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diff --git a/2053-8.txt b/2053-8.txt new file mode 100644 index 0000000..49e0e39 --- /dev/null +++ b/2053-8.txt @@ -0,0 +1,9414 @@ +The Project Gutenberg EBook of The American Republic: Its Constitution, +Tendencies, and Destiny, by A. O. Brownson + +This eBook is for the use of anyone anywhere at no cost and with +almost no restrictions whatsoever. You may copy it, give it away or +re-use it under the terms of the Project Gutenberg License included +with this eBook or online at www.gutenberg.org + + +Title: The American Republic: Its Constitution, Tendencies, and Destiny + +Author: A. O. Brownson + +Posting Date: January 29, 2009 [EBook #2053] +Release Date: January, 2000 +[Last updated: January 8, 2017] + +Language: English + +Character set encoding: ISO-8859-1 + +*** START OF THIS PROJECT GUTENBERG EBOOK THE AMERICAN REPUBLIC *** + + + + + + + + + + + + + + +THE + +AMERICAN REPUBLIC: + +ITS + +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 + GOVERNMENT, 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 GOVERNMENT--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 +so-called 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? + + + + +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 times 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 1776, 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 he 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 lands, 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 head 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 agreed that the nation is +sovereign; the dispute was as to the existence of the nation itself, +and the extent of its jurisdiction. Doubtless, when a nation has a +generally recognized existence as an historical fact, most of the +difficulties in determining who are the sovereign people can be got +over; but the question here concerns the institution of government, and +determining who constitute society and have the right to meet in +person, or by their delegates in convention, to institute it. This +question, so important, and at times so difficult, the theory of the +origin of government in the people collectively, or the nation, does +not solve, or furnish any means of solving. + +But suppose this difficulty surmounted there is still another, and a +very grave one, to overcome. The theory assumes that the people +collectively, "in their own native right and might," are sovereign. +According to it the people are ultimate, and free to do whatever they +please. This sacrifices individual freedom. The origin of government +in a compact entered into by individuals, each with all and all with +each, sacrificed the rights of society, and assumed each individual to +be in himself an independent sovereignty. If logically carried out, +there could be no such crime as treason, there could be no state, and +no public authority. This new theory transfers to society the +sovereignty which that asserted for the individual, and asserts social +despotism, or the absolutism of the state. It asserts with sufficient +energy public authority, or the right of the people to govern; but it +leaves no space for individual rights, which society must recognize, +respect, and protect. This was the grand defect of the ancient +Graeco-Roman civilization. The historian explores in vain the records +of the old Greek and Roman republics for any recognition of the rights +of individuals not held as privileges or concessions from the state. +Society recognized no limit to her authority, and the state claimed +over individuals all the authority of the patriarch over his household, +the chief over his tribe, or the absolute monarch over his subjects. +The direct and indirect influence of the body of freemen admitted to a +voice in public affairs, in determining the resolutions and action of +the state, no doubt tempered in practice to some extent the authority +of the state, and prevented acts of gross oppression; but in theory the +state was absolute, and the people individually were placed at the +mercy of the people collectively, or, rather, the majority of the +collective people. + +Under ancient republicanism, there were rights of the state and rights +of the citizen, but no rights of man, held independently of society, +and not derived from God through the state. The recognition of these +rights by modern society is due to Christianity: some say to the +barbarians, who overthrew the Roman empire; but this last opinion is +not well founded. The barbarian chiefs and nobles had no doubt a +lively sense of personal freedom and independence, but for themselves +only. They had no conception of personal freedom as a general or +universal right, and men never obtain universal principles by +generalizing particulars. They may give a general truth a particular +application, but not a particular truth--understood to be a particular +truth--a general or universal application. They are too good logicians +for that. The barbarian individual freedom and personal independence +was never generalized into the doctrine of the rights of man, any more +than the freedom of the master has been generalized into the right of +his slaves to be free. The doctrine of individual freedom before the +state is due to the Christian religion, which asserts the dignity and +worth of every human soul, the accountability to God of each man for +himself, and lays it down as law for every one that God is to be obeyed +rather than men. The church practically denied the absolutism of the +state, and asserted for every man rights not held from the state, in +converting the empire to Christianity, in defiance of the state +authority, and the imperial edicts punishing with death the profession +of the Christian faith. In this she practically, as well as +theoretically, overthrew state absolutism, and infused into modern +society the doctrine that every individual, even the lowest and +meanest, has rights which the state neither confers nor can abrogate; +and it will only be by extinguishing in modern society the Christian +faith, and obliterating all traces of Christian civilization, that +state absolutism can be revived with more than a partial and temporary +success. + +The doctrine of individual liberty may be abused, and so explained as +to deny the rights of society, and to become pure individualism; but no +political system that runs to the opposite extreme, and absorbs the +individual in the state, stands the least chance of any general or +permanent success till Christianity is extinguished. Yet the assertion +of principles which logically imply state absolutism is not entirely +harmless, even in Christian countries. Error is never harmless, and +only truth can give a solid foundation on which to build. Individualism +and socialism are each opposed to the other, and each has only a +partial truth. The state founded on either cannot stand, and society +will only alternate between the two extremes. To-day it is torn by a +revolution in favor of socialism; to-morrow it will be torn by another +in favor of individualism, and without effecting any real progress by +either revolution. Real progress can be secured only by recognizing +and building on the truth, not as it exists in our opinions or in our +theories, but as it exists in the world of reality, and independent of +our opinions. + +Now, social despotism or state absolutism is not based on truth or +reality. Society has certain rights over individuals, for she is a +medium of their communion with God, or through which they derive life +from God, the primal source of all life; but she is not the only medium +of man's life. Man, as was said in the beginning, lives by communion +with God, and he communes with God in the creative act and the +Incarnation, through his kind, and, through nature. This threefold +communion gives rise to three institutions--religion or the church, +society or the state, and property. The life that man derives from God +through religion and property, is not derived from him through society, +and consequently so much of his life be holds independently of society; +and this constitutes his rights as a man as distinguished from his +rights as a citizen. In relation to society, as not held from God +through her, these are termed his natural rights, which, she must hold +inviolable, and government protect for every one, whatever his +complexion or his social position. These rights--the rights of +conscience and the rights of property, with all their necessary +implications--are limitations of the rights of society, and the +individual has the right to plead them against the state. Society does +not confer them, and it cannot take them away, for they are at least as +sacred and as fundamental as her own. + +But even this limitation of popular sovereignty is not all. The people +can be sovereign only in the sense in which they exist and act. The +people are not God, whatever some theorists may pretend--are not +independent, self-existent, and self-sufficing. They are as dependent +collectively as individually, and therefore can exist and act only as +second cause, never as first cause. They can, then, even in the limited +sphere of their sovereignty, be sovereign only in a secondary sense, +never absolute sovereign in their own independent right. They are +sovereign only to the extent to which they impart life to the +individual members of society, and only in the sense in which she +imparts it, or is its cause. She is not its first cause or creator, +and is the medial cause or medium through which they derive it from +God, not its efficient cause or primary source. Society derives her +own life from God, and exists and acts only as dependent on him. Then +she is sovereign over individuals only as dependent on God. Her +dominion is then not original and absolute, but secondary and +derivative. + +This third theory does not err in assuming that the people collectively +are more than the people individually, or in denying society to be a +mere aggregation of individuals with no life, and no rights but what it +derives from them; nor even in asserting that the people in the sense +of society are sovereign, but in asserting that they are sovereign in +their own native or underived right and might. Society has not in +herself the absolute right to govern, because she has not the absolute +dominion either of herself or her members. God gave to man dominion +over the irrational creation, for he made irrational creatures for man; +but he never gave him either individually or collectively the dominion +over the rational creation. The theory that the people are absolutely +sovereign in their own independent right and might, as some zealous +democrats explain it, asserts the fundamental principle of despotism, +and all despotism is false, for it identifies the creature with the +Creator. No creature is creator, or has the rights of creator, and +consequently no one in his own right is or can be sovereign. This third +theory, therefore, is untenable. + +IV. A still more recent class of philosophers, if philosophers they may +be called, reject the origin of government in the people individually +or collectively. Satisfied that it has never been instituted by a +voluntary and deliberate act of the people, and confounding government +as a fact with government as authority, maintain that government is a +spontaneous development of nature. Nature develops it as the liver +secretes bile, as the bee constructs her cell, or the beaver builds his +dam. Nature, working by her own laws and inherent energy, develops +society, and society develops government. That is all the secret. +Questions as to the origin of government or its rights, beyond the +simple positive fact, belong to the theological or metaphysical stage +of the development of nature, but are left behind when the race has +passed beyond that stage, and has reached the epoch of positive +science, in which all, except the positive fact, is held to be unreal +and non-existent. Government, like every thing else in the universe, is +simply a positive development of nature. Science explains the laws and +conditions of the development, but disdains to ask for its origin or +ground in any order that transcends the changes of the world of space +and time. + +These philosophers profess to eschew all theory, and yet they only +oppose theory to theory. The assertion that reality for the human mind +is restricted to the positive facts of the sensible order, is purely +theoretic, and is any thing but a positive fact. Principles are as +really objects of science as facts, and it is only in the light of +principles that facts themselves are intelligible. If the human mind +had no science of reality that transcends the sensible order, or the +positive fact, it could have no science at all. As things exist only +in their principles or causes, so can they be known only in their +principles and causes; for things can be known only as they are, or as +they really exist. The science that pretends to deduce principles from +particular facts, or to rise from the fact by way of reasoning to an +order that transcends facts, and in which facts have their origin, is +undoubtedly chimerical, and as against that the positivists are +unquestionably right. But to maintain that man has no intelligence of +any thing beyond the fact, no intuition or intellectual apprehension of +its principle or cause, is equally chimerical. The human mind cannot +have all science, but it has real science as far as it goes, and real +science is the knowledge of things as they are, not as they are not. +Sensible facts are not intelligible by themselves, because they do not +exist by themselves; and if the human mind could not penetrate beyond +the individual fact, beyond the mimetic to the methexic, or +transcendental principle, copied or imitated by the individual fact, it +could never know the fact itself. The error of modern philosophers, or +philosopherlings, is in supposing the principle is deduced or inferred +from the fact, and in denying that the human mind has direct and +immediate intuition of it. + +Something that transcends the sensible order there must be, or there +could be no development; and if we had no science of it, we could never +assert that development is development, or scientifically explain the +laws and conditions of development. Development is explication, and +supposes a germ which precedes it, and is not itself a development; and +development, however far it may be carried, can never do more than +realize the possibilities of the germ. Development is not creation, +and cannot supply its own germ. That at least must be given by the +Creator, for from nothing nothing can be developed. If authority has +not its germ in nature, it cannot be developed from nature +spontaneously or otherwise. All government has a governing will; and +without a will that commands, there is no government; and nature has in +her spontaneous developments no will, for she has no personality. +Reason itself, as distinguished from will, only presents the end and +the means, but does not govern; it prescribes a rule, but cannot ordain +a law. An imperative will, the will of a superior who has the right to +command what reason dictates or approves, is essential to government; +and that will is not developed from nature, because it has no germ in +nature. So something above and beyond nature must be asserted, or +government itself cannot be asserted, even as a development. Nature is +no more self-sufficing than are the people, or than is the individual +man. + +No doubt there is a natural law, which is law in the proper sense of +the word law; but this is a positive law under which nature is placed +by a sovereign above herself, and is never to be confounded with those +laws of nature so-called, according to which she is productive as +second cause, or produces her effects, which are not properly laws at +all. Fire burns, water flows, rain falls, birds fly, fishes swim, food +nourishes, poisons kill, one substance has a chemical affinity for +another, the needle points to the pole, by a natural law, it is said; +that is, the effects are produced by an inherent and uniform natural +force. Laws in this sense are simply physical forces, and are nature +herself. The natural law, in an ethical sense, is not a physical law, +is not a natural force, but a law impose by the Creator on all moral +creatures, that is, all creatures endowed with reason and free-will, +and is called natural because promulgated in natural reason, or the +reason common and essential to all moral creatures. This is the moral +law. It is what the French call le droit naturell, natural right, and, +as the theologians teach us, is the transcript of the eternal law, the +eternal will or reason of God. It is the foundation of all law, and +all acts of a state that contravene it are, as St. Augustine maintains, +violences rather than laws. The moral law is no development of nature, +for it is above nature, and is imposed on nature. The only development +there is about it is in our understanding of it. + +There is, of course, development in nature, for nature considered as +creation has been created in germ, and is completed only in successive +developments. Hence the origin of space and time. There would have +been no space if there had been no external creation, and no time if +the creation had been completed externally at once, as it was in +relation to the Creator. Ideal space is simply the ability of God to +externize his creative act, and actual space is the relation of +coexistence in the things created; ideal time is the ability of God to +create existences with the capacity of being completed by successive +developments, and actual time is the relation of these in the order of +succession, and when the existence is completed or consummated +development ceases, and time is no more. In relation to himself the +Creator's works are complete from the first, and hence with him there +is no time, for there is no succession. But in relation to itself +creation is incomplete, and there is room for development, which may be +continued till the whole possibility of creation is actualized. Here +is the foundation of what is true in the modern doctrine of progress. +Man is progressive, because the possibilities of his nature are +successively unfolded and actualized. + +Development is a fact, and its laws and conditions may be +scientifically ascertained and defined. All generation is development, +as is all growth, physical, moral, or intellectual. But everything is +developed in its own order, and after its kind. The Darwinian theory of +the development of species is not sustained by science. The development +starts from the germ, and in the germ is given the law or principle of +the development. From the acorn is developed the oak, never the pine or +the linden. Every kind generates its kind, never another. But no +development is, strictly speaking, spontaneous, or the result alone of +the inherent energy or force of the germ developed. There is not only a +solidarity of race, but in some sense of all races, or species; all +created things are bound to their Creator, and to one another. One and +the same law or principle of life pervades all creation, binding the +universe together in a unity that copies or imitates the unity of the +Creator. No creature is isolated from the rest, or absolutely +independent of others. All are parts of one stupendous whole, and each +depends on the whole, and the whole on each, and each on each. All +creatures are members of one body, and members one of another. The +germ of the oak is in the acorn, but the acorn left to itself alone can +never grow into the oak, any more than a body at rest can place itself +in motion. Lay the acorn away in your closet, where it is absolutely +deprived of air, heat, and moisture, and in vain will you watch for its +germination. Germinate it cannot without some external influence, or +communion, so to speak, with the elements from which it derives its +sustenance and support. + +There can be no absolutely spontaneous development. All things are +doubtless active, for nothing exists except in so far as it is an +active force of some sort; but only God himself alone suffices for his +own activity. All created things are dependent, have not their being +in themselves, and are real only as they participate, through the +creative act, of the Divine being. The germ can no more be developed +than it could exist without God, and no more develop itself than it +could create itself. What is called the law of development is in the +germ; but that law or force can operate only in conjunction with +another force or other forces. All development, as all growth, is by +accretion or assimilation. The assimilating force is, if you will, in +the germ, but the matter assimilated comes and must come from abroad. +Every herdsman knows it, and knows that to rear his stock he must +supply them with appropriate food; every husbandman knows it, and knows +that to raise a crop of corn, he must plant the seed in a soil duly +prepared, and which will supply the gases needed for its germination, +growth, flowering, boiling, and ripening. In all created things, in +all things not complete in themselves, in all save God, in whom there +is no development possible, for He is, as say the schoolmen, most pure +act, in whom there is no unactualized possibility, the same law holds +good. Development is always the resultant of two factors, the one the +thing itself, the other some external force co-operating with it, +exciting it, and aiding it to act. + +Hence the praemotio physica of the Thomists, and the praevenient and +adjuvant grace of the theologians, without which no one can begin the +Christian life, and which must needs be supernatural when the end is +supernatural. The principle of life in all orders is the same, and +human activity no more suffices for itself in one order than in another. + +Here is the reason why the savage tribe never rises to a civilized +state without communion in some form with a people already civilized, +and why there is no moral or intellectual development and progress +without education and instruction, consequently without instructors and +educators. Hence the value of tradition; and hence, as the first man +could not instruct himself, Christian theologians, with a deeper +philosophy than is dreamed of by the sciolists of the age, maintain +that God himself was man's first teacher, or that he created Adam a +full-grown man, with all his faculties developed, complete, and in full +activity. Hence, too, the heathen mythologies, which always contain +some elements of truth, however they may distort, mutilate, or travesty +them, make the gods the first teachers of the human race, and ascribe +to their instruction even the most simple and ordinary arts of +every-day life. The gods teach men to plough, to plant, to reap, to +work in iron, to erect a shelter from the storm, and to build a fire to +warm them and to cook their food. The common sense, as well as the +common traditions of mankind, refuses to accept the doctrine that men +are developed without foreign aid, or progressive without divine +assistance. Nature of herself can no more develop government than it +can language. There can be no language without society, and no society +without language. There can be no government without society, and no +society without government of some sort. + +But even if nature could spontaneously develop herself, she could never +develop an institution that has the right to govern, for she has not +herself that right. Nature is not God, has not created us, therefore +has not the right of property in us. She is not and cannot be our +sovereign. We belong not to her, nor does she belong to herself, for +she is herself creature, and belongs to her Creator. Not being in +herself sovereign, she cannot develop the right to govern, nor can she +develop government as a fact, to say nothing of its right, for +government, whether we speak of it as fact or as authority, is distinct +from that which is governed; but natural developments are nature, and +indistinguishable from her. The governor and the governed, the +restrainer and the restrained, can never as such be identical. +Self-government, taken strictly, is a contradiction in terms. When an +individual is said to govern himself, he is never understood to govern +himself in the sense in which he is governed. He by his reason and +will governs or restrains his appetites and passions. It is man as +spirit governing man as flesh, the spiritual mind governing the carnal +mind. + +Natural developments cannot in all cases be even allowed to take their +own course without injury to nature herself. "Follow nature" is an +unsafe maxim, if it means, leave nature to develop herself as she will, +and follow thy natural inclinations. Nature is good, but inclinations +are frequently bad. All our appetites and passions are given us for +good, for a purpose useful and necessary to individual and social life, +but they become morbid and injurious if indulged without restraint. +Each has its special object, and naturally seeks it exclusively, and +thus generates discord and war in the individual, which immediately +find expression in society, and also in the state, if the state be a +simple natural development. The Christian maxim, Deny thyself, is far +better than the Epicurean maxim, Enjoy thyself, for there is no real +enjoyment without self-denial. There is deep philosophy in Christian +asceticism, as the Positivists themselves are aware, and even insist. +But Christian asceticism aims not to destroy nature, as voluptuaries +pretend, but to regulate, direct, and restrain its abnormal +developments for its own good. It forces nature in her developments to +submit to a law which is not in her, but above her. The Positivists +pretend that this asceticism is itself a natural development, but that +cannot be a natural development which directs, controls, and restrains +natural development. + +The Positivists confound nature at one time with the law of nature, and +at another the law of nature with nature herself, and take what is +called the natural law to be a natural development. Here is their +mistake, as it is the mistake of all who accept naturalistic theories. +Society, no doubt, is authorized by the law of nature to institute and +maintain government. But the law of nature is not a natural +development, nor is it in nature, or any part of nature. It is not a +natural force which operates in nature, and which is the developing +principle of nature. Do they say reason is natural, and the law of +nature is only reason? This is not precisely the fact. The natural law +is law proper, and is reason only in the sense that reason includes +both intellect and will, and nobody can pretend that nature in her +spontaneous developments acts from intelligence and volition. Reason, +as the faculty of knowing, is subjective and natural; but in the sense +in which it is coincident with the natural law, it is neither +subjective nor natural, but objective and divine, and is God affirming +himself and promulgating his law to his creature, man. It is, at +least, an immediate participation of the divine by which He reveals +himself and His will to the human understanding, and is not natural, +but supernatural, in the sense that God himself is supernatural. This +is wherefore reason is law, and every man is bound to submit or conform +to reason. + +That legitimate governments are instituted under the natural law is +frankly conceded, but this is by no means the concession of government +as a natural development. The reason and will of which the natural law +is the expression are the reason and will of God. The natural law is +the divine law as much as the revealed law itself, and equally +obligatory. It is not a natural force developing itself in nature, +like the law of generation, for instance, and therefore proceeding from +God as first cause, but it proceeds from God as final cause, and is, +therefore, theological, and strictly a moral law, founding moral rights +and duties. Of course, all morality and all legitimate government rest +on this law, or, if you will, originate in it. But not therefore in +nature, but in the Author of nature. The authority is not the +authority of nature, but of Him who holds nature in the hollow of His +hand. + +V. In the seventeenth century a class of political writers who very +well understood that no creature, no man, no number of men, not even, +nature herself, can be inherently sovereign, defended the opinion that +governments are founded, constituted, and clothed with their authority +by the direct and express appointment of God himself. They denied that +rulers hold their power from the nation; that, however oppressive may +be their rule, that they are justiciable by any human tribunal, or that +power, except by the direct judgment of God, is amissible. Their +doctrine is known in history as the doctrine of "the divine right of +kings, and passive obedience." All power, says St. Paul, is from God, +and the powers that be are ordained of God, and to resist them is to +resist the ordination of God. They must be obeyed for conscience' sake. + +It would, perhaps, be rash to say that this doctrine had never been +broached before the seventeenth century, but it received in that +century, and chiefly in England, its fullest and most systematic +developments. It was patronized by the Anglican divines, asserted by +James I. of England, and lost the Stuarts the crown of three kingdoms. +It crossed the Channel, into France, where it found a few hesitating +and stammering defenders among Catholics, under Louis XIV., but it has +never been very generally held, though it has had able and zealous +supporters. In England it was opposed by all the Presbyterians, +Puritans, Independents, and Republicans, and was forgotten or abandoned +by the Anglican divines themselves in the Revolution of 1688, that +expelled James II. and crowned William and Mary. It was ably refuted +by the Jesuit Suarez in his reply to a Remonstrance for the Divine +Right of Kings by the James I.; and a Spanish monk who had asserted it +in Madrid, under Philip II., was compelled by the Inquisition to +retract it publicly in the place where he had asserted it. All +republicans reject it, and the Church has never sanctioned it. The +Sovereign Pontiffs have claimed and exercised the right to deprive +princes of their principality, and to absolve their subjects from the +oath of fidelity. Whether the Popes rightly claimed and exercised that +power is not now the question; but their having claimed and exercised +it proves that the Church does not admit the inamissibility of power +and passive obedience; for the action of the Pope was judicial, not +legislative. The Pope has never claimed the right to depose a prince +till by his own act he has, under the moral law or the constitution of +his state, forfeited his power, nor to absolve subjects from their +allegiance till their oath, according to its true intent and meaning, +has ceased to bind. If the Church has always asserted with the Apostle +there is no power but from God--non est potestas nisi a Deo--she has +always through her doctors maintained that it is a trust to be +exercised for the public good, and is forfeited when persistently +exercised in a contrary sense. St. Augustine, St. Thomas, and Suarez +all maintain that unjust laws are violences rather than laws, and do +not oblige, except in charity or prudence, and that the republic may +change its magistrates, and even its constitution, if it sees proper to +do so. + +That God, as universal Creator, is Sovereign Lord and proprietor of all +created things or existences, visible or invisible, is certain; for the +maker has the absolute right to the thing made; it is his, and he may +do with it as he will. As he is sole creator, he alone hath dominion; +and as he is absolute creator, he has absolute dominion over all the +things which he has made. The guaranty against oppression is his own +essential nature, is in the plenitude of his own being, which is the +plenitude of wisdom and goodness. He cannot contradict himself, be +other than he is, or act otherwise than according to his own essential +nature. As he is, in his own eternal and immutable essence, supreme +reason and supreme good, his dominion must always in its exercise be +supremely good and supremely reasonable, therefore supremely just and +equitable. From him certainly is all power; he is unquestionably King +of kings, and Lord of lords. By him kings reign and magistrates decree +just things. He may, at his will, set up or pull down kings, rear or +overwhelm empires, foster the infant colony, and make desolate the +populous city. All this is unquestionably true, and a simple dictate of +reason common to all men. But in what sense is it true? Is it true in +a supernatural sense? Or is it true only in the sense that it is true +that by him we breathe, perform any or all of our natural functions, +and in him live, and move, and have our being? + +Viewed in their first cause, all things are the immediate creation of +God, and are supernatural, and from the point of view of the first +cause the Scriptures usually speak, for the great purpose and paramount +object of the sacred writers, as of religion itself, is to make +prominent the fact that God is universal creator, and supreme governor, +and therefore the first and final cause of all things. But God creates +second causes, or substantial existences, capable themselves of acting +and producing effects in a secondary sense, and hence he is said to be +causa causarum, cause of causes. What is done by these second causes +or creatures is done eminently by him, for they exist only by his +creative act, and produce only by virtue of his active presence, or +effective concurrence. What he does through them or through their +agency is done by him, not immediately, but mediately, and is said to +be done naturally, as what he does immediately is said to be done +supernaturally. Natural is what God does through second causes, which +he creates; supernatural is that which he does by himself alone, +without their intervention or agency. Sovereignty, or the right to +govern, is in him, and he may at his will delegate it to men either +mediately or immediately, by a direct and express appointment, or +mediately through nature. In the absence of all facts proving its +delegation direct and express, it must be assumed to be mediate, +through second causes. The natural is always to be presumed, and the +supernatural is to be admitted only on conclusive proof. + +The people of Israel had a supernatural vocation, and they received +their law, embracing their religious and civil constitution and their +ritual directly from God at the hand of Moses, and various individuals +from time to time appear to have been specially called to be their +judges, rulers, or kings. Saul was so called, and so was David. David +and his line appear, also, to have been called not only to supplant +Saul and his line, but to have been supernaturally invested with the +kingdom forever; but it does not appear that the royal power with which +David and his line were invested was inamissible. They lost it in the +Babylonish captivity, and never afterwards recovered it. The Asmonean +princes were of another line, and when our Lord came the sceptre was in +the hands of Herod, an Idumean Or Edomite. The promise made, to David +and his house is generally held by Christian commentators to have +received its fulfilment in the everlasting spiritual royalty of the +Messiah, sprung through Mary from David's line. + +The Christian Church is supernaturally constituted and supernaturally +governed, but the persons selected to exercise powers supernaturally +defined, from the Sovereign Pontiff down to the humblest parish priest +are selected and inducted into office through human agency. The +Gentiles very generally claimed to have received their laws from the +gods, but it does not appear, save in exceptional cases, that they +claimed that their princes were designated and held their powers by the +direct and express appointment of the god. Save in the case of the +Jews, and that of the Church, there is no evidence that any particular +government exists or ever has existed by direct or express appointment, +or otherwise than by the action of the Creator through second causes, +or what is called his ordinary providence. Except David and his line, +there is no evidence of the express grant by the Divine Sovereign to +any individual or family, class or caste of the government of any +nation or country. Even those Christian princes who professed to reign +"by the grace of God," never claimed that they received their +principalities from God otherwise than through his ordinary providence, +and meant by it little more than an acknowledgment of their dependence +on him, their obligation to use their power according to his law and +their accountability to him for the use they make of it. + +The doctrine is not favorable to human liberty, for it recognizes no +rights of man in face of civil society. It consecrates tyranny, and +makes God the accomplice of the tyrant, if we suppose all governments +have actually existed by his express appointment. It puts the king in +the place of God, and requires us to worship in him the immediate +representative of the Divine Being. Power is irresponsible and +inamissible, and however it may be abused, or however corrupt and +oppressive may be its exercise, there is no human redress. Resistance +to power is resistance to God. There is nothing for the people but +passive obedience and unreserved submission. The doctrine, in fact, +denies all human government, and allows the people no voice in the +management of their own affairs, and gives no place for human activity. +It stands opposed to all republicanism, and makes power an hereditary +and indefeasible right, not a trust which he who holds it may forfeit, +and of which he may be deprived if he abuses it. + + + + +CHAPTER VI. + +ORIGIN OF GOVERNMENT--CONCLUDED. + + +VI. The theory which derives the right of government from the direct +and express appointment of God is sometimes modified so as to mean that +civil authority is derived from God through the spiritual authority. +The patriarch combined in his person both authorities, and was in his +own household both priest and king, and so originally was in his own +tribe the chief, and in his kingdom the king. When the two offices +became separated is not known. In the time of Abraham they were still +united. Melchisedech, king of Salem, was both priest and king, and the +earliest historical records of kings present them as offering +sacrifices. Even the Roman emperor was Pontifex Maximus as well as +Imperator, but that was so not because the two offices were held to be +inseparable, but because they were both conferred on the same person by +the republic. In Egypt, in the time of Moses, the royal authority and +the priestly were separated and held by different persons. Moses, in +his legislation for his nation, separated them, and instituted a +sacerdotal order or caste. The heads of tribes and the heads of +families are, under his law, princes, but not priests, and the +priesthood is conferred on and restricted to his own tribe of Levi, and +more especially the family of his own brother Aaron. + +The priestly office by its own nature is superior to the kingly, and in +all primitive nations with a separate, organized priesthood, whether a +true priesthood or a corrupt, the priest is held to be above the king, +elects or establishes the law by which is selected the temporal chief, +and inducts him into his office, as if he received his authority from +God through the priesthood. The Christian priesthood is not a caste, +and is transmitted by the election of grace, not as with the Israelites +and all sacerdotal nations, by natural Generation. Like Him whose +priests they are, Christian priests are priests after the order of +Melchisedech, who was without priestly descent, without father or +mother of the priestly line. But in being priests after the order of +Melchisedech, they are both priests and kings, as Melchisedech was, and +as was our Lord himself, to whom was given by his Father all power in +heaven and in earth. The Pope, or Supreme Pontiff, is the vicar of our +Lord on earth, his representative--the representative not only of him +who is our invisible High-Priest, but of him who is King of kings and +Lord of lords, therefore of both the priestly and the kingly power. +Consequently, no one can have any mission to govern in the state any +more than in the church, unless derived from God directly or indirectly +through the Pope or Supreme Pontiff. Many theologians and canonists in +the Middle Ages so held, and a few perhaps hold so still. The bulls +and briefs of several Popes, as Gregory VII., Innocent Ill., Gregory +IX., Innocent IV., and Boniface VIII., have the appearance of favoring +it. + +At one period the greater part of the medieval kingdoms and +principalities were fiefs of the Holy See, and recognized the Holy +Father as their suzerain. The Pope revived the imperial dignity in the +person of Charlemagne, and none could claim that dignity in the Western +world unless elected and crowned by him, that is, unless elected +directly by the Pope or by electors designated by him, and acting under +his authority. There can be no question that the spiritual is superior +to the temporal, and that the temporal is bound in the very nature of +things to conform to the spiritual, and any law enacted by the civil +power in contravention of the law of God is null and void from the +beginning. This is what Mr. Seward meant by the higher law, a law +higher even than the Constitution of the United States. Supposing this +higher law, and supposing that kings and princes hold from God through +the spiritual society, it is very evident that the chief of that +society would have the right to deprive them, and to absolve their +subjects, as on several occasions he actually has done. + +But this theory has never been a dogma of the Church, nor, to any great +extent, except for a brief period, maintained by theologians or +canonists. The Pope conferred the imperial dignity on Charlemagne and +his successors, but not the civil power, at least out of the Pope's own +temporal dominions. The emperor of Germany was at first elected by the +Pope, and afterwards by hereditary electors designated or accepted by +him, but the king of the Germans with the full royal authority could be +elected and enthroned without the papal intervention or permission. +The suzerainty of the Holy See over Italy, Naples, Aragon, Muscovy, +England, and other European states, was by virtue of feudal relations, +not by virtue of the spiritual authority of the Holy See or the +vicarship of the Holy Father. The right to govern under feudalism was +simply an estate, or property; and as the church could acquire and hold +property, nothing prevented her holding fiefs, or her chief from being +suzerain. The expressions in the papal briefs and bulls, taken in +connection with the special relations existing between the Pope and +emperor in the Middle Ages, and his relations with other states as +their feudal sovereign, explained by the controversies concerning +rights growing out of these relations, will be found to give no +countenance to the theory in question. + +These relations really existed, and they gave the Pope certain temporal +rights in certain states, even the temporal supremacy, as he has still +in what is left him of the States of the Church; but they were +exceptional or accidental relations, not the universal and essential +relations between the church and the state. The rights that grew out +of these relations were real rights, sacred and inviolable, but only +where and while the relations subsisted. They, for the most part, grew +out of the feudal system introduced into the Roman empire by its +barbarian conquerors, and necessarily ceased with the political order +in which they originated. Undoubtedly the church consecrated civil +rulers, but this did not imply that they received their power or right +to govern from God through her; but implied that their persons were +sacred, and that violence to them would be sacrilege; that they held +the Christian faith, and acknowledged themselves bound to protect it, +and to govern their subjects justly, according to the law of God. + +The church, moreover, has always recognized the distinction of the two +powers, and although the Pope owes to the fact that he is chief of the +spiritual society, his temporal principality, no theologian or canonist +of the slightest respectability would argue that he derives his rights +as temporal sovereign from his rights as pontiff. His rights as +pontiff depend on the express appointment of God; his rights as +temporal prince are derived from the same source from which other +princes derive their rights, and are held by the same tenure. Hence +canonists have maintained that the subjects of other states may even +engage in war with the Pope as prince, without breach of their fidelity +to him as pontiff or supreme visible head of the church. + +The church not only distinguishes between the two powers, but +recognizes as legitimate, governments that manifestly do not derive +from God through her. St. Paul enjoins obedience to the Roman emperors +for conscience' sake, and the church teaches that infidels and heretics +may have legitimate government; and if she has ever denied the right of +any infidel or heretical prince, it has been on the ground that the +constitution and laws of his principality require him to profess and +protect the Catholic faith. She tolerates resistance in a non-Catholic +state no more than in a Catholic state to the prince; and if she has +not condemned and cut off from her communion the Catholics who in our +struggle have joined the Secessionists and fought in their ranks +against the United States, it is because the prevalence of the doctrine +of State sovereignty has seemed to leave a reasonable doubt whether +they were really rebels fighting against their legitimate sovereign or +not. + +No doubt, as the authority of the church is derived immediately from +God in a supernatural manner, and as she holds that the state derives +its authority only mediately from him, in a natural mode, she asserts +the superiority of her authority, and that, in case of conflict between +the two powers, the civil must yield. But this is only saying that +supernatural is above natural. But--and this is the important +point--she does not teach, nor permit the faithful to hold, that the +supernatural abrogates the natural, or in any way supersedes it. +Grace, say the theologians, supposes nature, gratia supponit naturam. +The church in the matter of government accepts the natural, aids it, +elevates it, and is its firmest support. + +VII. St. Augustine, St. Gregory Magnus, St. Thomas, Bellarmin, Suarez, +and the theologians generally, hold that princes derive their power +from God through the people, or that the people, though not the source, +are the medium of all political authority, and therefore rulers are +accountable for the use they make of their power to both God and the +people. + +This doctrine agrees with the democratic theory in vesting sovereignty +in the people, instead of the king or the nobility, a particular +individual, family, class, or caste; and differs from it, as democracy +is commonly explained, in understanding by the people, the people +collectively, not individually--the organic people, or people fixed to +a given territory, not the people as a mere population--the people in +the republican sense of the word nation, not in the barbaric or +despotic sense; and in deriving the sovereignty from God, from whom is +all power, and except from whom there is and can be no power, instead +of asserting it as the underived and indefeasible right of the people +in their "own native right and might." The people not being God, and +being only what philosophers call a second cause, they are and can be +sovereign only in a secondary and relative sense. It asserts the +divine origin of power, while democracy asserts its human origin. But +as, under the law of nature, all men are equal, or have equal rights as +men, one man has and can have in himself no right to govern another; +and as man is never absolutely his own, but always and everywhere +belongs to his Creator, it is clear that no government originating in +humanity alone can be a legitimate government. Every such government +is founded on the assumption that man is God, which is a great +mistake--is, in fact, the fundamental sophism which underlies every +error and every sin. + +The divine origin of government, in the sense asserted by Christian +theologians, is never found distinctly set forth in the political +writings of the ancient Greek and Roman writers. Gentile philosophy had +lost the tradition of creation, as some modern philosophers, in +so-called Christian nations, are fast losing it, and were as unable to +explain the origin of government as they were the origin of man himself. + +Even Plato, the profoundest of all ancient philosophers, and the most +faithful to the traditionary wisdom of the race, lacks the conception +of creation, and never gets above that of generation and formation. +Things are produced by the Divine Being impressing his own ideas, +eternal in his own mind, on a pre-existing matter, as a seal on wax. +Aristotle teaches substantially the same doctrine. Things eternally +exist as matter and form, and all the Divine Intelligence does, is to +unite the form to the matter, and change it, as the schoolmen say, from +materia informis to materia formata. Even the Christian Platonists and +Peripatetics never as philosophers assert creation; they assert it, +indeed, but as theologians, as a fact of revelation, not as a fact of +science; and hence it is that their theology and their philosophy never +thoroughly harmonize, or at least are not shown to harmonize throughout. + +Speaking generally, the ancient Gentile philosophers were pantheists, +and represented the universe either as God or as an emanation from God. +They had no proper conception of Providence, or the action of God in +nature through natural agencies, or as modern physicists say, natural +laws. If they recognized the action of divinity at all, it was a +supernatural or miraculous intervention of some god. They saw no +divine intervention in any thing naturally explicable, or explicable by +natural laws. Having no conception of the creative act, they could have +none of its immanence, or the active and efficacious presence of the +Creator in all his works, even in the action of second causes +themselves. Hence they could not assert the divine origin of +government, or civil authority, without supposing it supernaturally +founded, and excluding all human and natural agencies from its +institution. Their writings may be studied with advantage on the +constitution of the state, on the practical workings of different forms +of government, as well as on the practical administration of affairs, +but never on the origin of the state, and the real ground of its +authority. + +The doctrine is derived from Christian theology, which teaches that +there is no power except from God, and enjoins civil obedience as a +religious duty. Conscience is accountable to God alone, and civil +government, if it had only a natural or human origin, could not bind +it. Yet Christianity makes the civil law, within its legitimate +sphere, as obligatory on conscience as the divine law itself, and no +man is blameless before God who is not blameless before the state. No +man performs faithfully his religious duties who neglects his civil +duties, and hence, the law of the church allows no one to retire from +the world and enter a religious order, who has duties that bind him or +her to the family or the state; though it is possible that the law is +not always strictly observed, and that individuals sometimes enter a +convent for the sake of getting rid of those duties, or the equally +important duty of taking care of themselves. But by asserting the +divine origin of government, Christianity consecrates civil authority, +clothes it with a religious character, and makes civil disobedience, +sedition, insurrection, rebellion, revolution, civil turbulence of any +sort or degree, sins against God as well as crimes against the state. +For the same reason she makes usurpation, tyranny, oppression of the +people by civil rulers, offences against God as well as against +society, and cognizable by the spiritual authority. + +After the establishment of the Christian church, after its public +recognition, and when conflicting claims arose between the two +powers--the civil and the ecclesiastical--this doctrine of the divine +origin of civil government was abused, and turned against the church +with most disastrous consequences. While the Roman Empire of the West +subsisted, and even after its fall, so long as the emperor of the East +asserted and practically maintained his authority in the Exarchate of +Ravenna and the Duchy of Rome, the Popes comported themselves, in civil +matters, as subjects of the Roman emperor, and set forth no claim to +temporal independence. But when the emperor had lost Rome, and all his +possessions in Italy, had abandoned them, or been deprived of them by +the barbarians, and ceased to make any efforts to recover them, the +Pope was no longer a subject, even in civil matters, of the emperor, +and owed him no civil allegiance. He became civilly independent of the +Roman Empire, and had only spiritual relations with it. To the new +powers that sprang up in Europe he appears never to have acknowledged +any civil subjection, and uniformly asserted, in face of them, his +civil as well as spiritual independence. + +This civil independence the successors of Charlemagne, who pretended to +be the successors of the Roman Emperors of the West, and called their +empire the Holy Roman Empire, denied, and maintained that the Pope owed +them civil allegiance, or that, in temporals, the emperor was the +Pope's superior. If, said the emperor, or his lawyers for him, the +civil power is from God, as it must be, since non est potestas nisi a +Deo, the state stands on the same footing with the church, and the +imperial power emanates from as high a source as the Pontifical. The +emperor is then as supreme in temporals as the Pope in spirituals, and +as the emperor is subject to the pope in spirituals, so must the Pope +be subject to the emperor in temporals. As at the time when the +dispute arose, the temporal interests of churchmen were so interwoven +with their spiritual rights, the pretensions of the emperor amounted +practically to the subjection in spirituals as well as temporals of the +ecclesiastical authority to the civil, and absorbed the church in the +state, the reasoning was denied, and churchmen replied: The Pope +represents the spiritual order, which is always and everywhere supreme +over the temporal, since the spiritual order is the divine sovereignty +itself. Always and everywhere, then, is the Pope independent of the +emperor, his superior, and to subject him in any thing to the emperor +would be as repugnant to reason as to subject the soul to the body, the +spirit to the flesh, heaven to earth, or God to man. + +If the universal supremacy claimed for the Pope, rejoined the +imperialists, be conceded, the state would be absorbed in the church, +the autonomy of civil society would be destroyed, and civil rulers +would have no functions but to do the bidding of the clergy. It would +establish a complete theocracy, or, rather, clerocracy, of all possible +governments the government the most odious to mankind, and the most +hostile to social progress. Even the Jews could not, or would not, +endure it, and prayed God to give them a king, that they might be like +other nations. + +In the heat of the controversy neither party clearly and distinctly +perceived the true state of the question, and each was partly right and +partly wrong. The imperialists wanted room for the free activity of +civil society, the church wanted to establish in that society the +supremacy of the moral order, or the law of God, without which +governments can have no stability, and society no real well-being. The +real solution of the difficulty was always to be found in the doctrine +of the church herself, and had been given time and again by her most +approved theologians. The Pope, as the visible head of the spiritual +society, is, no doubt, superior to the emperor, not precisely because +he represents a superior order, but because the church, of which he is +the visible chief, is a supernatural institution, and holds immediately +from God; whereas civil society, represented by the emperor, holds from +God only mediately, through second causes, or the people. Yet, though +derived