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Title: The American Republic: Its Constitution, Tendencies, and Destiny

Author: A. O. Brownson

Posting Date: January 29, 2009 [EBook #2053]
Release Date: January, 2000
[Last updated: January 8, 2017]

Language: English

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*** START OF THIS PROJECT GUTENBERG EBOOK THE AMERICAN REPUBLIC ***














THE

AMERICAN REPUBLIC:

ITS

CONSTITUTION, TENDENCIES, AND DESTINY.


BY

O. A. BROWNSON, LL. D.





NEW YORK:

P. O'SHEA, 104 BLEECKER STREET.

1866.



Entered according to Act of Congress, In the year 1865, By P. O'SHEA,

In the Clerk's office of the District Court of the United States for
the Southern District of New York.




  TO THE
  HON. GEORGE BANCROFT,
  THE ERUDITE, PHILOSOPHICAL, AND ELOQUENT
  Historian of the United States,

  THIS FEEBLE ATTEMPT TO SET FORTH THE PRINCIPLES OF
  GOVERNMENT, AND TO EXPLAIN AND DEFEND THE CONSTITUTION OF
  THE AMERICAN REPUBLIC, IS RESPECTFULLY DEDICATED,
  IN MEMORY OF OLD FRIENDSHIP, AND AS A
  SLIGHT HOMAGE TO GENIUS, ABILITY,
  PATRIOTISM, PRIVATE WORTH,
  AND PUBLIC SERVICE,
  BY THE AUTHOR.



CONTENTS.

                                                             PAGE

CHAPTER I.

INTRODUCTION                                                    1


CHAPTER II.

GOVERNMENT                                                     15


CHAPTER III.

ORIGIN OF GOVERNMENT                                           26


CHAPTER IV.

ORIGIN OF GOVERNMENT--Continued                                 43


CHAPTER V.

ORIGIN OF GOVERNMENT--Continued                                71


CHAPTER VI.

ORIGIN OF GOVERNMENT--Concluded                               106


CHAPTER VII.

CONSTITUTION OF GOVERNMENT                                    136


CHAPTER VIII.

CONSTITUTION OF GOVERNMENT--Concluded                         166


CHAPTER IX.

THE UNITED STATES                                             192


CHAPTER X.

CONSTITUTION OF THE UNITED STATES                             218


CHAPTER XI.

THE CONSTITUTION--Continued                                   244


CHAPTER XII.

SECESSION                                                     277


CHAPTER XIII.

RECONSTRUCTION                                                309


CHAPTER XIV.

POLITICAL TENDENCIES                                          348


CHAPTER XV.

DESTINY--POLITICAL AND RELIGIOUS                              392





PREFACE.


In the volume which, with much diffidence, is here offered to the
public, I have given, as far as I have considered it worth giving, my
whole thought in a connected form on the nature, necessity, extent,
authority, origin, ground, and constitution of government, and the
unity, nationality, constitution, tendencies, and destiny of the
American Republic.  Many of the points treated have been from time to
time discussed or touched upon, and many of the views have been
presented, in my previous writings; but this work is newly and
independently written from beginning to end, and is as complete on the
topics treated as I have been able to make it.

I have taken nothing bodily from my previous essays, but I have used
their thoughts as far as I have judged them sound and they came within
the scope of my present work.  I have not felt myself bound to adhere
to my own past thoughts or expressions any farther than they coincide
with my present convictions, and I have written as freely and as
independently as if I had never written or published any thing before.
I have never been the slave of my own past, and truth has always been
dearer to me than my own opinions.  This work is not only my latest,
but will be my last on politics or government, and must be taken as the
authentic, and the only authentic statement of my political views and
convictions, and whatever in any of my previous writings conflicts with
the principles defended in its pages, must be regarded as retracted,
and rejected.

The work now produced is based on scientific principles; but it is an
essay rather than a scientific treatise, and even good-natured critics
will, no doubt, pronounce it an article or a series of articles
designed for a review, rather than a book.  It is hard to overcome the
habits of a lifetime.  I have taken some pains to exchange the reviewer
for the author, but am fully conscious that I have not succeeded.  My
work can lay claim to very little artistic merit.  It is full of
repetitions; the same thought is frequently recurring,--the result, to
some extent, no doubt, of carelessness and the want of artistic skill;
but to a greater extent, I fear, of "malice aforethought."  In
composing my work I have followed, rather than directed, the course of
my thought, and, having very little confidence in the memory or
industry of readers, I have preferred, when the completeness of the
argument required it, to repeat myself to encumbering my pages with
perpetual references to what has gone before.

That I attach some value to this work is evident from my consenting to
its publication; but how much or how little of it is really mine, I am
quite unable to say.  I have, from my youth up, been reading,
observing, thinking, reflecting, talking, I had almost said writing, at
least by fits and starts, on political subjects, especially in their
connection with philosophy, theology, history, and social progress, and
have assimilated to my own mind what it would assimilate, without
keeping any notes of the sources whence the materials assimilated were
derived.  I have written freely from my own mind as I find it now
formed; but how it has been so formed, or whence I have borrowed, my
readers know as well as I. All that is valuable in the thoughts set
forth, it is safe to assume has been appropriated from others.  Where I
have been distinctly conscious of borrowing what has not become common
property, I have given credit, or, at least, mentioned the author's
name, with three important exceptions which I wish to note more
formally.

I am principally indebted for the view of the American nationality and
the Federal Constitution I present, to hints and suggestions furnished
by the remarkable work of John C. Hurd, Esq., on The Law of Freedom and
Bondage in the United States, a work of rare learning and profound
philosophic views.  I could not have written my work without the aid
derived from its suggestions, any more than I could without Plato,
Aristotle, St. Augustine, St. Thomas, Suarez, Pierre Leroux, and the
Abbate Gioberti.  To these two last-named authors, one a humanitarian
sophist, the other a Catholic priest, and certainly one of the
profoundest philosophical writers of this century, I am much indebted,
though I have followed the political system of neither.  I have taken
from Leroux the germs of the doctrine I set forth on the solidarity of
the race, and from Gioberti the doctrine I defend in relation to the
creative act, which is, after all, simply that of the Credo and the
first verse of Genesis.

In treating the several questions which the preparation of this volume
has brought up, in their connection, and in the light of first
principles, I have changed or modified, on more than one important
point, the views I had expressed in my previous writings, especially on
the distinction between civilized and barbaric nations, the real basis
of civilization itself, and the value to the world of the Graeco-Roman
civilization.  I have ranked feudalism under the head of barbarism,
rejected every species of political aristocracy, and represented the
English constitution as essentially antagonistic to the American, not
as its type.  I have accepted universal suffrage in principle, and
defended American democracy, which I define to be territorial
democracy, and carefully distinguish from pure individualism on the one
hand, and from pure socialism or humanitarianism on the other.

I reject the doctrine of State sovereignty, which I held and defended
from 1828 to 1861, but still maintain that the sovereignty of the
American Republic vests in the States, though in the States
collectively, or united, not severally, and thus escape alike
consolidation and disintegration.  I find, with Mr. Madison, our most
philosophic statesman, the originality of the American system in the
division of powers between a General government having sole charge of
the foreign and general, and particular or State governments having,
within their respective territories, sole charge of the particular
relations and interests of the American people; but I do not accept his
concession that this division is of conventional origin, and maintain
that it enters into the original Providential constitution of the
American state, as I have done in my Review for October, 1863, and
January and October, 1864.

I maintain, after Mr.  Senator Sumner, one of the most philosophic and
accomplished living American statesmen, that "State secession is State
suicide," but modify the opinion I too hastily expressed that the
political death of a State dissolves civil society within its territory
and abrogates all rights held under it, and accept the doctrine that
the laws in force at the time of secession remain in force till
superseded or abrogated by competent authority, and also that, till the
State is revived and restored as a State in the Union, the only
authority, under the American system, competent to supersede or
abrogate them is the United States, not Congress, far less the
Executive.  The error of the Government is not in recognizing the
territorial laws as surviving secession but in counting a State that
has seceded as still a State in the Union, with the right to be counted
as one of the United States in amending the Constitution.  Such State
goes out of the Union, but comes under it.

I have endeavored throughout to refer my particular political views; to
their general principles, and to show that the general principles
asserted have their origin and ground in the great, universal, and
unchanging principles of the universe itself. Hence, I have labored to
show the scientific relations of political to theological principles,
the real principles of all science, as of all reality.  An atheist, I
have said, may be a politician; but if there were no God, there could
be no politics. This may offend the sciolists of the age, but I must
follow science where it leads, and cannot be arrested by those who
mistake their darkness for light.

I write throughout as a Christian, because I am a Christian; as a
Catholic, because all Christian principles, nay, all real principles
are catholic, and there is nothing sectarian either in nature or
revelation.  I am a Catholic by God's grace and great goodness, and
must write as I am.  I could not write otherwise if I would, and would
not if I could.  I have not obtruded my religion, and have referred to
it only where my argument demanded it; but I have had neither the
weakness nor the bad taste to seek to conceal or disguise it.  I could
never have written my book without the knowledge I have, as a Catholic,
of Catholic theology, and my acquaintance, slight as it is, with the
great fathers and doctors of the church, the great masters of all that
is solid or permanent in modern thought, either with Catholics or
non-Catholics.

Moreover, though I write for all Americans, without distinction of sect
or party, I have had more especially in view the people of my own
religious communion.  It is no discredit to a man in the United States
at the present day to be a firm, sincere, and devout Catholic.  The old
sectarian prejudice may remain with a few, "whose eyes," as Emerson
says, "are in their hind-head, not in their fore-head;" but the
American people are not at heart sectarian, and the nothingarianism so
prevalent among them only marks their state of transition from
sectarian opinions to positive Catholic faith.  At any rate, it can no
longer be denied that Catholics are an integral, living, and growing
element in the American population, quite too numerous, too wealthy,
and too influential to be ignored.  They have played too conspicuous a
part in the late troubles of the country, and poured out too freely and
too much of their richest and noblest blood in defence of the unity of
the nation and the integrity of its domain, for that.  Catholics
henceforth must be treated as standing, in all respects, on a footing
of equality with any other class of American citizens, and their views
of political science, or of any other science, be counted of equal
importance, and listened to with equal attention.

I have no fears that my book will be neglected because avowedly by a
Catholic author, and from a Catholic publishing house.  They who are
not Catholics will read it, and it will enter into the current of
American literature, if it is one they must read in order to be up with
the living and growing thought of the age. If it is not a book of that
sort, it is not worth reading by any one.

Furthermore, I am ambitious, even in my old age, and I wish to exert an
influence on the future of my country, for which I have made, or,
rather, my family have made, some sacrifices, and which I tenderly
love.  Now, I believe that he who can exert the most influence on our
Catholic population, especially in giving tone and direction to our
Catholic youth, will exert the most influence in forming the character
and shaping the future destiny of the American Republic.  Ambition and
patriotism alike, as well as my own Catholic faith and sympathies,
induce me to address myself primarily to Catholics.  I quarrel with
none of the sects; I honor virtue wherever I see it, and accept truth
wherever I find it; but, in my belief, no sect is destined to a long
life, or a permanent possession.  I engage in no controversy with any
one not of my religion, for, if the positive, affirmative truth is
brought out and placed in a clear light before the public, whatever is
sectarian in any of the sects will disappear as the morning mists
before the rising sun.

I expect the most intelligent and satisfactory appreciation of my book
from the thinking and educated classes among Catholics; but I speak to
my countrymen at large.  I could not personally serve my country in the
field: my habits as well as my infirmities prevented, to say nothing of
my age; but I have endeavored in this humble work to add my
contribution, small though it may be, to political science, and to
discharge, as far as I am able, my debt of loyalty and patriotism.  I
would the book were more of a book, more worthy of my countrymen, and a
more weighty proof of the love I beat them, and with which I have
written it.  All I can say is, that it is an honest book, a sincere
book, and contains my best thoughts on the subjects treated.  If well
received, I shall be grateful; if neglected, I shall endeavor to
practise resignation, as I have so often done.


O. A. BROWNSON.

ELIZABETH, N. J., September 16, 1865.




CHAPTER I

INTRODUCTION


The ancients summed up the whole of human wisdom in the maxim, Know
Thyself, and certainly there is for an individual no more important as
there is no more difficult knowledge, than knowledge of himself, whence
he comes, whither he goes, what he is, what he is for, what he can do,
what he ought to do, and what are his means of doing it.

Nations are only individuals on a larger scale.  They have a life, an
individuality, a reason, a conscience, and instincts of their own, and
have the same general laws of development and growth, and, perhaps, of
decay, as the individual man.  Equally important, and no less difficult
than for the individual, is it for a nation to know itself, understand
its own existence, its own powers and faculties, rights and duties,
constitution, instincts, tendencies, and destiny.  A nation has a
spiritual as well as a material, a moral as well as a physical
existence, and is subjected to internal as well as external conditions
of health and virtue, greatness and grandeur, which it must in some
measure understand and observe, or become weak and infirm, stunted in
its growth, and end in premature decay and death.

Among nations, no one has more need of full knowledge of itself than
the United States, and no one has hitherto had less.  It has hardly had
a distinct consciousness of its own national existence, and has lived
the irreflective life of the child, with no severe trial, till the
recent rebellion, to throw it back on itself and compel it to reflect
on its own constitution, its own separate existence, individuality,
tendencies, and end.  The defection of the slaveholding States, and the
fearful struggle that has followed for national unity and integrity,
have brought it at once to a distinct recognition of itself, and forced
it to pass from thoughtless, careless, heedless, reckless adolescence
to grave and reflecting manhood.  The nation has been suddenly
compelled to study itself, and henceforth must act from reflection,
understanding, science, statesmanship, not from instinct, impulse,
passion, or caprice, knowing well what it does, and wherefore it does
it.  The change which four years of civil war have wrought in the
nation is great, and is sure to give it the seriousness, the gravity,
the dignity, the manliness it has heretofore lacked.

Though the nation has been brought to a consciousness of its own
existence, it has not, even yet, attained to a full and clear
understanding of its own national constitution.  Its vision is still
obscured by the floating mists of its earlier morning, and its judgment
rendered indistinct and indecisive by the wild theories and fancies of
its childhood.  The national mind has been quickened, the national
heart has been opened, the national disposition prepared, but there
remains the important work of dissipating the mists that still linger,
of brushing away these wild theories and fancies, and of enabling it to
form a clear and intelligent judgment of itself, and a true and just
appreciation of its own constitution tendencies,--and destiny; or, in
other words, of enabling the nation to understand its own idea, and the
means of its actualization in space and time.

Every living nation has an idea given it by Providence to realize, and
whose realization is its special work, mission, or destiny.  Every
nation is, in some sense, a chosen people of God. The Jews were the
chosen people of God, through whom the primitive traditions were to be
preserved in their purity and integrity, and the Messiah was to come.
The Greeks were the chosen people of God, for the development and
realization of the beautiful or the divine splendor in art, and of the
true in science and philosophy; and the Romans, for the development of
the state, law, and jurisprudence.  The great despotic nations of Asia
were never properly nations; or if they were nations with a mission,
they proved false to it--, and count for nothing in the progressive
development of the human race.  History has not recorded their mission,
and as far as they are known they have contributed only to the abnormal
development or corruption of religion and civilization.  Despotism is
barbaric and abnormal.

The United States, or the American Republic, has a mission, and is
chosen of God for the realization of a great idea.  It has been chosen
not only to continue the work assigned to Greece and Rome, but to
accomplish a greater work than was assigned to either.  In art, it will
prove false to its mission if it do not rival Greece; and in science
and philosophy, if it do not surpass it.  In the state, in law, in
jurisprudence, it must continue and surpass Rome.  Its idea is liberty,
indeed, but liberty with law, and law with liberty.  Yet its mission is
not so much the realization of liberty as the realization of the true
idea of the state, which secures at once the authority of the public
and the freedom of the individual--the sovereignty of the people
without social despotism, and individual freedom without anarchy.  In
other words, its mission is to bring out in its life the dialectic
union of authority and liberty, of the natural rights of man and those
of society.  The Greek and Roman republics asserted the state to the
detriment of individual freedom; modern republics either do the same,
or assert individual freedom to the detriment of the state.  The
American republic has been instituted by Providence to realize the
freedom of each with advantage to the other.

The real mission of the United States is to introduce and establish a
political constitution, which, while it retains all the advantages of
the constitutions of states thus far known, is unlike any of them, and
secures advantages which none of them did or could possess.  The
American constitution has no prototype in any prior constitution.  The
American form of government can be classed throughout with none of the
forms of government described by Aristotle, or even by later
authorities.  Aristotle knew only four forms of government: Monarchy,
Aristocracy, Democracy, and Mixed Governments.  The American form is
none of these, nor any combination of them.  It is original, a new
contribution to political science, and seeks to attain the end of all
wise and just government by means unknown or forbidden to the ancients,
and which have been but imperfectly comprehended even by American
political writers themselves.  The originality of the American
constitution has been overlooked by the great majority even of our own
statesmen, who seek to explain it by analogies borrowed from the
constitutions of other states rather than by a profound study of its
own principles.  They have taken too low a view of it, and have rarely,
if ever, appreciated its distinctive and peculiar merits.

As the United States have vindicated their national unity and
integrity, and are preparing to take a new start in history, nothing is
more important than that they should take that new start with a clear
and definite view of their national constitution, and with a distinct
understanding of their political mission in the future of the world.
The citizen who can help his countrymen to do this will render them an
important service and deserve well of his country, though he may have
been unable to serve in her armies and defend her on the battle-field.
The work now to be done by American statesmen is even more difficult
and more delicate than that which has been accomplished by our brave
armies.  As yet the people are hardly better prepared for the political
work to be done than they were at the outbreak of the civil war for the
military work they have so nobly achieved.  But, with time, patience,
and good-will, the difficulties may be overcome, the errors of the past
corrected, and the Government placed on the right track for the future.

It will hardly be questioned that either the constitution of the United
States is very defective or it has been very grossly misinterpreted by
all parties.  If the slave States had not held that the States are
severally sovereign, and the Constitution of the United States a simple
agreement or compact, they would never have seceded; and if the Free
States had not confounded the Union with the General government, and
shown a tendency to make it the entire national government, no occasion
or pretext for secession would have been given.  The great problem of
our statesmen has been from the first, How to assert union without
consolidation, and State rights without disintegration?  Have they, as
yet, solved that problem?  The war has silenced the State sovereignty
doctrine, indeed, but has it done so without lesion to State rights?
Has it done it without asserting the General government as the supreme,
central, or national government?  Has it done it without striking a
dangerous blow at the federal element of the constitution?  In
suppressing by armed force the doctrine that the States are severally
sovereign, what barrier is left against consolidation?  Has not one
danger been removed only to give place to another?

