in very recent times, no human society was ever found in a state of disintegration, where the co-equal units marshalled themselves for the first time and at once in files and squares, and made up the machinery of a completed organisation. As Montesquieu observed, man is born in society, and there he remains. Every single member is born into society and dies out of it, and there is no protocol or preliminary treaty made at his entry, nor is there at his exit any formal dissolution of partnership. At his birth each individual is bound hand and foot by heavy engagements made by his predecessors, and his likings or dislikings are wholly unattended to. The social contract has for him neither a beginning nor an end. He did not originate it, and cannot put an end to it. It has an ever-shifting foreground of terms and conditions-a remedy, which, if there is any, none can, single-handed, enforce. It may be less a theory than a figure of speech; it may be an apt illustration, though not a definition. It has at least given permanent satis

1 LOCKE says: "If man be once allowed to be master of his own life, the despotical arbitrary power of his master ceases. He that is master of himself and his own life has a right, too, to the means of preserving it so that as soon as compact enters, slavery ceases, and he so far quits his absolute power and puts an end to the state of war, who enters into conditions with his captive."-Treat. Gov. p. 2, ch. xv. § 172.

faction to the understandings of successive generations of English subjects, and has withstood the assaults of all the philosophers. Magna Charta partakes more of the form of a contract than a deed of gift. The Petition of Right was a statement of terms and conditions assented to by the king, which is also in the form of a contract.2 The

"With the enemies of freedom it is a usual artifice to represent the sovereignty of the people as a licence to anarchy and disorder. But the tracing up civil power to that source will not diminish our obligation to obey. It only explains its reasons and settles it on clear, determinate principle. It turns blind submission into rational obedience, tempers the passion for liberty with the love of order, and places mankind in a happy medium between the extremes of anarchy on the one side, and oppression on the other. It is the polar star that will conduct us safe over the ocean of political debate and speculation, the law of laws, the legislator of legislators."-R. Hall, On Freedom of Press.

HUME affects to demolish the fiction of an original contract by asking for the page of history in which it is recorded.-Treat. Hum. Nat, vol. iii. Hume's Ess. p. 2, § 12.

BENTHAM thinks Hume had exploded the fiction, but adds much of his own to the same effect, and resolves all into the principle of utility.-1 Benth. Works, 269.

LORD BROUGHAM says the doctrine of utility explains the origin of society better than an original contract.-1 Brougham, Pol. Phil. 51. J. S. MILL says the same.-Mill, On Lib. 185.

HUMBOLDT says "it is useless to derive the obligation to submit to punishment from the original contract, for every criminal could escape his punishment, if, before undergoing it, he separated himself from the social contract, as in the voluntary exile of the ancient republics."--Humboldt, Sphere of Government. But this is running away with the analogy of a private contract instead of contemplating the substantial truth it embodies.

1 1 Stubbs's Hist. 530.

2 THE BISHOP OF ELY said "the making of new laws was as much a part of the original contract as the observing of old ones."—5 Parl. Hist. 75. And SIR G. TREBY said the coronation oath obliges the sovereign to consent to such laws as the people shall choose.-5 Parl. Hist. 81. And the same was the view of L. SOMERS.-5 Parl. Hist. 204. It is true that in point of form the House of Commons refused to state this plainly.-4 Campb. Chrs. 100.

The historians of Arragon, who said they had a chief justice, who controlled king and subject alike, had a form at a coronation which was the plainest illustration of the social contract ever adopted. After the king swore to maintain the laws, the assembly replied, "We, who are as good as you, have taken you for our king and lord so long as you respect our laws and liberties, and no longer."-8 Univ. Mod. Hist.

