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diff --git a/old/amrep11.txt b/old/amrep11.txt new file mode 100644 index 0000000..e34dbe5 --- /dev/null +++ b/old/amrep11.txt @@ -0,0 +1,10081 @@ +Project Gutenberg Etext The American Republic, by O. A. Brownson + + +Copyright laws are changing all over the world, be sure to check +the copyright laws for your country before posting these files!! + +Please take a look at the important information in this header. +We encourage you to keep this file on your own disk, keeping an +electronic path open for the next readers. Do not remove this. + + +**Welcome To The World of Free Plain Vanilla Electronic Texts** + +**Etexts Readable By Both Humans and By Computers, Since 1971** + +*These Etexts Prepared By Hundreds of Volunteers and Donations* + +Information on contacting Project Gutenberg to get Etexts, and +further information is included below. We need your donations. + + +Title: The American Republic + +Author: by O. A. 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If you + don't derive profits, no royalty is due. Royalties are + payable to "Project Gutenberg Association/Carnegie-Mellon + University" within the 60 days following each + date you prepare (or were legally required to prepare) + your annual (or equivalent periodic) tax return. + +WHAT IF YOU *WANT* TO SEND MONEY EVEN IF YOU DON'T HAVE TO? +The Project gratefully accepts contributions in money, time, +scanning machines, OCR software, public domain etexts, royalty +free copyright licenses, and every other sort of contribution +you can think of. Money should be paid to "Project Gutenberg +Association / Carnegie-Mellon University". + +*END*THE SMALL PRINT! FOR PUBLIC DOMAIN ETEXTS*Ver.04.29.93*END* + + + + + + + + +THE + +AMERICAN REPUBLIC: + +CONSTITUTION, TENDENCIES, AND DESTINY. + +BY +O. A. BROWNSON, LL. D. + + + + + +NEW YORK: +P. O'SHEA, 104 BLEECKER STREET. +1866. + +Entered according to Act of Congress, In the year 1865, +By P. O'SHEA, +In the Clerk's office of the District Court of the United States +for the Southern District of New York. + + +TO THE +HON. GEORGE BANCROFT, +THE ERUDITE, PHILOSOPHICAL, AND ELOQUENT +Historian of the United States, + +THIS FEEBLE ATTEMPT TO SET FORTH THE PRINCIPLES OF GOVERN- +MENT, AND TO EXPLAIN AND DEFEND THE CONSTITUTION OF +THE AMERICAN REPUBLIC, IS RESPECTFULLY DEDICATED, +IN MEMORY OF OLD FRIENDSHIP, AND AS A +SLIGHT HOMAGE TO GENIUS, ABILITY, +PATRIOTISM, PRIVATE WORTH, +AND PUBLIC SERVICE, +BY THE AUTHOR. + + + +CONTENTS. + + PAGE + +CHAPTER I. + +INTRODUCTION 1 + + +CHAPTER II. + +GOVERNMENT 15 + + +CHAPTER III. + +ORIGIN OF GOVERNMENT 26 + + +CHAPTER IV. + +ORIGIN OF GOVERMENT-Continued 43 + + +CHAPTER V. + +ORIGIN OF GOVERNMENT-Continued 71 + + +CHAPTER VI. + +ORIGIN OF GOVERNMENT-Concluded 106 + + +CHAPTER VII. + +CONSTITUTION OF GOVERNMENT 136 + + +CHAPTER VIII. + +CONSTITUTION OF GOVERNMENT-Concluded 166 + + +CHAPTER IX. + +THE UNITED STATES 192 + + +CHAPTER X. + +CONSTITUTION OF THE UNITED STATES 218 + + +CHAPTER XI. + +THE CONSTITUTION-Continued 244 + + +CHAPTER XII. + +SECESSION 277 + + +CHAPTER XIII. + +RECONSTRUCTION 309 + + +CHAPTER XIV. + +POLITICAL TENDENCIES 348 + + +CHAPTER XV. + +DESTINY-POLITICAL AND RELIGIOUS 392 + + + + + +PREFACE. + + +In the volume which, with much diffidence, is here offered to the +public, I have given, as far as I have considered it worth giving, +my whole thought in a connected form on the nature, necessity, +extent, authority, origin, ground, and constitution of government, +and the unity, nationality, constitution, tendencies, and destiny +of the American Republic. Many of the points treated have been +from time to time discussed or touched upon, and many of the views +have been presented, in my previous writings; but this work is +newly and independently written from beginning to end, and is as +complete on the topics treated as I have been able to make it. + +I have taken nothing bodily from my previous essays, but I have +used their thoughts as far as I have judged them sound and they +came within the scope of my present work. I have not felt myself +bound to adhere to my own past thoughts or expressions any farther +than they coincide with my present convictions, and I have written +as freely and as independently as if I had never written or +published any thing before. I have never been the slave of my +own past, and truth has always been dearer to me than my own +opinions. This work is not only my latest, but will be my last +on politics or government, and must be taken as the authentic, +and the only authentic statement of my political views and +convictions, and whatever in any of my previous writings conflicts +with the principles defended in its pages, must be regarded as +retracted, and rejected. + +The work now produced is based on scientific principles; but it is +an essay rather than a scientific treatise, and even good-natured +critics will, no doubt, pronounce it an article or a series of +articles designed for a review, rather than a book. It is hard to +overcome the habits of a lifetime. I have taken some pains to +exchange the reviewer for the author, but am fully conscious that +I have not succeeded. My work can lay claim to very little +artistic merit. It is full of repetitions; the same thought is +frequently recurring,--the result, to some extent, no doubt, of +carelessness and the want of artistic skill; but to a greater +extent, I fear, of "malice aforethought." In composing my work I +have followed, rather than directed, the course of my thought, +and, having very little confidence in the memory or industry of +readers, I have preferred, when the completeness of the argument +required it, to repeat myself to encumbering my pages with +perpetual references to what has gone before. + +That I attach some value to this work is evident from my consenting +to its publication; but how much or how little of it is really +mine, I am quite unable to say. I have, from my youth up, been +reading, observing, thinking, reflecting, talking, I had almost +said writing, at least by fits and starts, on political subjects, +especially in their connection with philosophy, theology, history, +and social progress, and have assimilated to my own mind what it +would assimilate, without keeping any notes of the sources whence +the materials assimilated were derived. I have written freely +from my own mind as I find it now formed; but how it has been so +formed, or whence I have borrowed, my readers know as well as I. +All that is valuable in the thoughts set forth, it is safe to assume +has been appropriated from others. Where I have been distinctly +conscious of borrowing what has not become common property, I have +given credit, or, at least, mentioned the author's name, with three +important exceptions which I wish to note more formally. + +I am principally indebted for the view of the American nationality +and the Federal Constitution I present, to hints and suggestions +furnished by the remarkable work of John C. Hurd, Esq., on The Law of +Freedom and Bondage in the United States, a work of rare learning +and profound philosophic views. I could not have written my work +without the aid derived from its suggestions, any more than I +could without Plato, Aristotle, St. Augustine, St. Thomas, +Suarez, Pierre Leroux, and the Abbate Gioberti. To these two +last-named authors, one a humanitarian sophist, the other a +Catholic priest, and certainly one of the profoundest +philosophical writers of this century, I am much indebted, though +I have followed the political system of neither. I have taken +from Leroux the germs of the doctrine I set forth on the solidarity +of the race, and from Gioberti the doctrine I defend in relation +to the creative act, which is, after all, simply that of the +Credo and the first verse of Genesis. + +In treating the several questions which the preparation of this +volume has brought up, in their connection, and in the light of +first principles, I have changed or modified, on more than one +important point, the views I had expressed in my previous +writings, especially on the distinction between civilized and +barbaric nations, the real basis of civilization itself, and the +value to the world of the Graeco-Roman civilization. I have +ranked feudalism under the head of barbarism, rejected every +species of political aristocracy, and represented the English +constitution as essentially antagonistic to the American, not as +its type. I have accepted universal suffrage in principle, and +defended American democracy, which I define to be territorial +democracy, and carefully distinguish from pure individualism on +the one hand, and from pure socialism or humanitarianism on the +other. + +I reject the doctrine of State sovereignty, which I held and +defended from 1828 to 1861, but still maintain that the +sovereignty of the American Republic vests in the States, though +in the States collectively, or united, not severally, and thus +escape alike consolidation and disintegration. I find, with Mr. +Madison, our most philosophic statesman, the originality of the +American system in the division of powers between a General +government having sole charge of the foreign and general, and +particular or State governments having, within their respective +territories, sole charge of the particular relations and +interests of the American people; but I do not accept his +concession that this division is of conventional origin, and +maintain that it enters into the original Providential +constitution of the American state, as I have done in my Review +for October, 1863, and January and October, 1864. + +I maintain, after Mr. Senator Sumner, one of the most +philosophic and accomplished living American statesmen, that +"State secession is State suicide," but modify the opinion I too +hastily expressed that the political death of a State dissolves +civil society within its territory and abrogates all rights held +under it, and accept the doctrine that the laws in force at the +time of secession remain in force till superseded or abrogated by +competent authority, and also that, till the State is revived and +restored as a State in the Union, the only authority, under the +American system, competent to supersede or abrogate them is the +United States, not Congress, far less the Executive. The error +of the Government is not in recognizing the territorial laws as +surviving secession but in counting a State that has seceded as +still a State in the Union, with the right to be counted as one +of the United States in amending the Constitution. Such State +goes out of the Union, but comes under it. + +I have endeavored throughout to refer my particular political +views; to their general principles, and to show that the general +principles asserted have their origin and ground in the great, +universal, and unchanging principles of the universe itself. +Hence, I have labored to show the scientific relations of +political to theological principles, the real principles of all +science, as of all reality. An atheist, I have said, may be a +politician; but if there were no God, there could be no politics. +This may offend the sciolists of the age, but I must follow +science where it leads, and cannot be arrested by those who +mistake their darkness for light. + +I write throughout as a Christian, because I am a Christian; as +a Catholic, because all Christian principles, nay, all real +principles are catholic, and there is nothing sectarian either +in nature or revelation. I am a Catholic by God's grace and +great goodness, and must write as I am. I could not write +otherwise if I would, and would not if I could. I have not +obtruded my religion, and have referred to it only where my +argument demanded it; but I have had neither the weakness nor +the bad taste to seek to conceal or disguise it. I could never +have written my book without the knowledge I have, as a Catholic, +of Catholic theology, and my acquaintance, slight as it is, with +the great fathers and doctors of the church, the great masters of +all that is solid or permanent in modern thought, either with +Catholics or non-Catholics. + +Moreover, though I write for all Americans, without distinction +of sect or party, I have had more especially in view the people +of my own religious communion. It is no discredit to a man in +the United States at the present day to be a firm, sincere, and +devout Catholic. The old sectarian prejudice may remain with a +few, "whose eyes," as Emerson says, "are in their hind-head, not +in their fore-head;" but the American people are not at heart +sectarian, and the nothingarianism so prevalent among them only +marks their state of transition from sectarian opinions to +positive Catholic faith. At any rate, it can no longer be +denied that Catholics are an integral, living, and growing +element in the American population, quite too numerous, too +wealthy, and too influential to be ignored. They have played too +conspicuous a part in the late troubles of the country, and +poured out too freely and too much of their richest and noblest +blood in defence of the unity of the nation and the integrity of +its domain, for that. Catholics henceforth must be treated as +standing, in all respects, on a footing of equality with any +other class of American citizens, and their views of political +science, or of any other science, be counted of equal importance, +and listened to with equal attention. + +I have no fears that my book will be neglected because avowedly +by a Catholic author, and from a Catholic publishing house. They +who are not Catholics will read it, and it will enter into the +current of American literature, if it is one they must read in +order to be up with the living and growing thought of the age. +If it is not a book of that sort, it is not worth reading by any +one. + +Furthermore, I am ambitious, even in my old age, and I wish to +exert an influence on the future of my country, for which I have +made, or, rather, my family have