The American Republic
by
by O. A. Brownson
Part 1 out of 5
THE
AMERICAN REPUBLIC:
CONSTITUTION, TENDENCIES, AND DESTINY.
BY
O. A. BROWNSON, LL. D.
NEW YORK:
P. O'SHEA, 104 BLEECKER STREET.
1866.
Entered according to Act of Congress, In the year 1865,
By P. O'SHEA,
In the Clerk's office of the District Court of the United States
for the Southern District of New York.
TO THE
HON. GEORGE BANCROFT,
THE ERUDITE, PHILOSOPHICAL, AND ELOQUENT
Historian of the United States,
THIS FEEBLE ATTEMPT TO SET FORTH THE PRINCIPLES OF GOVERN-
MENT, AND TO EXPLAIN AND DEFEND THE CONSTITUTION OF
THE AMERICAN REPUBLIC, IS RESPECTFULLY DEDICATED,
IN MEMORY OF OLD FRIENDSHIP, AND AS A
SLIGHT HOMAGE TO GENIUS, ABILITY,
PATRIOTISM, PRIVATE WORTH,
AND PUBLIC SERVICE,
BY THE AUTHOR.
CONTENTS.
PAGE
CHAPTER I.
INTRODUCTION 1
CHAPTER II.
GOVERNMENT 15
CHAPTER III.
ORIGIN OF GOVERNMENT 26
CHAPTER IV.
ORIGIN OF GOVERMENT-Continued 43
CHAPTER V.
ORIGIN OF GOVERNMENT-Continued 71
CHAPTER VI.
ORIGIN OF GOVERNMENT-Concluded 106
CHAPTER VII.
CONSTITUTION OF GOVERNMENT 136
CHAPTER VIII.
CONSTITUTION OF GOVERNMENT-Concluded 166
CHAPTER IX.
THE UNITED STATES 192
CHAPTER X.
CONSTITUTION OF THE UNITED STATES 218
CHAPTER XI.
THE CONSTITUTION-Continued 244
CHAPTER XII.
SECESSION 277
CHAPTER XIII.
RECONSTRUCTION 309
CHAPTER XIV.
POLITICAL TENDENCIES 348
CHAPTER XV.
DESTINY-POLITICAL AND RELIGIOUS 392
PREFACE.
In the volume which, with much diffidence, is here offered to the
public, I have given, as far as I have considered it worth giving,
my whole thought in a connected form on the nature, necessity,
extent, authority, origin, ground, and constitution of government,
and the unity, nationality, constitution, tendencies, and destiny
of the American Republic. Many of the points treated have been
from time to time discussed or touched upon, and many of the views
have been presented, in my previous writings; but this work is
newly and independently written from beginning to end, and is as
complete on the topics treated as I have been able to make it.
I have taken nothing bodily from my previous essays, but I have
used their thoughts as far as I have judged them sound and they
came within the scope of my present work. I have not felt myself
bound to adhere to my own past thoughts or expressions any farther
than they coincide with my present convictions, and I have written
as freely and as independently as if I had never written or
published any thing before. I have never been the slave of my
own past, and truth has always been dearer to me than my own
opinions. This work is not only my latest, but will be my last
on politics or government, and must be taken as the authentic,
and the only authentic statement of my political views and
convictions, and whatever in any of my previous writings conflicts
with the principles defended in its pages, must be regarded as
retracted, and rejected.
The work now produced is based on scientific principles; but it is
an essay rather than a scientific treatise, and even good-natured
critics will, no doubt, pronounce it an article or a series of
articles designed for a review, rather than a book. It is hard to
overcome the habits of a lifetime. I have taken some pains to
exchange the reviewer for the author, but am fully conscious that
I have not succeeded. My work can lay claim to very little
artistic merit. It is full of repetitions; the same thought is
frequently recurring,--the result, to some extent, no doubt, of
carelessness and the want of artistic skill; but to a greater
extent, I fear, of "malice aforethought." In composing my work I
have followed, rather than directed, the course of my thought,
and, having very little confidence in the memory or industry of
readers, I have preferred, when the completeness of the argument
required it, to repeat myself to encumbering my pages with
perpetual references to what has gone before.
That I attach some value to this work is evident from my consenting
to its publication; but how much or how little of it is really
mine, I am quite unable to say. I have, from my youth up, been
reading, observing, thinking, reflecting, talking, I had almost
said writing, at least by fits and starts, on political subjects,
especially in their connection with philosophy, theology, history,
and social progress, and have assimilated to my own mind what it
would assimilate, without keeping any notes of the sources whence
the materials assimilated were derived. I have written freely
from my own mind as I find it now formed; but how it has been so
formed, or whence I have borrowed, my readers know as well as I.
All that is valuable in the thoughts set forth, it is safe to assume
has been appropriated from others. Where I have been distinctly
conscious of borrowing what has not become common property, I have
given credit, or, at least, mentioned the author's name, with three
important exceptions which I wish to note more formally.
I am principally indebted for the view of the American nationality
and the Federal Constitution I present, to hints and suggestions
furnished by the remarkable work of John C. Hurd, Esq., on The Law of
Freedom and Bondage in the United States, a work of rare learning
and profound philosophic views. I could not have written my work
without the aid derived from its suggestions, any more than I
could without Plato, Aristotle, St. Augustine, St. Thomas,
Suarez, Pierre Leroux, and the Abbate Gioberti. To these two
last-named authors, one a humanitarian sophist, the other a
Catholic priest, and certainly one of the profoundest
philosophical writers of this century, I am much indebted, though
I have followed the political system of neither. I have taken
from Leroux the germs of the doctrine I set forth on the solidarity
of the race, and from Gioberti the doctrine I defend in relation
to the creative act, which is, after all, simply that of the
Credo and the first verse of Genesis.
In treating the several questions which the preparation of this
volume has brought up, in their connection, and in the light of
first principles, I have changed or modified, on more than one
important point, the views I had expressed in my previous
writings, especially on the distinction between civilized and
barbaric nations, the real basis of civilization itself, and the
value to the world of the Graeco-Roman civilization. I have
ranked feudalism under the head of barbarism, rejected every
species of political aristocracy, and represented the English
constitution as essentially antagonistic to the American, not as
its type. I have accepted universal suffrage in principle, and
defended American democracy, which I define to be territorial
democracy, and carefully distinguish from pure individualism on
the one hand, and from pure socialism or humanitarianism on the
other.
I reject the doctrine of State sovereignty, which I held and
defended from 1828 to 1861, but still maintain that the
sovereignty of the American Republic vests in the States, though
in the States collectively, or united, not severally, and thus
escape alike consolidation and disintegration. I find, with Mr.
Madison, our most philosophic statesman, the originality of the
American system in the division of powers between a General
government having sole charge of the foreign and general, and
particular or State governments having, within their respective
territories, sole charge of the particular relations and
interests of the American people; but I do not accept his
concession that this division is of conventional origin, and
maintain that it enters into the original Providential
constitution of the American state, as I have done in my Review
for October, 1863, and January and October, 1864.
I maintain, after Mr. Senator Sumner, one of the most
philosophic and accomplished living American statesmen, that
"State secession is State suicide," but modify the opinion I too
hastily expressed that the political death of a State dissolves
civil society within its territory and abrogates all rights held
under it, and accept the doctrine that the laws in force at the
time of secession remain in force till superseded or abrogated by
competent authority, and also that, till the State is revived and
restored as a State in the Union, the only authority, under the
American system, competent to supersede or abrogate them is the
United States, not Congress, far less the Executive. The error
of the Government is not in recognizing the territorial laws as
surviving secession but in counting a State that has seceded as
still a State in the Union, with the right to be counted as one
of the United States in amending the Constitution. Such State
goes out of the Union, but comes under it.
I have endeavored throughout to refer my particular political
views; to their general principles, and to show that the general
principles asserted have their origin and ground in the great,
universal, and unchanging principles of the universe itself.
Hence, I have labored to show the scientific relations of
political to theological principles, the real principles of all
science, as of all reality. An atheist, I have said, may be a
politician; but if there were no God, there could be no politics.
This may offend the sciolists of the age, but I must follow
science where it leads, and cannot be arrested by those who
mistake their darkness for light.
I write throughout as a Christian, because I am a Christian; as
a Catholic, because all Christian principles, nay, all real
principles are catholic, and there is nothing sectarian either
in nature or revelation. I am a Catholic by God's grace and
great goodness, and must write as I am. I could not write
otherwise if I would, and would not if I could. I have not
obtruded my religion, and have referred to it only where my
argument demanded it; but I have had neither the weakness nor
the bad taste to seek to conceal or disguise it. I could never
have written my book without the knowledge I have, as a Catholic,
of Catholic theology, and my acquaintance, slight as it is, with
the great fathers and doctors of the church, the great masters of
all that is solid or permanent in modern thought, either with
Catholics or non-Catholics.
Moreover, though I write for all Americans, without distinction
of sect or party, I have had more especially in view the people
of my own religious communion. It is no discredit to a man in
the United States at the present day to be a firm, sincere, and
devout Catholic. The old sectarian prejudice may remain with a
few, "whose eyes," as Emerson says, "are in their hind-head, not
in their fore-head;" but the American people are not at heart
sectarian, and the nothingarianism so prevalent among them only
marks their state of transition from sectarian opinions to
positive Catholic faith. At any rate, it can no longer be
denied that Catholics are an integral, living, and growing
element in the American population, quite too numerous, too
wealthy, and too influential to be ignored. They have played too
conspicuous a part in the late troubles of the country, and
poured out too freely and too much of their richest and noblest
blood in defence of the unity of the nation and the integrity of
its domain, for that. Catholics henceforth must be treated as
standing, in all respects, on a footing of equality with any
other class of American citizens, and their views of political
science, or of any other science, be counted of equal importance,
and listened to with equal attention.
I have no fears that my book will be neglected because avowedly
by a Catholic author, and from a Catholic publishing house. They
who are not Catholics will read it, and it will enter into the
current of American literature, if it is one they must read in
order to be up with the living and growing thought of the age.
If it is not a book of that sort, it is not worth reading by any
one.