from God only through the people, civil authority still holds +from God, and derives its right from Him through another channel than +the church or spiritual society, and, therefore, has a right, a +sacredness, which the church herself gives not, and must recognize and +respect. This she herself teaches in teaching that even infidels, as +we have seen, may have legitimate government, and since, though she +interprets and applies the law of God, both natural and revealed, she +makes neither. + +Nevertheless, the imperialists or the statists insisted on their false +charge against the Pope, that he labored to found a purely theocratic +or clerocratic government, and finding themselves unable to place the +representative of the civil society on the same level with the +representative of the spiritual, or to emancipate the state from the +law of God while they conceded the divine origin or right of +government, they sought to effect its independence by asserting for it +only a natural or purely human origin. For nearly two centuries the +most popular and influential writers on government have rejected the +divine origin and ground of civil authority, and excluded God from the +state. They have refused to look beyond second causes, and have labored +to derive authority from man alone. They have not only separated the +state from the church as an external corporation, but from God as its +internal lawgiver, and by so doing have deprived the state of her +sacredness, inviolability, or hold on the conscience, scoffed at +loyalty as a superstition, and consecrated not civil authority, but +what is called "the right of insurrection." Under their teaching the +age sympathizes not with authority in its efforts to sustain itself and +protect society, but with those who conspire against it--the +insurgents, rebels, revolutionists seeking its destruction. The +established government that seeks to enforce respect for its legitimate +authority and compel obedience to the laws, is held to be despotic, +tyrannical, oppressive, and resistance to it to be obedience to God, +and a wild howl rings through Christendom against the prince that will +not stand still and permit the conspirators to cut his throat. There is +hardly a government now in the civilized world that can sustain itself +for a moment without an armed force sufficient to overawe or crush the +party or parties in permanent conspiracy against it. + +This result is not what was aimed at or desired, but it is the logical +or necessary result of the attempt to erect the state on atheistical +principles. Unless founded on the divine sovereignty, authority can +sustain itself only by force, for political atheism recognizes no right +but might. No doubt the politicians have sought an atheistical, or +what is the same thing, a purely human, basis for government, in order +to secure an open field for human freedom and activity, or individual +or social progress. The end aimed at has been good, laudable even, but +they forgot that freedom is possible only with authority that protects +it against license as well as against despotism, and that there can be +no progress where there is nothing that is not progressive. In civil +society two things are necessary--stability and movement. The human is +the element of movement, for in it are possibilities that can be only +successively actualized. But the element of stability can be found +only in the divine, in God, in whom there is no unactualized +possibility, who, therefore, is immovable, immutable, and eternal. The +doctrine that derives authority from God through the people, recognizes +in the state both of these elements, and provides alike for stability +and progress. + +This doctrine is not mere theory; it simply states the real order of +things. It is not telling what ought to be, but what is in the real +order. It only asserts for civil government the relation to God which +nature herself holds to him, which the entire universe holds to the +Creator. Nothing in man, in nature, in the universe, is explicable +without the creative act of God, for nothing exists without that act. +That God "in the beginning created heaven and earth," is the first +principle of all science as of all existences, in politics no less than +in theology. God and creation comprise all that is or exists, and +creation, though distinguishable from God as the act from the actor, is +inseparable from him, "for in Him we live and move and have our being." +All creatures are joined to him by his creative act, and exist only as +through that act they participate of his being. Through that act he is +immanent as first cause in all creatures and in every act of every +creature. The creature deriving from his creative act can no more +continue to exist than it could begin to exist without it. It is as +bad philosophy as theology, to suppose that God created the universe, +endowed it with certain laws of development or activity, wound it up, +gave it a jog, set it agoing, and then left it to go of itself. It +cannot go of itself, because it does not exist of itself. It did not +merely not begin to exist, but it cannot continue to exist, without the +creative act. Old Epicurus was a sorry philosopher, or rather, no +philosopher at all. Providence is as necessary as creation, or rather, +Providence is only continuous creation, the creative act not suspended +or discontinued, or not passing over from the creature and returning to +God. + +Through the creative act man participates of God, and he can continue +to exist, act, or live only by participating through it of his divine +being. There is, therefore, something of divinity, so to speak, in +every creature, and therefore it is that God is worshipped in his works +without idolatry. But he creates substantial existences capable of +acting as second causes. Hence, in all living things there is in their +life a divine element and a natural element; in what is called human +life, there are the divine and the human, the divine as first and the +human as second cause, precisely what the doctrine of the great +Christian theologians assert to be the fact with all legitimate or real +government. Government cannot exist without the efficacious presence +of God any more than man himself, and men might as well attempt to +build up a world as to attempt to found a state without God. A +government founded on atheistical principles were less than a castle in +the air. It would have nothing to rest on, would not be even so much +as "the baseless fabric of a vision," and they who imagine that they +really do exclude God from their politics deceive themselves; for they +accept and use principles which, though they know it not, are God. +What they call abstract principles, or abstract forms of reason, +without which there were no logic, are not abstract, but the real, +living God himself. Hence government, like man himself, participates of +the divine being, and, derived from God through the people, it at the +same time participates of human reason and will, thus reconciling +authority with freedom, and stability with progress. + +The people, holding their authority from God, hold it not as an +inherent right, but as a trust from Him, and are accountable to Him for +it. It is not their own. If it were their own they might do with it +as they pleased, and no one would have any right to call them to an +account; but holding it as a trust from God, they are under his law, +and bound to exercise it as that law prescribes. Civil rulers, holding +their authority from God through the people, are accountable for it +both to Him and to them. If they abuse it they are justiciable by the +people and punishable by God himself. + +Here is the guaranty against tyranny, oppression, or bad government, or +what in modern times is called the responsibility of power. At the +same time the state is guarantied against sedition, insurrection, +rebellion, revolution, by the elevation of the civic virtues to the +rank of religious, virtues, and making loyalty a matter of conscience. +Religion is brought to the aid of the state, not indeed as a foreign +auxiliary, but as integral in the political order itself. Religion +sustains the state, not because it externally commands us to obey the +higher powers, or to be submissive to the powers that be, not because +it trains the people to habits of obedience, and teaches them to be +resigned and patient under the grossest abuses of power, but because it +and the state are in the same order, and inseparable, though distinct, +parts of one and the same whole. The church and the state, as +corporations or external governing bodies, are indeed separate in their +spheres, and the church does not absorb the state, nor does the state +the church; but both are from God, and both work to the same end, and +when each is rightly understood there is no antithesis or antagonism +between them. Men serve God in serving the state as directly as in +serving the church. He who dies on the battle-field fighting for his +country ranks with him who dies at the stake for his faith. Civic +virtues are themselves religious virtues, or at least virtues without +which there are no religious virtues, since no man who loves not his +brother does or can love God. + +The guaranties offered the state or authority are ample, because it has +not only conscience, moral sentiment, interest, habit, and the via +inertia of the mass, but the whole physical force of the nation, at its +command. The individual has, indeed, only moral guaranties against the +abuse of power by the sovereign people, which may no doubt sometimes +prove insufficient. But moral guaranties are always better than none, +and there are none where the people are held to be sovereign in their +own native right and might, organized or unorganized, inside or outside +of the constitution, as most modern democratic theorists maintain; +since, if so, the will of the people, however expressed, is the +criterion of right and wrong, just and unjust, true and false, is +infallible and impeccable, and no moral right can ever be pleaded +against it; they are accountable to nobody, and, let them do what they +please, they can do no wrong. This would place the individual at the +mercy of the state, and deprive him of all right to complain, however +oppressed or cruelly treated. This would establish the absolute +despotism of the state, and deny every thing like the natural rights of +man, or individual and personal freedom, as has already been shown. +Now as men do take part in government, and as men, either individually +or collectively, are neither infallible nor impeccable, it is never to +be expected, under any possible constitution or form of government, +that authority will always be wisely and justly exercised, that wrong +will ever be done, and the rights of individuals never in any instance +be infringed; but with the clear understanding that all power is of +God, that the political sovereignty is vested in the people or the +collective body, that the civil rulers hold from God through them and +are responsible to Him through them, and justiciable by them, there is +all the guaranty against the abuse of power by the nation, the +political or organic people, that the nature of the case admits. The +nation may, indeed, err or do wrong, but in the way supposed you get in +the government all the available wisdom and virtue the nation has, and +more is never, under any form or constitution of government, +practicable or to be expected. + +It is a maxim with constitutional statesmen, that "the king reigns, not +governs." The people, though sovereign under God, are not the +government. The government is in their name and by virtue of authority +delegated from God through them, but they are not it, are not their own +ministers. It is only when the people forget this and undertake to be +their own ministers and to manage their own affairs immediately by +themselves instead of selecting agents to do it for them, and holding +their agents to a strict account for their management, that they are +likely to abuse their power or to sanction injustice. The nation may +be misled or deceived for a moment by demagogues, those popular +courtiers, but as a rule it is disposed to be just and to respect all +natural rights. The wrong is done by individuals who assume to speak +in their name, to wield their power, and to be themselves the state. +L'etat, c'est moi. I am the state, said Louis XIV. of France, and while +that was conceded the French nation could have in its government no +more wisdom or virtue than he possessed, or at least no more than he +could appreciate. And under his government France was made responsible +for many deeds that the nation would never have sanctioned, if it bad +been recognized as the depositary of the national sovereignty, or as +the French state, and answerable to God for the use it made of +political power, or the conduct of its government. + +But be this as it may, there evidently can be no physical force in the +nation to coerce the nation itself in case it goes wrong, for if the +sovereignty vests in the nation, only the nation can rightly command or +authorize the employment of force, and all commissions must run in its +name. Written constitutions alone will avail little, for they emanate +from the people, who can disregard them, if they choose, and alter or +revoke them at will. The reliance for the wisdom and justice of the +state must after all be on moral guaranties. In the very nature of the +case there are and can be no other. But these, placed in a clear +light, with an intelligent and religious people, will seldom be found +insufficient. Hence the necessity for the protection, not of authority +simply or chiefly, but of individual rights and the liberty of religion +and intelligence in the nation, of the general understanding that the +nation holds its power to govern as a trust from God, and that to God +through the people all civil rulers are strictly responsible. Let the +mass of the people in any nation lapse into the ignorance and barbarism +of atheism, or lose themselves in that supreme sophism called +pantheism, the grand error of ancient as well as of modern gentilism, +and liberty, social or political, except that wild kind of liberty, and +perhaps not even that should be excepted, which obtains among savages, +would be lost and irrecoverable. + +But after all, this theory does not meet all the difficulties of the +case. It derives sovereignty from God, and thus asserts the divine +origin of government in the sense that the origin of nature is divine; +it derives it from God through the people, collectively, or as society, +and therefore concedes it a natural, human, and social element, which +distinguishes it from pure theocracy. It, however, does not explain +how authority comes from God to the people. The ruler, king, prince, +or emperor, holds from God through the people, but how do the people +themselves hold from God? Mediately or immediately? If mediately, +what is the medium? Surely not the people themselves. The people can +no more be the medium than the principle of their own sovereignty. If +immediately, then God governs in them as he does in the church, and no +man is free to think or act contrary to popular opinion, or in any case +to question the wisdom or justice of any of the acts of the state, +which is arriving at state absolutism by another process. Besides, +this would theoretically exclude all human or natural activity, all +human intelligence and free-will from the state, which were to fall +into either pantheism or atheism. + +VIII. The right of government to govern, or political authority, is +derived by the collective people or society, from God through the law +of nature. Rulers hold from God through the people or nation, and the +people or nation hold from God through the natural law. How nations +are founded or constituted, or a particular people becomes a sovereign +political people, invested with the rights of society, will be +considered in following chapters. Here it suffices to say that +supposing a political people or nation, the sovereignty vests in the +community, not supernaturally, or by an external supernatural +appointment, as the clergy hold their authority, but by the natural +law, or law by which God governs the whole moral creation. + +They who assert the origin of government in nature are right, so far as +they derive it from God through the law of nature, and are wrong only +when they understand by the law of nature the physical force or forces +of nature, which are not laws in the primary and proper sense of the +term. The law of nature is not the order or rule of the divine action +in nature which is rightfully called providence, but is, as has been +said, law in its proper and primary sense, ordained by the Author of +nature, as its sovereign and supreme Lawgiver, and binds all of his +creatures who are endowed with reason and free-will, and is called +natural, because promulgated through the reason common to all men. +Undoubtedly, it was in the first instance, to the first man, +supernaturally promulgated, as it is republished and confirmed by +Christianity, as an integral part of the Christian code itself. Man +needs even yet instruction in relation to matters lying within the +range of natural reason, or else secular schools, colleges, and +universities would be superfluous, and manifestly the instructor of the +first man could have been only the Creator himself. + +The knowledge of the natural law has been transmitted from Adam to us +through two channels--reason, which is in every man, and in immediate +relation with the Creator, and the traditions of the primitive +instruction embodied in language and what the Romans call jus gentium, +or law common to all civilized nations. Under this law, whose +prescriptions are promulgated through reason and embodied in universal +jurisprudence, nations are providentially constituted, and invested +with political sovereignty; and as they are constituted under this law +and hold from God through it, it defines their respective rights and +powers, their limitation and their extent. + +The political sovereignty, under the law of nature, attaches to the +people, not individually, but collectively, as civil or political +society. It is vested in the political community or nation, not in an +individual, or family, or a class, because, under the natural law, all +men are equal, as they are under the Christian law, and one man has, in +his own right, no authority over another. The family has in the father +a natural chief, but political society has no natural chief or chiefs. +The authority of the father is domestic, not political, and ceases when +his children have attained to majority, have married and become heads +of families themselves, or have ceased to make part of the paternal +household. The recognition of the authority of the father beyond the +limits of his own household, is, if it ever occurs, by virtue of the +ordinance, the consent, express or tacit, of the political society. +There are no natural-born political chiefs, and wherever we find men +claiming or acknowledged to be such, they are either usurpers, what the +Greeks called tyrants, or they are made such by the will or +constitution of the people or the nation. + +Both monarchy and aristocracy were, no doubt, historically developed +from the authority of the patriarchs, and have unquestionably been +sustained by an equally false development of the right of property, +especially landed property. The owner of the land, or he who claimed +to own it, claimed as an incident of his ownership the right to govern +it, and consequently to govern all who occupied it. But however valid +may be the landlord's title to the soil, and it is doubtful if man can +own any thing in land beyond the usufruct, it can give him under the +law of nature no political right. Property, like all natural rights, +is entitled by the natural law to protection, but not to govern. +Whether it shall be made a basis of political power or not is a +question of political prudence, to be determined by the supreme +political authority. It was the basis, and almost exclusive basis, in +the Middle Ages, under feudalism, and is so still in most states. +France and the United States are the principal exceptions in +Christendom. Property alone, or coupled with birth, is made elsewhere +in some form a basis of political power, and where made so by the +sovereign authority, it is legitimate, but not wise nor desirable; for +it takes from the weak and gives to the strong. The rich have in their +riches advantages enough over the poor, without receiving from the +state any additional advantage. An aristocracy, in the sense of +families distinguished by birth, noble and patriotic services, wealth, +cultivation, refinement, taste, and manners, is desirable in every +nation, is a nation's ornament, and also its chief support, but they +need and should receive no political recognition. They should form no +privileged class in the state or political society. + + + + +CHAPTER VII + +CONSTITUTION OF GOVERNMENT. + + +The Constitution is twofold: the constitution of the state or nation, +and the constitution of the government. The constitution of the +government is, or is held to be, the work of the nation itself; the +constitution of the state, or the people of the state, is, in its +origin at least, providential, given by God himself, operating through +historical events or natural causes. The one originates in law, the +other in historical fact. The nation must exist, and exist as a +political community, before it can give itself a constitution; and no +state, any more than an individual, can exist without a constitution of +some sort. + +The distinction between the providential constitution of the people and +the constitution of the government, is not always made. The +illustrious Count de Maistre, one of the ablest political philosophers +who wrote in the last century, or the first quarter of the present, in +his work on the Generative Principle of Political Constitutions, +maintains that constitutions are generated, not made, and excludes all +human agency from their formation and growth. Disgusted with French +Jacobinism, from which he and his kin and country had suffered so much, +and deeply wedded to monarchy in both church and state, he had the +temerity to maintain that God creates expressly royal families for the +government of nations, and that it is idle for a nation to expect a +good government without a king who has descended from one of those +divinely created royal families. It was with some such thought, most +likely, that a French journalist, writing home from the United States, +congratulated the American people on having a Bonaparte in their army, +so that when their democracy failed, as in a few years it was sure to +do, they would have a descendant of a royal house to be their king or +emperor. Alas! the Bonaparte has left us, and besides, he was not the +descendant of a royal house, and was, like the present Emperor of the +French, a decided parvenu. Still, the Emperor of the French, if only a +parvenu, bears himself right imperially among sovereigns, and has no +peer among any of the descendants of the old royal families of Europe. + +There is a truth, however, in De Maistre's doctrine that constitutions +are generated, or developed, not created de novo, or made all at once. +But nothing is more true than that a nation can alter its constitution +by its own deliberate and voluntary action, and many nations have done +so, and sometimes for the better, as well as for the worse. If the +constitution once given is fixed and unalterable, it must be wholly +divine, and contain no human element, and the people have and can have +no hand in their own government--the fundamental objection to the +theocratic constitution of society. To assume it is to transfer to +civil society, founded by the ordinary providence of God, the +constitution of the church, founded by his gracious or supernatural +providence, and to maintain that the divine sovereignty governs in +civil society immediately and supernaturally, as in the spiritual +society. But such is not the fact. God governs the nation by the +nation itself, through its own reason and free-will. De Maistre is +right only as to the constitution the nation starts with, and as to the +control which that constitution necessarily exerts over the +constitutional changes the nation can successfully introduce. + +The disciples of Jean Jacques Rousseau recognize no providential +constitution, and call the written instrument drawn up by a convention +of sovereign individuals the constitution, and the only constitution, +both of the people and the government. Prior to its adoption there is +no government, no state, no political community or authority. +Antecedently to it the people are an inorganic mass, simply +individuals, without any political or national solidarity. These +individuals, they suppose, come together in their own native right and +might, organize themselves into a political community, give themselves +a constitution, and draw up and vote rules for their government, as a +number of individuals might meet in a public hall and resolve +themselves into a temperance society or a debating club. This might do +very well if the state were, like the temperance society or debating +club, a simple voluntary association, which men are free to join or not +as they please, and which they are bound to obey no farther and no +longer than suits their convenience. But the state is a power, a +sovereignty; speaks to all within its jurisdiction with an imperative +voice; commands, and may use physical force to compel obedience, when +not voluntarily yielded. Men are born its subjects, and no one can +withdraw from it without its express or tacit permission, unless for +causes that would justify resistance to its authority. The right of +subjects to denationalize or expatriate themselves, except to escape a +tyranny or an oppression which would forfeit the rights of power and +warrant forcible resistance to it, does not exist, any more than the +right of foreigners to become citizens, unless by the consent and +authorization of the sovereign; for the citizen or subject belongs to +the state, and is bound to it. + +The solidarity of the individuals composing the population of a +territory or country under one political head is a truth; but "the +solidarity of peoples," irrespective of the government or political +authority of their respective countries, so eloquently preached a few +years since by the Hungarian Kossuth, is not only a falsehood, but a +falsehood destructive of all government and of all political +organization. Kossuth's doctrine supposes the people, or the +populations of all countries, are, irrespective of their governments, +bound together in solido, each for all and all for each, and therefore +not only free, but bound, wherever they find a population struggling +nominally for liberty against its government, to rush with arms in +their hands to its assistance--a doctrine clearly incompatible with any +recognition of political authority or territorial rights. Peoples or +nations commune with each other only through the national authorities, +and when the state proclaims neutrality or non-intervention, all its +subjects are bound to be neutral, and to abstain from all intervention +on either side. There may be, and indeed there is, a solidarity, more +or less distinctly recognized, of Christian nations, but of the +populations with and through their governments, not without them. +Still more strict is the solidarity of all the individuals of one and +the same nation. These are all bound together, all for each and each +for all. The individual is born into society and under the government, +and without the authority of the government, which represents all and +each, he cannot release himself from his obligations. The state is +then by no means a voluntary association. Every one born or adopted +into it is bound to it, and cannot without its permission withdraw from +it, unless, as just said, it is manifest that he can have under it no +protection for his natural rights as a man, more especially for his +rights of conscience. This is Vattel's doctrine, and the dictate of +common sense. + +The constitution drawn up, ordained, and established by a nation for +itself is a law--the organic or fundamental law, if you will, but a +law, and is and must be the act of the sovereign power. That sovereign +power must exist before it can act, and it cannot exist, if vested in +the people or nation, without a constitution, or without some sort of +political organization of the people or nation. There must, then, be +for every state or nation a constitution anterior to the constitution +which the nation gives itself, and from which the one it gives itself +derives all its vitality and legal force. + +Logic and historical facts are here, as elsewhere, coincident, for +creation and providence are simply the expression of the Supreme Logic, +the Logos, by whom all things are made. Nations have originated in +various ways, but history records no instance of a nation existing as +an inorganic mass organizing itself into a political community. Every +nation, at its first appearance above the horizon, is found to have an +organization of some sort. This is evident from the only ways in which +history shows us nations originating. These ways are: 1. The union of +families in the tribe. 2. The union of tribes in the nation. 3. The +migration of families, tribes, or nations in search of new settlements. +4. Colonization, military, agricultural, commercial, industrial, +religious, or penal. 5. War and conquest. 6. The revolt, separation, +and independence of provinces. 7. The intermingling of the conquerors +and conquered, and by amalgamation forming a new people. These are all +the ways known to history, and in none of these ways does a people, +absolutely destitute of all organization, constitute itself a state, +and institute and carry on civil government. + +The family, the tribe, the colony are, if incomplete, yet incipient +states, or inchoate nations, with an organization, individuality, and a +centre of social life of their own. The families and tribes that +migrate in search of new settlements carry with them their family and +tribal organizations, and retain it for a long time. The Celtic tribes +retained it in Gaul till broken up by the Roman conquest, under Caesar +Augustus; in Ireland, till the middle of the seventeenth century; and +in Scotland, till the middle of the eighteenth. It subsists still in +the hordes of Tartary, the Arabs of the Desert, and the Berbers or +Kabyles of Africa. + +Colonies, of whatever description, have been founded, if not by, at +least under, the authority of the mother country, whose political +constitution, laws, manners, and customs they carry with them. They +receive from the parent state a political organization, which, though +subordinate, yet constitutes them embryonic states, with a unity, +individuality, and centre of public life in themselves, and which, when +they are detached and recognized as independent, render them complete +states. War and conquest effect great national changes, but do not, +strictly speaking, create new states. They simply extend and +consolidate the power of the conquering state. + +Provinces revolt and become independent states or nations, but only +when they have previously existed as such, and have retained the +tradition of their old constitution and independence; or when the +administration has erected them into real though dependent political +communities. A portion of the people of a state not so erected or +organized, that has in no sense had a distinct political existence of +its own, has never separated from the national body and formed a new +and independent nation. It cannot revolt; it may rise up against the +government, and either revolutionize and take possession of the state, +or be put down by the government as an insurrection. The amalgamation +of the conquering and the conquered forms a new people, and modifies +the institutions of both, but does not necessarily form a new nation or +political community. The English of to-day are very different from +both the Normans and the Saxons, or Dano-Saxons, of the time of Richard +Coeur de Lion, but they constitute the same state or political +community. England is still England. + +The Roman empire, conquered by the Northern barbarians, has been cut up +into several separate and independent nations, but because its several +provinces had, prior to their conquest by the Roman arms, been +independent nations or tribes, and more especially because the +conquerors themselves were divided into several distinct nations or +confederacies. If the barbarians had been united in a single nation or +state, the Roman empire most likely would have changed masters, indeed, +but have retained its unity and its constitution, for the Germanic +nations that finally seated themselves on its ruins had no wish to +destroy its name or nationality, for they were themselves more than +half Romanized before conquering Rome. But the new nations into which +the empire has been divided have never been, at any moment, without +political or governmental organization, continued from the constitution +of the conquering tribe or nation, modified more or less by what was +retained from the empire. + +It is not pretended that the constitutions of states cannot be altered, +or that every people starts with a constitution fully developed, as +would seem to be the doctrine of De Maistre. The constitution of the +family is rather economical than political, and the tribe is far from +being a fully developed state. Strictly speaking, the state, the modern +equivalent for the city of the Greeks and Romans, was not fully formed +till men began to build and live in cities, and became fixed to a +national territory. But in the first place, the eldest born of the +human race, we are told, built a city, and even in cities we find +traces of the family and tribal organization long after their municipal +existence--in Athens down to the Macedonian conquest, and in Rome down +to the establishment of the Empire; and, in the second place, the +pastoral nations, though they have not precisely the city or state +organization, yet have a national organization, and obey a national +authority. Strictly speaking, no pastoral nation has a civil or +political constitution, but they have what in our modern tongues can be +expressed by no other term. The feudal regime, which was in full vigor +even in Europe from the tenth to the close of the fourteenth century, +had nothing to do with cities, and really recognized no state proper; +yet who hesitates to speak of it as a civil or political system, though +a very imperfect one? + +The civil order, as it now exists, was not fully developed in the early +ages. For a long time the national organizations bore unmistakable +traces of having been developed from the patriarchal, and modelled from +the family or tribe, as they do still in all the non-Christian world. +Religion itself, before the Incarnation, bore traces of the same +organization. Even with the Jews, religion was transmitted and +diffused, not as under Christianity by conversion, but by natural +generation or family adoption. With all the Gentile tribes or nations, +it was the same. At first the father was both priest and king, and when +the two offices were separated, the priests formed a distinct and +hereditary class or caste, rejected by Christianity, which, as we have +seen, admits priests only after the order of Melchisedech. The Jews had +the synagogue, and preserved the primitive revelation in its purity and +integrity; but the Greeks and Romans, more fully than any other ancient +nations, preserved or developed the political order that best conforms +to the Christian religion; and Christianity, it is worthy of remark, +followed in the track of the Roman armies, and it gains a permanent +establishment only where was planted, or where it is able to plant, the +Graeco-Roman civilization. The Graeco-Roman republics were hardly less +a schoolmaster to bring the world to Christ in the civil order, than +the Jewish nation was to bring it to Him in the spiritual order, or in +faith and worship. In the Christian order nothing is by hereditary +descent, but every thing is by election of grace. The Christian +dispensation is teleological, palingenesiac, and the whole order, prior +to the Incarnation, was initial, genesiac, and continued by natural +generation, as it is still in all nations and tribes outside of +Christendom. No non-Christian people is a civilized people, and, +indeed, the human race seems not anywhere, prior to the Incarnation, to +have attained to its majority: and it is, perhaps, because the race +were not prepared for it, that the Word was not sooner incarnated. He +came only in the fulness of time, when the world was ready to receive +him. + +The providential constitution is, in fact, that with which the nation +is born, and is, as long as the nation exists, the real living and +efficient constitution of the state. It is the source of the vitality +of the state, that which controls or governs its action, and determines +its destiny. The constitution which a nation is said to give itself, +is never the constitution of the state, but is the law ordained by the +state for the government instituted under it. Thomas Paine would admit +nothing to be the constitution but a written document which he could +fold up and put in his pocket, or file away in a pigeon-hole. The Abbe +Sieyes pronounced politics a science which he had finished, and he was +ready to turn you out constitutions to order, with no other defect than +that they had, as Carlyle wittily says, no feet, and could not go. +Many in the last century, and some, perhaps, in the present, for folly +as well as wisdom has her heirs, confounded the written instrument with +the constitution itself. No constitution can be written on paper or +engrossed on parchment. What the convention may agree upon, draw up, +and the people ratify by their votes, is no constitution, for it is +extrinsic to the nation, not inherent and living in it--is, at best, +legislative instead of constitutive. The famous Magna Charta drawn up +by Cardinal Langton, and wrung from John Lackland by the English barons +at Runnymede, was no constitution of England till long after the date +of its concession, and even then was no constitution of the state, but +a set of restrictions on power. The constitution is the intrinsic or +inherent and actual constitution of the people or political community +itself; that which makes the nation what it is, and distinguishes it +from every other nation, and varies as nations themselves vary from one +another. + +The constitution of the state is not a theory, nor is it drawn up and +established in accordance with any preconceived theory. What is +theoretic in a constitution is unreal. The constitutions conceived by +philosophers in their closets are constitutions only of Utopia or +Dreamland. This world is not governed by abstractions, for +abstractions are nullities. Only the concrete is real, and only the +real or actual has vitality or force. The French people adopted +constitution after constitution of the most approved pattern, and amid +bonfires, beating of drums, sound of trumpets, roar of musketry, and +thunder of artillery, swore, no doubt, sincerely as well as +enthusiastically, to observe them, but all to no effect; for they had +no authority for the nation, no hold on its affections, and formed no +element of its life. The English are great constitution-mongers--for +other nations. They fancy that a constitution fashioned after their own +will fit any nation that can be persuaded, wheedled, or bullied into +trying it on; but, unhappily, all that have tried it on have found it +only an embarrassment or encumbrance. The doctor might as well attempt +to give an individual a new constitution, or the constitution of +another man, as the statesman to give a nation any other constitution +than that which it has, and with which it is born. + +The whole history of Europe, since the fall of the Roman empire, proves +this thesis. The barbarian conquest of Rome introduced into the +nations founded on the site of the empire, a double constitution--the +barbaric and the civil--the Germanic and the Roman in the West, and the +Tartaric or Turkish and the Graeco-Roman in the East. The key to all +modern history is in the mutual struggles of these two constitutions +and the interests respectively associated with them, which created two +societies on the same territory, and, for the most part, under the same +national denomination. The barbaric was the constitution of the +conquerors; they had the power, the government, rank, wealth, and +fashion, were reinforced down to the tenth century by fresh hordes of +barbarians, and had even brought the external ecclesiastical society to +a very great extent into harmony with itself. The Pope became a feudal +sovereign, and the bishops and mitred abbots feudal princes and barons. +Yet, after eight hundred years of fierce struggle, the Roman +constitution got the upper hand, and the barbaric constitution, as far +as it could not be assimilated to the Roman, was eliminated. The +original Empire of the West is now as thoroughly Roman in its +constitution, its laws, and its civilization, as it ever was under any +of its Christian emperors before the barbarian conquest. + +The same process is going on in the East, though it has not advanced so +far, having begun there several centuries later, and the Graeco-Roman +constitution was far feebler there than in the West at the epoch of the +conquest. The Germanic tribes that conquered the West had long had +close relations with the empire, had served as its allies, and even in +its armies, and were partially Romanized. Most of their chiefs had +received a Roman culture; and their early conversion to the Christian +faith facilitated the revival and permanence of the old Roman +constitution. In the East it was different. The conquerors had no +touch of Roman civilization, and, followers of the Prophet, they were +animated with an intense hatred, which, after the conquest, was changed +into a superb contempt, of Christians and Romans. They had their civil +constitution in the Koran; and the Koran, in its principles, doctrines, +and spirit, is exclusive and profoundly intolerant. The Graeco-Roman +constitution was always much weaker in the East, and had far greater +obstacles to overcome there than in the West; yet it has survived the +shock of the conquest. Throughout the limits of the ancient Empire of +the East, the barbaric constitution has received and is daily receiving +rude blows, and, but as reenforced by barbarians lying outside of the +boundaries of that empire, would be no longer able to sustain itself. +The Greek or Christian populations of the empire are no longer in +danger of being exterminated or absorbed by the Mohammedan state or +population. They are the only living and progressive people of the +Ottoman Empire, and their complete success in absorbing or expelling +the Turk is only a question of time. They will, in all present +probability, reestablish a Christian and Roman East in much less time +from the fall of Constantinople in 1453, than it took the West from the +fall of Rome in 476 to put an end to the feudal or barbaric +constitution founded by its Germanic invaders. + +Indeed, the Roman constitution, laws, and civilization not only gain +the mastery in the nations seated within the limits of the old Roman +Empire, but extend their power through out the whole civilized world. +The Graeco-Roman civilization is, in fact, the only civilization now +recognized, and nations are accounted civilized only in proportion as +they are Romanized and Christianized. The Roman law, as found in the +Institutes, Pandects, and Novellae of Justinian, or the Corpus Legis +Civilis, is the basis of the law and jurisprudence of all Christendom. +The Graeco-Roman civilization, called not improperly Christian +civilization, is the only progressive civilization. The old feudal +system remains in England little more than an empty name. The king is +only the first magistrate of the kingdom, and the House of Lords is +only an hereditary senate. Austria is hard at work in the Roman +direction, and finds her chief obstacle to success in Hungary, with the +Magyars whose feudalism retains almost the full vigor of the Middle +Ages. Russia is moving in the same direction; and Prussia and the +smaller Germanic states obey the same impulse. Indeed, Rome has +survived the conquest--has conquered her conquerors, and now invades +every region from which they came. The Roman Empire may be said to be +acknowledged and obeyed in lands lying far beyond the farthest limits +reached by the Roman eagles, and to be more truly the mistress of the +world than under Augustus, Trajan, or the Antonines. Nothing can stand +before the Christian and Romanized nations, and all pagandom and +Mohammedom combined are too weak to resist their onward march. + +All modern European revolutions result only in reviving the Roman +Empire, whatever the motives, interests, passions, or theories that +initiate them. The French Revolution of the last century and that of +the present prove it. France, let people say what they will, stands at +the head of the European civilized world, and displays en grand all its +good and all its bad tendencies. When she moves, Europe moves; when she +has a vertigo, all European nations are dizzy; when she recovers her +health, her equilibrium, and good sense, others become sedate, steady, +and reasonable. She is the head, nay, rather, the heart of +Christendom--the head is at Rome--through which circulates the pure and +impure blood of the nations. It is in vain Great Britain, Germany, or +Russia disputes with her the hegemony of European civilization. They +are forced to yield to her at last, to be content to revolve around her +as the centre of the political system that masters them. The reason +is, France is more completely and sincerely Roman than any other +nation. The revolutions that have shaken the world have resulted in +eliminating the barbaric elements she had retained, and clearing away +all obstacles to the complete triumph of Imperial Rome. Napoleon III. +is for France what Augustus was for Rome. The revolutions in Spain and +Italy have only swept away the relics of the barbaric constitution, and +aided the revival of Roman imperialism. In no country do the +revolutionists succeed in establishing their own theories; Caesar +remains master of the field. Even in the United States, a revolution +undertaken in favor of the barbaric system has resulted in the +destruction of what remained of that system--in sweeping away the last +relics of disintegrating feudalism, and in the complete establishment +of the Graeco-Roman system, with important improvements, in the New +World. + +The Roman system is republican, in the broad sense of the term, because +under it power is never an estate, never the private for the public +good. As it existed under the Caesars, and is revived in modern times, +whether under the imperial or the democratic form, it, no doubt, tends +to centralism, to the concentration of all the powers and forces of the +state in one central government, from which all local authorities and +institutions emanate. Wise men oppose it as affording no guaranties to +individual liberty against the abuses of power. This it may not do, but +the remedy is not in feudalism. The feudal lord holds his authority as +an estate, and has over the people under him all the power of Caesar +and all the rights of the proprietor. He, indeed, has a guaranty +against his liege-lord, sometimes a more effective guaranty than his +liege-lord has against him; but against his centralized power his +vassals and serfs have only the guaranty that a slave has against his +owner. + +Feudalism is alike hostile to the freedom of public authority and of +the people. It is essentially a disintegrating element in the nation. +It breaks the unity and individuality of the state, embarrasses the +sovereign, and guards against the abuse of public authority by +overpowering and suppressing it. Every feudal lord is a more thorough +despot in his own domain than Caesar ever was or could be in the +empire; and the monarch, even if strong enough, is yet not competent to +intervene between him and his people, any more than the General +government in the United States was to intervene between the negro +slave and his master. The great vassals of the crown singly, or, if +not singly, in combination--and they could always combine in the +interest of their order--were too strong for the king, or to be brought +under any public authority, and could issue from their fortified +castles and rob and plunder to their hearts' content, with none to call +them to an account. Under the most thoroughly centralized government +there is far more liberty for the people, and a far greater security +for person and property, except in the case of the feudal nobles +themselves, than was even dreamed of while the feudal regime was in +full vigor. Nobles were themselves free, it is conceded, but not the +people. The king was too weak, too restricted in his action by the +feudal constitution to reach them, and the higher clergy were ex +officio sovereigns, princes, barons, or feudal lords, and were led by +their private interests to act with the feudal nobility, save when that +nobility threatened the temporalities of the church. The only reliance, +under God, left in feudal times to the poor people was in the lower +ranks of the clergy, especially of the regular clergy. All the great +German emperors in the twelfth and thirteenth centuries, who saw the +evils of feudalism, and attempted to break it up and revive imperial +Rome, became involved in quarrels with the chiefs of the religious +society, and failed, because the interest of the Popes, as feudal +sovereigns and Italian princes, and the interests of the dignified +clergy, were for the time bound up with the feudal society, though +their Roman culture and civilization made them at heart hostile to it. +The student of history, however strong his filial affection towards the +visible head of the church, cannot help admiring the grandeur of the +political views of Frederic the Second, the greatest and last of the +Hohenstaufen, or refrain from dropping a tear over his sad failure. He +had great faults as a man, but he had rare genius as a statesman; and +it is some consolation to know that he died a Christian death, in +charity with all men, after having received the last sacraments of his +religion. + +The Popes, under the circumstances, were no doubt justified in the +policy they pursued, for the Swabian emperors failed to respect the +acknowledged rights of the church, and to remember their own +incompetency in spirituals; but evidently their political views and +aims were liberal, far-reaching, and worthy of admiration. Their +success, if it could have been effected without lesion to the church, +would have set Europe forward some two or three hundred years, and +probably saved it from the schisms of the fourteenth and sixteenth +centuries. But it is easy to be wise after the event. The fact is, +that during the period when feudalism was in full vigor, the king was +merely a shadow; the people found their only consolation in religion, +and their chief protectors in the monks, who mingled with them, saw +their sufferings, and sympathized with them, consoled them, carried +their cause to the castle before the feudal lord and lady, and did, +thank God, do something to keep alive religious sentiments and +convictions in the bosom of the feudal society itself. Whatever +opinions may be formed of the monastic orders in relation to the +present, this much is certain, that they were the chief civilizers of +Europe, and the chief agents in delivering European society from feudal +barbarism. + +The aristocracy have been claimed as the natural allies of the throne, +but history proves them to be its natural enemies, whenever it cannot +be used in their service, and kings do not consent to be their +ministers and to do their bidding. A political aristocracy has at +heart only the interests of its order, and pursues no line of policy +but the extension or preservation of its privileges. Having little to +gain and much to lose, it opposes every political change that would +either strengthen the crown or elevate the people. The nobility in the +French Revolution were the first to desert both the king and the +kingdom, and kings have always found their readiest and firmest allies +in the people. The people in Europe have no such bitter feelings +towards royalty as they have towards the feudal nobility--for kings +have never so grievously oppressed them. In Rome the patrician order +opposed alike the emperor and the people, except when they, as +chivalric nobles sometimes will do, turned courtiers or demagogues. +They were the people of Rome and the provinces that sustained the +emperors, and they were the emperors who sustained the people, and gave +to the provincials the privileges of Roman citizens. + +Guaranties against excessive centralism are certainly needed, but the +statesman will not seek them in the feudal organization of society--in +a political aristocracy, whether founded on birth or private wealth, +nor in a privileged class of any sort. Better trust Caesar than +Brutus, or even Cato. Nor will he seek them in the antagonism of +interests intended to neutralize or balance each other, as in the +English constitution. This was the great error of Mr. Calhoun. No man +saw more clearly than Mr. Calhoun the utter worthlessness of simple +paper constitutions, on which Mr. Jefferson placed such implicit +reliance, or that the real constitution is in the state itself, in the +manner in which the people themselves are organized; but his reliance +was in constituting, as powers in the state, the several popular +interests that exist, and pitting them against each other--the famous +system of checks and balances of English states men. He was led to +this, because he distrusted power, and was more intention guarding +against its abuses than on providing for its free, vigorous, and +healthy action, going on the principle that "that is the best +government which governs least." But, if the opposing interests could +be made to balance one another perfectly, the result would be an +equilibrium, in which power would be brought to a stand-still; and if +not, the stronger would succeed and swallow up all the rest. The +theory of checks and balances is admirable if the object be to trammel +power, and to have as little power in the government as possible; but +it is a theory which is born from passions engendered by the struggle +against despotism or arbitrary power, not from a calm and philosophical +appreciation of government itself. The English have not succeeded in +establishing their theory, for, after all, their constitution does not +work so well as they pretend. The landed interest controls at one +time, and the mercantile and manufacturing interest at another. They +do not perfectly balance one another, and it is not difficult to see +that the mercantile and manufacturing interest, combined with the +moneyed interest, is henceforth to predominate. The aim of the real +statesman is to organize all the interests and forces of the state +dialectically, so that they shall unite to add to its strength, and +work together harmoniously for the common good. + + + + +CHAPTER VIII. + +CONSTITUTION OF GOVERNMENT--CONCLUDED. + + +Though the constitution of the people is congenital, like the +constitution of an individual, and cannot be radically changed without +the destruction of the state, it must not be supposed that it is wholly +withdrawn from the action of the reason and free-will of the nation, +nor from that of individual statesmen. All created things are subject +to the law of development, and may be developed either in a good sense +or in a bad; that is, may be either completed or corrupted. All the +possibilities of the national constitution are given originally in the +birth of the nation, as all the possibilities of mankind were given in +the first man. The germ must be given in the original constitution. +But in all constitutions there is more than one element, and the +several elements maybe developed pari passu, or unequally, one having +the ascendency and suppressing the rest. In the original constitution +of Rome the patrician element was dominant, showing that the +patriarchal organization of society still retained no little force. +The king was only the presiding officer of the senate and the leader of +the army in war. His civil functions corresponded very nearly to those +of a mayor of the city of New York, where all the effective power is in +the aldermen, common