But perhaps the constitution itself, if rightly understood, solves the
problem; and perhaps the problem itself is raised precisely through
misunderstanding of the constitution.  Our statesmen have recognized no
constitution of the American people themselves; they have confined
their views to the written constitution, as if that constituted the
American people a state or nation, instead of being, as it is, only a
law ordained by the nation already existing and constituted.  Perhaps,
if they had recognized and studied the constitution which preceded that
drawn up by the Convention of 1787, and which is intrinsic, inherent in
the republic itself, they would have seen that it solves the problem,
and asserts national unity without consolidation, and the rights of the
several States without danger of disintegration. The whole controversy,
possibly, has originated in a misunderstanding of the real constitution
of the United States, and that misunderstanding itself in the
misunderstanding of the origin and constitution of government in
general.  The constitution, as will appear in the course of this essay
is not defective; and all that is necessary to guard against either
danger is to discard all our theories of the constitution, and return
and adhere to the constitution itself, as it really is and always has
been.

There is no doubt that the question of Slavery had much to do with the
rebellion, but it was not its sole cause.  The real cause must be
sought in the program that had been made, especially in the States
themselves, in forming and administering their respective governments,
as well as the General government, in accordance with political
theories borrowed from European speculators on government, the
so-called Liberals and Revolutionists, which have and can have no
legitimate application in the United States.  The tendency of American
politics, for the last thirty or forty years, has been, within the
several States themselves, in the direction of centralized democracy,
as if the American people had for their mission only the reproduction
of ancient Athens.  The American system is not that of any of the
simple forms of government, nor any combination of them.  The attempt
to bring it under any of the simple or mixed forms of government
recognized by political writers, is an attempt to clothe the future in
the cast-off garments of the past.  The American system, wherever
practicable, is better than monarchy, better than aristocracy, better
than simple democracy, better than any possible combination of these
several forms, because it accords more nearly with the principles of
things, the real order of the universe.

But American statesmen have studied the constitutions of other states
more than that of their own, and have succeeded in obscuring the
American system in the minds of the people, and giving them in its
place pure and simple democracy, which is its false development or
corruption.  Under the influence of this false development, the people
were fast losing sight of the political truth that, though the people
are sovereign, it is the organic, not the inorganic people, the
territorial people, not the people as simple population, and were
beginning to assert the absolute God-given right of the majority to
govern.  All the changes made in the bosom of the States themselves
have consisted in removing all obstacles to the irresponsible will of
the majority, leaving minorities and individuals at their mercy. This
tendency to a centralized democracy had more to do with provoking
secession and rebellion than the anti-slavery sentiments of the
Northern, Central, and Western States.

The failure of secession and the triumph of the National cause, in
spite of the short-sightedness and blundering of the Administration,
have proved the vitality and strength of the national constitution, and
the greatness of the American people. They say nothing for or against
the democratic theory of our demagogues, but every thing in favor of
the American system or constitution of government, which has found a
firmer support in American instincts than in American statesmanship.
In spite of all that had been done by theorists, radicals, and
revolutionists, no-government men, non-resistants, humanitarians, and
sickly sentimentalists to corrupt the American people in mind, heart,
and body, the native vigor of their national constitution has enabled
them to come forth triumphant from the trial.  Every American patriot
has reason to be proud of his country-men, and every American lover of
freedom to be satisfied with the institutions of his country.  But
there is danger that the politicians and demagogues will ascribe the
merit, not to the real and living national constitution, but to their
miserable theories of that constitution, and labor to aggravate the
several evils and corrupt tendencies which caused the rebellion it has
cost so much to suppress.  What is now wanted is, that the people,
whose instincts are right, should understand the American constitution
as it is, and so understand it as to render it impossible for political
theorists, no matter of what school or party, to deceive them again as
to its real import, or induce them to depart from it in their political
action.

A work written with temper, without passion or sectional prejudice, in
a philosophical spirit, explaining to the American people their own
national constitution, and the mutual relations of the General
government and the State governments, cannot, at this important crisis
in our affairs, be inopportune, and, if properly executed, can hardly
fail to be of real service.  Such a work is now attempted--would it
were by another and abler hand--which, imperfect as it is, may at least
offer some useful suggestions, give a right direction to political
thought, although it should fail to satisfy the mind of the reader.

This much the author may say, in favor of his own work, that it sets
forth no theory of government in general, or of the United States in
particular.  The author is not a monarchist, an aristocrat, a democrat,
a feudalist, nor an advocate of what are called mixed governments like
the English, at least for his own country; but is simply an American,
devoted to the real, living, and energizing constitution of the
American republic as it is, not as some may fancy it might be, or are
striving to make it. It is, in his judgment, what it ought to be, and
he has no other ambition than to present it as it is to the
understanding and love of his countrymen.

Perhaps simple artistic unity and propriety would require the author to
commence his essay directly with the United States; but while the
constitution of the United States is original and peculiar, the
government of the United States has necessarily something in common
with all legitimate governments, and he has thought it best to precede
his discussion of the American republic, its constitution, tendencies,
and destiny, by some considerations on government in general.  He does
this because he believes, whether rightly or not, that while the
American people have received from Providence a most truly profound and
admirable system of government, they are more or less infected with the
false theories of government which have been broached during the last
two centuries.  In attempting to realize these theories, they have
already provoked or rendered practicable a rebellion which has
seriously threatened the national existence, and come very near putting
an end to the American order of civilization itself.  These theories
have received already a shock in the minds of all serious and thinking
men; but the men who think are in every nation a small minority, and it
is necessary to give these theories a public refutation, and bring back
those who do not think, as well as those who do, from the world of
dreams to the world of reality.  It is hoped, therefore, that any
apparent want of artistic unity or symmetry in the essay will be
pardoned for the sake of the end the author has had in view.




CHAPTER II.

GOVERNMENT.


Man is a dependent being, and neither does nor can suffice for himself.
He lives not in himself, but lives and moves and has his being in God.
He exists, develops, and fulfils his existence only by communion with
God, through which he participates of the divine being and life.  He
communes with God through the divine creative act and the Incarnation
of the Word, through his kind, and through the material world.
Communion with God through Creation and Incarnation is religion,
distinctively taken, which binds man to God as his first cause, and
carries him onward to God as his final cause; communion through the
material world is expressed by the word property; and communion with
God through humanity is society.  Religion, society, property, are the
three terms that embrace the whole of man's life, and express the
essential means and conditions of his existence, his development, and
his perfection, or the fulfilment of his existence, the attainment of
the end for which he is created.

Though society, or the communion of man with his Maker through his
kind, is not all that man needs in order to live, to grow, to actualize
the possibilities of his nature, and to attain to his beatitude, since
humanity is neither God nor the material universe, it is yet a
necessary and essential condition of his life, his progress, and the
completion of his existence.  He is born and lives in society, and can
be born and live nowhere else. It is one of the necessities of his
nature.  "God saw that it was not good for man to be alone."  Hence,
wherever man is found he is found in society, living in more or less
strict intercourse with his kind.

But society never does and never can exist without government of some
sort.  As society is a necessity of man's nature, so is government a
necessity of society.  The simplest form of society is the family--Adam
and Eve.  But though Adam and Eve are in many respects equal, and have
equally important though different parts assigned them, one or the
other must be head and governor, or they cannot form the society called
family.  They would be simply two individuals of different sexes, and
the family would fail for the want of unity.

Children cannot be reared, trained, or educated without some degree of
family government, of some authority to direct, control, restrain, or
prescribe.  Hence the authority of the husband and father is recognized
by the common consent of mankind.  Still more apparent is the necessity
of government the moment the family develops and grows into the tribe,
and the tribe into the nation.  Hence no nation exists without
government; and we never find a savage tribe, however low or degraded,
that does not assert somewhere in the father, in the elders, or in the
tribe itself, the rude outlines or the faint reminiscences of some sort
of government, with authority to demand obedience and to punish the
refractory.  Hence, as man is nowhere found out of society, so nowhere
is society found without government.

Government is necessary: but let it be remarked by the way, that its
necessity does not grow exclusively or chiefly out of the fact that the
human race by sin has fallen from its primitive integrity, or original
righteousness.  The fall asserted by Christian theology, though often
misinterpreted, and its effects underrated or exaggerated, is a fact
too sadly confirmed by individual experience and universal history; but
it is not the cause why government is necessary, though it may be an
additional reason for demanding it.  Government would have been
necessary if man had not sinned, and it is needed for the good as well
as for the bad.  The law was promulgated in the Garden, while man
retained his innocence and remained in the integrity of his nature.  It
exists in heaven as well as on earth, and in heaven in its perfection.
Its office is not purely repressive, to restrain violence, to redress
wrongs, and to punish the transgressor.  It has something more to do
than to restrict our natural liberty, curb our passions, and maintain
justice between man and man.  Its office is positive as well as
negative.  It is needed to render effective the solidarity of the
individuals of a nation, and to render the nation an organism, not a
mere organization--to combine men in one living body, and to strengthen
all with the strength of each, and each with the strength of all--to
develop, strengthen, and sustain individual liberty, and to utilize and
direct it to the promotion of the common weal--to be a social
providence, imitating in its order and degree the action of the divine
providence itself, and, while it provides for the common good of all,
to protect each, the lowest and meanest, with the whole force and
majesty of society. It is the minister of wrath to wrong-doers, indeed,
but its nature is beneficent, and its action defines and protects the
right of property, creates and maintains a medium in which religion can
exert her supernatural energy, promotes learning, fosters science and
art, advances civilization, and contributes as a powerful means to the
fulfilment by man of the Divine purpose in his existence.  Next after
religion, it is man's greatest good; and even religion without it can
do only a small portion of her work. They wrong it who call it a
necessary evil; it is a great good, and, instead of being distrusted,
hated, or resisted, except in its abuses, it should be loved,
respected, obeyed, and if need be, defended at the cost of all earthly
goods, and even of life itself.

The nature or essence of government is to govern.  A government that
does not govern, is simply no government at all.  If it has not the
ability to govern and governs not, it may be an agency, an instrument
in the bands of individuals for advancing their private interests, but
it is not government.  To be government it must govern both individuals
and the community.  If it is a mere machine for making prevail the will
of one man, of a certain number of men, or even of the community, it
may be very effective sometimes for good, sometimes for evil, oftenest
for evil, but government in the proper sense of the word it is not.  To
govern is to direct, control, restrain, as the pilot controls and
directs his ship.  It necessarily implies two terms, governor and
governed, and a real distinction between them.  The denial of all real
distinction between governor and governed is an error in politics
analogous to that in philosophy or theology of denying all real
distinction between creator and creature, God and the universe, which
all the world knows is either pantheism or pure atheism--the supreme
sophism.  If we make governor and governed one and the same, we efface
both terms; for there is no governor nor governed, if the will that
governs is identically the will that is governed.  To make the
controller and the controlled the same is precisely to deny all
control.  There must, then, if there is government at all, be a power,
force, or will that governs, distinct from that which is governed.  In
those governments in which it is held that the people govern, the
people governing do and must act in a diverse relation from the people
governed, or there is no real government.

Government is not only that which governs, but that which has the right
or authority to govern.  Power without right is not government.
Governments have the right to use force at need, but might does not
make right, and not every power wielding the physical force of a nation
is to be regarded as its rightful government.  Whatever resort to
physical force it may be obliged to make, either in defence of its
authority or of the rights of the nation, the government itself lies in
the moral order, and politics is simply a branch of ethics--that branch
which treats of the rights and duties of men in their public relations,
as distinguished from their rights and duties in their private
relations.

Government being not only that which governs, but that which has the
right to govern, obedience to it becomes a moral duty, not a mere
physical necessity.  The right to govern and the duty to obey are
correlatives, and the one cannot exist or be conceived without the
other.  Hence loyalty is not simply an amiable sentiment but a duty, a
moral virtue.  Treason is not merely a difference in political opinion
with the governing authority, but a crime against the sovereign, and a
moral wrong, therefore a sin against God, the Founder of the moral Law.
Treason, if committed in other Countries, unhappily, has been more
frequently termed by our countrymen Patriotism and loaded with honor
than branded as a crime, the greatest of crimes, as it is, that human
governments have authority to punish.  The American people have been
chary of the word loyalty, perhaps because they regard it as the
correlative of royalty; but loyalty is rather the correlative of law,
and is, in its essence, love and devotion to the sovereign authority,
however constituted or wherever lodged.  It is as necessary, as much a
duty, as much a virtue in republics as in monarchies; and nobler
examples of the most devoted loyalty are not found in the world's
history than were exhibited in the ancient Greek and Roman republics,
or than have been exhibited by both men and women in the young republic
of the United States. Loyalty is the highest, noblest, and most
generous of human virtues, and is the human element of that sublime
love or charity which the inspired Apostle tells us is the fulfilment
of the law. It has in it the principle of devotion, of self-sacrifice,
and is, of all human virtues, that which renders man the most Godlike.
There is nothing great, generous, good, or heroic of which a truly
loyal people are not capable, and nothing mean, base, cruel, brutal,
criminal, detestable, not to be expected of a really disloyal people.
Such a people no generous sentiment can move, no love can bind.  It
mocks at duty, scorns virtue, tramples on all rights, and holds no
person, no thing, human or divine, sacred or inviolable.  The assertion
of government as lying in the moral order, defines civil liberty, and
reconciles it with authority.  Civil liberty is freedom to do whatever
one pleases that authority permits or does not forbid.  Freedom to
follow in all things one's own will or inclination, without any civil
restraint, is license, not liberty.  There is no lesion to liberty in
repressing license, nor in requiring obedience to the commands of the
authority that has the right to command.  Tyranny or oppression is not
in being subjected to authority, but in being subjected to usurped
authority--to a power that has no right to command, or that commands
what exceeds its right or its authority.  To say that it is contrary to
liberty to be forced to forego our own will or inclination in any case
whatever, is simply denying the right of all government, and falling
into no-governmentism.  Liberty is violated only when we are required
to forego our own will or inclination by a power that has no right to
make the requisition; for we are bound to obedience as far as authority
has right to govern, and we can never have the right to disobey a
rightful command.  The requisition, if made by rightful authority,
then, violates no right that we have or can have, and where there is no
violation of our rights there is no violation of our liberty.  The
moral right of authority, which involves the moral duty of obedience,
presents, then, the ground on which liberty and authority may meet in
peace and operate to the same end.

This has no resemblance to the slavish doctrine of passive obedience,
and that the resistance to power can never be lawful. The tyrant may be
lawfully resisted, for the tyrant, by force of the word itself, is a
usurper, and without authority.  Abuses of power may be resisted even
by force when they become too great to be endured, when there is no
legal or regular way of redressing them, and when there is a reasonable
prospect that resistance will prove effectual and substitute something
better in their place.  But it is never lawful to resist the rightful
sovereign, for it can never be right to resist right, and the rightful
sovereign in the constitutional exercise of his power can never be said
to abuse it.  Abuse is the unconstitutional or wrongful exercise of a
power rightfully held, and when it is not so exercised there is no
abuse or abuses to redress.  All turns, then, on the right of power, or
its legitimacy.  Whence does government derive its right to govern?
What is the origin and ground of sovereignty?  This question is
fundamental and without a true answer to it politics cannot be a
science, and there can be no scientific statesmanship.  Whence, then,
comes the sovereign right to govern?




CHAPTER III.

ORIGIN OF GOVERNMENT


Government is both a fact and a right.  Its origin as a fact, is simply
a question of history; its origin as a right or authority to govern, is
a question of ethics.  Whether a certain territory and its population
are a sovereign state or nation, or not--whether the actual ruler of a
country is its rightful ruler, or not--is to be determined by the
historical facts in the case; but whence the government derives its
right to govern, is a question that can be solved only by philosophy,
or, philosophy failing, only by revelation.

Political writers, not carefully distinguishing between the fact and
the right, have invented various theories as to the origin of
government, among which may be named--

I. Government originates in the right of the father to govern his child.

II. It originates in convention, and is a social compact.

III. It originates in the people, who, collectively taken, are
sovereign.

IV. Government springs from the spontaneous development of nature.

V. It derives its right from the immediate and express appointment of
God;--

VI. From God through the Pope, or visible head of the spiritual
society;--

VII. From God through the people;--

VIII. From God through the natural law.

I. The first theory is sound, if the question is confined to the origin
of government as a fact.  The patriarchal system is the earliest known
system of government, and unmistakable traces of it are found in nearly
all known governments--in the tribes of Arabia and Northern Africa, the
Irish septs and the Scottish clans, the Tartar hordes, the Roman
qentes, and the Russian and Hindoo villages.  The right of the father
was held to be his right to govern his family or household, which, with
his children, included his wife and servants.  From the family to the
tribe the transition is natural and easy, as also from the tribe to the
nation.  The father is chief of the family; the chief of the eldest
family is chief of the tribe; the chief of the eldest tribe becomes
chief of the nation, and, as such, king or monarch. The heads of
families collected in a senate form an aristocracy, and the families
themselves, represented by their delegates, or publicly assembling for
public affairs, constitute a democracy. These three forms, with their
several combinations, to wit, monarchy, aristocracy, democracy, and
mixed governments, are all the forms known to Aristotle, and have
generally been held to be all that are possible.

Historically, all governments have, in some sense, been developed from
the patriarchal, as all society has been developed from the family.
Even those governments, like the ancient Roman and the modern feudal,
which seem to be founded on landed property, may be traced back to a
patriarchal origin.  The patriarch is sole proprietor, and the
possessions of the family are vested in him, and he governs as
proprietor as well as father.  In the tribe, the chief is the
proprietor, and in the nation, the king is the landlord, and holds the
domain.  Hence, the feudal baron is invested with his fief by the
suzerain, holds it from him, and to him it escheats when forfeited or
vacant.  All the great Asiatic kings of ancient or modern times hold
the domain and govern as proprietors; they have the authority of the
father and the owner; and their subjects, though theoretically their
children, are really their slaves.

In Rome, however, the proprietary right undergoes an important
transformation.  The father retains all the power of the patriarch
within his family, the patrician in his gens or house, but, outside of
it, is met and controlled by the city or state. The heads of houses are
united in the senate, and collectively constitute and govern the state.
Yet, not all the heads of houses have seats in the senate, but only the
tenants of the sacred territory of the city, which has been surveyed
and marked by the god Terminus.  Hence the great plebeian houses, often
richer and nobler than the patrician, were excluded from all share in
the government and the honors of the state, because they were not
tenants of any portion of the sacred territory.  There is here the
introduction of an element which is not patriarchal, and which
transforms the patriarch or chief of a tribe into the city or state,
and founds the civil order, or what is now called civilization.  The
city or state takes the place of the private proprietor, and
territorial rights take the place of purely personal rights.

