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Chapter 16: The Original Contract
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CHAPTER SIXTEEN THE ORIGINAL CONTRACT Language is again the focus of our attention. "Contract" was another word that was used on both sides of the Atlantic; we must ask why it was used and what it meant. "Contract" was one of the most common and useful terms employed by people in the eighteenth century to express thoughts about constitutionalism and to describe the limits on government . A political commentator, seeking ways to remove placemen and pensioners from Parliament, defined the British constitution as if it had come out of contractarian theory and not from immemorial custom. "[T]he constitution of England," he suggested, "is nothing more than a solemn compact between king and people, for the mutual happiness and support of both." In New York, Alexander Hamilton used the same word but made a much broader statement of constitutional principle when he wrote that "the origin of all civil government, justly established, must be a voluntary compact between the rulers and the ruled."! There are puzzles surrounding the term "contract" in the historical literature . One is why its use is so often referred to as Lockean or why the notion that government rests on a contract between the governors and the governed should be called a whig principle. Neither Locke nor the whigs originated it. In law it can be traced through English history to Anglo-Saxon times. On being sentenced to death, Charles I was reminded THE ORIGINAL CONTRACT 133 that as king he had been bound by "a contract and a bargain," and Parliament based the forced abdication of James II on the grounds that he had violated the "original contract." Perhaps the thought is that Locke popularized among Americans the idea of a contract, not that he originated it. Even so, it is not clear why the notion is Lockean rather than common law or constitutional. It had been a basic legal doctrine of the English constitution long before John Locke was born.2 Another puzzle is why so many students of the American Revolution who tell us that the concept of contract had significance in the revolutionary debates treat the distinction between the contracts as if it were of no importance, seldom telling their readers whether they are discussing the social contract or the original contract. No eighteenth-century lawyer wishing to be understood would have ignored the difference and eighteenth-century commentators on contract theory wrote distinctly enough that the two are kept separate in most writings. The social contract is not the original contract; the two are quite different . Sir William Blackstone was one of many participants in the revolutionary argument who denied there was such a thing as a social contract , but accepted the original contract as a demonstrable source of constitutional authority. The same was true for those colonial whigs who bothered to mentioned the social contract. Gordon Wood was correct when he observed that "this Lockean notion of a social contract was not generally drawn upon by Americans in their dispute with Great Britain, for it had little relevance in explaining either the nature of their colonial charters or their relationship to the empire."3 What Wood could have added was that there was probably no notion more relevant to those questions than the original contract. Most eighteenth-century political writers are clear. When we read them we know which contract they mean. Quite often they draw the distinction .4 The fact that the difference was universally understood increases the puzzle about Locke, as Locke is one of the few writers who is said to have confused the two contracts into one or to have interpreted the original contract more as a trust deed than an exchange of reciprocal promises.5 The social contract is the supposed agreement under which people depart from the state of nature and enter into society. Sometimes called the "contract of society," it was described by Burlamaqui as the first covenant "by which each individual engages with all the rest to join for ever in one body, and to regulate, with one common consent, whatever regards their preservation and their common security."6 The original contract, the only one of these two contracts of importance to the revolutionary controversy, was the agreement about the na- 134 THE ORIGINAL CONTRACT ture, the limits, and the location of legitimate power. "In fine," Burlamaqui added, "when once the form of government is settled, there must be another covenant, whereby after having pitched upon one or more persons to be...