Such a contract, in Locke's view, involves the pre-eminent necessity of
majority-rule. Unless the minority is content to be bound by the will of
superior numbers the law of nature has no more protection than it had
before the institution of political society. And it is further to be
assumed that the individual has surrendered to the community his
individual right of carrying out the judgment involved in natural law.
Whether Locke conceived the contract so formulated to be historical, it
is no easy matter to determine. That no evidence of its early existence
can be adduced he ascribes to its origin in the infancy of the race; and
the histories of Rome and Sparta and Venice seem to him proof that the
theory is somehow demonstrable by facts. More important than origins, he
seems to deem its implications. He has placed consent in the foreground
of the argument; and he was anxious to establish the grounds for its
continuance. Can the makers of the original contract, that is to say,
bind their successors? If legitimate government is based upon the
consent of its subjects, may they withdraw their consent? And what of a
child born into the community? Locke is at least logical in his consent.
The contract of obedience must be free or else, as Hooker had previously
insisted, it is not a contract. Yet Locke urged that the primitive
members of a State are bound to its perpetuation simply because unless
the majority had power to enforce obedience government, in any
satisfactory sense, would be impossible. With children the case is
different. They are born subjects of no government or country; and their
consent to its laws must either be derived from express acknowledgment,
or by the tacit implication of the fact that the protection of the State
has been accepted. But no one is bound until he has shown by the rule of
his mature conduct that he considers himself a common subject with his
fellows. Consent implies an act of will and we must have evidence to
infer its presence before the rule of subjection can be applied.