In the theory of the Roman law, the land owns the man, not the man the
land.  When land was transferred to a new tenant, the practice in early
times was to bury him in it, in order to indicate that it took
possession of him, received, accepted, or adopted him; and it was only
such persons as were taken possession of, accepted or adopted by the
sacred territory or domain that, though denizens of Rome, were citizens
with full political rights.  This, in modern language, means that the
state is territorial, not personal, and that the citizen appertains to
the state, not the state to the citizen.  Under the patriarchal, the
tribal, and the Asiatic monarchical systems, there is, properly
speaking, no state, no citizens, and the organization is economical
rather than political.  Authority--even the nation itself--is personal,
not territorial.  The patriarch, the chief of the tribe, or the king,
is the only proprietor.  Under the Graeco-Roman system all this is
transformed.  The nation is territorial as well as personal, and the
real proprietor is the city or state.  Under the Empire, no doubt, what
lawyers call the eminent domain was vested in the emperor, but only as
the representative and trustee of the city or state.

When or by what combination of events this transformation was effected,
history does not inform us.  The first-born of Adam, we are told, built
a city, and called it after his son Enoch; but there is no evidence
that it was constituted a municipality.  The earliest traces of the
civil order proper are found in the Greek and Italian republics, and
its fullest and grandest developments are found in Rome, imperial as
well as republican.  It was no doubt preceded by the patriarchal
system, and was historically developed from it, but by way of accretion
rather than by simple explication.  It has in it an element that, if it
exists in the patriarchal constitution, exists there only in a
different form, and the transformation marks the passage from the
economical order to the political, from the barbaric to the civil
constitution of society, or from barbarism to civilization.

The word civilization stands opposed to barbarism, and is derived from
civitas--city or state.  The Greeks and Romans call all tribes and
nations in which authority is vested in the chief, as distinguished
from the state, barbarians.  The origin of the word barbarian,
barbarus, or ........, is unknown, and its primary sense can be only
conjectured.  Webster regards its primary sense as foreign, wild,
fierce; but this could not have been its original sense; for the Greeks
and Romans never termed all foreigners barbarians, and they applied the
term to nations that had no inconsiderable culture and refinement of
manners, and that had made respectable progress in art and
sciences--the Indians, Persians, Medians, Chaldeans, and Assyrians.
They applied the term evidently in a political, not an ethical or an
aesthetical sense, and as it would seem to designate a social order in
which the state was not developed, and in which the nation was
personal, not territorial, and authority was held as a private right,
not as a public trust, or in which the domain vests in the chief or
tribe, and not in the state; for they never term any others barbarians.

Republic is opposed not to monarchy, in the modern European sense, but
to monarchy in the ancient or absolute sense. Lacedaemon had kings; yet
it was no less republican than Athens; and Rome was called and was a
republic under the emperors no less than under the consuls.  Republic,
respublica, by the very force of the term, means the public wealth, or,
in good English, the commonwealth; that is, government founded not on
personal or private wealth, but on the public wealth, public territory,
or domain, or a Government that vests authority in the nation, and
attaches the nation to a certain definite territory.  France, Spain,
Italy, Holland, Belgium, Denmark, even Great Britain in substance
though not in form, are all, in the strictest sense of the word,
republican states; for the king or emperor does not govern in his own
private right, but solely as representative of the power and majesty of
the state.  The distinctive mark of republicanism is the substitution
of the state for the personal chief, and public authority for personal
or private right. Republicanism is really civilization as opposed to
barbarism, and all civility, in the old Sense of the word, or Civilian
in Italian, is republican, and is applied in modern times to breeding
or refinement of manners, simply because these are characteristics of a
republican, or polished [from ....., city] people.  Every people that
has a real civil order, or a fully developed state or polity, is a
republican people; and hence the church and her great doctors when they
speak of the state as distinguished from the church, call it the
republic, as may be seen by consulting even a late Encyclical of Pius
IX., which some have interpreted wrongly in an anti-republican sense.

All tribes and nations in which the patriarchal system remains, or is
developed without transformation, are barbaric, and really so regarded
by all Christendom.  In civilized nations the patriarchal authority is
transformed into that of the city or state, that is, of the republic;
but in all barbarous nations it retains its Private and personal
character.  The nation is only the family or tribe, and is called by
the name of its ancestor, founder, or chief, not by a geographical
denomination.  Race has not been supplanted by country; they are a
people, not a state. They are not fixed to the soil, and though we may
find in them ardent love of family, the tribe, or the chief, we never
find among them that pure love of country or patriotism which so
distinguished the Greeks and Romans, and is no less marked among modern
Christian nations.  They have a family, a race, a chief or king, but no
patria, or country.  The barbarians who overthrew the Roman Empire,
whether of the West or the East, were nations, or confederacies of
nations, but not states.  The nation with them was personal, not
territorial.  Their country was wherever they fed their flocks and
herds, pitched their tents, and encamped for the night.  There were
Germans, but no German state, and even to-day the German finds his
"father-land" wherever the German speech is spoken.  The Polish,
Sclavonian, Hungarian, Illyrian, Italian, and other provinces held by
German states, in which the German language is not the mother-tongue,
are excluded from the Germanic Confederation.  The Turks, or Osmanlis,
are a race, not a state, and are encamped, not settled, on the site of
the Eastern Roman or Greek Empire.

Even when the barbaric nations have ceased to be nomadic, pastoral, or
predatory nations, as the ancient Assyrians and Persians or modern
Chinese, and have their geographical boundaries, they have still no
state, no country.  The nation defines the boundaries, not the
boundaries the nation.  The nation does not belong to the territory,
but the territory to the nation or its chief.  The Irish and
Anglo-Saxons, in former times, held the land in gavelkind, and the
territory belonged to the tribe or sept; but if the tribe held it as
indivisible, they still held it as private property.  The shah of
Persia holds the whole Persian territory as private property, and the
landholders among his subjects are held to be his tenants.  They hold
it from him, not from the Persian state.

The public domain of the Greek empire is in theory the private domain
of the Ottoman emperor or Turkish sultan.  There is in barbaric states
no republic, no commonwealth; authority is parental, without being
tempered by parental affection.  The chief is a despot, and rules with
the united authority of the father and the harshness of the proprietor.
He owns the land and his subjects.

Feudalism, established in Western Europe after the downfall of the
Roman Empire, however modified by the Church and by reminiscences of
Graeco-Roman civilization retained by the conquered, was a barbaric
constitution.  The feudal monarch, as far as he governed at all,
governed as proprietor or landholder, not as the representative of the
commonwealth.  Under feudalism there are estates, but no state.  The
king governs as an estate, the nobles hold their power as an estate,
and the commons are represented as an estate.  The whole theory of
power is, that it is an estate; a private right, not a public trust.
It is not without reason, then that the common sense of civilized
nations terms the ages when it prevailed in Western Europe barbarous
ages.

It may seem a paradox to class democracy with the barbaric
constitutions, and yet as it is defended by many stanch democrats,
especially European democrats and revolutionists, and by French and
Germans settled in our own country, it is essentially barbaric and
anti-republican.  The characteristic principle of barbarism is, that
power is a private or personal right, and when democrats assert that
the elective franchise is a natural right of man, or that it is held by
virtue of the fact that the elector is a man, they assert the
fundamental principle of barbarism and despotism.  This says nothing in
favor of restricted suffrage, or against what is called universal
suffrage. To restrict suffrage to property-holders helps nothing,
theoretically or practically.  Property has of itself advantages
enough, without clothing its holders with exclusive political rights
and privileges, and the laboring classes any day are as trustworthy as
the business classes.  The wise statesman will never restrict suffrage,
or exclude the poorer and more numerous classes from all voice in the
government of their country. General suffrage is wise, and if Louis
Philippe had had the sense to adopt it, and thus rally the whole nation
to the support of his government, he would never have had to encounter
the revolution of 1848.  The barbarism, the despotism, is not in
universal suffrage, but in defending the elective franchise as a
private or personal right.  It is not a private, but a political right,
and, like all political rights, a public trust.  Extremes meet, and
thus it is that men who imagine that they march at the head of the
human race and lead the civilization of the age, are really in
principle retrograding to the barbarism of the past, or taking their
place with nations on whom the light of civilization has never yet
dawned.  All is not gold that glisters.

The characteristic of barbarism is, that it makes all authority a
private or personal right; and the characteristic of civilization is,
that it makes it a public trust.  Barbarism knows only persons;
civilization asserts and maintains the state.  With barbarians the
authority of the patriarch is developed simply by way of explication;
in civilized states it is developed by way of transformation.  Keeping
in mind this distinction, it may be maintained that all systems of
government, as a simple historical fact, have been developed from the
patriarchal.  The patriarchal has preceded them all, and it is with the
patriarchal that the human race has begun its career.  The family or
household is not a state, a civil polity, but it is a government, and,
historically considered, is the initial or inchoate state as well as
the initial or inchoate nation.  But its simple direct development
gives us barbarism, or what is called Oriental despotism, and which
nowhere exists, or can exist, in Christendom. It is found only in pagan
and Mohammedan nations; Christianity in the secular order is
republican, and continues and completes the work of Greece and Rome.
It meets with little permanent success in any patriarchal or despotic
nation, and must either find or create civilization, which has been
developed from the patriarchal system by way of transformation.

But, though the patriarchal system is the earliest form of government,
and all governments have been developed or modified from it, the right
of government to govern cannot be deduced from the right of the father
to govern his children, for the parental right itself is not ultimate
or complete.  All governments that assume it to be so, and rest on it
as the foundation of their authority, are barbaric or despotic, and,
therefore, without any legitimate authority.  The right to govern rests
on ownership or dominion.  Where there is no proprietorship, there is
no dominion; and where there is no dominion, there is no right to
govern. Only he who is sovereign proprietor is sovereign lord.

Property, ownership, dominion rests on creation.  The maker has the
right to the thing made.  He, so far as he is sole creator, is sole
proprietor, and may do what he will with it.  God is sovereign lord and
proprietor of the universe because He is its sole creator.  He hath the
absolute dominion, because He is absolute maker.  He has made it, He
owns it; and one may do what he will with his own.  His dominion is
absolute, because He is absolute creator, and He rightly governs as
absolute and universal lord; yet is He no despot, because He exercises
only His sovereign right, and His own essential wisdom, goodness,
justness, rectitude, and immutability, are the highest of all
conceivable guaranties that His exercise of His power will always be
right, wise, just, and good.  The despot is a man attempting to be God
upon earth, and to exercise a usurped power.  Despotism is based on,
the parental right, and the parental right is assumed to be absolute.
Hence, your despotic rulers claim to reign, and to be loved and
worshipped as gods.  Even the Roman emperors, in the fourth and fifth
centuries, were addressed as divinities; and Theodosius the Great, a
Christian, was addressed as "Your Eternity," Eternitas vestras--so far
did barbarism encroach on civilization, even under Christian emperors.

The right of the father over his child is an imperfect right, for he is
the generator, not the creator of his child.  Generation is in the
order of second causes, and is simply the development or explication of
the race.  The early Roman law, founded on the confusion of generation
with creation, gave the father absolute authority over the child--the
right of life and death, as over his servants or slaves; but this was
restricted under the Empire, and in all Christian nations the authority
of the father is treated, like all power, as a trust.  The child, like
the father himself, belongs to the state, and to the state the father
is answerable for the use he makes of his authority.  The law fixes the
age of majority, when the child is completely emancipated; and even
during his nonage, takes him from the father and places him under
guardians, in case the father is incompetent to fulfil or grossly
abuses his trust.  This is proper, because society contributes to the
life of the child, and has a right as well as an interest in him.
Society, again, must suffer if the child is allowed to grow up a
worthless vagabond or a criminal; and has a right to intervene, both in
behalf of itself and of the child, in case his parents neglect to train
him up in the nurture and admonition of the Lord, or are training him
up to be a liar, a thief, a drunkard, a murderer, a pest to the
community.  How, then, base the right of society on the right of the
father, since, in point of fact, the right of society is paramount to
the right of the parent?

But even waiving this, and granting what is not the fact that the
authority of the father is absolute, unlimited, it cannot be the ground
of the right of society to govern.  Assume the parental right to be
perfect and inseparable from the parental relation, it is no right to
govern where no such relation exists.  Nothing true, real, solid in
government can be founded on what Carlyle calls a "sham."  The
statesman, if worthy of the name, ascertains and conforms to the
realities, the verities of things; and all jurisprudence that accepts
legal fictions is imperfect, and even censurable.  The presumptions or
assumptions of law or politics must have a real and solid basis, or
they are inadmissible.  How, from the right of the father to govern his
own child, born from his loins, conclude his right to govern one not
his child?  Or how, from my right to govern my child, conclude the
right of society to found the state, institute government, and exercise
political authority over its members?




CHAPTER IV.

ORIGIN OF GOVERNMENT--CONTINUED.


II. Rejecting the patriarchal theory as untenable, and shrinking from
asserting the divine origin of government, lest they should favor
theocracy, and place secular society under the control of the clergy,
and thus disfranchise the laity, modern political writers have sought
to render government purely human, and maintain that its origin is
conventional, and that it is founded in compact or agreement.  Their
theory originated in the seventeenth century, and was predominant in
the last century and the first third of the present.  It has been, and
perhaps is yet, generally accepted by American politicians and
statesmen, at least so far as they ever trouble their heads with the
question at all, which it must be confessed is not far.

The moral theologians of the Church have generally spoken of government
as a social pact or compact, and explained the reciprocal rights and
obligations of subjects and rulers by the general law of contracts; but
they have never held that government originates in a voluntary
agreement between the people and their rulers, or between the several
individuals composing the community.  They have never held that
government has only a conventional origin or authority.  They have
simply meant, by the social compact, the mutual relations and
reciprocal rights and duties of princes and their subjects, as implied
in the very existence and nature of civil society.  Where there are
rights and duties on each side, they treat the fact, not as an
agreement voluntarily entered into, and which creates them, but as a
compact which binds alike sovereign and subject; and in determining
whether either side has sinned or not, they inquire whether either has
broken the terms of the social compact.  They were engaged, not with
the question whence does government derive its authority, but with its
nature, and the reciprocal rights and duties of governors and the
governed.  The compact itself they held was not voluntarily formed by
the people themselves, either individually or collectively, but was
imposed by God, either immediately, or mediately, through the law of
nature.  "Every man," says Cicero, "is born in society, and remains
there."  They held the same, and maintained that every one born into
society contracts by that fact certain obligations to society, and
society certain obligations to him; for under the natural law, every
one has certain rights, as life, liberty, and the pursuit of happiness,
and owes certain duties to society for the protection and assistance it
affords him.

But modern political theorists have abused the phrase borrowed from the
theologians, and made it cover a political doctrine which they would
have been the last to accept.  These theorists or political speculators
have imagined a state of nature antecedently to civil society, in which
men lived without government, law, or manners, out of which they
finally came by entering into a voluntary agreement with some one of
their number to be king and to govern them, or with one another to
submit to the rule of the majority.  Hobbes, the English materialist,
is among the earliest and most distinguished of the advocates of this
theory.  He held that men lived, prior to the creation of civil
society, in a state of nature, in which all were equal, and every one
had an equal right to every thing, and to take any thing on which he
could lay his hands and was strong enough to hold.  There was no law
but the will of the strongest.  Hence, the state of nature was a state
of continual war.  At length, wearied and disgusted, men sighed for
peace, and, with one accord, said to the tallest, bravest, or ablest
among them: Come, be our king, our master, our sovereign lord, and
govern us; we surrender our natural rights and our natural independence
to you, with no other reserve or condition than that you maintain peace
among us, keep us from robbing and plundering one another or cutting
each other's throats.

Locke followed Hobbes, and asserted virtually the same theory, but
asserted it in the interests of liberty, as Hobbes had asserted it in
the interests of power.  Rousseau, a citizen of Geneva, followed in the
next century with his Contrat Social, the text-book of the French
revolutionists--almost their Bible--and put the finishing stroke to the
theory.  Hitherto the compact or agreement had been assumed to be
between the governor and the governed; Rousseau supposes it to be
between the people themselves, or a compact to which the people are the
only parties. He adopts the theory of a state of nature in which men
lived, antecedently to their forming themselves into civil society,
without government or law.  All men in that state were equal, and each
was independent and sovereign proprietor of himself.  These equal,
independent, sovereign individuals met, or are held to have met, in
convention, and entered into a compact with themselves, each with all,
and all with each, that they would constitute government, and would
each submit to the determination and authority of the whole,
practically of the fluctuating and irresponsible majority.  Civil
society, the state, the government, originates in this compact, and the
government, as Mr. Jefferson asserts in the Declaration of American
Independence, "derives its just powers from the consent of the
governed."

This theory, as so set forth, or as modified by asserting that the
individual delegates instead of surrendering his rights to civil
society, was generally adopted by the American people in the last
century, and is still the more prevalent theory with those among them
who happen to have any theory or opinion on the subject.  It is the
political tradition of the country.  The state, as defined by the elder
Adams, is held to be a voluntary association of individuals.
Individuals create civil society, and may uncreate it whenever they
judge it advisable.  Prior to the Southern Rebellion, nearly every
American asserted with Lafayette, "the sacred right of insurrection" or
revolution, and sympathized with insurrectionists, rebels, and
revolutionists, wherever they made their appearance.  Loyalty was held
to be the correlative of royalty, treason was regarded as a virtue, and
traitors were honored, feasted, and eulogized as patriots, ardent
lovers of liberty, and champions of the people.  The fearful struggle
of the nation against a rebellion which threatened its very existence
may have changed this.

That there is, or ever was, a state of nature such as the theory
assumes, may be questioned.  Certainly nothing proves that it is, or
ever was, a real state.  That there is a law of nature is undeniable.
All authorities in philosophy, morals, politics, and jurisprudence
assert it; the state assumes it as its own immediate basis, and the
codes of all nations are founded on it; universal jurisprudence, the
jus qentium of the Romans, embodies it, and the courts recognize and
administer it.  It is the reason and conscience of civil society, and
every state acknowledges its authority.  But the law of nature is as
much in force in civil society as out of it.  Civil law does not
abrogate or supersede natural law, but presupposes it, and supports
itself on it as its own ground and reason.  As the natural law, which
is only natural justice and equity dictated by the reason common to all
men, persists in the civil law, municipal or international, as its
informing soul, so does the state of nature persist in the civil state,
natural society in civil society, which simply develops, applies, and
protects it.  Man in civil society is not out of nature, but is in
it--is in his most natural state; for society is natural to him, and
government is natural to society, and in some form inseparable from it.
The state of nature under the natural law is not, as a separate state,
an actual state, and never was; but an abstraction, in which is
considered, apart from the concrete existence called society, what is
derived immediately from the natural law.  But as abstractions have no
existence, out of the mind that forms them, the state of nature has no
actual existence in the world of reality as a separate state.