council, and heads of departments. Except in name +he was little else than a pageant. The kings, no doubt, labored to +develop and extend the royal element of the constitution. This was +natural; and it was equally natural that they should be resisted by the +patricians. Hence when the Tarquins, or Etruscan dynasty, undertook to +be kings in fact as well as in name, and seemed likely to succeed, the +patricians expelled them, and supplied their place by two consuls +annually elected. Here was a modification, but no real change of the +constitution. The effective Power, as before, remained in the senate. + +But there was from early times a plebeian element in the population of +the city, though forming at first no part of the political people. +Their origin is not very certain, nor their original position in the +city. Historians give different accounts of them. But that they +should, as they increased in numbers, wealth, and importance, demand +admission into the political society, religious or solemn marriage, a +voice in the government, and the faculty of holding civil and military +offices, was only in the order of regular development. At first the +patricians fought them, and, failing to subdue them by force, effected +a compromise, and bought up their leaders. The concession which +followed of the tribunitial veto was only a further development. By +that veto the plebeians gained no initiative, no positive power, +indeed, but their tribunes, by interposing it, could stop the +proceedings of the government. They could not propose the measures they +liked, but they could prevent the legal adoption of measures they +disliked--a faculty Mr. Calhoun asserted for the several States of the +American Union in his doctrine of nullification, or State veto, as he +called it. It was simply an obstructive power. + +But from a power to obstruct legislative action to the power to +originate or propose it, and force the senate to adopt it through fear +of the veto of measures the patricians had at heart, was only a still +further development. This gained, the exclusively patrician +constitution had disappeared, and Marius, the head of a great plebeian +house, could be elected consul and the plebeians in turn threaten to +become predominant, which Sylla or Sulla, as dictator, seeing, tried in +vain to prevent. The dictator was provided for in the original +constitution. Retain the dictatorship for a time, strengthen the +plebeian element by ruthless proscriptions of patricians and by +recruits from the provinces, unite the tribunitial, pontifical, and +military powers in the imperator designated by the army, all elements +existing in the constitution from an early day, and already developed +in the Roman state, and you have the imperial constitution, which +retained to the last the senate and consuls, though with less and less +practical power. These changes are very great, but are none of them +radical, dating from the recognition of the plebs as pertaining to the +Roman people. They are normal developments, not corruptions, and the +transition from the consular republic to the imperial was +unquestionably a real social and political progress. And yet the Roman +people, had they chosen, could have given a different direction to the +developments of their constitution. There was Providence in the course +of events, but no fatalism. + +Sulla was a true patrician, a blind partisan of the past. He sought to +arrest the plebeian development led by Marius, and to restore the +exclusively patrician government. But it was too late. His +proscriptions, confiscations, butcheries, unheard-of cruelties which +anticipated and surpassed those of the French Revolution of 1793, +availed nothing. The Marian or plebeian movement, apparently checked +for a moment, resumed its march with renewed vigor under Julius, and +triumphed at Pharsalia. In vain Cicero, only accidentally associated +with the patrician party, which distrusted him--in vain Cicero +declaims, Cato scolds, or parades his impractical virtues, Brutus and +Cassius seize the assassin's dagger, and strike to the earth "the +foremost man of all the world;" the plebeian cause moves on with +resistless force, triumphs anew at Philippi, and young Octavius avenges +the murder of his uncle, and proves to the world that the assassination +of a ruler is a blunder as well as a crime. In vain does Mark Antony +desert the movement, rally Egypt and the barbaric East, and seek to +transfer the seat of empire from the Tiber to the banks of the Nile or +the Orontes; plebeian and imperial Rome wins a final victory at Actium, +and definitively secures the empire of the civilized world to the West. + +Thus far the developments were normal, and advanced civilization. But +Rome still retained the barbaric element of slavery in her bosom, and +had conquered more barbaric nations than she had assimilated. These +nations she at first governed as tributary states, with their own +constitutions and national chiefs; afterwards as Roman provinces, by +her own proconsuls and prefects. When the emperors threw open the gates +of the city to the provincials, and conceded them the rights and +privileges of Roman citizens, they introduced not only a foreign +element into the state, destitute of Roman patriotism, but the barbaric +and despotic elements retained by the conquered nations as yet only +partially assimilated. These elements became germs of anti-republican +developments, rather of corruptions, and prepared the downfall of the +empire. Doubtless these corruptions might have been arrested, and +would have been, if Roman patriotism had survived the changes effected +in the Roman population by the concession of Roman citizenship to +provincials; but it did not, and they were favored as time went on by +the emperors themselves, and more especially by Dioclesian, a real +barbarian, who hated Rome, and by Constantine, surnamed the Great, a +real despot, who converted the empire from a republican to a despotic +empire. Rome fell from the force of barbarism developed from within, +far more than from the force of the barbarians hovering on her +frontiers and invading her provinces. + +The law of all possible developments is in the providential or +congenital constitution; but these possible developments are many and +various, and the reason and free-will of the nation as well as of +individuals are operative in determining which of them shall be +adopted. The nation, under the direction of wise and able statesmen +who understood their age and country, who knew how to discern between +normal developments and barbaric corruptions, placed at the head of +affairs in season, might have saved Rome from her fate, eliminated the +barbaric and assimilated the foreign elements, and preserved Rome as a +Christian and republican empire to this day, and saved the civilized +world from the ten centuries of barbarism which followed her conquest +by the barbarians of the North. But it rarely happens that the real +statesmen of a nation are placed at the head of affairs. + +Rome did not fall in consequence of the strength of her external +enemies, nor through the corruption of private morals and manners, +which was never greater than under the first Triumvirate. She fell +from the want of true statesmanship in her public men, and patriotism +in her people. Private virtues and private vices are of the last +consequence to individuals, both here and hereafter; but private +virtues never saved, private vices never ruined a nation. Edward the +Confessor was a saint, and yet he prepared the way for the Norman +conquest of England; and France owes infinitely less to St. Louis than +to Louis XI., Richelieu, and Napoleon, who, though no saints, were +statesmen. What is specially needed in statesmen is public spirit, +intelligence, foresight, broad views, manly feelings, wisdom, energy, +resolution; and when statesmen with these qualities are placed at the +head of affairs, the state, if not already lost, can, however far gone +it may be, be recovered, restored, reinvigorated, advanced, and private +vice and corruption disappear in the splendor of public virtue. +Providence is always present in the affairs of nations, but not to work +miracles to counteract the natural effects of the ignorance, ineptness, +short-sightedness, narrow views, public stupidity, and imbecility of +rulers, because they are irreproachable and saintly in their private +characters and relations, as was Henry VI. of England, or, in some +respects, Louis XVI. of France. Providence is God intervening through +the laws he by his creative act gives to creatures, not their +suspension or abrogation. It was the corruption of the statesmen, in +substituting the barbaric element for the proper Roman, to which no one +contributed more than Constantine, the first Christian emperor, that +was the real cause of the downfall of Rome, and the centuries of +barbarism that followed, relieved only by the superhuman zeal and +charity of the church to save souls and restore civilization. + +But in the constitution of the government, as distinguished from the +state, the nation is freer and more truly sovereign. The constitution +of the state is that which gives to the people of a given territory +political existence, unity, and individuality, and renders it capable +of political action. It creates political or national solidarity, in +imitation of the solidarity of the race, in which it has its root. It +is the providential charter of national existence, and that which gives +to each nation its peculiar character, and distinguishes it from every +other nation. The constitution of government is the constitution by the +sovereign authority of the nation of an agency or ministry for the +management of its affairs, and the letter of instructions according to +which the agent or minister is to act and conduct the matters intrusted +to him. The distinction which the English make between the sovereign +and the ministry is analogous to that between the state and the +government, only they understand by the sovereign the king or queen, +and by the ministry the executive, excluding, or not decidedly +including, the legislature and the judiciary. The sovereign is the +people as the state or body politic, and as the king holds from God +only through the people, he is not properly sovereign, and is to be +ranked with the ministry or government. Yet when the state delegates +the full or chief governing power to the king, and makes him its sole +or principal representative, he may, with sufficient accuracy for +ordinary purposes, be called sovereign. Then, understanding by the +ministry or government the legislative and judicial, as well as the +executive functions, whether united in one or separated into distinct +and mutually independent departments, the English distinction will +express accurately enough, except for strictly scientific purposes, the +distinction between the state and the government. + +Still, it is only in despotic states, which are not founded on right, +but force, that the king can say, L'etat, c'est moi, I am the state; +and Shakespeare's usage of calling the king of France simply France, +and the king of England simply England, smacks of feudalism, under +which monarchy is an estate, property, not a public trust. It +corresponds to the Scottish usage of calling the proprietor by the name +of his estate. It is never to be forgotten that in republican states +the king has only a delegated sovereignty, that the people, as well as +God, are above him. He holds his power, as the Emperor of the French +professes to hold his, by the grace of God and the national will--the +only title by which a king or emperor can legitimately hold power. + +The king or emperor not being the state, and the government, whatever +its form or constitution, being a creature of the state, he can be +dethroned, and the whole government even virtually overthrown, without +dissolving the state or the political society. Such an event may cause +much evil, create much social confusion, and do grave injury to the +nation, but the political society may survive it; the sovereign remains +in the plenitude of his rights, as competent to restore government as +he was originally to institute it. When, in 1848, Louis Philippe was +dethroned by the Parisian mob, and fled the kingdom, there was in +France no legitimate government, for all commissions ran in the king's +name; but the organic or territorial people of France, the body +politic, remained, and in it remained the sovereign power to organize +and appoint a new government. When, on the 2d of December, 1851, the +president, by a coup d'etat, suppressed the legislative assembly and +the constitutional government, there was no legitimate government +standing, and the power assumed by the president was unquestionably a +usurpation; but the nation was competent to condone his usurpation and +legalize his power, and by a plebiscitum actually did so. The wisdom +or justice of the coup d'etat is another question, about which men may +differ; but when the French nation, by its subsequent act, had condoned +it, and formally conferred dictatorial powers on the prince-president, +the principal had approved the act of his agent, and given him +discretionary powers, and nothing more was to be said. The imperial +constitution and the election of the president to be emperor, that +followed on December 2d, 1852, were strictly legal, and, whatever men +may think of Napoleon III., it must be conceded that there is no legal +flaw in his title, and that he holds his power by a title as high and +as perfect as there is for any prince or ruler. + +But the plebiscitum cannot be legally appealed to or be valid when and +where there is a legal government existing and in the full exercise of +its constitutional functions, as was decided by the Supreme Court of +the United States in a case growing out of what is known as the Dorr +rebellion in Rhode Island. A suffrage committee, having no political +authority, drew up and presented a new constitution of government to +the people, plead a plebiscitum in its favor, and claimed the officers +elected under it as the legally elected officers of the state. The +court refused to recognize the plebiscitum, and decided that it knew +Rhode Island only as represented through the government, which had +never ceased to exist. New States in Territories have been organized +on the strength of a plebiscitum when the legal Territorial government +was in force, and were admitted as States into the Union, which, though +irregular and dangerous, could be done without revolution, because +Congress, that admitted them, is the power to grant the permission to +organize as States and apply for admission. Congress is competent to +condone an offence against its own rights. The real danger of the +practice is, that it tends to create a conviction that sovereignty +inheres in the people individually, or as population, not as the body +politic or organic people attached to a sovereign domain; and the +people who organize under a plebiscitum are not, till organized and +admitted into the Union, an organic or a political people at all. When +Louis Napoleon made his appeal to a vote of the French people, he made +an appeal to a people existing as a sovereign people, and a sovereign +people without a legal government. In his case the plebiscitum was +proper and sufficient, even if it be conceded that it was through his +own fault that France at the moment was found without a legal +government. When a thing is done, though wrongly done, you cannot act +as if it were not done, but must accept it as a fact and act +accordingly. + +The plebiscitum, which is simply an appeal to the people outside of +government, is not valid when the government has not lapsed, either by +its usurpations or by its dissolution, nor is it valid either in the +case of a province, or of a population that has no organic existence as +an independent sovereign state. The plebiscitum in France was valid, +but in the Grand Duchy of Tuscany, the Duchies of Modena, Parma, and +Lucca, and in the Kingdom of the Two Sicilies it was not valid, for +their legal governments had not lapsed; nor was it valid in the +Aemilian provinces of the Papal States, because they were not a nation +or a sovereign people, but only a portion of such nation or people. In +the case of the states and provinces--except Lombardy, ceded to France +by Austria, and sold to the Sardinian king--annexed to Piedmont to form +the new kingdom of Italy, the plebiscitum was invalid, because implying +the right of the people to rebel against the legal authority, and to +break the unity and individuality of the state of which they form an +integral part. The nation is a whole, and no part has the right to +secede or separate, and set up a government for itself, or annex itself +to another state, without the consent of the whole. The solidarity of +the nation is both a fact and a law. The secessionists from the United +States defended their action only on the ground that the States of the +American Union are severally independent sovereign states, and they +only obeyed the authority of their respective states. + +The plebiscitum, or irregular appeal to what is called universal +suffrage, since adopted by Louis Napoleon in France after the coup +d'etat, is becoming not a little menacing to the stability of +governments and the rights and integrity of states, and is not less +dangerous to the peace and order of society than "the solidarity of +peoples" asserted by Kossuth, the revolutionary ex-governor of Hungary, +the last stronghold of feudal barbarism in Christian Europe; for Russia +has emancipated her serfs. + +The nation, as sovereign, is free to constitute government according to +its own judgment, under any form it pleases--monarchical, aristocratic, +democratic, or mixed--vest all power in an hereditary monarch, in a +class or hereditary nobles, in a king and two houses of parliament, one +hereditary, the other elective, or both elective; or it may establish a +single, dual, or triple executive, make all officers of government +hereditary or all elective, and if elective, elective for a longer or a +shorter time, by universal suffrage or a select body of electors. Any +of these forms and systems, and many others besides, are or may be +legitimate, if established and maintained by the national will. There +is nothing in the law of God or of nature, antecedently to the national +will, that gives any one of them a right to the exclusion of any one of +the others. The imperial system in France is as legitimate as the +federative system in the United States. The only form or system that +is necessarily illegal is the despotic. That can never be a truly +civilized government, nor a legitimate government, for God has given to +man no dominion over man. He gave men, as St. Augustine says, and Pope +St. Gregory the Great repeats, dominion over the irrational creation, +not over the rational, and hence the primitive rulers of men were +called pastors or shepherds, not lords. It may be the duty of the +people subjected to a despotic government to demean themselves quietly +and peaceably towards it, as a matter of prudence, to avoid sedition, +and the evils that would necessarily follow an attempted revolution, +but not because, founded as it is on mere force, it has itself any +right or legality. + +All other forms of government are republican in their essential +constitution, founded on public right, and held under God from and for +the commonwealth, and which of them is wisest and best for the +commonwealth is, for the most part, an idle question. "Forms of +government," somebody has said, "are like shoes--that is the best form +which best fit the feet that are to wear them." Shoes are to be fitted +to the feet, not the feet to the shoes, and feet vary in size and +conformation. There is, in regard to government, as distinguished from +the state, no antecedent right which binds the people, for antecedently +to the existence of the government as a fact, the state is free to +adopt any form that it finds practicable, or judges the wisest and best +for itself. Ordinarily the form of the government practicable for a +nation is determined by the peculiar providential constitution of the +territorial people, and a form of government that would be practicable +and good in one country may be the reverse in another. The English +government is no doubt the best practicable in Great Britain, at +present at least, but it has proved a failure wherever else it has been +attempted. The American system has proved itself, in spite of the +recent formidable rebellion to overthrow it, the best and only +practicable government for the United States, but it is impracticable +everywhere else, and all attempts by any European or other American +state to introduce it can end only in disaster. The imperial system +apparently works well in France, but though all European states are +tending to it, it would not work well at all on the American continent, +certainly not until the republic of the United States has ceased to +exist. While the United States remain the great American power, that +system, or its kindred system, democratic centralism, can never become +an American system, as Maximilian's experiment in Mexico is likely to +prove. + +Political propagandism, except on the Roman plan, that is, by +annexation and incorporation, is as impracticable as it is wanting in +the respect that one independent people owes to another. The old +French Jacobins tried to propagate, even with fire and sword, their +system throughout Europe, as the only system compatible with the rights +of man. The English, since 1688, have been great political +propagandists, and at one time it seemed not unlikely that every +European state would try the experiment of a parliamentary government, +composed of an hereditary crown, an hereditary house of lords, and an +elective house of commons. The democratic Americans are also great +political propagandists, and are ready to sympathize with any +rebellion, insurrection, or movement in behalf of democracy in any part +of the world, however mean or contemptible, fierce or bloody it may be; +but all this is as unstatesmanlike as unjust; unstatesmanlike, for no +form of government can bear transplanting, and because every +independent nation is the sole judge of what best comports with its own +interests, and its judgment is to be respected by the citizens as well +as by the governments of other states. Religious propagandism is a +right and a duty, because religion is catholic and of universal +obligation; and so is the jus gentium of the Romans, which is only the +application to individuals and nations of the great principles of +natural justice; but no political propagandism is ever allowable, +because no one form of government is catholic in its nature, or of +universal obligation. + +Thoughtful Americans are opposed to political propagandism, and respect +the right of every nation to choose its own form of government; but +they hold that the American system is the best in itself, and that if +other nations were as enlightened as the American, they would adopt it. +But though the American system, rightly understood, is the best, as +they hold, it is not because other nations are less enlightened, which +is by no means a fact, that they do not adopt, or cannot bear it, but +solely because their providential constitutions do not require or admit +it, and an attempt to introduce it in any of them would prove a failure +and a grave evil. + +Fit your shoes to your feet. The law of the governmental constitution +is in that of the nation. The constitution of the government must grow +out of the constitution of the state, and accord with the genius, the +character, the habits, customs, and wants of the people, or it will not +work well, or tend to secure the legitimate ends of government. The +constitutions imagined by philosophers are for Utopia, not for any +actual, living, breathing people. You must take the state as it is, +and develop your governmental constitution from it, and harmonize it +with it. Where there is a discrepancy between the two constitutions, +the government has no support in the state, in the organic people, or +nation, and can sustain itself only by corruption or physical force. A +government may be under the necessity of using force to suppress an +insurrection or rebellion against the national authority, or the +integrity of the national territory, but no government that can sustain +itself, not the state, only by physical force or large standing armies, +can be a good government, or suited to the nation. It must adopt the +most stringent repressive measures, suppress liberty of speech and of +conscience, outrage liberty in what it has the most intimate and +sacred, and practise the most revolting violence and cruelty, for it +can govern only by terror. Such a government is unsuited to the nation. + +This is seen in all history: in the attempt of the dictator Sulla to +preserve the old patrician government against the plebeian power that +time and events had developed in the Roman state, and which was about +to gain the supremacy, as we have seen, at Pharsalia, Philippi, and +Actium; in the efforts to establish a Jacobinical government in France +in 1793; in Rome in 1848, and the government of Victor Emmanuel in +Naples in 1860 and 1861. These efforts, proscriptions, confiscations, +military executions, assassinations, massacres, are all made in the +name of liberty, or in defence of a government supposed to guaranty the +well-being of the state and the rights of the people. They are +rendered inevitable by the mad attempt to force on a nation a +constitution of government foreign to the national constitution, or +repugnant to the national tastes, interests, habits, convictions, or +whole interior life. The repressive policy, adopted to a certain +extent by nearly all European governments, grows out of the madness of +a portion of the people of the several states in seeking to force upon +the nation an anti-national constitution. The sovereigns may not be +very wise, but they are wiser, more national, more patriotic than the +mad theorists who seek to revolutionize the state and establish a +government that has no hold in the national traditions, the national +character, or the national life; and the statesman, the patriot, the +true friend of liberty sympathizes with the national authorities, not +with the mad theorists and revolutionists. + +The right of a nation to change its form of government, and its +magistrates or representatives, by whatever name called, is +incontestable. Hence the French constitution of 1789, which involved +that of 1793, was not illegal, for though accompanied by some +irregularities, it was adopted by the manifest will of the nation, and +consented to by all orders in the state. Not its legality but its +wisdom is to be questioned, together with the false and dangerous +theories of government which dictated it. There is no compact or mutual +stipulation between the state and the government. The state, under +God, is sovereign, and ordains and establishes the government, instead +of making a contract, a bargain, or covenant, with it. The common +democratic doctrine on this point is right, if by people is understood +the organic people attached to a sovereign domain, not the people as +individuals or as a floating or nomadic multitude. By people in the +political sense, Cicero, and St. Augustine after him, understood the +people as the republic, organized in reference to the common or public +good. With this understanding, the sovereignty persists in the people, +and they retain the supreme authority over the government. The powers +delegated are still the powers of the sovereign delegating them, and +may be modified, altered, or revoked, as the sovereign judges proper. +The nation does not, and cannot abdicate or delegate away its own +sovereignty, for sovereign it is, and cannot but be, so long as it +remains a nation not subjected to another nation. + +By the imperial constitution of the French government, the imperial +power is vested in Napoleon III., and made hereditary in his family, in +the male line of his legitimate descendants. This is legal, but the +nation has not parted with its sovereignty or bound itself by contract +forever to a Napoleonic dynasty. Napoleon holds the imperial power "by +the grace of God and the will of the nation," which means simply that +he holds his authority from God, through the French people, and is +bound to exercise it according to the law of God and the national will. +The nation is as competent to revoke this constitution as the +legislature is to repeal any law it is competent to enact, and in doing +so breaks no contract, violates no right, for Napoleon and his +descendants hold their right to the imperial throne subject to the +national will from which it is derived. In case the nation should +revoke the powers delegated, he or they would have no more valid claim +to the throne than have the Bourbons, whom the nation has unmistakably +dismissed from its service. + +The only point here to be observed is, that the change must be by the +nation itself, in its sovereign capacity; not by a mob, nor by a part +of the nation conspiring, intriguing, or rebelling, without any +commission from the nation. The first Napoleon governed by a legal +title, but he was never legally dethroned, and the government of the +Bourbons, whether of the elder branch or the younger, was never a legal +government, for the Bourbons had lost their original rights by the +election of the first Napoleon, and never afterwards had the national +will in their favor. The republic of 1848 was legal, in the sense that +the nation acquiesced in it as a temporary necessity; but hardly +anybody believed in it or wanted it, and the nation accepted it as a +sort of locum tenens, rather than willed or ordained it. Its overthrow +by the coup d'etat may not be legally defensible, but the election of +Napoleon III. condoned the illegality, if there was any, and gave the +emperor a legal title, that no republican, that none but a despot or a +no-government man can dispute. As the will of the nation, in so far as +it contravenes not the law of God or the law of nature, binds every +individual of the nation, no individual or number of individuals has, +or can have, any right to conspire against him, or to labor to oust him +from his place, till his escheat has been pronounced by the voice of +the nation. The state, in its sovereign capacity, willing it, is the +only power competent to revoke or to change the form and constitution +of the imperial government. The same must be said of every nation that +has a lawful government; and this, while it preserves the national +sovereignty, secures freedom of progress, condemns all sedition, +conspiracy, rebellion, revolution, as does the Christian law itself. + + + + +CHAPTER IX. + +THE UNITED STATES + + +Sovereignty, under God, inheres in the organic people, or the people as +the republic; and every organic people fixed to the soil, and +politically independent of every other people, is a sovereign people, +and, in the modern sense, an independent sovereign nation. + +Sovereign states may unite in an alliance, league, or confederation, +and mutually agree to exercise their sovereign powers or a portion of +them in common, through a common organ or agency; but in this agreement +they part with none of their sovereignty, and each remains a sovereign +state or nation as before. The common organ or agency created by the +convention is no state, is no nation, has no inherent sovereignty, and +derives all its vitality and force from the persisting sovereignty of +the states severally that have united in creating it. The agreement no +more affects the sovereignty of the several states entering into it, +than does the appointment of an agent affect the rights and powers of +the principal. The creature takes nothing from the Creator, exhausts +not, lessens not his creative energy, and it is only by his retaining +and continuously exerting his creative power that the creature +continues to exist. + +An independent state or nation may, with or without its consent, lose +its sovereignty, but only by being merged in or subjected to another. +Independent sovereign states cannot by convention, or mutual agreement, +form themselves into a single sovereign state, or nation. The compact, +or agreement, is made by sovereign states, and binds by virtue of the +sovereign power of each of the contracting parties. To destroy that +sovereign power would be to annul the compact, and render void the +agreement. The agreement can be valid and binding only on condition +that each of the contracting parties retains the sovereignty that +rendered it competent to enter into the compact, and states that retain +severally their sovereignty do not form a single sovereign state or +nation. The states in convention cannot become a new and single +sovereign state, unless they lose their several sovereignty, and merge +it in the new sovereignty; but this they cannot do by agreement, +because the moment the parties to the agreement cease to be sovereign, +the agreement, on which alone depends the new sovereign state, is +vacated, in like manner as a contract is vacated by the death of the +contracting parties. + +That a nation may voluntarily cede its sovereignty is frankly admitted, +but it can cede it only to something or somebody actually existing, for +to cede to nothing and not to cede is one and the same thing. They can +part with their own sovereignty by merging themselves in another +national existence, but not by merging themselves in nothing; and, till +they have parted with their own sovereignty, the new sovereign state +does not exist. A prince can abdicate his power, because by abdicating +he simply gives back to the people the trust he had received from them; +but a nation cannot, save by merging itself in another. An independent +state not merged in another, or that is not subject to another, cannot +cease to be a sovereign nation, even if it would. + +That no sovereign state can be formed by agreement or compact has +already been shown in the refutation of the theory of the origin of +government in convention, or the so-called social compact. Sovereign +states are as unable to form themselves into a single sovereign state +by mutual compact as are the sovereign individuals imagined by +Rousseau. The convention, either of sovereign states or of sovereign +individuals, with the best will in the world, can form only a compact +or agreement between sovereigns, and an agreement or compact, whatever +its terms or conditions, is only an alliance, a league, or a +confederation, which no one can pretend is a sovereign state, nation, +or republic. + +The question, then, whether the United States are a single sovereign +state or nation, or a confederacy of independent sovereign states +depends on the question whether the American people originally existed +as one people or as several independent states. Mr. Jefferson +maintains that before the convention of 1787 they existed as several +independent sovereign states, but that since that convention, or the +ratification of the constitution it proposed, they exist as one +political people in regard to foreign nations, and several sovereign +states in regard to their internal and domestic relations. Mr. Webster +concedes that originally the States existed as severally sovereign +states, but contends that by ratifying the constitution they have been +made one sovereign political people, state, or nation, and that the +General government is a supreme national government, though with a +reservation in favor of State rights. But both are wrong. If the +several States of the Union were severally sovereign states when they +met in the convention, they are so now; and the constitution is only an +agreement or compact between sovereigns, and the United States are, as +Mr. Calhoun maintained, only a confederation of sovereign states, and +not a single state or one political community. + +But if the sovereignty persists in the States severally, any State, +saving its faith, may whenever it chooses to do so, withdraw from the +Union, absolve its subjects from all obligation to the Federal +authorities, and make it treason in them to adhere to the Federal +government. Secession is, then, an incontestable right; not a right +held under the constitution or derived from the convention but a right +held prior to it, independently of it, inherent in the State +sovereignty, and inseparable from it. The State is bound by the +constitution of the Union only while she is in it, and is one of the +States united. In ratifying the constitution she did not part with her +sovereignty, or with any portion of it, any more than France has parted +with her sovereignty, and ceased to be an independent sovereign nation, +by vesting the imperial power in Napoleon III. and his legitimate heirs +male. The principal parts not with his power to his agent, for the +agent is an agent only by virtue of the continued power of the +principal. Napoleon is emperor by the will of the French people, and +governs only by the authority of the French nation, which is as +competent to revoke the powers it has conferred on him, when it judges +proper, as it was to confer them. The Union exists and governs, if the +States are sovereign, only by the will of the State, and she is as +competent to revoke the powers she has delegated as she was to delegate +them. The Union, as far as she is concerned, is her creation, and what +she is competent to make she is competent to unmake. + +In seceding or withdrawing from the Union a State may act very +unwisely, very much against her own interests and the interests of the +other members of the confederacy; but, if sovereign, she in doing so +only exercises her unquestionable right. The other members may regret +her action, both for her sake and their own, but they cannot accuse her +or her citizens of disloyalty in seceding, nor of rebellion, if in +obedience to her authority they defend their independence by force of +arms against the Union. Neither she nor they, on the supposition, ever +owed allegiance to the Union. Allegiance is due from the citizen to +the sovereign state, but never from a sovereign state or from its +citizens to any other sovereign state. While the State is in the Union +the citizen owes obedience to the United States, but only because his +State has, in ratifying the Federal constitution, enacted that it and +all laws and treaties made under it shall be law within her territory. +The repeal by the State of the act of ratification releases the citizen +from the obligation even of obedience, and renders it criminal for him +to yield it without her permission. + +It avails nothing, on the hypothesis of the sovereignty of the States +as distinguished from that of the United States, to appeal to the +language or provisions of the Federal constitution. That constitutes +the government, not the state or the sovereign. It is ordained by the +sovereign, and if the States were severally independent and sovereign +states, that sovereign is the States severally, not the States united. +The constitution is law for the citizens of a State only so long as the +State remains one of the United States. No matter, then, how clear and +express the language, or stringent the provisions of the constitution, +they bind only the citizens of the States that enact the constitution. +The written constitution is simply a compact, and obliges only while +the compact is continued by the States, each for itself. The +sovereignty of the United States as a single or political people must +be established before any thing in the constitution can be adduced as +denying the right of secession. + +That this doctrine would deprive the General government of all right to +enforce the laws of the Union on a State that secedes, or the citizens +thereof, is no doubt true; that it would weaken the central power and +make the Union a simple voluntary association of states, no better than +a rope of sand, is no less true; but what then? It is simply saying +that a confederation is inferior to a nation, and that a federal +government lacks many of the advantages of a national government. +Confederacies are always weak in the centre, always lack unity, and are +liable to be dissolved by the influence of local passions, prejudices, +and interests. But if the United States are a confederation of states +or nations, not a single nation or sovereign state, then there is no +remedy. + +If the Anglo-American colonies, when their independence of Great +Britain was achieved and acknowledged, were severally sovereign states, +it has never since been in their power to unite and form a single +sovereign state, or to form themselves into one indivisible sovereign +nation. They could unite only by mutual agreement, which gives only a +confederation, in which each retains its own sovereignty, as two +individuals, however closely united, retain each his own individuality. +No sovereignty is of conventional origin, and none can emerge from the +convention that did not enter it. Either the states are one sovereign +people or they are not. If they are not, it is undoubtedly a great +disadvantage; but a disadvantage that must be accepted, and submitted +to without a murmur. + +Whether the United States are one sovereign people or only a +confederation is a question of very grave importance. If they are only +a confederation of states--and if they ever were severally sovereign +states, only a confederation they certainly are--state secession is an +inalienable right, and the government has had no right to make war on +the secessionists as rebels, or to treat them, when their military +power is broken, as traitors, or disloyal persons. The honor of the +government, and of the people who have sustained it, is then deeply +compromised. + +What then is the fact? Are the United States politically one people, +nation, state, or republic, or are they simply independent sovereign +states united in close and intimate alliance, league, or federation, by +a mutual pact or agreement? Were the people of the United States who +ordained and established the written constitution one people, or were +they not? If they were not before ordaining and establishing the +government, they are not now; for the adoption of the constitution did +not and could not make them one. Whether they are one or many is then +simply a question of fact, to be decided by the facts in the case, not +by the theories of American statesmen, the opinion of jurists, or even +by constitutional law itself. The old Articles of Confederation and +the later Constitution can serve here only as historical documents. +Constitutions and laws presuppose the existence of a national sovereign +from which they emanate, and that ordains them, for they are the formal +expression of a sovereign will. The nation must exist as an historical +fact, prior to the possession or exercise of sovereign power, prior to +the existence of written Constitutions and laws of any kind, and its +existence must be established before they can be recognized as having +any legal force or vitality. + +The existence of any nation, as an independent sovereign nation, is a +purely historical fact, for its right to exist as such is in the simple +fact that it does so exist. A nation de facto is a nation de jure, and +when we have ascertained the fact, we have ascertained the right. +There is no right in the case separate from the fact--only the fact +must be really a fact. A people hitherto a part of another people, or +subject to another sovereign, is not in fact a nation, because they +have declared themselves independent, and have organized a government, +and are engaged in what promises to be a successful struggle for +independence. The struggle must be practically over; the former +sovereign must have practically abandoned the effort to reduce them to +submission, or to bring them back under his authority, and if he +continues it, does it as a matter of mere form; the postulant must have +proved his ability to maintain civil government, and to fulfil within +and without the obligations which attach to every civilized nation, +before it can be recognized as an independent sovereign nation; because +before it is not a fact that it is a sovereign nation. The prior +sovereign, when no longer willing or able to vindicate his right, has +lost it, and no one is any longer bound to respect it, for humanity +demands not martyrs to lost causes. + +This doctrine may seem harsh, and untenable even, to those sickly +philanthropists who are always weeping over extinct or oppressed +nationalities; but nationality in modern civilization is a fact, not a +right antecedent to the fact. The repugnance felt to this assertion +arises chiefly from using the word nation sometimes in a strictly +political sense, and sometimes in its original sense of tribe, and +understanding by it not simply the body politic, but a certain relation +of origin, family, kindred, blood, or race. But God has made of one +blood, or race, all the nations of men; and, besides, no political +rights are founded by the law of nature on relations of blood, kindred, +or family. Under the patriarchal or tribal system, and, to some +extent, under feudalism, these relations form the basis of government, +but they are economical relations rather than civil or political, and, +under Christian and modern civilization, are restricted to the +household, are domestic relations, and enter not the state or body +politic, except by way of reminiscence or abuse. They are protected by +the state, but do not found or constitute it. The vicissitudes of +time, the revolutions of states and empires, migration, conquest, and +intermixture of families and races, have rendered it impracticable, +even if it were desirable, to distribute people into nations according +to their relations of blood or descent. + +There is no civilized nation now existing that has been, developed from +a common ancestor this side of Adam, and the most mixed are the most +civilized. The nearer a nation approaches to a primitive people of +pure unmixed blood, the farther removed it is from civilization. All +civilized nations are political nations, and are founded in the fact, +not on rights antecedent to the fact. A hundred or more lost +nationalities went to form the Roman empire, and who can tell us how +many layers of crushed nationalities, superposed one upon another, +serve for the foundation of the present French, English, Russian, +Austrian, or Spanish nationalities? What other title to independence +and sovereignty, than the fact, can you plead in behalf of any European +nation? Every one has absorbed and extinguished--no one can say how +many--nationalities, that once had as good a right to be as it has, or +can have. Whether those nationalities have been justly extinguished or +not, is no question for the statesman; it is the secret of Providence. +Failure in this world is not always a proof of wrong; nor success, of +right. The good is sometimes overborne, and the bad sometimes +triumphs; but it is consoling, and even just, to believe that the good +oftener triumphs than the bad. + +In the political order, the fact, under God, precedes the law. The +nation holds not from the law, but the law holds from the nation. +Doubtless the courts of every civilized nation recognize and apply both +the law of nature and the law of nations, but only on the ground that +they are included, or are presumed to be included, in the national law, +or jurisprudence. Doubtless, too, the nation holds from God, under the +law of nature, but only by virtue of the fact that it is a nation; and +when it is a nation dependent on no other, it holds from God all the +rights and powers of any independent sovereign nation. There is no +right behind the fact needed to legalize the fact, or to put the nation +that is in fact a nation in possession of full national rights. In the +case of a new nation, or people, lately an integral part of another +people, or subject to another people@ the right of the prior sovereign +must be extinguished indeed, but the extinction of that right is +necessary to complete the fact, which otherwise would be only an +initial, inchoate fact, not a fait accompli. But that right ceases when +its claimant, willingly or unwillingly, formally or virtually, abandons +it; and he does so when he practically abandons the struggle, and shows +no ability or intention of soon renewing it with any reasonable +prospect of success. + +The notion of right, independent of the fact as applied to sovereignty, +is founded in error. Empty titles to states and kingdoms are of no +validity. The sovereignty is, under God, in the nation and the title +and the possession are inseparable. The title of the Palaeologi to the +Roman Empire of the East, of the king of Sicily, the king of Sardinia, +or the king of Spain--for they are all claimants--to the kingdom of +Jerusalem founded by Godfrey and his crusaders, of the Stuarts to the +thrones of England, Ireland, and Scotland, or of the Bourbons to the +throne of France, are vacated and not worth the parchment on which they +are engrossed. The contrary opinion, so generally entertained, belongs +to barbarism, not to civilization. It is in modern society a relic of +feudalism, which places the state in the government, and makes the +government a private estate--a private, and not a public right--a right +to govern the public, not a right to govern held from or by the public. + +The proprietor may be dispossessed in fact of his estate by violence, +by illegal or unjust means, without losing his right, and another may +usurp it, occupy it, and possess it in fact without acquiring any right +or legal title to it. The man who holds the legal title has the right +to oust him and re-enter upon his estate whenever able to do so. Here, +in the economical order, the fact and the right are distinguishable, +and the actual occupant may be required to show his title-deeds. +Holding sovereignty to be a private estate, the feudal lawyers very +properly distinguish between governments de facto and governments de +jure, and argue very logically that violent dispossession of a prince +does not invalidate his title. But sovereignty, it has been shown, is +not in the government, but in the state, and the state is inseparable +from the public domain. The people organized and held by the domain or +national territory, are under God the sovereign nation, and remain so +as long as the nation subsists without subjection to another. The +government, as distinguished from the state or nation, has only a +delegated authority, governs only by a commission from the nation. The +revocation of the commission vacates, its title and extinguishes its +rights. The nation is always sovereign, and every organic people fixed +to the soil, and actually independent of every other, is a nation. +There can then be no independent nation de facto that is not an +independent nation de jure, nor de jure that is not de facto. The +moment a people cease to be an independent nation in fact, they cease +to be sovereign, and the moment they become in fact an independent +nation, they are so of right. Hence in the political order the fact and +the right are born and expire together; and when it is proved that a +people, are in fact an independent nation, there is no question to be +asked as to their right to be such nation. + +In the case of the United States there is only the question of fact. +If they are in fact one people they are so in right, whatever the +opinions and theories of statesmen, or even the decisions of courts; +for the courts hold from the national authority, and the theories and +opinions of statesmen may be erroneous. Certain it is that the States +in the American Union have never existed and acted as severally +sovereign states. Prior to independence, they were colonies under the +sovereignty of Great Britain, and since independence they have existed +and acted only as states united. The colonists, before separation and +independence, were British subjects, and whatever rights the colonies +had they held by charter or concession from the British crown. The +colonists never pretended to be other than British subjects, and the +alleged ground of their complaint against the mother country was not +that she had violated their natural rights as men, but their rights as +British subjects--rights, as contended by the colonists, secured by the +English constitution to all Englishmen or British subjects. The denial +to them of these common rights of Englishmen they called tyranny, and +they defended themselves in throwing off their allegiance to George +III., on the ground that he had, in their regard, become a tyrant, and +the tyranny of the prince absolves the subject from his allegiance. + +In the Declaration of Independence they declared themselves independent +states indeed, but not severally independent. The declaration was not +made by the states severally, but by the states jointly, as the United +States. They unitedly declared their independence; they carried on the +war for independence, won it, and were acknowledged by foreign powers +and by the mother country as the United States, not as severally +independent sovereign states. Severally they have never exercised the +full powers of sovereign states; they have had no flag--symbol of +sovereignty--recognized by foreign powers, have made no foreign +treaties, held no foreign relations, had no commerce foreign or +interstate, coined no money, entered into no alliances or confederacies +with foreign states or with one another, and in several respects have +been more restricted in their powers in the Union than they were as +British colonies. + +Colonies are initial or inchoate states, and become complete states by +declaring and winning their independence; and if the English colonies, +now the United States, had separately declared and won their +independence, they would unquestionably have become separately +independent states, each invested by the law of nature with all the +rights and powers of a sovereign nation. But they did not do this. +They declared and won their independence jointly, and have since +existed and exercised sovereignty only as states united, or the United +States, that is, states sovereign in their union, but not in their +separation. This is of itself decisive of the whole question. + +But the colonists have not only never exercised the full powers of +sovereignty save as citizens of states united, therefore as one people, +but they were, so far as a people at all, one people even before +independence. The colonies were all erected and endowed with their +rights and powers by one and the same national authority, and the +colonists were subjects of one and the same national sovereign. Mr. +Quincy Adams, who almost alone among our prominent statesmen maintains +the unity of the colonial people, adds indeed to their subjection to +the same sovereign authority, community of origin, of language, +manners, customs, and law. All these, except the last, or common law, +may exist without national unity in the modern political sense of the +term nation. The English common law was recognized by the colonial +courts, and in force in all the colonies, not by virtue of colonial +legislation, but by virtue of English authority, as expressed in +English jurisprudence. The colonists were under the Common Law, +because they were Englishmen, and subjects of the English sovereign. +This proves that they were really one people with the English people, +though existing in a state of colonial dependence, and not a separate +people having nothing politically in common with them but in the +accident of having the same royal person for their king. The union +with the mother country was national, not personal, as was the union +existing between England and Hanover, or that still existing between +the empire of Austria, formerly Germany, and the kingdom of Hungary; +and hence the British parliament claimed, and not illegally, the right +to tax the colonies for the support of the empire, and to bind them in +all cases whatsoever--a claim the colonies themselves admitted in +principle by recognizing and observing the British navigation laws. +The people of the several colonies being really one people before +independence, in the sovereignty of the mother country, must be so +still, unless they have since, by some valid act, divided themselves or +been divided into separate and independent states. + +The king, say the jurists, never dies, and the heralds cry, "The king +is dead! Live the king!" Sovereignty never lapses, is never in +abeyance, and the moment it ceases in one people it is renewed in +another. The British sovereignty ceased in the colonies with +independence, and the American took its place. Did the sovereignty, +which before independence was in Great Britain, pass from Great