equality of all men, they could not justify in reason the acquisition by the few of a control of the many, except upon the hypothesis that this subjection of the mass to the few was voluntary. But that hypothesis is not consistent with any other theory than that all governments are founded upon a social contract. They knew that the contract was a fiction, but they had become so accustomed, as we still are, to the use of fictions in the administration of the law, that they were not conscious of the violence done to the facts of the case. The only way of solving the metaphysical difficulty that confronted them was in the use of this fiction, and if the facts did not fit and support the hypothesis, they were in a frame of mind to pronounce it all the worse for the facts.' This doctrine was in the air everywhere when the Government and Constitution of the United States were established, and although political scientists have generally repudiated it, it still has a hold upon the popular mind, and dominates the legal thought of this country.'

"All men have one common original: they participate in one common nature, and have one common right. No reason can be advanced why one man should exercise any power or pre-eminence over his fellow-creatures more than another, unless they have voluntarily vested him with it. Since, then, Americans have not, by any act of theirs, empowered the British Parliament to make laws for them, it follows they can have no just authority to do it."—" Hamilton's Works," I., 6 (Lodge's edition).

'Not many months ago (1890) the Senate of the United States adopted a resolution congratulating the people of Brazil on the estab

The form which the theory generally assumes in the United States is that "governments are instituted among men, deriving their just powers from the consent of the governed" (Declaration of Independence).

While that doctrine is true in the sense that all governments rest upon the acquiescence in their decrees of the great mass of the people whom they rule, it is not true that the power is derived from the consent of all the governed. Confessedly, the power to control the actions of women and children is not derived from their consent, not even in the land of so-called universal suffrage. And where the suffrage of male adults is limited to those who possess an educational and property qualification, the fallacy of the doctrine becomes still more manifest. It is absurd to say that the thieves and thugs who infest society ever subscribed their consent to the criminal laws of the land. They have not even acquiesced in their establishment, except so far as an overpowering force has compelled them to yield partial obedience.

But it may be urged that by this doctrine is meant not that the consent of each and every individual to

lishment by them of a government depending for its powers upon the consent of the governed; and the decisions of the courts and the practical treatises on constitutional law still teem with references to the natural rights of man, and a surrender of a part of them upon entry into organized society.-See ante Ch. VI.

the laws of the country must be obtained before they can be rightfully enforced, but that the government derives its just powers from the consent of the majority of the people whom it rules. But, granting that this is a proper limitation upon the meaning of the postulate, and forbearing to do more than make the claim that the limitation is a fatal admission of the insufficiency of the theory, since it would not then furnish any justification for the control of the minority by the majority, even then the theory will not fit in with the facts. It is to be supposed that no one would question the truth of the proposition that only those rule who have the right to exercise the electoral franchise. If one cannot vote in the elections of the country, he cannot be said to have given his consent to the enactment and enforcement of the laws.

Now the population of the United States was in 1880 fifty millions, and it would not be too liberal an estimate to put the population in 1888 at sixty millions. I believe the census of 1890 will show a still greater increase. It will without doubt be conceded that the presidential canvass of 1888 was a very warm contest, and brought out the full strength of both parties; and that almost every one voted in that election who had a right to vote. The total number of votes cast at that election for all the presidential candidates was 11,388,038. The eleven mil

lions, therefore, determined among themselves who shall exercise governmental authority over the sixty millions. On what theory of consent can it be explained that the eleven millions had a right to command the obedience of the forty-nine millions? The authority of the eleven millions and of their governmental representatives, to control the actions of the silent, non-participating forty-nine millions, rests upon no other legal basis than that which supports the right of the law-makers to compel the thieves and thugs of society to render obedience to their edicts. It is because the eleven millions have the power to compel the obedience of any one of the forty-nine millions, that he renders obedience to the laws of the country. The moral influence of the eleven millions over the mass of the forty-nine millions, rather than the possession of the superior physical force, is what secures the subjection of the many to the commands of the few. But still the proposition remains true, that the exercise of political power by the few does not rest upon the consent of the subject and silent majority, but upon the possession by the few of the superior strength, both moral and material. And the commands of these few constitute the law, whatever may be their inherent viciousness or inequity. Moral reasons may be assigned for pronouncing a particular exercise of authority by the ruling power to be unrighteous or

unjust; but no exercise of authority by the ruling power in the land can ever be called illegal.

Not only is it true as a fact, that governments do not derive their just powers from the consent of the governed, but it is not even believed in by the people, except as a part of their philosophy. It is not a part of their practical politics, as the following clipping from a current number of a leading journal will show:

'We shall never go back to the crude attempt of the Puritans to secure the purity of the ballot by confining the suffrage to church members; but we may well question whether we have not gone quite too far in the opposite direction, in giving the suffrage to everybody regardless of either moral or intellectual qualifications, and whether it is not high time we took some measures to make conscience more powerful at the polling-booth."

Who is meant by "we" in this extract? Until our attention is directly called to it, it does not appear strange to us that the distinguished editor should refer to some aggregation of the people, as having in them the totality of governmental power, by the personal pronoun "we," without any other description. And it is very likely that the great majority of the readers of this editorial, if they had been questioned, would have stated that the writer was referring to the power of the people to regulate their concerns for the general welfare. But that could not have been the thought of the writer; nor did the

1 Christian Union, editorial, "Political Puritanism," Jan. 1, 1890.