But suppose with the theory the state of nature to have been a real and
separate state, in which men at first lived, there is great difficulty
in understanding how they ever got out of it. Can a man divest himself
of his nature, or lift himself above it? Man is in his nature, and
inseparable from it.  If his primitive state was his natural state, and
if the political state is supernatural, preternatural, or subnatural,
how passed he alone, by his own unaided powers, from the former to the
latter?  The ancients, who had lost the primitive tradition of
creation, asserted, indeed, the primitive man as springing from the
earth, and leading a mere animal life, living in eaves or hollow trees,
and feeding on roots and nuts, without speech, without science, art,
law, or sense of right and wrong; but prior to the prevalence of the
Epicurean philosophy, they never pretended, that man could come out of
that state alone by his own unaided efforts.  They ascribed the
invention of language, art, and science, the institution of civil
society, government, and laws, to the intervention of the gods.  It
remained for the Epicureans--who, though unable, like their modern
successors, the Positivists or Developmentists, to believe in a first
cause, believed in effects without causes, or that things make or take
care of themselves--to assert that men could, by their own unassisted
efforts, or by the simple exercise of reason, come out of the primitive
state, and institute what in modern times is called civilta, civility,
or civilization.

The partisans of this theory of the state of nature from which men have
emerged by the voluntary and deliberate formation of civil society,
forget that if government is not the sole condition, it is one of the
essential conditions of progress. The only progressive nations are
civilized or republican nations. Savage and barbarous tribes are
unprogressive.  Ages on ages roll over them without changing any thing
in their state; and Niebuhr has well remarked with others, that history
records no instance of a savage tribe or people having become civilized
by its own spontaneous or indigenous efforts.  If savage tribes have
ever become civilized, it has been by influences from abroad, by the
aid of men already civilized, through conquest, colonies, or
missionaries; never by their own indigenous efforts, nor even by
commerce, as is so confidently asserted in this mercantile age. Nothing
in all history indicates the ability of a savage people to pass of
itself from the savage state to the civilized.  But the primitive man,
as described by Horace in his Satires, and asserted by Hobbes, Locke,
Rousseau, and others, is far below the savage.  The lowest, most
degraded, and most debased savage tribe that has yet been discovered
has at least some rude outlines or feeble reminiscences of a social
state, of government, morals, law, and religion, for even in
superstition the most gross there is a reminiscence of true religion;
but the people in the alleged state of nature have none.

The advocates of the theory deceive themselves by transporting into
their imaginary state of nature the views, habits, and capacities of
the civilized man.  It is, perhaps, not difficult for men who have been
civilized, who have the intelligence, the arts, the affections, and the
habits of civilization, if deprived by some great social convulsion of
society, and thrown back on the so-called state of nature, or cast away
on some uninhabited island in the ocean, and cut off from all
intercourse with the rest of mankind, to reconstruct civil society, and
re-establish and maintain civil government.  They are civilized men,
and bear civil society in their own life.  But these are no
representatives of the primitive man in the alleged state of nature.
These primitive men have no experience, no knowledge, no conception
even of civilized life, or of any state superior to that in which they
have thus far lived.  How then can they, since, on the theory, civil
society has no root in nature, but is a purely artificial creation,
even conceive of civilization, much less realize it?

These theorists, as theorists always do, fail to make a complete
abstraction of the civilized state, and conclude from what they feel
they could do in case civil society were broken up, what men may do and
have done in a state of nature.  Men cannot divest themselves of
themselves, and, whatever their efforts to do it, they think, reason,
and act as they are.

Every writer, whatever else he writes, writes himself.  The advocates
of the theory, to have made their abstraction complete, should have
presented their primitive man as below the lowest known savage,
unprogressive, and in himself incapable of developing any progressive
energy.  Unprogressive, and, without foreign assistance, incapable of
progress, how is it possible for your primitive man to pass, by his own
unassisted efforts, from the alleged state of nature to that of
civilization, of which he has no conception, and towards which no
innate desire, no instinct, no divine inspiration pushes him?

But even if, by some happy inspiration, hardly supposable without
supernatural intervention repudiated by the theory--if by some happy
inspiration, a rare individual should so far rise above the state of
nature as to conceive of civil society and of civil government, how
could he carry his conception into execution? Conception is always
easier than its realization, and between the design and its execution
there is always a weary distance.  The poetry of all nations is a wail
over unrealized ideals.  It is little that even the wisest and most
potent statesman can realize of what he conceives to be necessary for
the state: political, legislative or judicial reforms, even when loudly
demanded, and favored by authority, are hard to be effected, and not
seldom generations come and go without effecting them.  The republics
of Plato, Sir Thomas More, Campanella, Harrington, as the communities
of Robert Owen and M. Cabet, remain Utopias, not solely because
intrinsically absurd, though so in fact, but chiefly because they are
innovations, have no support in experience, and require for their
realization the modes of thought, habits, manners, character, life,
which only their introduction and realization can supply.  So to be
able to execute the design of passing from the supposed state of nature
to civilization, the reformer would need the intelligence, the habits,
and characters in the public which are not possible without
civilization itself.  Some philosophers suppose men have invented
language, forgetting that it requires language to give the ability to
invent language.

Men are little moved by mere reasoning, however clear and convincing it
may be.  They are moved by their affections, passions, instincts, and
habits.  Routine is more powerful with them than logic.  A few are
greedy of novelties, and are always for trying experiments; but the
great body of the people of all nations have an invincible repugnance
to abandon what they know for what they know not.  They are, to a great
extent, the slaves of their own vis inertiae, and will not make the
necessary exertion to change their existing mode of life, even for a
better.  Interest itself is powerless before their indolence,
prejudice, habits, and usages.  Never were philosophers more ignorant
of human nature than they, so numerous in the last century, who
imagined that men can be always moved by a sense of interest, and that
enlightened self-interest, L'interet bien entendu, suffices to found
and sustain the state.  No reform, no change in the constitution of
government or of society, whatever the advantages it may promise, can
be successful, if introduced, unless it has its root or germ in the
past.  Man is never a creator; he can only develop and continue,
because he is himself a creature, and only a second cause.  The
children of Israel, when they encountered the privations of the
wilderness that lay between them and the promised land flowing with
milk and honey, fainted in spirit, and begged Moses to lead them back
to Egypt, and permit them to return to slavery.

In the alleged state of nature, as the philosophers describe it, there
is no germ of civilization, and the transition to civil society would
not be a development, but a complete rupture with the past, and an
entire new creation.  When it is with the greatest difficulty that
necessary reforms are introduced in old and highly civilized nations
and when it can seldom be done at all without terrible political and
social convulsions, how can we suppose men without society, and knowing
nothing of it, can deliberately, and, as it were, with "malice
aforethought," found society?  Without government, and destitute alike
of habits of obedience and habits of command, how can they initiate,
establish, and sustain government?  To suppose it, would be to suppose
that men in a state of nature, without culture, without science,
without any of the arts, even the most simple and necessary, are
infinitely superior to the men formed under the most advanced
civilization.  Was Rousseau right in asserting civilization as a fall,
as a deterioration of the race?

But suppose the state of nature, even suppose that men, by some miracle
or other, can get out of it and found civil society, the origin of
government as authority in compact is not yet established.  According
to the theory, the rights of civil society are derived from the rights
of the individuals who form or enter into the compact.  But individuals
cannot give what they have not, and no individual has in himself the
right to govern another.  By the law of nature all men have equal
rights, are equals, and equals have no authority one over another.  Nor
has an individual the sovereign right even to himself, or the right to
dispose of himself as he pleases.  Man is not God, independent,
self-existing and self-sufficing.  He is dependent, and dependent not
only on his Maker, but on his fellow-men, on society, and even on
nature, or the material world.  That on which he depends in the measure
in which be depends on it, contributes to his existence, to his life,
and to his well-being, and has, by virtue of its contribution, a right
in him and to him; and hence it is that nothing is more painful to the
proud spirit than to receive a favor that lays him under an obligation
to another.  The right of that on which man depends, and by communion
with which he lives, limits his own right over himself.

Man does not depend exclusively on society, for it is not his only
medium of communion with God, and therefore its right to him is neither
absolute nor unlimited; but still be depends on it, lives in it, and
cannot live without it.  It has, then, certain lights over him, and he
cannot enter into any compact, league, or alliance that society does
not authorize, or at least permit. These rights of society override his
rights to himself, and he can neither surrender them nor delegate them.
Other rights, as the rights of religion and property, which are held
directly from God and nature, and which are independent of society, are
included in what are called the natural rights of man; and these rights
cannot be surrendered in forming civil society, for they are rights of
man only before civil society, and therefore not his to cede, and
because they are precisely the rights that government is bound to
respect and protect.  The compact, then, cannot be formed as pretended,
for the only rights individuals could delegate or surrender to society
to constitute the sum of the rights of government are hers already, and
those which are not hers are those which cannot be delegated or
surrendered, and in the free and full enjoyment of which, it is the
duty, the chief end of government to protect each and every individual.

The convention not only is not a fact, but individuals have no
authority without society, to meet in convention, and enter into the
alleged compact, because they are not independent, sovereign
individuals.  But pass over this: suppose the convention, suppose the
compact, it must still be conceded that it binds and can bind only
those who voluntarily and deliberately enter into it.  This is conceded
by Mr. Jefferson and the American Congress of 1776, in the assertion
that government derives its "just powers from the consent of the
governed."  This consent, as the matter is one of life and death, must
be free, deliberate, formal, explicit, not simply an assumed, implied,
or constructive consent.  It must be given personally, and not by one
for another without his express authority.

It is usual to infer the consent or the acceptance of the terms of the
compact from the silence of the individual, and also from his continued
residence in the country and submission to its government.  But
residence is no evidence of consent, because it may be a matter of
necessity.  The individual may be unable to emigrate, if he would; and
by what right can individuals form an agreement to which I must consent
or else migrate to some strange land?

Can my consent, under such circumstances, even if given, be any thing
but a forced consent, a consent given under duress, and therefore
invalid?  Nothing can be inferred from one's silence, for he may have
many reasons for being silent besides approval of the government.  He
may be silent because speech would avail nothing; because to protest
might be dangerous--cost him his liberty, if not his life; because he
sees and knows nothing better, and is ignorant that he has any choice
in the case; or because, as very likely is the fact with the majority,
he has never for moment thought of the matter, or ever had his
attention called to it, and has no mind on the subject.

But however this may be, there certainly must be excluded from the
compact or obligation to obey the government created by it all the
women of a nation, all the children too young to be capable of giving
their consent, and all who are too ignorant, too weak of mind to be
able to understand the terms of the contract.  These several classes
cannot be less than three-fourths of the population of any country.
What is to be done with them? Leave them without government?  Extend
the power of the government over them?  By what right?  Government
derives its just powers from the consent of the governed, and that
consent they have not given.  Whence does one-fourth of the population
get its right to govern the other three-fourths?

But what is to be done with the rights of minorities?  Is the rule of
unanimity to be insisted on in the convention and in the government,
when it goes into operation?  Unanimity is impracticable, for where
there are many men there will be differences of opinion.  The rule of
unanimity gives to each individual a veto on the whole proceeding,
which was the grand defect of the Polish constitution.  Each member of
the Polish Diet, which included the whole body of the nobility, had an
absolute veto, and could, alone, arrest the whole action of the
government.  Will you substitute the rule of the majority, and say the
majority must govern?  By what right?  It is agreed to in the
convention.  Unanimously, or only by a majority?  The right of the
majority to have their will is, on the social compact theory, a
conventional right, and therefore cannot come into play before the
convention is completed, or the social compact is framed and accepted.
How, in settling the terms of the compact, will you proceed?  By
majorities?  But suppose a minority objects, and demands two-thirds,
three-fourths, or four-fifths, and votes against the majority rule,
which is carried only by a simple plurality of votes, will the
proceedings of the convention bind the dissenting minority?  What gives
to the majority the right to govern the minority who dissent from its
action?

On the supposition that society has rights not derived from
individuals, and which are intrusted to the government, there is a good
reason why the majority should prevail within the legitimate sphere of
government, because the majority is the best representative practicable
of society itself; and if the constitution secures to minorities and
dissenting individuals their natural rights and their equal rights as
citizens, they have no just cause of complaint, for the majority in
such case has no power to tyrannize over them or to oppress them.  But
the theory under examination denies that society has any rights except
such as it derives from individuals who all have equal rights.
According to it, society is itself conventional, and created by free,
independent, equal, sovereign individuals. Society is a congress of
sovereigns, in which no one has authority over another, and no one can
be rightfully forced to submit to any decree against his will.  In such
a congress the rule of the majority is manifestly improper,
illegitimate, and invalid, unless adopted by unanimous consent.

But this is not all.  The individual is always the equal of himself,
and if the government derives its powers from the consent of the
governed, he governs in the government, and parts with none of his
original sovereignty.  The government is not his master, but his agent,
as the principal only delegates, not surrenders, his rights and powers
to the agent.  He is free at any time he pleases to recall the powers
he has delegated, to give new instructions, or to dismiss him.  The
sovereignty of the individual survives the compact, and persists
through all the acts of his agent, the government.  He must, then, be
free to withdraw from the compact whenever he judges it advisable.
Secession is perfectly legitimate if government is simply a contract
between equals.  The disaffected, the criminal, the thief the
government would send to prison, or the murderer it would hang, would
be very likely to revoke his consent, and to secede from the state.
Any number of individuals large enough to count a majority among
themselves, indisposed to pay the government taxes, or to perform the
military service exacted, might hold a convention, adopt a secession
ordinance, and declare themselves a free, independent, sovereign state,
and bid defiance to the tax-collector and the provost-marshall, and
that, too, without forfeiting their estates or changing their domicile.
Would the government employ military force to coerce them back to their
allegiance?  By what right?  Government is their agent, their creature,
and no man owes allegiance to his own agent, or creature.

The compact could bind only temporarily, and could at any moment be
dissolved.  Mr. Jefferson saw this, and very consistently maintained
that one generation has no power to bind another; and, as if this was
not enough, he asserted the right of revolution, and gave it as his
opinion that in every nation a revolution once in every generation is
desirable, that is, according to his reckoning, once every nineteen
years.  The doctrine that one generation has no power to bind its
successor is not only a logical conclusion from the theory that
governments derive their just powers from the consent of the governed,
since a generation cannot give its consent before it is born, but is
very convenient for a nation that has contracted a large national debt;
yet, perhaps, not so convenient to the public creditor, since the new
generation may take it into its head not to assume or discharge the
obligations of its predecessor, but to repudiate them.  No man,
certainly, can contract for any one but himself; and how then can the
son be bound, without his own personal or individual consent, freely
given, by the obligations entered into by his father?

The social compact is necessarily limited to the individuals who form
it, and as necessarily, unless renewed, expires with them. It thus
creates no state, no political corporation, which survives in all its
rights and powers, though individuals die. The state is on this theory
a voluntary association, and in principle, except that it is not a
secret society, in no respect differs from the Carbonari, or the
Knights of the Golden Circle. When Orsini attempted to execute the
sentence of death on the Emperor of the French, in obedience to the
order of the Carbonari, of which the Emperor was a member, he was, if
the theory of the origin of government in compact be true, no more an
assassin than was the officer who executed on the gallows the rebel
spies and incendiaries Beal and Kennedy.

Certain it is that the alleged social compact has in it no social or
civil element.  It does not and cannot create society.  It can give
only an aggregation of individuals, and society is not an aggregation
nor even an organization of individuals.  It is an organism, and
individuals live in its life as well as it in theirs.  There is a real
living solidarity, which makes individuals members of the social body,
and members one of another. There is no society without individuals,
and there are no individuals without society; but in society there is
that which is not individual, and is more than all individuals.  The
social compact is an attempt to substitute for this real living
solidarity, which gives to society at once unity of life and diversity
of members, an artificial solidarity, a fictitious unity for a real
unity, and membership by contract for real living membership, a cork
leg for that which nature herself gives. Real government has its ground
in this real living solidarity, and represents the social element,
which is not individual, but above all individuals, as man is above
men.  But the theory substitutes a simple agency for government, and
makes each individual its principal.  It is an abuse of language to
call this agency a government.  It has no one feature or element of
government.  It has only an artificial unity, based on diversity; its
authority is only personal, individual, and in no sense a public
authority, representing a public will, a public right, or a public
interest.  In no country could government be adopted and sustained if
men were left to the wisdom or justness of their theories, or in the
general affairs of life, acted on them. Society, and government as
representing society, has a real existence, life, faculties, and organs
of its own, not derived or derivable from individuals.  As well might
it be maintained that the human body consists in and derives all its
life from the particles of matter it assimilates from its food, and
which are constantly escaping as to maintain that society derives its
life, or government its powers, from individuals.  No mechanical
aggregation of brute matter can make a living body, if there is no
living and assimilating principle within; and no aggregation of
individuals, however closely bound together by pacts or oaths, can make
society where there is no informing social principle that aggregates
and assimilates them to a living body, or produce that mystic existence
called a state or commonwealth.

The origin of government in the Contrat Social supposes the nation to
be a purely personal affair.  It gives the government no territorial
status, and clothes it with no territorial rights or jurisdiction.  The
government that could so originate would be, if any thing, a barbaric,
not a republican government.  It has only the rights conferred on it,
surrendered or delegated to it by individuals, and therefore, at best,
only individual rights. Individuals can confer only such rights as they
have in the supposed state of nature.  In that state there is neither
private nor public domain.  The earth in that state is not property,
and is open to the first occupant, and the occupant can lay no claim to
any more than he actually occupies.  Whence, then, does government
derive its territorial jurisdiction, and its right of eminent domain
claimed by all national governments?  Whence its title to vacant or
unoccupied lands?  How does any particular government fix its
territorial boundaries, and obtain the right to prescribe who may
occupy, and on what conditions the vacant lands within those
boundaries? Whence does it get its jurisdiction of navigable rivers,
lakes, bays, and the seaboard within its territorial limits, as
appertaining to its domain?  Here are rights that it could not have
derived from individuals, for individuals never possessed them in the
so-called state of nature.  The concocters of the theory evidently
overlooked these rights, or considered them of no importance.  They
seem never to have contemplated the existence of territorial states, or
the division of mankind into nations fixed to the soil.  They seem not
to have supposed the earth could be appropriated; and, indeed, many of
their followers pretend that it cannot be, and that the public lands of
a nation are open lands, and whoso chooses may occupy them, without
leave asked of the national authority or granted.  The American people
retain more than one reminiscence of the nomadic and predatory habits
of their Teutonic or Scythian ancestors before they settled on the
banks of the Don or the Danube, on the Northern Ocean, in Scania, or
came in contact with the Graeco-Roman civilization.

