fluence was exercised upon political thought in America. The compact theory is recognized in the preamble of the Declaration of Independence, and is explicitly accepted in nearly all of the Bills of Rights of the Constitutions of the various commonwealths of our Union. Thus, for example, in that of New Hampshire it is declared that "all men are born equally free and independent. Therefore all government of right originates from the people, is founded in consent, and instituted for the general good." In the preamble to the Constitution of Massachusetts it is said, "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 general good."

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Also in the private writings of Jefferson and Madison and other statesmen of that period, we find the social contract theory accepted in its purest form. Jefferson goes to the extent of holding that one generation cannot bind another, and, based upon a calculation as to average length of life, says, every constitution, then, and every law naturally expires at the end of thirty-four years." At a later date he reduces this period to nineteen years, thus making the natural life of political States, as some one has said, shorter than that of a horse. Madison, to whom these views were expressed, while not accepting this deduction, yet, in his answer to Jefferson, maintains the contractual origin of

political society, and asserts that the continued validity of constitutions and laws rests upon tacit acceptance through the fact of their not being explicitly revoked.1

1 See, upon this point, an article by Professor G. P. Fisher, entitled "Jefferson and the Social Compact Theory," in the Annual Report of the American Historical Association for 1893; and Borgeaud, Adoption. and Amendment of Constitutions in Europe and America, Chaps. II. and III.

CHAPTER V

CRITICISM OF THE CONTRACT THEORY: NATURAL LAW

IN examining the logical grounds upon which the various theories of contract rest, it is observed that the necessary postulate to them all is an original, pre-civic, non-political condition of mankind. This condition is termed the "State of Nature," and in it there are conceived to be no rules regulative of human conduct, save those afforded by the so-called "Laws of Nature," or "Natural Laws." The results flowing from such a state of life are variously described as happy or the reverse, according to the disposition of the writer. According to Locke, Nature teaches men "that being all equal and independent, no one ought to harm another in his life, health, liberty, or possession." The natural state is one of peace, the only inconvenience being that every man is necessarily at once his own judge and executive in cases where his natural rights appear to be in conflict with those of others. Hence the necessity for the establishment of some sort of authority that shall be common judge and executive agent. The conception of Rousseau is quite similar to that of Locke's, though he sees in the "State of Nature" an ideal, rather than a primitive historical, condition.

The Monarchist Hobbes, however, more intent on proving the legitimacy and necessity of absolute political authority than in demonstrating individual rights, places more emphasis upon man's individualistic impulses, and pictures the non-political state as one of anarchy. The interests of men, says he, are so mutually antagonistic as to give rise to constant war of every one against his neighbour; for the right of nature is, in fact, nothing more than "the liberty that each man hath to use his own power for the preservation of his own nature." The unrestricted application of this principle necessarily makes man the wolf of man (homo homini lupus).

But reason soon tells man, says Hobbes, that the rule of self-preservation thus defeats itself, and that the end will be better attained by uniting in some sort of general agreement whereby, through a union of individual powers, a supreme power may be obtained, which will have the strength to compel the obedience of individuals to its orders, and thereby to introduce peace. Thus the Social Contract is entered into for the better preservation of life, and is hence validated by natural right, which, as said, commands each man to use his power "for the preservation of his own nature."

Now, it is obvious that if we would criticise upon logical grounds the views of these contract writers, it is necessary that we should first of all examine the character and validity of these so-called "Natural Laws" and "Rights" upon which they so confidently base their reasoning. In doing this we shall like

wise be preparing ourselves for a consideration of the doctrines of constitutional government and popular sovereignty with which we shall be later concerned.

Distinctions.-The term "Laws of Nature" we find used in various senses, and our first task will be to distinguish between those that have figured in, and served to confuse, political speculations.

I. First of all, "Natural Law" is employed to indicate mere sequences of cause and effect in the phenomenal world.

It is only in a borrowed sense that the term "law" is here applicable. There is here no element of a command addressed to rational beings, and in fact no possibility of an infraction of the principles stated. Such "laws" are only statements of observed operations in the world, which, in accordance with the principle of nature's uniformity, may be confidently expected to re-occur whenever certain given conditions are present.

It will be seen that in conceiving these uniformities of nature as due to pre-ordained "laws," nature is viewed as an active legislative principle and as itself, by its own will, and as a living entity, dictating the manner in which its operations shall proceed. In this aspect it is thus distinguished from nature as simply a sum or series of particular phe"This is the distinction," says Ritchie, "which in scholastic phraseology is known as that between (a) Natura naturans, and (b) Natura naturata. We may indeed speak of nature doing this or that, personifying and unifying the forces of

nomena.