Furthermore, I am ambitious, even in my old age, and I wish to
exert an influence on the future of my country, for which I have
made, or, rather, my family have made, some sacrifices, and which
I tenderly love. Now, I believe that he who can exert the most
influence on our Catholic population, especially in giving tone
and direction to our Catholic youth, will exert the most
influence in forming the character and shaping the future destiny
of the American Republic. Ambition and patriotism alike, as well
as my own Catholic faith and sympathies, induce me to address
myself primarily to Catholics. I quarrel with none of the sects;
I honor virtue wherever I see it, and accept truth wherever I
find it; but, in my belief, no sect is destined to a long life,
or a permanent possession. I engage in no controversy with any
one not of my religion, for, if the positive, affirmative truth
is brought out and placed in a clear light before the public,
whatever is sectarian in any of the sects will disappear as the
morning mists before the rising sun.
I expect the most intelligent and satisfactory appreciation of
my book from the thinking and educated classes among Catholics;
but I speak to my countrymen at large. I could not personally
serve my country in the field: my habits as well as my
infirmities prevented, to say nothing of my age; but I have
endeavored in this humble work to add my contribution, small
though it may be, to political science, and to discharge, as far
as I am able, my debt of loyalty and patriotism. I would the
book were more of a book, more worthy of my countrymen, and a
more weighty proof of the love I beat them, and with which I have
written it. All I can say is, that it is an honest book, a
sincere book, and contains my best thoughts on the subjects
treated. If well received, I shall be grateful; if neglected, I
shall endeavor to practise resignation, as I have so often done.
O. A. BROWNSON.
ELIZABETH, N. J., September 16, 1865.
CHAPTER I
INTRODUCTION
The ancients summed up the whole of human wisdom in the maxim,
Know Thyself, and certainly there is for an individual no more
important as there is no more difficult knowledge, than knowledge
of himself, whence he comes, whither he goes, what he is, what he
is for, what he can do, what he ought to do, and what are his
means of doing it.
Nations are only individuals on a larger scale. They have a
life, an individuality, a reason, a conscience, and instincts of
their own, and have the same general laws of development and
growth, and, perhaps, of decay, as the individual man. Equally
important, and no less difficult than for the individual, is it
for a nation to know itself, understand its own existence, its
own powers and faculties, rights and duties, constitution,
instincts, tendencies, and destiny. A nation has a spiritual as
well as a material, a moral as well as a physical existence, and
is subjected to internal as well as external conditions of health
and virtue, greatness and grandeur, which it must in some measure
understand and observe, or become weak and infirm, stunted in its
growth, and end in premature decay and death.
Among nations, no one has more need of full knowledge of itself
than the United States, and no one has hitherto had less. It has
hardly had a distinct consciousness of its own national existence,
and has lived the irreflective life of the child, with no severe
trial, till the recent rebellion, to throw it back on itself and
compel it to reflect on its own constitution, its own separate
existence, individuality, tendencies, and end. The defection of
the slaveholding States, and the fearful struggle that has
followed for national unity and integrity, have brought it at
once to a distinct recognition of itself, and forced it to pass
from thoughtless, careless, heedless, reckless adolescence to
grave and reflecting manhood. The nation has been suddenly
compelled to study itself, and henceforth must act from
reflection, understanding, science, statesmanship, not from
instinct, impulse, passion, or caprice, knowing well what it does,
and wherefore it does it. The change which four years of civil
war have wrought in the nation is great, and is sure to give it
the seriousness, the gravity, the dignity, the manliness it has
heretofore lacked.
Though the nation has been brought to a consciousness of its own
existence, it has not, even yet, attained to a full and clear
understanding of its own national constitution. Its vision is
still obscured by the floating mists of its earlier morning, and
its judgment rendered indistinct and indecisive by the wild
theories and fancies of its childhood. The national mind has
been quickened, the national heart has been opened, the national
disposition prepared, but there remains the important work of
dissipating the mists that still linger, of brushing away these
wild theories and fancies, and of enabling it to form a clear
and intelligent judgment of itself, and a true and just
appreciation of its own constitution tendencies,--and destiny;
or, in other words, of enabling the nation to understand its own
idea, and the means of its actualization in space and time.
Every living nation has an idea given it by Providence to
realize, and whose realization is its special work, mission, or
destiny. Every nation is, in some sense, a chosen people of God.
The Jews were the chosen people of God, through whom the
primitive traditions were to be preserved in their purity and
integrity, and the Messiah was to come. The Greeks were the
chosen people of God, for the development and realization of the
beautiful or the divine splendor in art, and of the true in
science and philosophy; and the Romans, for the development of
the state, law, and jurisprudence. The great despotic nations of
Asia were never properly nations; or if they were nations with a
mission, they proved false to it--, and count for nothing in the
progressive development of the human race. History has not
recorded their mission, and as far as they are known they have
contributed only to the abnormal development or corruption of
religion and civilization. Despotism is barbaric and abnormal.
The United States, or the American Republic, has a mission, and
is chosen of God for the realization of a great idea. It has
been chosen not only to continue the work assigned to Greece and
Rome, but to accomplish a greater work than was assigned to
either. In art, it will prove false to its mission if it do not
rival Greece; and in science and philosophy, if it do not surpass
it. In the state, in law, in jurisprudence, it must continue and
surpass Rome. Its idea is liberty, indeed, but liberty with law,
and law with liberty. Yet its mission is not so much the
realization of liberty as the realization of the true idea of the
state, which secures at once the authority of the public and the
freedom of the individual--the sovereignty of the people without
social despotism, and individual freedom without anarchy. In
other words, its mission is to bring out in its life the
dialectic union of authority and liberty, of the natural rights
of man and those of society. The Greek and Roman republics
asserted the state to the detriment of individual freedom; modern
republics either do the same, or assert individual freedom to the
detriment of the state. The American republic has been
instituted by Providence to realize the freedom of each with
advantage to the other.
The real mission of the United States is to introduce and
establish a political constitution, which, while it retains all
the advantages of the constitutions of states thus far known, is
unlike any of them, and secures advantages which none of them did
or could possess. The American constitution has no prototype in
any prior constitution. The American form of government can be
classed throughout with none of the forms of government described
by Aristotle, or even by later authorities. Aristotle knew only
four forms of government: Monarchy, Aristocracy, Democracy, and
Mixed Governments. The American form is none of these, nor any
combination of them. It is original, a new contribution to
political science, and seeks to attain the end of all wise and
just government by means unknown or forbidden to the ancients,
and which have been but imperfectly comprehended even by American
political writers themselves. The originality of the American
constitution has been overlooked by the great majority even of
our own statesmen, who seek to explain it by analogies borrowed
from the constitutions of other states rather than by a profound
study of its own principles. They have taken too low a view of
it, and have rarely, if ever, appreciated its distinctive and
peculiar merits.
As the United States have vindicated their national unity and
integrity, and are preparing to take a new start in history,
nothing is more important than that they should take that new
start with a clear and definite view of their national
constitution, and with a distinct understanding of their
political mission in the future of the world. The citizen who
can help his countrymen to do this will render them an important
service and deserve well of his country, though he may have been
unable to serve in her armies and defend her on the battle-field.
The work now to be done by American statesmen is even more
difficult and more delicate than that which has been accomplished
by our brave armies. As yet the people are hardly better
prepared for the political work to be done than they were at the
outbreak of the civil war for the military work they have so
nobly achieved. But, with time, patience, and good-will, the
difficulties may be overcome, the errors of the past corrected,
and the Government placed on the right track for the future.
It will hardly be questioned that either the constitution of the
United States is very defective or it has been very grossly
misinterpreted by all parties. If the slave States had not held
that the States are severally sovereign, and the Constitution of
the United States a simple agreement or compact, they would never
have seceded; and if the Free States had not confounded the Union
with the General government, and shown a tendency to make it the
entire national government, no occasion or pretext for secession
would have been given. The great problem of our statesmen has
been from the first, How to assert union without consolidation,
and State rights without disintegration? Have they, as yet,
solved that problem? The war has silenced the State sovereignty
doctrine, indeed, but has it done so without lesion to State
rights? Has it done it without asserting the General government
as the supreme, central, or national government? Has it done it
without striking a dangerous blow at the federal element of the
constitution? In suppressing by armed force the doctrine that
the States are severally sovereign, what barrier is left against
consolidation? Has not one danger been removed only to give
place to another?
But perhaps the constitution itself, if rightly understood,
solves the problem; and perhaps the problem itself is raised
precisely through misunderstanding of the constitution. Our
statesmen have recognized no constitution of the American people
themselves; they have confined their views to the written
constitution, as if that constituted the American people a state
or nation, instead of being, as it is, only a law ordained by the
nation already existing and constituted. Perhaps, if they had
recognized and studied the constitution which preceded that drawn
up by the Convention of 1787, and which is intrinsic, inherent in
the republic itself, they would have seen that it solves the
problem, and asserts national unity without consolidation, and
the rights of the several States without danger of disintegration.
The whole controversy, possibly, has originated in a
misunderstanding of the real constitution of the United States,
and that misunderstanding itself in the misunderstanding of the
origin and constitution of government in general. The
constitution, as will appear in the course of this essay is not
defective; and all that is necessary to guard against either
danger is to discard all our theories of the constitution, and
return and adhere to the constitution itself, as it really is and
always has been.
There is no doubt that the question of Slavery had much to do
with the rebellion, but it was not its sole cause. The real
cause must be sought in the program that had been made,
especially in the States themselves, in forming and administering
their respective governments, as well as the General government,
in accordance with political theories borrowed from European
speculators on government, the socalled Liberals and
Revolutionists, which have and can have no legitimate application
in the United States. The tendency of American politics, for the
last thirty or forty years, has been, within the several States
themselves, in the direction of centralized democracy, as if the
American people had for their mission only the reproduction of
ancient Athens. The American system is not that of any of the
simple forms of government, nor any combination of them. The
attempt to bring it under any of the simple or mixed forms of
government recognized by political writers, is an attempt to
clothe the future in the cast-off garments of the past. The
American system, wherever practicable, is better than monarchy,
better than aristocracy, better than simple democracy, better
than any possible combination of these several forms, because it
accords more nearly with the principles of things, the real order
of the universe.