Britain +to the States severally, or to the States united? It might have passed +to them severally, but did it? There is no question of law or +antecedent right in the case, but a simple question of fact, and the +fact is determined by determining who it was that assumed it, exercised +it, and has continued to exercise it. As to this there is no doubt. +The sovereignty as a fact has been assumed and exercised by the United +States, the States united, and never by the States separately or +severally. Then as a fact the sovereignty that before independence was +in Great Britain, passed, on independence to the States united, and +reappears in all its vigor in the United States, the only successor to +Great Britain known to or recognized by the civilized world. + +As the colonial people were, though distributed in distinct colonies, +still one people, the people of the United States, though distributed +into distinct and mutually independent States, are yet one sovereign +people, therefore a sovereign state or nation, and not a simple league +or confederacy of nations. + +There is no doubt that all the powers exercised by the General +Government, though embracing all foreign relations and all general +interests and relations of all the States, might have been exercised by +it under the authority of a mutual compact of the several States, and +practically the difference between the compact theory and the national +view would be very little, unless in cases like that of secession. On +the supposition that the American people are one political people, the +government would have the right to treat secession, in the sense in +which the seceders understand it, as rebellion, and to suppress it by +employing all the physical force at its command; but on the compact +theory it would have no such right. But the question now under +discussion turns simply on what has been and is the historical fact. +Before the States could enter into the compact and delegate sovereign +powers to the Union, they must have severally possessed them. It is +historically certain that they did not possess them before +independence; they did not obtain them by independence, for they did +not severally succeed to the British sovereignty, to which they +succeeded only as States united. When, then, and by what means did +they or could they become severally sovereign States? The United +States having succeeded to the British sovereignty in the +Anglo-American colonies, they came into possession of full national +sovereignty, and have alone held and exercised it ever since +independence became a fact. The States severally succeeding only to +the colonies, never held, and have never been competent to delegate +sovereign powers. + +The old Articles of Confederation, it is conceded, were framed on the +assumption that the States are severally sovereign; but the several +States, at the same time, were regarded as forming one nation, and, +though divided into separate States, the people were regarded as one +people. The Legislature of New York, as early as 1782, calls for an +essential change In the Articles of Confederation, as proved to be +inadequate to secure the peace, security, and prosperity of "the +nation." All the proceedings that preceded and led to the call of the +convention of 1781 were based on the assumption that the people of the +United States were one people. The States were called united, not +confederated States, even in the very Articles of Confederation +themselves, and officially the United States were called "the Union." +That the united colonies by independence became united States, and +formed really one and only one people, was in the thought, the belief, +the instinct of the great mass of the people. They acted as they +existed through State as they had previously acted through colonial +organization, for in throwing off the British authority there was no +other organization through which they could act. The States, or people +of the States, severally sent their delegates to the Congress of the +United States, and these delegates adopted the rule of voting in +Congress by States, a rule that might be revived without detriment to +national unity. Nothing was more natural, then, than that Congress, +composed of delegates elected or appointed by States, should draw up +articles of confederation rather than articles of union, in order, if +for no other reason, to conciliate the smaller States, and to prevent +their jealousy of the larger States such as Virginia, Massachusetts, +and Pennsylvania. + +Moreover, the Articles of Confederation were drawn up and adopted +during the transition from colonial dependence to national +independence. Independence was declared in 1776, but it was not a fact +till 1782, when the preliminary treaty acknowledging it was signed at +Paris. Till then the United States were not an independent nation; +they were only a people struggling to become an independent nation. +Prior to that preliminary treaty, neither the Union nor the States +severally were sovereign. The articles were agreed on in Congress in +1777, but they were not ratified by all the States till May, 1781, and +in 1782 the movement was commenced in the Legislature of New York for +their amendment. Till the organization under the constitution ordained +by the people of the United States in 1787, and which went into +operation in 1789, the United States had in reality only a provisional +government, and it was not till then that the national government was +definitively organized, and the line of demarcation between the General +Government and the particular State governments was fixed. + +The Confederation was an acknowledged failure, and was rejected by the +American people, precisely because it was not in harmony with the +unwritten or Providential constitution of the nation; and it was not in +harmony with that constitution precisely because it recognized the +States as severally sovereign, and substituted confederation for union. +The failure of confederation and the success of union are ample proofs +of the unity of the American nation. The instinct of unity rejected +State sovereignty in 1787 as it did in 1861. The first and the last +attempt to establish State sovereignty have failed, and the failure +vindicates the fact that the sovereignty is in the States united, not +in the States severally. + + + + +CHAPTER X + +CONSTITUTION OF THE UNITED STATES + + +The constitution of the United States is twofold, written and +unwritten, the constitution of the people and the constitution of the +government. + +The written constitution is simply a law ordained by the nation or +people instituting and organizing the government; the unwritten +constitution is the real or actual constitution of the people as a +state or sovereign community, and constituting them such or such a +state. It is Providential, not made by the nation, but born with it. +The written constitution is made and ordained by the sovereign power, +and presupposes that power as already existing and constituted. + +The unwritten or Providential constitution of the United States is +peculiar, and difficult to understand, because incapable of being fully +explained by analogies borrowed from any other state historically +known, or described by political philosophers. It belongs to the +Graeco-Roman family, and is republican as distinguished from despotic +constitutions, but it comes under the head of neither monarchical nor +aristocratic, neither democratic nor mixed constitutions, and creates a +state which is neither a centralized state nor a confederacy. The +difficulty of understanding it is augmented by the peculiar use under +it of the word state, which does not in the American system mean a +sovereign community or political society complete in itself, like +France, Spain, or Prussia, nor yet a political society subordinate to +another political society and dependent on it. The American States are +all sovereign States united, but, disunited, are no States at all. The +rights and powers of the States are not derived from the United States, +nor the rights and powers of the United States derived from the States. + +The simple fact is, that the political or sovereign people of the +United States exists as united States, and only as united States. The +Union and the States are coeval, born together, and can exist only +together. Separation is dissolution--the death of both. The United +States are a state, a single sovereign state; but this single sovereign +state consists in the union and solidarity of States instead of +individuals. The Union is in each of the States, and each of the +States is in the Union. + +It is necessary to distinguish in the outset between the United States +and the government of the United States, or the so-called Federal +government, which the convention refused, contrary to its first +intention to call the national government. That government is not a +supreme national government, representing all the powers of the United +States, but a limited government, restricted by its constitution to +certain specific relations and interests. The United States are +anterior to that government, and the first question to be settled +relates to their internal and inherent Providential constitution as one +political people or sovereign state. The written constitution, in its +preamble, professes to be ordained by "We, the people of the United +States." Who are this people? How are they constituted, or what the +mode and conditions of their political existence? Are they the people +of the States severally? No; for they call themselves the people of +the United States. Are they a national people, really existing outside +and independently of their organization into distinct and mutually +independent States? No; for they define themselves to be the people of +the United States. If they had considered themselves existing as +States only, they would have said "We, the States," and if +independently of State organization, they would have said "We, the +people," do ordain, &c. + +The key to the mystery is precisely in this appellation United States, +which is not the name of the country, for its distinctive name is +America, but a name expressive of its political organization. In it +there are no sovereign people without States, and no States without +union, or that are not united States. The term united is not part of a +proper name, but is simply an adjective qualifying States, and has its +full and proper sense. Hence while the sovereignty is and must be in +the States, it is in the States united, not in the States severally, +precisely as we have found the sovereignty of the people is in the +people collectively or as society, not in the people individually. The +life is in the body, not in the members, though the body could not +exist if it had no members; so the sovereignty is in the Union, not in +the States severally; but there could be no sovereign union without the +States, for there is no union where there is nothing united. + +This is not a theory of the constitution, but the constitutional fact +itself. It is the simple historical fact that precedes the law and +constitutes the law-making power. The people of the United States are +one people, as has already been proved: they were one people, as far as +a people at all, prior to independence, because under the same Common +Law and subject to the same sovereign, and have been so since, for as +united States they gained their independence and took their place among +sovereign nations, and as united States they have possessed and still +possess the government. As their existence before independence in +distinct colonies did not prevent their unity, so their existence since +in distinct States does not hinder them from being one people. The +States severally simply continue the colonial organizations, and united +they hold the sovereignty that was originally in the mother country. +But if one people, they are one people existing in distinct State +organizations, as before independence they were one people existing in +distinct colonial organizations. This is the original, the unwritten, +and Providential constitution of the people of the United States. + +This constitution is not conventional, for it existed before the people +met or could meet in convention. They have not, as an independent +sovereign people, either established their union, or distributed +themselves into distinct and mutually independent States. The union +and the distribution, the unity and the distinction, are both original +in their constitution, and they were born United States, as much and as +truly so as the son of a citizen is born a citizen, or as every one +born at all is born a member of society, the family, the tribe, or the +nation. The Union and the States were born together, are inseparable +in their constitution, have lived and grown up together; no serious +attempt till the late secession movement has been made to separate +them; and the secession movement, to all persons who knew not the real +constitution of the United States, appeared sure to succeed, and in +fact would have succeeded if, as the secessionists pretended, the Union +had been only a confederacy, and the States had been held together only +by a conventional compact, and not by a real and living bond of unity. +The popular instinct of national unity, which seemed so weak, proved to +be strong enough to defeat the secession forces, to trample out the +confederacy, and maintain the unity of the nation and the integrity of +its domain. + +The people can act only as they exist, as they are, not as they are +not. Existing originally only as distributed in distinct and mutually +independent colonies, they could at first act only through their +colonial organizations, and afterward only through their State +organizations. The colonial people met in convention, in the person of +representatives chosen by colonies, and after independence in the +person of representatives chosen by States. Not existing outside of +the colonial or State organizations, they could not act outside or +independently of them. They chose their representatives or delegates +by colonies or States, and called at first their convention a Congress; +but by an instinct surer than their deliberate wisdom, they called it +not the Congress of the confederate, but of the United States, +asserting constitutional unity as well as constitutional multiplicity. +It is true, in their first attempt to organize a general government, +they called the constitution they devised Articles of Confederation, +but only because they had not attained to full consciousness of +themselves; and that they really meant union, not confederation, is +evident from their adopting, as the official style of the nation or new +power, united, not confederate States. + +That the sovereignty vested in the States united, and was represented +in some sort by the Congress, is evident from the fact that the several +States, when they wished to adopt State constitutions in place of +colonial charters, felt not at liberty to do so without asking and +obtaining the permission of Congress, as the elder Adams informs us in +his Diary, kept at the time; that is, they asked and obtained the +equivalent of what has since, in the case of organizing new States, +been called an "enabling act." This proves that the States did not +regard themselves as sovereign States out of the Union, but as +completely sovereign only in it. And this again proves that the +Articles of Confederation did not correspond to the real, living +constitution of the people. Even then it was felt that the +organization and constitution of a State in the Union could be +regularly effected only by the permission of Congress; and no Territory +can, it is well known, regularly organize itself as a State, and adopt +a State constitution, without an enabling act by Congress, or its +equivalent. + +New States, indeed, have been organized and been admitted into the +Union without an enabling act of Congress; but the case of Kansas, if +nothing else, proves that the proceeding is irregular, illicit, +invalid, and dangerous. Congress, of course, can condone the wrong and +validate the act, but it were better that the act should be validly +done, and that there should be no wrong to condone. Territories have +organized as States, adopted State constitutions, and instituted State +governments under what has been called "squatter sovereignty;" but such +sovereignty has no existence, because sovereignty is attached to the +domain; and the domain is in the United States. It is the offspring of +that false view of popular sovereignty which places it in the people +personally or generically, irrespective of the domain, which makes +sovereignty a purely personal right, not a right fixed to the soil, and +is simply a return to the barbaric constitution of power. In all +civilized nations, sovereignty is inseparable from the state, and the +state is inseparable from the domain. The will of the people, unless +they are a state, is no law, has no force, binds nobody, and justifies +no act. + +The regular process of forming and admitting new States explains +admirably the mutual relation of the Union and the several States. The +people of a Territory belonging to the United States or included in the +public domain not yet erected into a State and admitted into the Union, +are subjects of the United States, without any political rights +whatever, and, though a part of the population, are no part of the +sovereign people of the United States. They become a part of that +people, with political rights and franchises, only when they are +erected into a State, and admitted into the Union as one of the United +States. They may meet in convention, draw up and adopt a constitution +declaring or assuming them to be a State, elect State officers, +senators, and representatives in the State legislature, and +representatives and senators in Congress, but they are not yet a State, +and are, as before, under the Territorial government established by the +General Government. It does not exist as a State till recognized by +Congress and admitted into the Union. The existence of the State, and +the rights and powers of the people within the State, depend on their +being a State in the Union, or a State united. Hence a State erected on +the national domain, but itself outside of the Union, is not an +independent foreign State, but simply no State at all, in any sense of +the term. As there is no union outside of the States, so is there no +State outside of the Union; and to be a citizen either of a State or of +the United States, it is necessary to be a citizen of a State, and of a +State in the Union. The inhabitants of Territories not yet erected +into States are subjects, not citizens--that is, not citizens with +political rights. The sovereign people are not the people outside of +State organization, nor the people of the States severally, but the +distinct people of the several States united, and therefore most +appropriately called the people of the United States. + +This is the peculiarity of the American constitution and is +substantially the very peculiarity noted and dwelt upon by Mr. Madison +in his masterly letter to Edward Everett, published in the "North +American Review," October, 1830. + +"I In order to understand the true character of the constitution of the +United States," says Mr. Madison, "the error, not uncommon, must be +avoided of viewing it through the medium either of a consolidated +government or of a confederated government, whilst it is neither the +one nor the other, but a mixture of both. And having, in no model, the +similitudes and analogies applicable to other systems of government, it +must, more than any other, be its own interpreter, according to its +text and the facts in the case. + +"From these it will be seen that the characteristic peculiarities of +the constitution are: 1. The mode of its formation. 2. The division of +the supreme powers of government between the States in their united +capacity and the States in their individual capacities. + +"1. It was formed not by the governments of the component States, as +the Federal Government, for which it was substituted, was formed; nor +was it formed by a majority of the people of the United States as a +single community, in the manner of a consolidated government. It was +formed by the States; that is, by the people in each of the States, +acting in their highest sovereign capacity, and formed consequently by +the same authority which formed the State constitution. + +"Being thus derived from the same source as the constitutions of the +States, it has within each State the same authority as the constitution +of the State, and is as much a constitution in the strict sense of the +term, within its prescribed sphere, as the constitutions of the States +are within their respective spheres; but with this obvious and +essential difference, that, being a compact among the States in their +highest capacity, and constituting the people thereof one people for +certain purposes, it cannot be altered or annulled at the will of the +States individually, as the constitution of a State may be at its +individual will. + +"2. And that it divides the supreme powers of government between the +government of the United States and the governments of the individual +States, is stamped on the face of the instrument; the powers of war and +of taxation, of commerce and treaties, and other enumerated powers +vested in the government of the United States, are of high and +sovereign a character as any of the powers reserved to the State +governments." + +Mr. Jefferson, Mr. Webster, Chancellor Kent, Judge Story, and nearly +all the old Republicans, and even the old Federalists, on the question +as to what is the actual constitution of the United States, took +substantially the same view; but they all, as well as Mr. Madison +himself, speak of the written constitution, which on their theory has +and can have only a conventional value. Mr. Madison evidently +recognizes no constitution of the people prior to the written +constitution, from which the written constitution, or the constitution +of the government, derives all its force and vitality. The +organization of the American people, which he knew well--no man +better,--and which he so justly characterizes, he supposes to have been +deliberately formed by the people themselves, through the +convention--not given them by Providence as their original and inherent +constitution. But this was merely the effect of the general doctrine +which he had adopted, in common with nearly all his contemporaries, of +the origin of the state in compact, and may be eliminated from his view +of what the constitution actually is, without affecting that view +itself. + +Mr. Madison lays great stress on the fact that though the constitution +of the Union was formed by the States, it was formed, not by the +governments, but by the people of the several States; but this makes no +essential difference, if the people are the people of the States, and +sovereign in their severalty, and not in their union. Had it been +formed by the State governments with the acquiescence of the people, it +would have rested on as high authority as if formed by the people of +the State in convention assembled. The only difference is, that if the +State ratified it by the legislature, she could abrogate it by the +legislature; if in convention, she could abrogate it only in +convention. Mr. Madison, following Mr. Jefferson, supposes the +constitution makes the people of the several States one people for +certain specific purposes, and leaves it to be supposed that in regard +to all other matters, or in all other relations, they are sovereign; +and hence he makes the government a mixture of a consolidated +government and a confederated government, but neither the one nor the +other exclusively. Say the people of the United States were one people +in all respects, and under a government which is neither a consolidated +nor a confederated government, nor yet a mixture of the two, but a +government in which the powers of government are divided between a +general government and particular governments, each emanating from the +same source, and you will have the simple fact, and precisely what Mr. +Madison means, when is eliminated what is derived from his theory of +the origin of government in compact. It is this theory of the +conventional origin of the constitution, and which excludes the +Providential or real constitution of the people, that has misled him +and so many other eminent statesmen and constitutional lawyers. + +The convention did not create the Union or unite the States, for it was +assembled by the authority of the United States who were present in it. +The United States or Union existed before the convention, as the +convention itself affirms in declaring one of its purposes to be "to +provide for a more perfect union." If there had been no union, it +could not and would not have spoken of providing for a more perfect +union, but would have stated its purpose to be to create or form a +union. The convention did not form the Union, nor in fact provide for +a more perfect union; it simply provided for the more perfect +representation or expression in the General government of the Union +already existing. The convention, in common with the statesmen at the +time, recognized no unwritten or Providential constitution of a people, +and regarded the constitution of government as the constitution of the +state, and consequently sometimes put the state for the government. In +interpreting its language, it is necessary to distinguish between its +act and its theory. Its act is law, its theory is not. The convention +met, among other things, to organize a government which should more +perfectly represent the union of the States than did the government +created by the Articles of Confederation. + +The convention, certainly, professes to grant or concede powers to the +United States, and to prohibit powers to the States; but it simply puts +the state for the government. The powers of the United States are, +indeed, grants or trusts, but from God through the law of nature, and +are grants, trusts, or powers always conceded to every nation or +sovereign people. But none of them are grants from the convention. +The powers the convention grants or concedes to the United States are +powers granted or conceded by the United States to the General +government it assembled to organize and establish, which, as it extends +over the whole population and territory of the Union, and, as the +interests it is charged with relate to all the States in common, or to +the people as a whole, is with no great impropriety called the +government of the United States, in contradistinction from the State +governments, which have each only a local jurisdiction. But the more +exact term is, for the one, the general government, and for the others, +particular governments, as having charge only of the particular +interests of the State; and the two together constitute the government +of the United States, or the complete national government; for neither +the General government nor the State government is complete in itself. +The convention developed a general government, and prescribed its +powers, and fixed their limits and extent, as well as the bounds of the +powers of the State or particular governments; but they are the United +States assembled in convention that do all this, and, therefore, +strictly speaking, no powers are conceded to the United States that +they did not previously possess. The convention itself, in the +constitution it ordained, defines very clearly from whom the General +government holds its powers. It holds them, as we I have seen, from +"We, the people of the United States;" not we, the people of the States +severally, but of the States united. If it had meant the States +severally, it would have said, We, the States; if it had recognized and +meant the population of the country irrespective of its organization +into particular States, it would have said simply, We, the people. By +saying "We, the people of the United States," it placed the sovereign +power where it is, in the people of the States united. + +The convention ordains that the powers not conceded to the General +government or prohibited to the particular governments, "are reserved +to the States respectively, or to the people." But the powers reserved +to the States severally are reserved by order of the United States, and +the powers not so reserved are reserved to the people. What people? +The first thought is that they are the people of the States severally; +for the constitution understands by people the state as distinguished +from the state government; but if this had been its meaning in this +place, it would have said, "are reserved to the States respectively, or +to the people" thereof. As it does not say so, and does not define the +people it means, it is necessary to understand by them the people +called in the preamble "the people of the United States." This is +confirmed by the authority reserved to amend the constitution, which +certainly is not reserved to the States severally, but necessarily to +the power that ordains the constitution--"We, the people of the United +States." No power except that which ordains is or can be competent to +amend a constitution of government. The particular mode prescribed by +the convention in which the constitution of the government may be +amended has no bearing on the present argument, because it is +prescribed by the States united, not severally, and the power to amend +is evidently reserved, not indeed to the General government, but to the +United States; for the ratification by any State or Territory not in +the Union counts for nothing. The States united, can, in the way +prescribed, give more or less power to the General government, and +reserve more or less power to the States individually. The so-called +reserved powers are really reserved to the people of the United States, +who can make such disposition of them as seems to them good. + +The conclusion, then, that the General government holds from the States +united, not from the States severally, is not invalidated by the fact +that its constitution was completed only by the ratification of the +States in their individual capacity. The ratification was made +necessary by the will of the people in convention assembled; but the +convention was competent to complete it and put it in force without +that ratification, had it so willed. The general practice under the +American system is for the convention to submit the constitution it has +agreed on to the people, to be accepted or rejected by a plebiscitum; +but such submission, though it may be wise and prudent, is not +necessary. The convention is held to be the convention of the people, +and to be clothed with the full authority of the sovereign people, and +it is in this that it differs from the congress or the legislature. It +is not a congress of delegates or ministers who are obliged to act +under instructions, to report their acts to their respective sovereigns +for approval or rejection; it is itself sovereign, and may do whatever +the people themselves can do. There is no necessity for it to appeal +to a plebiscitum to complete its acts. That the convention, on the +score of prudence, is wise in doing so, nobody questions; but the +convention is always competent, if it chooses, to ordain the +constitution without appeal. The power competent to ordain the +constitution is always competent to change, modify, or amend it. That +amendments to the constitution of the government can be adopted only by +being proposed by a convention of all the States in the Union, or by +being proposed, by a two-thirds vote of both houses of Congress, and +ratified by three-fourths of the States, is simply a conventional +ordinance, which the convention can change at its pleasure. It proves +nothing as it stands but the will of the convention. + +The term ratification itself, because the term commonly used in +reference to treaties between sovereign powers, has been seized on, +since sometimes used by the convention, to prove that the constitution +emanates from the States severally, and is a treaty or compact between +sovereign states, not an organic or fundamental law ordained by a +single sovereign will; but this argument is inadmissible, because, as +we have just seen, the convention is competent to ordain the +constitution without submitting it for ratification, and because the +convention uses sometimes the word adopt instead of the word ratify. +That the framers of the constitution held it to be a treaty, compact, +or agreement among sovereigns, there is no doubt, for they so held in +regard to all constitution of government; and there is just as little +doubt that they intended to constitute, and firmly believed that they +were constituting a real government. Mr. Madison's authority on this +point is conclusive. They unquestionably regarded the States, prior to +the ratification of the constitution they proposed, as severally +sovereign, as they were declared to be by the old Articles of +Confederation, but they also believed that all individuals are +sovereign prior to the formation of civil society. Yet very few, if +any, of them believed that they remained sovereign after the adoption +of the constitution; and we may attribute to their belief in the +conventional origin of all government,--the almost universal belief of +the time among political philosophers,--the little account which they +made of the historical facts that prove that the people of the United +States were always one people, and that the States never existed as +severally sovereign states. + +The political philosophers of the present day do not generally accept +the theory held by our fathers, and it has been shown in these pages to +be unsound and incompatible with the essential nature of government. +The statesmen of the eighteenth century believed that the state is +derived from the people individually, and held that sovereignty is +created by the people in convention. The rights and powers of the +state, they held, were made up of the rights held by individuals under +the law of nature, and which the individuals surrendered to civil +society on its formation. So they supposed that independent sovereign +states might meet in convention, mutually agree to surrender a portion +of their rights, organize their surrendered rights into a real +government, and leave the convention shorn, at least, of a portion of +their sovereignty. This doctrine crops out everywhere in the writings +of the elder Adams, and is set forth with rare ability by Mr. Webster, +in his great speech in the Senate against the State sovereignty +doctrine of General Hayne and Mr. Calhoun, which won for him the +honorable title of Expounder of the Constitution--and expound it he, no +doubt, did in the sense of its framers. He boldly concedes that prior +to the adoption of the constitution, the people of the United States +were severally sovereign states, but by the constitution they were made +one sovereign political community or people, and that the States, +though retaining certain rights, have merged their several sovereignty +in the Union. + +The subtle mind of Mr. Calhoun, who did not hold that a state can +originate in compact, proved to Mr. Webster that his theory could not +stand; that, if the States went into the convention sovereign States, +they came out of it sovereign States; and that the constitution they +formed could from the nature of the case be only a treaty, compact, or +agreement between sovereigns. It could create an agency, but not a +government. The sovereign States could only delegate the exercise of +their sovereign powers, not the sovereign powers themselves. The +States could agree to exercise certain specific powers of sovereignty +only in common, but the force and vitality of the agreement depended on +the States, parties to the agreement retaining respectively their +sovereignty. Hence, he maintained that sovereignty, after as before +the convention, vested in the States severally. Hence State +sovereignty, and hence his doctrine that in all cases that cannot come +properly before the Supreme Court of the United States for decision, +each State is free to decide for itself, on which he based the right of +nullification, or the State veto of acts of Congress whose +constitutionality the State denies. Mr. Calhoun was himself no +secessionist, but he laid down the premises from which secession is the +logical deduction; and large numbers of young men, among the most open, +the most generous, and the most patriotic in the country, adopted his +premises, without being aware of this fact any more than he himself +was, and who have been behind none in their loyalty to the Union, and +in their sacrifices to sustain it, in the late rebellion. + +The formidable rebellion which is now happily suppressed, and which +attempted to justify itself by the doctrine of State sovereignty, has +thrown, in many minds, new light on the subject, and led them to +re-examine the historical facts in the case from a different point of +view, to see if Mr. Calhoun's theory is not as unfounded as he had +proved Mr. Webster's theory to be. The facts in the case really +sustain neither, and both failed to see it: Mr. Calhoun because he had +purposes to accomplish which demanded State sovereignty, and Mr. +Webster because he examined them in the distorting medium of the theory +or understanding of the statesmen of the eighteenth century. The civil +war has vindicated the Union, and defeated the armed forces of the +State sovereignty men; but it has not refuted their doctrine, and as +far as it has had any effect, it has strengthened the tendency to +consolidation or centralism. + +But the philosophy, the theory of government, the understanding of the +framers of the constitution, must be considered, if the expression will +be allowed, as obiter dicta, and be judged on their merits. What binds +is the thing done, not the theory on which it was done, or on which the +actors explained their work either to themselves or to others. Their +political philosophy, or their political theory, may sometimes affect +the phraseology they adopt, but forms no rule for interpreting their +work. Their work was inspired by and accords with the historical facts +in the case, and is authorized and explained by them. The American +people were not made one people by the written constitution, as Mr. +Jefferson, Mr. Madison, Mr. Webster, and so many others supposed, but +were made so by the unwritten constitution, born with and inherent in +them. + + + + +CHAPTER XI. + +THE CONSTITUTION--CONTINUED. + + +Providence, or God operating through historical facts, constituted the +American people one political or sovereign people, existing and acting +in particular communities, organizations, called states. This one +people organized as states, meet in convention, frame and ordain the +constitution of government, or institute a general government in place +of the Continental Congress; and the same people, in their respective +State organizations, meet in convention in each State, and frame and +ordain a particular government for the State individually, which, in +union with the General government, constitutes the complete and supreme +government within the States, as the General government, in union with +all the particular governments, constitutes the complete and supreme +government of the nation or whole country. This is clearly the view +taken by Mr. Madison in his letter to Mr. Everett, when freed from his +theory of the origin of government in compact. + +The constitution of the people as one people, and the distinction at +the same time of this one people into particular States, precedes the +convention, and is the unwritten constitution, the Providential +constitution, of the American people or civil society, as distinguished +from the constitution of the government, which, whether general or +particular, is the ordination of civil society itself. The unwritten +constitution is the creation or constitution of the sovereign, and the +sovereign providentially constituted constitutes in turn the +government, which is not sovereign, but is clothed with just so much +and just so little authority as the sovereign wills or ordains. + +The sovereign in the republican order is the organic people, or State, +and is with us the United States, for with us the organic people exist +only as organized into States united, which in their union form one +compact and indissoluble whole. That is to say, the organic American +people do not exist as a consolidated people or state; they exist only +as organized into distinct but inseparable States. Each State is a +living member of the one body, and derives its life from its union with +the body, so that the American state is one body with many members; and +the members, instead of being simply individuals, are States, or +individuals organized into States. The body consists of many members, +and is one body, because the members are all members of it, and members +one of another. It does not exist as separate or distinct from the +members, but exists in their solidarity or membership one of another. +There is no sovereign people or existence of the United States +distinguishable from the people or existence of the particular States +united. The people of the United States, the state called the United +States, are the people of the particular States united. The solidarity +of the members constitutes the unity of the body. The difference +between this view and Mr. Madison's is, that while his view supposes +the solidarity to be conventional, originating and existing in compact, +or agreement, this supposes it to be real, living, and prior to the +convention, as much the work of Providence as the existence in the +human body of the living solidarity of its members. One law, one life, +circulates through all the members, constituting them a living +organism, binding them in living union, all to each and each to all. + +Such is the sovereign people, and so far the original unwritten +constitution. The sovereign, in order to live and act, must have an +organ through which he expresses his will. This organ under the +American system, is primarily the Convention. The convention is the +supreme political body, the concrete sovereign authority, and exercises +practically the whole sovereign power of the people. The convention +persists always, although not in permanent session. It can at any time +be convened by the ordinary authority of the government, or, in its +failure, by a plebiscitum. + +Next follows the Government created and constituted by the convention. +The government is constituted in such manner, and has such and only +such powers, as the convention ordains. The government has, in the +strict sense, no political authority under the American system, which +separates the government from the convention. All political questions +proper, such as the elective franchise, eligibility, the constitution +of the several departments of government, as the legislative, the +judicial, and the executive, changing, altering, or amending the +constitution of government, enlarging, or contracting its powers, in a +word, all those questions that arise on which it is necessary to take +the immediate orders of the sovereign, belong not to the government, +but to the convention; and where the will of the sovereign is not +sufficiently expressed in the constitution, a new appeal to the +convention is necessary, and may always be had. The constitution of +Great Britain makes no distinction between the convention and the +government. Theoretically the constitution of Great Britain is feudal, +and there is, properly speaking, no British state; there are only the +estates, king, lords, and commons, and these three estates constitute +the Parliament, which is held to be omnipotent; that is, has the +plenitude of political sovereignty. The British Parliament, composed +of the three estates, possesses in itself all the powers of the +convention in the American constitution, and is at once the convention +and the government. The imperial constitution of France recognizes no +convention, but clothes the senate with certain political functions, +which, in some respects, subjects theoretically the sovereign to his +creature. The emperor confessedly holds his power by the grace of God +and the will of the nation, which is a clear acknowledgment that the +sovereignty vests in the French people as the French state; but the +imperial constitution, which is the constitution of the government, not +of the state, studies, while acknowledging the sovereignty of the +people, to render it nugatory, by transferring it, under various subtle +disguises, to the government, and practically to the emperor as chief +of the government. The senate, the council of state, the legislative +body, and the emperor, are all creatures of the French state, and have +properly no political functions, and to give them such functions is to +place the sovereign under his own subjects! The real aim of the +imperial constitution is to secure despotic power under the guise of +republicanism. It leaves and is intended to leave the nation no way of +practically asserting its sovereignty but by either a revolution or a +plebiscitum, and a plebiscitum is permissible only where there is no +regular government. + +The British constitution is consistent with itself, but imposes no +restriction on the power of the government. The French imperial +constitution is illogical, inconsistent with itself as well as with the +free action of the nation. The American constitution has all the +advantages of both, and the disadvantages of neither. The convention +is not the government like the British Parliament, nor a creature of +the state like the French senate, but the sovereign state itself, in a +practical form. By means of the convention the government is +restricted to its delegated powers, and these, if found in practice +either too great or too small, can be enlarged or contracted in a +regular, orderly way, without resorting to a revolution or to a +plebiscitum. Whatever political grievances there may be, there is +always present the sovereign convention competent to redress them. The +efficiency of power is thus secured without danger to liberty, and +freedom without danger to power. The recognition of the convention, +the real political sovereign of the country and its separation from and +independence of the ordinary government, is one of the most striking +features of the American constitution. + +The next thing to be noted, after the convention, is the constitution +by the convention of the government. This constitution, as Mr. Madison +well observes, divides the powers conceded by the convention to +government between the General Government and the particular State +governments. Strictly speaking, the government is one, and its powers +only are divided and exercised by two sets of agents or ministries. +This division of the powers of government could never have been +established by the convention if the American people had not been +providentially constituted one people, existing and acting through +particular State organizations. Here the unwritten constitution, or +the constitution written in the people themselves, rendered practicable +and dictated the written constitution, or constitution ordained by the +convention and engrossed on parchment. It only expresses in the +government the fact which pre-existed in the national organization and +life. + +This division of the powers of government is peculiar to the United +States, and is an effective safeguard against both feudal +disintegration and Roman centralism. Misled by their prejudices and +peculiar interests, a portion of the people of the United States, +pleading in their justification the theory of State sovereignty, +attempted disintegration, secession, and national independence separate +from that of the United States, but the central force of the +constitution was too strong for them to succeed. The unity of the +nation was too strong to be effectually broken. No doubt the reaction +against secession and disintegration will strengthen the tendency to +centralism, but centralism can succeed no better than disintegration +has succeeded because the General government has no subsistentia, no +suppositum, to borrow a theological term, outside or independent of the +States. The particular governments are stronger, if there be any +difference, to protect the States against centralism than the General +government is to protect the Union against disintegration; and after +swinging for a time too far toward one extreme and then too far toward +the other, the public mind will recover its equilibrium, and the +government move on in its constitutional path. + +Republican Rome attempted to guard against excessive centralism by the +tribunitial veto, or by the organization of a negative or obstructive +power. Mr. Calhoun thought this admirable, and wished to effect the +same end here, where it is secured by other, more effective, and less +objectionable means, by a State veto on the acts of Congress, by a dual +executive, and by substituting concurrent for numerical majorities. +Imperial Rome gradually swept away the tribunitial veto, concentrated +all power in the hands of the emperor, became completely centralized, +and fell. The British constitution seeks the same end by substituting +estates for the state, and establishing a mixed government, in which +monarchy, aristocracy, and democracy temper, check, or balance each +other; but practically the commons estate has become supreme, and the +nobility govern not in the house of lords, and can really influence +public affairs only through the house of commons. The principle of the +British constitution is not the division of the powers of government, +but the antagonism of estates, or rather of interests, trusting to the +obstructive influence of that antagonism to preserve the government +from pure centralism. Hence the study of the British statesman is to +manage diverse and antagonistic parties and interests so as to gain the +ability to act, which he can do only by intrigue, cajolery, bribery in +one form or another, and corruption of every sort. The British +government cannot be carried on by fair, honest, and honorable means, +any more than could the Roman under the antagonism created by the +tribunitial veto. The French tried the English system of organized +antagonism in 1789, as a cure for the centralism introduced by +Richelieu and Louis XIV., and again under the Restoration and Louis +Philippe, and called it the system of constitutional guarantees; but +they could never manage it, and they have taken refuge in unmitigated +centralism under Napoleon III., who, however well disposed, finds no +means in the constitution of the French nation of tempering it. The +English system, called the constitutional, and sometimes the +parliamentary system, will not work in France, and indeed works really +well nowhere. + +The American system, sometimes called the Federal system, is not +founded on antagonism of classes, estates, or interests, and is in no +sense a system of checks and balances. It needs and tolerates no +obstructive forces. It does not pit section against section, the +States severally against the General government, nor the General +government against the State governments, and nothing is more hurtful +than the attempt to explain it and work it on the principles of British +constitutionalism. The convention created no antagonistic powers; it +simply divided the powers of government, and gave neither to the +General government nor to the State governments all the powers of +government, nor in any instance did it give to the two governments +jurisdiction in the same matters. Hence each has its own sphere, in +which it can move on without colliding with that of the other. Each is +independent and complete in relation to its own work, incomplete and +dependent on the other for the complete work of government. + +The division of power is not between a NATIONAL government and State +governments, but between a GENERAL government and particular +governments. The General government, inasmuch as it extends to matters +common to all the States, is usually called the Government of the +United States, and sometimes the Federal government, to distinguish it +from the particular or State governments, but without strict propriety; +for the government of the United States, or the Federal government, +means, in strictness, both the General government and the particular +Governments, since neither is in itself the complete government of the +country. The General government has authority within each of the +States, and each of the State governments has authority in the Union. +The line between the Union and the States severally, is not precisely +the line between the General government and the particular governments. +As, for instance, the General government lays direct taxes on the +people of the States, and collects internal revenue within them; and +the citizens of a particular State, and none others, are electors of +President and Vice-President of the United States, and representatives +in the lower house of Congress, while senators in Congress are elected +by the State legislatures themselves. + +The line that distinguishes the two governments is that which +distinguishes the general relations and interests from the particular +relations and interests of the people of the United States. These +general relations and interests are placed under the General +government, which, because its jurisdiction is coextensive with the +Union, is called the Government of the United States; the particular +relations and interests are placed under particular governments, which, +because their jurisdiction is only coextensive, with the States +respectively, are called State governments. The General government +governs supremely all the people of the United States and Territories +belonging to the Union, in all their general relations and interests, +or relations and interests common alike to them all; the particular or +State government governs supremely the people of a particular State, as +Massachusetts, New York, or New Jersey, in all that pertains to their +particular or private rights, relations, and interests. The powers of +each are equally sovereign, and neither are derived from the other. +The State governments are not subordinate to the General government, +nor the General government to the State governments. They are +co-ordinate governments, each standing on the same level, and deriving +its powers from the same sovereign authority. In their respective +spheres neither yields to the other. In relation to the matters within +its jurisdiction, each government is independent and supreme in regard +of the other, and subject only to the convention. + +The powers of the General government are the power-- + +To lay and collect taxes, duties, imposts, and excises, to pay the +debts and provide for the general welfare of the United States; to +borrow money on the credit of the United States; to regulate commerce +with foreign nations, among the several States, and with the Indian +tribes; to establish a uniform rule of naturalization, and uniform laws +on the subject of bankruptcies throughout the United States; to coin +money and regulate the value thereof, and fix the standard of weights +and measures; to provide for the punishment of counterfeiting the +securities and current coin of the United States; to establish +post-offices and post-roads; to promote the progress of science and of +the useful arts, by securing for limited times to authors and inventors +the exclusive right to their respective writings and discoveries; to +define and punish piracies and felonies committed on the high seas, and +offences against the law of nations; to declare war, grant letters of +marque and reprisal, and make rules concerning captures on land and +water; to raise and support armies; to provide and maintain a navy; to +make rules for the government of the land and naval forces; to provide +for calling forth the militia to execute the laws of the Union, +suppress insurrections, and repel invasions; to provide for organizing, +arming, and disciplining the militia, and of governing such part of +them as may be employed in the service of the United States; to +exercise exclusive legislation in all cases whatsoever over such +district, not exceeding ten miles square, as may by cession of +particular States and the acceptance of Congress, become the seat of +the government of the United States, and to exercise a like authority +over all places purchased by the consent of the legislature of the +State in which the same shall be, for the erection of forts, magazines, +arsenals, dock-yards, and other needful buildings; and to make all laws +which shall be necessary and proper for