made, some sacrifices, and which +I tenderly love. Now, I believe that he who can exert the most +influence on our Catholic population, especially in giving tone +and direction to our Catholic youth, will exert the most +influence in forming the character and shaping the future destiny +of the American Republic. Ambition and patriotism alike, as well +as my own Catholic faith and sympathies, induce me to address +myself primarily to Catholics. I quarrel with none of the sects; +I honor virtue wherever I see it, and accept truth wherever I +find it; but, in my belief, no sect is destined to a long life, +or a permanent possession. I engage in no controversy with any +one not of my religion, for, if the positive, affirmative truth +is brought out and placed in a clear light before the public, +whatever is sectarian in any of the sects will disappear as the +morning mists before the rising sun. + +I expect the most intelligent and satisfactory appreciation of +my book from the thinking and educated classes among Catholics; +but I speak to my countrymen at large. I could not personally +serve my country in the field: my habits as well as my +infirmities prevented, to say nothing of my age; but I have +endeavored in this humble work to add my contribution, small +though it may be, to political science, and to discharge, as far +as I am able, my debt of loyalty and patriotism. I would the +book were more of a book, more worthy of my countrymen, and a +more weighty proof of the love I beat them, and with which I have +written it. All I can say is, that it is an honest book, a +sincere book, and contains my best thoughts on the subjects +treated. If well received, I shall be grateful; if neglected, I +shall endeavor to practise resignation, as I have so often done. + + +O. A. BROWNSON. + +ELIZABETH, N. J., September 16, 1865. + + + + + +CHAPTER I + +INTRODUCTION + + +The ancients summed up the whole of human wisdom in the maxim, +Know Thyself, and certainly there is for an individual no more +important as there is no more difficult knowledge, than knowledge +of himself, whence he comes, whither he goes, what he is, what he +is for, what he can do, what he ought to do, and what are his +means of doing it. + +Nations are only individuals on a larger scale. They have a +life, an individuality, a reason, a conscience, and instincts of +their own, and have the same general laws of development and +growth, and, perhaps, of decay, as the individual man. Equally +important, and no less difficult than for the individual, is it +for a nation to know itself, understand its own existence, its +own powers and faculties, rights and duties, constitution, +instincts, tendencies, and destiny. A nation has a spiritual as +well as a material, a moral as well as a physical existence, and +is subjected to internal as well as external conditions of health +and virtue, greatness and grandeur, which it must in some measure +understand and observe, or become weak and infirm, stunted in its +growth, and end in premature decay and death. + +Among nations, no one has more need of full knowledge of itself +than the United States, and no one has hitherto had less. It has +hardly had a distinct consciousness of its own national existence, +and has lived the irreflective life of the child, with no severe +trial, till the recent rebellion, to throw it back on itself and +compel it to reflect on its own constitution, its own separate +existence, individuality, tendencies, and end. The defection of +the slaveholding States, and the fearful struggle that has +followed for national unity and integrity, have brought it at +once to a distinct recognition of itself, and forced it to pass +from thoughtless, careless, heedless, reckless adolescence to +grave and reflecting manhood. The nation has been suddenly +compelled to study itself, and henceforth must act from +reflection, understanding, science, statesmanship, not from +instinct, impulse, passion, or caprice, knowing well what it does, +and wherefore it does it. The change which four years of civil +war have wrought in the nation is great, and is sure to give it +the seriousness, the gravity, the dignity, the manliness it has +heretofore lacked. + +Though the nation has been brought to a consciousness of its own +existence, it has not, even yet, attained to a full and clear +understanding of its own national constitution. Its vision is +still obscured by the floating mists of its earlier morning, and +its judgment rendered indistinct and indecisive by the wild +theories and fancies of its childhood. The national mind has +been quickened, the national heart has been opened, the national +disposition prepared, but there remains the important work of +dissipating the mists that still linger, of brushing away these +wild theories and fancies, and of enabling it to form a clear +and intelligent judgment of itself, and a true and just +appreciation of its own constitution tendencies,--and destiny; +or, in other words, of enabling the nation to understand its own +idea, and the means of its actualization in space and time. + +Every living nation has an idea given it by Providence to +realize, and whose realization is its special work, mission, or +destiny. Every nation is, in some sense, a chosen people of God. +The Jews were the chosen people of God, through whom the +primitive traditions were to be preserved in their purity and +integrity, and the Messiah was to come. The Greeks were the +chosen people of God, for the development and realization of the +beautiful or the divine splendor in art, and of the true in +science and philosophy; and the Romans, for the development of +the state, law, and jurisprudence. The great despotic nations of +Asia were never properly nations; or if they were nations with a +mission, they proved false to it--, and count for nothing in the +progressive development of the human race. History has not +recorded their mission, and as far as they are known they have +contributed only to the abnormal development or corruption of +religion and civilization. Despotism is barbaric and abnormal. + +The United States, or the American Republic, has a mission, and +is chosen of God for the realization of a great idea. It has +been chosen not only to continue the work assigned to Greece and +Rome, but to accomplish a greater work than was assigned to +either. In art, it will prove false to its mission if it do not +rival Greece; and in science and philosophy, if it do not surpass +it. In the state, in law, in jurisprudence, it must continue and +surpass Rome. Its idea is liberty, indeed, but liberty with law, +and law with liberty. Yet its mission is not so much the +realization of liberty as the realization of the true idea of the +state, which secures at once the authority of the public and the +freedom of the individual--the sovereignty of the people without +social despotism, and individual freedom without anarchy. In +other words, its mission is to bring out in its life the +dialectic union of authority and liberty, of the natural rights +of man and those of society. The Greek and Roman republics +asserted the state to the detriment of individual freedom; modern +republics either do the same, or assert individual freedom to the +detriment of the state. The American republic has been +instituted by Providence to realize the freedom of each with +advantage to the other. + +The real mission of the United States is to introduce and +establish a political constitution, which, while it retains all +the advantages of the constitutions of states thus far known, is +unlike any of them, and secures advantages which none of them did +or could possess. The American constitution has no prototype in +any prior constitution. The American form of government can be +classed throughout with none of the forms of government described +by Aristotle, or even by later authorities. Aristotle knew only +four forms of government: Monarchy, Aristocracy, Democracy, and +Mixed Governments. The American form is none of these, nor any +combination of them. It is original, a new contribution to +political science, and seeks to attain the end of all wise and +just government by means unknown or forbidden to the ancients, +and which have been but imperfectly comprehended even by American +political writers themselves. The originality of the American +constitution has been overlooked by the great majority even of +our own statesmen, who seek to explain it by analogies borrowed +from the constitutions of other states rather than by a profound +study of its own principles. They have taken too low a view of +it, and have rarely, if ever, appreciated its distinctive and +peculiar merits. + +As the United States have vindicated their national unity and +integrity, and are preparing to take a new start in history, +nothing is more important than that they should take that new +start with a clear and definite view of their national +constitution, and with a distinct understanding of their +political mission in the future of the world. The citizen who +can help his countrymen to do this will render them an important +service and deserve well of his country, though he may have been +unable to serve in her armies and defend her on the battle-field. +The work now to be done by American statesmen is even more +difficult and more delicate than that which has been accomplished +by our brave armies. As yet the people are hardly better +prepared for the political work to be done than they were at the +outbreak of the civil war for the military work they have so +nobly achieved. But, with time, patience, and good-will, the +difficulties may be overcome, the errors of the past corrected, +and the Government placed on the right track for the future. + +It will hardly be questioned that either the constitution of the +United States is very defective or it has been very grossly +misinterpreted by all parties. If the slave States had not held +that the States are severally sovereign, and the Constitution of +the United States a simple agreement or compact, they would never +have seceded; and if the Free States had not confounded the Union +with the General government, and shown a tendency to make it the +entire national government, no occasion or pretext for secession +would have been given. The great problem of our statesmen has +been from the first, How to assert union without consolidation, +and State rights without disintegration? Have they, as yet, +solved that problem? The war has silenced the State sovereignty +doctrine, indeed, but has it done so without lesion to State +rights? Has it done it without asserting the General government +as the supreme, central, or national government? Has it done it +without striking a dangerous blow at the federal element of the +constitution? In suppressing by armed force the doctrine that +the States are severally sovereign, what barrier is left against +consolidation? Has not one danger been removed only to give +place to another? + +But perhaps the constitution itself, if rightly understood, +solves the problem; and perhaps the problem itself is raised +precisely through misunderstanding of the constitution. Our +statesmen have recognized no constitution of the American people +themselves; they have confined their views to the written +constitution, as if that constituted the American people a state +or nation, instead of being, as it is, only a law ordained by the +nation already existing and constituted. Perhaps, if they had +recognized and studied the constitution which preceded that drawn +up by the Convention of 1787, and which is intrinsic, inherent in +the republic itself, they would have seen that it solves the +problem, and asserts national unity without consolidation, and +the rights of the several States without danger of disintegration. +The whole controversy, possibly, has originated in a +misunderstanding of the real constitution of the United States, +and that misunderstanding itself in the misunderstanding of the +origin and constitution of government in general. The +constitution, as will appear in the course of this essay is not +defective; and all that is necessary to guard against either +danger is to discard all our theories of the constitution, and +return and adhere to the constitution itself, as it really is and +always has been. + +There is no doubt that the question of Slavery had much to do +with the rebellion, but it was not its sole cause. The real +cause must be sought in the program that had been made, +especially in the States themselves, in forming and administering +their respective governments, as well as the General government, +in accordance with political theories borrowed from European +speculators on government, the socalled Liberals and +Revolutionists, which have and can have no legitimate application +in the United States. The tendency of American politics, for the +last thirty or forty years, has been, within the several States +themselves, in the direction of centralized democracy, as if the +American people had for their mission only the reproduction of +ancient Athens. The American system is not that of any of the +simple forms of government, nor any combination of them. The +attempt to bring it under any of the simple or mixed forms of +government recognized by political writers, is an attempt to +clothe the future in the cast-off garments of the past. The +American system, wherever practicable, is better than monarchy, +better than aristocracy, better than simple democracy, better +than any possible combination of these several forms, because it +accords more nearly with the principles of things, the real order +of the universe. + +But American statesmen have studied the constitutions of other +states more than that of their own, and have succeeded in +obscuring the American system in the minds of the people, and +giving them in its place pure and simple democracy, which is its +false development or corruption. Under the influence of this +false development, the people were fast losing