But to return from this short digression,—which, however, is not wholly foreign to the question of the effect of the will of the majority upon the form or the existence of their society. I cannot too often recommend it to the serious consideration of all men who think civil society to be within the province of moral jurisdiction, that, if we owe to it any duty, it is not subject to our will. Duties are not voluntary. Duty and will are even contradictory terms. Now, though civil society might be at first a voluntary act, (which in many cases it undoubtedly was,) its continuance is under a permanent standing covenant, coexisting with the society; and it attaches upon every individual of that society, without any formal act of his own. This is warranted by the general practice, arising out of the general sense of mankind. Men without their choice derive benefits from that association; without their choice they are subjected to duties in consequence of these benefits; and without their choice they enter into a virtual obligation as binding as any that is actual. Look through the whole of life and the whole system of duties. Much the strongest moral obligations are such as were never the results of our option. I allow, that, if no Supreme Ruler exists, wise to form, and potent to enforce, the moral law, there is no sanction to any contract, virtual or even actual, against the will of prevalent power. On that hypothesis, let any set of men be strong enough to set their duties at defiance, and they cease to be duties any longer. We have but this one appeal against irresistible power,—
Si genus humanum et mortalia temnitis arma,
At sperate Deos memores fandi atque nefandi.
Taking it for granted that I do not write to the disciples of the Parisian philosophy, I may assume that the awful Author of our being is the Author of our place in the order of existence,—and that, having disposed and marshalled us by a divine tactic, not according to our will, but according to His, He has in and by that disposition virtually subjected us to act the part which belongs to the place assigned us. We have obligations to mankind at large, which are not in consequence of any special voluntary pact. They arise from the relation of man to man, and the relation of man to God, which relations are not matters of choice. On the contrary, the force of all the pacts which we enter into with any particular person or number of persons amongst mankind depends upon those prior obligations. In some cases the subordinate relations are voluntary, in others they are necessary,—but the duties are all compulsive. When we marry, the choice is voluntary, but the duties are not matter of choice: they are dictated by the nature of the situation. Dark and inscrutable are the ways by which we come into the world. The instincts which give rise to this mysterious process of Nature are not of our making. But out of physical causes, unknown to us, perhaps unknowable, arise moral duties, which, as we are able perfectly to comprehend, we are bound indispensably to perform. Parents may not be consenting to their moral relation; but, consenting or not, they are bound to a long train of burdensome duties towards those with whom they have never made a convention of any sort. Children are not consenting to their relation; but their relation, without their actual consent, binds them to its duties,—or rather it implies their consent, because the presumed consent of every rational creature is in unison with the predisposed order of things. Men come in that manner into a community with the social state of their parents, endowed with all the benefits, loaded with all the duties of their situation. If the social ties and ligaments, spun out of those physical relations which are the elements of the commonwealth, in most cases begin, and always continue, independently of our will, so, without any stipulation on our own part, are we bound by that relation called our country, which comprehends (as it has been well said) "all the charities of all."[21] Nor are we left without powerful instincts to make this duty as dear and grateful to us as it is awful and coercive. Our country is not a thing of mere physical locality. It consists, in a great measure, in the ancient order into which we are born. We may have the same geographical situation, but another country; as we may have the same country in another soil. The place that determines our duty to our country is a social, civil relation.
These are the opinions of the author whose cause I defend. I lay them down, not to enforce them upon others by disputation, but as an account of his proceedings. On them he acts; and from them he is convinced that neither he, nor any man, or number of men, have a right (except what necessity, which is out of and above all rule, rather imposes than bestows) to free themselves from that primary engagement into which every man born into a community as much contracts by his being born into it as he contracts an obligation to certain parents by his having been derived from their bodies. The place of every man determines his duty. If you ask, Quem te Deus esse jussit? you will be answered when you resolve this other question, Humana qua parte locatus es in re?[22]
I admit, indeed, that in morals, as in all things else, difficulties will sometimes occur. Duties will sometimes cross one another. Then questions will arise, which of them is to be placed in subordination? which of them may be entirely superseded? These doubts give rise to that part of moral science called casuistry, which though necessary to be well studied by those who would become expert in that learning, who aim at becoming what I think Cicero somewhere calls artifices officiorum, it requires a very solid and discriminating judgment, great modesty and caution, and much sobriety of mind in the handling; else there is a danger that it may totally subvert those offices which it is its object only to methodize and reconcile. Duties, at their extreme bounds, are drawn very fine, so as to become almost evanescent. In that state some shade of doubt will always rest on these questions, when they are pursued with great subtilty. But the very habit of stating these extreme cases is not very laudable or safe; because, in general, it is not right to turn our duties into doubts. They are imposed to govern our conduct, not to exercise our ingenuity; and therefore our opinions about them ought not to be in a state of fluctuation, but steady, sure, and resolved.