carrying into execution the +foregoing powers, and all other powers vested by this constitution in +the government of the United States, or in any department or office +thereof. + +In addition to these, the General government is clothed with the +treaty-making power, and the whole charge of the foreign relations of +the country; with power to admit new States into the Union; to dispose +of and make all needful rules and regulations concerning the territory +and all other property belonging to the United States; to declare, with +certain restrictions, the punishment of treason, the constitution +itself defining what is treason against the United States; and to +propose, or to call, on the application of the legislatures of +two-thirds of all the states, a convention for proposing amendments to +this constitution; and is vested with supreme judicial power, original +or appellate, in all cases of law and equity arising under this +constitution, the laws of the United States, and treaties made or to be +made under their authority, in all cases affecting ambassadors, other +public ministers, and consuls, in all cases of admiralty and maritime +jurisdiction, in all controversies to which the United States shall be +a party, all controversies between two or more States, between a State +and citizens of another State, between citizens of different States, +between citizens of the same State claiming lands under grants of +different States, and between a State or the citizens thereof and +foreign states, citizens, or subjects. + +These, with what is incidental to them, and what is necessary and +proper to carry them into effect, are all the positive powers with +which the convention vests the General government, or government of the +United States, as distinguished from the governments of the particular +States; and these, with the exception of what relates to the district +in which it has its seat, and places of forts, magazines, &c., are of a +general nature, and restricted to the common relations and interests of +the people, or at least to interests and relations which extend beyond +the limits of a particular State. They are all powers that regard +matters which extend beyond not only the individual citizen, but the +individual State, and affect alike the relations and interests of all +the States, or matters which cannot be disposed of by a State +government without the exercise of extra-territorial jurisdiction. +They give the government no jurisdiction of questions which affect +individuals or citizens only in their private and domestic relations +which lie wholly within a particular State. The General government +does not legislate concerning private rights, whether of persons or +things, the tenure of real estate, marriage, dower, inheritance, wills, +the transferrence or transmission of property, real or personal; it can +charter no private corporations, out of the District of Columbia, for +business, literary, scientific, or eleemosynary purposes, establish no +schools, found no colleges or universities, and promote science and the +useful arts only by securing to authors and inventors for a time the +exclusive right to their writings and discoveries. The United States +Bank was manifestly unconstitutional, as probably are the present +so-called national banks. The United States Bank was a private or +particular corporation, and the present national banks are only +corporations of the same sort, though organized under a general law. +The pretence that they are established to supply a national currency, +does not save their constitutionality, for the convention has not given +the General government the power nor imposed on it the duty of +furnishing a national currency. To coin money, and regulate the value +thereof, is something very different from authorizing private companies +to issue bank notes, on the basis of the public stocks held as private +property, or even on what is called a specie basis. To claim the power +under the general welfare clause would be a simple mockery of good +sense. It is no more for the general welfare than any other successful +private business. The private welfare of each is, no doubt, for the +welfare of all, but not therefore is it the "general welfare," for what +is private, particular in its nature, is not and cannot be general. To +understand by general welfare that which is for the individual welfare +of all or the greater number, would be to claim for the General +government all the powers of government, and to deny that very division +of powers which is the crowning merit of the American system. The +general welfare, by the very force of the words themselves, means the +common as distinguished from the private or individual welfare. The +system of national banks may or may not be a good and desirable system, +but it is difficult to understand the constitutional power of the +General government to establish it. + +On the ground that its powers are general, not particular, the General +government has no power to lay a protective tariff. It can lay a +tariff for revenue, not for protection of home manufactures or home +industry; for the interests fostered, even though indirectly +advantageous to the whole people, are in their nature private or +particular, not general interests, and chiefly interests of private +corporations and capitalists. Their incidental or even consequential +effects do not change their direct and essential nature. So with +domestic slavery. Slavery comes under the head of private rights, +whether regarded on the side of the master or on the side of the slave. +The right of a citizen to hold a slave, if a right at all, is the +private right of property, and the right of the slave to his freedom is +a private and personal right, and neither is placed under the safeguard +of the General government, which has nowhere, unless in the District of +Columbia and the places over which it has exclusive legislative power +in all cases whatsoever, either the right to establish it or to abolish +it, except perhaps under the war power, as a military necessity, an +indemnity for the past, or a security for the future. + +This applies to what are called Territories as well as to the States. +The right of the government to govern the Territories in regard to +private and particular rights and interests, is derived from no express +grant of power, and is held only ex necessitate--the United States +owning the domain, and there being no other authority competent to +govern them. But, as in the case of all powers held ex necessitate, +the power is restricted to the absolute necessity in the case. What +are called Territorial governments, to distinguish them from the State +governments, are only provisional governments, and can touch private +rights and interests no further than is necessary to preserve order and +prepare the way for the organization and installation of a regular +State government. Till then the law governing private rights is the +law that was in force, if any such there was, when the territory became +by purchase, by conquest, or by treaty, attached to the domain of the +United States. + +Hence the Supreme Court declared unconstitutional the ordinance of +1787, prohibiting slavery in what was called the territory of the +Northwest, and the so-called Missouri Compromise, prohibiting slavery +north of the parallel 36° 30'. The Wilmot proviso was for the same +reason unconstitutional. The General government never had and has not +any power to exclude slavery from the Territories, any more than to +abolish it in the States. But slavery being a local institution, +sustained neither by the law of nature nor the law of nations, no +citizen migrating from a slave State could carry his slaves with him, +and hold them as slaves in the Territory. Rights enacted by local law +are rights only in that locality, and slaves carried by their masters +into a slave State even, are free, unless the State into which they are +carried enacts to the contrary. The only persons that could be held as +slaves in a Territory would be those who were slaves or the children of +those who were slaves in the Territory when it passed to the United +States. The whole controversy on, slavery in the Territories, and +which culminated in the civil war, was wholly unnecessary, and never +could have occurred had the constitution been properly understood and +adhered to by both sides. True, Congress could not exclude slavery +from the Territory, but neither could citizens migrating to them hold +slaves in them; and so really slavery was virtually excluded, for the +inhabitants in nearly all of them, not emigrants from the States after +the cession to the United States, were too few to be counted. + +The General government has power to establish a uniform rule of +naturalization, to which all the States must conform, and it was very +proper that it should have this power, so as to prevent one State from +gaining by its naturalization laws an undue advantage over another; but +the General government has itself no power to naturalize a single +foreigner, or in any case to say who shall or who shall not be +citizens, either of a State or of the United States, or to declare who +may or may not be electors even of its own officers. The convention +ordains that members of the house of representatives shall be chosen by +electors who have the qualifications requisite for electors of the most +numerous branch of the State legislature, but the State determines +these qualifications, and who do or do not possess them; that the +senators shall be chosen by the State legislatures, and that the +electors of President and Vice-President shall be appointed in such +manner as the respective State legislatures may direct. The whole +question of citizenship, what shall or shall not be the qualifications +of electors, who shall or shall not be freemen, is reserved to the +States, as coming under the head of personal or private rights and +franchises. In practice, the exact line of demarcation may not always +have been strictly observed either by the General government or by the +State governments; but a careful study of the constitution cannot fail +to show that the division of powers is the division or distinction +between the public and general relations and interests, rights and +duties of the people, and their private and particular relations and +interests, rights and duties. As these two classes of relations and +interests, rights and duties, though distinguishable, are really +inseparable in nature, it follows that the two governments are +essential to the existence of a complete government, or to the +existence of a real government in its plenitude and integrity. Left to +either alone, the people would have only an incomplete, an initial, or +inchoate government. The General government is the complement of the +State governments, and the State governments are the complement of the +General government. + +The consideration of the powers denied by the convention to the General +government and to the State governments respectively, will lead to the +same conclusion. To the General government is denied expressly or by +necessary implication all jurisdiction in matters of private rights and +interests, and to the State government is denied all jurisdiction in +right, or interests which extend, as has been said, beyond the +boundaries of the State. "No State shall enter into any treaty, +alliance, or confederation; grant letters of marque and reprisal; coin +money, emit bills of credit, make any thing but gold and silver coin a +tender in the payment of debts; pass any bill of attainder, ex post +facto law, or law impairing the obligation of contracts, or grant any +title of nobility. No State shall, without the consent of Congress, +lay any imposts or duties on imports or exports, except what may be +absolutely necessary for executing its inspection laws and the net +produce of all duties and imposts laid by any State on imports and +exports shall be for the use of the treasury of the United States, and +all such laws shall be subject to the revision and control of Congress. +No State shall, without the consent of Congress, lay any duty of +tonnage, keep troops or ships-of-war in time of peace, enter into any +agreement or compact with another State or with a foreign power, or +engage in war, unless actually invaded, or in such imminent danger as +will not admit of delay." + +The powers denied to the States in some matters which are rather +private and particular, such as bills of attainder, ex post facto laws, +laws impairing the obligation of contracts, granting titles of +nobility, are denied equally to the General government. There is +evidently a profound logic in the constitution, and there is not a +single provision in it that is arbitrary, or anomalous, or that does +not harmonize dialectically with the whole, and with the real +constitution of the American people. At first sight the reservation to +the State of the appointment of the officers of the militia might seem +an anomaly; but as the whole subject of internal police belongs to the +State, it should have some military force at its command. The subject +of bankruptcies, also, might seem to be more properly within the +province of the State, and so it would be if commerce between the +several States had not been placed under Congress, or if trade were +confined to the citizens of the State and within its boundaries; but as +such is not the case, it was necessary to place it under the General +government, in order that laws on the subject might be uniform +throughout the Union, and that the citizens of all the States, and +foreigners trading with them, should be placed on an equal footing, and +have the same remedies. The subject follows naturally in the train of +commerce, for bankruptcies, as understood at the time, were confined to +the mercantile class, bankers, and brokers; and since the regulation of +commerce, foreign and inter-state, was to be placed under the sole +charge of the General government, it was necessary that bankruptcy +should be included. The subject of patents is placed under the General +government, though the patent is a private right, because it was the +will of the convention that the patent should be good in all the +States, as affording more encouragement to science and the useful arts +than if good only within a single State, or if the power were left to +each State to recognize or not patents granted by another. The right +created, though private in its nature, is Yet general or common to all +the States in its enjoyment or exercise. + +The division of the powers of government between a General government +and particular governments, rendered possible and practicable by the +original constitution of the people themselves, as one people existing +and acting through State organizations, is the American method of +guarding against the undue centralism to which Roman imperialism +inevitably tends; and it is far simpler and more effective than any of +the European systems of mixed governments, which seek their end by +organizing an antagonism of interests or classes. The American method +demands no such antagonism, no neutralizing of one social force by +another, but avails itself of all the forces of society, organizes them +dialectically, not antagonistically, and thus protects with, equal +efficiency both public authority and private rights. The General +government can never oppress the people as individuals, or abridge +their private rights or personal freedom and independence, because +these are not within its jurisdiction, but are placed in charge, within +each State, of the State government, which, within its sphere, governs +as supremely as the General government: the State governments cannot +weaken the public authority of the nation or oppress the people in +their general rights and interests, for these are withdrawn from State +jurisdiction, and placed under charge of a General government, which, +in its sphere, governs as supremely as the State government. There is +no resort to a system of checks and balances; there is no restraint on +power, and no systematic distrust of power, but simply a division of +powers between two co-ordinate governments, distinct but inseparable, +moving in distinct spheres, but in the same direction, or to a common +end. The system is no invention of man, is no creation of the +convention, but is given us by Providence in the living constitution of +the American people. The merit of the statesmen of 1787 is that they +did not destroy or deface the work of Providence, but accepted it, and +organized the government in harmony with the real orders the real +elements given them. They suffered themselves in all their positive +substantial work to be governed by reality, not by theories and +speculations. In this they proved themselves statesmen, and their work +survives; and the republic, laugh as sciolists may, is, for the present +and future, the model republic--as much so as was Rome in her day; and +it is not simply national pride nor American self-conceit that +pronounces its establishment the beginning of a new and more advanced +order of civilization; such is really the fact. + +The only apparently weak point in the system is in the particular +States themselves. Feudalism protected the feudal aristocracy +effectively for a time against both the king and the people, but left +the king and the people without protection against the aristocracy, and +hence it fell. It was not adequate to the wants of civil society, did +not harmonize all social elements, and protect all social and +individual rights and interests, and therefore could not but fail. The +General government takes care of public authority and rights; the State +protects private rights and personal freedom as against the General +government: but what protects the citizens in their private rights, +their personal freedom and independence, against the particular State +government? Universal suffrage, answers the democrat. Armed with the +ballot, more powerful than the sword, each citizen is able to protect +himself. But this is theory, not reality. If it were true, the +division of the powers of government between two co-ordinate, +governments would be of no practical importance. Experience does not +sustain the theory, and the power of the ballot to protect the +individual may be rendered ineffective by the tyranny of party. +Experience proves that the ballot is far less effective in securing the +freedom and independence of the individual citizen than is commonly +pretended. The ballot of an isolated individual counts for nothing. +The individual, though armed with the ballot, is as powerless, if he +stands alone, as if he had it not. To render it of any avail he must +associate himself with a party, and look for his success in the success +of his party; and to secure the success of his party, he must give up +to it his own private convictions and free will. In practice, +individuals are nothing individually, and parties are every thing. +Even the suppression of the late rebellion, and the support of the +Administration in doing it, was made a party question, and the +government found the leaders of the party opposed to the Republican +party an obstacle hardly less difficult to surmount than the chiefs of +the armies of the so-called Confederate States. + +Parties are formed, one hardly knows how, and controlled, no one knows +by whom; but usually by demagogues, men who have some private or +personal purposes, for which they wish, through party to use the +government. Parties have no conscience, no responsibility, and their +very reason of being is, the usurpation and concentration of power. +The real practical tendency of universal suffrage is to democratic, +instead of an imperial, centralism. What is to guard against this +centralism? Not universal suffrage, for that tends to create it; and if +the government is left to it, the government becomes practically the +will of an ever shifting and irresponsible majority. Is the remedy in +written or paper constitutions? Party can break through them, and by +making the judges elective by party, for short terms, and re-eligible, +can do so with impunity. In several of the States, the dominant +majority have gained the power to govern at will, without any let or +hindrance. Besides, constitutions can be altered, and have been +altered, very nearly at the will of the majority. No mere paper +constitutions are any protection against the usurpations of party, for +party will always grasp all the power it can. + +Yet the evil is not so great as it seems, for in most of the States the +principle of division of powers is carried into the bosom of the State +itself; in some States further than in others, but in all it obtains to +some extent. In what are called the New England States, the best +governed portion of the Union, each town is a corporation, having +important powers and the charge of all purely local matters--chooses +its own officers, manages its own finances, takes charge of its own +poor, of its own roads and bridges, and of the education of its own +children. Between these corporations and the State government are the +counties, that take charge of another class of interests, more general +than those under the charge of the town, but less general than those of +the State. In the great central and Northwestern States the same +system obtains, though less completely carried out. In the Southern +and Southwestern States, the town corporations hardly exist, and the +rights and interests of the poorer classes of persons have been less +well protected in them than in the Northern and Eastern States. But +with the abolition of slavery, and the lessening of the influence of +the wealthy slaveholding class, with the return of peace and the +revival of agricultural, industrial, and commercial prosperity, the New +England system, in its main features, is pretty sure to be gradually +introduced, or developed, and the division of powers in the State to be +as effectively and as systematically carried out as it is between the +General government and the particular or State governments. So, though +universal suffrage, good as far as it goes, is not alone sufficient, +the division of powers affords with it a not inadequate protection. + +No government, whose workings are intrusted to men, ever is or can be +practically perfect--secure all good, and guard against all evil. In +all human governments there will be defects and abuses, and he is no +wise man who expects perfection from imperfection. But the American +constitution, taken as a whole, and in all its parts, is the least +imperfect that has ever existed, and under it individual rights, +personal freedom and independence, as well as public authority or +society, are better protected than under any other; and as the few +barbaric elements retained from the feudal ages are eliminated, the +standard of education elevated, and the whole population Americanized, +moulded by and to the American system, it will be found to effect all +the good, with as little of the evil, as can be reasonably expected +from any possible civil government or political constitution of society. + + + + +CHAPTER XII. + +SECESSION. + + +The doctrine that a State has a right to secede and carry with it its +population and domain, has been effectually put down, and the unity and +integrity of the United States as a sovereign nation have been +effectively asserted on the battle-field; but the secessionists, though +disposed to submit to superior force, and demean themselves henceforth +as loyal citizens, most likely hold as firmly to the doctrine as before +finding themselves unable to reduce it to practice, and the Union +victory will remain incomplete till they are convinced in their +understandings that the Union has the better reason as well as the +superior military resources. The nation has conquered their bodies, +but it is hardly less important for our statesmen to conquer their +minds and win their hearts. + +The right of secession is not claimed as a revolutionary right, or even +as a conventional right. The secessionists disclaim revolutionary +principles, and hold that the right of secession is anterior to the +convention, a right which the convention could neither give, nor take +away, because inherent in the very conception of a sovereign State. +Secession is simply the repeal by the State of the act of accession to +the Union; and as that act was a free, voluntary act of the State, she +must always be free to repeal it. The Union is a copartnership; a +State in the Union is simply a member of the firm, and has the right to +withdraw when it judges it for its interest to do so. There is no +power in a firm to compel a copartner to remain a member any longer +than be pleases. He is undoubtedly holden for the obligations +contracted by the firm while he remains a member; but for none +contracted after he has withdrawn and given due notice thereof. + +So of a sovereign State in the Union. The Union itself, apart from the +sovereign States that compose it, is a mere abstraction, a nullity, and +binds nobody. All its substance and vitality are in the agreement by +which the States constitute themselves a firm or copartnership, for +certain specific purposes, and for which they open an office and +establish an agency under express instructions for the management of +the general affairs of the firm. The State is held jointly and +severally for all the legal obligations of the Union, contracted while +she is in it but no further; and is free to withdraw when she pleases, +precisely as an individual may withdraw from an ordinary business firm. +The remaining copartners have no right of compulsion or coercion +against the seceding member, for he, saving the obligations already +contracted, is as free to withdraw as they are to remain. + +The population is fixed to the domain and goes with it; the domain is +attached to the State, and secedes in the secession of the State. +Secession, then, carries the entire State government, people, and +domain out of the Union, and restores ipso facto the State to its +original position of a sovereign State, foreign to the United States. +Being an independent sovereign State, she may enter into a new +confederacy, form a new copartnership, or merge herself in some other +foreign state, as she judges proper or finds opportunity. The States +that seceded formed among themselves a new confederacy, more to their +mind than the one formed in 1787, as they had a perfect right to do, +and in the war just ended they were not rebels nor revolutionists, but +a people fighting for the right of self-government, loyal citizens and +true patriots defending the independence and inviolability of their +country against foreign invaders. They are to be honored for their +loyalty and patriotism, and not branded as rebels and punished as +traitors. + +This is the secession argument, which rests on no assumption of +revolutionary principles or abstract rights of man, and on no +allegation of real or imaginary wrongs received from the Union, but +simply on the original and inherent rights of the several States as +independent sovereign States. The argument is conclusive, and the +defence complete, if the Union is only a firm or copartnership, and the +sovereignty vests in the States severally. The refutation of the +secessionists is in the facts adduced that disprove the theory of State +sovereignty, and prove that the sovereignty vests not in the States +severally, but in the States united, or that the Union is sovereign, +and not the States individually. The Union is not a firm, a +copartnership, nor an artificial or conventional union, but a real, +living, constitutional union, founded in the original and indissoluble +unity of the American people, as one sovereign people. There is, +indeed, no such people, if we abstract the States, but there are no +States if we abstract this sovereign people or the Union. There is no +Union without the States, and there are no States without the Union. +The people are born States, and the States are born United States. The +Union and the States are simultaneous, born together, and enter alike +into the original and essential constitution of the American state. +This the facts and reasonings adduced fully establish. + +But this one sovereign people that exists only as organized into +States, does not necessarily include the whole population or territory +included within the jurisdiction of the United States. It is restricted +to the people and territory or domain organized into States in the +Union, as in ancient Rome the ruling people were restricted to the +tenants of the sacred territory, which had been surveyed, and its +boundaries marked by the god Terminus, and which by no means included +all the territory held by the city, and of which she was both the +private proprietor and the public sovereign. The city had vast +possessions acquired by confiscation, by purchase, by treaty, or by +conquest, and in reference to which her celebrated agrarian laws were +enacted, and which have their counterpart in our homestead and kindred +laws. In this class of territory, of which the city was the private +owner, was the territory of all the Roman provinces, which was held to +be only leased to its occupants, who were often dispossessed, and their +lands given as a recompense by the consul or imperator to his disbanded +legionaries. The provincials were subjects of Rome, but formed no part +of the Roman people, and had no share in the political power of the +state, till at a late period the privileges of Roman citizens were +extended to them, and the Roman people became coextensive with the +Roman empire. So the United States have held and still hold large +territorial possessions, acquired by the acknowledgment of their +independence by Great Britain, the former sovereign, the cession of +particular states, and purchase from France, Spain, and Mexico. Till +erected into States and admitted into the Union, this territory, with +its population, though subject to the United States, makes no part of +the political or sovereign territory and people of the United States. +It is under the Union, not in it, as is indicated by the phrase +admitting into the Union--a legal phrase, since the constitution +ordains that "new States may be admitted by the Congress into this +Union." + +There can be no secession that separates a State from the national +domain, and withdraws it from the territorial sovereignty or +jurisdiction of the United States; yet what hinders a State from going +out of the Union in the sense that it comes into it, and thus ceasing +to belong to the political people of the United States? + +If the view of the constitution taken in the preceding chapters be +correct, and certainly no facts tend to disprove it, the accession of a +Territory as a State in the Union is a free act of the territorial +people. The Territory cannot organize and apply for admission as a +State, without what is called an "enabling act" of Congress or its +equivalent; but that act is permissive, not mandatory, and nothing +obliges the Territory to organize under it and apply for admission. It +may do so or not, as it chooses. What, then, hinders the State once in +the Union from going out or returning to its former condition of +territory subject to the Union? The original States did not need to +come in under an enabling act, for they were born States in the Union, +and were never territory outside of the Union and subject to it. But +they and the new States, adopted or naturalized States, once in the +Union, stand on a footing of perfect equality, and the original States +are no more and no less bound than they to remain States in the Union. +The ratification of the constitution by the original States was a free +act, as much so as the accession of a new State formed from territory +subject to the Union is a free act, and a free act is an act which one +is free to do or not to do, as he pleases. What a State is free to do +or not to do, it is free to undo, if it chooses. There is nothing in +either the State constitution or in that of the United States that +forbids it. + +This is denied. The population and domain are inseparable in the +State; and if the State could take itself out of the Union, it would +take them out, and be ipso facto a sovereign State foreign to the +Union. It would take the domain and the population out of the Union, +it is conceded and even maintained, but not therefore would it take +them out of the jurisdiction of the Union, or would they exist as a +State foreign to the Union; for population and territory may coexist, +as Dacota, Colorado, or New Mexico, out of the Union, and yet be +subject to the Union, or within the jurisdiction of the United States. + +But the Union is formed by the surrender by each of the States of its +individual sovereignty, and each State by its admission into the Union +surrenders its individual sovereignty, or binds itself by a +constitutional compact to merge its individual sovereignty in that of +the whole. It then cannot cease to be a State in the Union without +breach of contract. Having surrendered its sovereignty to the Union, +or bound itself by the constitution to exercise its original +sovereignty only as one of the United States, it can unmake itself of +its state character, only by consent of the United States, or by a +successful revolution. It is by virtue of this fact that secession is +rebellion against the United States, and that the General government, +as representing the Union, has the right and the duty to suppress it by +all the forces at its command. + +There can be no rebellion where there is no allegiance. The States in +the Union cannot owe allegiance to the Union, for they are it, and for +any one to go out of it is no more an act of rebellion than it is for a +king to abdicate his throne. The Union is not formed by the surrender +to it by the several States of their respective individual sovereignty. +Such surrender could, as we have seen, form only an alliance, or a +confederation, not one sovereign people; and from an alliance, or +confederation, the ally or confederate has, saving its faith, the +inherent right to secede. The argument assumes that the States were +originally each in its individuality a sovereign state, but by the +convention which framed the constitution, each surrendered its +sovereignty to the whole, and thus several sovereign states became one +sovereign political people, governing in general matters through the +General government, and in particular matters through particular or +State governments. This is Mr. Madison's theory, and also Mr. +Webster's; but it has been refuted in the refutation of the theory that +makes government originate in compact. A sovereign state can, +undoubtedly, surrender its sovereignty, but can surrender it only to +something or somebody that really exists; for to Surrender to no one or +to nothing is, as has been shown, the same thing as not to surrender at +all; and the Union, being formed only by the surrender, is nothing +prior to it, or till after it is made, and therefore can be no +recipient of the surrender. + +Besides, the theory is the reverse of the fact. The State does not +surrender or part with its sovereignty by coming into the Union, but +acquires by it all the rights it holds as a State. Between the original +States and the new States there is a difference of mode by which they +become States in the Union, but none in their powers, or the tenure by +which they hold them. The process by which new States are actually +formed and admitted into the Union, discloses at once what it is that +is gained or lost by admission. The domain and population, before the +organization of the Territory into one of the United States, are +subject to the United States, inseparably attached to the domain of the +Union, and under its sovereignty. The Territory so remains, organized +or unorganized, under a Territorial Government created by Congress. +Congress, by an enabling act, permits it to organize as a State, to +call a convention to form a State constitution, to elect under it, in +such way as the convention ordains, State officers, a State +legislature, and, in the way prescribed by the Constitution of the +United States, senators and representatives in Congress. Here is a +complete organization as a State, yet, though called a State, it is no +State at all, and is simply territory, without a single particle of +political power. To be a State it must be recognized and admitted by +Congress as a State in the Union, and when so recognized and admitted +it possesses, in union with the other United States, supreme political +sovereignty, jointly in all general matters, and individually in all +private and particular matters. + +The Territory gives up no sovereign powers by coming into the Union, +for before it came into the Union it had no sovereignty, no political +rights at all. All the rights and powers it holds are held by the +simple fact that it has become a State in the Union. This is as true +of the original States as of the new States; for it has been shown in +the chapter on The United States, that the original British sovereignty +under which the colonies were organized and existed passed, on the fact +of independence, to the States United, and not to the States severally. +Hence if nine States had ratified the constitution, and the other four +had stood out, and refused to do it, which was within their competency, +they would not have been independent sovereign States, outside of the +Union, but Territories under the Union. + +Texas forms the only exception to the rule that the States have never +been independent of the Union. All the other new States have been +formed from territory subject to the Union. This is true of all the +States formed out of the Territory of the Northwest, and out of the +domain ceded by France, Spain, and Mexico to the United States. All +these cessions were held by the United States as territory immediately +subject to the Union, before being erected into States; and by far the +larger part is so held even yet. But Texas was an independent foreign +state, and was annexed as a State without having been first subjected +as territory to the United States. It of course lost by annexation its +separate sovereignty. But this annexation was held by many to be +unconstitutional; it was made when the State sovereignty theory had +gained possession of the Government, and was annexed as a State instead +of being admitted as a State formed from territory belonging to the +United States, for the very purpose of committing the nation to that +theory. Its annexation was the prologue, as the Mexican war was the +first act in the secession drama, and as the epilogue is the +suppression of the rebellion on Texan soil. Texas is an exceptional +case, and forms no precedent, and cannot be adduced as invalidating the +general rule. Omitting Texas, the simple fact is, the States acquire +all their sovereign powers by being States in the Union, instead of +losing or surrendering them. + +Our American statesmen have overlooked or not duly weighed the facts in +the case, because, holding the origin of government in compact, they +felt no need of looking back of the constitution to find the basis of +that unity of the American people which they assert. Neither Mr. +Madison nor Mr. Webster felt any difficulty in asserting it as created +by the convention of 1787, or in conceding the sovereignty of the +States prior to the Union, and denying its existence after the +ratification of the constitution. If it were not that they held that +the State originates in convention or the social compact, there would +be unpardonable presumption on the part of the present writer in +venturing to hazard an assertion contrary to theirs. But, if their +theory was unsound, their practical doctrine was not; for they +maintained that the American people are one sovereign people, and Mr. +Quincy Adams, an authority inferior to neither, maintained that they +were always one people, and that the States hold from the Union, not +the Union from the States. The States without the Union cease to exist +as political communities: the Union without the States ceases to be a +Union, and becomes a vast centralized and consolidated state, ready to +lapse from a civilized into a barbaric, from a republican to a despotic +nation. + +The State, under the American system, as distinguished from Territory, +is not in the domain and population fixed to it, nor yet in its +exterior organization, but solely in the political powers, rights, and +franchises which it holds from the United States, or as one of the +United States. As these are rights, not obligations, the State may +resign or abdicate them and cease to be a State, on the same principle +that any man may abdicate or forego his rights. In doing so, the State +breaks no oath of allegiance, fails to fulfil no obligation she +contracted as a State: she simply forgoes her political rights and +franchises. So far, then, secession is possible, feasible, and not +unconstitutional or unlawful. But it is, as Mr. Sumner and others have +maintained, simply State suicide. Nothing hinders a State from +committing suicide, if she chooses, any more than there was something +which compelled the Territory to become a State in the Union against +its will. + +It is objected to, this conclusion that the States were, prior to the +Union, independent sovereign States, and secession would not destroy +the State, but restore it to its original sovereignty and independence, +as the secessionists maintain. Certainly, if the States were, Prior to +the Union, sovereign States; but this is precisely what has been denied +and disproved; for prior to the Union there were no States. Secession +restores, or reduces, rather, the State to the condition it was in +before its admission into the Union; but that condition is that of +Territory, or a Territory subject to the United States, and not that of +an independent sovereign state. The State holds all its political +rights and powers in the Union from the Union, and has none out of it, +or in the condition in which its population and domain were before +being a State in the Union. + +State suicide, it has been urged, releases its population and territory +from their allegiance to the Union, and as there is no rebellion where +there is no allegiance, resistance by its population and territory to +the Union, even war against the Union, would not be rebellion, but the +simple assertion of popular sovereignty. This is only the same +objection in another form. The lapse of the State releases the +population and territory from no allegiance to the Union; for their +allegiance to the Union was not contracted by their becoming a State, +and they have never in their State character owed allegiance to the +United States. A State owes no allegiance to the United States, for it +is one of them, and is jointly sovereign. The relation between the +United States and the State is not the relation of suzerain and +liegeman or vassal. A State owes no allegiance, for it is not subject +to the Union; it is never in their State capacity that its population +and territory do or can rebel. Hence, the Government has steadily +denied that, in the late rebellion, any State as such rebelled. + +But as a State cannot rebel, no State can go out of the Union; and +therefore no State in the late rebellion has seceded, and the States +that passed secession ordinances are and all along have been States in +the Union. No State can rebel, but it does not follow therefrom that +no State can secede or cease to exist as a State: it only follows that +secession, in the sense of State suicide, or the abdication by the +State of its political rights and powers, is not rebellion. Nor does +it follow from the fact that no State has rebelled, that no State has +ceased to be a State; or that the States that passed secession +ordinances have been all along States in the Union. + +The secession ordinances were illegal, unconstitutional, not within the +competency of the State, and therefore null and void from the +beginning. Unconstitutional, illegal, and not within the competency of +the State, so far as intended to alienate any portion of the national +domain and population thereto annexed, they certainly were, and so far +were void and of no effect; but so far as intended to take the State +simply as a State out of the Union, they were within the competency of +the State, were not illegal or unconstitutional, and therefore not null +and void. Acts unconstitutional in some parts and constitutional in +others are not wholly void. The unconstitutionality vitiates only the +unconstitutional parts; the others are valid, are law, and recognized +and enforced as such by the courts. + +The secession ordinances are void, because they were never passed by +the people of the State, but by a faction that overawed them and +usurped the authority of the State. This argument implies that, if a +secession ordinance is passed by the people proper of the State, it is +valid; which is more than they who urge it against the State suicide +doctrine are prepared to concede. But the secession ordinances were in +every instance passed by the people of the State in convention legally +assembled, therefore by them in their highest State capacity--in the +same capacity in which they ordain and ratify the State constitution +itself; and in nearly all the States they were in addition ratified and +confirmed, if the facts have been correctly reported, by a genuine +plebiscitum, or direct vote of the people. In all cases they were +adopted by a decided majority of the political people of the State, and +after their adoption they were acquiesced in and indeed actively +supported by very nearly the whole people. The people of the States +adopting the secession ordinances were far more unanimous in supporting +secession than the people of the other States were in sustaining the +Government in its efforts to suppress the rebellion by coercive +measures. It will not do, then, to ascribe the secession ordinances to +a faction. The people are never a faction, nor is a faction ever the +majority. + +There has been a disposition at the North, encouraged by the few Union +men at the South, to regard secession as the work of a few ambitious +and unprincipled leaders, who, by their threats, their violence, and +their overbearing manner, forced the mass of the people of their +respective States into secession against their convictions and their +will. No doubt there were leaders at the South, as there are in every +great movement at the North; no doubt there were individuals in the +seceding States that held secession wrong in principle, and were +conscientiously attached to the Union; no doubt, also, there were men +who adhered to the Union, not because they disapproved secession, but +because they disliked the men at the head of the movement, or because +they were keen-sighted enough to see that it could not succeed, that +the Union must be the winning side, and that by adhering to it they +would become the great and leading men of their respective States, +which they certainly could not be under secession. Others sympathized +fully with what was called the Southern cause, held firmly the right of +secession, and hated cordially the Yankees, but doubted either the +practicability or the expediency of secession, and opposed it till +resolved on, but, after it was resolved on, yielded to none in their +earnest support of it. These last comprised the immense majority of +those who voted against secession. Never could those called the +Southern leaders have carried the secession ordinances, never could +they have carried on the war with the vigor and determination, and with +such formidable armies as they collected and armed for four years, +making at times the destiny of the Union well nigh doubtful, if they +had not had the Southern heart with them, if they had not been most +heartily supported by the overwhelming mass of the people. They led a +popular, not a factious movement. + +No State, it is said again, has seceded, or could secede. The State is +territorial, not personal, and as no State can carry its territory and +population out of the Union, no State can secede. Out of the +jurisdiction of the Union, or alienate them from the sovereign or +national domain, very true; but out of the Union as a State, with +rights, powers, or franchises in the Union, not true. Secession is +political, not territorial. + +But the State holds from the territory or domain. The people are +sovereign because attached to a sovereign territory, not the domain +because held by a sovereign people, as was established by the analysis +of the early Roman constitution. The territory of the States +corresponds to the sacred territory of Rome, to which was attached the +Roman sovereignty. That territory, once surveyed and consecrated, +remained sacred and the ruling territory, and could not be divested of +its sacred and governing character. The portions of the territory of +the United States once erected into States and consecrated as ruling +territory can never be deprived, except by foreign conquest or +successful revolution, of its sacred character and inviolable rights. + +The State is territorial, not personal, and is constituted by public, +not by private wealth, and is always respublica or commonwealth, in +distinction from despotism or monarchy in its oriental sense, which is +founded on private wealth, or which assumes that the authority to +govern, or sovereignty, is the private estate of the sovereign. All +power is a domain, but there is no domain without a dominus or lord. +In oriental monarchies the dominus is the monarch; in republics it is +the public or people fixed to the soil or territory, that is, the +people in their territorial, and not in their personal or genealogical +relation. The people of The United States are sovereign only within +the territory or domain of the United States, and their sovereignty is +a state, because fixed, attached, or limited to that specific +territory. It is fixed to the soil, not nomadic. In barbaric nations +power is nomadic and personal, or genealogical, confined to no +locality, but attaches to the chief, and follows wherever he goes. The +Gothic chiefs hold their power by a personal title, and have the same +authority in their tribes on the Po or the Rhone as on the banks of the +Elbe or the Danube. Power migrates with the chief and his people, and +may be exercised wherever he and they find themselves, as a Swedish +queen held when she ordered the execution of one of her subjects at +Paris, without asking permission of the territorial lord. In these +nations, power is a personal right, or a private estate, not a state +which exists only as attached to the domain, and, as attached to the +domain, exists independently of the chief or the government. The +distinction is between public domain and private domain. + +The American system is republican, and, contrary to what some +democratic politicians assert, the American democracy is territorial, +not personal; not territorial because the majority of the people are +agriculturists or landholders, but because all political rights, +powers, or franchises are territorial. The sovereign people of the +United States are sovereign only within the territory of the United +States. The great body of the freemen have the elective franchise, but +no one has it save in his State, his county, his town, his ward, his +precinct. Out of the election district in which he is domiciled, a +citizen of the United States has no more right to vote than has the +citizen or subject of a foreign state. This explains what is meant by +the attachment of power to the territory, and the dependence of the +state on the domain. The state, in republican states, exists only as +inseparably united with the public domain; under feudalism, power was +joined to territory or domain, but the domain was held as a private, +not as a public domain. All sovereignty rests on domain or +proprietorship, and is dominion. The proprietor is the dominus or lord, +and in republican states the lord is society, or the public, and the +domain is held for the common or public good of all. All political +rights are held from society, or the dominus, and therefore it is the +elective franchise is held from society, and is a civil right, as +distinguished from a natural, or even a purely personal right. + +As there is no domain without a lord or dominus, territory alone cannot +possess any political rights or franchises, for it is not a domain. In +the American system, the dominus or lord is not the particular State, +but the United States, and, the domain of the whole territory, whether +erected into particular States or not, is in the United States alone. +The United States do not part with the dominion of that portion of the +national domain included within a particular State. The State holds +the domain not separately but jointly, as inseparably one of the United +States: separated, it has no dominion, is no State, and is no longer a +joint sovereign at all, and the territory that it included falls into +the condition of any other territory held by the United States not +erected into one of the United States. + +Lawyers, indeed, tell us that the eminent domain is in the particular +State, and that all escheats are to the State, not to the United +States. All escheats of private estates, but no public or general +escheats. But this has nothing to do with the public domain. The +United States are the dominus, but they have, by the constitution, +divided the powers of government between a General government and +particular State governments, and ordained that all matters of a +general nature, common to all the States, should be placed under the +supreme control of the former, and all matters of a private or +particular character under the supreme control of the latter. The +eminent domain of private estates is in the particular State, but the +sovereign authority in the particular State is that of the United +States expressing itself through the State government. The United +States, in the States as well as out of them, is the dominus, as the +States respectively would soon find if they were to undertake to +alienate any part of their domain to a foreign power, or even to the +citizens or subjects of a foreign State, as is also evident from the +fact that the United States, in the way prescribed by the constitution, +may enlarge or contract at will the rights and powers of the States. +The mistake on this point grows out of the habit of restricting the +action of the United States to the General government, and not +recollecting that the United States govern one class of subjects +through the General government and another class through State +governments, but that it is one and the same authority that governs in +both. + +The analogy borrowed from the Roman constitution, as far as applicable, +proves the reverse of what is intended. The dominus of the sacred +territory was the city, or the Roman state, not the sacred territory +itself. The territory received the tenant, and gave him as tenant the +right to a seat in the senate; but the right of the territory was +derived not from the domain, but from the dominus, that is, the city. +But the city could revoke its grant, as it practically did when it +conferred the privileges of Roman citizenship on the provincials, and +gave to plebeians seats in the senate. Moreover, nothing in Roman +history indicates that to the validity of a senatus consultum it was +necessary to count the vacant domains of the sacred territory. The +particular domain must, under the American system, be counted when it +is held by a State, but of itself alone, or even with its population, +it is not a State, and therefore as a State domain is vacant and +without any political rights or powers whatever. + +To argue that the territory and population once a State in the Union +must needs always be so, would be well enough if a State in the Union +were individually a sovereign state; for territory, with its population +not subject to another, is always a sovereign state, even though its +government has been subverted. But this is not the fact, for territory +with its population does not constitute a State in the Union; and, +therefore, when of a State nothing remains but territory and +population, the State has evidently disappeared. It will not do then +to maintain that State suicide is impossible, and that the States that +adopted secession ordinances have never for a moment ceased to be +States in the Union, and are free, whenever they choose, to send their +representatives and senators to occupy their vacant seats in Congress. +They must be reorganized first. + +There would also be some embarrassment to the government in holding +that the States that passed the secession ordinance remain, +notwithstanding, States in the Union. The citizens of a State in