Yet mankind are divided into nations, and all civilized nations are
fixed to the soil.  The territory is defined, and is the domain of the
state, from which all private proprietors hold their title-deeds.
Individual proprietors hold under the state, and often hold more, than
they occupy; but it retains in all private estates the eminent domain,
and prohibits the alienation of land to one who is not a citizen.  It
defends its domain, its public unoccupied lands, and the lands owned by
private individuals, against all foreign powers.  Now whence, if
government has only the rights ceded it by individuals, does it get
this domain, and hold the right to treat settlers on even its
unoccupied lands as trespassers?  In the state of nature the
territorial rights of individuals, if any they have, are restricted to
the portion of land they occupy with their rude culture, and with their
flocks and herds, and in civilized nations to what they hold from the
state, and, therefore, the right as held and defended by all nations,
and without which the nation has no status, no fixed dwelling, and is
and can be no state, could never have been derived from individuals.
The earliest notices of Rome show the city in possession of the sacred
territory, to which the state and all political power are attached.
Whence did Rome become a landholder, and the governing people a
territorial people?  Whence does any nation become a territorial nation
and lord of the domain?  Certainly never by the cession of individuals,
and hence no civilized government ever did or could originate in the
so-called social compact.




CHAPTER V.

ORIGIN OF GOVERNMENT--CONTINUED.


III. The tendency of the last century was to individualism; that of the
present is to socialism.  The theory of Hobbes, Locke, Rousseau, and
Jefferson, though not formally abandoned, and still held by many, has
latterly been much modified, if not wholly transformed.  Sovereignty,
it is now maintained, is inherent in the people; not individually,
indeed, but collectively, or the people as society.  The constitution
is held not to be simply a compact or agreement entered into by the
people as individuals creating civil society and government, but a law
ordained by the sovereign people, prescribing the constitution of the
state and defining its rights and powers.

This transformation, which is rather going on than completed, is, under
one aspect at least, a progress, or rather a return to the sounder
principles of antiquity.  Under it government ceases to be a mere
agency, which must obtain the assassin's consent to be hung before it
can rightfully hang him, and becomes authority, which is one and
imperative.  The people taken collectively are society, and society is
a living organism, not a mere aggregation of individuals.  It does not,
of course, exist without individuals, but it is something more than
individuals, and has rights not derived from them, and which are
paramount to theirs. There is more truth, and truth of a higher order,
in this than in the theory of the social compact.  Individuals, to a
certain extent, derive their life from God through society, and so far
they depend on her, and they are hers; she owns them, and has the right
to do as she will with them.  On this theory the state emanates from
society, and is supreme.  It coincides with the ancient Greek and Roman
theory, as expressed by Cicero, already cited.  Man is born in society
and remains there, and it may be regarded as the source of ancient
Greek and Roman patriotism, which still commands the admiration of the
civilized world.  The state with Greece and Rome was a living reality,
and loyalty a religion.  The Romans held Rome to be a divinity, gave
her statues and altars, and offered her divine worship.  This was
superstition, no doubt, but it had in it an element of truth.  To every
true philosopher there is something divine in the state, and truth in
all theories.  Society stands nearer to God, and participates more
immediately of the Divine essence, and the state is a more lively image
of God than the individual.  It was man, the generic and reproductive
man, not the isolated individual, that was created in the image and
likeness of his Maker.  "And God created man in his own image; in the
image of God created he him; male and female created he them."

This theory is usually called the democratic theory, and it enlists in
its support the instincts, the intelligence, the living forces, and
active tendencies of the age.  Kings, kaisers, and hierarchies are
powerless before it, and war against it in vain.  The most they can do
is to restrain its excesses, or to guard against its abuses.  Its
advocates, in returning to it, sometimes revive in its name the old
pagan superstition.  Not a few of the European democrats recognize in
the earth, in heaven, or in hell, no power superior to the people, and
say not only people-king but people-God.  They say absolutely, without
any qualification, the voice of the people is the voice of God, and
make their will the supreme law, not only in politics, but in religion,
philosophy, morals, science, and the arts.  The people not only found
the state, but also the church.  They inspire or reveal the truth,
ordain or prohibit worships, judge of doctrines, and decide cases of
conscience.  Mazzini said, when at the head of the Roman Republic in
1848, the question of religion must be remitted to the judgment of the
people.  Yet this theory is the dominant theory of the age, and is in
all civilized nations advancing with apparently irresistible force.

But this theory has its difficulties.  Who are the collective people
that have the rights of society, or, who are the sovereign people?  The
word people is vague, and in itself determines nothing.  It may include
a larger or a smaller number; it may mean the political people, or it
may mean simply population; it may mean peasants, artisans,
shopkeepers, traders, merchants, as distinguished from the nobility;
hired laborers or workmen as distinguished from their employer, or
slaves as distinguished from their master or owner.  In which of these
senses is the word to be taken when it is said, "The people are
sovereign?"  The people are the population or inhabitants of one and
the same country.  That is something.  But who or what determines the
country?  Is the country the whole territory of the globe?  That will
not be said, especially since the dispersion of mankind and their
division into separate nations.  Is the territory indefinite or
undefined?  Then indefinite or undefined are its inhabitants, or the
people invested with the rights of society. Is it defined and its
boundaries fixed?  Who has done it?  The people.  But who are the
people?  We are as wise as we were at starting.  The logicians say that
the definition of idem per idem, or the same by the same, is simply no
definition at all.

The people are the nation, undoubtedly, if you mean by the people the
sovereign people.  But who are the people constituting the nation?  The
sovereign people?  This is only to revolve in a vicious circle.  The
nation is the tribe or the people living under the same regimen, and
born of the same ancestor, or sprung from the same ancestor or
progenitor.  But where find a nation in this the primitive sense of the
word?  Migration, conquest, and intermarriage, have so broken up and
intermingled the primitive races, that it is more than doubtful if a
single nation, tribe, or family of unmixed blood now exists on the face
of the earth. A Frenchman, Italian, Spaniard, German, or Englishman,
may have the blood of a hundred different races coursing in his veins.
The nation is the people inhabiting the same country, and united under
one and the same government, it is further answered.  The nation, then,
is not purely personal, but also territorial. Then, again, the question
comes up, who or what determines the territory?  The government?  But
not before it is constituted, and it cannot be constituted till its
territorial limits are determined.  The tribe doubtless occupies
territory, but is not fixed to it, and derives no jurisdiction from it,
and therefore is not territorial.  But a nation, in the modern or
civilized sense, is fixed to the territory, and derives from it its
jurisdiction, or sovereignty; and, therefore, till the territory is
determined, the nation is not and cannot be determined.

The question is not an idle question.  It is one of great practical
importance; for, till it is settled, we can neither determine who are
the sovereign people, nor who are united under one and the same
government.  Laws have no extra-territorial force, and the officer who
should attempt to enforce the national laws beyond the national
territory would be a trespasser.  If the limits are undetermined, the
government is not territorial, and can claim as within its jurisdiction
only those who choose to acknowledge its authority.  The importance of
the question has been recently brought home to the American people by
the secession of eleven or more States from the Union.  Were these
States a part of the American nation, or were they not?  Was the war
which followed secession, and which cost so many lives and so much
treasure, a civil war or a foreign war?  Were the secessionists
traitors and rebels to their sovereign, or were they patriots fighting
for the liberty and independence of their country and the right of
self-government?  All on both sides agreed that the nation is
sovereign; the dispute was as to the existence of the nation itself,
and the extent of its jurisdiction.  Doubtless, when a nation has a
generally recognized existence as an historical fact, most of the
difficulties in determining who are the sovereign people can be got
over; but the question here concerns the institution of government, and
determining who constitute society and have the right to meet in
person, or by their delegates in convention, to institute it.  This
question, so important, and at times so difficult, the theory of the
origin of government in the people collectively, or the nation, does
not solve, or furnish any means of solving.

But suppose this difficulty surmounted there is still another, and a
very grave one, to overcome.  The theory assumes that the people
collectively, "in their own native right and might," are sovereign.
According to it the people are ultimate, and free to do whatever they
please.  This sacrifices individual freedom. The origin of government
in a compact entered into by individuals, each with all and all with
each, sacrificed the rights of society, and assumed each individual to
be in himself an independent sovereignty.  If logically carried out,
there could be no such crime as treason, there could be no state, and
no public authority.  This new theory transfers to society the
sovereignty which that asserted for the individual, and asserts social
despotism, or the absolutism of the state.  It asserts with sufficient
energy public authority, or the right of the people to govern; but it
leaves no space for individual rights, which society must recognize,
respect, and protect.  This was the grand defect of the ancient
Graeco-Roman civilization.  The historian explores in vain the records
of the old Greek and Roman republics for any recognition of the rights
of individuals not held as privileges or concessions from the state.
Society recognized no limit to her authority, and the state claimed
over individuals all the authority of the patriarch over his household,
the chief over his tribe, or the absolute monarch over his subjects.
The direct and indirect influence of the body of freemen admitted to a
voice in public affairs, in determining the resolutions and action of
the state, no doubt tempered in practice to some extent the authority
of the state, and prevented acts of gross oppression; but in theory the
state was absolute, and the people individually were placed at the
mercy of the people collectively, or, rather, the majority of the
collective people.

Under ancient republicanism, there were rights of the state and rights
of the citizen, but no rights of man, held independently of society,
and not derived from God through the state.  The recognition of these
rights by modern society is due to Christianity: some say to the
barbarians, who overthrew the Roman empire; but this last opinion is
not well founded.  The barbarian chiefs and nobles had no doubt a
lively sense of personal freedom and independence, but for themselves
only.  They had no conception of personal freedom as a general or
universal right, and men never obtain universal principles by
generalizing particulars.  They may give a general truth a particular
application, but not a particular truth--understood to be a particular
truth--a general or universal application.  They are too good logicians
for that.  The barbarian individual freedom and personal independence
was never generalized into the doctrine of the rights of man, any more
than the freedom of the master has been generalized into the right of
his slaves to be free.  The doctrine of individual freedom before the
state is due to the Christian religion, which asserts the dignity and
worth of every human soul, the accountability to God of each man for
himself, and lays it down as law for every one that God is to be obeyed
rather than men.  The church practically denied the absolutism of the
state, and asserted for every man rights not held from the state, in
converting the empire to Christianity, in defiance of the state
authority, and the imperial edicts punishing with death the profession
of the Christian faith.  In this she practically, as well as
theoretically, overthrew state absolutism, and infused into modern
society the doctrine that every individual, even the lowest and
meanest, has rights which the state neither confers nor can abrogate;
and it will only be by extinguishing in modern society the Christian
faith, and obliterating all traces of Christian civilization, that
state absolutism can be revived with more than a partial and temporary
success.

The doctrine of individual liberty may be abused, and so explained as
to deny the rights of society, and to become pure individualism; but no
political system that runs to the opposite extreme, and absorbs the
individual in the state, stands the least chance of any general or
permanent success till Christianity is extinguished.  Yet the assertion
of principles which logically imply state absolutism is not entirely
harmless, even in Christian countries.  Error is never harmless, and
only truth can give a solid foundation on which to build. Individualism
and socialism are each opposed to the other, and each has only a
partial truth.  The state founded on either cannot stand, and society
will only alternate between the two extremes.  To-day it is torn by a
revolution in favor of socialism; to-morrow it will be torn by another
in favor of individualism, and without effecting any real progress by
either revolution.  Real progress can be secured only by recognizing
and building on the truth, not as it exists in our opinions or in our
theories, but as it exists in the world of reality, and independent of
our opinions.

Now, social despotism or state absolutism is not based on truth or
reality.  Society has certain rights over individuals, for she is a
medium of their communion with God, or through which they derive life
from God, the primal source of all life; but she is not the only medium
of man's life.  Man, as was said in the beginning, lives by communion
with God, and he communes with God in the creative act and the
Incarnation, through his kind, and, through nature.  This threefold
communion gives rise to three institutions--religion or the church,
society or the state, and property.  The life that man derives from God
through religion and property, is not derived from him through society,
and consequently so much of his life be holds independently of society;
and this constitutes his rights as a man as distinguished from his
rights as a citizen.  In relation to society, as not held from God
through her, these are termed his natural rights, which, she must hold
inviolable, and government protect for every one, whatever his
complexion or his social position.  These rights--the rights of
conscience and the rights of property, with all their necessary
implications--are limitations of the rights of society, and the
individual has the right to plead them against the state.  Society does
not confer them, and it cannot take them away, for they are at least as
sacred and as fundamental as her own.

But even this limitation of popular sovereignty is not all.  The people
can be sovereign only in the sense in which they exist and act.  The
people are not God, whatever some theorists may pretend--are not
independent, self-existent, and self-sufficing. They are as dependent
collectively as individually, and therefore can exist and act only as
second cause, never as first cause. They can, then, even in the limited
sphere of their sovereignty, be sovereign only in a secondary sense,
never absolute sovereign in their own independent right.  They are
sovereign only to the extent to which they impart life to the
individual members of society, and only in the sense in which she
imparts it, or is its cause.  She is not its first cause or creator,
and is the medial cause or medium through which they derive it from
God, not its efficient cause or primary source.  Society derives her
own life from God, and exists and acts only as dependent on him.  Then
she is sovereign over individuals only as dependent on God.  Her
dominion is then not original and absolute, but secondary and
derivative.

This third theory does not err in assuming that the people collectively
are more than the people individually, or in denying society to be a
mere aggregation of individuals with no life, and no rights but what it
derives from them; nor even in asserting that the people in the sense
of society are sovereign, but in asserting that they are sovereign in
their own native or underived right and might.  Society has not in
herself the absolute right to govern, because she has not the absolute
dominion either of herself or her members.  God gave to man dominion
over the irrational creation, for he made irrational creatures for man;
but he never gave him either individually or collectively the dominion
over the rational creation.  The theory that the people are absolutely
sovereign in their own independent right and might, as some zealous
democrats explain it, asserts the fundamental principle of despotism,
and all despotism is false, for it identifies the creature with the
Creator.  No creature is creator, or has the rights of creator, and
consequently no one in his own right is or can be sovereign. This third
theory, therefore, is untenable.

IV. A still more recent class of philosophers, if philosophers they may
be called, reject the origin of government in the people individually
or collectively.  Satisfied that it has never been instituted by a
voluntary and deliberate act of the people, and confounding government
as a fact with government as authority, maintain that government is a
spontaneous development of nature. Nature develops it as the liver
secretes bile, as the bee constructs her cell, or the beaver builds his
dam.  Nature, working by her own laws and inherent energy, develops
society, and society develops government.  That is all the secret.
Questions as to the origin of government or its rights, beyond the
simple positive fact, belong to the theological or metaphysical stage
of the development of nature, but are left behind when the race has
passed beyond that stage, and has reached the epoch of positive
science, in which all, except the positive fact, is held to be unreal
and non-existent. Government, like every thing else in the universe, is
simply a positive development of nature.  Science explains the laws and
conditions of the development, but disdains to ask for its origin or
ground in any order that transcends the changes of the world of space
and time.

These philosophers profess to eschew all theory, and yet they only
oppose theory to theory.  The assertion that reality for the human mind
is restricted to the positive facts of the sensible order, is purely
theoretic, and is any thing but a positive fact. Principles are as
really objects of science as facts, and it is only in the light of
principles that facts themselves are intelligible.  If the human mind
had no science of reality that transcends the sensible order, or the
positive fact, it could have no science at all.  As things exist only
in their principles or causes, so can they be known only in their
principles and causes; for things can be known only as they are, or as
they really exist.  The science that pretends to deduce principles from
particular facts, or to rise from the fact by way of reasoning to an
order that transcends facts, and in which facts have their origin, is
undoubtedly chimerical, and as against that the positivists are
unquestionably right.  But to maintain that man has no intelligence of
any thing beyond the fact, no intuition or intellectual apprehension of
its principle or cause, is equally chimerical.  The human mind cannot
have all science, but it has real science as far as it goes, and real
science is the knowledge of things as they are, not as they are not.
Sensible facts are not intelligible by themselves, because they do not
exist by themselves; and if the human mind could not penetrate beyond
the individual fact, beyond the mimetic to the methexic, or
transcendental principle, copied or imitated by the individual fact, it
could never know the fact itself.  The error of modern philosophers, or
philosopherlings, is in supposing the principle is deduced or inferred
from the fact, and in denying that the human mind has direct and
immediate intuition of it.

Something that transcends the sensible order there must be, or there
could be no development; and if we had no science of it, we could never
assert that development is development, or scientifically explain the
laws and conditions of development. Development is explication, and
supposes a germ which precedes it, and is not itself a development; and
development, however far it may be carried, can never do more than
realize the possibilities of the germ.  Development is not creation,
and cannot supply its own germ.  That at least must be given by the
Creator, for from nothing nothing can be developed.  If authority has
not its germ in nature, it cannot be developed from nature
spontaneously or otherwise.  All government has a governing will; and
without a will that commands, there is no government; and nature has in
her spontaneous developments no will, for she has no personality.
Reason itself, as distinguished from will, only presents the end and
the means, but does not govern; it prescribes a rule, but cannot ordain
a law.  An imperative will, the will of a superior who has the right to
command what reason dictates or approves, is essential to government;
and that will is not developed from nature, because it has no germ in
nature. So something above and beyond nature must be asserted, or
government itself cannot be asserted, even as a development. Nature is
no more self-sufficing than are the people, or than is the individual
man.

No doubt there is a natural law, which is law in the proper sense of
the word law; but this is a positive law under which nature is placed
by a sovereign above herself, and is never to be confounded with those
laws of nature so-called, according to which she is productive as
second cause, or produces her effects, which are not properly laws at
all.  Fire burns, water flows, rain falls, birds fly, fishes swim, food
nourishes, poisons kill, one substance has a chemical affinity for
another, the needle points to the pole, by a natural law, it is said;
that is, the effects are produced by an inherent and uniform natural
force. Laws in this sense are simply physical forces, and are nature
herself.  The natural law, in an ethical sense, is not a physical law,
is not a natural force, but a law impose by the Creator on all moral
creatures, that is, all creatures endowed with reason and free-will,
and is called natural because promulgated in natural reason, or the
reason common and essential to all moral creatures.  This is the moral
law.  It is what the French call le droit naturell, natural right, and,
as the theologians teach us, is the transcript of the eternal law, the
eternal will or reason of God.  It is the foundation of all law, and
all acts of a state that contravene it are, as St. Augustine maintains,
violences rather than laws.  The moral law is no development of nature,
for it is above nature, and is imposed on nature.  The only development
there is about it is in our understanding of it.

There is, of course, development in nature, for nature considered as
creation has been created in germ, and is completed only in successive
developments.  Hence the origin of space and time. There would have
been no space if there had been no external creation, and no time if
the creation had been completed externally at once, as it was in
relation to the Creator.  Ideal space is simply the ability of God to
externize his creative act, and actual space is the relation of
coexistence in the things created; ideal time is the ability of God to
create existences with the capacity of being completed by successive
developments, and actual time is the relation of these in the order of
succession, and when the existence is completed or consummated
development ceases, and time is no more.  In relation to himself the
Creator's works are complete from the first, and hence with him there
is no time, for there is no succession.  But in relation to itself
creation is incomplete, and there is room for development, which may be
continued till the whole possibility of creation is actualized.  Here
is the foundation of what is true in the modern doctrine of progress.
Man is progressive, because the possibilities of his nature are
successively unfolded and actualized.

