294 THE POPULAR SCIENCE MONTHLY. 



powers, still more is there likely to exist such a confusion where there 

 has been no such deed of incorporation. But the same principle holds. 

 I again emphasize the proposition that the members of an incorporated 

 body are bound " severally to submit to the will of the majority in all 

 matters concerning the fulfillment of the objects for which they are in- 

 corporated, but in no others. And I contend that this holds of an in- 

 corporated nation as much as of an incorporated company. 



" Yes, but," comes the obvious rejoinder, *' as there is no deed by 

 which the members of a nation are incorporated — as there neither is, 

 nor ever was, a specification of purposes for which the union was 

 formed, there exist no limits ; and, consequently, the power of the ma- 

 jority is unlimited." 



Evidently it must be admitted that the hypothesis of a social con- 

 tract, either under the shape assumed by Hobbes, or under the shape 

 assumed by Rousseau, is baseless. Nay, more, it must be admitted 

 that even had such a contract once been formed, it could not be bind- 

 ing on the posterity of those who formed it. Moreover, if any say 

 that in the absence of those limitations to its powers which a deed of 

 incorporation might imply, there is nothing to prevent a majority from 

 imposing its will on a minority by force, assent must be given — an 

 assent, however, joined with the comment that if the superior force of 

 the majority is its justification, then the superior force of a despot 

 backed by an adequate aiTny, is also justified : the problem lapses. 

 What we here seek is some higher warrant for the subordination of 

 minority to majority than that arising from inability to resist physi- 

 cal coercion. Even Austin, anxious as he is to establish the unques- 

 tionable authority of positive law, and assuming, as he does, an abso- 

 lute sovereignty of some kind, monarchic, aristocratic, constitutional, 

 or popular, as the source of its unquestionable authority, is obliged, in 

 the last resort, to admit a moral limit to its action over the commu- 

 nity. While insisting, in pursuance of his rigid theory of sovereignty, 

 that a sovereign body originating from the people " is legally free to 

 abridge their political liberty at its own pleasure or discretion," he al- 

 lows that " a government may be hindered by positive morality from 

 abridging the political liberty which it leaves or grants to its sub- 

 jects." * Hence, we have to find, not a physical justification, but a 

 moral justification, for the supposed absolute power of the majority. 



This will at once draw forth the rejoinder, *' Of course, in the ab- 

 sence of any agreement, with its implied limitations, the rule of the 

 majority is unlimited ; because it is more just that the majority should 

 have its way than that the minority should have its way." A very 

 reasonable rejoinder this seems until there comes the re-rejoinder. We 

 may oppose to it the equally tenable proposition that, in the absence 

 of an agreement, the supremacy of a majority over a minority does 

 not exist at all. It is co-operation of some kind, from which there arise 

 * "The Province of Jurisprudence Determined" (seicond edition), p. 241. 