But American statesmen have studied the constitutions of other
states more than that of their own, and have succeeded in
obscuring the American system in the minds of the people, and
giving them in its place pure and simple democracy, which is its
false development or corruption. Under the influence of this
false development, the people were fast losing sight of the
political truth that, though the people are sovereign, it is the
organic, not the inorganic people, the territorial people, not
the people as simple population, and were beginning to assert the
absolute God-given right of the majority to govern. All the
changes made in the bosom of the States themselves have consisted
in removing all obstacles to the irresponsible will of the
majority, leaving minorities and individuals at their mercy.
This tendency to a centralized democracy had more to do with
provoking secession and rebellion than the anti-slavery
sentiments of the Northern, Central, and Western States.
The failure of secession and the triumph of the National cause,
in spite of the short-sightedness and blundering of the
Administration, have proved the vitality and strength of the
national constitution, and the greatness of the American people.
They say nothing for or against the democratic theory of our
demagogues, but every thing in favor of the American system or
constitution of government, which has found a firmer support in
American instincts than in American statesmanship. In spite of
all that had been done by theorists, radicals, and revolutionists,
no-government men, non-resistants, humanitarians, and sickly
sentimentalists to corrupt the American people in mind, heart,
and body, the native vigor of their national constitution has
enabled them to come forth triumphant from the trial. Every
American patriot has reason to be proud of his country-men, and
every American lover of freedom to be satisfied with the
institutions of his country. But there is danger that the
politicians and demagogues will ascribe the merit, not to the
real and living national constitution, but to their miserable
theories of that constitution, and labor to aggravate the several
evils and corrupt tendencies which caused the rebellion it has
cost so much to suppress. What is now wanted is, that the people,
whose instincts are right, should understand the American
constitution as it is, and so understand it as to render it
impossible for political theorists, no matter of what school or
party, to deceive them again as to its real import, or induce
them to depart from it in their political action.
A work written with temper, without passion or sectional
prejudice, in a philosophical spirit, explaining to the American
people their own national constitution, and the mutual relations
of the General government and the State governments, cannot, at
this important crisis in our affairs, be inopportune, and, if
properly executed, can hardly fail to be of real service. Such a
work is now attempted--would it were by another and abler hand--
which, imperfect as it is, may at least offer some useful
suggestions, give a right direction to political thought,
although it should fail to satisfy the mind of the reader.
This much the author may say, in favor of his own work, that it
sets forth no theory of government in general, or of the United
States in particular. The author is not a monarchist, an
aristocrat, a democrat, a feudalist, nor an advocate of what are
called mixed governments like the English, at least for his own
country; but is simply an American, devoted to the real, living,
and energizing constitution of the American republic as it is,
not as some may fancy it might be, or are striving to make it.
It is, in his judgment, what it ought to be, and he has no other
ambition than to present it as it is to the understanding and
love of his countrymen.
Perhaps simple artistic unity and propriety would require the
author to commence his essay directly with the United States; but
while the constitution of the United States is original and
peculiar, the government of the United States has necessarily
something in common with all legitimate governments, and he has
thought it best to precede his discussion of the American
republic, its constitution, tendencies, and destiny, by some
considerations on government in general. He does this because he
believes, whether rightly or not, that while the American people
have received from Providence a most truly profound and admirable
system of government, they are more or less infected with the
false theories of government which have been broached during the
last two centuries. In attempting to realize these theories,
they have already provoked or rendered practicable a rebellion
which has seriously threatened the national existence, and come
very near putting an end to the American order of civilization
itself. These theories have received already a shock in the
minds of all serious and thinking men; but the men who think are
in every nation a small minority, and it is necessary to give
these theories a public refutation, and bring back those who do
not think, as well as those who do, from the world of dreams to
the world of reality. It is hoped, therefore, that any apparent
want of artistic unity or symmetry in the essay will be pardoned
for the sake of the end the author has had in view.
CHAPTER II.
GOVERNMENT.
Man is a dependent being, and neither does nor can suffice for
himself. He lives not in himself, but lives and moves and has
his being in God. He exists, develops, and fulfils his existence
only by communion with God, through which he participates of the
divine being and life. He communes with God through the divine
creative act and the Incarnation of the Word, through his kind,
and through the material world. Communion with God through
Creation and Incarnation is religion, distinctively taken, which
binds man to God as his first cause, and carries him onward to
God as his final cause; communion through the material world is
expressed by the word property; and communion with God through
humanity is society. Religion, society, property, are the three
terms that embrace the whole of man's life, and express the
essential means and conditions of his existence, his development,
and his perfection, or the fulfilment of his existence, the
attainment of the end for which he is created.
Though society, or the communion of man with his Maker through
his kind, is not all that man needs in order to live, to grow,
to actualize the possibilities of his nature, and to attain to
his beatitude, since humanity is neither God nor the material
universe, it is yet a necessary and essential condition of his
life, his progress, and the completion of his existence. He is
born and lives in society, and can be born and live nowhere else.
It is one of the necessities of his nature. "God saw that it was
not good for man to be alone." Hence, wherever man is found he
is found in society, living in more or less strict intercourse
with his kind.
But society never does and never can exist without government of
some sort. As society is a necessity of man's nature, so is
government a necessity of society. The simplest form of society
is the family--Adam and Eve. But though Adam and Eve are in many
respects equal, and have equally important though different parts
assigned them, one or the other must be head and governor, or
they cannot form the society called family. They would be simply
two individuals of different sexes, and the family would fail for
the want of unity.
Children cannot be reared, trained, or educated without some
degree of family government, of some authority to direct,
control, restrain, or prescribe. Hence the authority of the
husband and father is recognized by the common consent of
mankind. Still more apparent is the necessity of government the
moment the family develops and grows into the tribe, and the
tribe into the nation. Hence no nation exists without
government; and we never find a savage tribe, however low or
degraded, that does not assert somewhere in the father, in the
elders, or in the tribe itself, the rude outlines or the faint
reminiscences of some sort of government, with authority to
demand obedience and to punish the refractory. Hence, as man is
nowhere found out of society, so nowhere is society found without
government.
Government is necessary: but let it be remarked by the way, that
its necessity does not grow exclusively or chiefly out of the
fact that the human race by sin has fallen from its primitive
integrity, or original righteousness. The fall asserted by
Christian theology, though often misinterpreted, and its effects
underrated or exaggerated, is a fact too sadly confirmed by
individual experience and universal history; but it is not the
cause why government is necessary, though it may be an additional
reason for demanding it. Government would have been necessary if
man had not sinned, and it is needed for the good as well as for
the bad. The law was promulgated in the Garden, while man
retained his innocence and remained in the integrity of his
nature. It exists in heaven as well as on earth, and in heaven
in its perfection. Its office is not purely repressive, to
restrain violence, to redress wrongs, and to punish the
transgressor. It has something more to do than to restrict our
natural liberty, curb our passions, and maintain justice between
man and man. Its office is positive as well as negative. It is
needed to render effective the solidarity of the individuals of a
nation, and to render the nation an organism, not a mere
organization--to combine men in one living body, and to
strengthen all with the strength of each, and each with the
strength of all--to develop, strengthen, and sustain individual
liberty, and to utilize and direct it to the promotion of the
common weal--to be a social providence, imitating in its order
and degree the action of the divine providence itself, and, while
it provides for the common good of all, to protect each, the
lowest and meanest, with the whole force and majesty of society.
It is the minister of wrath to wrong-doers, indeed, but its nature
is beneficent, and its action defines and protects the right of
property, creates and maintains a medium in which religion can
exert her supernatural energy, promotes learning, fosters science
and art, advances civilization, and contributes as a powerful
means to the fulfilment by man of the Divine purpose in his
existence. Next after religion, it is man's greatest good; and
even religion without it can do only a small portion of her work.
They wrong it who call it a necessary evil; it is a great good,
and, instead of being distrusted, hated, or resisted, except in
its abuses, it should be loved, respected, obeyed, and if need
be, defended at the cost of all earthly goods, and even of life
itself.
The nature or essence of government is to govern. A government
that does not govern, is simply no government at all. If it has
not the ability to govern and governs not, it may be an agency,
an instrument in the bands of individuals for advancing their
private interests, but it is not government. To be government it
must govern both individuals and the community. If it is a mere
machine for making prevail the will of one man, of a certain
number of men, or even of the community, it may be very effective
sometimes for good, sometimes for evil, oftenest for evil, but
government in the proper sense of the word it is not. To govern
is to direct, control, restrain, as the pilot controls and
directs his ship. It necessarily implies two terms, governor and
governed, and a real distinction between them. The denial of all
real distinction between governor and governed is an error in
politics analogous to that in philosophy or theology of denying
all real distinction between creator and creature, God and the
universe, which all the world knows is either pantheism or pure
atheism--the supreme sophism. If we make governor and governed
one and the same, we efface both terms; for there is no governor
nor governed, if the will that governs is identically the will
that is governed. To make the controller and the controlled the
same is precisely to deny all control. There must, then, if
there is government at all, be a power, force, or will that
governs, distinct from that which is governed. In those
governments in which it is held that the people govern, the
people governing do and must act in a diverse relation from the
people governed, or there is no real government.
Government is not only that which governs, but that which has the
right or authority to govern. Power without right is not
government. Governments have the right to use force at need, but
might does not make right, and not every power wielding the
physical force of a nation is to be regarded as its rightful
government. Whatever resort to physical force it may be obliged
to make, either in defence of its authority or of the rights of
the nation, the government itself lies in the moral order, and
politics is simply a branch of ethics--that branch which treats
of the rights and duties of men in their public relations, as
distinguished from their rights and duties in their private
relations.
Government being not only that which governs, but that which has
the right to govern, obedience to it becomes a moral duty, not a
mere physical necessity. The right to govern and the duty to
obey are correlatives, and the one cannot exist or be conceived
without the other. Hence loyalty is not simply an amiable
sentiment but a duty, a moral virtue. Treason is not merely a
difference in political opinion with the governing authority, but
a crime against the sovereign, and a moral wrong, therefore a sin
against God, the Founder of the moral Law. Treason, if committed
in other Countries, unhappily, has been more frequently termed by
our countrymen Patriotism and loaded with honor than branded as a
crime, the greatest of crimes, as it is, that human governments
have authority to punish. The American people have been chary of
the word loyalty, perhaps because they regard it as the
correlative of royalty; but loyalty is rather the correlative of
law, and is, in its essence, love and devotion to the sovereign
authority, however constituted or wherever lodged. It is as
necessary, as much a duty, as much a virtue in republics as in
monarchies; and nobler examples of the most devoted loyalty are
not found in the world's history than were exhibited in the
ancient Greek and Roman republics, or than have been exhibited by
both men and women in the young republic of the United States.
