tion-that is, the whole society-dies and another generation or society succeeds, this forms a whole, and there is no superior who can give their territory to a third society, who may have lent money to their predecessors beyond their faculty of paying." In this way the attempt is made to demonstrate that a debt contracted by one generation, or by a government at a particular time, is not binding on any generation after. He limits the duration of the contracting party to thirtyfour years. "Every constitution, then, and every law naturally expires at the end of thirty-four years." This is not a merely tentative speculation. "Examination," we are told, "will prove it to be solid and salutary." In a subsequent letter Jefferson revises his numerical calculation. He has come to see that the half of a contracting society disappears in nineteen years. "Then the contracts, constitutions, and laws of every such society become void in nineteen years from their date." The period here allowed for the rightful existence of the constitution and laws of a political community is, as one has said, shorter than the lifetime of a horse. That these were not temporary fleeting opinions is proved by the fact that twentyfour years later, in 1813, and again, only two years before his death, under date of June 5, 1824, Jefferson advances these same propositions in almost identical language. This shows that he had not been convinced by Madison's pretty obvious objections to this superficial theorizing. If the earth belongs to the living, what shall be said of the improvements made by those before us, and the services rendered, and the debts incurred, for our sake? Unless temporary laws were kept in force by additional acts prior to their expiration, "all the rights depending on positive laws, that is, most of the rights of property, would become defunct." Madison falls back on the idea of a tacit consent given to existing laws through the very fact of their nonrevocation. He goes further and raises the question on what principle it is that the voice of the majority binds the minority. This, he answers, is not a law of nature, but is the result of a compact, and a compact in the making of which there was unanimity. "Rigid theory" must presuppose such a unanimity. Unless there be this tacit agreement, no person on attaining to mature age is bound by the acts of the majority. # Jefferson's Writings (1853), Vol. III, p. 102, et seq. + Ibid, p. 109. The good sense of Madison enables him to riddle the doctrine of his correspondent, but Madison struggles in the meshes of the social compact theory, and can think of no escape from its practical absurdities except through assumptions not less arbitrary and artificial than the hypotheses which they are invented to bolster up. The social compact theory, considered as an historical expla nation of the origin of states, is, of course, true only to a very limited extent. Political communities, as a rule, have had other origins. It is at best a legal fiction, convenient as other legal fictions may be, as a mode of stating the reciprocal character of the rights and obligations which pertain to rulers and the ruled. When taken for a political dogma, as a test of the validity of existing systems of polity, it is a mischievous error. When we interpret it, with Burke, as a mode of saying that every rational will is presupposed to coincide with the right order of things; or, with Blackstone, as a way of asserting that reciprocal duties are laid upon rulers and the gov erned, it conveys a truth. When we take another step, and affirm that no government which was not established by general or unanimous consent can claim allegiance, and further maintain that the assent of every generation, nay, of every individual, is the condition of his obligation to obedience, we introduce a political heresy, the influence of which is very likely to be disastrous. The true view to take is, that the existing form of the state, regarded as a fact, may or may not be due to an express agreement at some former epoch. But the obligation of the individual to obedience does not depend on his having had a share in forming the state, or on his having a share at present in the management of it. This, be it observed, is not to approve of the denial of political power to those who are capable of exercising it. It is easy to suppose cases where the withholding of all share in the government from those who can be safely trusted with political power is both arbitrary and inexpedient. What form of government is best can only be decided by reference to the character and history of the particular nation. We are speaking now only of what the individual may demand, as a condition of his obeying the "the powers that be." For one born under a particular system, it is only necessary to know that the established system secures the great ends of government, and lays upon him no command inconsistent with his duty to God. Yet in supposable cases, even the withholding of political power may be so flagrant an evil as to warrant resistance. We require some guaranty that natural rights shall not be violated. Such a guaranty may be afforded by the actual possession of a share of political power, especially when the individual is one of a class-the wealthy class for example- who are thus enabled, by uniting their political strength, peacefully to counteract threatened injustice. But when political rights are demanded as a guaranty for the secure possession of natural rights, the claim is equivalent simply to a demand for a government that shall defend the latter. Political rights are thus claimed only as a means to an end. The two categories of rights are properly distinguished. S. Mis. 10412 |