Upon the first statement of the system of a social contract various difficulties present themselves. Who are the parties to this contract?
For whom did they consent, for themselves only, or for others? For how long a time is this contract to be considered as binding? If the consent of every individual be necessary, in what manner is that consent to be given? Is it to be tacit, or declared in express terms?
Little will be gained for the cause of equality and justice if our ancestors, at the first institution of government, had a right indeed of choosing the system of regulations under which they thought proper to live, but at the same time could barter away the understandings and independence of all that came after them, to the latest posterity. But, if the contract must be renewed in each successive generation, what periods must be fixed on for that purpose? And if I be obliged to submit to the established government till my turn comes to assent to it, upon what principle is that obligation founded? Surely not upon the contract into which my father entered before I was born?
Secondly, what is the nature of the consent in consequence of which I am to be reckoned a party to the frame of any political constitution?
It is usually said "that acquiescence is sufficient; and that this acquiescence is to be inferred from my living quietly under the protection of the laws."
But if this be true, an end is as effectually put to all political science, all discrimination of better and worse, as by any system invented by the most slavish sycophant. Upon this hypothesis every government that is quietly submitted to is a lawful government, whether it be the usurpation of Cromwell, or the tyranny of Caligula. Acquiescence is frequently nothing more, than a choice on the part of the individual, of what he deems the least evil.
In many cases it is not so much as this, since the peasant and the artisan, who form the bulk of a nation, however dissatisfied with the government of their country, seldom have it in their power to transport themselves to another. It is also to be observed upon the system of acquiescence, that it is in little agreement with the established opinions and practices of mankind. Thus what has been called the law of nations, lays least stress upon the allegiance of a foreigner settling among us, though his acquiescence is certainly most complete; while natives removing into an uninhabited region are claimed by the mother country, and removing into a neighbouring territory are punished by municipal law, if they take arms against the country in which they were born. But surely acquiescence can scarcely be construed into consent, while the individuals concerned are wholly unapprised of the authority intended to be rested upon it.
Locke, the great champion of the doctrine of an original contract, has been aware of this difficulty, and therefore observes that "a tacit consent indeed obliges a man to obey the laws of any government, as long as he has any possessions, or enjoyment of any part of the dominions of that government; but nothing can make a man a member of the commonwealth, but his actually entering into it by positive engagement and express promise and compact." A singular distinction! implying upon the face of it that an acquiescence, such as has just been described is sufficient to render a man amenable to the penal regulations of society; but that his own consent is necessary to entitle him to the privileges of a citizen.