Loyalty is the highest, noblest, and most generous of human
virtues, and is the human element of that sublime love or charity
which the inspired Apostle tells us is the fulfilment of the law.
It has in it the principle of devotion, of self-sacrifice, and
is, of all human virtues, that which renders man the most
Godlike. There is nothing great, generous, good, or heroic of
which a truly loyal people are not capable, and nothing mean,
base, cruel, brutal, criminal, detestable, not to be expected of
a really disloyal people. Such a people no generous sentiment
can move, no love can bind. It mocks at duty, scorns virtue,
tramples on all rights, and holds no person, no thing, human or
divine, sacred or inviolable. The assertion of government as
lying in the moral order, defines civil liberty, and reconciles
it with authority. Civil liberty is freedom to do whatever one
pleases that authority permits or does not forbid. Freedom to
follow in all things one's own will or inclination, without any
civil restraint, is license, not liberty. There is no lesion to
liberty in repressing license, nor in requiring obedience to the
commands of the authority that has the right to command. Tyranny
or oppression is not in being subjected to authority, but in
being subjected to usurped authority--to a power that has no
right to command, or that commands what exceeds its right or its
authority. To say that it is contrary to liberty to be forced to
forego our own will or inclination in any case whatever, is
simply denying the right of all government, and falling into
no-governmentism. Liberty is violated only when we are required
to forego our own will or inclination by a power that has no
right to make the requisition; for we are bound to obedience as
far as authority has right to govern, and we can never have the
right to disobey a rightful command. The requisition, if made by
rightful authority, then, violates no right that we have or can
have, and where there is no violation of our rights there is no
violation of our liberty. The moral right of authority, which
involves the moral duty of obedience, presents, then, the ground
on which liberty and authority may meet in peace and operate to
the same end.
This has no resemblance to the slavish doctrine of passive
obedience, and that the resistance to power can never be lawful.
The tyrant may be lawfully resisted, for the tyrant, by force of
the word itself, is a usurper, and without authority. Abuses of
power may be resisted even by force when they become too great to
be endured, when there is no legal or regular way of redressing
them, and when there is a reasonable prospect that resistance
will prove effectual and substitute something better in their
place. But it is never lawful to resist the rightful sovereign,
for it can never be right to resist right, and the rightful
sovereign in the constitutional exercise of his power can never
be said to abuse it. Abuse is the unconstitutional or wrongful
exercise of a power rightfully held, and when it is not so
exercised there is no abuse or abuses to redress. All turns,
then, on the right of power, or its legitimacy. Whence does
government derive its right to govern? What is the origin and
ground of sovereignty? This question is fundamental and without
a true answer to it politics cannot be a science, and there can
be no scientific statesmanship. Whence, then, comes the
sovereign right to govern?
26
CHAPTER III.
ORIGIN OF GOVERNMENT
Government is both a fact and a right. Its origin as a fact, is
simply a question of history; its origin as a right or authority
to govern, is a question of ethics. Whether a certain territory
and its population are a sovereign state or nation, or
not--whether the actual ruler of a country is its rightful ruler,
or not--is to be determined by the historical facts in the case;
but whence the government derives its right to govern, is a
question that can be solved only by philosophy, or, philosophy
failing, only by revelation.
Political writers, not carefully distinguishing between the fact
and the right, have invented various theories as to the origin of
government, among which may be named--
I. Government originates in the right of the father to govern his
child.
II. It originates in convention, and is a social compact.
III. It originates in the people, who, collectively taken, are
sovereign.
IV. Government springs from the spontaneous development of nature.
V. It derives its right from the immediate and express
appointment of God;--
VI. From God through the Pope, or visible head of the spiritual
society;--
VII. From God through the people;--
VIII. From God through the natural law.
I. The first theory is sound, if the question is confined to the
origin of government as a fact. The patriarchal system is the
earliest known system of government, and unmistakable traces of
it are found in nearly all known governments--in the tribes of
Arabia and Northern Africa, the Irish septs and the Scottish
clans, the Tartar hordes, the Roman qentes, and the Russian and
Hindoo villages. The right of the father was held to be his
right to govern his family or household, which, with his children,
included his wife and servants. From the family to the tribe the
transition is natural and easy, as also from the tribe to the
nation. The father is chief of the family; the chief of the
eldest family is chief of the tribe; the chief of the eldest
tribe becomes chief of the nation, and, as such, king or monarch.
The heads of families collected in a senate form an aristocracy,
and the families themselves, represented by their delegates, or
publicly assembling for public affairs, constitute a democracy.
These three forms, with their several combinations, to wit,
monarchy, aristocracy, democracy, and mixed governments, are all
the forms known to Aristotle, and have generally been held to be
all that are possible.
Historically, all governments have, in some sense, been developed
from the patriarchal, as all society has been developed from the
family. Even those governments, like the ancient Roman and the
modern feudal, which seem to be founded on landed property, may
be traced back to a patriarchal origin. The patriarch is sole
proprietor, and the possessions of the family are vested in him,
and he governs as proprietor as well as father. In the tribe,
the chief is the proprietor, and in the nation, the king is the
landlord, and holds the domain. Hence, the feudal baron is
invested with his fief by the suzerain, holds it from him, and to
him it escheats when forfeited or vacant. All the great Asiatic
kings of ancient or modern times hold the domain and govern as
proprietors; they have the authority of the father and the owner;
and their subjects, though theoretically their children, are
really their slaves.
In Rome, however, the proprietary right undergoes an important
transformation. The father retains all the power of the
patriarch within his family, the patrician in his gens or house,
but, outside of it, is met and controlled by the city or state.
The heads of houses are united in the senate, and collectively
constitute and govern the state. Yet, not all the heads of
houses have seats in the senate, but only the tenants of the
sacred territory of the city, which has been surveyed and marked
by the god Terminus. Hence the great plebeian houses, often
richer and nobler than the patrician, were excluded from all
share in the government and the honors of the state, because they
were not tenants of any portion of the sacred territory. There
is here the introduction of an element which is not patriarchal,
and which transforms the patriarch or chief of a tribe into the
city or state, and founds the civil order, or what is now called
civilization. The city or state takes the place of the private
proprietor, and territorial rights take the place of purely
personal rights.
In the theory of the Roman law, the land owns the man, not the
man the land. When land was transferred to a new tenant, the
practice in early times was to bury him in it, in order to
indicate that it took possession of him, received, accepted, or
adopted him; and it was only such persons as were taken
possession of, accepted or adopted by the sacred territory or
domain that, though denizens of Rome, were citizens with full
political rights. This, in modern language, means that the state
is territorial, not personal, and that the citizen appertains to
the state, not the state to the citizen. Under the patriarchal,
the tribal, and the Asiatic monarchical systems, there is,
properly speaking, no state, no citizens, and the organization is
economical rather than political. Authority--even the nation
itself--is personal, not territorial. The patriarch, the chief
of the tribe, or the king, is the only proprietor. Under the
Graeco-Roman system all this is transformed. The nation is
territorial as well as personal, and the real proprietor is the
city or state. Under the Empire, no doubt, what lawyers call the
eminent domain was vested in the emperor, but only as the
representative and trustee of the city or state.
When or by what combination of events this transformation was
effected, history does not inform us. The first-born of Adam, we
are told, built a city, and called it after his son Enoch; but
there is no evidence that it was constituted a municipality. The
earliest traces of the civil order proper are found in the Greek
and Italian republics, and its fullest and grandest developments
are found in Rome, imperial as well as republican. It was no
doubt preceded by the patriarchal system, and was historically
developed from it, but by way of accretion rather than by simple
explication. It has in it an element that, if it exists in the
patriarchal constitution, exists there only in a different form,
and the transformation marks the passage from the economical
order to the political, from the barbaric to the civil
constitution of society, or from barbarism to civilization.
The word civilization stands opposed to barbarism, and is derived
from civitas--city or state. The Greeks and Romans call all
tribes and nations in which authority is vested in the chief, as
distinguished from the state, barbarians. The origin of the word
barbarian, barbarus, or ........, is unknown, and its primary
sense can be only conjectured. Webster regards its primary sense
as foreign, wild, fierce; but this could not have been its
original sense; for the Greeks and Romans never termed all
foreigners barbarians, and they applied the term to nations that
had no inconsiderable culture and refinement of manners, and that
had made respectable progress in art and sciences--the Indians,
Persians, Medians, Chaldeans, and Assyrians. They applied the
term evidently in a political, not an ethical or an aesthetical
sense, and as it would seem to designate a social order in which
the state was not developed, and in which the nation was personal,
not territorial, and authority was held as a private right, not
as a public trust, or in which the domain vests in the chief or
tribe, and not in the state; for they never term any others
barbarians.
Republic is opposed not to monarchy, in the modern European
sense, but to monarchy in the ancient or absolute sense.
Lacedaemon had kings; yet it was no less republican than Athens;
and Rome was called and was a republic under the emperors no less
than under the consuls. Republic, respublica, by the very force
of the term, means the public wealth, or, in good English, the
commonwealth; that is, government founded not on personal or
private wealth, but on the public wealth, public territory, or
domain, or a Government that vests authority in the nation, and
attaches the nation to a certain definite territory. France,
Spain, Italy, Holland, Belgium, Denmark, even Great Britain in
substance though not in form, are all, in the strictest sense of
the word, republican states; for the king or emperor does not
govern in his own private right, but solely as representative of
the power and majesty of the state. The distinctive mark of
republicanism is the substitution of the state for the personal
chief, and public authority for personal or private right.
Republicanism is really civilization as opposed to barbarism, and
all civility, in the old Sense of the word, or Civilian in
Italian, is republican, and is applied in modern tiles to
breeding or refinement of manners, simply because these are
characteristics of a republican, or polished [from ....., city]
people. Every people that has a real civil order, or a fully
developed state or polity, is a republican people; and hence the
church and her great doctors when they speak of the state as
distinguished from the church, call it the republic, as may be
seen by consulting even a late Encyclical of Pius IX., which some
have interpreted wrongly in an anti-republican sense.
