so consented to make one community or
government, they are thereby presented
incorporated, and make one body poli-
tic, wherein the majority have a right to
act and conclude the rest."18
Rousseau states that only the original
social pact need be unanimous; those
who are not included in the pact are
foreigners by choice. Thereafter, rule
should be by majority.
Hugo Grotius felt that a people may
choose what kind of government they
will have; but, once that choice is made,
it would be similar to declaring war on
the society by demanding the exercise
of a natural right to arbitrary power if
people were to resume their claim to
institute government. The French Rev-
olutionists put forth a rebuttal to
Grotius' argument. Revolution, claimed
the French, means dissolution of the
compact, for it is outrageous to claim
that a minority can bind a substantial
majority.
Rousseau suggested the inquiry that
should be made. In so doing, Rousseau
contradicted his former arguments
wherein he favored a consistent and
stable majority rule: ". . . the more im-
portant and solemn the matters under
discussion, the nearer to unanimity
should the voting be ... ,"19 This is of
course to imply that the compact itself
is the most solemn matter possible for
discussion. It might be true theoreti-
cally (for it has not been so in recorded
history) to assert as did Herbert Spencer
that "members of a society contract with
l8 Id. at 56.
19 Id. at 274. Note also the arguments
which were made in behalf of a consistent
and stable majority rule to defeat a proposed
amendment to Rule No. 64 (latter Rule No.
68) of Maryland's Constitutional Convention
(July 11, 1967), which amendment would
have required a two-thirds majority (in lieu
of a simple majority) to amend the Conven-
tion rules.
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each other 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."20
However, this is to beg the question.
The problem remains of how to de-
termine the level of importance or
solemnity of a matter or, in other words,
how vital a matter is to the society's
fulfillment. Locke suggested an impar-
tial judicature. Rousseau, along these
same lines, proposed a common judge.
Is it possible, one might object; to find
such a being who is not embroiled in
politics, who is unaffected by judgments
passed on political issues, and who is
still of and by the people acting only for
the good of the state? This question
will always rise in the midst of majori-
tarian rule where an issue of principle
is involved. The answer one might give
is relevant to any discussion of rebellion
and revolution and their status with
respect to the state of nature and gov-
ernment by constitutional law.
It needs to be asked by what means
either the government or the compact
may be dissolved, and how this relates to
the rights retained by the citizens in a
free society. Invasion and conquest by
a foreign force is almost the only way
that a society may be dissolved, thought
Locke. Where society exists no longer,
the government cannot exist. On the
other hand, Locke asserted that people
are not bound to obey laws which are
decreed by the executive; or laws not
derived from the sovereign power of the
state. When the executive legislates, the
government is dissolved.
Locke distinguished between the dis-
solution of the government and the dis-
solution of the original compact. The
20 Spencer, Railway Morals and Railway
Policy, 100 edinburg rev. 420 (1854).
7
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