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communione sociatus), a gathering of men associated by agreement in law, and for the common good. (De Civ. Dei 19, 23.) But St. Augustine and even Fortescue, who quotes him, seem to have used some phrases of the social contract theory merely by accident, without any thought of the significance given them in later speculation. This is evident in Fortescue, although he speaks of a people incorporating themselves by compact into a kingdom of their own will (De Laud. cap. 14, initio), a phrase which in a later writer would be very significant. Yet in cap. 13, his figure is that of a human body, with the king for a head, and the laws for (nervos) muscles, binding the whole together; a metaphor from which the historic school could make almost as good an argument as those of the social compact, if they wished to claim the learned and wise old judge as the first of their number. He certainly anticipated modern liberal doctrines of the relation of king and people in a most remarkable manner for his time: but the whole passage shows that he was merely using a metaphor that lay close at hand, with no notion of stating either the social contract or the development theory.

The earliest English author who can be said to have intelligently stated a theory of social compact is "the judicious Hooker." Hobbes also held it, but in a most eccentric form, since his theory was that the citizens for the sake of security agree to submit to absolute rule (cf. Austin I. 288, note), a doctrine, by the way, which like most of Hobbes' shows a profound insight into historic truth with a disregard of conventional statements. In the latter part of the seventeenth century, the social compact theory became the established tenet of the English whigs or liberal party, in opposition to those who held the doctrine of a divine right of kings, which they regarded as a necessary consequence of the patriarchal theory. (See Hallam's Const. Hist. of England, latter part of ch. 12.). The university of Oxford

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published a decree against "pernicious books and damnable doctrines," in which they condemned as “false, seditious, and impious." the proposition that all civil authority is derived originally from the people, and that there is a compact, tacit or express, between the king and his subjects. (Hallam II. 630.) And Bp. Sherlock, in a book which Hallam calls the most able treatise on that side, says: "These men think that all civil authority is founded in consent, as if there were no natural lord of the world, or all mankind came free and independent into the world. This is a contradiction to what at other times they will grant, that the institution of civil power and authority is from God; and indeed if it be not, I know not how any prince can justify the taking away the life of any man, whatever crime he has been guilty of. For no man has power of his own life, and therefore, cannot give this power to another; which proves that the power of capital punishments cannot result from mere consent, but from a superior authority which is lord of life and death." Hallam well зays, that this is not refuted in a moment. (p. 626, note.) Several books on this side have acquired historic importance in English literature: especially Sir Robert Filmer's Patriarcha, and Sir George Mackenzie's Jus Regium. In answer to the former John Locke wrote his Treatise on Government.

The result of the controversy was that the doctrine of the social compact obtained its first distinct legislative recognition from the convention parliament that consummated the Revolution of 1688-89. On the 28th of January in that year, the commons came to their great vote: that king James II. having endeavored to subvert the constitution of this 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 the kingdom, has abdicated the govern-.

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ment, and that the throne is thereby vacant. . . . . The lords resolved that there was an original contract between the king and the people, by 55 to 46, a position that seems rather too theoretical, yet necessary at that time, as denying the divine origin of monarchy, from which its absolute and indefeasible authority has been plausibly derived. (Hallam, ch. 14, vol. 3, pp. 129, 130. IIallam himself says that the commons looked not so much to Magna Charta as to the original compact of society, and rejected Coke and Hale for Hooker and Grotius, p. 134.)

From England it came early to America. In John Cotton's "Way of the Churches of Christ in New England," page 4 (quoted here from J. L. Diman's ed. of Cotton's Answer to Williams, p. 120, n. 43), is a passage clearly showing how firmly fixed at that time in the minds of the New England settlers was the doctrine that all law has its basis in contract. C. is proving the Church of Christ to be founded in a covenant: and to show that "this way of entering into church estate by covenant is not peculiar to the pedagogy of the Old Testament," he goes on: "It is evident by the light of nature, that all civill relations are founded in covenant. For to passe by natural relations between parents and children, and violent relations between conquerors and captives; there is no other way given, whereby a people, sui juris, free from natural and compulsory engagements, can be united or combined together in the visible, to stand by mutual relation fellow members of the same body, but only by mutual covenant, as appeareth by husband and wife in the family, magistrates and subjects in the commonwealth, fellow citizens in the same citie."

If solemn legislative recognition could establish the force of a legal theory, that of the social compact should hold a position against which no force of mere argument could prevail. It has had the singular good

fortune, both in England and in the United States, to be incorporated into the positive law, and even into written constitutions, as no other theory has ever been. It has been prescribed by the supreme power of the state, by the English parliament, and by the sovereign people of more than one American commonwealth; and if it has of late to some extent lost its prestige, it certainly has never been formally abrogated, nor has any other theory ever taken its place. Even now it is sometimes referred to by members of the highest tribunals as a basis for argumentation, with an explicit and conscious respect that is rarely vouchsafed to the older or to the more recent theories of law, e. g. "This is contrary to justice and to the fundamental principles of the social compact." (Swayne, J., in Gunn v. Barry, 15 Wall. 623, 1872.) "There are limitations on power which grow out of the essential nature of all free governments. Implied reservations of individual rights without which the social compact could not exist, and which are respected by all governments entitled to the name." (Miller, J., in Loan Association v. Topeka, 20 Wall. 655, 663, 1874.)

Locke, though not the author of the doctrine of a social contract, stated it in a clearer and more explicit form than any of his predecessors, in his Treatise on Civil Government, chapter 8, of which Heron, page 503, gives this abstract: "Man being by nature free and equal, no one can be subjected to the political power of another without his own consent. The only way whereby one divests himself of his natural liberty, and puts himself in the bonds of civil society, is by agreeing with other men, to join and unite into a community for their safe living in a secure enjoyment of their properties. This any number of men can do: because it does not injure the freedom of the rest. And thus what actually begins and constitutes any political society, is nothing but the consent of any number of

freemen, capable of a majority, to unite and incorporate into such a society."

But note the reference to a "majority" and the "freedom of the rest." Here is the first weak point in the theory. If not unanimous, how is the contract binding on the minority? And how shall it remain binding if one choose to disown it? To meet this and other objections, the doctrine, in its most complete form, recognized three distinct contracts or pacts as necessary to the organization of a perfect state.

The first, known as pactum unionis, changed the herd of individuals into a society, by union of their several wills and forces to guaranty the reciprocal liberty of each, but did not as yet make a state.

The pactum subjectionis, followed by which the members of the society submitted themselves to the command of the sovereign: and the pactum constitutionis, defined the sovereign's power and the mode in which it should be conferred.

Puffendorf (Law of Nature and Nations, lib. 7, cap. 2, 5, etc.) gives the most elaborate account of the formation of these contracts. Having premised that the great obstacles to the harmonious life of men in a state of nature are the diversity of their wishes and wills, and the selfishness which leads everyone to seek his own good and not that of the greater number, he states the object of civil society to be the removal of these obstacles by a union of wills and of force, capable of directing the actions of each individual and of compelling him if necessary to do as directed.

"Let us now suppose that a multitude who have previously lived in a state of natural liberty and equality, wish to form a civil society. The first requisite is that each should contract with all the rest to unite themselves in a single permanent body, and to regulate by common consent all that relates to their mutual safety and preservation. This contract may be absolute and unreserved,

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