If we probe this conception of a State-contract more closely, the historical fact which we have already perceived is seen to be irrefutable-that all human communities which we know of have enjoyed some form of political constitution, however primitive it may have been. The isolated man is not permanently conceivable; he must have a mate, if only for the sake of propagation. Let us assume what after all is possible, and appears to be supported by the latest ethnographical researches-the descent of mankind from a primeval couple; then the aboriginal family must be allowed to be the original State, for already we discover in the family the political principal of subordination. The father is the Chief; he wields the authority. Homer thus describes the Cyclopes as constituted only in families, and not as a State. There each chief pronounces judgment within his absolutely decisive verdict can be uttered. The greatest riddles of such conditions, for men to bind themselves by a contract? The answer is that it can only be done where a State exists; where it does not, there can be no contract. The strength of the State is founded solely upon positive Rights. Its aim is to endow certain expressions of the will with the binding force of agreements. If, then, we regard as the cradle of the State a contract whose validity is derived from the State itself, we are obviously putting the cart before the horse.
We cannot found the State upon a contract which in its turn can only be conceived within that State.
Moreover, we must take into consideration that the idea of stateless humanity is not only without historical warrant, but also contradicts the general law of reason. If the State were a machine-as Justus Moser still took it to be-artificially created and developed-it might equally well not have arisen at all. We can imagine humanity without a number of important attributes; but humanity without government is simply unthinkable, for it would then be humanity without reason. Man is driven by his political instinct to construct a constitution as inevitably as he constructs a language.
“Why cannot apes speak?” asked Blumenach nearly a hundred years ago, and himself supplied the apt reply, “Because they have nothing to say,’ Speech is the expression of reason; unreasoning creatures cannot speak. It is one of Wilhelm Humboldt’s finest sayings that man must have been already man in order to have invented language. In like manner political capacity is one of those fundamental gifts without which we should not be men at all.