sight of the +political truth that, though the people are sovereign, it is the +organic, not the inorganic people, the territorial people, not +the people as simple population, and were beginning to assert the +absolute God-given right of the majority to govern. All the +changes made in the bosom of the States themselves have consisted +in removing all obstacles to the irresponsible will of the +majority, leaving minorities and individuals at their mercy. +This tendency to a centralized democracy had more to do with +provoking secession and rebellion than the anti-slavery +sentiments of the Northern, Central, and Western States. + +The failure of secession and the triumph of the National cause, +in spite of the short-sightedness and blundering of the +Administration, have proved the vitality and strength of the +national constitution, and the greatness of the American people. +They say nothing for or against the democratic theory of our +demagogues, but every thing in favor of the American system or +constitution of government, which has found a firmer support in +American instincts than in American statesmanship. In spite of +all that had been done by theorists, radicals, and revolutionists, +no-government men, non-resistants, humanitarians, and sickly +sentimentalists to corrupt the American people in mind, heart, +and body, the native vigor of their national constitution has +enabled them to come forth triumphant from the trial. Every +American patriot has reason to be proud of his country-men, and +every American lover of freedom to be satisfied with the +institutions of his country. But there is danger that the +politicians and demagogues will ascribe the merit, not to the +real and living national constitution, but to their miserable +theories of that constitution, and labor to aggravate the several +evils and corrupt tendencies which caused the rebellion it has +cost so much to suppress. What is now wanted is, that the people, +whose instincts are right, should understand the American +constitution as it is, and so understand it as to render it +impossible for political theorists, no matter of what school or +party, to deceive them again as to its real import, or induce +them to depart from it in their political action. + +A work written with temper, without passion or sectional +prejudice, in a philosophical spirit, explaining to the American +people their own national constitution, and the mutual relations +of the General government and the State governments, cannot, at +this important crisis in our affairs, be inopportune, and, if +properly executed, can hardly fail to be of real service. Such a +work is now attempted--would it were by another and abler hand-- +which, imperfect as it is, may at least offer some useful +suggestions, give a right direction to political thought, +although it should fail to satisfy the mind of the reader. + +This much the author may say, in favor of his own work, that it +sets forth no theory of government in general, or of the United +States in particular. The author is not a monarchist, an +aristocrat, a democrat, a feudalist, nor an advocate of what are +called mixed governments like the English, at least for his own +country; but is simply an American, devoted to the real, living, +and energizing constitution of the American republic as it is, +not as some may fancy it might be, or are striving to make it. +It is, in his judgment, what it ought to be, and he has no other +ambition than to present it as it is to the understanding and +love of his countrymen. + +Perhaps simple artistic unity and propriety would require the +author to commence his essay directly with the United States; but +while the constitution of the United States is original and +peculiar, the government of the United States has necessarily +something in common with all legitimate governments, and he has +thought it best to precede his discussion of the American +republic, its constitution, tendencies, and destiny, by some +considerations on government in general. He does this because he +believes, whether rightly or not, that while the American people +have received from Providence a most truly profound and admirable +system of government, they are more or less infected with the +false theories of government which have been broached during the +last two centuries. In attempting to realize these theories, +they have already provoked or rendered practicable a rebellion +which has seriously threatened the national existence, and come +very near putting an end to the American order of civilization +itself. These theories have received already a shock in the +minds of all serious and thinking men; but the men who think are +in every nation a small minority, and it is necessary to give +these theories a public refutation, and bring back those who do +not think, as well as those who do, from the world of dreams to +the world of reality. It is hoped, therefore, that any apparent +want of artistic unity or symmetry in the essay will be pardoned +for the sake of the end the author has had in view. + + + + + + +CHAPTER II. + +GOVERNMENT. + + +Man is a dependent being, and neither does nor can suffice for +himself. He lives not in himself, but lives and moves and has +his being in God. He exists, develops, and fulfils his existence +only by communion with God, through which he participates of the +divine being and life. He communes with God through the divine +creative act and the Incarnation of the Word, through his kind, +and through the material world. Communion with God through +Creation and Incarnation is religion, distinctively taken, which +binds man to God as his first cause, and carries him onward to +God as his final cause; communion through the material world is +expressed by the word property; and communion with God through +humanity is society. Religion, society, property, are the three +terms that embrace the whole of man's life, and express the +essential means and conditions of his existence, his development, +and his perfection, or the fulfilment of his existence, the +attainment of the end for which he is created. + +Though society, or the communion of man with his Maker through +his kind, is not all that man needs in order to live, to grow, +to actualize the possibilities of his nature, and to attain to +his beatitude, since humanity is neither God nor the material +universe, it is yet a necessary and essential condition of his +life, his progress, and the completion of his existence. He is +born and lives in society, and can be born and live nowhere else. +It is one of the necessities of his nature. "God saw that it was +not good for man to be alone." Hence, wherever man is found he +is found in society, living in more or less strict intercourse +with his kind. + +But society never does and never can exist without government of +some sort. As society is a necessity of man's nature, so is +government a necessity of society. The simplest form of society +is the family--Adam and Eve. But though Adam and Eve are in many +respects equal, and have equally important though different parts +assigned them, one or the other must be head and governor, or +they cannot form the society called family. They would be simply +two individuals of different sexes, and the family would fail for +the want of unity. + +Children cannot be reared, trained, or educated without some +degree of family government, of some authority to direct, +control, restrain, or prescribe. Hence the authority of the +husband and father is recognized by the common consent of +mankind. Still more apparent is the necessity of government the +moment the family develops and grows into the tribe, and the +tribe into the nation. Hence no nation exists without +government; and we never find a savage tribe, however low or +degraded, that does not assert somewhere in the father, in the +elders, or in the tribe itself, the rude outlines or the faint +reminiscences of some sort of government, with authority to +demand obedience and to punish the refractory. Hence, as man is +nowhere found out of society, so nowhere is society found without +government. + +Government is necessary: but let it be remarked by the way, that +its necessity does not grow exclusively or chiefly out of the +fact that the human race by sin has fallen from its primitive +integrity, or original righteousness. The fall asserted by +Christian theology, though often misinterpreted, and its effects +underrated or exaggerated, is a fact too sadly confirmed by +individual experience and universal history; but it is not the +cause why government is necessary, though it may be an additional +reason for demanding it. Government would have been necessary if +man had not sinned, and it is needed for the good as well as for +the bad. The law was promulgated in the Garden, while man +retained his innocence and remained in the integrity of his +nature. It exists in heaven as well as on earth, and in heaven +in its perfection. Its office is not purely repressive, to +restrain violence, to redress wrongs, and to punish the +transgressor. It has something more to do than to restrict our +natural liberty, curb our passions, and maintain justice between +man and man. Its office is positive as well as negative. It is +needed to render effective the solidarity of the individuals of a +nation, and to render the nation an organism, not a mere +organization--to combine men in one living body, and to +strengthen all with the strength of each, and each with the +strength of all--to develop, strengthen, and sustain individual +liberty, and to utilize and direct it to the promotion of the +common weal--to be a social providence, imitating in its order +and degree the action of the divine providence itself, and, while +it provides for the common good of all, to protect each, the +lowest and meanest, with the whole force and majesty of society. +It is the minister of wrath to wrong-doers, indeed, but its nature +is beneficent, and its action defines and protects the right of +property, creates and maintains a medium in which religion can +exert her supernatural energy, promotes learning, fosters science +and art, advances civilization, and contributes as a powerful +means to the fulfilment by man of the Divine purpose in his +existence. Next after religion, it is man's greatest good; and +even religion without it can do only a small portion of her work. +They wrong it who call it a necessary evil; it is a great good, +and, instead of being distrusted, hated, or resisted, except in +its abuses, it should be loved, respected, obeyed, and if need +be, defended at the cost of all earthly goods, and even of life +itself. + +The nature or essence of government is to govern. A government +that does not govern, is simply no government at all. If it has +not the ability to govern and governs not, it may be an agency, +an instrument in the bands of individuals for advancing their +private interests, but it is not government. To be government it +must govern both individuals and the community. If it is a mere +machine for making prevail the will of one man, of a certain +number of men, or even of the community, it may be very effective +sometimes for good, sometimes for evil, oftenest for evil, but +government in the proper sense of the word it is not. To govern +is to direct, control, restrain, as the pilot controls and +directs his ship. It necessarily implies two terms, governor and +governed, and a real distinction between them. The denial of all +real distinction between governor and governed is an error in +politics analogous to that in philosophy or theology of denying +all real distinction between creator and creature, God and the +universe, which all the world knows is either pantheism or pure +atheism--the supreme sophism. If we make governor and governed +one and the same, we efface both terms; for there is no governor +nor governed, if the will that governs is identically the will +that is governed. To make the controller and the controlled the +same is precisely to deny all control. There must, then, if +there is government at all, be a power, force, or will that +governs, distinct from that which is governed. In those +governments in which it is held that the people govern, the +people governing do and must act in a diverse relation from the +people governed, or there is no real government. + +Government is not only that which governs, but that which has the +right or authority to govern. Power without right is not +government. Governments have the right to use force at need, but +might does not make right, and not every power wielding the +physical force of a nation is to be regarded as its rightful +government. Whatever resort to physical force it may be obliged +to make, either in defence of its authority or of the rights of +the nation, the government itself lies in the moral order, and +politics is simply a branch of ethics--that branch which treats +of the rights and duties of men in their public relations, as +distinguished from their rights and duties in their private +relations. + +Government being not only that which governs, but that which has +the right to govern, obedience to it becomes a moral duty, not a +mere physical necessity. The right to govern and the duty to +obey are correlatives, and the one cannot exist or be conceived +without the other. Hence loyalty is not simply an amiable +sentiment but a duty, a moral virtue. Treason is not merely a +difference in political opinion with the governing authority, but +a crime against the sovereign, and a moral wrong, therefore a sin +against God, the Founder of the moral Law. Treason, if committed +in other Countries, unhappily, has been more frequently termed by +our countrymen Patriotism and loaded with honor than branded as a +crime, the greatest of crimes, as it is, that human governments +have authority to punish. The American people have been chary of +the word loyalty, perhaps because they regard it as the +correlative of royalty; but loyalty is rather the