



SOCIAL CONTRACT. 



SOCIAL CONTRACT. 



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ocage, to diirting 1 "'*' it from the two others, though a* the term 

 wage has long ceased to be applied to the two Utter, socnge and free 

 and common socage now mean one and the same thing. 



Bude fealty, which the tenant in socage, like every other tenant, 

 U bound tu do when required, the tenant in socage, or, u he was 

 :'.y called, the socager or sockuian, u bound to give hi* attendance 

 at his lord's court-baron, if the lord holds a court-baron cither for a 

 manor [MANOR] or for a seigniory in gross. This obligation to attend 

 the court, it is supposed, gave rise to the name uf the tenure, but the 

 question is nut without doubt 



Both forfeiture and escheat are incident to tenure in socage, as they 

 were also to tenure by knight's service. I n that species of socage tenure 

 which U called garelkind there is no forfeiture. 



Wardship is also incident to this tenure. But this incident is not, 

 as formerly in knight's service, a benefit given to the lord, but a 

 burden imposed on the infant's next friend of full age, who must 

 however be a person not capable of inheriting the estate upon his 

 young kinsman's death. 



In particular districts some of the incidents of tenure by knight's 

 service were by custom annexed to the tenure in socage. Thus in the 

 diocese of Winchester the lord claimed the wardship and marriage of 

 I.:- - . yet L 



Before the abolition of feudal burdens by the Commonwealth, con- 

 firmed upon the Restoration by 12 Car. II. c. 24, tenant* in socage were 

 bound to pay 20*. upon every 20/. of annual value, as an aid for making 

 the lord's son a knight, and the same for marrying the lord's eldest 

 daughter. This tenure was also subject to the payment of tines upon 

 alienations. 



By the above statute, the provisions of which were extended to 

 Ireland by the Irish act of 14 and 15 Car. II. c. 19, tenure by knight's 

 service was abolished, and all lands, with the exception of ecclesiastical 

 lands held in free alms [FKANKALXIOK.NK], were directed to be held in 

 free and common socage, which, with the limited exception in favour 

 of lauds held in frankalmoigne, ia now the universal tenure of real pro- 

 )>erty throughout England and Ireland, and those colonies which have 

 been settled by the English. 



It is true that a large portion of the soil of all those countries is 

 held by leaseholders, and in England also by copyholders ; but the 

 freehold of the land held by leaseholders and copyholders is in their 

 lords or lessors, who hold that freehold by socage tenures. 



SOCIAL CONTRACT, or ORIGINAL CONTRACT. Locke thus 

 expounds his doctrine of the social contract (' Essay on Civil Govern- 

 ment,' c. 8, ' Of the Beginning of Political Societies') : he says that 

 " men being by nature all free, equal, and independent, no one can be 

 put out of hia estate and subjected to the political power of another 

 without his own consent." By can he does not mean to say that it 

 may not happen that one man shall be subjected to the political 

 power of another, but that be cannot properly or justly be subjected 

 without his consent ; which appears from what follows : " Whosoever 

 therefore out of a state of nature unite into a community must be 

 understood to give up all the power necessary to the ends for which 

 they unite in society, to the majority of the community, unless they 

 expressly agreed in any number greater than the majority. And thia 

 is done by barely agreeing to unite into one political society, which is 

 all the compact that is or needs be between the individuals that enter 

 into or make up a commonwealth. And thus that which begins and 

 actually constitutes any political society, is nothing but the consent of 

 any number of free men capable of a majority to unite and incorpo- 

 rate into such a society. And this is that, and that only, which did 

 or could give beginning to any lawful government in the world." 

 This doctrine is open to obvious objection. The conclusion as to the 

 origin of " laicful government " by implication contains the notion 

 that some governments are not lawful, whereas all men must and do 

 admit that all governments which can maintain themselves are govern- 

 ments, and the term lawful is not applicable to that power which can 

 declare what is lawful. The two objections which Locke mentions as 

 lieing made to the theory are, 1." That there are no instances to be 

 found in story of a company of men independent and equal one 

 amongst another, that met together, and in this way began and set up 

 a government." 2. That " it is impossible of right that men should do 

 so, because all men being born under government, they are to submit 

 to that, and are not at liberty to begin a new one." Locke replies 

 to both objections with considerable ingenuity, but there are few 

 political writers at present who will be inclined to consider his answer 

 conclusive. 