Development is a fact, and its laws and conditions may be
scientifically ascertained and defined.  All generation is development,
as is all growth, physical, moral, or intellectual. But everything is
developed in its own order, and after its kind. The Darwinian theory of
the development of species is not sustained by science. The development
starts from the germ, and in the germ is given the law or principle of
the development. From the acorn is developed the oak, never the pine or
the linden.  Every kind generates its kind, never another.  But no
development is, strictly speaking, spontaneous, or the result alone of
the inherent energy or force of the germ developed. There is not only a
solidarity of race, but in some sense of all races, or species; all
created things are bound to their Creator, and to one another.  One and
the same law or principle of life pervades all creation, binding the
universe together in a unity that copies or imitates the unity of the
Creator.  No creature is isolated from the rest, or absolutely
independent of others.  All are parts of one stupendous whole, and each
depends on the whole, and the whole on each, and each on each.  All
creatures are members of one body, and members one of another.  The
germ of the oak is in the acorn, but the acorn left to itself alone can
never grow into the oak, any more than a body at rest can place itself
in motion.  Lay the acorn away in your closet, where it is absolutely
deprived of air, heat, and moisture, and in vain will you watch for its
germination.  Germinate it cannot without some external influence, or
communion, so to speak, with the elements from which it derives its
sustenance and support.

There can be no absolutely spontaneous development.  All things are
doubtless active, for nothing exists except in so far as it is an
active force of some sort; but only God himself alone suffices for his
own activity.  All created things are dependent, have not their being
in themselves, and are real only as they participate, through the
creative act, of the Divine being.  The germ can no more be developed
than it could exist without God, and no more develop itself than it
could create itself.  What is called the law of development is in the
germ; but that law or force can operate only in conjunction with
another force or other forces.  All development, as all growth, is by
accretion or assimilation.  The assimilating force is, if you will, in
the germ, but the matter assimilated comes and must come from abroad.
Every herdsman knows it, and knows that to rear his stock he must
supply them with appropriate food; every husbandman knows it, and knows
that to raise a crop of corn, he must plant the seed in a soil duly
prepared, and which will supply the gases needed for its germination,
growth, flowering, boiling, and ripening.  In all created things, in
all things not complete in themselves, in all save God, in whom there
is no development possible, for He is, as say the schoolmen, most pure
act, in whom there is no unactualized possibility, the same law holds
good.  Development is always the resultant of two factors, the one the
thing itself, the other some external force co-operating with it,
exciting it, and aiding it to act.

Hence the praemotio physica of the Thomists, and the praevenient and
adjuvant grace of the theologians, without which no one can begin the
Christian life, and which must needs be supernatural when the end is
supernatural.  The principle of life in all orders is the same, and
human activity no more suffices for itself in one order than in another.

Here is the reason why the savage tribe never rises to a civilized
state without communion in some form with a people already civilized,
and why there is no moral or intellectual development and progress
without education and instruction, consequently without instructors and
educators.  Hence the value of tradition; and hence, as the first man
could not instruct himself, Christian theologians, with a deeper
philosophy than is dreamed of by the sciolists of the age, maintain
that God himself was man's first teacher, or that he created Adam a
full-grown man, with all his faculties developed, complete, and in full
activity.  Hence, too, the heathen mythologies, which always contain
some elements of truth, however they may distort, mutilate, or travesty
them, make the gods the first teachers of the human race, and ascribe
to their instruction even the most simple and ordinary arts of
every-day life. The gods teach men to plough, to plant, to reap, to
work in iron, to erect a shelter from the storm, and to build a fire to
warm them and to cook their food.  The common sense, as well as the
common traditions of mankind, refuses to accept the doctrine that men
are developed without foreign aid, or progressive without divine
assistance. Nature of herself can no more develop government than it
can language.  There can be no language without society, and no society
without language.  There can be no government without society, and no
society without government of some sort.

But even if nature could spontaneously develop herself, she could never
develop an institution that has the right to govern, for she has not
herself that right.  Nature is not God, has not created us, therefore
has not the right of property in us.  She is not and cannot be our
sovereign.  We belong not to her, nor does she belong to herself, for
she is herself creature, and belongs to her Creator.  Not being in
herself sovereign, she cannot develop the right to govern, nor can she
develop government as a fact, to say nothing of its right, for
government, whether we speak of it as fact or as authority, is distinct
from that which is governed; but natural developments are nature, and
indistinguishable from her.  The governor and the governed, the
restrainer and the restrained, can never as such be identical.
Self-government, taken strictly, is a contradiction in terms.  When an
individual is said to govern himself, he is never understood to govern
himself in the sense in which he is governed.  He by his reason and
will governs or restrains his appetites and passions.  It is man as
spirit governing man as flesh, the spiritual mind governing the carnal
mind.

Natural developments cannot in all cases be even allowed to take their
own course without injury to nature herself.  "Follow nature" is an
unsafe maxim, if it means, leave nature to develop herself as she will,
and follow thy natural inclinations.  Nature is good, but inclinations
are frequently bad.  All our appetites and passions are given us for
good, for a purpose useful and necessary to individual and social life,
but they become morbid and injurious if indulged without restraint.
Each has its special object, and naturally seeks it exclusively, and
thus generates discord and war in the individual, which immediately
find expression in society, and also in the state, if the state be a
simple natural development.  The Christian maxim, Deny thyself, is far
better than the Epicurean maxim, Enjoy thyself, for there is no real
enjoyment without self-denial.  There is deep philosophy in Christian
asceticism, as the Positivists themselves are aware, and even insist.
But Christian asceticism aims not to destroy nature, as voluptuaries
pretend, but to regulate, direct, and restrain its abnormal
developments for its own good.  It forces nature in her developments to
submit to a law which is not in her, but above her.  The Positivists
pretend that this asceticism is itself a natural development, but that
cannot be a natural development which directs, controls, and restrains
natural development.

The Positivists confound nature at one time with the law of nature, and
at another the law of nature with nature herself, and take what is
called the natural law to be a natural development. Here is their
mistake, as it is the mistake of all who accept naturalistic theories.
Society, no doubt, is authorized by the law of nature to institute and
maintain government.  But the law of nature is not a natural
development, nor is it in nature, or any part of nature.  It is not a
natural force which operates in nature, and which is the developing
principle of nature.  Do they say reason is natural, and the law of
nature is only reason? This is not precisely the fact.  The natural law
is law proper, and is reason only in the sense that reason includes
both intellect and will, and nobody can pretend that nature in her
spontaneous developments acts from intelligence and volition. Reason,
as the faculty of knowing, is subjective and natural; but in the sense
in which it is coincident with the natural law, it is neither
subjective nor natural, but objective and divine, and is God affirming
himself and promulgating his law to his creature, man.  It is, at
least, an immediate participation of the divine by which He reveals
himself and His will to the human understanding, and is not natural,
but supernatural, in the sense that God himself is supernatural.  This
is wherefore reason is law, and every man is bound to submit or conform
to reason.

That legitimate governments are instituted under the natural law is
frankly conceded, but this is by no means the concession of government
as a natural development.  The reason and will of which the natural law
is the expression are the reason and will of God.  The natural law is
the divine law as much as the revealed law itself, and equally
obligatory.  It is not a natural force developing itself in nature,
like the law of generation, for instance, and therefore proceeding from
God as first cause, but it proceeds from God as final cause, and is,
therefore, theological, and strictly a moral law, founding moral rights
and duties.  Of course, all morality and all legitimate government rest
on this law, or, if you will, originate in it.  But not therefore in
nature, but in the Author of nature.  The authority is not the
authority of nature, but of Him who holds nature in the hollow of His
hand.

V. In the seventeenth century a class of political writers who very
well understood that no creature, no man, no number of men, not even,
nature herself, can be inherently sovereign, defended the opinion that
governments are founded, constituted, and clothed with their authority
by the direct and express appointment of God himself.  They denied that
rulers hold their power from the nation; that, however oppressive may
be their rule, that they are justiciable by any human tribunal, or that
power, except by the direct judgment of God, is amissible.  Their
doctrine is known in history as the doctrine of "the divine right of
kings, and passive obedience."  All power, says St. Paul, is from God,
and the powers that be are ordained of God, and to resist them is to
resist the ordination of God.  They must be obeyed for conscience' sake.

It would, perhaps, be rash to say that this doctrine had never been
broached before the seventeenth century, but it received in that
century, and chiefly in England, its fullest and most systematic
developments.  It was patronized by the Anglican divines, asserted by
James I. of England, and lost the Stuarts the crown of three kingdoms.
It crossed the Channel, into France, where it found a few hesitating
and stammering defenders among Catholics, under Louis XIV., but it has
never been very generally held, though it has had able and zealous
supporters. In England it was opposed by all the Presbyterians,
Puritans, Independents, and Republicans, and was forgotten or abandoned
by the Anglican divines themselves in the Revolution of 1688, that
expelled James II. and crowned William and Mary.  It was ably refuted
by the Jesuit Suarez in his reply to a Remonstrance for the Divine
Right of Kings by the James I.; and a Spanish monk who had asserted it
in Madrid, under Philip II., was compelled by the Inquisition to
retract it publicly in the place where he had asserted it.  All
republicans reject it, and the Church has never sanctioned it.  The
Sovereign Pontiffs have claimed and exercised the right to deprive
princes of their principality, and to absolve their subjects from the
oath of fidelity.  Whether the Popes rightly claimed and exercised that
power is not now the question; but their having claimed and exercised
it proves that the Church does not admit the inamissibility of power
and passive obedience; for the action of the Pope was judicial, not
legislative.  The Pope has never claimed the right to depose a prince
till by his own act he has, under the moral law or the constitution of
his state, forfeited his power, nor to absolve subjects from their
allegiance till their oath, according to its true intent and meaning,
has ceased to bind.  If the Church has always asserted with the Apostle
there is no power but from God--non est potestas nisi a Deo--she has
always through her doctors maintained that it is a trust to be
exercised for the public good, and is forfeited when persistently
exercised in a contrary sense.  St. Augustine, St. Thomas, and Suarez
all maintain that unjust laws are violences rather than laws, and do
not oblige, except in charity or prudence, and that the republic may
change its magistrates, and even its constitution, if it sees proper to
do so.

That God, as universal Creator, is Sovereign Lord and proprietor of all
created things or existences, visible or invisible, is certain; for the
maker has the absolute right to the thing made; it is his, and he may
do with it as he will.  As he is sole creator, he alone hath dominion;
and as he is absolute creator, he has absolute dominion over all the
things which he has made. The guaranty against oppression is his own
essential nature, is in the plenitude of his own being, which is the
plenitude of wisdom and goodness.  He cannot contradict himself, be
other than he is, or act otherwise than according to his own essential
nature.  As he is, in his own eternal and immutable essence, supreme
reason and supreme good, his dominion must always in its exercise be
supremely good and supremely reasonable, therefore supremely just and
equitable.  From him certainly is all power; he is unquestionably King
of kings, and Lord of lords.  By him kings reign and magistrates decree
just things.  He may, at his will, set up or pull down kings, rear or
overwhelm empires, foster the infant colony, and make desolate the
populous city. All this is unquestionably true, and a simple dictate of
reason common to all men.  But in what sense is it true?  Is it true in
a supernatural sense?  Or is it true only in the sense that it is true
that by him we breathe, perform any or all of our natural functions,
and in him live, and move, and have our being?

Viewed in their first cause, all things are the immediate creation of
God, and are supernatural, and from the point of view of the first
cause the Scriptures usually speak, for the great purpose and paramount
object of the sacred writers, as of religion itself, is to make
prominent the fact that God is universal creator, and supreme governor,
and therefore the first and final cause of all things.  But God creates
second causes, or substantial existences, capable themselves of acting
and producing effects in a secondary sense, and hence he is said to be
causa causarum, cause of causes.  What is done by these second causes
or creatures is done eminently by him, for they exist only by his
creative act, and produce only by virtue of his active presence, or
effective concurrence.  What he does through them or through their
agency is done by him, not immediately, but mediately, and is said to
be done naturally, as what he does immediately is said to be done
supernaturally.  Natural is what God does through second causes, which
he creates; supernatural is that which he does by himself alone,
without their intervention or agency.  Sovereignty, or the right to
govern, is in him, and he may at his will delegate it to men either
mediately or immediately, by a direct and express appointment, or
mediately through nature.  In the absence of all facts proving its
delegation direct and express, it must be assumed to be mediate,
through second causes.  The natural is always to be presumed, and the
supernatural is to be admitted only on conclusive proof.

The people of Israel had a supernatural vocation, and they received
their law, embracing their religious and civil constitution and their
ritual directly from God at the hand of Moses, and various individuals
from time to time appear to have been specially called to be their
judges, rulers, or kings.  Saul was so called, and so was David. David
and his line appear, also, to have been called not only to supplant
Saul and his line, but to have been supernaturally invested with the
kingdom forever; but it does not appear that the royal power with which
David and his line were invested was inamissible.  They lost it in the
Babylonish captivity, and never afterwards recovered it.  The Asmonean
princes were of another line, and when our Lord came the sceptre was in
the hands of Herod, an Idumean Or Edomite.  The promise made, to David
and his house is generally held by Christian commentators to have
received its fulfilment in the everlasting spiritual royalty of the
Messiah, sprung through Mary from David's line.

The Christian Church is supernaturally constituted and supernaturally
governed, but the persons selected to exercise powers supernaturally
defined, from the Sovereign Pontiff down to the humblest parish priest
are selected and inducted into office through human agency.  The
Gentiles very generally claimed to have received their laws from the
gods, but it does not appear, save in exceptional cases, that they
claimed that their princes were designated and held their powers by the
direct and express appointment of the god.  Save in the case of the
Jews, and that of the Church, there is no evidence that any particular
government exists or ever has existed by direct or express appointment,
or otherwise than by the action of the Creator through second causes,
or what is called his ordinary providence. Except David and his line,
there is no evidence of the express grant by the Divine Sovereign to
any individual or family, class or caste of the government of any
nation or country.  Even those Christian princes who professed to reign
"by the grace of God," never claimed that they received their
principalities from God otherwise than through his ordinary providence,
and meant by it little more than an acknowledgment of their dependence
on him, their obligation to use their power according to his law and
their accountability to him for the use they make of it.

The doctrine is not favorable to human liberty, for it recognizes no
rights of man in face of civil society.  It consecrates tyranny, and
makes God the accomplice of the tyrant, if we suppose all governments
have actually existed by his express appointment.  It puts the king in
the place of God, and requires us to worship in him the immediate
representative of the Divine Being.  Power is irresponsible and
inamissible, and however it may be abused, or however corrupt and
oppressive may be its exercise, there is no human redress.  Resistance
to power is resistance to God.  There is nothing for the people but
passive obedience and unreserved submission.  The doctrine, in fact,
denies all human government, and allows the people no voice in the
management of their own affairs, and gives no place for human activity.
It stands opposed to all republicanism, and makes power an hereditary
and indefeasible right, not a trust which he who holds it may forfeit,
and of which he may be deprived if he abuses it.




CHAPTER VI.

ORIGIN OF GOVERNMENT--CONCLUDED.


VI. The theory which derives the right of government from the direct
and express appointment of God is sometimes modified so as to mean that
civil authority is derived from God through the spiritual authority.
The patriarch combined in his person both authorities, and was in his
own household both priest and king, and so originally was in his own
tribe the chief, and in his kingdom the king.  When the two offices
became separated is not known.  In the time of Abraham they were still
united. Melchisedech, king of Salem, was both priest and king, and the
earliest historical records of kings present them as offering
sacrifices.  Even the Roman emperor was Pontifex Maximus as well as
Imperator, but that was so not because the two offices were held to be
inseparable, but because they were both conferred on the same person by
the republic.  In Egypt, in the time of Moses, the royal authority and
the priestly were separated and held by different persons.  Moses, in
his legislation for his nation, separated them, and instituted a
sacerdotal order or caste.  The heads of tribes and the heads of
families are, under his law, princes, but not priests, and the
priesthood is conferred on and restricted to his own tribe of Levi, and
more especially the family of his own brother Aaron.

The priestly office by its own nature is superior to the kingly, and in
all primitive nations with a separate, organized priesthood, whether a
true priesthood or a corrupt, the priest is held to be above the king,
elects or establishes the law by which is selected the temporal chief,
and inducts him into his office, as if he received his authority from
God through the priesthood. The Christian priesthood is not a caste,
and is transmitted by the election of grace, not as with the Israelites
and all sacerdotal nations, by natural Generation.  Like Him whose
priests they are, Christian priests are priests after the order of
Melchisedech, who was without priestly descent, without father or
mother of the priestly line.  But in being priests after the order of
Melchisedech, they are both priests and kings, as Melchisedech was, and
as was our Lord himself, to whom was given by his Father all power in
heaven and in earth.  The Pope, or Supreme Pontiff, is the vicar of our
Lord on earth, his representative--the representative not only of him
who is our invisible High-Priest, but of him who is King of kings and
Lord of lords, therefore of both the priestly and the kingly power.
Consequently, no one can have any mission to govern in the state any
more than in the church, unless derived from God directly or indirectly
through the Pope or Supreme Pontiff.  Many theologians and canonists in
the Middle Ages so held, and a few perhaps hold so still.  The bulls
and briefs of several Popes, as Gregory VII., Innocent Ill., Gregory
IX., Innocent IV., and Boniface VIII., have the appearance of favoring
it.

At one period the greater part of the medieval kingdoms and
principalities were fiefs of the Holy See, and recognized the Holy
Father as their suzerain.  The Pope revived the imperial dignity in the
person of Charlemagne, and none could claim that dignity in the Western
world unless elected and crowned by him, that is, unless elected
directly by the Pope or by electors designated by him, and acting under
his authority.  There can be no question that the spiritual is superior
to the temporal, and that the temporal is bound in the very nature of
things to conform to the spiritual, and any law enacted by the civil
power in contravention of the law of God is null and void from the
beginning.  This is what Mr. Seward meant by the higher law, a law
higher even than the Constitution of the United States. Supposing this
higher law, and supposing that kings and princes hold from God through
the spiritual society, it is very evident that the chief of that
society would have the right to deprive them, and to absolve their
subjects, as on several occasions he actually has done.

But this theory has never been a dogma of the Church, nor, to any great
extent, except for a brief period, maintained by theologians or
canonists.  The Pope conferred the imperial dignity on Charlemagne and
his successors, but not the civil power, at least out of the Pope's own
temporal dominions.  The emperor of Germany was at first elected by the
Pope, and afterwards by hereditary electors designated or accepted by
him, but the king of the Germans with the full royal authority could be
elected and enthroned without the papal intervention or permission.
The suzerainty of the Holy See over Italy, Naples, Aragon, Muscovy,
England, and other European states, was by virtue of feudal relations,
not by virtue of the spiritual authority of the Holy See or the
vicarship of the Holy Father.  The right to govern under feudalism was
simply an estate, or property; and as the church could acquire and hold
property, nothing prevented her holding fiefs, or her chief from being
suzerain.  The expressions in the papal briefs and bulls, taken in
connection with the special relations existing between the Pope and
emperor in the Middle Ages, and his relations with other states as
their feudal sovereign, explained by the controversies concerning
rights growing out of these relations, will be found to give no
countenance to the theory in question.