All tribes and nations in which the patriarchal system remains,
or is developed without transformation, are barbaric, and really
so regarded by all Christendom. In civilized nations the
patriarchal authority is transformed into that of the city or
state, that is, of the republic; but in all barbarous nations it
retains its Private and personal character. The nation is only
the family or tribe, and is called by the name of its ancestor,
founder, or chief, not by a geographical denomination. Race has
not been supplanted by country; they are a people, not a state.
They are not fixed to the soil, and though we may find in them
ardent love of family, the tribe, or the chief, we never find
among them that pure love of country or patriotism which so
distinguished the Greeks and Romans, and is no less marked among
modern Christian nations. They have a family, a race, a chief or
king, but no patria, or country. The barbarians who overthrew
the Roman Empire, whether of the West or the East, were nations,
or confederacies of nations, but not states. The nation with
them was personal, not territorial. Their country was wherever
they fed their flocks and herds, pitched their tents, and
encamped for the night. There were Germans, but no German state,
and even to-day the German finds his "father-land" wherever the
German speech is spoken. The Polish, Sclavonian, Hungarian,
Illyrian, Italian, and other provinces held by German states, in
which the German language is not the mother-tongue, are excluded
from the Germanic Confederation. The Turks, or Osmanlis, are a
race, not a state, and are encamped, not settled, on the site of
the Eastern Roman or Greek Empire.
Even when the barbaric nations have ceased to be nomadic,
pastoral, or predatory nations, as the ancient Assyrians and
Persians or modern Chinese, and have their geographical
boundaries, they have still no state, no country. The nation
defines the boundaries, not the boundaries the nation. The
nation does not belong to the territory, but the territory to the
nation or its chief. The Irish and Anglo-Saxons, in former
times, held the land in gavelkind, and the territory belonged to
the tribe or sept; but if the tribe held it as indivisible, they
still held it as private property. The shah of Persia holds the
whole Persian territory as private property, and the landholders
among his subjects are held to be his tenants. They hold it from
him, not from the Persian state.
The public domain of the Greek empire is in theory the private
domain of the Ottoman emperor or Turkish sultan. There is in
barbaric states no republic, no commonwealth; authority is
parental, without being tempered by parental affection. The
chief is a despot, and rules with the united authority of the
father and the harshness of the proprietor. He owns the land and
his subjects.
Feudalism, established in Western Europe after the downfall of
the Roman Empire, however modified by the Church and by
reminiscences of Graeco-Roman civilization retained by the
conquered, was a barbaric constitution. The feudal monarch, as
far as he governed at all, governed as proprietor or landholder,
not as the representative of the commonwealth. Under feudalism
there are estates, but no state. The king governs as an estate,
the nobles hold their power as an estate, and the commons are
represented as an estate. The whole theory of power is, that it
is an estate; a private right, not a public trust. It is not
without reason, then that the common sense of civilized nations
terms the ages when it prevailed in Western Europe barbarous ages.
It may seem a paradox to class democracy with the barbaric
constitutions, and yet as it is defended by many stanch
democrats, especially European democrats and revolutionists, and
by French and Germans settled in our own country, it is
essentially barbaric and anti-republican. The characteristic
principle of barbarism is, that power is a private or personal
right, and when democrats assert that the elective franchise is a
natural right of man, or that it is held by virtue of the fact
that the elector is a man, they assert the fundamental principle
of barbarism and despotism. This says nothing in favor of
restricted suffrage, or against what is called universal suffrage.
To restrict suffrage to property-holders helps nothing,
theoretically or practically. Property has of itself advantages
enough, without clothing its holders with exclusive political
rights and privileges, and the laboring classes any day are as
trustworthy as the business classes. The wise statesman will
never restrict suffrage, or exclude the poorer and more numerous
classes from all voice in the government of their country.
General suffrage is wise, and if Louis Philippe had had the sense
to adopt it, and thus rally the whole nation to the support of
his government, he would never have had to encounter the
revolution of 1848. The barbarism, the despotism, is not in
universal suffrage, but in defending the elective franchise as a
private or personal right. It is not a private, but a political
right, and, like all political rights, a public trust. Extremes
meet, and thus it is that men who imagine that they march at the
head of the human race and lead the civilization of the age, are
really in principle retrograding to the barbarism of the past, or
taking their place with nations on whom the light of civilization
has never yet dawned. All is not gold that glisters.
The characteristic of barbarism is, that it makes all authority a
private or personal right; and the characteristic of civilization
is, that it makes it a public trust. Barbarism knows only
persons; civilization asserts and maintains the state. With
barbarians the authority of the patriarch is developed simply by
way of explication; in civilized states it is developed by way of
transformation. Keeping in mind this distinction, it may be
maintained that all systems of government, as a simple historical
fact, have been developed from the patriarchal. The patriarchal
has preceded them all, and it is with the patriarchal that the
human race has begun its career. The family or household is not
a state, a civil polity, but it is a government, and,
historically considered, is the initial or inchoate state as well
as the initial or inchoate nation. But its simple direct
development gives us barbarism, or what is called Oriental
despotism, and which nowhere exists, or can exist, in Christendom.
It is found only in pagan and Mohammedan nations; Christianity in
the secular order is republican, and continues and completes the
work of Greece and Rome. It meets with little permanent success
in any patriarchal or despotic nation, and must either find or
create civilization, which has been developed from the patriarchal
system by way of transformation.
But, though the patriarchal system is the earliest form of
government, and all governments have been developed or modified
from it, the right of government to govern cannot be deduced from
the right of the father to govern his children, for the parental
right itself is not ultimate or complete. All governments that
assume it to be so, and rest on it as the foundation of their
authority, are barbaric or despotic, and, therefore , without any
legitimate authority. The right to govern rests on ownership or
dominion. Where there is no proprietorship, there is no dominion;
and where there is no dominion, there is no right to govern.
Only he who is sovereign proprietor is sovereign lord.
Property, ownership, dominion rests on creation. The maker has
the right to the thing made. He, so far as he is sole creator,
is sole proprietor, and may do what he will with it. God is
sovereign lord and proprietor of the universe because He is its
sole creator. He hath the absolute dominion, because He is
absolute maker. He has made it, He owns it; and one may do what
he will with his own. His dominion is absolute, because He is
absolute creator, and He rightly governs as absolute and
universal lord; yet is He no despot, because He exercises only
His sovereign right, and His own essential wisdom, goodness,
justness, rectitude, and immutability, are the highest of all
conceivable guaranties that His exercise of His power will always
be right, wise, just, and good. The despot is a man attempting
to be God upon earth, and to exercise a usurped power. Despotism
is based on, the parental right, and the parental right is
assumed to be absolute. Hence, your despotic rulers claim to
reign, and to be loved and worshipped as gods. Even the Roman
emperors, in the fourth and fifth centuries, were addressed as
divinities; and Theodosius the Great, a Christian , was addressed
as "Your Eternity," Eternitas vestras--so far did barbarism
encroach on civilization, even under Christian emperors.
The right of the father over his child is an imperfect right, for
he is the generator, not the creator of his child. Generation is
in the order of second causes, and is simply the development or
explication of the race. The early Roman law, founded on the
confusion of generation with creation, gave the father absolute
authority over the child--the right of life and death, as over
his servants or slaves; but this was restricted under the Empire,
and in all Christian nations the authority of the father is
treated, like all power, as a trust. The child, like the father
himself, belongs to the state, and to the state the father is
answerable for the use he makes of his authority. The law fixes
the age of majority, when the child is completely emancipated;
and even during his nonage, takes him from the father and places
him under guardians, in case the father is incompetent to fulfil
or grossly abuses his trust. This is proper, because society
contributes to the life of the child, and has a right as well as
an interest in him. Society, again, must suffer if the child is
allowed to grow up a worthless vagabond or a criminal; and has a
right to intervene, both in behalf of itself and of the child, in
case his parents neglect to train him up in the nurture and
admonition of the Lord, or are training him up to be a liar, a
thief, a drunkard, a murderer, a pest to the community. How,
then, base the right of society on the right of the father,
since, in point of fact, the right of society is paramount to the
right of the parent?
But even waiving this, and granting what is not the fact that the
authority of the father is absolute, unlimited, it cannot be the
ground of the right of society to govern. Assume the parental
right to be perfect and inseparable from the parental relation,
it is no right to govern where no such relation exists. Nothing
true, real, solid in government can be founded on what Carlyle
calls a "sham." The statesman, if worthy of the name, ascertains
and conforms to the realities, the verities of things; and all
jurisprudence that accepts legal fictions is imperfect, and even
censurable. The presumptions or assumptions of law or politics
must have a real and solid basis, or they are inadmissible. How,
from the right of the father to govern his own child, born from
his loins, conclude his right to govern one not his child? Or
how, from my right to govern my child, conclude the right of
society to found the state, institute government, and exercise
political authority over its members?
CHAPTER IV.
ORIGIN OF GOVERNMENT--CONTINUED.
II. Rejecting the patriarchal theory as untenable, and shrinking
from asserting the divine origin of government, lest they should
favor theocracy, and place secular society under the control of
the clergy, and thus disfranchise the laity, modern political
writers have sought to render government purely human, and
maintain that its origin is conventional, and that it is founded
in compact or agreement. Their theory originated in the
seventeenth century, and was predominant in the last century and
the first third of the present. It has been, and perhaps is yet,
generally accepted by American politicians and statesmen, at
least so far as they ever trouble their heads with the question
at all, which it must be confessed is not far.
The moral theologians of the Church have generally spoken of
government as a social pact or compact, and explained the
reciprocal rights and obligations of subjects and rulers by the
general law of contracts; but they have never held that
government originates in a voluntary agreement between the people
and their rulers, or between the several individuals composing
the community. They have never held that government has only a
conventional origin or authority. They have simply meant, by the
social compact, the mutual relations and reciprocal rights and
duties of princes and their subjects, as implied in the very
existence and nature of civil society. Where there are rights
and duties on each side, they treat the fact, not as an agreement
voluntarily entered into, and which creates them, but as a
compact which binds alike sovereign and subject; and in
determining whether either side has sinned or not, they inquire
whether either has broken the terms of the social compact. They
were engaged, not with the question whence does government derive
its authority, but with its nature, and the reciprocal rights and
duties of governors and the governed. The compact itself they
held was not voluntarily formed by the people themselves, either
individually or collectively, but was imposed by God, either
immediately, or mediately, through the law of nature. "Every
man," says Cicero, "is born in society, and remains there." They
held the same, and maintained that every one born into society
contracts by that fact certain obligations to society, and
society certain obligations to him; for under the natural law,
every one has certain rights, as life, liberty, and the pursuit
of happiness, and owes certain duties to society for the
protection and assistance it affords him.