the +Union cannot be rebels to the United States, unless they are rebels to +their State; and rebels to their State they are not, unless they resist +its authority and make war on it. The authority of the State in the +Union is a legal authority, and the citizen in obeying it is disloyal +neither to the State nor to the Union. The citizens in the States that +made war on the United States did not resist their State, for they +acted by its authority. The only men, on this supposition, in them, +who have been traitors or rebels, are precisely the Union men who have +refused to go with their respective States, and have resisted, even +with armed force, the secession ordinances. The several State +governments, under which the so-called rebels carried on the war for +the destruction of the Union, if the States are in the Union, were +legal and loyal governments of their respective States, for they were +legally elected and installed, and conformed to their respective State +constitutions. All the acts of these governments have been +constitutional. Their entering into a confederacy for attaining a +separate nationality has been legal, and the debts contracted by the +States individually, or by the confederacy legally formed by them, have +been legally contracted, stand good against them, and perhaps against +the United States. The war against them has been all wrong, and the +confederates killed in battle have been murdered by the United States. +The blockade has been illegal, for no nation can blockade its own +ports, and the captures and seizures under it, robberies. The Supreme +Court has been wrong in declaring the war a territorial civil war, as +well as the government in acting accordingly. Now, all these +conclusions are manifestly false and absurd, and therefore the +assumption that the States in question have all along been States in +the Union cannot be sustained. + +It is easy to understand the resistance the Government offers to the +doctrine that a State may commit suicide, or by its own act abdicate +its rights and cease to be a State in the Union. It is admissible on +no theory of the constitution that has been widely entertained. It is +not admissible on Mr. Calhoun's theory of State sovereignty, for on +that theory a State in going out of the Union does not cease to be a +State but simply resumes the powers it had delegated to the General +government. It cannot be maintained on Mr. Madison's or Mr. Webster's +theory, that the States prior to the Union were severally sovereign, +but by the Union were constituted one people; for, if this one people +are understood to be a federal people, State secession would not be +State suicide, but State independence; and if understood to be one +consolidated or centralized people, it would be simply insurrection or +rebellion against the national authority, laboring to make itself a +revolution. The government seems to have understood Mr. Madison's +theory in both senses--in the consolidated sense, in declaring the +secessionists insurgents and rebels, and in the federal sense, in +maintaining that they have never seceded, and are still States in the +Union, in full possession of all their political or State rights. +Perhaps, if the government, instead of borrowing from contradictory +theories of the constitution which have gained currency, had examined +in the light of historical facts the constitution itself, it would have +been as constitutional in its doctrine as it has been loyal and +patriotic, energetic and successful in its military administration. + +Another reason why the doctrine that State secession is State suicide +has appeared so offensive to many, is the supposition entertained at +one time by some of its friends, that the dissolution of the State +vacates all rights and franchises held under it. But this is a +mistake. The principle is well known and recognized by the +jurisprudence of all civilized nations, that in the transfer of a +territory from one territorial sovereign to another, the laws in force +under the old sovereign remain in force after the change, till +abrogated, or others are enacted in their place by the new sovereign, +except such as are necessarily abrogated by the change itself of the +sovereign; not, indeed, because the old sovereign retains any +authority, but, because such is presumed by the courts to be the will +of the new sovereign. The principle applies in the case of the death +of a State in the Union. The laws of the State are territorial, till +abrogated by competent authority, remain the lex loci, and are in full +force. All that would be vacated would be the public rights of the +State, and in no case the private rights of citizens, corporations, or +laws affecting them. + +But the same conclusion is reached in another way. In the lapse of a +State or its return to the condition of a Territory, there is really no +change of sovereignty. The sovereignty, both before and after, is the +United States. The sovereign authority that governs in the State +government, as we have seen, though independent of the General +government, is the United States. The United States govern certain +matters through a General government, and others through particular +State governments. The private rights and interests created, +regulated, or protected by the particular State, are created, +regulated, or protected by the United States, as much and as plenarily +as if done by the General government, and the State laws creating, +regulating, or protecting them can be abrogated by no power known to +the constitution, but either the State itself, or the United States in +convention legally assembled. If this were what is meant by the States +that have seceded, or professed to secede, remaining States in the +Union, they would, indeed, be States still in the Union, +notwithstanding secession and the government would be right in saying +that no State can secede. But this is not what is meant, at least not +all that is meant. It is meant not only that the private rights of +citizens and corporations remain, but the citizens retain all the +public rights of the State, that is, the right to representation in +Congress and in the electoral college, and the right to sit in the +convention, which is not true. + +But the correction of the misapprehension that the private rights and +interests are lost by the lapse of the State may remove the graver +prejudices against the doctrine of State suicide, and dispose loyal and +honest Union men to bear the reasons by which it is supported, and +which nobody has refuted or can refute on constitutional grounds. A +Territory by coming into the Union becomes a State; a State by going +out of the Union becomes a Territory. + + + + +CHAPTER XIII. + +RECONSTRUCTION. + + +The question of reconstructing the States that seceded will be +practically settled before these pages can see the light, and will +therefore be considered here only so far as necessary to complete the +view of the constitution of the United States. The manner in which the +government proposed to settle, has settled, or will settle the +question, proves that both it and the American people have only +confused views of the rights and powers of the General government, but +imperfectly comprehend the distinction between the legislative and +executive departments of that Government, and are far more familiar +with party tactics than with constitutional law. + +It would be difficult to imagine any thing more unconstitutional, more +crude, or more glaringly impolitic than the mode of reconstruction +indicated by the various executive proclamations that have been issued, +bearing on the subject, or even by the bill for guaranteeing the States +republican governments, that passed Congress, but which failed to +obtain the President's signature. It is, in some measure, +characteristic of the American government to understand how things +ought to be done only when they are done and it is too late to do them +in the right way. Its wisdom comes after action, as if engaged in a +series of experiments. But, happily for the nation, few blunders are +committed that with our young life and elasticity are irreparable, and +that, after all, are greater than are ordinarily committed by older and +more experienced nations. They are not of the most fatal character, +and are, for the most part, such as are incident to the conceit, the +heedlessness, the ardor, and the impatience of youth, and need excite +no serious alarm for the future. + +There has been no little confusion in the public mind, and in that of +the government itself, as to what reconstruction is, who has the power +to reconstruct, and how that power is to be exercised. Are the States +that seceded States in the Union, with no other disability than that of +having no legal governments? or are they Territories subject to the +Union? Is their reconstruction their erection into new States, or +their restoration as States previously in the Union? Is the power to +reconstruct in the States themselves? or is it in the General +government? If partly in the people and partly in the General +government, is the part in the General government in Congress, or in +the Executive? If in Congress, can the Executive, without the +authority of Congress, proceed to reconstruct, simply leaving it for +Congress to accept or reject the reconstructed State? If the power is +partly in the people of the disorganized States who or what defines +that people, decides who may or may not vote in the reorganization? On +all these questions there has been much crude, if not erroneous, +thinking, and much inconsistent and contradictory action. + +The government started with the theory that no State had seceded or +could secede, and held that, throughout, the States in rebellion +continued to be States in the Union. That is, it held secession to be +a purely personal and not a territorial insurrection. Yet it +proclaimed eleven States to be in insurrection against the United +States, blockaded their ports, and interdicted all trade and +intercourse of any kind with them. The Supreme Court, in order to +sustain the blockade and interdict as legal, decided the war to be not +a war against simply individual or personal insurgents but "a +territorial civil war." This negatived the assumption that the States +that took up arms against the United States remained all the while +peaceable and loyal States, with all their political rights and powers +in the Union. The States in the Union are integral elements of the +political sovereignty, for the sovereignty of the American nation vests +in the States finite; and it is absurd to pretend that the eleven +States that made the rebellion and were carrying on a formidable war +against the United States, were in the Union, an integral element of +that sovereign authority which was carrying on a yet more formidable +war against them. Nevertheless, the government still held to its first +assumption, that the States in rebellion continued to be States in the +Union--loyal States, with all their rights and franchises unimpaired! + +That the government should at first have favored or acquiesced in the +doctrine that no State had ceased to be a State in the Union, is not to +be wondered at. The extent and determination of the secession movement +were imperfectly understood, and the belief among the supporters of the +government, and, perhaps, of the government itself, was, that it was a +spasmodic movement for a temporary purpose, rather than a fixed +determination to found an independent separate nationality; that it was +and would be sustained by the real majority of the people of none of +the States, with perhaps the exception of South Carolina; that the true +policy of the government would be to treat the seceders with great +forbearance, to avoid all measures likely to exasperate them or to +embarrass their loyal fellow-citizens, to act simply on the defensive, +and to leave the Union men in the several seceding States to gain a +political victory at the polls over the secessionists, and to return +their States to their normal position in the Union. + +The government may not have had much faith in this policy, and Mr. +Lincoln's personal authority might be cited to the effect that it had +not, but it was urged strongly by the Union men of the Border States. +The administration was hardly seated in office, and its members were +new men, without administrative experience; the President, who had been +legally elected indeed, but without a majority of the popular votes, +was far from having the full confidence even of the party that elected +him; opinions were divided; party spirit ran high; the excitement was +great, the crisis was imminent, the government found itself left by its +predecessor without an army or a navy, and almost without arms or +ordnance; it knew not how far it could count on popular support, and +was hardly aware whom it could trust or should distrust; all was hurry +and confusion; and what could the government do but to gain time, keep +off active war as long as possible, conciliate all it could, and take +ground which at the time seemed likely to rally the largest number of +the people to its support? There were men then, warm friends of the +administration, and still warmer friends of their country, who believed +that a bolder, a less timid, a less cautious policy would have been +wiser, that in revolutionary times boldness, what in other times would +be rashness, is the highest prudence, on the side of the government as +well as on the side of the revolution; that when once it has shown +itself, the rebellion that hesitates, deliberates, consults, is +defeated and so is the government. The seceders owed from the first +their successes not to their superior organization, to their better +preparation, or to the better discipline and appointment of their +armies, but to their very rashness, to their audacity even, and the +hesitancy, cautious and deliberation of the government. Napoleon owed +his successes as general and civilian far more to the air of power he +assumed, and the conviction he produced of his invincibility in the +minds of his opponents, than to his civil or military strategy and +tactics, admirable as they both were. But the government believed it +wisest to adopt a conciliatory and, in many respects, a temporizing +policy, and to rely more on weakening the secessionists in their +respective States than on strengthening the hands and hearts of its own +staunch and uncompromising supporters. It must strengthen the Union +party in the insurrectionary States, and as this party hoped to succeed +by political manipulation rather than by military force, the government +must rely rather on a show of military power than on gaining any +decisive battle. As it hoped, or affected to hope, to suppress the +rebellion in the States that seceded through their loyal citizens, it +was obliged to assume that secession was the work of a faction, of a +few ambitious and disappointed politicians, and that the States were +all in the Union, and continued in the loyal portion of their +inhabitants. Hence its aid to the loyal Virginians to organize as the +State of Virginia, and its subsequent efforts to organize the Union men +in Louisiana, Arkansas, and Tennessee, and its disposition to recognize +their organization in each of those States as the State itself, though +including only a small minority of the territorial people. Had the +facts been as assumed, the government might have treated the loyal +people of each State as the State itself, without any gross usurpation +of power; but, unhappily, the facts assumed were not facts, and it was +soon found that the Union party in all the States that seceded, except +the western part of Virginia and the eastern section of Tennessee, +after secession had been carried by the popular vote, went almost +unanimously with the secessionists; for they as well as the +secessionists held the doctrine of State sovereignty; and to treat the +handful of citizens that remained loyal in each State as the State +itself, became ridiculous, and the government should have seen and +acknowledged it. + +The rebellion being really territorial, and not personal, the State +that seceded was no more continued in the loyal than in the disloyal +population. While the war lasted, both were public enemies of the +United States, and neither had or could have any rights as a State in +the Union. The law recognizes a solidarity of all the citizens of a +State, and assumes that, when a State is at war, all its citizens are +at war, whether approving the war or not. The loyal people in the +States that seceded incurred none of the pains and penalties of +treason, but they retained none of the political rights of the State in +the Union, and, in reorganizing the State after the suppression of the +rebellion, they have no more right to take part than the secessionists +themselves. They, as well as the secessionists, have followed the +territory. It was on this point that the government committed its +gravest mistake. As to the reorganization or reconstruction of the +State, the whole territorial people stood on the same footing. + +Taking the decision of the Supreme Court as conclusive on the subject, +the rebellion was territorial, and, therefore, placed all the States as +States out of the Union, and retained them only as population and +territory, under or subject to the Union. The States ceased to exist, +that is, as integral elements of the national sovereignty. The +question then occurred, are they to be erected into new States, or are +they to be reconstructed and restored to the Union as the identical old +States that seceded? Shall their identity be revived and preserved, or +shall they be new States, regardless of that identity? There can be no +question that the work to be done was that of restoration, not of +creation; no tribe should perish from Israel, no star be struck from +the firmament of the Union. Every inhabitant of the fallen States, and +every citizen of the United States must desire them to be revived and +continued with their old names and boundaries, and all true Americans +wish to continue the constitution as it is, and the Union as it was. +Who would see old Virginia, the Virginia of revolutionary fame, of +Washington, Jefferson, Madison, of Monroe, the "Old Dominion," once the +leading State of the Union, dead without hope of resurrection? or South +Carolina, the land of Rutledge, Moultrie, Laurens, Hayne, Sumter, and +Marion? There is something grating to him who values State +associations, and would encourage State emulation and State pride, in +the mutilation of the Old Dominion and the erection within her borders +of the new State called West Virginia. States in the Union are not +mere prefectures, or mere dependencies on the General government, +created for the convenience of administration. They have an +individual, a real existence of their own, as much so as have the +individual members of society. They are free members, not of a +confederation indeed, but of a higher political community, and +reconstruction should restore the identity of their individual life, +suspended for a moment by secession, but capable of resuscitation. + +These States had become, indeed, for a moment, territory under the +Union; but in no instance had they or could they become territory that +had never existed as States. The fact that the territory and people +had existed as a State, could with regard to none of them be +obliterated, and, therefore, they could not be erected into absolutely +new States. The process of reconstructing them could not be the same +as that of creating new States. In creating a new State, Congress, ex +necessitate, because there is no other power except the national +convention competent to do it, defines the boundaries of the new State, +and prescribes the electoral people, or who may take part in the +preliminary organization but in reconstructing States it does neither, +for both are done by a law Congress is not competent to abrogate or +modify, and which can be done only by the United States in convention +assembled, or by the State itself after its restoration. The +government has conceded this, and, in part, has acted on it. It +preserves, except in Virginia, the old boundaries, and recognizes, or +rather professes to recognize the old electoral law, only it claims the +right to exclude from the electoral people those who have voluntarily +taken part in the rebellion. + +The work to be done in States that have seceded is that of +reconstruction, not creation; and this work is not and cannot be done, +exclusively nor chiefly by the General government, either by the +Executive or by Congress. That government can appoint military, or +even provisional governors, who may designate the time and place of +holding the convention of the electoral people of the disorganized +State, as also the time and place of holding the elections of delegates +to it, and superintend the elections so far as to see the polls are +opened, and that none but qualified electors vote, but nothing more. +All the rest is the work of the territorial electoral people +themselves, for the State within its own sphere must, as one of the +United States, be a self-governing community. The General government +may concede or withhold permission to the disorganized State to +reorganize, as it judges advisable, but it cannot itself reorganize it. +If it concedes the permission, it must leave the whole electoral people +under the preexisting electoral law free to take part in the work of +reorganization, and to vote according to their own judgment. It has no +authority to purge the electoral people, and say who may or may not +vote, for the whole question of suffrage and the qualifications of +electors is left to the State, and can be settled neither by an act of +Congress nor by an Executive proclamation. + +If the government theory were admissible, that the disorganized States +remain States in the Union, the General government could have nothing +to say on the subject, and could no more interfere with elections in +any one of them than it could with elections in Massachusetts or New +York. But even on the doctrine here defended it can interfere with +them only by way of general superintendence. The citizens have, +indeed, lost their political rights, but not their private rights. +Secession has not dissolved civil society, or abrogated any of the laws +of the disorganized State that were in force at the time of secession. +The error of the government is not in maintaining that these laws +survive the secession ordinances, and remain the territorial law, or +lex loci, but in maintaining that they do so by will of the State, that +has, as a State, really lapsed. They do so by will of the United +States, which enacted them through the individual State, and which has +not in convention abrogated them, save the law authorizing slavery, and +its dependent laws. + +This point has already been made, but as it is one of the niceties of +the American constitution, it may not be amiss to elaborate it at +greater length. The doctrine of Mr. Jefferson, Mr. Madison, and the +majority of our jurists, would see to be that the States, under God, +are severally sovereign in all matters not expressly confided to the +General government, and therefore that the American sovereignty is +divided, and the citizen owes a double allegiance--allegiance to his +State, and allegiance to the United States--as if there was a United +States distinguishable from the States. Hence Mr. Seward, in an +official dispatch to our minister at the court of St. James, says: "The +citizen owes allegiance to the State and to the United States." And +nearly all who hold allegiance is due to the Union at all, hold that it +is also due to the States, only that which is due to the United States +is paramount, as that under feudalism due to the overlord. But this is +not the case. There is no divided sovereignty, no divided allegiance. +Sovereignty is one, and vests not in the General government or in the +State government, but in the United States, and allegiance is due to +the United States, and to them alone. Treason can be committed only +against the United States, and against a State only because against the +United States, and is properly cognizable only by the Federal courts. +Hence the Union men committed no treason in refusing to submit to the +secession ordinances of their respective States, and in sustaining the +national arms against secession. + +There are two very common mistakes: the one that the States +individually possess all the powers not delegated to the General +government; and the other that the Union, or United States, have only +delegated powers. But the United States possess all the powers of a +sovereign state, and the States individually and the General government +possess only such powers as the United States in convention delegate to +them respectively. The sovereign is neither the General government nor +the States severally, but the United States in convention. The United +States are the one indivisible sovereign, and this sovereign governs +alike general matters in the General government, and particular matters +in the several State governments. All legal authority in either +emanates from this one indivisible and plenary sovereign, and hence the +law enacted by a State are really enacted by the United States, and +derive from them their force and vitality as laws. Hence, as the United +States survive the particular State, the lapse of the State does not +abrogate the State laws, or dissolve civil society within its +jurisdiction. + +This is evidently so, because civil society in the particular State +does not rest on the State alone, nor on Congress, but on the United +States. Hence all civil rights of every sort created by the individual +State are really held from the United States, and therefore it was that +the people of non-slaveholding States were, as citizens of the United +States, responsible for the existence of slavery in the States that +seceded. There is a solidarity of States in the Union as there is of +individuals in each of the States. The political error of the +Abolitionists was not in calling upon the people of the United States +to abolish slavery, but in calling upon them to abolish it through the +General government, which had no jurisdiction in the case; or in their +sole capacity as men, on purely humanitarian grounds, which were the +abrogation of all government and civil society itself, instead of +calling upon them to do it as the United States in convention +assembled, or by an amendment to the constitution of the United States +in the way ordained by that constitution itself. This understood, the +constitution and laws of a defunct State remain in force by virtue of +the will of the United States, till the State is raised from the dead, +restored to life and activity, and repeals or alters them, or till they +are repealed or altered by the United States or the national +convention. But as the defunct State could not, and the convention had +not repealed or altered them, save in the one case mentioned, the +General government had no alternative but to treat them and all rights +created by them as the territorial law, and to respect them as such. + +What then do the people of the several States that seceded lose by +secession? They lose, besides incurring, so far as disloyal, the pains +and penalties of treason, their political rights, or right, as has just +been said, to be in their own department self-governing communities, +with the right of representation in Congress and the electoral +colleges, and to sit in the national convention, or of being counted in +the ratification of amendments to the constitution--precisely what it +was shown a Territorial people gain by being admitted as a State into +the Union. This is the difference between the constitutional doctrine +and that adopted by Mr. Lincoln's and Mr. Johnson's Administrations. +But what authority, on this constitutional doctrine, does the General +government gain over the people of States that secede, that it has not +over others! As to their internal constitution, their private rights +of person or property, it gains none. It has over them, till they are +reconstructed and restored to the Union, the right to institute for +them provisional governments, civil or military, precisely as it has +for the people of a territory that is not and has never been one of the +United States; but in their reconstruction it has less, for the +geographical boundaries and electoral people of each are already +defined by a law which does not depend on its will, and which it can +neither abrogate nor modify. Here is the difference between the +constitutional doctrine and that of the so-called radicals. The State +has gone, but its laws remain, so far as the United States in +convention does not abrogate them; not because the authority of the +State survives, but because the United States so will, or are presumed +to will. The United States have by a constitutional amendment +abrogated the laws of the several States authorizing slavery, and +prohibited slavery forever within the jurisdiction of the Union; and no +State can now be reconstructed and be admitted into the Union with a +constitution that permits slavery, for that would be repugnant to the +constitution of the United States. If the constitutional amendment is +not recognized as ratified by the requisite number of States, it is the +fault of the government in persisting in counting as States what are no +States. Negro suffrage, as white suffrage, is at present a question +for States. + +The United States guarantee to such State a republican form of +government. And this guarantee, no doubt, authorizes Congress to +intervene in the internal constitution of a State so far as to force it +to adopt a republican form of government, but not so far as to organize +a government for a State, or to compel a territorial people to accept +or adopt a State constitution for themselves. If a State attempts to +organize a form of government not republican, it can prevent it; and if +a Territory adopts an unrepublican form, it can force it to change its +constitution to one that is republican, or compel it to remain a +Territory under a provisional government. But this gives the General +government no authority in the organization or re-organization of +States beyond seeing that the form of government adopted by the +territorial people is republican. To press it further, to make the +constitutional clause a pretext for assuming the entire control of the +organization or re-organization of a State, is a manifest abuse--a +palpable violation of the constitution and of the whole American +system. The authority given by the clause is specific, and is no +authority for intervention in the general reconstruction of the lapsed +State. It gives authority in no question raised by secession or its +consequences, and can give none, except, from within or from without, +there is an overt attempt to organize a State in the Union with an +unrepublican form of government. + +The General government gives permission to the territorial people of +the defunct State to re-organize, or it contents itself with suffering +them, without special recognition, to reorganize in their own way, and +apply to Congress for admission, leaving it to Congress to admit them +as a State, or not, according to its own discretion, in like manner as +it admits a new State; but the re-organization itself must be the work +of the territorial people themselves, under their old electoral law. +The power that reconstructs is in the people themselves; the power that +admits them, or receives them into the Union, is Congress. The +Executive, therefore, has no authority in the matter, beyond that of +seeing that the laws are duly complied with; and whatever power he +assumes, whether by proclamation or by instructions given to the +provisional governors, civil or military, is simply a usurpation of the +power of Congress, which it rests with Congress to condone or not, as +it may see fit. Executive proclamations, excluding a larger or a +smaller portion of the electoral or territorial people from the +exercise of the elective franchise in reorganizing the State, and +executive efforts to throw the State into the hands of one political +party or another, are an unwarrantable assumption of power, for the +President, in relation to reconstruction, acts only under the peace +powers of the constitution, and simply as the first executive officer +of the Union. His business is to execute the laws, not to make them. +His legislative authority is confined to his qualified veto on the acts +of Congress, and to the recommendation to Congress of such measures as +he believes are needed by the country. + +In reconstructing a disorganized State, neither Congress nor the +Executive has any power that either has not in time of peace. The +Executive, as commander-in-chief of the army, may ex necessitate, pace +it ad interim under a military governor, but he cannot appoint even a +provisional civil governor till Congress has created the office and +given him authority to fill it; far less can be legally give +instructions to the civil governor as to the mode or manner of +reconstructing the disorganized State, or decide who may or may not +vote in the preliminary reorganization. The Executive could do nothing +of the sort, even in regard to a Territory never erected into a State. +It belongs to Congress, not to the Executive, to erect Territorial or +provisional governments, like those of Dacotah, Colorado, Montana, +Nebraska, and New Mexico; and, Congress, not the executive, determines +the boundaries of the Territory, passes the enabling act, and defines +the electoral people, till the State is organized and able to act +herself. Even Congress, in reconstructing and restoring to life and +vigor in the Union a disorganized State, has nothing to say as to its +boundaries or its electoral people, nor any right to interfere between +parties in the State, to throw the reconstructed State into the hands +of one or another party. All that Congress can insist on is, that the +territorial people shall reconstruct with a government republican in +form; that its senators and representatives in Congress, and the +members of the State legislature, and all executive and judicial +officers of the State shall be bound by oath or affirmation to support +and defend the constitution of the United States. In the whole work +the President has nothing to do with reconstruction, except to see that +peace is preserved and the laws are fully executed. + +It may be at least doubted that the Executive has power to proclaim +amnesty and pardon to rebels after the civil war has ceased, and ceased +it has when the rebels have thrown down their arms and submitted; for +his pardoning power is only to pardon after conviction and judgment of +the court: it is certain that he has no power to proscribe or punish +even traitors, except by due process of law. When the war is over he +has only his ordinary peace powers. He cannot then disfranchise any +portion of the electoral people of a State that seceded, even though +there is no doubt that they have taken part in the rebellion, and may +still be suspected of disloyal sentiments. Not even Congress can do +it, and no power known to the constitution till the State is +reconstructed can do it without due process of law, except the national +convention. Should the President do any of the things supposed, he +would both abuse the power he has and usurp power that he has not, and +render himself liable to impeachment. There are many things very +proper, and even necessary to be done, which are high crimes when done +by an improper person or agent. The duty of the President, when there +are steps to be taken or things to be done which he believes very +necessary, but which are not within his competency, is, if Congress is +not in session, to call it together at the earliest practicable moment, +and submit the matter to its wisdom and discretion. + +It must be remembered that the late rebellion was not a merely personal +but a territorial rebellion. In such a rebellion, embracing eleven +States, and, excluding slaves, a population of at least seven millions, +acting under an organized territorial government, preserving internal +civil order, supporting an army and navy under regularly commissioned +officers, and carrying on war as a sovereign nation--in such a +territorial rebellion no one in particular can be accused and punished +as a traitor. The rebellion is not the work of a few ambitious or +reckless leaders, but of the people, and the responsibility of the +crime, whether civil or military, is not individual, but common to the +whole territorial people engaged in it; and seven millions, or the half +of them, are too many to ban to exile, or even to disfranchise Their +defeat and the failure of their cause must be their punishment. The +interest of the country, as well the sentiment of the civilized +world--it might almost be said the law of nations--demands their +permission to return to their allegiance, to be treated according to +their future merits, as an integral portion of the American people. + +The sentiment of the civilized world has much relaxed from its former +severity toward political offenders. It regards with horror the savage +cruelties of Great Britain to the unfortunate Jacobites, after their +defeat under Charles Edward, at Culloden, in 1746, their barbarous +treatment of the United Irishmen in 1798, and her brutality to the +mutinous Hindoos in 1857-'58; the harshness of Russia toward the +insurgent Poles, defeated in their mad attempts to recover their lost +nationality; the severity of Austria, under Haynau, toward the defeated +Magyars. The liberal press kept up for years, especially in England +and the United States, a perpetual howl against the Papal and +Neapolitan governments for arresting and imprisoning men who conspired +to overthrow them. Louis Kossuth was no less a traitor than Jefferson +Davis, and yet the United States solicited his release from a Turkish +prison, and sent a national ship to bring him hither as the nation's +guest. The people of the United States have held from the first "the +right of insurrection," and have given their moral support to every +insurrection in the Old or New World they discovered, and for them to +treat with severity any portion of the Southern secessionists, who, at +the very worst, only acted on the principles the nation had uniformly +avowed and pronounced sacred, would be regarded, and justly, by the +civilized world as little less than infamous. + +Not only the fair fame, but the interest of the Union forbids any +severity toward the people lately in arms against the government. The +interest of the nation demands not the death or the expulsion of the +secessionists, and, least of all, of those classes proscribed by the +President's proclamation of the 29th of May, 1865, nor even their +disfranchisement, perpetual or temporary; but their restoration to +citizenship, and their loyal co-operation with all true-hearted +Americans, in hearing the wounds inflicted on the whole country by the +civil war. There need be no fear to trust them. Their cause is lost; +they may or may not regret it, but lost it is, and lost forever. They +appealed to the ballot-box, and were defeated; they appealed from the +ballot-box to arms, to war, and have been again defeated, terribly +defeated. They know it and feel it. There is no further appeal for +them; the judgment of the court of last resort has been rendered, and +rendered against them. The cause is finished, the controversy closed, +never to be re-opened. Henceforth the Union is invincible, and it is +worse than idle to attempt to renew the war against it. Henceforth +their lot is bound up with that of the nation, and all their hopes and +interests, for themselves and their children, and their children's +children, depend on their being permitted to demean themselves +henceforth as peaceable and loyal American citizens. They must seek +their freedom, greatness, and glory in the freedom, greatness, and +glory of the American republic, in which, after all, they can be far +freer, greater, more glorious than in a separate and independent +confederacy. All the arguments and considerations urged by Union men +against their secession, come back to them now with redoubled force to +keep them henceforth loyal to the Union. + +They cannot afford to lose the nation, and the nation cannot afford to +lose them. To hang or exile them, and depopulate and suffer to run to +waste the lands they had cultivated, were sad thrift, sadder than that +of deporting four millions of negroes and colored men. To exchange +only those excepted from amnesty and pardon by President Johnson, +embracing some two millions or more, the very pars sanior of the +Southern population, for what would remain or flock in to supply their +place, would be only the exchange of Glaucus and Diomed, gold for +brass; to disfranchise them, confiscate their estates, and place them +under the political control of the freedmen, lately their slaves, and +the ignorant and miserable "white trash," would be simply to render +rebellion chronic, and to convert seven millions of Americans, willing +and anxious to be free, loyal American citizens, eternal enemies. They +have yielded to superior numbers and resources; beaten, but not +disgraced, for they have, even in rebellion, proved themselves what +they are--real Americans. They are the product of the American soil, +the free growth of the American republic, and to disgrace them were to +disgrace the whole American character and people. + +The wise Romans never allowed a triumph to a Roman general for +victories, however brilliant, won over Romans. In civil war, the +victory won by the government troops is held to be a victory for the +country, in which all parties are victors, and nobody is vanquished. +It was as truly for the good of the secessionists to fail, as it was +for those, who sustained the government to succeed; and the government +having forced their submission and vindicated its own authority, it +should now leave them to enjoy, with others, the victory which it his +won for the common good of all. When war becomes a stern necessity, +when it breaks out, and while it lasts, humanity requires it to be +waged in earnest, prosecuted with vigor, and made as damaging, as +distressful to the enemy as the laws of civilized nations permit. It +is the way to bring it to a speedy close, and to save life and +property. But when it is over, when the enemy submits, and peace +returns, the vanquished should be treated with gentleness and love. No +rancor should remain, no vengeance should be sought; they who met in +mortal conflict on the battle-field should be no longer enemies, but +embrace as comrades, as friends, as brothers. None but a coward kicks +a fallen foe; a brave people is generous, and the victors in the late +war can afford to be generous generously. They fought for the Union, +and the Union has no longer an enemy; their late enemies are willing +and proud to be their countrymen, fellow-citizens, and friends; and +they should look to it that small politicians do not rob them in the +eyes of the world, by unnecessary and ill-timed severity to the +submissive, of the glory of being, as they are, a great, noble, +chivalric, generous, and magnanimous people. + +The government and the small politicians, who usually are the most +influential with all governments, should remember that none of the +secessionists, however much in error they have been, have committed the +moral crime of treason. They held, with the majority of the American +people, the doctrine of State sovereignty, and on that doctrine they +had a right to secede, and have committed no treason, been guilty of no +rebellion. That was, indeed, no reason why the government should not +use all its force, if necessary, to preserve the national unity and the +integrity of the national domain; but it is a reason, and a sufficient +reason, why no penalty of treason should be inflicted on secessionists +or their leaders, after their submission, and recognition of the +sovereignty of the United States as that to which they owe allegiance. +None of the secessionists have been rebels or traitors, except in +outward act, and there can, after the act has ceased, be no just +punishment where there has been no criminal intent. Treason is the +highest crime, and deserves exemplary punishment; but not where there +has been no treasonable intent, where they who committed it did not +believe it was treason, and on principles held by the majority of their +countrymen, and by the party that had generally held the government, +there really was no treason. Concede State sovereignty, and Jefferson +Davis was no traitor in the war he made on the United States, for he +made none till his State had seceded. He could not then be arraigned +for his acts after secession, and at most, only for conspiracy, if at +all, before secession. + +But, if you permit all to vote in the re-organization of the State who, +under the old electoral law, have the elective franchise, you throw the +State into the hands of those who have been disloyal to the Union. If +so, and you cannot trust them, the remedy is not in disfranchising the +majority, but in prohibiting re-organization, and in holding the +territorial people still longer under the provisional government, civil +or military. The old electoral law disqualifies all who have been +convicted of treason either to the State or the United States, and +neither Congress nor the Executive can declare any others disqualified +on account of disloyalty. But you must throw the State into the hands +of those who took part, directly or indirectly, in the rebellion, if +you reconstruct the States at all, for they are undeniably the great +body of the territorial people in all the States that seceded. These +people having submitted, and declared their intention to reconstruct +the State as a State in the Union, you must amend the constitution of +the United States, unless they are convicted of a disqualifying crime +by due process of law, before you can disfranchise them. It is +impossible to reconstruct any one of the disorganized States with those +alone, or as the dominant party, who have adhered to the Union +throughout the fearful struggle, as self-governing States. The State, +resting on so small a portion of the people, would have no internal +strength, no self-support, and could stand only as upheld by federal +arms, which would greatly impair the free and healthy action of the +whole American system. + +The government attempted to do it in Virginia, Louisiana, Arkansas, and +Tennessee, before the rebellion was suppressed, but without authority +and without success. The organizations, effected at great expense, and +sustained only by military force, were neither States nor State +governments, nor capable of being made so by any executive or +congressional action. If the disorganized States, as the government +held, were still States in the Union, these organizations were +flagrantly revolutionary, as effected not only without, but in defiance +of State authority; if they had seceded and ceased to be States, as was +the fact, they were equally unconstitutional and void of authority, +because not created by the free suffrage of the territorial people, who +alone are competent to construct or reconstruct a state. + +If the Unionists had retained the State organization and government, +however small their number, they would have held the State, and the +government would have been bound to recognize and to defend them as +such with all the force of the Union. The rebellion would then have +been personal, not territorial. But such was not the case. The State +organization, the State government, the whole State authority rebelled, +made the rebellion territorial, not personal, and left the Unionists, +very respectable persons assuredly, residing, if they remained at home, +in rebel territory, traitors in the eye of their respective States, and +shorn of all political status or rights. Their political status was +simply that of the old loyalists, or adherents of the British crown in +the American war for Independence, and it was as absurd to call them +the State, as it would have been for Great Britain to have called the +old Tories the colonies. + +The theory on which the government attempted to re-organize the +disorganized States rested on two false assumptions: first, that the +people are personally sovereign; and, second, that all the power of the +Union vests in the General government. The first, as we have seen, is +the principle of so-called "squatter sovereignty," embodied in the +famous Kansas-Nebraska Bill, which gave birth, in opposition, to the +Republican party of 1856. The people are sovereign only as the State, +and the State is inseparable from the domain. The Unionists without +the State government, without any State organization, could not hold +the domain, which, when the State organization is gone, escheats to the +United States, that is to say, ceases to exist. The American democracy +is territorial, not personal. + +The General government, in time of war or rebellion, is indeed +invested, for war purposes, with all the power of the Union. This is +the war power. But, though apparently unlimited, the war power is yet +restricted to war purposes, and expires by natural limitation when +peace returns; and peace returns, in a civil war, when the rebels have +thrown down their arms and submitted to the national authority, and +without any formal declaration. During the war, or while the rebellion +lasts, it can suspend the civil courts, the civil laws, the State +constitutions, any thing necessary to the success of the war--and of +the necessity the military authorities are the judges; but it cannot +abolish, abrogate, or reconstitute them. On the return of peace they +revive of themselves in all their vigor. The emancipation proclamation +of the President, if it emancipated the slaves in certain States and +parts of States, and if those whom it emancipated could not be +re-enslaved, did not anywhere abolish slavery, or change the laws +authorizing it; and if the Government should be sustained by Congress +or by the Supreme Court in counting the disorganized States as States +in the Union, the legal status of slavery throughout the Union, with +the exception of Maryland, and perhaps Missouri, is what it was before +the war.