These relations really existed, and they gave the Pope certain temporal
rights in certain states, even the temporal supremacy, as he has still
in what is left him of the States of the Church; but they were
exceptional or accidental relations, not the universal and essential
relations between the church and the state.  The rights that grew out
of these relations were real rights, sacred and inviolable, but only
where and while the relations subsisted.  They, for the most part, grew
out of the feudal system introduced into the Roman empire by its
barbarian conquerors, and necessarily ceased with the political order
in which they originated.  Undoubtedly the church consecrated civil
rulers, but this did not imply that they received their power or right
to govern from God through her; but implied that their persons were
sacred, and that violence to them would be sacrilege; that they held
the Christian faith, and acknowledged themselves bound to protect it,
and to govern their subjects justly, according to the law of God.

The church, moreover, has always recognized the distinction of the two
powers, and although the Pope owes to the fact that he is chief of the
spiritual society, his temporal principality, no theologian or canonist
of the slightest respectability would argue that he derives his rights
as temporal sovereign from his rights as pontiff.  His rights as
pontiff depend on the express appointment of God; his rights as
temporal prince are derived from the same source from which other
princes derive their rights, and are held by the same tenure.  Hence
canonists have maintained that the subjects of other states may even
engage in war with the Pope as prince, without breach of their fidelity
to him as pontiff or supreme visible head of the church.

The church not only distinguishes between the two powers, but
recognizes as legitimate, governments that manifestly do not derive
from God through her.  St. Paul enjoins obedience to the Roman emperors
for conscience' sake, and the church teaches that infidels and heretics
may have legitimate government; and if she has ever denied the right of
any infidel or heretical prince, it has been on the ground that the
constitution and laws of his principality require him to profess and
protect the Catholic faith.  She tolerates resistance in a non-Catholic
state no more than in a Catholic state to the prince; and if she has
not condemned and cut off from her communion the Catholics who in our
struggle have joined the Secessionists and fought in their ranks
against the United States, it is because the prevalence of the doctrine
of State sovereignty has seemed to leave a reasonable doubt whether
they were really rebels fighting against their legitimate sovereign or
not.

No doubt, as the authority of the church is derived immediately from
God in a supernatural manner, and as she holds that the state derives
its authority only mediately from him, in a natural mode, she asserts
the superiority of her authority, and that, in case of conflict between
the two powers, the civil must yield. But this is only saying that
supernatural is above natural. But--and this is the important
point--she does not teach, nor permit the faithful to hold, that the
supernatural abrogates the natural, or in any way supersedes it.
Grace, say the theologians, supposes nature, gratia supponit naturam.
The church in the matter of government accepts the natural, aids it,
elevates it, and is its firmest support.

VII. St. Augustine, St. Gregory Magnus, St. Thomas, Bellarmin, Suarez,
and the theologians generally, hold that princes derive their power
from God through the people, or that the people, though not the source,
are the medium of all political authority, and therefore rulers are
accountable for the use they make of their power to both God and the
people.

This doctrine agrees with the democratic theory in vesting sovereignty
in the people, instead of the king or the nobility, a particular
individual, family, class, or caste; and differs from it, as democracy
is commonly explained, in understanding by the people, the people
collectively, not individually--the organic people, or people fixed to
a given territory, not the people as a mere population--the people in
the republican sense of the word nation, not in the barbaric or
despotic sense; and in deriving the sovereignty from God, from whom is
all power, and except from whom there is and can be no power, instead
of asserting it as the underived and indefeasible right of the people
in their "own native right and might."  The people not being God, and
being only what philosophers call a second cause, they are and can be
sovereign only in a secondary and relative sense.  It asserts the
divine origin of power, while democracy asserts its human origin. But
as, under the law of nature, all men are equal, or have equal rights as
men, one man has and can have in himself no right to govern another;
and as man is never absolutely his own, but always and everywhere
belongs to his Creator, it is clear that no government originating in
humanity alone can be a legitimate government.  Every such government
is founded on the assumption that man is God, which is a great
mistake--is, in fact, the fundamental sophism which underlies every
error and every sin.

The divine origin of government, in the sense asserted by Christian
theologians, is never found distinctly set forth in the political
writings of the ancient Greek and Roman writers. Gentile philosophy had
lost the tradition of creation, as some modern philosophers, in
so-called Christian nations, are fast losing it, and were as unable to
explain the origin of government as they were the origin of man himself.

Even Plato, the profoundest of all ancient philosophers, and the most
faithful to the traditionary wisdom of the race, lacks the conception
of creation, and never gets above that of generation and formation.
Things are produced by the Divine Being impressing his own ideas,
eternal in his own mind, on a pre-existing matter, as a seal on wax.
Aristotle teaches substantially the same doctrine.  Things eternally
exist as matter and form, and all the Divine Intelligence does, is to
unite the form to the matter, and change it, as the schoolmen say, from
materia informis to materia formata.  Even the Christian Platonists and
Peripatetics never as philosophers assert creation; they assert it,
indeed, but as theologians, as a fact of revelation, not as a fact of
science; and hence it is that their theology and their philosophy never
thoroughly harmonize, or at least are not shown to harmonize throughout.

Speaking generally, the ancient Gentile philosophers were pantheists,
and represented the universe either as God or as an emanation from God.
They had no proper conception of Providence, or the action of God in
nature through natural agencies, or as modern physicists say, natural
laws.  If they recognized the action of divinity at all, it was a
supernatural or miraculous intervention of some god.  They saw no
divine intervention in any thing naturally explicable, or explicable by
natural laws. Having no conception of the creative act, they could have
none of its immanence, or the active and efficacious presence of the
Creator in all his works, even in the action of second causes
themselves.  Hence they could not assert the divine origin of
government, or civil authority, without supposing it supernaturally
founded, and excluding all human and natural agencies from its
institution.  Their writings may be studied with advantage on the
constitution of the state, on the practical workings of different forms
of government, as well as on the practical administration of affairs,
but never on the origin of the state, and the real ground of its
authority.

The doctrine is derived from Christian theology, which teaches that
there is no power except from God, and enjoins civil obedience as a
religious duty.  Conscience is accountable to God alone, and civil
government, if it had only a natural or human origin, could not bind
it.  Yet Christianity makes the civil law, within its legitimate
sphere, as obligatory on conscience as the divine law itself, and no
man is blameless before God who is not blameless before the state.  No
man performs faithfully his religious duties who neglects his civil
duties, and hence, the law of the church allows no one to retire from
the world and enter a religious order, who has duties that bind him or
her to the family or the state; though it is possible that the law is
not always strictly observed, and that individuals sometimes enter a
convent for the sake of getting rid of those duties, or the equally
important duty of taking care of themselves.  But by asserting the
divine origin of government, Christianity consecrates civil authority,
clothes it with a religious character, and makes civil disobedience,
sedition, insurrection, rebellion, revolution, civil turbulence of any
sort or degree, sins against God as well as crimes against the state.
For the same reason she makes usurpation, tyranny, oppression of the
people by civil rulers, offences against God as well as against
society, and cognizable by the spiritual authority.

After the establishment of the Christian church, after its public
recognition, and when conflicting claims arose between the two
powers--the civil and the ecclesiastical--this doctrine of the divine
origin of civil government was abused, and turned against the church
with most disastrous consequences.  While the Roman Empire of the West
subsisted, and even after its fall, so long as the emperor of the East
asserted and practically maintained his authority in the Exarchate of
Ravenna and the Duchy of Rome, the Popes comported themselves, in civil
matters, as subjects of the Roman emperor, and set forth no claim to
temporal independence. But when the emperor had lost Rome, and all his
possessions in Italy, had abandoned them, or been deprived of them by
the barbarians, and ceased to make any efforts to recover them, the
Pope was no longer a subject, even in civil matters, of the emperor,
and owed him no civil allegiance.  He became civilly independent of the
Roman Empire, and had only spiritual relations with it.  To the new
powers that sprang up in Europe he appears never to have acknowledged
any civil subjection, and uniformly asserted, in face of them, his
civil as well as spiritual independence.

This civil independence the successors of Charlemagne, who pretended to
be the successors of the Roman Emperors of the West, and called their
empire the Holy Roman Empire, denied, and maintained that the Pope owed
them civil allegiance, or that, in temporals, the emperor was the
Pope's superior.  If, said the emperor, or his lawyers for him, the
civil power is from God, as it must be, since non est potestas nisi a
Deo, the state stands on the same footing with the church, and the
imperial power emanates from as high a source as the Pontifical. The
emperor is then as supreme in temporals as the Pope in spirituals, and
as the emperor is subject to the pope in spirituals, so must the Pope
be subject to the emperor in temporals.  As at the time when the
dispute arose, the temporal interests of churchmen were so interwoven
with their spiritual rights, the pretensions of the emperor amounted
practically to the subjection in spirituals as well as temporals of the
ecclesiastical authority to the civil, and absorbed the church in the
state, the reasoning was denied, and churchmen replied: The Pope
represents the spiritual order, which is always and everywhere supreme
over the temporal, since the spiritual order is the divine sovereignty
itself.  Always and everywhere, then, is the Pope independent of the
emperor, his superior, and to subject him in any thing to the emperor
would be as repugnant to reason as to subject the soul to the body, the
spirit to the flesh, heaven to earth, or God to man.

If the universal supremacy claimed for the Pope, rejoined the
imperialists, be conceded, the state would be absorbed in the church,
the autonomy of civil society would be destroyed, and civil rulers
would have no functions but to do the bidding of the clergy.  It would
establish a complete theocracy, or, rather, clerocracy, of all possible
governments the government the most odious to mankind, and the most
hostile to social progress.  Even the Jews could not, or would not,
endure it, and prayed God to give them a king, that they might be like
other nations.

In the heat of the controversy neither party clearly and distinctly
perceived the true state of the question, and each was partly right and
partly wrong.  The imperialists wanted room for the free activity of
civil society, the church wanted to establish in that society the
supremacy of the moral order, or the law of God, without which
governments can have no stability, and society no real well-being.  The
real solution of the difficulty was always to be found in the doctrine
of the church herself, and had been given time and again by her most
approved theologians.  The Pope, as the visible head of the spiritual
society, is, no doubt, superior to the emperor, not precisely because
he represents a superior order, but because the church, of which he is
the visible chief, is a supernatural institution, and holds immediately
from God; whereas civil society, represented by the emperor, holds from
God only mediately, through second causes, or the people.  Yet, though
derived from God only through the people, civil authority still holds
from God, and derives its right from Him through another channel than
the church or spiritual society, and, therefore, has a right, a
sacredness, which the church herself gives not, and must recognize and
respect.  This she herself teaches in teaching that even infidels, as
we have seen, may have legitimate government, and since, though she
interprets and applies the law of God, both natural and revealed, she
makes neither.

Nevertheless, the imperialists or the statists insisted on their false
charge against the Pope, that he labored to found a purely theocratic
or clerocratic government, and finding themselves unable to place the
representative of the civil society on the same level with the
representative of the spiritual, or to emancipate the state from the
law of God while they conceded the divine origin or right of
government, they sought to effect its independence by asserting for it
only a natural or purely human origin.  For nearly two centuries the
most popular and influential writers on government have rejected the
divine origin and ground of civil authority, and excluded God from the
state. They have refused to look beyond second causes, and have labored
to derive authority from man alone.  They have not only separated the
state from the church as an external corporation, but from God as its
internal lawgiver, and by so doing have deprived the state of her
sacredness, inviolability, or hold on the conscience, scoffed at
loyalty as a superstition, and consecrated not civil authority, but
what is called "the right of insurrection."  Under their teaching the
age sympathizes not with authority in its efforts to sustain itself and
protect society, but with those who conspire against it--the
insurgents, rebels, revolutionists seeking its destruction.  The
established government that seeks to enforce respect for its legitimate
authority and compel obedience to the laws, is held to be despotic,
tyrannical, oppressive, and resistance to it to be obedience to God,
and a wild howl rings through Christendom against the prince that will
not stand still and permit the conspirators to cut his throat. There is
hardly a government now in the civilized world that can sustain itself
for a moment without an armed force sufficient to overawe or crush the
party or parties in permanent conspiracy against it.

This result is not what was aimed at or desired, but it is the logical
or necessary result of the attempt to erect the state on atheistical
principles.  Unless founded on the divine sovereignty, authority can
sustain itself only by force, for political atheism recognizes no right
but might.  No doubt the politicians have sought an atheistical, or
what is the same thing, a purely human, basis for government, in order
to secure an open field for human freedom and activity, or individual
or social progress.  The end aimed at has been good, laudable even, but
they forgot that freedom is possible only with authority that protects
it against license as well as against despotism, and that there can be
no progress where there is nothing that is not progressive.  In civil
society two things are necessary--stability and movement. The human is
the element of movement, for in it are possibilities that can be only
successively actualized.  But the element of stability can be found
only in the divine, in God, in whom there is no unactualized
possibility, who, therefore, is immovable, immutable, and eternal.  The
doctrine that derives authority from God through the people, recognizes
in the state both of these elements, and provides alike for stability
and progress.

This doctrine is not mere theory; it simply states the real order of
things.  It is not telling what ought to be, but what is in the real
order.  It only asserts for civil government the relation to God which
nature herself holds to him, which the entire universe holds to the
Creator.  Nothing in man, in nature, in the universe, is explicable
without the creative act of God, for nothing exists without that act.
That God "in the beginning created heaven and earth," is the first
principle of all science as of all existences, in politics no less than
in theology.  God and creation comprise all that is or exists, and
creation, though distinguishable from God as the act from the actor, is
inseparable from him, "for in Him we live and move and have our being."
All creatures are joined to him by his creative act, and exist only as
through that act they participate of his being. Through that act he is
immanent as first cause in all creatures and in every act of every
creature.  The creature deriving from his creative act can no more
continue to exist than it could begin to exist without it.  It is as
bad philosophy as theology, to suppose that God created the universe,
endowed it with certain laws of development or activity, wound it up,
gave it a jog, set it agoing, and then left it to go of itself.  It
cannot go of itself, because it does not exist of itself.  It did not
merely not begin to exist, but it cannot continue to exist, without the
creative act.  Old Epicurus was a sorry philosopher, or rather, no
philosopher at all.  Providence is as necessary as creation, or rather,
Providence is only continuous creation, the creative act not suspended
or discontinued, or not passing over from the creature and returning to
God.

Through the creative act man participates of God, and he can continue
to exist, act, or live only by participating through it of his divine
being.  There is, therefore, something of divinity, so to speak, in
every creature, and therefore it is that God is worshipped in his works
without idolatry.  But he creates substantial existences capable of
acting as second causes.  Hence, in all living things there is in their
life a divine element and a natural element; in what is called human
life, there are the divine and the human, the divine as first and the
human as second cause, precisely what the doctrine of the great
Christian theologians assert to be the fact with all legitimate or real
government.  Government cannot exist without the efficacious presence
of God any more than man himself, and men might as well attempt to
build up a world as to attempt to found a state without God.  A
government founded on atheistical principles were less than a castle in
the air.  It would have nothing to rest on, would not be even so much
as "the baseless fabric of a vision," and they who imagine that they
really do exclude God from their politics deceive themselves; for they
accept and use principles which, though they know it not, are God.
What they call abstract principles, or abstract forms of reason,
without which there were no logic, are not abstract, but the real,
living God himself. Hence government, like man himself, participates of
the divine being, and, derived from God through the people, it at the
same time participates of human reason and will, thus reconciling
authority with freedom, and stability with progress.

The people, holding their authority from God, hold it not as an
inherent right, but as a trust from Him, and are accountable to Him for
it.  It is not their own.  If it were their own they might do with it
as they pleased, and no one would have any right to call them to an
account; but holding it as a trust from God, they are under his law,
and bound to exercise it as that law prescribes.  Civil rulers, holding
their authority from God through the people, are accountable for it
both to Him and to them.  If they abuse it they are justiciable by the
people and punishable by God himself.

Here is the guaranty against tyranny, oppression, or bad government, or
what in modern times is called the responsibility of power.  At the
same time the state is guarantied against sedition, insurrection,
rebellion, revolution, by the elevation of the civic virtues to the
rank of religious, virtues, and making loyalty a matter of conscience.
Religion is brought to the aid of the state, not indeed as a foreign
auxiliary, but as integral in the political order itself.  Religion
sustains the state, not because it externally commands us to obey the
higher powers, or to be submissive to the powers that be, not because
it trains the people to habits of obedience, and teaches them to be
resigned and patient under the grossest abuses of power, but because it
and the state are in the same order, and inseparable, though distinct,
parts of one and the same whole.  The church and the state, as
corporations or external governing bodies, are indeed separate in their
spheres, and the church does not absorb the state, nor does the state
the church; but both are from God, and both work to the same end, and
when each is rightly understood there is no antithesis or antagonism
between them. Men serve God in serving the state as directly as in
serving the church.  He who dies on the battle-field fighting for his
country ranks with him who dies at the stake for his faith.  Civic
virtues are themselves religious virtues, or at least virtues without
which there are no religious virtues, since no man who loves not his
brother does or can love God.

The guaranties offered the state or authority are ample, because it has
not only conscience, moral sentiment, interest, habit, and the via
inertia of the mass, but the whole physical force of the nation, at its
command.  The individual has, indeed, only moral guaranties against the
abuse of power by the sovereign people, which may no doubt sometimes
prove insufficient.  But moral guaranties are always better than none,
and there are none where the people are held to be sovereign in their
own native right and might, organized or unorganized, inside or outside
of the constitution, as most modern democratic theorists maintain;
since, if so, the will of the people, however expressed, is the
criterion of right and wrong, just and unjust, true and false, is
infallible and impeccable, and no moral right can ever be pleaded
against it; they are accountable to nobody, and, let them do what they
please, they can do no wrong.  This would place the individual at the
mercy of the state, and deprive him of all right to complain, however
oppressed or cruelly treated.  This would establish the absolute
despotism of the state, and deny every thing like the natural rights of
man, or individual and personal freedom, as has already been shown.
Now as men do take part in government, and as men, either individually
or collectively, are neither infallible nor impeccable, it is never to
be expected, under any possible constitution or form of government,
that authority will always be wisely and justly exercised, that wrong
will ever be done, and the rights of individuals never in any instance
be infringed; but with the clear understanding that all power is of
God, that the political sovereignty is vested in the people or the
collective body, that the civil rulers hold from God through them and
are responsible to Him through them, and justiciable by them, there is
all the guaranty against the abuse of power by the nation, the
political or organic people, that the nature of the case admits.  The
nation may, indeed, err or do wrong, but in the way supposed you get in
the government all the available wisdom and virtue the nation has, and
more is never, under any form or constitution of government,
practicable or to be expected.

