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CHAPTER EIGHTEEN THE REALITY OF CONTRACT The suggestion has been made that the contract, whether the social contract or the original contract, was a "hypothetical" or "metaphorical " mode of argument with no historical or factual validity, that its value lay in its rhetorical or polemical utility, permitting theories about the origins of authority to be framed in terms of some principle such as consent . This analysis has much merit, but it fails to explain the concepts of eighteenth-century whigs. True, some whigs may have thought the contract a convenient metaphor, a way of postulating governmentallegitimacy in terms similar to popular sovereignty without seeming to deny either the reality of obligarchic hegemony or the fiction of monarchical rule. But there were many more whigs - very many more - who thought the original colonial contract a provable fact, an actual institution that may not have been negotiated and signed at a specific moment in time, but that explained the current arrangement of constitutional power.l It would be a mistake to be skeptical. Whigs could believe in the reality of the original colonial contract more easily than we can. They had a factual basis, a historical event, with which to locate it. That event was the migration of the first settlers, an event about which it was reasonable to postulate the notion of offer and acceptance between ruler and ruled, or the notion of people assuming the future guarantee of the 146 THE REALITY OF CONTRACT 147 rights they had possessed since birth. But even more important was the way the eighteenth-century British thought about government. Contract was simply the concept every educated person was conditioned to use when expressing ideas concerning basic constitutional principles. Writers slipped into the language effortlessly, not only because it was how they formulated arguments but also because they knew it was how the readers whom they were addressing thought about government. Both sides of almost every political or constitutional dispute might argue in terms of contract. Just as American whigs premised their claim to rights on their original contract, imperialists countered with answers applying the contract against them. 2 There were persuasive reasons for saying that the original contract was an actual contract. One was that people thought of government as a trust. If the rulers were entrusted with authority for the benefit of those they ruled there had to be "an implied Covenant," Josiah Tucker pointed out. "For every Trust implies a Covenant, or Condition of some Kind, or other, according to the Nature of the Case." Another reason was that the obligations of the original contract were so clear and ascertainable that its existence could not be doubted. Think of the confidence Pennsylvania's Provincial Congress must have felt about the clarity of the contract when claiming that the contract's terms were not only certain but certain enough to restrain unconstitutional government activity. A final reason why the original contract was accepted as an actual, binding document is that it had to be real. In a legal environment without a written constitution and in which people were frightened of arbitrary government, there was almost no alternative to the reality of contract except arbitrary government . This truism was stated innumerable times during the eighteenth century. The technique was simple and can be demonstrated by considering one example. "[W]e in America have a just Claim to the hereditary Rights of British Subjects," A Freeholder wrote the Maryland Gazette in 1748. "In consequence of this, I say, that our Constitution is plainly an original Contract betwixt the People and their Rulers; and as many Jests as have been broke on this Expression, we might safely venture to defy the warmest Stickler for arbitrary Power to produce anyone Point of Time, since which we know any Thing of our Constitution, wherein the whole Scheme of it would not have been one monstrous Absurdity, unless an original Contract had been suppos'd."3 Perhaps the best evidence we could wish for of the aura of reality with which eighteenth-century political theorists thought of the original contract would be to find its specific provisions discussed as if they were actually written down and could be quoted. There is an abundance of such evidence, some of which has already been mentioned. An argument made THE REALITY OF CONTRACT by Lord Lyttelton in the House of Lords is worth careful consideration. "They went out subjects of Great Britain," he said of the first settlers, "and unless they can...

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