Hume, in his ' Essay on the Original Contract,' admits that " the 

 people, if we trace government to its first origin in the woods and 

 desert*, arc the source of all power and jurisdiction, and voluntarily, 

 for the sake of )>eace and order, abandoned their native liberty, and 

 received laws from then- equal and companion. The conditions upon 

 which they were willing to submit were either expressed or were 

 so clear and obvious that it might well be esteemed superfluous 

 to express them. If this, then, be meant by the original contract, it 

 cannot be denied that all government is at first founded on a contract, 

 and that the most ancient rude combinations of mankind were formed 

 entirely by that principle. " And yet he adds, " in vain are we sent to 

 seek for this charter of our liberties it preceded the use of writing 

 and all the other civilised arts of life." Consequently we cannot trace 



"government to its first origin," and therefore wo cannot tell how 

 government originated. But we do know, as Hume shows, that all 

 government* of which we can trace the origin have been founded in 

 some other way than by an original contract among all the members 

 who are included in them. Hume further says, " that if the agree- 

 ment by which savage men first associated and conjoined their force 

 be meant (by the term Original Contract), this is acknowledged to be 

 real ; but being so ancient, and being obliterated by a thousand 

 changes of government and princes, it cannot now be supposed to 

 retain any authority. If we would say anything to the purpose, 

 we must assert that every particular government which is lawful, 

 anil which impost's any duty of allegiance on the subject, was at 

 first founded on consent and a voluntary compact." This is tho 

 real question. Those who found what they very incorrectly t>>rm 

 " lawful government " on an original contract, must show us the con- 

 tract So far Hume's objection is good, and whether there v. 

 original contract or not is immaterial. The question is, what was the 

 origin of any particular government ? Those who maintain that any 

 particular government originated in a contract of all tho persons who, at 

 the time of the formation of the government, were included in it, 

 cannot prove their case. Those who deny the original contract can 

 show that many particular governments have originated " without any 

 pretence of a fair consent or voluntary subjection of the people," 



But an original contract, such as Hume admits, is as far removed 

 from the possibility of proof as the origin of any particular govern 

 mcnt by virtue of a contract ; nor have we any record of savage m. n 

 associating to form a government. If one set of savage men did tins, 

 others would do it, and there must have been many original contracts, 

 which contracts are the remote origin of all particular governments ; 

 but inasmuch as that origin of any particular government, which wo 

 do know, was not made by contract, and did not recognise the original 

 contract, such government is unlawful, as those who contend for the 

 theory of an original contract would affirm, or ought to affirm, if they 

 would be consistent Thus the practical consequences of the doctrine 

 of an original contract, if we rigorously follow them out, are almost 

 as mischievous as the doctrine that every particular government was 

 founded on an original contract. It is true that the theory of an 

 original contract of savage people being the foundation of government 

 is a mere harmless absurdity, when at the same time we deny that 

 any particular goveniment has so originated, provided wo admit that 

 such particular goveniment is not to be resisted simply because it ia 

 not founded on contract. Those who maintain that all existing govern- 

 ments rest on no other foundation than a contract, aflirm that all men 

 are still bom equal that they owe no allegiance to a power or govern- 

 ment, unless they are bound by a promise that they give up their 

 natural liberty for some advantage that the sovereign promises them 

 these advantages, and if he fails in the execution, he has broken the 

 articles of engagement, and has freed his subjects from all obligations 

 to allegiance. " Such, according to these philosophers, is the founda- 

 tion of authority in every government; and such ia the right of 

 resistance possessed by the subject " (Hume). Thia ia a good exposi- 

 tion of the consequences that follow from the theory of every govern- 

 ment being founded on contract. 



Governments, as we now see them, exist in various forms, and they 

 exist by virtue of their power to maintain themselves. This power 

 may be mere force in the government and fear in the governed. C '< >m- 

 bined with the power of the government there may be the opinion of 

 a majority in favour of the government, or of a number sufficiently 

 large and united to control the rest ; and this opinion may be founded 

 either on the advantage which such number or majority conceive that 

 they derive from the actual form of government, or the advantage 

 which they and all the rest are supposed to derive from such govern- 

 ment. The opinion of a considerable number may be strong enough 

 to overthrow a government or to maintain it, but in either case it is 

 not the opinion of all. 



The real origin of government lies in the constitution of i 

 nature. Man is a social animal, and cannot exist out of society, llr 

 is of necessity born in a society, that is, a family, the smallest element 

 to which we can reduce a state. He who require* not to live in a 

 society, says Aristotle, must be a beast or a god. (' 1'olitik.' i. 2). The 

 nature of man compels him tu seek union with the other sex. A man 

 by himself is not a complete being : by the constitution of their nature 

 man and woman must unite ; and this is the foundation of a family. 

 Those who accept the Mosaic account ofthc creation have there a clear 

 statement of the origin of a family ; and the father's authority ia as 

 much in accordance with tho constitution of our nature as the union 

 of the father and the mother. The various modes in which the 

 descendants of a common pair might be detached from their primitive 

 seats are infinite ; and the modes in which they might be formed into 

 jiolitieal societies arc infinite also. But if we have no account of them, 

 it is useless to speculate what the precise modes may have been. Man, 

 says Aristotle, is by nature a political animal ; and by his nature he 

 has an impulse to political union. He therefore follows the law of his 

 nature by living in political society, as much as he obeys it by uniting 

 ; with a woman. The form of any particular government, and 

 the mode in which it may have been established, arc' the accident*, not 

 the essential*, of political union, the real foundation of which is in our 

 nature. But inasmuch as every community exists for some good end 