[1] + +The Government undoubtedly supposed, in the reconstructions it +attempted, that it was acting under the war power; but as +reconstruction can never be necessary for war purposes, and as it is in +its very nature a work of peace, incapable of being effected by +military force, since its validity depends entirely on its being the +free action of the territorial people to be reconstructed, the General +government had and could have, with regard to it, only its ordinary +peace powers. Reconstruction is jure pacis, not jure belli. + +Yet such illegal organizations, though they are neither States nor +State governments, and incapable of being legalized by any action of +the Executive or of Congress, may, nevertheless, be legalized by being +indorsed or acquiesced in by the territorial people. They are wrong, +as are all usurpations; they are undemocratic, inasmuch as they attempt +to give the minority the power to rule the majority; they are dangerous +inasmuch as they place the State in the hands of a party that can stand +only as supported by the General government, and thus destroy the +proper freedom and independence of the State, and open the door to +corruption, tend to keep alive rancor and ill feeling, and to retard +the period of complete pacification, which might be effected in three +months as well as in three years, or twenty years; yet they can become +legal, as other governments illegal in their origin become legal, with +time and popular acquiescence. The right way is always the shortest and +easiest; but when a government must oftener follow than lead the +public, it is not always easy to hit the right way, and still less easy +to take it. The general instincts of the people are right as to the end +to be gained, but seldom right as to the means of gaining it; and +politicians of the Union party, as well as of the late secession party, +have an eye in reconstructing, to the future political control of the +State when it is reconstructed. + +The secessionists, if permitted to retain their franchise, would, even +if they accepted abolition, no doubt re-organize their respective +States on the basis of white suffrage, and so would the Unionists, if +left to themselves. There is no party at the South prepared to adopt +negro suffrage, and there would be none at the North if the negroes +constituted any considerable portion of the population. As the +reconstruction of a State cannot be done under the war power, the +General government can no more enfranchise than it can disfranchise any +portion of the territorial people, and the question of negro suffrage +must be left, where the constitution leaves it--to the States +severally, each to dispose of it for itself. Negro suffrage will, no +doubt, come in time, as soon as the freedmen are prepared for it, and +the danger is that it will be attempted too soon. + +It would be a convenience to have the negro vote in the reconstruction +of the States disorganized by secession, for it would secure their +re-construction with antislavery constitutions, and also make sure of +the proposed antislavery amendment to the Constitution of the United +States; but there is no power in Congress to enfranchise the negroes in +the States needing reconstruction, and, once assured of their freedom, +the freedmen would care little for the Union, of which they understand +nothing. They would vote, for the most part, with their former +masters, their employers, the wealthier and more intelligent classes, +whether loyal or disloyal; for, as a rule, these will treat them with +greater personal consideration and kindness than others. The dislike +of the negro, and hostility to negro equality, increase as you descend +in the social scale. The freedmen, without political instruction or +experience, who have had no country, no domicile, understand nothing of +loyalty or of disloyalty. They have strong local attachments, but they +can have no patriotism. If they adhered to the Union in the rebellion, +fought for it, bled for it, it was not from loyalty, but because they +knew that their freedom could come only from the success of the Union +arms. That freedom secured, they have no longer any interest in the +Union, and their local attachments, personal associations, habits, +tastes, likes and dislikes, are Southern, not Northern. In any contest +between the North and the South, they would take, to a man, the +Southern side. After the taunts of the women, the captured soldiers of +the Union found, until nearly the last year of the war, nothing harder +to bear, when marched as prisoners into Richmond, than the antics and +hootings of the negroes. Negro suffrage on the score of loyalty, is at +best a matter of indifference to the Union, and as the elective +franchise is not a natural right, but a civil trust, the friends of the +negro should, for the present, be contented with securing him simply +equal rights of person and property. + + +[1] This was the case in August, 1865. It may be quite otherwise +before these pages see the light. + + + + +CHAPTER XIV. + +POLITICAL TENDENCIES. + + +The most marked political tendency of the American people has been, +since 1825, to interpret their government as a pure and simple +democracy, and to shift it from a territorial to a purely popular +basis, or from the people as the state, inseparably united to the +national territory or domain, to the people as simply population, +either as individuals or as the race. Their tendency has +unconsciously, therefore, been to change their constitution from a +republican to a despotic, or from a civilized to a barbaric +constitution. + +The American constitution is democratic, in the sense that the people +are sovereign that all laws and public acts run in their name; that the +rulers are elected by them, and are responsible to them; but they are +the people territorially constituted and fixed to the soil, +constituting what Mr. Disraeli, with more propriety perhaps than he +thinks, calls a "territorial democracy." To this territorial +democracy, the real American democracy, stand opposed two other +democracies--the one personal and the other humanitarian--each alike +hostile to civilization, and tending to destroy the state, and capable +of sustaining government only on principles common to all despotisms. + +In every man there is a natural craving for personal freedom and +unrestrained action--a strong desire to be himself, not another--to be +his own master, to go when and where he pleases, to do what he chooses, +to take what he wants, wherever he can find it, and to keep what he +takes. It is strong in all nomadic tribes, who are at once pastoral +and predatory, and is seldom weak in our bold frontier-men, too often +real "border ruffians." It takes different forms in different stages of +social development, but it everywhere identifies liberty with power. +Restricted in its enjoyment to one man, it makes him chief, chief of +the family, the tribe, or the nation; extended in its enjoyment to the +few, it founds an aristocracy, creates a nobility--for nobleman meant +originally only freeman, as it does his own consent, express or +constructive. This is the so-called Jeffersonian democracy, in which +government has no powers but such as it derives from the consent of the +governed, and is personal democracy or pure individualism +philosophically considered, pure egoism, which says, "I am God." Under +this sort of democracy, based on popular, or rather individual +sovereignty, expressed by politicians when they call the electoral +people, half seriously, half mockingly, "the sovereigns," there +obviously can be no state, no social rights or civil authority; there +can be only a voluntary association, league, alliance, or +confederation, in which individuals may freely act together as long as +they find it pleasant, convenient, or useful, but from which they may +separate or secede whenever they find it for their interest or their +pleasure to do so. State sovereignty and secession are based on the +same democratic principle applied to the several States of the Union +instead of individuals. + +The tendency to this sort of democracy has been strong in large +sections of the American people from the first, and has been greatly +strengthened by the general acceptance of the theory that government +originates in compact. The full realization of this tendency, which, +happily, is impracticable save in theory, would be to render every man +independent alike of every other man and of society, with full right +and power to make his own will prevail. This tendency was strongest in +the slaveholding States, and especially, in those States, in the +slaveholding class, the American imitation of the feudal nobility of +mediaeval Europe; and on this side the war just ended was, in its most +general expression, a war in defence of personal democracy or the +sovereignty of the people individually, against the humanitarian +democracy, represented by the abolitionists, and the territorial +democracy, represented by the Government. This personal democracy has +been signally defeated in the defeat of the late confederacy, and can +hardly again become strong enough to be dangerous. + +But the humanitarian democracy, which scorns all geographical lines, +effaces all in individualities, and professes to plant itself on +humanity alone, has acquired by the war new strength, and is not +without menace to our future. The solidarity of the race, which is the +condition of all human life, founds, as we have seen, society, and +creates what are called social rights, the rights alike of society in +regard to individuals, and of individuals in regard to society. +Territorial divisions or circumscriptions found particular societies, +states, or nations; yet as the race is one and all its members live by +communion with God through it and by communion one with another, these +particular states or nations are never absolutely independent of each +other but, bound together by the solidarity of the race, so that there +is a real solidarity of nations as well as of individuals--the truth +underlying Kossuth's famous declaration of the solidarity of peoples. + +The solidarity of nations is the basis of international law, binding on +every particular nation, and which every civilized nation recognizes +and enforces on its own subjects or citizens through its own courts as +an integral part of its own municipal or national law. + +The personal or individual right is therefore restricted by the rights +of society, and the rights of the particular society or nation are +limited by international law, or the rights of universal society--the +truth the ex-governor of Hungary overlooked. The grand error of +Gentilism was in denying the unity and therefore the solidarity of the +race, involved in its denial or misconception of the unity of God. It +therefore was never able to assign any solid basis to international +law, and gave it only a conventional or customary authority, thus +leaving the jus gentium, which it recognized in deed, without any real +foundation in the constitution of things, or authority in the real +world. Its real basis is in the solidarity of the race, which has its +basis in the unity of God, not the dead or abstract unity asserted by +the old Eleatics, the Neo-Platonists, or the modern Unitarians, but the +living unity consisting in the threefold relation in the Divine +Essence, of Father, Son, and Holy Ghost, as asserted by Christian +revelation, and believed, more or less intelligently, by all +Christendom. + +The tendency in the Southern States has been to overlook the social +basis of the state, or the rights of society founded on the solidarity +of the race, and to make all rights and powers personal, or individual; +and as only the white race has been able to assert and maintain its +personal freedom, only men of that race are held to have the right to +be free. Hence the people of those States felt no scruple in holding +the black or colored race as slaves. Liberty, said they, is the right +only of those who have the ability to assert and maintain it. Let the +negro prove that he has this ability by asserting and maintaining his +freedom, and he will prove his right to be free, and that it is a gross +outrage, a manifest injustice, to enslave him; but, till then, let him +be my servant, which is best for him and for me. Why ask me to free +him? I shall by doing so only change the form of his servitude. Why +appeal to me! Am I my brother's keeper? Nay, is he my brother? Is +this negro, more like an ape or a baboon than a human being, of the +same race with myself? I believe it not. But in some instances, at +least, my dear slaveholder, your slave is literally your brother, and +sometimes even your son, born of your own daughter. The tendency of +the Southern democrat was to deny the unity of the race, as well as all +obligations of society to protect the weak and helpless, and therefore +all true civil society. + +At the North there has been, and is even yet, an opposite tendency--a +tendency to exaggerate the social element, to overlook the territorial +basis of the state, and to disregard the rights of individuals. This +tendency has been and is strong in the people called abolitionists. +The American abolitionist is so engrossed with the unity that he loses +the solidarity of the race, which supposes unity of race and +multiplicity of individuals; and falls to see any thing legitimate and +authoritative in geographical divisions or territorial +circumscriptions. Back of these, back of individuals, he sees +humanity, superior to individuals, superior to states, governments, and +laws, and holds that he may trample on them all or give them to the +winds at the call of humanity or "the higher law." The principle on +which he acts is as indefensible as the personal or egoistical +democracy of the slaveholders and their sympathizers. Were his +socialistic tendency to become exclusive and realized, it would found +in the name of humanity a complete social despotism, which, proving +impracticable from its very generality, would break up in anarchy, in +which might makes right, as in the slaveholder's democracy. + +The abolitionists, in supporting themselves on humanity in its +generality, regardless of individual and territorial rights, can +recognize no state, no civil authority, and therefore are as much out +of the order of civilization, and as much in that of barbarism, as is +the slaveholder himself. Wendell Phillips is as far removed from true +Christian civilization as was John C. Calhoun, and William Lloyd +Garrison is as much of a barbarian and despot in principle and tendency +as Jefferson Davis. Hence the great body of the people in the +non-slaveholding States, wedded to American democracy as they were and +are could never, as much as they detested slavery, be induced to make +common cause with the abolitionists, and their apparent union in the +late civil war was accidental, simply owing to the fact that for the +time the social democracy and the territorial coincides or had the same +enemy. The great body of the loyal people instinctively felt that pure +socialism is as incompatible with American democracy as pure +individualism; and the abolitionists are well aware that slavery has +been abolished, not for humanitarian or socialistic reasons but really +for reasons of state, in order to save the territorial democracy. The +territorial democracy would not unite to eliminate even so barbaric an +element as slavery, till the rebellion gave them the constitutional +right to abolish it; and even then so scrupulous were they, that they +demanded a constitutional amendment, so as to be able to make clean +work of it, without any blow to individual or State rights. + +The abolitionists were right in opposing slavery, but not in demanding +its abolition on humanitarian or socialistic grounds. Slavery is really +a barbaric element, and is in direct antagonism to American +civilization. The whole force of the national life opposes it, and +must finally eliminate it, or become itself extinct and it is no mean +proof of their utter want of sympathy with all the living forces of +modern civilization, that the leading men of the South and their +prominent friends at the North really persuaded themselves that with +cotton, rice, and tobacco, they could effectually resist the +anti-slavery movement, and perpetuate their barbaric democracy. They +studied the classics, they admired Greece and Rome, and imagined that +those nations became great by slavery, instead of being great even in +spite of slavery. They failed to take into the account the fact that +when Greece and Rome were in the zenith of their glory, all +contemporary nations were also slaveholding nations, and that if they +were the greatest and most highly civilized nations of their times, +they were not fitted to be the greatest and most highly civilized +nations of all times. They failed also to perceive that, if the +Graeco-Roman republic did not include the whole territorial people in +the political people, it yet recognized both the social and the +territorial foundation of the state, and never attempted to rest it on +pure individualism; they forgot, too, that Greece and Rome both fell, +and fell precisely through internal weakness caused by the barbarism +within, not through the force of the barbarism beyond their frontiers. +The world has changed since the time when ten thousand of his slaves +were sacrificed as a religious offering to the manes of a single Roman +master. The infusion of the Christian dogma of the unity and +solidarity of the race into the belief, the life, the laws, the +jurisprudence of all civilized nations, has doomed slavery and every +species of barbarism; but this our slaveholding countrymen saw not. + +It rarely happens that in any controversy, individual or national, the +real issue is distinctly presented, or the precise question in debate +is clearly and distinctly understood by either party. Slavery was only +incidentally involved in the late war. The war was occasioned by the +collision of two extreme parties; but it was itself a war between +civilization and barbarism, primarily between the territorial democracy +and the personal democracy, and in reality, on the part of the nation, +as much a war against the socialism of the abolitionist as against the +individualism of the slaveholder. Yet the victory, though complete +over the former, is only half won over the latter, for it has left the +humanitarian democracy standing, and perhaps for the moment stronger +than ever. The socialistic democracy was enlisted by the territorial, +not to strengthen the government at home, as it imagines, for that it +did not do, and could not do, since the national instinct was even more +opposed to it than to the personal democracy; but under its antislavery +aspect, to soften the hostility of foreign powers, and ward off foreign +intervention, which was seriously threatened. The populations of +Europe, especially of France and England, were decidedly anti-slavery, +and if the war here appeared to them a war, not solely for the unity of +the nation and the integrity of its domain, as it really was, in which +they took and could take no interest, but a war for the abolition of +slavery, their governments would not venture to intervene. This was +the only consideration that weighed with Mr. Lincoln, as he himself +assured the author, and induced him to issue his Emancipation +Proclamation; and Europe rejoices in our victory over the rebellion +only so far as it has liberated the slaves, and honors the late +President only as their supposed liberator, not as the preserver of the +unity and integrity of the nation. This is natural enough abroad, and +proves the wisdom of the anti-slavery policy of the government, which +had become absolutely necessary to save the Republic long before it was +adopted; yet it is not as the emancipator of some two or three millions +of slaves that the American patriot cherishes the memory of Abraham +Lincoln, but, aided by the loyal people, generals of rare merit, and +troops of unsurpassed bravery and endurance, as the saviour of the +American state, and the protector of modern civilization. His +anti-slavery policy served this end, and therefore was wise, but he +adopted it with the greatest possible reluctance. + +There were greater issues in the late war than negro slavery or negro +freedom. That was only an incidental issue, as the really great men of +the Confederacy felt, who to save their cause were willing themselves +at last to free and arm their own negroes, and perhaps were willing to +do it even at first. This fact alone proves that they had, or believed +they had, a far more important cause than the preservation of negro +slavery. They fought for personal democracy, under the form of State +sovereignty, against social democracy; for personal freedom and +independence against social or humanitarian despotism; and so far their +cause was as good as that against which they took up arms; and if they +had or could have fought against that, without fighting at the same +time against the territorial, the real American, the only civilized +democracy, they would have succeeded. It is not socialism nor +abolitionism that has won; nor is it the North that has conquered. The +Union itself has won no victories over the South, and it is both +historically and legally false to say that the South has been +subjugated. The Union has preserved itself and American civilization, +alike for North and South, East and West. The armies that so often met +in the shock of battle were not drawn up respectively by the North and +the South, but by two rival democracies, to decide which of the two +should rule the future. They were the armies of two mutually +antagonistic systems, and neither army was clearly and distinctly +conscious of the cause for which it was shedding its blood; each obeyed +instinctively a power stronger than itself, and which at best it but +dimly discerned. On both sides the cause was broader and deeper than +negro slavery, and neither the proslavery men nor the abolitionists +have won. The territorial democracy alone has won, and won what will +prove to be a final victory over the purely personal democracy, which +had its chief seat in the Southern States, though by no means confined +to them. The danger to American democracy from that quarter is forever +removed, and democracy à la Rousseau has received a terrible defeat +throughout the world, though as yet it is far from being aware of it. + +But in this world victories are never complete. The socialistic +democracy claims the victory which has been really won by the +territorial democracy, as if it had been socialism, not patriotism, +that fired the hearts and nerved the arms of the brave men led by +McClellan, Grant, and Sherman. The humanitarians are more dangerous in +principle than the egoists, for they have the appearance of building on +a broader and deeper foundation, of being more Christian, more +philosophic, more generous and philanthropic; but Satan is never more +successful than under the guise of an angel of light. His favorite +guise in modern times is that of philanthropy. He is a genuine +humanitarian, and aims to persuade the world that humanitarianism is +Christianity, and that man is God; that the soft and charming sentiment +of philanthropy is real Christian charity; and he dupes both +individuals and nations, and makes them do his work, when they believe +they are earnestly and most successfully doing the work of God. Your +leading abolitionists are as much affected by satanophany as your +leading confederates, nor are they one whit more philosophical or less +sophistical. The one loses the race, the other the individual, and +neither has learned to apply practically that fundamental truth that +there is never the general without the particular, nor the particular +without the general, the race without individuals, nor individuals +without the race. The whole race was in Adam, and fell in him, as we +are taught by the doctrine of original sin, or the sin of the race, and +Adam was an individual, as we are taught in the fact that original sin +was in him actual or personal sin. + +The humanitarian is carried away by a vague generality, and loses men +in humanity, sacrifices the rights of men in a vain endeavor to secure +the rights of man, as your Calvinist or his brother Jansenist +sacrifices the rights of nature in order to secure the freedom of +grace. Yesterday he agitated for the abolition of slavery, to-day he +agitates for negro suffrage, negro equality, and announces that when he +has secured that he will agitate for female suffrage and the equality +of the sexes, forgetting or ignorant that the relation of equality +subsists only between individuals of the same sex; that God made the +man the head of the woman, and the woman for the man, not the man for +the woman. Having obliterated all distinction of sex in politics, in +social, industrial, and domestic arrangements, he must go farther, and +agitate for equality of property. But since property, if recognized at +all, will be unequally acquired and distributed, he must go farther +still, and agitate for the total abolition of property, as an +injustice, a grievous wrong, a theft, with M. Proudhon, or the +Englishman Godwin. It is unjust that one should have what another +wants, or even more than another. What right have you to ride in your +coach or astride your spirited barb while I am forced to trudge on +foot? Nor can our humanitarian stop there. Individuals are, and as +long as there are individuals will be, unequal: some are handsomer and +some are uglier, some wiser or sillier, more or less gifted, stronger +or weaker, taller or shorter, stouter or thinner than others, and +therefore some have natural advantages which others have not. There is +inequality, therefore injustice, which can be remedied only by the +abolition of all individualities, and the reduction of all individuals +to the race, or humanity, man in general. He can find no limit to his +agitation this side of vague generality, which is no reality, but a +pure nullity, for he respects no territorial or individual +circumscriptions, and must regard creation itself as a blunder. This +is not fancy, for he has gone very nearly as far as it is here shown, +if logical, he must go. + +The danger now is that the Union victory will, at home and abroad, be +interpreted as a victory won in the interest of social or humanitarian +democracy. It was because they regarded the war waged on the side of +the Union as waged in the interest of this terrible democracy, that our +bishops and clergy sympathized so little with the Government in +prosecuting it; not, as some imagined, because they were disloyal, +hostile to American or territorial democracy, or not heartily in favor +of freedom for all men, whatever their race or complexion. They had no +wish to see slavery prolonged, the evils of which they, better than any +other class of men, knew, and more deeply deplored; none would have +regretted more than they to have seen the Union broken up; but they +held the socialistic or humanitarian democracy represented by Northern +abolitionists as hostile alike to the Church and to civilization. For +the same reason that they were backward or reserved in their sympathy, +all the humanitarian sects at home and abroad were forward and even +ostentatious in theirs. The Catholics feared the war might result in +encouraging La Republiques democratique et sociale; the humanitarian +sects trusted that it would. If the victory of the Union should turn +out to be a victory for the humanitarian democracy, the civilized world +will have no reason to applaud it. + +That there is some danger that for a time the victory will be taken as +a victory for humanitarianism or socialism, it would be idle to deny. +It is so taken now, and the humanitarian party throughout the world are +in ecstasies over it. The party claim it. The European Socialists and +Red Republicans applaud it, and the Mazzinis and the Garibaldis inflict +on us the deep humiliation of their congratulations. A cause that can +be approved by the revolutionary leaders of European Liberals must be +strangely misunderstood, or have in it some infamous element. It is no +compliment to a nation to receive the congratulations of men who assert +not only people-king, but people-God; and those Americans who are +delighted with them are worse enemies to the American democracy than +ever were Jefferson Davis and his fellow conspirators, and more +contemptible, as the swindler is more contemptible than the highwayman. + +But it is probable the humanitarians have reckoned without their host. +Not they are the real victors. When the smoke of battle has cleared +away, the victory, it will be seen, has been won by the Republic, and +that that alone has triumphed. The abolitionists, in so far as they +asserted the unity of the race and opposed slavery as a denial of that +unity, have also won; but in so far as they denied the reality or +authority of territorial and individual circumscriptions, followed a +purely socialistic tendency, and sought to dissolve patriotism into a +watery sentimentality called philanthropy, have in reality been +crushingly defeated, as they will find when the late insurrectionary +States are fully reconstructed. The Southern or egoistical democrats, +so far as they denied the unity and solidarity of the race, the rights +of society over individuals, and the equal rights of each and every +individual in face of the state, or the obligations of society to +protect the weak and help the helpless, have been also defeated; but so +far as they asserted personal or individual rights which society +neither gives nor can take away, and so far as they asserted, not State +sovereignty, but State rights, held independently of the General +government, and which limit its authority and sphere of action, they +share in the victory, as the future will prove. + +European Jacobins, revolutionists, conspiring openly or secretly +against all legitimate authority, whether in Church or State, have no +lot or part in the victory of the American people: not for them nor for +men with their nefarious designs or mad dreams, have our brave soldiers +fought, suffered and bled for four years of the most terrible war in +modern times, and against troops as brave and as well led as +themselves; not for them has the country sacrificed a million of lives, +and contracted a debt of four thousand millions of dollars, besides the +waste and destruction that it will take years of peaceful industry to +repair. They and their barbaric democracy have been defeated, and +civilization has won its most brilliant victory in all history. The +American democracy has crushed, actually or potentially, every species +of barbarism in the New World, asserted victoriously the state, and +placed the government definitively on the side of legitimate authority, +and made its natural association henceforth with all civilized +governments--not with the revolutionary movements to overthrow them. +The American people will always be progressive as well as conservative; +but they have learned a lesson, which they much needed against false +democracy: civil war has taught them that "the sacred right of +insurrection" is as much out of place in a democratic state as in an +aristocratic or a monarchical state; and that the government should +always be clothed with ample authority to arrest and punish whoever +plots its destruction. They must never be delighted again to have +their government send a national ship to bring hither a noted traitor +to his own sovereign as the nation's guest. The people of the Northern +States are hardly less responsible for the late rebellion than the +people of the Southern States. Their press had taught them to call +every government a tyranny that refused to remain quiet while the +traitor was cutting its throat or assassinating the nation, and they +had nothing but mad denunciations of the Papal, the Austrian, and the +Neapolitan governments for their severity against conspirators and +traitors. But their own government has found it necessary for the +public safety to be equally arbitrary, prompt, and severe, and they +will most likely require it hereafter to co-operate with the +governments of the Old World in advancing civilization, instead of +lending all its moral support, as heretofore, to the Jacobins, +revolutionists, socialists, and humanitarians, to bring back the reign +of barbarism. + +The tendency to individualism has been sufficiently checked by the +failure of the rebellion, and no danger from the disintegrating +element, either in the particular State or in the United States, is +henceforth to be apprehended. But the tendency in the opposite +direction may give the American state some trouble. The tendency now +is, as to the Union, consolidation, and as to the particular state, +humanitarianism, socialism, or centralized democracy. Yet this +tendency, though it may do much mischief, will hardly become exclusive. +The States that seceded, when restored, will always, even in abandoning +State sovereignty, resist it, and still assert State rights. When +these States are restored to their normal position, they will always be +able to protect themselves against any encroachments on their special +rights by the General government. The constitution, in the +distribution of the powers of government, provides the States severally +with ample means to protect their individuality against the +centralizing tendency of the General government, however strong it may +be. + +The war has, no doubt, had a tendency to strengthen the General +government, and to cause the people, to a great extent, to look upon it +as the supreme and exclusive national government, and to regard the +several State governments as subordinate instead of co-ordinate +governments. It is not improbable that the Executive, since the +outbreak of the rebellion, has proceeded throughout on that +supposition, and hence his extraordinary assumptions of power; but when +once peace is fully re-established and the States have all resumed +their normal position in the Union, every State will be found prompt +enough to resist any attempt to encroach on its constitutional rights. +Its instinct of self-preservation will lead it to resist, and it will +be protected by both its own judiciary and that of the United States. + +The danger that the General government will usurp the rights of the +States is far less than the danger that the Executive will usurp all +the powers of Congress and the judiciary. Congress, during the +rebellion, clothed the President, as far as it could, with dictatorial +powers, and these powers the Executive continues to exercise even after +the rebellion is suppressed. They were given and held under the rights +of war, and for war purposes only, and expired by natural limitation +when the war ceased; but the Executive forgets this, and, instead of +calling Congress together and submitting the work of reconstruction of +the States that seceded to its wisdom and authority, undertakes to +reconstruct them himself, as if he were an absolute sovereign; 372 and +the people seem to like it. He might and should, as commander-in-chief +of the army and navy, govern them as military departments, by his +lieutenants, till Congress could either create provisional civil +governments for them or recognize them as self-governing States in the +Union; but he has no right, under the constitution nor under the war +power, to appoint civil governors, permanent or provisional; and every +act he has done in regard to reconstruction is sheer usurpation, and +done without authority and without the slightest plea of necessity. +His acts in this respect, even if wise and just in themselves, are +inexcusable, because done by one who has no legal right to do them. +Yet his usurpation is apparently sustained by public sentiment, and a +deep wound is inflicted on the constitution, which will be long in +healing. + +The danger in this respect is all the greater because it did not +originate with the rebellion, but had manifested itself for a long time +before. There is a growing disposition on the part of Congress to +throw as much of the business of government as possible into the hands +of the Executive. The patronage the Executive wields, even in times of +peace, is so large that he has indirectly an almost supreme control +over the legislative branch of the government. For this, which is, +and, if not checked will continue to be, a growing evil, there is no +obvious remedy, unless the President is chosen for a longer term of +office and made ineligible for a second term, and the mischievous +doctrine of rotation in office is rejected as incompatible with the +true interests of the public. Here is matter for the consideration of +the American statesman. But as to the usurpations of the Executive in +these unsettled times, they will be only temporary, and will cease when +the States are all restored. They are abuses, but only temporary +abuses, and the Southern States, when restored to the Union, will +resume their rights in their own sphere, as self-governing communities, +and legalize or undo the unwarrantable acts of the Federal Executive. + +The socialistic and centralizing tendency in the bosom of the +individual States is the most dangerous, but it will not be able to +become predominant; for philanthropy, unlike charity, does not begin at +home, and is powerless unless it operates at a distance. In the States +in which the humanitarian tendency is the strongest, the territorial +democracy has its most effective organization. Prior to the outbreak +of the rebellion the American people had asserted popular sovereignty, +but had never rendered an account to themselves in what sense the +people are or are not sovereign. They had never distinguished the +three sorts of democracy from one another, asked themselves which of +the three is the distinctively American democracy. For them, democracy +was democracy, and those who saw dangers ahead sought to avoid them +either by exaggerating one or the other of the two exclusive +tendencies, or else by restraining democracy itself through +restrictions on suffrage. The latter class began to distrust universal +suffrage, to lose faith in the people, and to dream of modifying the +American constitution so as to make it conform more nearly to the +English model. The war has proved that the were wrong, for nothing is +more certain than that the people have saved the national unity and +integrity almost in spite of their government. The General government +either was not disposed or was afraid to take a decided stand against +secession, till forced to do it by the people themselves. No wise +American can henceforth distrust American democracy. The people may be +trusted. So much is settled. But as the two extremes were equally +democratic, as the secessionists acted in the name of popular +sovereignty, and as the humanitarians were not unwilling to allow +separation, and would not and did not engage in the war against +secession for the sake of the Union and the integrity of the national +domain, the conviction becomes irresistible that it was not democracy +in the sense of either of the extremes that made the war and came out +of it victorious; and hence the real American democracy must differ +from them both, and is neither a personal nor a humanitarian, but a +territorial democracy. The true idea of American democracy thus comes +out, for the first time, freed from the two extreme democracies which +have been identified with it, and henceforth enters into the +understandings as well as the hearts of the people. The war has +enlightened patriotism, and what was sentiment or instinct becomes +reason--a well-defined, and clearly understood constitutional +conviction. + +In the several States themselves there are many things to prevent the +socialistic tendency from becoming exclusive. In the States that +seceded socialism has never had a foothold, and will not gain it, for +it is resisted by all the sentiments, convictions, and habits of the +Southern people, and the Southern people will not be exterminated nor +swamped by migrations either from the North or from Europe. They are +and always will be an agricultural people, and an agricultural people +are and always will be opposed to socialistic dreams, unless +unwittingly held for a moment to favor it in pursuit of some special +object in which they take a passionate interest. The worst of all +policies is that of hanging, exiling, or disfranchising the wealthy +landholders of the South, in order to bring up the poor and depressed +whites, shadowed forth in the Executive proclamation of the 29th of +May, 1865. Of course that policy will not be carried out, and if the +negroes are enfranchised, they will always vote with the wealthy +landholding class, and aid them in resisting all socialistic +tendencies. The humanitarians will fail for the want of a good social +grievance against which they can declaim. + +In the New England States the humanitarian tendency is strong as a +speculation, but only in relation to objects at a distance. It is +aided much by the congregational constitution of their religion; yet it +is weak at home, and is resisted practically by the territorial +division of power. New England means Massachusetts, and nowhere is the +subdivision of the powers of government carried further, or the +constitution of the territorial democracy more complete, than in that +State. Philanthropy seldom works in private against private vices and +evils: it is effective only against public grievances, and the farther +they are from home and the less its right to interfere with them, the +more in earnest and the more effective for evil does it become. Its +nature is to mind every one's business but its own. But now that +slavery is abolished, there is nowhere in the United States a social +grievance of magnitude enough to enlist any considerable number of the +people, even of Massachusetts, in a movement to redress it. Negro +enfranchisement is a question of which the humanitarians can make +something and they will make the most of it; but as it is a question +that each State will soon settle for itself, it will not serve their +purpose of prolonged agitation. They could not and never did carry +away the nation, even on the question of slavery itself, and +abolitionism had comparatively little direct influence in abolishing +slavery; and the exclusion of negro suffrage can never be made to +appear to the American people as any thing like so great a grievance as +was slavery. + +Besides, in all the States that did not secede, Catholics are a +numerous and an important portion of the population. Their increasing +numbers, wealth, and education secure them, as much as the majority may +dislike their religion, a constantly increasing influence, and it is +idle to leave them out in counting the future of the country. They +will, in a very few years, be the best and most thoroughly educated +class of the American people; and, aside from their religion, or, +rather, in consequence of their religion, the most learned, +enlightened, and intelligent portion of the American population; and as +much as they have disliked the abolitionists, they have, in the army +and elsewhere, contributed their full share to the victory the nation +has won. The best things written on the controversy have been written +by Catholics, and Catholics are better fitted by their religion to +comprehend the real character of the American constitution than any +other class of Americans, the moment they study it in the light of +their own theology. The American constitution is based on that of +natural society, on the solidarity of the race, and the difference +between natural society and the church or Christian society is, that +the one is initial and the other teleological. The law of both is the +same; Catholics, as such, must resist both extremes, because each is +exclusive, and whatever is exclusive or one-sided is uncatholic. If +they have been backward in their sympathy with the government, it has +been through their dislike of the puritanic spirit and the humanitarian +or socialistic elements they detected in the Republican party, joined +with a prejudice against political and social negro equality. But +their church everywhere opposes the socialistic movements of the age, +all movements in behalf of barbarism, and they may always be counted on +to resist the advance of the socialistic democracy. If the country has +had reason to complain of some of them in the late war, it will have, +in the future, far stronger reason to be grateful; not to them, indeed, +for the citizen owes his life to his country, but to their religion, +which has been and is the grand protectress of modern society and +civilization. + +From the origin of the government there has been a tendency to the +extension of suffrage, and to exclude both birth and private property +as bases of political rights or franchises. This tendency has often +been justified on the ground that the elective franchise is a natural +right; which is not true, because the elective franchise is political +power, and political power is always a civil trust, never a natural +right, and the state judges for itself to whom it will or will not +confide the trust; but there can be no doubt that it is a normal +tendency, and in strict accordance with the constitution of American +civil society, which rests on the unity of the race, and public instead +of private property. All political distinctions founded on birth, +race, or private wealth are anomalies in the American system, and are +necessarily eliminated by its normal developments. To contend that +none but property-holders may vote, or none but persons of a particular +race may be enfranchised, is unamerican and contrary, to the order of +civilization the New World is developing. The only qualification for +the elective franchise the American system can logically insist on is +that the elector belong to the territorial people--that is, be a +natural-born or a naturalized citizen, be a major in full possession of +his natural faculties, and unconvicted of any infamous offence. The +State is free to naturalize foreigners or not, and under such +restrictions as it judges proper; but, having naturalized them, it must +treat them as standing on the same footing with natural-born citizens. + +The naturalization question is one of great national importance. The +migration of foreigners hither has added largely to the national +population, and to the national wealth and resources, but less, +perhaps, to the development of patriotism, the purity of elections, or +the wisdom and integrity of the government. It is impossible that +there should be perfect harmony between the national territorial +democracy and individuals born, brought up, and formed under a +political order in many respects widely different from it; and there is +no doubt that the democracy, in its objectionable sense, has been +greatly strengthened by the large infusion of naturalized citizens. +There can be no question that, if the laboring classes, in whom the +national sentiment is usually the strongest, had been composed almost +wholly of native Americans, instead of being, as they were, at least in +the cities, large towns, and villages, composed almost exclusively of +persons foreign born, the Government would have found far less +difficulty in filling up the depleted ranks of its armies. But to +leave so large a portion of the actual population as the foreign born +residing in the country without the rights of citizens, would have been +a far graver evil, and would, in the late struggle, have given the +victory to secession. There are great national advantages derived from +the migration hither of foreign labor, and if the migration be +encouraged or permitted, naturalization on easy and liberal terms is +the wisest, the best, and only safe policy. The children of +foreign-born parents are real Americans. + +Emigration has, also, a singular effect in developing the latent powers +of the emigrant, and the children of emigrants are usually more active, +more energetic than the children of the older inhabitants of the +country among whom they settle. Some of our first men in civil life +have been sons of foreign-born parents, and so are not a few of our +greatest and most successful generals. The most successful of our +merchants have been foreign-born. The same thing has been noticed +elsewhere, especially in the emigration of the French Huguenots to +Holland, Germany, England, and Ireland. The immigration of so many +millions from the Old World has, no doubt, given to the American people +much of their bold, energetic, and adventurous character, and made them +a superior people on the whole to what they would otherwise have been. +This has nothing to do with superiority or inferiority of race or +blood, but is a natural effect of breaking men away from routine, and +throwing them back on their own individual energies and personal +resources. + +Resistance is offered to negro suffrage, and justly too, till the +recently emancipated slaves have served an apprenticeship to freedom; +but that resistance cannot long stand before the onward progress of +American democracy, which asserts equal rights for all, and not for a +race or class only. Some would confine suffrage to landholders, or, at +least, to property-holders; but that is inconsistent with the American +idea, and is a relic of the barbaric constitution which founds power on +private instead of public wealth. Nor are property-owners a whit more +likely to vote for the public good than are those who own no property +but their own labor. The men of wealth, the business men, +manufacturers and merchants, bankers and brokers, are the men who exert +the worst influence on government in every country, for they always +strive to use it as an instrument of advancing their own private +interests. They act on the beautiful maxim, "Let government take care +of the rich, and the rich will take care of the poor," instead of the +far safer maxim, "Let government take care of the weak, the strong can +take care of themselves." Universal suffrage is better than restricted +suffrage, but even universal suffrage is too weak to prevent private +property from having an undue political influence. + +The evils attributed to universal suffrage are not inseparable from it, +and, after all, it is doubtful if it elevates men of an inferior class +to those elevated by restricted suffrage. The Congress of 1860, or of +1862. was a fair average of the wisdom, the talent, and the virtue of +the country, and not inferior to that of 1776, or that of 1789; and the +Executive during the rebellion was at least as able and as efficient as +it was during the war of 1812, far superior to that of Great Britain, +and not inferior to that of France during the Crimean war. The Crimean +war developed and placed in high command, either with the English or +the French, no generals equal to Halleck, Grant, and Sherman, to say +nothing of others. The more aristocratic South proved itself, in both +statesmanship and generalship, in no respect superior to the +territorial democracy of the North and West. + +The great evil the country experiences is not from universal suffrage, +but from what may be called rotation in office. The number of +political aspirants is so great that, in the Northern and Western +States especially, the representatives in Congress are changed every +two or four years, and a member, as soon as he has acquired the +experience necessary to qualify him for his position, is dropped, not +through the fickleness of his constituency, but to give place to +another whose aid had been necessary to his first or second election. +Employes are "rotated," not because they are incapable or unfaithful, +but because there are others who want their places. This is all bad, +but it springs not from universal suffrage, but from a wrong public +opinion, which might be corrected by the press, but which is mainly +formed by it. There is, no doubt, a due share of official corruption, +but not more than elsewhere, and that would be much diminished by +increasing the salaries of the public servants, especially in the +higher offices of the government, both General and State. The pay to +the lower officers and employes of the government, and to the privates +and non-commissioned officers in the army, is liberal, and, in general, +too liberal; but the pay of the higher grades in both the civil and +military service is too low, and relatively far lower than it was when +the government was first organized. + +The worst tendency in the country, and which is not encouraged at all +by the territorial democracy, manifests itself in hostility to the +military spirit and a standing army. The depreciation of the military +spirit comes from the humanitarian or sentimental democracy, which, +like all sentimentalisms, defeats itself, and brings about the very +evils it seeks to avoid. The hostility to standing armies is inherited +from England, and originated in the quarrels between king and +parliament, and is a striking evidence of the folly of that bundle of +antagonistic forces called the British constitution. In feudal times +most of the land was held by military service, and the reliance of +government was on the feudal militia; but no real progress was made in +eliminating barbarism till the national authority got a regular army at +its command, and became able to defend itself against its enemies. It +is very doubtful if English civilization has not, upon the whole, lost +more than it has gained by substituting parliamentary for royal +supremacy, and exchanging the Stuarts for the Guelfs. + +No nation is a living, prosperous nation that has lost the military +spirit, or in which the profession of the soldier is not held in honor +and esteem; and a standing army of reasonable size is public economy. +It absorbs in its ranks a class of men who are worth more there than +anywhere else; it creates honorable places for gentlemen or the sons of +gentlemen without wealth, in which they can serve both themselves and +their country. Under a democratic government the most serious +embarrassment to the state is its gentlemen, or persons not disposed or +not fitted to support themselves by their own hands, more necessary in +a democratic government than in any other. The civil service, +divinity, law, and medicine, together with literature, science, and +art, cannot absorb the whole of this ever-increasing class, and the +army and navy would be an economy and a real service to the state were +they maintained only for the sake of the rank and position they give to +their officers, and the wholesome influence these officers would exert +on society and the politics of the country--this even in case there +were no wars or apprehension of wars. They supply an element needed in +all society, to sustain in it the chivalric and heroic spirit, +perpetually endangered by the mercantile and political spirit, which +has in it always something low and sordid. + +But wars are inevitable, and when a nation has no surrounding nations +to fight, it will, as we have just proved, fight itself. When it can +have no foreign war, it will get up a domestic war; for the human +animal, like all animals, must work off in some way its fighting humor, +and the only sure way of maintaining peace is always to be prepared for +war. A regular standing army of forty thousand men would have +prevented the Mexican war, and an army of fifty thousand +well-disciplined and efficient troops at the command of the President +on his inauguration in March, 1861, would have prevented the rebellion, +or have instantly suppressed it. The cost of maintaining a land army +of even a hundred thousand men, and a naval force to correspond, would +have been, in simple money value, only a tithe of what the rebellion +has cost the nation, to say nothing of the valuable lives that have +been sacrificed for the losses on the rebel side, as well as those on +the side of the government, are equally to be counted. The actual +losses to the country have been not less than six or eight thousand +millions of dollars, or nearly one-half the assessed value of the whole +property of the United States according to the census returns of 1860, +and which has only been partially cancelled by actual increase of +property since. To meet the interest on the debt incurred will require +a heavier sum to be raised annually by taxation, twice over, without +discharging a cent of the principal, than would have been necessary to +maintain an army and navy adequate to the protection of peace and the +prevention of the rebellion. + +The rebellion is now suppressed, and if the government does not blunder +much more in its civil efforts at pacification than it did in its +military operations, before 1868 things will settle down into their +normal order; but a regular army--not militia or volunteers, who are +too expensive--of at least a hundred thousand men of all arms, and a +navy nearly as large as that of England or France, will be needed as a +peace establishment. The army of a hundred thousand men must form a +cadre of an army of three times that number, which will be necessary to +place the army on a war footing. Less will answer neither for peace +nor war, for the nation has, in spite of herself, to maintain +henceforth the rank of a first-class military and maritime power, and +take a leading part in political movements of the civilized world, and, +to a great extent, hold in her hand the peace of Europe. + +Canning boasted that he had raised up the New World to redress the +balance of the Old: a vain boast, for he simply weakened Spain and gave +the hegemony of Europe to Russia, which the Emperor of the French is +trying, by strengthening Italy and Spain, and by a French protectorate +in Mexico, to secure to France, both in the Old World and the New--a +magnificent dream, but not to be realized. His uncle judged more +wisely when he sold Louisiana, left the New World to itself, and sought +only to secure to France the hegemony of the Old. But the hegemony of +the New World henceforth belongs to the United States, and she will +have a potent voice in adjusting the balance of power even in Europe. +To maintain this position, which is imperative on her, she must always +have a large armed force, either on foot or in reserve, which she can +call out and put on a war footing at short notice. The United States +must henceforth be a great military and naval power, and the old +hostility to a standing army and the old attempt to bring the military +into disrepute must be abandoned, and the country yield to its destiny. + +Of the several tendencies mentioned, the humanitarian tendency, +egoistical at the South, detaching the individual from the race and +socialistic at the North, absorbing the individual in the race, is the +most dangerous. The egoistical form is checked, sufficiently weakened +by the defeat of the rebels; but the social form believes that it has +triumphed, and that individuals are effaced in society, and the States +in the Union. Against this, more especially should public opinion and +American statesmanship be now directed, and territorial democracy and +the division of the powers of government be asserted and vigorously +maintained. The danger is that while this socialistic form of democracy +is conscious of itself, the territorial democracy has not yet arrived, +as the Germans say, at self consciousness--_selbsbewusstseyn_--and +operates only instinctively. All the dominant theories and +sentimentalities are against it, and it is only Providence that can +sustain it. + + + + +CHAPTER XV. + +DESTINY--POLITICAL AND RELIGIOUS. + + +It has been said in the Introduction to this essay that every living +nation receives from Providence a special work or mission in the +progress of society, to accomplish which is its destiny, or the end for +which it exists; and that the special mission of the United States is +to continue and complete in the political order the Graeco-Roman +civilization. + +Of all the states or colonies on this continent, the American Republic +alone has a destiny, or the ability to add any thing to the +civilization of the race. Canada and the other British Provinces, +Mexico and Central America, Columbia and Brazil, and the rest of the +South American States, might be absorbed in the United States without +being missed by the civilized world. They represent no idea, and the +work of civilization could go on without them as well as with them. If +they keep up with the progress of civilization, it is all that can be +expected of them. France, England, Germany, and Italy might absorb the +rest of Europe, and all Asia and Africa, without withdrawing a single +laborer from the work of advancing the civilization of the race; and it +is doubtful if these nations themselves can severally or jointly +advance it much beyond the point reached by the Roman Empire, except in +abolishing slavery and including in the political people the whole +territorial people. They can only develop and give a general +application to the fundamental principles of the Roman constitution. +That indeed is much, but it adds no new element nor new combination of +preexisting elements. But nothing of this can be said of the United +States. + +In the Graeco-Roman civilization is found the state proper, and the +great principle of the territorial constitution of power, instead of +the personal or the genealogical, the patriarchal or the monarchical; +and yet with true civil or political principles it mixed up nearly all +the elements of the barbaric constitution. The gentile system of Rome +recalls the patriarchal, and the relation that subsisted between the +patron and his clients has a striking resemblance to that which +subsists between the feudal lord and his retainers, and may have had +the same origin. The three tribes, Ramnes, Quirites, and Luceres, into +which the Roman people were divided before the rise of the plebs, may +have been, as Niebuhr contends, local, not genealogical, in their +origin, but they were not strictly territorial distinctions, and the +division of each tribe into a hundred houses or gentes was not local, +but personal, if not, as the name implies, genealogical. No doubt the +individuals or families composing the house or gens were not all of +kindred blood, for the Oriental custom of adoption, so frequent with +our North American Indians, and with all people distributed into +tribes, septs, or clans, obtained with the Romans. The adopted member +was considered a child of the house, and took its name and inherited +its goods. Whether, as Niebuhr maintains, all the free gentiles of the +three tribes were called patres or patricians or whether the term was +restricted to the heads of houses, it is certain that the head of the +house represented it in the senate, and the vote in the curies was by +houses, not by individuals en masse. After all, practically the Roman +senate was hardly less an estate than the English house of lords, for +no one could sit in it unless a landed proprietor and of noble blood. +The plebs, though outside of the political people proper, as not being +included in the three tribes, when they came to be a power in the +republic under the emperors, and the old distinction of plebs and +patricians was