that the institution of government is not a contract
the legislative power once well established, the next thing is to establish similarly the executive power; for this latter, which operates only by particular acts, not being of the essence of the former, is naturally separate from it. were it possible for the sovereign, as such, to possess the executive power, right and fact would be so confounded that no one could tell what was law and what was not; and the body politic, thus disfigured, would soon fall a prey to the violence it was instituted to prevent.
as the citizens, by the social contract, are all equal, all can prescribe what all should do, but no one has a right to demand that another shall do what he does not do himself. it is strictly this right, which is indispensable for giving the body politic life and movement, that the sovereign, in instituting the government, confers upon the prince.
it has been held that this act of establishment was a contract between the people and the rulers it sets over itself.—a contract in which conditions were laid down between the two parties binding the one to command and the other to obey. it will be admitted, i am sure, that this is an odd kind of contract to enter into. but let us see if this view can be upheld.
first, the supreme authority can no more be modified than it can be alienated; to limit it is to destroy it. it is absurd and contradictory for the sovereign to set a superior over itself; to bind itself to obey a master would be to return to absolute liberty.
moreover, it is clear that this contract between the people and such and such persons would be a particular act; and from this it follows that it can be neither a law nor an act of sovereignty, and that consequently it would be illegitimate.
it is plain too that the contracting parties in relation to each other would be under the law of nature alone and wholly without guarantees of their mutual undertakings, a position wholly at variance with the civil state. he who has force at his command being always in a position to control execution, it would come to the same thing if the name "contract" were given to the act of one man who said to another; "i give you all my goods, on condition that you give me back as much of them as you please."
there is only one contract in the state, and that is the act of association, which in itself excludes the existence of a second. it is impossible to conceive of any public contract that would not be a violation of the first.