At the coronation of Henry V. the Lords and Commons had such

coronation ceremony is a form of contract thinly disguised. The Revolution settlement was adopted expressly on the theory, that the original contract was broken by the abdication of James II., and another was substituted. On the very pillars of the commonwealth this phrase has been written large, and deserves to be treated tenderly. Even if it be a fiction, it is irrepressible, and has become ingrained as an inseparable condition of English political thought. The United States of America also bear on the face of their constitution an original contract, and some modern nations have substantially gone through the same process of resolving themselves into first principles, and then recombining under a new original contract, adopting many of the old terms.1.

confidence in him, that they offered to swear allegiance to him before he was crowned, or had taken the customary oath to govern according to the laws.-1 Parl. Hist. 319.

1 LORD CLARENDON said the phrase "original contract was a new one, taken from some late authors, and the very phrase might bear a great debate.-5 Parl. Hist. 73. The idea was, however, old enough. Lycurgus's ordinances were in the form of a solemn contract, to which the gods were parties, as well as the people and the sovereign power.-2 Grote's Greece, 462. And ARISTOTLE'S definition of law is that it was a declaration emanating from the common consent of the people.-Ante, p. 16.

THE PRESIDENT BRADSHAW told Charles I. that there was a contract and a bargain made between the king and his people.-4 St. Tr. 1013. And SIR R. PHILLIPS, in Darnell's case, had argued on this footing.-3 St. Tr. 65.

MILTON says men at first agreed by common league to bind each other from mutual injury, and ordained some authority to restrain by force and punishment what was violated against peace and common right.-Milton's Ten. of Kings.

ERSKINE said: "The greater as well as the lesser societies of mankind are held together by social compacts, and the government of which you are a subject is not the rod of oppression in the hands of the strongest, but is of your own creation-a voluntary emanation from yourself, and directed to your own advantage."-Ersk. Speeches.

LECHMERE said: "The original contract is an eternal truth, essential to the government itself, and not to be defaced or destroyed by any force or device. . . . Such was the genius of a people whose government was built on that noble foundation-not to be bound by laws to which they did not assent. Muffled up in darkness and superstition as our ancestors were, yet that notion seemed engraven on their minds, and the impressions so strong that nothing could impair them.” -Sacheverell's Case, 15 St. Tr. 62.

The University of Oxford once said, it is true, the original contract

Reason why theory of original contract keeps its ground.The reason why the theory of the original contract can never cease to be satisfactory is, that nothing else can explain and justify the perpetual desire of each individual to adhere to the laws, and yet to improve upon them, for all laws are relative to the wants of man, and no one man is acknowledged to be so absolute over all the rest as to suppress this desire. The terms of a continuing contract are referable to the growing consciousness that the condition of all can be bettered by expanding and adapting these terms to new circumstances and new views, such as come alike to all, and in modifying which all can or may take some part and have some voice. The contract may be made for each at birth by agents appointed by nature itself. The contract may not be terminated till death. The remedy may be not so much by reference to the law that exists, as to that which may grow out of improvements set in motion by common consent. In short the original contract is a continuing contract made for each at his birth, and lasting for life, with a proviso to refer all disputes to the law of the present, and with the soothing knowledge that all the parties may by some act of co-operation obtain a better law of the future. In this sense the original contract must always recommend itself to the understanding as a happy phrase or apologue, sketching the fluctuating relations between members of a commonwealth-between subject and sovereign-between subject and subject. It catches the attitude of equality, where each stands at arms'-length, claiming a voice in the solution of every difficulty and dispute. It thus satisfies the profoundest reflection and finds an echo in the general conscience, suggesting wholesome thoughts to all alike.1

was a damnable doctrine.-15 St. Tr. 255. And Convocation, in 1606, asserted that it was a great error to deduce civil power from the people, and not from God's ordinance.-1 Hallam, Const. H., 322. WHEWELL, however, defended the theory of original contract as a convenient mode of explaining the mutual relations of the governed and governor.—Elem, of Mor.

1 It would have been a much more effective mode of exploding the theory of an original contract, if political philosophers like Bolingbroke and Hume, Bentham and Austin, Lord Brougham, Mill, and others, instead of treating it as a conclusive argument, that such contract is not a historical fact, had instituted a detailed comparison