But modern political theorists have abused the phrase borrowed
from the theologians, and made it cover a political doctrine
which they would have been the last to accept. These theorists
or political speculators have imagined a state of nature
antecedently to civil society, in which men lived without
government, law, or manners, out of which they finally came by
entering into a voluntary agreement with some one of their number
to be king and to govern them, or with one another to submit to
the rule of the majority. Hobbes, the English materialist, is
among the earliest and most distinguished of the advocates of
this theory. He held that men lived, prior to the creation of
civil society, in a state of nature, in which all were equal, and
every one had an equal right to every thing, and to take any
thing on which he could lay his hands and was strong enough to
hold. There was no law but the will of the strongest. Hence,
the state of nature was a state of continual war. At length,
wearied and disgusted, men sighed for peace, and, with one
accord, said to the tallest, bravest, or ablest among them: Come,
be our king, our master, our sovereign lord, and govern us; we
surrender our natural rights and our natural independence to you,
with no other reserve or condition than that you maintain peace
among us, keep us from robbing and plundering one another or
cutting each other's throats.
Locke followed Hobbes, and asserted virtually the same theory,
but asserted it in the interests of liberty, as Hobbes had
asserted it in the interests of power. Rousseau, a citizen of
Geneva, followed in the next century with his Contrat Social, the
text-book of the French revolutionists--almost their Bible--and
put the finishing stroke to the theory. Hitherto the compact or
agreement had been assumed to be between the governor and the
governed; Rousseau supposes it to be between the people
themselves, or a compact to which the people are the only parties.
He adopts the theory of a state of nature in which men lived,
antecedently to their forming themselves into civil society,
without government or law. All men in that state were equal, and
each was independent and sovereign proprietor of himself. These
equal, independent, sovereign individuals met, or are held to
have met, in convention, and entered into a compact with
themselves, each with all, and all with each, that they would
constitute government, and would each submit to the determination
and authority of the whole, practically of the fluctuating and
irresponsible majority. Civil society, the state, the
government, originates in this compact, and the government, as
Mr. Jefferson asserts in the Declaration of American
Independence, "derives its just powers from the consent of the
governed."
This theory, as so set forth, or as modified by asserting that
the individual delegates instead of surrendering his rights to
civil society, was generally adopted by the American people in
the last century, and is still the more prevalent theory with
those among them who happen to have any theory or opinion on the
subject. It is the political tradition of the country. The
state, as defined by the elder Adams, is held to be a voluntary
association of individuals. Individuals create civil society,
and may uncreate it whenever they judge it advisable. Prior to
the Southern Rebellion, nearly every American asserted with
Lafayette, "the sacred right of insurrection" or revolution, and
sympathized with insurrectionists, rebels, and revolutionists,
wherever they made their appearance. Loyalty was held to be the
correlative of royalty, treason was regarded as a virtue, and
traitors were honored, feasted, and eulogized as patriots, ardent
lovers of liberty, and champions of the people. The fearful
struggle of the nation against a rebellion which threatened its
very existence may have changed this.
That there is, or ever was, a state of nature such as the theory
assumes, may be questioned. Certainly nothing proves that it is,
or ever was, a real state. That there is a law of nature is
undeniable. All authorities in philosophy, morals, politics, and
jurisprudence assert it; the state assumes it as its own
immediate basis, and the codes of all nations are founded on it;
universal jurisprudence, the jus qentium of the Romans, embodies
it, and the courts recognize and administer it. It is the reason
and conscience of civil society, and every state acknowledges its
authority. But the law of nature is as much in force in civil
society as out of it. Civil law does not abrogate or supersede
natural law, but presupposes it, and supports itself on it as its
own ground and reason. As the natural law, which is only natural
justice and equity dictated by the reason common to all men,
persists in the civil law, municipal or international, as its
informing soul, so does the state of nature persist in the civil
state, natural society in civil society, which simply develops,
applies, and protects it. Man in civil society is not out of
nature, but is in it--is in his most natural state; for society
is natural to him, and government is natural to society, and in
some form inseparable from it. The state of nature under the
natural law is not, as a separate state, an actual state, and
never was; but an abstraction, in which is considered, apart from
the concrete existence called society, what is derived
immediately from the natural law. But as abstractions have no
existence, out of the mind that forms them, the state of nature
has no actual existence in the world of reality as a separate
state.
But suppose with the theory the state of nature to have been a
real and separate state, in which men at first lived, there is
great difficulty in understanding how they ever got out of it.
Can a man divest himself of his nature, or lift himself above it?
Man is in his nature, and inseparable from it. If his primitive
state was his natural state, and if the political state is
supernatural, preternatural, or subnatural, how passed he alone,
by his own unaided powers, from the former to the latter? The
ancients, who had lost the primitive tradition of creation,
asserted, indeed, the primitive man as springing from the earth,
and leading a mere animal life, living in eaves or hollow trees,
and feeding on roots and nuts, without speech, without science,
art, law, or sense of right and wrong; but prior to the
prevalence of the Epicurean philosophy, they never pretended,
that man could come out of that state alone by his own unaided
efforts. They ascribed the invention of language, art, and
science, the institution of civil society, government, and laws,
to the intervention of the gods. It remained for the
Epicureans--who, though unable, like their modern successors,
the Positivists or Developmentists, to believe in a first cause,
believed in effects without causes, or that things make or take
care of themselves--to assert that men could, by their own
unassisted efforts, or by the simple exercise of reason, come out
of the primitive state, and institute what in modern times is
called civilta, civility, or civilization.
The partisans of this theory of the state of nature from which
men have emerged by the voluntary and deliberate formation of
civil society, forget that if government is not the sole
condition, it is one of the essential conditions of progress.
The only progressive nations are civilized or republican nations.
Savage and barbarous tribes are unprogressive. Ages on ages roll
over them without changing any thing in their state; and Niebuhr
has well remarked with others, that history records no instance
of a savage tribe or people having become civilized by its own
spontaneous or indigenous efforts. If savage tribes have ever
become civilized, it has been by influences from abroad, by the
aid of men already civilized, through conquest, colonies, or
missionaries; never by their own indigenous efforts, nor even by
commerce, as is so confidently asserted in this mercantile age.
Nothing in all history indicates the ability of a savage people
to pass of itself from the savage state to the civilized. But
the primitive man, as described by Horace in his Satires, and
asserted by Hobbes, Locke, Rousseau, and others, is far below the
savage. The lowest, most degraded, and most debased savage tribe
that has yet been discovered has at least some rude outlines or
feeble reminiscences of a social state, of government, morals,
law, and religion, for even in superstition the most gross there
is a reminiscence of true religion; but the people in the alleged
state of nature have none.
The advocates of the theory deceive themselves by transporting
into their imaginary state of nature the views, habits, and
capacities of the civilized man. It is, perhaps, not difficult
for men who have been civilized, who have the intelligence, the
arts, the affections, and the habits of civilization, if deprived
by some great social convulsion of society, and thrown back on
the so-called state of nature, or cast away on some uninhabited
island in the ocean, and cut off from all intercourse with the
rest of mankind, to reconstruct civil society, and re-establish
and maintain civil government. They are civilized men, and bear
civil society in their own life. But these are no
representatives of the primitive man in the alleged state of
nature. These primitive men have no experience, no knowledge, no
conception even of civilized life, or of any state superior to
that in which they have thus far lived. How then can they,
since, on the theory, civil society has no root in nature, but is
a purely artificial creation, even conceive of civilization,
much less realize it?
These theorists, as theorists always do, fail to make a complete
abstraction of the civilized state, and conclude from what they
feel they could do in case civil society were broken up, what
men may do and have done in a state of nature. Men cannot divest
themselves of themselves, and, whatever their efforts to do it,
they think, reason, and act as they are.
Every writer, whatever else he writes, writes himself. The
advocates of the theory, to have made their abstraction complete,
should have presented their primitive man as below the lowest
known savage, unprogressive, and in himself incapable of
developing any progressive energy. Unprogressive, and, without
foreign assistance, incapable of progress, how is it possible for
your primitive man to pass, by his own unassisted efforts, from
the alleged state of nature to that of civilization, of which he
has no conception, and towards which no innate desire, no
instinct, no divine inspiration pushes him?
But even if, by some happy inspiration, hardly supposable without
supernatural intervention repudiated by the theory--if by some
happy inspiration, a rare individual should so far rise above the
state of nature as to conceive of civil society and of civil
government, how could he carry his conception into execution?
Conception is always easier than its realization, and between the
design and its execution there is always a weary distance. The
poetry of all nations is a wail over unrealized ideals. It is
little that even the wisest and most potent statesman can realize
of what he conceives to be necessary for the state: political,
legislative or judicial reforms, even when loudly demanded, and
favored by authority, are hard to be effected, and not seldom
generations come and go without effecting them. The republics of
Plato, Sir Thomas More, Campanella, Harrington, as the
communities of Robert Owen and M. Cabet, remain Utopias, not
solely because intrinsically absurd, though so in fact, but
chiefly because they are innovations, have no support in
experience, and require for their realization the modes of
thought, habits, manners, character, life, which only their
introduction and realization can supply. So to be able to
execute the design of passing from the supposed state of nature
to civilization, the reformer would need the intelligence, the
habits, and characters in the public which are not possible
without civilization itself. Some philosophers suppose men have
invented language, forgetting that it requires language to give
the ability to invent language.