correlative of +law, and is, in its essence, love and devotion to the sovereign +authority, however constituted or wherever lodged. It is as +necessary, as much a duty, as much a virtue in republics as in +monarchies; and nobler examples of the most devoted loyalty are +not found in the world's history than were exhibited in the +ancient Greek and Roman republics, or than have been exhibited by +both men and women in the young republic of the United States. +Loyalty is the highest, noblest, and most generous of human +virtues, and is the human element of that sublime love or charity +which the inspired Apostle tells us is the fulfilment of the law. +It has in it the principle of devotion, of self-sacrifice, and +is, of all human virtues, that which renders man the most +Godlike. There is nothing great, generous, good, or heroic of +which a truly loyal people are not capable, and nothing mean, +base, cruel, brutal, criminal, detestable, not to be expected of +a really disloyal people. Such a people no generous sentiment +can move, no love can bind. It mocks at duty, scorns virtue, +tramples on all rights, and holds no person, no thing, human or +divine, sacred or inviolable. The assertion of government as +lying in the moral order, defines civil liberty, and reconciles +it with authority. Civil liberty is freedom to do whatever one +pleases that authority permits or does not forbid. Freedom to +follow in all things one's own will or inclination, without any +civil restraint, is license, not liberty. There is no lesion to +liberty in repressing license, nor in requiring obedience to the +commands of the authority that has the right to command. Tyranny +or oppression is not in being subjected to authority, but in +being subjected to usurped authority--to a power that has no +right to command, or that commands what exceeds its right or its +authority. To say that it is contrary to liberty to be forced to +forego our own will or inclination in any case whatever, is +simply denying the right of all government, and falling into +no-governmentism. Liberty is violated only when we are required +to forego our own will or inclination by a power that has no +right to make the requisition; for we are bound to obedience as +far as authority has right to govern, and we can never have the +right to disobey a rightful command. The requisition, if made by +rightful authority, then, violates no right that we have or can +have, and where there is no violation of our rights there is no +violation of our liberty. The moral right of authority, which +involves the moral duty of obedience, presents, then, the ground +on which liberty and authority may meet in peace and operate to +the same end. + +This has no resemblance to the slavish doctrine of passive +obedience, and that the resistance to power can never be lawful. +The tyrant may be lawfully resisted, for the tyrant, by force of +the word itself, is a usurper, and without authority. Abuses of +power may be resisted even by force when they become too great to +be endured, when there is no legal or regular way of redressing +them, and when there is a reasonable prospect that resistance +will prove effectual and substitute something better in their +place. But it is never lawful to resist the rightful sovereign, +for it can never be right to resist right, and the rightful +sovereign in the constitutional exercise of his power can never +be said to abuse it. Abuse is the unconstitutional or wrongful +exercise of a power rightfully held, and when it is not so +exercised there is no abuse or abuses to redress. All turns, +then, on the right of power, or its legitimacy. Whence does +government derive its right to govern? What is the origin and +ground of sovereignty? This question is fundamental and without +a true answer to it politics cannot be a science, and there can +be no scientific statesmanship. Whence, then, comes the +sovereign right to govern? + + + + + +26 +CHAPTER III. + +ORIGIN OF GOVERNMENT + + +Government is both a fact and a right. Its origin as a fact, is +simply a question of history; its origin as a right or authority +to govern, is a question of ethics. Whether a certain territory +and its population are a sovereign state or nation, or +not--whether the actual ruler of a country is its rightful ruler, +or not--is to be determined by the historical facts in the case; +but whence the government derives its right to govern, is a +question that can be solved only by philosophy, or, philosophy +failing, only by revelation. + +Political writers, not carefully distinguishing between the fact +and the right, have invented various theories as to the origin of +government, among which may be named-- +I. Government originates in the right of the father to govern his +child. +II. It originates in convention, and is a social compact. +III. It originates in the people, who, collectively taken, are +sovereign. +IV. Government springs from the spontaneous development of nature. +V. It derives its right from the immediate and express +appointment of God;-- +VI. From God through the Pope, or visible head of the spiritual +society;-- +VII. From God through the people;-- +VIII. From God through the natural law. + +I. The first theory is sound, if the question is confined to the +origin of government as a fact. The patriarchal system is the +earliest known system of government, and unmistakable traces of +it are found in nearly all known governments--in the tribes of +Arabia and Northern Africa, the Irish septs and the Scottish +clans, the Tartar hordes, the Roman qentes, and the Russian and +Hindoo villages. The right of the father was held to be his +right to govern his family or household, which, with his children, +included his wife and servants. From the family to the tribe the +transition is natural and easy, as also from the tribe to the +nation. The father is chief of the family; the chief of the +eldest family is chief of the tribe; the chief of the eldest +tribe becomes chief of the nation, and, as such, king or monarch. +The heads of families collected in a senate form an aristocracy, +and the families themselves, represented by their delegates, or +publicly assembling for public affairs, constitute a democracy. +These three forms, with their several combinations, to wit, +monarchy, aristocracy, democracy, and mixed governments, are all +the forms known to Aristotle, and have generally been held to be +all that are possible. + +Historically, all governments have, in some sense, been developed +from the patriarchal, as all society has been developed from the +family. Even those governments, like the ancient Roman and the +modern feudal, which seem to be founded on landed property, may +be traced back to a patriarchal origin. The patriarch is sole +proprietor, and the possessions of the family are vested in him, +and he governs as proprietor as well as father. In the tribe, +the chief is the proprietor, and in the nation, the king is the +landlord, and holds the domain. Hence, the feudal baron is +invested with his fief by the suzerain, holds it from him, and to +him it escheats when forfeited or vacant. All the great Asiatic +kings of ancient or modern times hold the domain and govern as +proprietors; they have the authority of the father and the owner; +and their subjects, though theoretically their children, are +really their slaves. + +In Rome, however, the proprietary right undergoes an important +transformation. The father retains all the power of the +patriarch within his family, the patrician in his gens or house, +but, outside of it, is met and controlled by the city or state. +The heads of houses are united in the senate, and collectively +constitute and govern the state. Yet, not all the heads of +houses have seats in the senate, but only the tenants of the +sacred territory of the city, which has been surveyed and marked +by the god Terminus. Hence the great plebeian houses, often +richer and nobler than the patrician, were excluded from all +share in the government and the honors of the state, because they +were not tenants of any portion of the sacred territory. There +is here the introduction of an element which is not patriarchal, +and which transforms the patriarch or chief of a tribe into the +city or state, and founds the civil order, or what is now called +civilization. The city or state takes the place of the private +proprietor, and territorial rights take the place of purely +personal rights. + +In the theory of the Roman law, the land owns the man, not the +man the land. When land was transferred to a new tenant, the +practice in early times was to bury him in it, in order to +indicate that it took possession of him, received, accepted, or +adopted him; and it was only such persons as were taken +possession of, accepted or adopted by the sacred territory or +domain that, though denizens of Rome, were citizens with full +political rights. This, in modern language, means that the state +is territorial, not personal, and that the citizen appertains to +the state, not the state to the citizen. Under the patriarchal, +the tribal, and the Asiatic monarchical systems, there is, +properly speaking, no state, no citizens, and the organization is +economical rather than political. Authority--even the nation +itself--is personal, not territorial. The patriarch, the chief +of the tribe, or the king, is the only proprietor. Under the +Graeco-Roman system all this is transformed. The nation is +territorial as well as personal, and the real proprietor is the +city or state. Under the Empire, no doubt, what lawyers call the +eminent domain was vested in the emperor, but only as the +representative and trustee of the city or state. + +When or by what combination of events this transformation was +effected, history does not inform us. The first-born of Adam, we +are told, built a city, and called it after his son Enoch; but +there is no evidence that it was constituted a municipality. The +earliest traces of the civil order proper are found in the Greek +and Italian republics, and its fullest and grandest developments +are found in Rome, imperial as well as republican. It was no +doubt preceded by the patriarchal system, and was historically +developed from it, but by way of accretion rather than by simple +explication. It has in it an element that, if it exists in the +patriarchal constitution, exists there only in a different form, +and the transformation marks the passage from the economical +order to the political, from the barbaric to the civil +constitution of society, or from barbarism to civilization. + +The word civilization stands opposed to barbarism, and is derived +from civitas--city or state. The Greeks and Romans call all +tribes and nations in which authority is vested in the chief, as +distinguished from the state, barbarians. The origin of the word +barbarian, barbarus, or ........, is unknown, and its primary +sense can be only conjectured. Webster regards its primary sense +as foreign, wild, fierce; but this could not have been its +original sense; for the Greeks and Romans never termed all +foreigners barbarians, and they applied the term to nations that +had no inconsiderable culture and refinement of manners, and that +had made respectable progress in art and sciences--the Indians, +Persians, Medians, Chaldeans, and Assyrians. They applied the +term evidently in a political, not an ethical or an aesthetical +sense, and as it would seem to designate a social order in which +the state was not developed, and in which the nation was personal, +not territorial, and authority was held as a private right, not +as a public trust, or in which the domain vests in the chief or +tribe, and not in the state; for they never term any others +barbarians. + +Republic is opposed not to monarchy, in the modern European +sense, but to monarchy in the ancient or absolute sense. +Lacedaemon had kings; yet it was no less republican than Athens; +and Rome was called and was a republic under the emperors no less +than under the consuls. Republic, respublica, by the very force +of the term, means the public wealth, or, in good English, the +commonwealth; that is, government founded not on personal or +private wealth, but on the public wealth, public territory, or +domain, or a Government that vests authority in the nation, and +attaches the nation to a certain definite territory. France, +Spain, Italy, Holland, Belgium, Denmark, even Great Britain in +substance though not in form, are all, in the strictest sense of +the word, republican states; for the king or emperor does not +govern in his own private right, but solely as representative of +the power and majesty of the state. The distinctive mark of +republicanism is the substitution of the state for the personal +chief, and public authority for personal or private right. +Republicanism is really civilization as opposed to barbarism, and +all civility, in the old Sense of the word, or Civilian in +Italian, is republican, and is applied in modern tiles to +breeding or refinement of manners, simply because these are +characteristics of a republican, or polished [from ....., city] +people. Every people that has a real civil order, or a fully +developed state or polity, is a republican people; and hence the +church and her great doctors when they speak of the state as +distinguished from the church, call it the republic, as may be +seen by consulting even a late Encyclical of Pius IX., which some +have interpreted wrongly in an anti-republican sense. + +All tribes and nations in which the patriarchal system remains, +or is developed without transformation, are barbaric, and really +so regarded by all Christendom. In civilized nations the +patriarchal authority is transformed into that of the city or +state, that is, of the republic; but in all barbarous nations it +retains its Private and personal character. The nation is only +the family or tribe, and is called by the name of its ancestor, +founder, or chief, not by a geographical denomination. Race has +not been