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 incorporated, but in no others. And I contend that this holds of an incorporated 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 majority is unlimited."
Evidently it must be admitted that the hypothesis of a social contract, 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 binding 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 army, 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 physical coercion. Even Austin, anxious as he is to establish the unquestionable authority of positive law, and assuming, as he does, an absolute 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 community. 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 allows that "a government may be hindered by positive morality from abridging the political liberty which it leaves or grants to its subjects."[1] 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 absence 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" (second edition), p. 241.
