It is usual to infer the consent or the acceptance of the terms of the compact from the silence of the individual, and also from his continued residence in the country and submission to its government.But residence is no evidence of consent, because it may be a matter of necessity.The individual may be unable to emigrate, if he would; and by what right can individuals form an agreement to which I must consent or else migrate to some strange land?
Can my consent, under such circumstances, even if given, be any thing but a forced consent, a consent given under duress, and therefore invalid? Nothing can be inferred from one's silence, for he may have many reasons for being silent besides approval of the government.He may be silent because speech would avail nothing; because to protest might be dangerous--cost him his liberty, if not his life; because he sees and knows nothing better, and is ignorant that he has any choice in the case; or because, as very likely is the fact with the majority, he has never for moment thought of the matter, or ever had his attention called to it, and has no mind on the subject.
But however this may be, there certainly must be excluded from the compact or obligation to obey the government created by it all the women of a nation, all the children too young to be capable of giving their consent, and all who are too ignorant, too weak of mind to be able to understand the terms of the contract.These several classes cannot be less than three-fourths of the population of any country.What is to be done with them?
Leave them without government? Extend the power of the government over them? By what right? Government derives its just powers from the consent of the governed, and that consent they have not given.Whence does one-fourth of the population get its right to govern the other three-fourths?
But what is to be done with the rights of minorities? Is the rule of unanimity to be insisted on in the convention and in the government, when it goes into operation? Unanimity is impracticable, for where there are many men there will be differences of opinion.The rule of unanimity gives to each individual a veto on the whole proceeding, which was the grand defect of the Polish constitution.Each member of the Polish Diet, which included the whole body of the nobility, had an absolute veto, and could, alone, arrest the whole action of the government.Will you substitute the rule of the majority, and say the majority must govern? By what right? It is agreed to in the convention.Unanimously, or only by a majority? The right of the majority to have their will is, on the social compact theory, a conventional right, and therefore cannot come into play before the convention is completed, or the social compact is framed and accepted.How, in settling the terms of the compact, will you proceed? By majorities? But suppose a minority objects, and demands two-thirds, three-fourths, or four-fifths, and votes against the majority rule, which is carried only by a simple plurality of votes, will the proceedings of the convention bind the dissenting minority?
What gives to the majority the right to govern the minority who dissent from its action?
On the supposition that society has rights not derived from individuals, and which are intrusted to the government, there is a good reason why the majority should prevail within the legitimate sphere of government, because the majority is the best representative practicable of society itself; and if the constitution secures to minorities and dissenting individuals their natural rights and their equal rights as citizens, they have no just cause of complaint, for the majority in such case has no power to tyrannize over them or to oppress them.But the theory under examination denies that society has any rights except such as it derives from individuals who all have equal rights.According to it, society is itself conventional, and created by free, independent, equal, sovereign individuals.
Society is a congress of sovereigns, in which no one has authority over another, and no one can be rightfully forced to submit to any decree against his will.In such a congress the rule of the majority is manifestly improper, illegitimate, and invalid, unless adopted by unanimous consent.
But this is not all.The individual is always the equal of himself, and if the government derives its powers from the consent of the governed, he governs in the government, and parts with none of his original sovereignty.The government is not his master, but his agent, as the principal only delegates, not surrenders, his rights and powers to the agent.He is free at any time he pleases to recall the powers he has delegated, to give new instructions, or to dismiss him.The sovereignty of the individual survives the compact, and persists through all the acts of his agent, the government.He must, then, be free to withdraw from the compact whenever be judges it advisable.
Secession is perfectly legitimate if government is simply a contract between equals.The disaffected, the criminal, the thief the government would send to prison, or the murderer it would hang, would be very likely to revoke his consent, and to secede from the state.Any number of individuals large enough to count a majority among themselves, indisposed to pay the government taxes, or to perform the military service exacted, might hold a convention, adopt a secession ordinance, and declare themselves a free, independent, sovereign state, and bid defiance to the tax-collector and the provost-marshall, and that, too, without forfeiting their estates or changing their domicile.
Would
the government employ military force to coerce them back to their allegiance? By what right? Government is their agent, their creature, and no man owes allegiance to his own agent, or creature.