supplanted by country; they are a people, not a state. +They are not fixed to the soil, and though we may find in them +ardent love of family, the tribe, or the chief, we never find +among them that pure love of country or patriotism which so +distinguished the Greeks and Romans, and is no less marked among +modern Christian nations. They have a family, a race, a chief or +king, but no patria, or country. The barbarians who overthrew +the Roman Empire, whether of the West or the East, were nations, +or confederacies of nations, but not states. The nation with +them was personal, not territorial. Their country was wherever +they fed their flocks and herds, pitched their tents, and +encamped for the night. There were Germans, but no German state, +and even to-day the German finds his "father-land" wherever the +German speech is spoken. The Polish, Sclavonian, Hungarian, +Illyrian, Italian, and other provinces held by German states, in +which the German language is not the mother-tongue, are excluded +from the Germanic Confederation. The Turks, or Osmanlis, are a +race, not a state, and are encamped, not settled, on the site of +the Eastern Roman or Greek Empire. + +Even when the barbaric nations have ceased to be nomadic, +pastoral, or predatory nations, as the ancient Assyrians and +Persians or modern Chinese, and have their geographical +boundaries, they have still no state, no country. The nation +defines the boundaries, not the boundaries the nation. The +nation does not belong to the territory, but the territory to the +nation or its chief. The Irish and Anglo-Saxons, in former +times, held the land in gavelkind, and the territory belonged to +the tribe or sept; but if the tribe held it as indivisible, they +still held it as private property. The shah of Persia holds the +whole Persian territory as private property, and the landholders +among his subjects are held to be his tenants. They hold it from +him, not from the Persian state. + +The public domain of the Greek empire is in theory the private +domain of the Ottoman emperor or Turkish sultan. There is in +barbaric states no republic, no commonwealth; authority is +parental, without being tempered by parental affection. The +chief is a despot, and rules with the united authority of the +father and the harshness of the proprietor. He owns the land and +his subjects. + +Feudalism, established in Western Europe after the downfall of +the Roman Empire, however modified by the Church and by +reminiscences of Graeco-Roman civilization retained by the +conquered, was a barbaric constitution. The feudal monarch, as +far as he governed at all, governed as proprietor or landholder, +not as the representative of the commonwealth. Under feudalism +there are estates, but no state. The king governs as an estate, +the nobles hold their power as an estate, and the commons are +represented as an estate. The whole theory of power is, that it +is an estate; a private right, not a public trust. It is not +without reason, then that the common sense of civilized nations +terms the ages when it prevailed in Western Europe barbarous ages. + +It may seem a paradox to class democracy with the barbaric +constitutions, and yet as it is defended by many stanch +democrats, especially European democrats and revolutionists, and +by French and Germans settled in our own country, it is +essentially barbaric and anti-republican. The characteristic +principle of barbarism is, that power is a private or personal +right, and when democrats assert that the elective franchise is a +natural right of man, or that it is held by virtue of the fact +that the elector is a man, they assert the fundamental principle +of barbarism and despotism. This says nothing in favor of +restricted suffrage, or against what is called universal suffrage. +To restrict suffrage to property-holders helps nothing, +theoretically or practically. Property has of itself advantages +enough, without clothing its holders with exclusive political +rights and privileges, and the laboring classes any day are as +trustworthy as the business classes. The wise statesman will +never restrict suffrage, or exclude the poorer and more numerous +classes from all voice in the government of their country. +General suffrage is wise, and if Louis Philippe had had the sense +to adopt it, and thus rally the whole nation to the support of +his government, he would never have had to encounter the +revolution of 1848. The barbarism, the despotism, is not in +universal suffrage, but in defending the elective franchise as a +private or personal right. It is not a private, but a political +right, and, like all political rights, a public trust. Extremes +meet, and thus it is that men who imagine that they march at the +head of the human race and lead the civilization of the age, are +really in principle retrograding to the barbarism of the past, or +taking their place with nations on whom the light of civilization +has never yet dawned. All is not gold that glisters. + +The characteristic of barbarism is, that it makes all authority a +private or personal right; and the characteristic of civilization +is, that it makes it a public trust. Barbarism knows only +persons; civilization asserts and maintains the state. With +barbarians the authority of the patriarch is developed simply by +way of explication; in civilized states it is developed by way of +transformation. Keeping in mind this distinction, it may be +maintained that all systems of government, as a simple historical +fact, have been developed from the patriarchal. The patriarchal +has preceded them all, and it is with the patriarchal that the +human race has begun its career. The family or household is not +a state, a civil polity, but it is a government, and, +historically considered, is the initial or inchoate state as well +as the initial or inchoate nation. But its simple direct +development gives us barbarism, or what is called Oriental +despotism, and which nowhere exists, or can exist, in Christendom. +It is found only in pagan and Mohammedan nations; Christianity in +the secular order is republican, and continues and completes the +work of Greece and Rome. It meets with little permanent success +in any patriarchal or despotic nation, and must either find or +create civilization, which has been developed from the patriarchal +system by way of transformation. + +But, though the patriarchal system is the earliest form of +government, and all governments have been developed or modified +from it, the right of government to govern cannot be deduced from +the right of the father to govern his children, for the parental +right itself is not ultimate or complete. All governments that +assume it to be so, and rest on it as the foundation of their +authority, are barbaric or despotic, and, therefore , without any +legitimate authority. The right to govern rests on ownership or +dominion. Where there is no proprietorship, there is no dominion; +and where there is no dominion, there is no right to govern. +Only he who is sovereign proprietor is sovereign lord. + +Property, ownership, dominion rests on creation. The maker has +the right to the thing made. He, so far as he is sole creator, +is sole proprietor, and may do what he will with it. God is +sovereign lord and proprietor of the universe because He is its +sole creator. He hath the absolute dominion, because He is +absolute maker. He has made it, He owns it; and one may do what +he will with his own. His dominion is absolute, because He is +absolute creator, and He rightly governs as absolute and +universal lord; yet is He no despot, because He exercises only +His sovereign right, and His own essential wisdom, goodness, +justness, rectitude, and immutability, are the highest of all +conceivable guaranties that His exercise of His power will always +be right, wise, just, and good. The despot is a man attempting +to be God upon earth, and to exercise a usurped power. Despotism +is based on, the parental right, and the parental right is +assumed to be absolute. Hence, your despotic rulers claim to +reign, and to be loved and worshipped as gods. Even the Roman +emperors, in the fourth and fifth centuries, were addressed as +divinities; and Theodosius the Great, a Christian , was addressed +as "Your Eternity," Eternitas vestras--so far did barbarism +encroach on civilization, even under Christian emperors. + +The right of the father over his child is an imperfect right, for +he is the generator, not the creator of his child. Generation is +in the order of second causes, and is simply the development or +explication of the race. The early Roman law, founded on the +confusion of generation with creation, gave the father absolute +authority over the child--the right of life and death, as over +his servants or slaves; but this was restricted under the Empire, +and in all Christian nations the authority of the father is +treated, like all power, as a trust. The child, like the father +himself, belongs to the state, and to the state the father is +answerable for the use he makes of his authority. The law fixes +the age of majority, when the child is completely emancipated; +and even during his nonage, takes him from the father and places +him under guardians, in case the father is incompetent to fulfil +or grossly abuses his trust. This is proper, because society +contributes to the life of the child, and has a right as well as +an interest in him. Society, again, must suffer if the child is +allowed to grow up a worthless vagabond or a criminal; and has a +right to intervene, both in behalf of itself and of the child, in +case his parents neglect to train him up in the nurture and +admonition of the Lord, or are training him up to be a liar, a +thief, a drunkard, a murderer, a pest to the community. How, +then, base the right of society on the right of the father, +since, in point of fact, the right of society is paramount to the +right of the parent? + +But even waiving this, and granting what is not the fact that the +authority of the father is absolute, unlimited, it cannot be the +ground of the right of society to govern. Assume the parental +right to be perfect and inseparable from the parental relation, +it is no right to govern where no such relation exists. Nothing +true, real, solid in government can be founded on what Carlyle +calls a "sham." The statesman, if worthy of the name, ascertains +and conforms to the realities, the verities of things; and all +jurisprudence that accepts legal fictions is imperfect, and even +censurable. The presumptions or assumptions of law or politics +must have a real and solid basis, or they are inadmissible. How, +from the right of the father to govern his own child, born from +his loins, conclude his right to govern one not his child? Or +how, from my right to govern my child, conclude the right of +society to found the state, institute government, and exercise +political authority over its members? + + + + + +CHAPTER IV. + +ORIGIN OF GOVERNMENT--CONTINUED. + + +II. Rejecting the patriarchal theory as untenable, and shrinking +from asserting the divine origin of government, lest they should +favor theocracy, and place secular society under the control of +the clergy, and thus disfranchise the laity, modern political +writers have sought to render government purely human, and +maintain that its origin is conventional, and that it is founded +in compact or agreement. Their theory originated in the +seventeenth century, and was predominant in the last century and +the first third of the present. It has been, and perhaps is yet, +generally accepted by American politicians and statesmen, at +least so far as they ever trouble their heads with the question +at all, which it must be confessed is not far. + +The moral theologians of the Church have generally spoken of +government as a social pact or compact, and explained the +reciprocal rights and obligations of subjects and rulers by the +general law of contracts; but they have never held that +government originates in a voluntary agreement between the people +and their rulers, or between the several individuals composing +the community. They have never held that government has only a +conventional origin or authority. They have simply meant, by the +social compact, the mutual relations and reciprocal rights and +duties of princes and their subjects, as implied in the very +existence and nature of civil society. Where there are rights +and duties on each side, they treat the fact, not as an agreement +voluntarily entered into, and which creates them, but as a +compact which binds alike sovereign and subject; and in +determining whether either side has sinned or not, they inquire +whether either has broken the terms of the social compact. They +were engaged, not with the question whence does government derive +its authority, but with its nature, and the reciprocal rights and +duties of governors and the governed. The compact itself they +held was not voluntarily formed by the people themselves, either +individually or collectively, but was imposed by God, either +immediately, or mediately, through the law of nature. "Every +man," says Cicero, "is born in society, and remains there." They +held the same, and maintained that every one born into society +contracts by that fact certain obligations to society, and +society certain obligations to him; for under the natural law, +every one has certain rights, as life, liberty, and the pursuit +of happiness, and owes certain duties to society for the +protection and assistance it affords him. + +But modern political theorists have abused the phrase borrowed +from the theologians, and made it cover a political doctrine +which they would have been the last to accept. These theorists +or political speculators have imagined a state of nature +antecedently to civil society, in which men lived without +government, law, or manners, out of which they finally came by +entering into a voluntary agreement with some one of their number +to be king and to govern