forgotten, were an estate, and not a local or +territorial people. + +The republican element was in the fact that the land, which gave the +right to participate in political power, was the domain of the state, +and the tenant held it from the state. The domain was vested in the +state, not in the senator nor the prince, and was therefore respublica, +not private property--the first grand leap of the human race from +barbarism. In all other respects the Roman constitution was no more +republican than the feudal. Athens went farther than Rome, and +introduced the principle of territorial democracy. The division into +demes or wards, whence comes the word democracy, was a real territorial +division, not personal nor genealogical. And if the equality of all +men was not recognized, all who were included in the political class +stood on the same footing. Athens and other Greek cities, though +conquered by Rome, exerted after their conquest a powerful influence on +Roman civilization, which became far more democratic under the emperors +than it had been under the patrician senate, which the assassins of +Julius Caesar, and the superannuated conservative party they +represented, tried so hard to preserve. The senate and the consulship +were opened to the representatives of the great plebeian houses, and +the provincials were clothed with the rights of Roman citizens, and +uniform laws were established throughout the empire. + +The grand error, as has already been said, of the Graeco-Roman or +gentile civilization, was in its denial or ignorance of the unity of +the human race, as well as the Unity of God, and in its including in +the state only a particular class of the territorial people, while it +held all the rest as slaves, though in different degrees of servitude. +It recognized and sustained a privileged class, a ruling order; and if, +as subsequently did the Venetian aristocracy, it recognized democratic +equality within that order, it held all outside of it to be less than +men and without political rights. Practically, power was an attribute +of birth and of private wealth. Suffrage was almost universal among +freemen, but down almost to the Empire, the people voted by orders, and +were counted, not numerically, but by the rank of the order, and the +comitia curiata could always carry the election over the comitia +centuriata, and thus power remained always in the hands of the rich and +noble few. + +The Roman Law, as digested by jurists under Justinian in the sixth +Century, indeed, recognizes the unity of the race, asserts the equality +of all men by the natural law, and undertakes to defend slavery on +principles not incompatible with that equality. It represents it as a +commutation of the punishment of death, which the emperor has the right +to inflict on captives taken in war, to perpetual servitude; and as +servitude is less severe than death, slavery was really a proof of +imperial clemency. But it has never yet been proved that the emperor +has the right under the natural law to put captives taken even in a +just war to death, and the Roman poet himself bids us "humble the +proud, but spare the submissive." In a just war the emperor may kill +on the battle-field those in arms against him, but the jus gentium, as +now interpreted by the jurisprudence of every civilized nation, does +not allow him to put them to death after they have ceased resistance, +have thrown down their arms, and surrendered. But even if it did, it +gives him a right only over the persons captured, not over their +innocent children, and therefore no right to establish hereditary +slavery, for the child is not punishable for the offences of the +parent. The law, indeed, assumed that the captive ceased to exist as a +person and treated him as a thing, or mere property of the conqueror, +and being property, he could beget only property, which would accrue +only to his owner. But there is no power in heaven or earth that can +make a person a thing, a mere piece of merchandise, and it is only by a +clumsy fiction, or rather by a bare-faced lie, that the law denies the +slave his personality and treats him as a thing. I the unity of all men +had been clearly seen and vividly felt, the law would never have +attempted to justify perpetual slavery on the ground of its penal +character, or indeed on any ground whatever. All men are born under +the law of nature with equal rights, and the civil law can justly +deprive no man of his liberty, but for a crime, committed by him +personally, that justly forfeits his liberty to society. + +These defects of the Graeco-Roman civilization the European nations +have in part remedied, and may completely remedy. They can carry out +practically the Christian dogma of the unity of the human race, abolish +slavery in every form, make all men equal before the law, and the +political people commensurate with the territorial people. Indeed, +France has already done it. She has abolished slavery, villenage, +serfage, political aristocracy, asserted the equality of all men before +the law, vindicated the sovereignty of the people, and established +universal suffrage, complete social and territorial democracy. The +other nations may do as much, but hardly can any of them do more or +advance farther. Yet in France, territorial democracy the most +complete results only in establishing the most complete imperial +centralism, usually called Caesarism. + +The imperial constitution of France recognizes that the emperor reigns +"by the grace of God and the will of the nation," and therefore, that +by the grace of God and the will of the nation he may cease to reign; +but while he reigns he is supreme, and his will is law. The +constitution imposes no real or effective restraint on his power: while +he sits upon the throne he is practically France, and the ministers are +his clerks; the council of state, the senate, and the legislative body +are merely his agents in governing the nation. This may, indeed, be +changed, but only to substitute for imperial centralism democratic +centralism, which were no improvement, or to go back to the system of +antagonisms, checks and balances, called constitutionalism, or +parliamentary government, of which Great Britain is the model, and +which were a return toward barbarism, or mediaeval feudalism. + +The human race has its life in God, and tends to realize in all orders +the Divine Word or Logos, which is Ionic itself, and the principle of +all conciliation, of the dialectic union of all opposites or extremes. +Mankind will be logical; and the worst of all tyrannies is that which +forbids them to draw from their principles their last logical +consequences, or that prohibits them the free explication and +application of the Divine Idea, in which consists their life, their +progress. Such tyranny strikes at the very existence of society, and +wars against the reality of things. It is supremely sophistical, and +its success is death; for the universe in its constitution is supremely +logical, and man, individually and socially, is rational. God is the +author and type of all created things; and all creatures, each in its +order, imitate or copies the Divine Being, who is intrinsically Father, +Son, and Holy Ghost, principle, medium, and end. The Son or Word is +the medium, which unites the two extremes, whence God is living God a +real, active, living Being--living, concrete, not abstract or dead +unity, like the unity of old Xenophanes, Plotinus, and Proclus. In the +Holy Trinity is the principle and prototype of all society, and what is +called the solidarity of the race is only the outward expression, or +copy in the external order, of what theologians term the circumsession +of the three Divine Persons of the Godhead. + +Now, human society, when it copies the Divine essence and nature either +in the distinction of persons alone, or in the unity alone, is +sophistical, and wants the principle of all life and reality. It sins +against God, and must fail of its end. The English system, which is +based on antagonistic elements, on opposites, without the middle term +that conciliates them, unites them, and makes them dialectically one, +copies the Divine model in its distinctions alone, which, considered +alone, are opposites or contraries. It denies, if Englishmen could but +see it, the unity of God. The French, or imperial system, which +excludes the extremes, instead of uniting them, denies all opposites, +instead of conciliating them--denies the distinctions in the model, and +copies only the unity, which is the supreme sophism called pantheism. +The English constitution has no middle term, and the French no +extremes, and each in its way denies the Divine Trinity, the original +basis and type of the syllogism. The human race can be contented with +neither, for neither allows it free scope for its inherent life and +activity. The English system tends to pure individualism; the French +to pure socialism or despotism, each endeavoring to suppress an element +of the one living and indissoluble TRUTH. + +This is not fancy, is not fine-spun speculation, or cold and lifeless +abstraction, but the highest theological and philosophical truth, +without which there were no reason, no man, no society; for God is the +first principle of all being, all existence, all science, all life, and +it is in Him that we live and move and have our being. God is at the +beginning, in the middle, and at the end of all things--the universal +principle, medium, and end; and no truth can be denied without His +existence being directly or indirectly impugned. In a deeper sense +than is commonly understood is it true that nisi Dominus aedificaverit +domum, in vanum laboraverunt qui aedificant eam. The English +constitution is composed of contradictory elements, incapable of +reconciliation, and each element is perpetually struggling with the +others for the mastery. For a long time the king labored, intrigued, +and fought to free himself from the thraldom in which he was held by +the feudal barons; in 1688 the aristocracy and people united and +humbled the crown; and now the people are at work seeking to sap both +the crown and the nobles. The state is constituted to nobody's +satisfaction; and though all may unite in boasting its excellences, all +are at work trying to alter or amend it. The work of constituting the +state with the English is ever beginning, never ending. Hence the +eternal clamor for parliamentary reform. + +Great Britain and other European states may sweep away all that remains +of feudalism, include the whole territorial people with the equal +rights of all in the state or political people, concede to birth and +wealth no political rights, but they will by so doing only establish +either imperial centralism, as has been done in France, or democratic +centralism, clamored for, conspired for, and fought for by the +revolutionists of Europe. The special merit of the American system is +not in its democracy alone, as too many at home and abroad imagine; but +along with its democracy in the division of the powers of government, +between a General government and particular State governments, which +are not antagonistic governments, for they act on different matters, +and neither is nor can be subordinated to the other. + +Now, this division of power, which decentralizes the government without +creating mutually hostile forces, can hardly be introduced into any +European state. There may be a union of states in Great Britain, in +Germany, in Italy, perhaps in Spain, and Austria is laboring hard to +effect it in her heterogeneous empire; but the union possible in any of +them is that of a Bund or confederation, like the Swiss or German Bund, +similar to what the secessionists in the United States so recently +attempted and have so signally failed to establish. An intelligent +Confederate officer remarked that their Confederacy had not been in +operation three months before it became evident that the principle on +which it was founded, if not rejected, would insure its defeat. It was +that principle of State sovereignty, for which the States seceded, more +than the superior resources and numbers of the Government, that caused +the collapse of the Confederacy. The numbers were relatively about +equal, and the military resources of the Confederacy were relatively +not much inferior to those of the Government. So at least the +Confederate leaders thought, and they knew the material resources of +the Government as well as their own, and had calculated them with as +much care and accuracy as any men could. Foreign powers also, friendly +as well as unfriendly, felt certain that the secessionists would gain +their independence, and so did a large part of the people even of the +loyal States. The failure is due to the disintegrating principle of +State sovereignty, the very principle of the Confederacy. The war has +proved that united states are, other things being equal, an overmatch +for confederated states. + +The European states must unite either as equals or as unequals. As +equals, the union can be only a confederacy, a sort of Zollverein, in +which each state retains its individual sovereignty; if as unequals, +then someone among them will aspire to the hegemony, and you have over +again the Athenian Confederation, formed at the conclusion of the +Persian war, and its fate. A union like the American cannot be created +by a compact, or by the exercise of supreme power. The Emperor of the +French cannot erect the several Departments of France into states, and +divide the powers of government between them as individual and as +united states. They would necessarily hold from the imperial +government, which, though it might exercise a large part of its +functions through them, would remain, as now, the supreme central +government, from which all governmental powers emanate, as our +President is apparently attempting, in his reconstruction policy, to +make the government of the United States. The elements of a state +constituted like the American do not exist in any European nation, nor +in the constitution of European society; and the American constitution +would have been impracticable even here had not Providence so ordered +it that the nation was born with it, and has never known any other. + +Rome recognized the necessity of the federal principle, and applied it +in the best way she could. At first it was a single tribe or people +distributed into distinct gentes or houses; after the Sabine war, a +second tribe was added on terms of equality, and the state was dual, +composed of two tribes, the Ramnes and the Tities or Quirites, and, +afterward, in the time of Tullus Hostilius, were added the Lucertes or +Luceres, making the division into three ruling tribes, each divided +into one hundred houses or gentes. Each house in each tribe was +represented by its chief or decurion in the senate, making the number +of senators exactly three hundred, at which number the senate was +fixed. Subsequently was added, by Ancus, the plebs, who remained +without authority or share in the government of the city of Rome +itself, though they might aspire to the first rank in the allied +cities. The division into tribes, and the division of the tribes into +gentes or houses, and the vote in the state by tribes, and in the +tribes by houses, effectually excluded democratic centralism; but the +division was not a division of the powers of government between two +co-ordinate governments, for the senate had supreme control, like the +British parliament, over all matters, general and particular. + +The establishment, after the secession of the plebs, of the tribunitial +veto, which gave the plebeians a negative power in the state, there was +an incipient division of the powers of government; but only a division +between the positive and negative powers, not between the general and +the particular. The power accorded to the plebs, or commons, as +Niebuhr calls them--who is, perhaps, too fond of explaining the early +constitution of Rome by analogies borrowed from feudalism, and +especially from the constitution of his native Ditmarsch--was simply an +obstructive power; and when it, by development, became a positive +power, it absorbed all the powers of government, and created the Empire. + +There was, indeed, a nearer approach to the division of powers in the +American system, between imperial Rome and her allied or confederated +municipalities. These municipalities, modelled chiefly after that of +Rome, were elective, and had the management of their own local affairs; +but their local powers were not co-ordinate in their own sphere with +those exercised by the Roman municipality, but subordinate and +dependent. The senate had the supreme power over them, and they held +their rights subject to its will. They were formally, or virtually, +subjugated states, to which the Roman senate, and afterward the Roman +emperors, left the form of the state and the mere shadow of freedom. +Rome owed much to her affecting to treat them as allies rather than as +subjects, and at first these municipal organizations secured the +progress of civilization in the provinces; but at a later period, under +the emperors, they served only the imperial treasury, and were crushed +by the taxes imposed and the contributions levied on them by the fiscal +agents of the empire. So heavy were the fiscal burdens imposed on the +burgesses, if the term may be used, that it needed an imperial edict to +compel them to enter the municipal government; and it became, under the +later emperors, no uncommon thing for free citizens to sell themselves +into slavery, to escape the fiscal burdens imposed. There are actually +imperial edicts extant forbidden freemen to sell themselves as slaves. +Thus ended the Roman federative system, and it is difficult to discover +in Europe the elements of a federative system that could have a more +favorable result. + +Now, the political destiny or mission of the United States is, in +common with the European nations, to eliminate the barbaric elements +retained by the Roman constitution, and specially to realize that +philosophical division of the powers of government which distinguish it +from both imperial and democratic centralism on the one hand, and, on +the other, from the checks and balances or organized antagonisms which +seek to preserve liberty by obstructing the exercise of power. No +greater problem in statesmanship remains to be solved, and no greater +contribution to civilization to be made. Nowhere else than in this New +World, and in this New World only in the United States, can this +problem be solved, or this contribution be made, and what the +Graeco-Roman republic began be completed. + +But the United States have a religious as well as a political destiny, +for religion and politics go together. Church and state, as +governments, are separate indeed, but the principles on which the state +is founded have their origin and ground in the spiritual order--in the +principles revealed or affirmed by religion--and are inseparable from +them. There is no state without God, any more than there is a church +without Christ or the Incarnation. An atheist may be a politician, but +if there were no God there could be no politics, theological principles +are the basis of political principles. The created universe is a +dialectic whole, distinct but inseparable from its Creator, and all its +parts cohere and are essential to one another. All has its origin and +prototype in the Triune God, and throughout expresses unity in +triplicity and triplicity in unity, without which there is no real +being and no actual or possible life. Every thing has its principle, +medium, and end. Natural society is initial, civil government is +medial, the church is teleological, but the three are only distinctions +in one indissoluble whole. + +Man, as we have seen, lives by communion with God through the Divine +creative act, and is perfected or completed only through the +Incarnation, in Christ, the Word made flesh. True, he communes with +God through his kind, and through external nature, society in which he +is born and reared, and property through which he derives sustenance +for his body; but these are only media of his communion with God, the +source of life--not either the beginning or the end of his communion. +They have no life in themselves, since their being is in God, and, of +themselves, can impart none. They are in the order of second causes, +and second causes, without the first cause, are nought. Communion +which stops with them, which takes them as the principle and end, +instead of media, as they are, is the communion of death, not of life. +As religion includes all that relates to communion with God, it must in +some form be inseparable from every living act of man, both +individually and socially; and, in the long run, men must conform +either their politics to their religion or their religion to their +politics. Christianity is constantly at work, moulding political +society in its own image and likeness, and every political system +struggles to harmonize Christianity with itself. If, then, the United +States have a political destiny, they have a religious destiny +inseparable from it. + +The political destiny of the United States is to conform the state to +the order of reality, or, so to speak, to the Divine Idea in creation. +Their religious destiny is to render practicable and to realize the +normal relations between church and state, religion and politics, as +concreted in the life of the nation. + +In politics, the United States are not realizing a political theory of +any sort whatever. They, on the contrary, are successfully refuting +all political theories, making away with them, and establishing the +state--not on a theory, not on an artificial basis or a foundation laid +by human reason or will, but on reality, the eternal and immutable +principles in relation to which man is created. They are doing the +same in regard to religious theories. Religion is not a theory, a +subjective view, an opinion, but is, objectively, at once a principle, +a law, and a fact, and, subjectively, it is, by the aid of God's grace, +practical conformity to what is universally true and real. The United +States, in fulfilment of their destiny, are making as sad havoc with +religious theories as with political theories, and are pressing on with +irresistible force to the real or the Divine order which is expressed +in the Christian mysteries, which exists independent of man's +understanding and will, and which man can neither make nor unmake. + +The religious destiny of the United States is not to create a new +religion nor to found a new church. All real religion is catholic, and +is neither new nor old, but is always and everywhere true. Even our +Lord came neither to found a new church nor to create a new religion, +but to do the things which had been foretold, and to fulfil in time +what had been determined in eternity. God has himself founded the +church on catholic principles, or principles always and everywhere real +principles. His church is necessarily catholic, because founded on +catholic dogmas, and the dogmas are catholic, because they are +universal and immutable principles, having their origin and ground in +the Divine Being Himself, or in the creative act by which He produces +and sustains all things. Founded on universal and immutable +principles, the church can never grow old or obsolete, but is the +church for all times and Places, for all ranks and conditions of men. +Man cannot change either the church or the dogmas of faith, for they +are founded in the highest reality, which is above him, over him, and +independent of him. Religion is above and independent of the state, +and the state has nothing to do with the church or her dogmas, but to +accept and conform to them as it does to any of the facts or principles +of science, to a mathematical truth, or to a physical law. + +But while the church, with her essential constitution, and her dogmas +are founded in the Divine order, and are catholic and unalterable, the +relations between the civil and ecclesiastical authorities may be +changed or modified by the changes of time and place. These relations +have not been always the same, but have differed in different ages and +countries. During the first three centuries of our era the church had +no legal status, and was either connived at or persecuted by the state. +Under the Christian emperors she was recognized by the civil law; her +prelates had exclusive jurisdiction in mixed civil and ecclesiastical +questions, and were made, in some sense, civil magistrates, and paid as +such by the empire. Under feudalism, the prelates received investiture +as princes and barons, and formed alone, or in connection with the +temporal lords, an estate in the kingdom. The Pope became a temporal +prince and suzerain, at one time, of a large part of Europe, and +exercised the arbitratorship in all grave questions between Christian +sovereigns themselves, and between them and their subjects. Since the +downfall of feudalism and the establishment of modern centralized +monarchy, the church has been robbed of the greater part of her +temporal possessions, and deprived, in most countries, of all civil +functions, and treated by the state either as an enemy or as a slave. + +In all the sectarian and schismatic states of the Old World, the +national church is held in strict subjection to the civil authority, as +in Great Britain and Russia, and is the slave of the state; in the +other states of Europe, as France, Austria, Spain, and Italy, she is +treated with distrust by the civil government, and allowed hardly a +shadow of freedom and independence. In France, which has the proud +title of eldest daughter of the church, Catholics, as such, are not +freer than they are in Turkey. All religious are said to be free, and +all are free, except the religion of the majority of Frenchmen. The +emperor, because nominally a Catholic, takes it upon himself to concede +the church just as much and just as little freedom in the empire as he +judges expedient for his own secular interests. In Italy, Spain, +Portugal, Mexico, and the Central and South American states, the policy +of the civil authorities is the same, or worse. It may be safely +asserted that, except in the United States, the church is either held +by the civil power in subjection, or treated as an enemy. The relation +is not that of union and harmony, but that of antagonism, to the grave +detriment of both religion and civilization. + +It is impossible, even if it were desirable, to restore the mixture of +civil and ecclesiastical governments which obtained in the Middle Ages; +and a total separation of church and state, even as corporations, +would, in the present state of men's minds in Europe, be construed, if +approved by the church, into a sanction by her of political atheism, or +the right of the civil power to govern according to its own will and +pleasure in utter disregard of the law of God, the moral order, or the +immutable distinctions between right and wrong. It could only favor +the absolutism of the state, and put the temporal in the place of the +spiritual. Hence, the Holy Father includes the proposition of the +entire separation of church and state in the Syllabus of Errors +condemned in his Encyclical, dated at Rome, December 8, 1864. Neither +the state nor the people, elsewhere than in the United States, can +understand practically such separation in any other sense than the +complete emancipation of our entire secular life from the law of God, +or the Divine order, which is the real order. It is not the union of +church and state--that is, the union, or identity rather, of religious +and political principles--that it is desirable to get rid of, but the +disunion or antagonism of church and state. But this is nowhere +possible out of the United States; for nowhere else is the state +organized on catholic principles, or capable of acting, when acting +from its own constitution, in harmony with a really catholic church, or +the religious order really existing, in relation to which all things +are created and governed. Nowhere else is it practicable, at present, +to maintain between the two powers their normal relations. + +But what is not practicable in the Old World is perfectly practicable +in the New. The state here being organized in accordance with catholic +principles, there can be no antagonism between it and the church. +Though operating in different spheres, both are, in their respective +spheres, developing and applying to practical life the one and the same +Divine Idea. The church can trust the state, and the state can trust +the church. Both act from the same principle to one and the same end. +Each by its own constitution co-operates with, aids, and completes the +other. It is true the church is not formally established as the civil +law of the land, nor is it necessary that she should be; because there +is nothing in the state that conflicts with her freedom and +independence, with her dogmas or her irreformable canons. The need of +establishing the church by law, and protecting her by legal pains and +penalties, as is still done in most countries, can exist only in a +barbarous or semi-barbarous state of society, where the state is not +organized on catholic principles, or the civilization is based on false +principles, and in its development tends not to the real or Divine +order of things. When the state is constituted in harmony with that +order, it is carried onward by the force of its own internal +constitution in a catholic direction, and a church establishment, or +what is called a state religion, would be an anomaly, or a superfluity. +The true religion is in the heart of the state, as its informing +principle and real interior life. The external establishment, by legal +enactment of the church, would afford her no additional protection, add +nothing to her power and efficacy, and effect nothing for faith or +piety--neither of which can be forced, because both must, from their +nature, be free-will offerings to God. + +In the United States, false religions are legally as free as the true +religion; but all false religions being one-sided, sophistical, and +uncatholic, are opposed by the principles of the state, which tend, by +their silent but effective workings, to eliminate them. The American +state recognizes only the catholic religion. It eschews all +sectarianism, and none of the sects have been able to get their +peculiarities incorporated into its constitution or its laws. The +state conforms to what each holds that is catholic, that is always and +everywhere religion; and what ever is not catholic it leaves, as +outside of its province, to live or die, according to its own inherent +vitality or want of vitality. The state conscience is catholic, not +sectarian; hence it is that the utmost freedom can be allowed to all +religions, the false as well as the true; for the state, being catholic +in its constitution, can never suffer the adherents of the false to +oppress the consciences of the adherents of the true. The church being +free, and the state harmonizing with her, catholicity has, in the +freedom of both, all the protection it needs, all the security it can +ask, and all the support it can, in the nature of the case receive from +external institutions, or from social and political organizations. + +This freedom may not be universally wise or prudent, for all nations +may not be prepared for it: all may not have attained their majority. +The church, as well as the state, must deal with men and nations as +they are, not as they are not. To deal with a child as with an adult, +or with a barbarous nation as with a civilized nation, would be only +acting a lie. The church cannot treat men as free men where they are +not free men, nor appeal to reason in those in whom reason is +undeveloped. She must adapt her discipline to the age, condition, and +culture of individuals, and to the greater or less progress of nations +in civilization. She herself remains always the same in her +constitution, her authority, and her faith; but varies her discipline +with the variations of time and place. Many of her canons, very proper +and necessary in one age, cease to be so in another, and many which are +needed in the Old World would be out of place in the New World. Under +the American system, she can deal with the people as free men, and +trust them as freemen, because free men they are. The freeman asks, +why? and the reason why must be given him, or his obedience fails to be +secured. The simple reason that the church commands will rarely +satisfy him; he would know why she commands this or that. The +full-grown free man revolts at blind obedience, and he regards all +obedience as in some measure blind for which he sees only an extrinsic +command. Blind obedience even to the authority of the church cannot be +expected of the people reared under the American system, not because +they are filled with the spirit of disobedience, but because they +insist that obedience shall be rationabile obsequium, an act of the +understanding, not of the will or the affections alone. They are +trained to demand a reason for the command given them, to distinguish +between the law and the person of the magistrate. They can obey God, +but not man, and they must see that the command given has its reason in +the Divine order, or the intrinsic catholic reason of things, or they +will not yield it a full, entire, and hearty obedience. The reason +that suffices for the child does not suffice for the adult, and the +reason that suffices for barbarians does not suffice for civilized men, +or that suffices for nations in the infancy of their civilization does +not suffice for them in its maturity. The appeal to external authority +was much less frequent under the Roman Empire than in the barbarous +ages that followed its downfall, when the church became mixed up with +the state. + +This trait of the American character is not uncatholic. An +intelligent, free, willing obedience, yielded from personal conviction, +after seeing its reasonableness, its justice, its logic in the Divine +order--the obedience of a free man, not of a slave--is far more +consonant to the spirit of the church, and far more acceptable to God, +than simple, blind obedience; and a people capable of yielding it stand +far higher in the scale of civilization than the people that must be +governed as children or barbarians. It is possible that the people of +the Old World are not prepared for the regimen of freedom in religion +any more than they are prepared for freedom in politics; for they have +been trained only to obey external authority, and are not accustomed to +look on religion as having its reason in the real order, or in the +reason of things. They understand no reason for obedience beyond the +external command, and do not believe it possible to give or to +understand the reason why the command itself is given. They regard the +authority of the church as a thing apart, and see no way by which faith +and reason can be harmonized. They look upon them as antagonistic +forces rather than as integral elements of one and the same whole. +Concede them the regimen of freedom, and their religion has no support +but in their good-will, their affections, their associations, their +habits, and their prejudices. It has no root in their rational +convictions, and when they begin to reason they begin to doubt. This +is not the state of things that is desirable, but it cannot be remedied +under the political regime established elsewhere than in the United +States. In every state in the world, except the American, the civil +constitution is sophistical, and violates, more or less, the logic of +things; and, therefore, in no one of them can the people receive a +thoroughly dialectic training, or an education in strict conformity to +the real order. Hence, in them all, the church is more or less +obstructed in her operations, and prevented from carrying out in its +fulness her own Divine Idea. She does the best she can in the +circumstances and with the materials with which she is supplied, and +exerts herself continually to bring individuals and nations into +harmony with her Divine law: but still her life in the midst of the +nations is a struggle, a warfare. + +The United States being dialectically constituted, and founded on real +catholic, not sectarian or sophistical principles, presents none of +these obstacles, and must, in their progressive development or +realization of their political idea, put an end to this warfare, in so +far as a warfare between church and state, and leave the church in her +normal position in society, in which she can, without let or hindrance, +exert her free spirit, and teach and govern men by the Divine law as +free men. She may encounter unbelief, misbelief, ignorance, and +indifference in few, or in many; but these, deriving no support from +the state, which tends constantly to eliminate them, must gradually +give way before her invincible logic, her divine charity, the truth and +reality of things, and the intelligence, activity, and zeal of her +ministers. The American people are, on the surface, sectarians or +indifferentists; but they are, in reality, less uncatholic than the +people of any other country because they are, in their intellectual and +moral development, nearer to the real order, or, in the higher and +broader sense of the word more truly civilized. The multitude of sects +that obtain may excite religious compassion for those who are carried +away by them, for men can be saved or attain to their eternal destiny +only by truth, or conformity to Him who said, "I am the way, the truth, +and the life;" but in relation to the national destiny they need excite +no alarm, no uneasiness, for underlying them all is more or less of +catholic truth, and the vital forces of the national life repel them, +in so far as they are sectarian and not catholic, as substances that +cannot be assimilated to the national life. The American state being +catholic in its organic principles, as is all real religion, and the +church being free, whatever is anticatholic, or uncatholic, is without +any support in either, and having none, either in reality or in itself, +it must necessarily fall and gradually disappear. + +The sects themselves have a half unavowed conviction that they cannot +subsist forever as sects, if unsupported by the civil authority. They +are free, but do not feel safe in the United States. They know the +real church is catholic, and that they themselves are none of them +catholic. The most daring among them even pretends to be no more than +a "branch" of the catholic church. They know that only the catholic +church can withstand the pressure of events and survive the shocks of +time, and hence everywhere their movements to get rid of their +sectarianism and to gain a catholic character. They hold conventions +of delegates from the whole sectarian world, form "unions," +"alliances," and "associations;" but, unhappily for their success, the +catholic church does not originate in convention, but is founded by the +Word made flesh, and sustained by the indwelling Holy Ghost. The most +they can do, even with the best dispositions in the world, is to create +a confederation, and confederated sects are something very different +from a church inherently one and catholic. It is no more the catholic +church than the late Southern Confederacy was the American state. The +sectarian combinations may do some harm, may injure many souls, and +retard, for a time, the progress of civilization; but in a state +organized in accordance with catholic principles, and left to +themselves, they are powerless against the national destiny, and must +soon wither and die as branches severed from the vine. + +Such being the case, no sensible Catholic can imagine that the church +needs any physical force against the sects, except to repel actual +violence, and protect her in that freedom of speech and possession +which is the right of all before the state. What are called religious +establishments are needed only where either the state is barbarous or +the religion is sectarian. Where the state, in its intrinsic +constitution, is in accordance with catholic principles, as in the +United States, the church has all she needs or can receive. The state +can add nothing more to her power or her security in her moral and +spiritual warfare with sectarianism, and any attempt to give her more +would only weaken her as against the sects, place her in a false light, +partially justify their hostility to her, render effective their +declamations against her, mix her up unnecessarily with political +changes, interests, and passions, and distract the attention of her +ministers from their proper work as churchmen, and impose on them the +duties of politicians and statesmen. Where there is nothing in the +state hostile to the church, where she is free to act according to her +own constitution and laws, and exercise her own discipline on her own +spiritual subjects, civil enactments in her favor or against the sects +may embarrass or impede her operations, but cannot aid her, for she can +advance no farther than she wins the heart and convinces the +understanding. A spiritual work can, in the nature of things, be +effected only by spiritual means. The church wants freedom in relation +to the state--nothing more; for all her power comes immediately from +God, without any intervention or mediation of the state. + +The United States, constituted in accordance with the real order of +things, and founded on principles which have their origin and ground in +the principles on which the church herself is founded, can never +establish any one of the sects as the religion of the state, for that +would violate their political constitution, and array all the other +sects, as well as the church herself, against the government. They +cannot be called upon to establish the church by law, because she is +already in their constitution as far as the state has in itself any +relation with religion, and because to establish her in any other sense +would be to make her one of the civil institutions of the land, and to +bring her under the control of the state, which were equally against +her interest and her nature. + +The religious mission of the United States is not then to establish the +church by external law, or to protect her by legal disabilities, pains, +and penalties against the sects, however uncatholic they may be; but to +maintain catholic freedom, neither absorbing the state in the church +nor the church in the state, but leaving each to move freely, according +to its own nature, in the sphere assigned it in the eternal order of +things. Their mission separates church and state as external governing +bodies, but unites them in the interior principles from which each +derives its vitality and force. Their union is in the intrinsic unity +of principle, and in the fact that, though moving in different spheres, +each obeys one and the same Divine law. With this the Catholic, who +knows what Catholicity means, is of course satisfied, for it gives the +church all the advantage over the sects of the real over the unreal; +and with this the sects have no right to be dissatisfied, for it +subjects them to no disadvantage not inherent in sectarianism itself in +presence of Catholicity, and without any support from the civil +authority. + +The effect of this mission of our country fully realized, would be to +harmonize church and state, religion and politics, not by absorbing +either in the other, or by obliterating the natural distinction between +them, but by conforming both to the real or Divine order, which is +supreme and immutable. It places the two powers in their normal +relation, which has hitherto never been done, because hitherto there +never has been a state normally constituted. The nearest approach made +to the realization of the proper relations of church and state, prior +to the birth of the American Republic, was in the Roman Empire under +the Christian emperors; but the state had been perverted by paganism, +and the emperors, inheriting the old pontifical power, could never be +made to understand their own incompetency in spirituals, and persisted +to the last in treating the church as a civil institution under their +supervision and control, as does the Emperor of the French in France, +even yet. In the Middle Ages the state was so barbarously constituted +that the church was obliged to supervise its administration, to mix +herself up with the civil government, in order to infuse some +intelligence into civil matters, and to preserve her own rightful +freedom and independence. When the states broke away from feudalism, +they revived the Roman constitution, and claimed the authority in +ecclesiastical matters that had been exercised by the Roman Caesars, +and the states that adopted a sectarian religion gave the sect adopted +a civil establishment, and subjected it to the civil government, to +which the sect not unwillingly consented, on condition that the civil +authority excluded the church and all other sects, and made it the +exclusive religion of the state, as in England, Scotland, Sweden, +Denmark, Russia, and the states of Northern Germany. Even yet the +normal relations of church and state are nowhere practicable in the Old +World; for everywhere either the state is more or less barbaric in its +constitution, or the religion is sectarian, and the church as well as +civilization is obliged, to struggle with antagonistic forces, for +self-preservation. + +There are formidable parties all over Europe at work to introduce what +they take to be the American system; but constitutions are generated, +not made--providential, not conventional. Statesmen can only develop +what is in the existing constitutions of their respective countries, +and no European constitution contains all the elements of the American. +European Liberals mistake the American system, and, were they to +succeed in their efforts, would not introduce it, but something more +hostile to it than the governments and institutions they are warring +against. They start from narrow, sectarian, or infidel premises, and +seek not freedom of worship, but freedom of denial. They suppress the +freedom of religion as the means of securing what they call religious +liberty--imagine that they secure freedom of thought by extinguishing +the light without which no thought is possible, and advance +civilization by undermining its foundation. The condemnation of their +views and movements by the Holy Father in the Encyclical, which has +excited so much hostility, may seem to superficial and unthinking +Americans even, as a condemnation of our American system--indeed, as +the condemnation of modern science, intelligence, and civilization +itself; but whoever looks below the surface, has some insight into the +course of events, understands the propositions and movements censured, +and the sense in which they are censured, is well assured that the Holy +Father has simply exercised his pastoral and teaching authority to save +religion, society, science, and civilization from utter corruption or +destruction. The opinions, tendencies, and movements, directly or by +implication censured, are the effect of narrow and superficial +thinking, of partial and one-sided views, and are sectarian, +sophistical, and hostile to all real progress, and tend, as far as they +go, to throw society back into the barbarism from which, after +centuries of toil and struggle, it is just beginning to emerge. The +Holy Father has condemned nothing that real philosophy, real science +does not also condemn; nothing, in fact, that is not at war with the +American system itself. For the mass of the people, it were desirable +that fuller explanations should be given of the sense in which the +various propositions censured are condemned, for some of them are not, +in every sense, false; but the explanations needed were expected by the +Holy Father to be given by the bishops and prelates, to whom, not to +the people, save through them, the Encyclical was addressed. Little is +to be hoped, and much is to be feared, for liberty, science, and +civilization from European Liberalism, which has no real affinity with +American territorial democracy and real civil and religious freedom. +But God and reality are present in the Old World as, well as in the +New, and it will never do to restrict their power or freedom. + +Whether the American people will prove faithful to their mission, and +realize their destiny, or not, is known only to Him from whom nothing +is hidden. Providence is free, and leaves always a space for human +free-will. The American people can fail, and will fail if they neglect +the appointed means and conditions of success; but there is nothing in +their present state or in their past history to render their failure +probable. They have in their internal constitution what Rome wanted, +and they are in no danger of being crushed by exterior barbarism. +Their success as feeble colonies of Great Britain in achieving their +national independence, and especially in maintaining, unaided, and +against the real hostility of Great Britain and France, their national +unity and integrity against a rebellion which, probably, no other +people could have survived, gives reasonable assurance for their +future. The leaders of the rebellion, than whom none better knew or +more nicely calculated the strength and resources of the Union, counted +with certainty on success, and the ablest, the most experienced, and +best informed statesmen of the Old World felt sure that the Republic +was gone, and spoke of it as the late United States. Not a few, even +in the loyal States, who had no sympathy with the rebellion, believed +it idle to think of suppressing it by force, and advised peace on the +best terms that could be obtained. But Ilium fuit was chanted too +soon; the American people were equal to the emergency, and falsified +the calculations and predictions of their enemies, and surpassed the +expectations of their friends. + +The attitude of the real American people during the fearful struggle +affords additional confidence in their destiny. With larger armies on +foot than Napoleon ever commanded, with their line of battle stretching +from ocean to ocean, across the whole breadth of the continent, they +never, during four long years of alternate victories and defeats--and +both unprecedentedly bloody--for a moment lost their equanimity, or +appeared less calm, collected, tranquil, than in the ordinary times of +peace. They not for a moment interrupted their ordinary routine of +business or pleasure, or seemed conscious of being engaged in any +serious struggle which required an effort. There was no hurry, no +bustle, no excitement, no fear, no misgiving. They seemed to regard +the war as a mere bagatelle, not worth being in earnest about. The +on-looker was almost angry with their apparent indifference, apparent +insensibility, and doubted if they moved at all, Yet move they did: +guided by an unerring instinct, they moved quietly on with an elemental +force, in spite of a timid and hesitating administration, in spite of +inexperienced, over-cautious, incompetent, or blundering military +commanders, whom they gently brushed aside, and desisted not till their +object was gained, and they saw the flag of the Union floating anew in +the breeze from the capitol of every State that dared secede. No man +could contemplate them without feeling that there was in them a latent +power vastly superior to any which they judged it necessary to put +forth. Their success proves to all that what, prior to the war, was +treated as American arrogance or self-conceit, was only the outspoken +confidence in their destiny as a Providential people, conscious that to +them is reserved the hegemony of the world. + +Count de Maistre predicted early in the century the failure of the +United States, because they have no proper name; but his prediction +assumed what is not the fact. The United States have a proper name by +which all the world knows and calls them. The proper name of the +country is America: that of the people is Americans. Speak of +Americans simply, and nobody understands you to mean the people of +Canada, Mexico, Brazil, Peru, Chile, Paraguay, but everybody +understands you to mean the people of the United States. The fact is +significant, and foretells for the people of the United States a +continental destiny, as is also foreshadowed in the so-called "Monroe +doctrine," which France, during our domestic troubles, was permitted, +on condition of not intervening in our civil war in favor of the +rebellion, to violate. + +There was no statesmanship in proclaiming the "Monroe doctrine," for +the statesman keeps always, as far as possible, his government free to +act according to the exigencies of the case when it comes up, +unembarrassed by previous declarations of principles. Yet the doctrine +only expresses the destiny of the American people, and which nothing +but their own fault can prevent them from realizing in its own good +time. Napoleon will not succeed in his Mexican policy, and Mexico will +add some fifteen or twenty new States to the American Union as soon as +it is clearly for the interests of all parties that it should be done, +and it can be done by mutual consent, without war or violence. The +Union will fight to maintain the integrity of her domain and the +supremacy of her laws within it, but she can never, consistently with +her principles or her interests, enter upon a career of war and +conquest. Her system is violated, endangered, not extended, by +subjugating her neighbors, for subjugation and liberty go not together. +Annexation, when it takes place, must be on terms of perfect equality +and by the free act of the state annexed. The Union can admit of no +inequality of rights and franchises between the States of which it is +composed. The Canadian Provinces and the Mexican and Central American +States, when annexed, must be as free as the original States of the +Union, sharing alike in the power and the protection of the +Republic--alike in its authority, its freedom, its grandeur, and its +glory, as one free, independent, self-governing people. They may gain +much, but must lose nothing by annexation. + +The Emperor Napoleon and his very respectable protege, Maximilian, an +able man and a liberal-minded prince, can change nothing in the destiny +of the United States, or of Mexico herself; no imperial government can +be permanent beside the American Republic, no longer liable, since the +abolition of slavery, to be distracted by sectional dissensions. The +States that seceded will soon, in some way, be restored to their rights +and franchises in the Union, forming not the least patriotic portion of +the American people; the negro question will be settled, or settle +itself, as is most likely, by the melting away of the negro population +before the influx of white laborers; all traces of the late contest in +a very few years will be wiped out, the national debt paid, or greatly +reduced, and the prosperity and strength of the Republic be greater +than ever. Its moral force will sweep away every imperial throne on +the continent, without any effort or action on the part of the +government. There can be no stable government in Mexico till every +trace of the ecclesiastical policy established by the Council of the +Indies is obliterated, and the church placed there on the same footing +as in the United States; and that can hardly be done without +annexation. Maximilian cannot divest the church of her temporal +possessions and place Protestants and Catholics on the same footing, +without offending the present church party and deeply injuring +religion, and that too without winning the confidence of the republican +party. In all Spanish and Portuguese America the relations between the +church and state are abnormal, and exceedingly hurtful to both. +Religion is in a wretched condition, and politics in a worse condition +still. There is no effectual remedy for either but in religious +freedom, now impracticable, and to be rendered practicable by no +European intervention, for that subjects religion to the state, the +very source of the evils that now exist, instead of emancipating it +from the state, and leaving it to act according to its own constitution +and laws, as under the American system. + +But the American people need not trouble themselves about their +exterior expansion. That will come of itself as fast as desirable. +Let them devote their attention to their internal destiny, to the +realization of their mission within, and they will gradually see the +Whole continent coming under their system, forming one grand nation, a +really catholic nation, great, glorious, and free. + + + + + + + + + +End of the Project Gutenberg EBook of The American Republic: Its +Constitution, Tendencies, and Destiny, by A. O. 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