Men are little moved by mere reasoning, however clear and
convincing it may be. They are moved by their affections,
passions, instincts, and habits. Routine is more powerful with
them than logic. A few are greedy of novelties, and are always
for trying experiments; but the great body of the people of all
nations have an invincible repugnance to abandon what they know
for what they know not. They are, to a great extent, the slaves
of their own vis inertiae, and will not make the necessary
exertion to change their existing mode of life, even for a
better. Interest itself is powerless before their indolence,
prejudice, habits, and usages. Never were philosophers more
ignorant of human nature than they, so numerous in the last
century, who imagined that men can be always moved by a sense of
interest, and that enlightened self-interest, L'interet bien
entendu, suffices to found and sustain the state. No reform, no
change in the constitution of government or of society, whatever
the advantages it may promise, can be successful, if introduced,
unless it has its root or germ in the past. Man is never a
creator; he can only develop and continue, because he is himself
a creature, and only a second cause. The children of Israel,
when they encountered the privations of the wilderness that lay
between them and the promised land flowing with milk and honey,
fainted in spirit, and begged Moses to lead them back to Egypt,
and permit them to return to slavery.
In the alleged state of nature, as the philosophers describe it,
there is no germ of civilization, and the transition to civil
society would not be a development, but a complete rupture with
the past, and an entire new creation. When it is with the
greatest difficulty that necessary reforms are introduced in old
and highly civilized nations and when it can seldom be done at
all without terrible political and social convulsions, how can we
suppose men without society, and knowing nothing of it, can
deliberately, and, as it were, with "malice aforethought," found
society? Without government, and destitute alike of habits of
obedience and habits of command, how can they initiate,
establish, and sustain government? To suppose it, would be to
suppose that men in a state of nature, without culture, without
science, without any of the arts, even the most simple and
necessary, are infinitely superior to the men formed under the
most advanced civilization. Was Rousseau right in asserting
civilization as a fall, as a deterioration of the race?
But suppose the state of nature, even suppose that men, by some
miracle or other, can get out of it and found civil society, the
origin of government as authority in compact is not yet
established. According to the theory, the rights of civil
society are derived from the rights of the individuals who form
or enter into the compact. But individuals cannot give what they
have not, and no individual has in himself the right to govern
another. By the law of nature all men have equal rights, are
equals, and equals have no authority one over another. Nor has
an individual the sovereign right even to himself, or the right
to dispose of himself as he pleases. Man is not God,
independent, self-existing and self-sufficing. He is dependent,
and dependent not only on his Maker, but on his fellow-men, on
society, and even on nature, or the material world. That on
which he depends in the measure in which be depends on it,
contributes to his existence, to his life, and to his well-being,
and has, by virtue of its contribution, a right in him and to
him; and hence it is that nothing is more painful to the proud
spirit than to receive a favor that lays him under an obligation
to another. The right of that on which man depends, and by
communion with which he lives, limits his own right over himself.
Man does not depend exclusively on society, for it is not his
only medium of communion with God, and therefore its right to him
is neither absolute nor unlimited; but still be depends on it,
lives in it, and cannot live without it. It has, then, certain
lights over him, and he cannot enter into any compact, league, or
alliance that society does not authorize, or at least permit.
These rights of society override his rights to himself, and he
can neither surrender them nor delegate them. Other rights, as
the rights of religion and property, which are held directly from
God and nature, and which are independent of society, are
included in what are called the natural rights of man; and these
rights cannot be surrendered in forming civil society, for they
are rights of man only before civil society, and therefore not
his to cede, and because they are precisely the rights that
government is bound to respect and protect. The compact, then,
cannot be formed as pretended, for the only rights individuals
could delegate or surrender to society to constitute the sum of
the rights of government are hers already, and those which are
not hers are those which cannot be delegated or surrendered, and
in the free and full enjoyment of which, it is the duty, the
chief end of government to protect each and every individual.
The convention not only is not a fact, but individuals have no
authority without society, to meet in convention, and enter into
the alleged compact, because they are not independent, sovereign
individuals. But pass over this: suppose the convention, suppose
the compact, it must still be conceded that it binds and can bind
only those who voluntarily and deliberately enter into it. This
is conceded by Mr. Jefferson and the American Congress of l776,
in the assertion that government derives its "just powers from
the consent of the governed." This consent, as the matter is one
of life and death, must be free, deliberate, formal, explicit,
not simply an assumed, implied, or constructive consent. It must
be given personally, and not by one for another without his
express authority.
It is usual to infer the consent or the acceptance of the terms
of the compact from the silence of the individual, and also from
his continued residence in the country and submission to its
government. But residence is no evidence of consent, because it
may be a matter of necessity. The individual may be unable to
emigrate, if he would; and by what right can individuals form an
agreement to which I must consent or else migrate to some strange
land?
Can my consent, under such circumstances, even if given, be any
thing but a forced consent, a consent given under duress, and
therefore invalid? Nothing can be inferred from one's silence,
for he may have many reasons for being silent besides approval of
the government. He may be silent because speech would avail
nothing; because to protest might be dangerous--cost him his
liberty, if not his life; because he sees and knows nothing
better, and is ignorant that he has any choice in the case; or
because, as very likely is the fact with the majority, he has
never for moment thought of the matter, or ever had his attention
called to it, and has no mind on the subject.
But however this may be, there certainly must be excluded from
the compact or obligation to obey the government created by it
all the women of a nation, all the children too young to be
capable of giving their consent, and all who are too ignorant,
too weak of mind to be able to understand the terms of the
contract. These several classes cannot be less than three-fourths
of the population of any country. What is to be done with them?
Leave them without government? Extend the power of the
government over them? By what right? Government derives its
just powers from the consent of the governed, and that consent
they have not given. Whence does one-fourth of the population
get its right to govern the other three-fourths?
But what is to be done with the rights of minorities? Is the
rule of unanimity to be insisted on in the convention and in the
government, when it goes into operation? Unanimity is
impracticable, for where there are many men there will be
differences of opinion. The rule of unanimity gives to each
individual a veto on the whole proceeding, which was the grand
defect of the Polish constitution. Each member of the Polish
Diet, which included the whole body of the nobility, had an
absolute veto, and could, alone, arrest the whole action of the
government. Will you substitute the rule of the majority, and
say the majority must govern? By what right? It is agreed to in
the convention. Unanimously, or only by a majority? The right
of the majority to have their will is, on the social compact
theory, a conventional right, and therefore cannot come into play
before the convention is completed, or the social compact is
framed and accepted. How, in settling the terms of the compact,
will you proceed? By majorities? But suppose a minority
objects, and demands two-thirds, three-fourths, or four-fifths,
and votes against the majority rule, which is carried only by a
simple plurality of votes, will the proceedings of the convention
bind the dissenting minority? What gives to the majority the
right to govern the minority who dissent from its action?
On the supposition that society has rights not derived from
individuals, and which are intrusted to the government, there is
a good reason why the majority should prevail within the
legitimate sphere of government, because the majority is the best
representative practicable of society itself; and if the
constitution secures to minorities and dissenting individuals
their natural rights and their equal rights as citizens, they
have no just cause of complaint, for the majority in such case
has no power to tyrannize over them or to oppress them. But the
theory under examination denies that society has any rights
except such as it derives from individuals who all have equal
rights. According to it, society is itself conventional, and
created by free, independent, equal, sovereign individuals.
Society is a congress of sovereigns, in which no one has
authority over another, and no one can be rightfully forced to
submit to any decree against his will. In such a congress the
rule of the majority is manifestly improper, illegitimate, and
invalid, unless adopted by unanimous consent.
But this is not all. The individual is always the equal of
himself, and if the government derives its powers from the
consent of the governed, he governs in the government, and parts
with none of his original sovereignty. The government is not his
master, but his agent, as the principal only delegates, not
surrenders, his rights and powers to the agent. He is free at
any time he pleases to recall the powers he has delegated, to
give new instructions, or to dismiss him. The sovereignty of the
individual survives the compact, and persists through all the
acts of his agent, the government. He must, then, be free to
withdraw from the compact whenever be judges it advisable.
Secession is perfectly legitimate if government is simply a
contract between equals. The disaffected, the criminal, the
thief the government would send to prison, or the murderer it
would hang, would be very likely to revoke his consent, and to
secede from the state. Any number of individuals large enough to
count a majority among themselves, indisposed to pay the
government taxes, or to perform the military service exacted,
might hold a convention, adopt a secession ordinance, and declare
themselves a free, independent, sovereign state, and bid defiance
to the tax-collector and the provost-marshall, and that, too,
without forfeiting their estates or changing their domicile.
Would the government employ military force to coerce them back to
their allegiance? By what right? Government is their agent,
their creature, and no man owes allegiance to his own agent, or
creature.
The compact could bind only temporarily, and could at any moment
be dissolved. Mr. Jefferson saw this, and very consistently
maintained that one generation has no power to bind another; and,
as if this was not enough, he asserted the right of revolution,
and gave it as his opinion that in every nation a revolution once
in every generation is desirable, that is, according to his
reckoning, once every nineteen years. The doctrine that one
generation has no power to bind its successor is not only a
logical conclusion from the theory that governments derive their
just powers from the consent of the governed, since a generation
cannot give its consent before it is born, but is very convenient
for a nation that has contracted a large national debt; yet,
perhaps, not so convenient to the public creditor, since the new
generation may take it into its head not to assume or discharge
the obligations of its predecessor, but to repudiate them. No
man, certainly, can contract for any one but himself; and how
then can the son be bound, without his own personal or individual
consent, freely given, by the obligations entered into by his
father?
The social compact is necessarily limited to the individuals who
form it, and as necessarily, unless renewed, expires with them.
It thus creates no state, no political corporation, which
survives in all its rights and powers, though individuals die.
The state is on this theory a voluntary association, and in
principle, except that it is not a secret society, in no respect
differs from the Carbonari, or the Knights of the Golden Circle.
When Orsini attempted to execute the sentence of death on the
Emperor of the French, in obedience to the order of the
Carbonari, of which the Emperor was a member, he was, if the
theory of the origin of government in compact be true, no more an
assassin than was the officer who executed on the gallows the
rebel spies and incendiaries Beal and Kennedy.
Certain it is that the alleged social compact has in it no social
or civil element. It does not and cannot create society. It can
give only an aggregation of individuals, and society is not an
aggregation nor even an organization of individuals. It is an
organism, and individuals live in its life as well as it in
theirs. There is a real living solidarity, which makes
individuals members of the social body, and members one of another.