them, or with one another to submit to +the rule of the majority. Hobbes, the English materialist, is +among the earliest and most distinguished of the advocates of +this theory. He held that men lived, prior to the creation of +civil society, in a state of nature, in which all were equal, and +every one had an equal right to every thing, and to take any +thing on which he could lay his hands and was strong enough to +hold. There was no law but the will of the strongest. Hence, +the state of nature was a state of continual war. At length, +wearied and disgusted, men sighed for peace, and, with one +accord, said to the tallest, bravest, or ablest among them: Come, +be our king, our master, our sovereign lord, and govern us; we +surrender our natural rights and our natural independence to you, +with no other reserve or condition than that you maintain peace +among us, keep us from robbing and plundering one another or +cutting each other's throats. + +Locke followed Hobbes, and asserted virtually the same theory, +but asserted it in the interests of liberty, as Hobbes had +asserted it in the interests of power. Rousseau, a citizen of +Geneva, followed in the next century with his Contrat Social, the +text-book of the French revolutionists--almost their Bible--and +put the finishing stroke to the theory. Hitherto the compact or +agreement had been assumed to be between the governor and the +governed; Rousseau supposes it to be between the people +themselves, or a compact to which the people are the only parties. +He adopts the theory of a state of nature in which men lived, +antecedently to their forming themselves into civil society, +without government or law. All men in that state were equal, and +each was independent and sovereign proprietor of himself. These +equal, independent, sovereign individuals met, or are held to +have met, in convention, and entered into a compact with +themselves, each with all, and all with each, that they would +constitute government, and would each submit to the determination +and authority of the whole, practically of the fluctuating and +irresponsible majority. Civil society, the state, the +government, originates in this compact, and the government, as +Mr. Jefferson asserts in the Declaration of American +Independence, "derives its just powers from the consent of the +governed." + +This theory, as so set forth, or as modified by asserting that +the individual delegates instead of surrendering his rights to +civil society, was generally adopted by the American people in +the last century, and is still the more prevalent theory with +those among them who happen to have any theory or opinion on the +subject. It is the political tradition of the country. The +state, as defined by the elder Adams, is held to be a voluntary +association of individuals. Individuals create civil society, +and may uncreate it whenever they judge it advisable. Prior to +the Southern Rebellion, nearly every American asserted with +Lafayette, "the sacred right of insurrection" or revolution, and +sympathized with insurrectionists, rebels, and revolutionists, +wherever they made their appearance. Loyalty was held to be the +correlative of royalty, treason was regarded as a virtue, and +traitors were honored, feasted, and eulogized as patriots, ardent +lovers of liberty, and champions of the people. The fearful +struggle of the nation against a rebellion which threatened its +very existence may have changed this. + +That there is, or ever was, a state of nature such as the theory +assumes, may be questioned. Certainly nothing proves that it is, +or ever was, a real state. That there is a law of nature is +undeniable. All authorities in philosophy, morals, politics, and +jurisprudence assert it; the state assumes it as its own +immediate basis, and the codes of all nations are founded on it; +universal jurisprudence, the jus qentium of the Romans, embodies +it, and the courts recognize and administer it. It is the reason +and conscience of civil society, and every state acknowledges its +authority. But the law of nature is as much in force in civil +society as out of it. Civil law does not abrogate or supersede +natural law, but presupposes it, and supports itself on it as its +own ground and reason. As the natural law, which is only natural +justice and equity dictated by the reason common to all men, +persists in the civil law, municipal or international, as its +informing soul, so does the state of nature persist in the civil +state, natural society in civil society, which simply develops, +applies, and protects it. Man in civil society is not out of +nature, but is in it--is in his most natural state; for society +is natural to him, and government is natural to society, and in +some form inseparable from it. The state of nature under the +natural law is not, as a separate state, an actual state, and +never was; but an abstraction, in which is considered, apart from +the concrete existence called society, what is derived +immediately from the natural law. But as abstractions have no +existence, out of the mind that forms them, the state of nature +has no actual existence in the world of reality as a separate +state. + +But suppose with the theory the state of nature to have been a +real and separate state, in which men at first lived, there is +great difficulty in understanding how they ever got out of it. +Can a man divest himself of his nature, or lift himself above it? +Man is in his nature, and inseparable from it. If his primitive +state was his natural state, and if the political state is +supernatural, preternatural, or subnatural, how passed he alone, +by his own unaided powers, from the former to the latter? The +ancients, who had lost the primitive tradition of creation, +asserted, indeed, the primitive man as springing from the earth, +and leading a mere animal life, living in eaves or hollow trees, +and feeding on roots and nuts, without speech, without science, +art, law, or sense of right and wrong; but prior to the +prevalence of the Epicurean philosophy, they never pretended, +that man could come out of that state alone by his own unaided +efforts. They ascribed the invention of language, art, and +science, the institution of civil society, government, and laws, +to the intervention of the gods. It remained for the +Epicureans--who, though unable, like their modern successors, +the Positivists or Developmentists, to believe in a first cause, +believed in effects without causes, or that things make or take +care of themselves--to assert that men could, by their own +unassisted efforts, or by the simple exercise of reason, come out +of the primitive state, and institute what in modern times is +called civilta, civility, or civilization. + +The partisans of this theory of the state of nature from which +men have emerged by the voluntary and deliberate formation of +civil society, forget that if government is not the sole +condition, it is one of the essential conditions of progress. +The only progressive nations are civilized or republican nations. +Savage and barbarous tribes are unprogressive. Ages on ages roll +over them without changing any thing in their state; and Niebuhr +has well remarked with others, that history records no instance +of a savage tribe or people having become civilized by its own +spontaneous or indigenous efforts. If savage tribes have ever +become civilized, it has been by influences from abroad, by the +aid of men already civilized, through conquest, colonies, or +missionaries; never by their own indigenous efforts, nor even by +commerce, as is so confidently asserted in this mercantile age. +Nothing in all history indicates the ability of a savage people +to pass of itself from the savage state to the civilized. But +the primitive man, as described by Horace in his Satires, and +asserted by Hobbes, Locke, Rousseau, and others, is far below the +savage. The lowest, most degraded, and most debased savage tribe +that has yet been discovered has at least some rude outlines or +feeble reminiscences of a social state, of government, morals, +law, and religion, for even in superstition the most gross there +is a reminiscence of true religion; but the people in the alleged +state of nature have none. + +The advocates of the theory deceive themselves by transporting +into their imaginary state of nature the views, habits, and +capacities of the civilized man. It is, perhaps, not difficult +for men who have been civilized, who have the intelligence, the +arts, the affections, and the habits of civilization, if deprived +by some great social convulsion of society, and thrown back on +the so-called state of nature, or cast away on some uninhabited +island in the ocean, and cut off from all intercourse with the +rest of mankind, to reconstruct civil society, and re-establish +and maintain civil government. They are civilized men, and bear +civil society in their own life. But these are no +representatives of the primitive man in the alleged state of +nature. These primitive men have no experience, no knowledge, no +conception even of civilized life, or of any state superior to +that in which they have thus far lived. How then can they, +since, on the theory, civil society has no root in nature, but is +a purely artificial creation, even conceive of civilization, +much less realize it? + +These theorists, as theorists always do, fail to make a complete +abstraction of the civilized state, and conclude from what they +feel they could do in case civil society were broken up, what +men may do and have done in a state of nature. Men cannot divest +themselves of themselves, and, whatever their efforts to do it, +they think, reason, and act as they are. + +Every writer, whatever else he writes, writes himself. The +advocates of the theory, to have made their abstraction complete, +should have presented their primitive man as below the lowest +known savage, unprogressive, and in himself incapable of +developing any progressive energy. Unprogressive, and, without +foreign assistance, incapable of progress, how is it possible for +your primitive man to pass, by his own unassisted efforts, from +the alleged state of nature to that of civilization, of which he +has no conception, and towards which no innate desire, no +instinct, no divine inspiration pushes him? + +But even if, by some happy inspiration, hardly supposable without +supernatural intervention repudiated by the theory--if by some +happy inspiration, a rare individual should so far rise above the +state of nature as to conceive of civil society and of civil +government, how could he carry his conception into execution? +Conception is always easier than its realization, and between the +design and its execution there is always a weary distance. The +poetry of all nations is a wail over unrealized ideals. It is +little that even the wisest and most potent statesman can realize +of what he conceives to be necessary for the state: political, +legislative or judicial reforms, even when loudly demanded, and +favored by authority, are hard to be effected, and not seldom +generations come and go without effecting them. The republics of +Plato, Sir Thomas More, Campanella, Harrington, as the +communities of Robert Owen and M. Cabet, remain Utopias, not +solely because intrinsically absurd, though so in fact, but +chiefly because they are innovations, have no support in +experience, and require for their realization the modes of +thought, habits, manners, character, life, which only their +introduction and realization can supply. So to be able to +execute the design of passing from the supposed state of nature +to civilization, the reformer would need the intelligence, the +habits, and characters in the public which are not possible +without civilization itself. Some philosophers suppose men have +invented language, forgetting that it requires language to give +the ability to invent language. + +Men are little moved by mere reasoning, however clear and +convincing it may be. They are moved by their affections, +passions, instincts, and habits. Routine is more powerful with +them than logic. A few are greedy of novelties, and are always +for trying experiments; but the great body of the people of all +nations have an invincible repugnance to abandon what they know +for what they know not. They are, to a great extent, the slaves +of their own vis inertiae, and will not make the necessary +exertion to change their existing mode of life, even for a +better. Interest itself is powerless before their indolence, +prejudice, habits, and usages. Never were philosophers more +ignorant of human nature than they, so numerous in the last +century, who imagined that men can be always moved by a sense of +interest, and that enlightened self-interest, L'interet bien +entendu, suffices to found and sustain the state. No reform, no +change in the constitution of government or of society, whatever +the advantages it may promise, can be successful, if introduced, +unless it has its root or germ in the past. Man is never a +creator; he can only develop and continue, because he is himself +a creature, and only a second cause. The children of Israel, +when they encountered the privations of the wilderness that lay +between them and the promised land flowing with milk and honey, +fainted in spirit, and begged Moses to lead them back to Egypt, +and permit them to return to slavery. + +In the alleged state of nature, as the philosophers describe it, +there is no germ of civilization, and the transition to civil +society would not be a development, but a complete rupture with +the past, and an entire new creation. When it is with the +greatest difficulty that necessary reforms are introduced in old +and highly civilized nations and when it can seldom be done at +all without terrible political and social convulsions, how can we +suppose men without society, and knowing nothing of it, can +deliberately, and, as it were, with "malice aforethought," found +society? Without government, and destitute alike