Amongst these nice, and therefore dangerous points of casuistry, may be reckoned the question so much agitated in the present hour,—Whether, after the people have discharged themselves of their original power by an habitual delegation, no occasion can possibly occur which may justify the resumption of it? This question, in this latitude, is very hard to affirm or deny: but I am satisfied that no occasion can justify such a resumption, which would not equally authorize a dispensation with any other moral duty, perhaps with all of them together. However, if in general it be not easy to determine concerning the lawfulness of such devious proceedings, which must be ever on the edge of crimes, it is far from difficult to foresee the perilous consequences of the resuscitation of such a power in the people. The practical consequences of any political tenet go a great way in deciding upon its value. Political problems do not primarily concern truth or falsehood. They relate to good or evil. What in the result is likely to produce evil is politically false; that which is productive of good, politically true.
Believing it, therefore, a question at least arduous in the theory, and in the practice very critical, it would become us to ascertain as well as we can what form it is that our incantations are about to call up from darkness and the sleep of ages. When the supreme authority of the people is in question, before we attempt to extend or to confine it, we ought to fix in our minds, with some degree of distinctness, an idea of what it is we mean, when we say, the PEOPLE.
In a state of rude Nature there is no such thing as a people. A number of men in themselves have no collective capacity. The idea of a people is the idea of a corporation. It is wholly artificial, and made, like all other legal fictions, by common agreement. What the particular nature of that agreement was is collected from the form into which the particular society has been cast. Any other is not their covenant. When men, therefore, break up the original compact or agreement which gives its corporate form and capacity to a state, they are no longer a people,—they have no longer a corporate existence,—they have no longer a legal coactive force to bind within, nor a claim to be recognized abroad. They are a number of vague, loose individuals, and nothing more. With them all is to begin again. Alas! they little know how many a weary step is to be taken before they can form themselves into a mass which has a true politic personality.
We hear much, from men who have not acquired their hardiness of assertion from the profundity of their thinking, about the omnipotence of a majority, in such a dissolution of an ancient society as hath taken place in France. But amongst men so disbanded there can be no such thing as majority or minority, or power in any one person to bind another. The power of acting by a majority, which the gentlemen theorists seem to assume so readily, after they have violated the contract out of which it has arisen, (if at all it existed,) must be grounded on two assumptions: first, that of an incorporation produced by unanimity; and secondly, an unanimous agreement that the act of a mere majority (say of one) shall pass with them and with others as the act of the whole.
We are so little affected by things which are habitual, that we consider this idea of the decision of a majority as if it were a law of our original nature. But such constructive whole, residing in a part only, is one of the most violent fictions of positive law that ever has been or can be made on the principles of artificial incorporation. Out of civil society Nature knows nothing of it; nor are men, even when arranged according to civil order, otherwise than by very long training, brought at all to submit to it. The mind is brought far more easily to acquiesce in the proceedings of one man, or a few, who act under a general procuration for the state, than in the vote of a victorious majority in councils in which every man has his share in the deliberation. For there the beaten party are exasperated and soured by the previous contention, and mortified by the conclusive defeat. This mode of decision, where wills may be so nearly equal, where, according to circumstances, the smaller number may be the stronger force, and where apparent reason may be all upon one side, and on the other little else than impetuous appetite,—all this must be the result of a very particular and special convention, confirmed afterwards by long habits of obedience, by a sort of discipline in society, and by a strong hand, vested with stationary, permanent power to enforce this sort of constructive general will. What organ it is that shall declare the corporate mind is so much a matter of positive arrangement, that several states, for the validity of several of their acts, have required a proportion of voices much greater than that of a mere majority. These proportions are so entirely governed by convention that in some cases the minority decides. The laws in many countries to condemn require more than a mere majority; less than an equal number to acquit. In our judicial trials we require unanimity either to condemn or to absolve. In some incorporations one man speaks for the whole; in others, a few. Until the other day, in the Constitution of Poland unanimity was required to give validity to any act of their great national council or diet. This approaches much more nearly to rude Nature than the institutions of any other country. Such, indeed, every commonwealth must be, without a positive law to recognize in a certain number the will of the entire body.