There is no society without individuals, and there are no
individuals without society; but in society there is that which
is not individual, and is more than all individuals. The social
compact is an attempt to substitute for this real living
solidarity, which gives to society at once unity of life and
diversity of members, an artificial solidarity, a fictitious
unity for a real unity, and membership by contract for real
living membership, a cork leg for that which nature herself gives.
Real government has its ground in this real living solidarity,
and represents the social element, which is not individual, but
above all individuals, as man is above men. But the theory
substitutes a simple agency for government, and makes each
individual its principal. It is an abuse of language to call
this agency a government. It has no one feature or element of
government. It has only an artificial unity, based on diversity;
its authority is only personal, individual, and in no sense a
public authority, representing a public will, a public right, or
a public interest. In no country could government be adopted and
sustained if men were left to the wisdom or justness of their
theories, or in the general affairs of life, acted on them.
Society, and government as representing society, has a real
existence, life, faculties, and organs of its own, not derived or
derivable from individuals. As well might it be maintained that
the human body consists in and derives all its life from the
particles of matter it assimilates from its food, and which are
constantly escaping as to maintain that society derives its life,
or government its powers, from individuals. No mechanical
aggregation of brute matter can make a living body, if there is
no living and assimilating principle within; and no aggregation
of individuals, however closely bound together by pacts or oaths,
can make society where there is no informing social principle
that aggregates and assimilates them to a living body, or produce
that mystic existence called a state or commonwealth.
The origin of government in the Contrat Social supposes the
nation to be a purely personal affair. It gives the government
no territorial status, and clothes it with no territorial rights
or jurisdiction. The government that could so originate would be,
if any thing, a barbaric, not a republican government. It has
only the rights conferred on it, surrendered or delegated to it
by individuals, and therefore, at best, only individual rights.
Individuals can confer only such rights as they have in the
supposed state of nature. In that state there is
neither private nor public domain. The earth in
that state is not property, and is open to the first occupant,
and the occupant can lay no claim to any more than he actually
occupies. Whence, then, does government derive its territorial
jurisdiction, and its right of eminent domain claimed by all
national governments? Whence its title to vacant or unoccupied
lands? How does any particular government fix its territorial
boundaries, and obtain the right to prescribe who may occupy, and
on what conditions the vacant lands within those boundaries?
Whence does it get its jurisdiction of navigable rivers, lakes,
bays, and the seaboard within its territorial limits, as
appertaining to its domain? Here are rights that it could not
have derived from individuals, for individuals never possessed
them in the so-called state of nature. The concocters of the
theory evidently overlooked these rights, or considered them of
no importance. They seem never to have contemplated the
existence of territorial states, or the division of mankind into
nations fixed to the soil. They seem not to have supposed the
earth could be appropriated; and, indeed, many of their followers
pretend that it cannot be, and that the public lands of a nation
are open lands, and whoso chooses may occupy them, without leave
asked of the national authority or granted. The American people
retain more than one reminiscence of the nomadic and predatory
habits of their Teutonic or Scythian ancestors before they
settled on the banks of the Don or the Danube, on the Northern
Ocean, in Scania, or came in contact with the Graeco-Roman
civilization.
Yet mankind are divided into nations, and all civilized nations
are fixed to the soil. The territory is defined, and is the
domain of the state, from which all private proprietors hold
their title-deeds. Individual proprietors hold under the state,
and often hold more, than they occupy; but it retains in all
private estates the eminent domain, and prohibits the alienation
of land to one who is not a citizen. It defends its domain, its
public unoccupied lauds, and the lands owned by private
individuals, against all foreign powers. Now whence, if
government has only the rights ceded it by individuals, does it
get this domain, and hold the right to treat settlers on even
its unoccupied lands as trespassers? In the state of nature the
territorial rights of individuals, if any they have, are
restricted to the portion of land they occupy with their rude
culture, and with their flocks and herds, and in civilized
nations to what they hold from the state, and, therefore, the
right as held and defended by all nations, and without which the
nation has no status, no fixed dwelling, and is and can be no
state, could never have been derived from individuals. The
earliest notices of Rome show the city in possession of the
sacred territory, to which the state and all political power are
attached. Whence did Rome become a landholder, and the
governing people a territorial people? Whence does any nation
become a territorial nation and lord of the domain? Certainly
never by the cession of individuals, and hence no civilized
government ever did or could originate in the so-called social
compact.
CHAPTER V.
ORIGIN OF GOVERNMENT-CONTINUED.
III. The tendency of the last century was to individualism; that
of the present is to socialism. The theory of Hobbes, Locke,
Rousseau, and Jefferson, though not formally abandoned, and still
held by many, has latterly been much modified, if not wholly
transformed. Sovereignty, it is now maintained, is inherent in
the people; not individually, indeed, but collectively, or the
people as society. The constitution is held not to be simply a
compact or agreement entered into by the people as individuals
creating civil society and government, but a law ordained by the
sovereign people, prescribing the constitution of the state and
defining its rights and powers.
This transformation, which is rather going on than completed, is,
under one aspect at least, a progress, or rather a return to the
sounder principles of antiquity. Under it government ceases to
be a mere agency, which must obtain the assassin's consent to be
hung before it can rightfully hang him, and becomes authority,
which is one and imperative. The people taken collectively are
society, and society is a living organism, not a mere aggregation
of individuals. It does not, of course, exist without
individuals, but it is something more than individuals, and has
rights not derived from them, and which are paramount to theirs.
There is more truth, and truth of a higher order, in this than in
the theory of the social compact. Individuals, to a certain
extent, derive their life from God through society, and so far
they depend on her, and they are hers; she owns them, and has the
right to do as she will with them. On this theory the state
emanates from society, and is supreme. It coincides with the
ancient Greek and Roman theory, as expressed by Cicero, already
cited. Man is born in society and remains there, and it may be
regarded as the source of ancient Greek and Roman patriotism,
which still commands the admiration of the civilized world. The
state with Greece and Rome was a living reality, and loyalty a
religion. The Romans held Rome to be a divinity, gave her
statues and altars, and offered her divine worship. This was
superstition, no doubt, but it had in it an element of truth. To
every true philosopher there is something divine in the state,
and truth in all theories. Society stands nearer to God, and
participates more immediately of the Divine essence, and the
state is a more lively image of God than the individual. It was
man, the generic and reproductive man, not the isolated
individual, that was created in the image and likeness of his
Maker. "And God created man in his own image; in the image of
God created he him; male and female created he them."
This theory is usually called the democratic theory, and it
enlists in its support the instincts, the intelligence, the
living forces, and active tendencies of the age. Kings, kaisers,
and hierarchies are powerless before it, and war against it in
vain. The most they can do is to restrain its excesses, or to
guard against its abuses. Its advocates, in returning to it,
sometimes revive in its name the old pagan superstition. Not a
few of the European democrats recognize in the earth, in heaven,
or in hell, no power superior to the people, and say not only
people-king but people-God. They say absolutely, without any
qualification, the voice of the people is the voice of God, and
make their will the supreme law, not only in politics, but in
religion, philosophy, morals, science, and the arts. The people
not only found the state, but also the church. They inspire or
reveal the truth, ordain or prohibit worships, judge of
doctrines, and decide cases of conscience. Mazzini said , when
at the bead of the Roman Republic in 1848, the question of
religion must be remitted to the judgment of the people. Yet
this theory is the dominant theory of the age, and is in all
civilized nations advancing with apparently irresistible force.
But this theory has its difficulties. Who are the collective
people that have the rights of society, or, who are the sovereign
people? The word people is vague, and in itself determines
nothing. It may include a larger or a smaller number; it may
mean the political people, or it may mean simply population; it
may mean peasants, artisans, shopkeepers, traders, merchants, as
distinguished from the nobility; hired laborers or workmen as
distinguished from their employer, or slaves as distinguished
from their master or owner. In which of these senses is the word
to be taken when it is said, "The people are sovereign?" The
people are the population or inhabitants of one and the same
country. That is something. But who or what determines the
country? Is the country the whole territory of the globe? That
will not be said, especially since the dispersion of mankind and
their division into separate nations. Is the territory
indefinite or undefined? Then indefinite or undefined are its
inhabitants, or the people invested with the rights of society.
Is it defined and its boundaries fixed? Who has done it? The
people. But who are the people? We are as wise as we were at
starting. The logicians say that the definition of idem per
idem, or the same by the same, is simply no definition at all.
The people are the nation, undoubtedly, if you mean by the people
the sovereign people. But who are the people constituting the
nation? The sovereign people? This is only to revolve in a
vicious circle. The nation is the tribe or the people living
under the same regimen, and born of the same ancestor, or sprung
from the same ancestor or progenitor. But where find a nation in
this the primitive sense of the word? Migration, conquest, and
intermarriage, have so broken up and intermingled the primitive
races, that it is more than doubtful if a single nation, tribe,
or family of unmixed blood now exists on the face of the earth.
A Frenchman, Italian, Spaniard, German, or Englishman, may have
the blood of a hundred different races coursing in his veins.
The nation is the people inhabiting the same country, and united
under one and the same government, it is further answered. The
nation, then, is not purely personal, but also territorial.
Then, again, the question comes up, who or what determines the
territory? The government? But not before it is constituted,
and it cannot be constituted till its territorial limits are
determined. The tribe doubtless occupies territory, but is not
fixed to it, and derives no jurisdiction from it, and therefore
is not territorial. But a nation, in the modern or civilized
sense, is fixed to the territory, and derives from it its
jurisdiction, or sovereignty; and, therefore, till the territory
is determined, the nation is not and cannot be determined.
The question is not an idle question. It is one of great
practical importance; for, till it is settled, we can neither
determine who are the sovereign people, nor who are united under
one and the same government. Laws have no extra-territorial
force, and the officer who should attempt to enforce the national
laws beyond the national territory would be a trespasser. If the
limits are undetermined, the government is not territorial, and
can claim as within its jurisdiction only those who choose to
acknowledge its authority. The importance of the question has
been recently brought home to the American people by the
secession of eleven or more States from the Union. Were these
States a part of the American nation, or were they not? Was the
war which followed secession, and which cost so many lives and so
much treasure, a civil war or a foreign war? Were the
secessionists traitors and rebels to their sovereign, or were
they patriots fighting for the liberty and independence of their
country and the right of self-government? All on both sides
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