of habits of +obedience and habits of command, how can they initiate, +establish, and sustain government? To suppose it, would be to +suppose that men in a state of nature, without culture, without +science, without any of the arts, even the most simple and +necessary, are infinitely superior to the men formed under the +most advanced civilization. Was Rousseau right in asserting +civilization as a fall, as a deterioration of the race? + +But suppose the state of nature, even suppose that men, by some +miracle or other, can get out of it and found civil society, the +origin of government as authority in compact is not yet +established. According to the theory, the rights of civil +society are derived from the rights of the individuals who form +or enter into the compact. But individuals cannot give what they +have not, and no individual has in himself the right to govern +another. By the law of nature all men have equal rights, are +equals, and equals have no authority one over another. Nor has +an individual the sovereign right even to himself, or the right +to dispose of himself as he pleases. Man is not God, +independent, self-existing and self-sufficing. He is dependent, +and dependent not only on his Maker, but on his fellow-men, on +society, and even on nature, or the material world. That on +which he depends in the measure in which be depends on it, +contributes to his existence, to his life, and to his well-being, +and has, by virtue of its contribution, a right in him and to +him; and hence it is that nothing is more painful to the proud +spirit than to receive a favor that lays him under an obligation +to another. The right of that on which man depends, and by +communion with which he lives, limits his own right over himself. + +Man does not depend exclusively on society, for it is not his +only medium of communion with God, and therefore its right to him +is neither absolute nor unlimited; but still be depends on it, +lives in it, and cannot live without it. It has, then, certain +lights over him, and he cannot enter into any compact, league, or +alliance that society does not authorize, or at least permit. +These rights of society override his rights to himself, and he +can neither surrender them nor delegate them. Other rights, as +the rights of religion and property, which are held directly from +God and nature, and which are independent of society, are +included in what are called the natural rights of man; and these +rights cannot be surrendered in forming civil society, for they +are rights of man only before civil society, and therefore not +his to cede, and because they are precisely the rights that +government is bound to respect and protect. The compact, then, +cannot be formed as pretended, for the only rights individuals +could delegate or surrender to society to constitute the sum of +the rights of government are hers already, and those which are +not hers are those which cannot be delegated or surrendered, and +in the free and full enjoyment of which, it is the duty, the +chief end of government to protect each and every individual. + +The convention not only is not a fact, but individuals have no +authority without society, to meet in convention, and enter into +the alleged compact, because they are not independent, sovereign +individuals. But pass over this: suppose the convention, suppose +the compact, it must still be conceded that it binds and can bind +only those who voluntarily and deliberately enter into it. This +is conceded by Mr. Jefferson and the American Congress of l776, +in the assertion that government derives its "just powers from +the consent of the governed." This consent, as the matter is one +of life and death, must be free, deliberate, formal, explicit, +not simply an assumed, implied, or constructive consent. It must +be given personally, and not by one for another without his +express authority. + +It is usual to infer the consent or the acceptance of the terms +of the compact from the silence of the individual, and also from +his continued residence in the country and submission to its +government. But residence is no evidence of consent, because it +may be a matter of necessity. The individual may be unable to +emigrate, if he would; and by what right can individuals form an +agreement to which I must consent or else migrate to some strange +land? + +Can my consent, under such circumstances, even if given, be any +thing but a forced consent, a consent given under duress, and +therefore invalid? Nothing can be inferred from one's silence, +for he may have many reasons for being silent besides approval of +the government. He may be silent because speech would avail +nothing; because to protest might be dangerous--cost him his +liberty, if not his life; because he sees and knows nothing +better, and is ignorant that he has any choice in the case; or +because, as very likely is the fact with the majority, he has +never for moment thought of the matter, or ever had his attention +called to it, and has no mind on the subject. + +But however this may be, there certainly must be excluded from +the compact or obligation to obey the government created by it +all the women of a nation, all the children too young to be +capable of giving their consent, and all who are too ignorant, +too weak of mind to be able to understand the terms of the +contract. These several classes cannot be less than three-fourths +of the population of any country. What is to be done with them? +Leave them without government? Extend the power of the +government over them? By what right? Government derives its +just powers from the consent of the governed, and that consent +they have not given. Whence does one-fourth of the population +get its right to govern the other three-fourths? + +But what is to be done with the rights of minorities? Is the +rule of unanimity to be insisted on in the convention and in the +government, when it goes into operation? Unanimity is +impracticable, for where there are many men there will be +differences of opinion. The rule of unanimity gives to each +individual a veto on the whole proceeding, which was the grand +defect of the Polish constitution. Each member of the Polish +Diet, which included the whole body of the nobility, had an +absolute veto, and could, alone, arrest the whole action of the +government. Will you substitute the rule of the majority, and +say the majority must govern? By what right? It is agreed to in +the convention. Unanimously, or only by a majority? The right +of the majority to have their will is, on the social compact +theory, a conventional right, and therefore cannot come into play +before the convention is completed, or the social compact is +framed and accepted. How, in settling the terms of the compact, +will you proceed? By majorities? But suppose a minority +objects, and demands two-thirds, three-fourths, or four-fifths, +and votes against the majority rule, which is carried only by a +simple plurality of votes, will the proceedings of the convention +bind the dissenting minority? What gives to the majority the +right to govern the minority who dissent from its action? + +On the supposition that society has rights not derived from +individuals, and which are intrusted to the government, there is +a good reason why the majority should prevail within the +legitimate sphere of government, because the majority is the best +representative practicable of society itself; and if the +constitution secures to minorities and dissenting individuals +their natural rights and their equal rights as citizens, they +have no just cause of complaint, for the majority in such case +has no power to tyrannize over them or to oppress them. But the +theory under examination denies that society has any rights +except such as it derives from individuals who all have equal +rights. According to it, society is itself conventional, and +created by free, independent, equal, sovereign individuals. +Society is a congress of sovereigns, in which no one has +authority over another, and no one can be rightfully forced to +submit to any decree against his will. In such a congress the +rule of the majority is manifestly improper, illegitimate, and +invalid, unless adopted by unanimous consent. + +But this is not all. The individual is always the equal of +himself, and if the government derives its powers from the +consent of the governed, he governs in the government, and parts +with none of his original sovereignty. The government is not his +master, but his agent, as the principal only delegates, not +surrenders, his rights and powers to the agent. He is free at +any time he pleases to recall the powers he has delegated, to +give new instructions, or to dismiss him. The sovereignty of the +individual survives the compact, and persists through all the +acts of his agent, the government. He must, then, be free to +withdraw from the compact whenever be judges it advisable. +Secession is perfectly legitimate if government is simply a +contract between equals. The disaffected, the criminal, the +thief the government would send to prison, or the murderer it +would hang, would be very likely to revoke his consent, and to +secede from the state. Any number of individuals large enough to +count a majority among themselves, indisposed to pay the +government taxes, or to perform the military service exacted, +might hold a convention, adopt a secession ordinance, and declare +themselves a free, independent, sovereign state, and bid defiance +to the tax-collector and the provost-marshall, and that, too, +without forfeiting their estates or changing their domicile. +Would the government employ military force to coerce them back to +their allegiance? By what right? Government is their agent, +their creature, and no man owes allegiance to his own agent, or +creature. + +The compact could bind only temporarily, and could at any moment +be dissolved. Mr. Jefferson saw this, and very consistently +maintained that one generation has no power to bind another; and, +as if this was not enough, he asserted the right of revolution, +and gave it as his opinion that in every nation a revolution once +in every generation is desirable, that is, according to his +reckoning, once every nineteen years. The doctrine that one +generation has no power to bind its successor is not only a +logical conclusion from the theory that governments derive their +just powers from the consent of the governed, since a generation +cannot give its consent before it is born, but is very convenient +for a nation that has contracted a large national debt; yet, +perhaps, not so convenient to the public creditor, since the new +generation may take it into its head not to assume or discharge +the obligations of its predecessor, but to repudiate them. No +man, certainly, can contract for any one but himself; and how +then can the son be bound, without his own personal or individual +consent, freely given, by the obligations entered into by his +father? + +The social compact is necessarily limited to the individuals who +form it, and as necessarily, unless renewed, expires with them. +It thus creates no state, no political corporation, which +survives in all its rights and powers, though individuals die. +The state is on this theory a voluntary association, and in +principle, except that it is not a secret society, in no respect +differs from the Carbonari, or the Knights of the Golden Circle. +When Orsini attempted to execute the sentence of death on the +Emperor of the French, in obedience to the order of the +Carbonari, of which the Emperor was a member, he was, if the +theory of the origin of government in compact be true, no more an +assassin than was the officer who executed on the gallows the +rebel spies and incendiaries Beal and Kennedy. + +Certain it is that the alleged social compact has in it no social +or civil element. It does not and cannot create society. It can +give only an aggregation of individuals, and society is not an +aggregation nor even an organization of individuals. It is an +organism, and individuals live in its life as well as it in +theirs. There is a real living solidarity, which makes +individuals members of the social body, and members one of another. +There is no society without individuals, and there are no +individuals without society; but in society there is that which +is not individual, and is more than all individuals. The social +compact is an attempt to substitute for this real living +solidarity, which gives to society at once unity of life and +diversity of members, an artificial solidarity, a fictitious +unity for a real unity, and membership by contract for real +living membership, a cork leg for that which nature herself gives. +Real government has its ground in this real living solidarity, +and represents the social element, which is not individual, but +above all individuals, as man is above men. But the theory +substitutes a simple agency for government, and makes each +individual its principal. It is an abuse of language to call +this agency a government. It has no one feature or element of +government. It has only an artificial unity, based on diversity; +its authority is only personal, individual, and in no sense a +public authority, representing a public will, a public right, or +a public interest. In no country could government be adopted and +sustained if men were left to the wisdom or justness of their +theories, or in the general affairs of life, acted on them. +Society, and government as representing society, has a real +existence, life, faculties, and organs of its own, not derived or +derivable from individuals. As well might it be maintained that +the human body consists in and derives all its life from the +particles of matter it assimilates from its food, and which are +constantly escaping as to maintain that society derives its life, +or government its powers, from individuals. No mechanical +aggregation of brute matter can make a living body, if there is +no living and assimilating principle within; and no aggregation +of individuals, however closely bound together by pacts or oaths, +can make society where there is no informing social principle +that aggregates and assimilates them to a living body, or produce +that mystic existence called a state or commonwealth. + +The origin of government in the Contrat Social supposes the +nation to be a purely personal affair. It gives the government +no territorial status, and clothes it with no territorial rights +or jurisdiction. The government that could so originate would be, +if any thing, a barbaric, not a republican government. It has +only the rights conferred on it, surrendered or delegated to it +by individuals, and therefore, at best, only individual rights. +Individuals can confer only such rights as they have in the +supposed state of nature. In that state there is +neither private nor public domain. The earth in +that state is not property, and is open to the first occupant, +and the occupant can lay no claim to any more than he actually +occupies. Whence, then, does government derive its territorial +jurisdiction, and its right of eminent domain claimed by all +national governments? Whence its title to vacant or unoccupied +lands? How does any particular government fix its territorial +boundaries, and obtain the right to prescribe who may occupy, and +on what conditions the vacant lands within those boundaries? +Whence does it get its jurisdiction of navigable rivers, lakes, +bays, and the seaboard within its territorial limits, as +appertaining to its domain? Here are rights that it could not +have derived from individuals, for individuals never possessed +them in the so-called state of nature. The concocters of the +theory evidently overlooked these rights, or considered them of +no importance. They seem never to have contemplated the +existence of territorial states, or the division of mankind into +nations fixed to the soil. They seem not to have supposed the +earth could be appropriated; and, indeed, many of their followers +pretend that it cannot be, and that the public lands of a nation +are open lands, and whoso chooses may occupy them, without leave +asked of the national authority or granted. The American people +retain more than one reminiscence of the nomadic and predatory +habits of their Teutonic or Scythian ancestors before they +settled on the banks of the Don or the Danube, on the Northern +Ocean, in Scania, or came in contact with the Graeco-Roman +civilization. + +Yet mankind are divided into nations, and all civilized nations +are fixed to the soil. The territory is defined, and is the +domain of the state, from which all private proprietors hold +their title-deeds. Individual proprietors hold under the state, +and often hold more, than they occupy; but it retains in all +private estates the eminent domain, and prohibits the alienation +of land to one who is not a citizen. It defends its domain, its +public unoccupied lauds, and the lands owned by private +individuals, against all foreign powers. Now whence, if +government has only the rights ceded it by individuals, does it +get this domain, and hold the right to treat settlers on even +its unoccupied lands as trespassers? In the state of nature the +territorial rights of individuals, if any they have, are +restricted to the portion of land they occupy with their rude +culture, and with their flocks and herds, and in civilized +nations to what they hold from the state, and, therefore, the +right as held and defended by all nations, and without which the +nation has no status, no fixed dwelling, and is and can be no +state, could never have been derived from individuals. The +earliest notices of Rome show the city in possession of the +sacred territory, to which the state and all political power are +attached. Whence did Rome become a landholder, and the +governing people a territorial people? Whence does any nation +become a territorial nation and lord of the domain? Certainly +never by the cession of individuals, and hence no civilized +government ever did or could originate in the so-called social +compact. + + + + + +CHAPTER V. + +ORIGIN OF GOVERNMENT-CONTINUED. + + +III. The tendency of the last century was to individualism; that +of the present is to socialism. The theory of Hobbes, Locke, +Rousseau, and Jefferson, though not formally abandoned, and still +held by many, has latterly been much modified, if not wholly +transformed. Sovereignty, it is now maintained, is inherent in +the people; not individually, indeed, but collectively, or the +people as society. The constitution is held not to be simply a +compact or agreement entered into by the people as individuals +creating civil society and government, but a law ordained by the +sovereign people, prescribing the constitution of the state and +defining its rights and powers. + +This transformation, which is rather going on than completed, is, +under one aspect at least, a progress, or rather a return to the +sounder principles of antiquity. Under it government ceases to +be a mere agency, which must obtain the assassin's consent to be +hung before it can rightfully hang him, and becomes authority, +which is one and imperative. The people taken collectively are +society, and society is a living organism, not a mere aggregation +of individuals. It does not, of course, exist without +individuals, but it is something more than individuals, and has +rights not derived from them, and which are paramount to theirs. +There is more truth, and truth of a higher order, in this than in +the theory of the social compact. Individuals, to a certain +extent, derive their life from God through society, and so far +they depend on her, and they are hers; she owns them, and has the +right to do as she will with them. On this theory the state +emanates from society, and is supreme. It coincides with the +ancient Greek and Roman theory, as expressed by Cicero, already +cited. Man is born in society and remains there, and it may be +regarded as the source of ancient Greek and Roman patriotism, +which still commands the admiration of the civilized world. The +state with Greece and Rome was a living reality, and loyalty a +religion. The Romans held Rome to be a divinity, gave her +statues and altars, and offered her divine worship. This was +superstition, no doubt, but it had in it an element of truth. To +every true philosopher there is something divine in the state, +and truth in all theories. Society stands nearer to God, and +participates more immediately of the Divine essence, and the +state is a more lively image of God than the individual. It was +man, the generic and reproductive man, not the isolated +individual, that was created in the image and likeness of his +Maker. "And God created man in his own image; in the image of +God created he him; male and female created he them." + +This theory is usually called the democratic theory, and it +enlists in its support the instincts, the intelligence, the +living forces, and active tendencies of the age. Kings, kaisers, +and hierarchies are powerless before it, and war against it in +vain. The most they can do is to restrain its excesses, or to +guard against its abuses. Its advocates, in returning to it, +sometimes revive in its name the old pagan superstition. Not a +few of the European democrats recognize in the earth, in heaven, +or in hell, no power superior to the people, and say not only +people-king but people-God. They say absolutely, without any +qualification, the voice of the people is the voice of God, and +make their will the supreme law, not only in politics, but in +religion, philosophy, morals, science, and the arts. The people +not only found the state, but also the church. They inspire or +reveal the truth, ordain or prohibit worships, judge of +doctrines, and decide cases of conscience. Mazzini said , when +at the bead of the Roman Republic in 1848, the question of +religion must be remitted to the judgment of the people. Yet +this theory is the dominant theory of the age, and is in all +civilized nations advancing with apparently irresistible force. + +But this theory has its difficulties. Who are the collective +people that have the rights of society, or, who are the sovereign +people? The word people is vague, and in itself determines +nothing. It may include a larger or a smaller number; it may +mean the political people, or it may mean simply population; it +may mean peasants, artisans, shopkeepers, traders, merchants, as +distinguished from the nobility; hired laborers or workmen as +distinguished from their employer, or slaves as distinguished +from their master or owner. In which of these senses is the word +to be taken when it is said, "The people are sovereign?" The +people are the population or inhabitants of one and the same +country. That is something. But who or what determines the +country? Is the country the whole territory of the globe? That +will not be said, especially since the dispersion of mankind and +their division into separate nations. Is the territory +indefinite or undefined? Then indefinite or undefined are its +inhabitants, or the people invested with the rights of society. +Is it defined and its boundaries fixed? Who has done it? The +people. But who are the people? We are as wise as we were at +starting. The logicians say that the definition of idem per +idem, or the same by the same, is simply no definition at all. + +The people are the nation, undoubtedly, if you mean by the people +the sovereign people. But who are the people constituting the +nation? The sovereign people? This is only to revolve in a +vicious circle. The nation is the tribe or the people living +under the same regimen, and born of the same ancestor, or sprung +from the same ancestor or progenitor. But where find a nation in +this the primitive sense of the word? Migration, conquest, and +intermarriage, have so broken up and intermingled the primitive +races, that it is more than doubtful if a single nation, tribe, +or family of unmixed blood now exists on the face of the earth. +A Frenchman, Italian, Spaniard, German, or Englishman, may have +the blood of a hundred different races coursing in his veins. +The nation is the people inhabiting the same country, and united +under one and the same government, it is further answered. The +nation, then, is not purely personal, but also territorial. +Then, again, the question comes up, who or what determines the +territory? The government? But not before it is constituted, +and it cannot be constituted till its territorial limits are +determined. The tribe doubtless occupies territory, but is not +fixed to it, and derives no jurisdiction from it, and therefore +is not territorial. But a nation, in the modern or civilized +sense, is fixed to the territory, and derives from it its +jurisdiction, or sovereignty; and, therefore, till the territory +is determined, the nation is not and cannot be determined. + +The question is not an idle question. It is one of great +practical importance; for, till it is settled, we can neither +determine who are the sovereign people, nor who are united under +one and the same government. Laws have no extra-territorial +force, and the officer who should attempt to enforce the national +laws beyond the national territory would be a trespasser. If the +limits are undetermined, the government is not territorial, and +can claim as within its jurisdiction only those who choose to +acknowledge its authority. The importance of the question has +been recently brought home to the American people by the +secession of eleven or more States from the Union. Were these +States a part of the American nation, or were they not? Was the +war which followed secession, and which cost so many lives and so +much treasure, a civil war or a foreign war? Were the +secessionists traitors and rebels to their sovereign, or were +they patriots fighting for the liberty and independence of their +country and the right of self-government? All on both sides +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, be 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 be 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 +diunity 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 disused, 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, an 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 be 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 be 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 be 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 l789, 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 a 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 Conferation 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 su6jects. 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 l782, 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 l787, 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 intepreting 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 be 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 be 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 be 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 l787, 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 XI. + +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 de fending 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.* + +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 + +* This was the case in August, 1865. It may be quite otherwise +before these pages see the light. + + 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. + + + + +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 a' 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 be has secured that be 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, be 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 l789; 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 be 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-ordiinate 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 Project Gutenberg Etext The American Republic, by O. A. Brownson + |