It is a maxim with constitutional statesmen, that "the king reigns, not
governs."  The people, though sovereign under God, are not the
government.  The government is in their name and by virtue of authority
delegated from God through them, but they are not it, are not their own
ministers.  It is only when the people forget this and undertake to be
their own ministers and to manage their own affairs immediately by
themselves instead of selecting agents to do it for them, and holding
their agents to a strict account for their management, that they are
likely to abuse their power or to sanction injustice.  The nation may
be misled or deceived for a moment by demagogues, those popular
courtiers, but as a rule it is disposed to be just and to respect all
natural rights.  The wrong is done by individuals who assume to speak
in their name, to wield their power, and to be themselves the state.
L'etat, c'est moi. I am the state, said Louis XIV. of France, and while
that was conceded the French nation could have in its government no
more wisdom or virtue than he possessed, or at least no more than he
could appreciate.  And under his government France was made responsible
for many deeds that the nation would never have sanctioned, if it bad
been recognized as the depositary of the national sovereignty, or as
the French state, and answerable to God for the use it made of
political power, or the conduct of its government.

But be this as it may, there evidently can be no physical force in the
nation to coerce the nation itself in case it goes wrong, for if the
sovereignty vests in the nation, only the nation can rightly command or
authorize the employment of force, and all commissions must run in its
name.  Written constitutions alone will avail little, for they emanate
from the people, who can disregard them, if they choose, and alter or
revoke them at will. The reliance for the wisdom and justice of the
state must after all be on moral guaranties.  In the very nature of the
case there are and can be no other.  But these, placed in a clear
light, with an intelligent and religious people, will seldom be found
insufficient.  Hence the necessity for the protection, not of authority
simply or chiefly, but of individual rights and the liberty of religion
and intelligence in the nation, of the general understanding that the
nation holds its power to govern as a trust from God, and that to God
through the people all civil rulers are strictly responsible.  Let the
mass of the people in any nation lapse into the ignorance and barbarism
of atheism, or lose themselves in that supreme sophism called
pantheism, the grand error of ancient as well as of modern gentilism,
and liberty, social or political, except that wild kind of liberty, and
perhaps not even that should be excepted, which obtains among savages,
would be lost and irrecoverable.

But after all, this theory does not meet all the difficulties of the
case.  It derives sovereignty from God, and thus asserts the divine
origin of government in the sense that the origin of nature is divine;
it derives it from God through the people, collectively, or as society,
and therefore concedes it a natural, human, and social element, which
distinguishes it from pure theocracy.  It, however, does not explain
how authority comes from God to the people.  The ruler, king, prince,
or emperor, holds from God through the people, but how do the people
themselves hold from God?  Mediately or immediately?  If mediately,
what is the medium?  Surely not the people themselves. The people can
no more be the medium than the principle of their own sovereignty. If
immediately, then God governs in them as he does in the church, and no
man is free to think or act contrary to popular opinion, or in any case
to question the wisdom or justice of any of the acts of the state,
which is arriving at state absolutism by another process.  Besides,
this would theoretically exclude all human or natural activity, all
human intelligence and free-will from the state, which were to fall
into either pantheism or atheism.

VIII. The right of government to govern, or political authority, is
derived by the collective people or society, from God through the law
of nature.  Rulers hold from God through the people or nation, and the
people or nation hold from God through the natural law.  How nations
are founded or constituted, or a particular people becomes a sovereign
political people, invested with the rights of society, will be
considered in following chapters.  Here it suffices to say that
supposing a political people or nation, the sovereignty vests in the
community, not supernaturally, or by an external supernatural
appointment, as the clergy hold their authority, but by the natural
law, or law by which God governs the whole moral creation.

They who assert the origin of government in nature are right, so far as
they derive it from God through the law of nature, and are wrong only
when they understand by the law of nature the physical force or forces
of nature, which are not laws in the primary and proper sense of the
term.  The law of nature is not the order or rule of the divine action
in nature which is rightfully called providence, but is, as has been
said, law in its proper and primary sense, ordained by the Author of
nature, as its sovereign and supreme Lawgiver, and binds all of his
creatures who are endowed with reason and free-will, and is called
natural, because promulgated through the reason common to all men.
Undoubtedly, it was in the first instance, to the first man,
supernaturally promulgated, as it is republished and confirmed by
Christianity, as an integral part of the Christian code itself.  Man
needs even yet instruction in relation to matters lying within the
range of natural reason, or else secular schools, colleges, and
universities would be superfluous, and manifestly the instructor of the
first man could have been only the Creator himself.

The knowledge of the natural law has been transmitted from Adam to us
through two channels--reason, which is in every man, and in immediate
relation with the Creator, and the traditions of the primitive
instruction embodied in language and what the Romans call jus gentium,
or law common to all civilized nations.  Under this law, whose
prescriptions are promulgated through reason and embodied in universal
jurisprudence, nations are providentially constituted, and invested
with political sovereignty; and as they are constituted under this law
and hold from God through it, it defines their respective rights and
powers, their limitation and their extent.

The political sovereignty, under the law of nature, attaches to the
people, not individually, but collectively, as civil or political
society.  It is vested in the political community or nation, not in an
individual, or family, or a class, because, under the natural law, all
men are equal, as they are under the Christian law, and one man has, in
his own right, no authority over another.  The family has in the father
a natural chief, but political society has no natural chief or chiefs.
The authority of the father is domestic, not political, and ceases when
his children have attained to majority, have married and become heads
of families themselves, or have ceased to make part of the paternal
household.  The recognition of the authority of the father beyond the
limits of his own household, is, if it ever occurs, by virtue of the
ordinance, the consent, express or tacit, of the political society.
There are no natural-born political chiefs, and wherever we find men
claiming or acknowledged to be such, they are either usurpers, what the
Greeks called tyrants, or they are made such by the will or
constitution of the people or the nation.

Both monarchy and aristocracy were, no doubt, historically developed
from the authority of the patriarchs, and have unquestionably been
sustained by an equally false development of the right of property,
especially landed property.  The owner of the land, or he who claimed
to own it, claimed as an incident of his ownership the right to govern
it, and consequently to govern all who occupied it.  But however valid
may be the landlord's title to the soil, and it is doubtful if man can
own any thing in land beyond the usufruct, it can give him under the
law of nature no political right.  Property, like all natural rights,
is entitled by the natural law to protection, but not to govern.
Whether it shall be made a basis of political power or not is a
question of political prudence, to be determined by the supreme
political authority.  It was the basis, and almost exclusive basis, in
the Middle Ages, under feudalism, and is so still in most states.
France and the United States are the principal exceptions in
Christendom.  Property alone, or coupled with birth, is made elsewhere
in some form a basis of political power, and where made so by the
sovereign authority, it is legitimate, but not wise nor desirable; for
it takes from the weak and gives to the strong.  The rich have in their
riches advantages enough over the poor, without receiving from the
state any additional advantage.  An aristocracy, in the sense of
families distinguished by birth, noble and patriotic services, wealth,
cultivation, refinement, taste, and manners, is desirable in every
nation, is a nation's ornament, and also its chief support, but they
need and should receive no political recognition.  They should form no
privileged class in the state or political society.




CHAPTER VII

CONSTITUTION OF GOVERNMENT.


The Constitution is twofold: the constitution of the state or nation,
and the constitution of the government.  The constitution of the
government is, or is held to be, the work of the nation itself; the
constitution of the state, or the people of the state, is, in its
origin at least, providential, given by God himself, operating through
historical events or natural causes. The one originates in law, the
other in historical fact.  The nation must exist, and exist as a
political community, before it can give itself a constitution; and no
state, any more than an individual, can exist without a constitution of
some sort.

The distinction between the providential constitution of the people and
the constitution of the government, is not always made.  The
illustrious Count de Maistre, one of the ablest political philosophers
who wrote in the last century, or the first quarter of the present, in
his work on the Generative Principle of Political Constitutions,
maintains that constitutions are generated, not made, and excludes all
human agency from their formation and growth.  Disgusted with French
Jacobinism, from which he and his kin and country had suffered so much,
and deeply wedded to monarchy in both  church and state, he had the
temerity to maintain that God creates expressly royal families for the
government of nations, and that it is idle for a nation to expect a
good government without a king who has descended from one of those
divinely created royal families.  It was with some such thought, most
likely, that a French journalist, writing home from the United States,
congratulated the American people on having a Bonaparte in their army,
so that when their democracy failed, as in a few years it was sure to
do, they would have a descendant of a royal house to be their king or
emperor.  Alas! the Bonaparte has left us, and besides, he was not the
descendant of a royal house, and was, like the present Emperor of the
French, a decided parvenu.  Still, the Emperor of the French, if only a
parvenu, bears himself right imperially among sovereigns, and has no
peer among any of the descendants of the old royal families of Europe.

There is a truth, however, in De Maistre's doctrine that constitutions
are generated, or developed, not created de novo, or made all at once.
But nothing is more true than that a nation can alter its constitution
by its own deliberate and voluntary action, and many nations have done
so, and sometimes for the better, as well as for the worse.  If the
constitution once given is fixed and unalterable, it must be wholly
divine, and contain no human element, and the people have and can have
no hand in their own government--the fundamental objection to the
theocratic constitution of society.  To assume it is to transfer to
civil society, founded by the ordinary providence of God, the
constitution of the church, founded by his gracious or supernatural
providence, and to maintain that the divine sovereignty governs in
civil society immediately and supernaturally, as in the spiritual
society.  But such is not the fact.  God governs the nation by the
nation itself, through its own reason and free-will.  De Maistre is
right only as to the constitution the nation starts with, and as to the
control which that constitution necessarily exerts over the
constitutional changes the nation can successfully introduce.

The disciples of Jean Jacques Rousseau recognize no providential
constitution, and call the written instrument drawn up by a convention
of sovereign individuals the constitution, and the only constitution,
both of the people and the government.  Prior to its adoption there is
no government, no state, no political community or authority.
Antecedently to it the people are an inorganic mass, simply
individuals, without any political or national solidarity.  These
individuals, they suppose, come together in their own native right and
might, organize themselves into a political community, give themselves
a constitution, and draw up and vote rules for their government, as a
number of individuals might meet in a public hall and resolve
themselves into a temperance society or a debating club.  This might do
very well if the state were, like the temperance society or debating
club, a simple voluntary association, which men are free to join or not
as they please, and which they are bound to obey no farther and no
longer than suits their convenience.  But the state is a power, a
sovereignty; speaks to all within its jurisdiction with an imperative
voice; commands, and may use physical force to compel obedience, when
not voluntarily yielded. Men are born its subjects, and no one can
withdraw from it without its express or tacit permission, unless for
causes that would justify resistance to its authority.  The right of
subjects to denationalize or expatriate themselves, except to escape a
tyranny or an oppression which would forfeit the rights of power and
warrant forcible resistance to it, does not exist, any more than the
right of foreigners to become citizens, unless by the consent and
authorization of the sovereign; for the citizen or subject belongs to
the state, and is bound to it.

The solidarity of the individuals composing the population of a
territory or country under one political head is a truth; but "the
solidarity of peoples," irrespective of the government or political
authority of their respective countries, so eloquently preached a few
years since by the Hungarian Kossuth, is not only a falsehood, but a
falsehood destructive of all government and of all political
organization.  Kossuth's doctrine supposes the people, or the
populations of all countries, are, irrespective of their governments,
bound together in solido, each for all and all for each, and therefore
not only free, but bound, wherever they find a population struggling
nominally for liberty against its government, to rush with arms in
their hands to its assistance--a doctrine clearly incompatible with any
recognition of political authority or territorial rights.  Peoples or
nations commune with each other only through the national authorities,
and when the state proclaims neutrality or non-intervention, all its
subjects are bound to be neutral, and to abstain from all intervention
on either side.  There may be, and indeed there is, a solidarity, more
or less distinctly recognized, of Christian nations, but of the
populations with and through their governments, not without them.
Still more strict is the solidarity of all the individuals of one and
the same nation.  These are all bound together, all for each and each
for all.  The individual is born into society and under the government,
and without the authority of the government, which represents all and
each, he cannot release himself from his obligations.  The state is
then by no means a voluntary association.  Every one born or adopted
into it is bound to it, and cannot without its permission withdraw from
it, unless, as just said, it is manifest that he can have under it no
protection for his natural rights as a man, more especially for his
rights of conscience.  This is Vattel's doctrine, and the dictate of
common sense.

The constitution drawn up, ordained, and established by a nation for
itself is a law--the organic or fundamental law, if you will, but a
law, and is and must be the act of the sovereign power. That sovereign
power must exist before it can act, and it cannot exist, if vested in
the people or nation, without a constitution, or without some sort of
political organization of the people or nation.  There must, then, be
for every state or nation a constitution anterior to the constitution
which the nation gives itself, and from which the one it gives itself
derives all its vitality and legal force.

Logic and historical facts are here, as elsewhere, coincident, for
creation and providence are simply the expression of the Supreme Logic,
the Logos, by whom all things are made.  Nations have originated in
various ways, but history records no instance of a nation existing as
an inorganic mass organizing itself into a political community.  Every
nation, at its first appearance above the horizon, is found to have an
organization of some sort. This is evident from the only ways in which
history shows us nations originating.  These ways are: 1. The union of
families in the tribe. 2. The union of tribes in the nation. 3. The
migration of families, tribes, or nations in search of new settlements.
4. Colonization, military, agricultural, commercial, industrial,
religious, or penal. 5. War and conquest. 6. The revolt, separation,
and independence of provinces. 7. The intermingling of the conquerors
and conquered, and by amalgamation forming a new people.  These are all
the ways known to history, and in none of these ways does a people,
absolutely destitute of all organization, constitute itself a state,
and institute and carry on civil government.

The family, the tribe, the colony are, if incomplete, yet incipient
states, or inchoate nations, with an organization, individuality, and a
centre of social life of their own.  The families and tribes that
migrate in search of new settlements carry with them their family and
tribal organizations, and retain it for a long time.  The Celtic tribes
retained it in Gaul till broken up by the Roman conquest, under Caesar
Augustus; in Ireland, till the middle of the seventeenth century; and
in Scotland, till the middle of the eighteenth.  It subsists still in
the hordes of Tartary, the Arabs of the Desert, and the Berbers or
Kabyles of Africa.

Colonies, of whatever description, have been founded, if not by, at
least under, the authority of the mother country, whose political
constitution, laws, manners, and customs they carry with them.  They
receive from the parent state a political organization, which, though
subordinate, yet constitutes them embryonic states, with a unity,
individuality, and centre of public life in themselves, and which, when
they are detached and recognized as independent, render them complete
states.  War and conquest effect great national changes, but do not,
strictly speaking, create new states.  They simply extend and
consolidate the power of the conquering state.

Provinces revolt and become independent states or nations, but only
when they have previously existed as such, and have retained the
tradition of their old constitution and independence; or when the
administration has erected them into real though dependent political
communities.  A portion of the people of a state not so erected or
organized, that has in no sense had a distinct political existence of
its own, has never separated from the national body and formed a new
and independent nation.  It cannot revolt; it may rise up against the
government, and either revolutionize and take possession of the state,
or be put down by the government as an insurrection.  The amalgamation
of the conquering and the conquered forms a new people, and modifies
the institutions of both, but does not necessarily form a new nation or
political community.  The English of to-day are very different from
both the Normans and the Saxons, or Dano-Saxons, of the time of Richard
Coeur de Lion, but they constitute the same state or political
community.  England is still England.

The Roman empire, conquered by the Northern barbarians, has been cut up
into several separate and independent nations, but because its several
provinces had, prior to their conquest by the Roman arms, been
independent nations or tribes, and more especially because the
conquerors themselves were divided into several distinct nations or
confederacies.  If the barbarians had been united in a single nation or
state, the Roman empire most likely would have changed masters, indeed,
but have retained its unity and its constitution, for the Germanic
nations that finally seated themselves on its ruins had no wish to
destroy its name or nationality, for they were themselves more than
half Romanized before conquering Rome.  But the new nations into which
the empire has been divided have never been, at any moment, without
political or governmental organization, continued from the constitution
of the conquering tribe or nation, modified more or less by what was
retained from the empire.

It is not pretended that the constitutions of states cannot be altered,
or that every people starts with a constitution fully developed, as
would seem to be the doctrine of De Maistre.  The constitution of the
family is rather economical than political, and the tribe is far from
being a fully developed state. Strictly speaking, the state, the modern
equivalent for the city of the Greeks and Romans, was not fully formed
till men began to build and live in cities, and became fixed to a
national territory.  But in the first place, the eldest born of the
human race, we are told, built a city, and even in cities we find
traces of the family and tribal organization long after their municipal
existence--in Athens down to the Macedonian conquest, and in Rome down
to the establishment of the Empire; and, in the second place, the
pastoral nations, though they have not precisely the city or state
organization, yet have a national organization, and obey a national
authority.  Strictly speaking, no pastoral nation has a civil or
political constitution, but they have what in our modern tongues can be
expressed by no other term.  The feudal regime, which was in full vigor
even in Europe from the tenth to the close of the fourteenth century,
had nothing to do with cities, and really recognized no state proper;
yet who hesitates to speak of it as a civil or political system, though
a very imperfect one?

The civil order, as it now exists, was not fully developed in the early
ages.  For a long time the national organizations bore unmistakable
traces of having been developed from the patriarchal, and modelled from
the family or tribe, as they do still in all the non-Christian world.
Religion itself, before the Incarnation, bore traces of the same
organization.  Even with the Jews, religion was transmitted and
diffused, not as under Christianity by conversion, but by natural
generation or family adoption. With all the Gentile tribes or nations,
it was the same.  At first the father was both priest and king, and when
the two offices were separated, the priests formed a distinct and
hereditary class or caste, rejected by Christianity, which, as we have
seen, admits priests only after the order of Melchisedech. The Jews had
the synagogue, and preserved the primitive revelation in its purity and
integrity; but the Greeks and Romans, more fully than any other ancient
nations, preserved or developed the political order that best conforms
to the Christian religion; and Christianity, it is worthy of remark,
followed in the track of the Roman armies, and it gains a permanent
establishment only where was planted, or where it is able to plant, the
Graeco-Roman civilization.  The Graeco-Roman republics were hardly less
a schoolmaster to bring the world to Christ in the civil order, than
the Jewish nation was to bring it to Him in the spiritual order, or in
faith and worship.  In the Christian order nothing is by hereditary
descent, but every thing is by election of grace.  The Christian
dispensation is teleological, palingenesiac, and the whole order, prior
to the Incarnation, was initial, genesiac, and continued by natural
generation, as it is still in all nations and tribes outside of
Christendom.  No non-Christian people is a civilized people, and,
indeed, the human race seems not anywhere, prior to the Incarnation, to
have attained to its majority: and it is, perhaps, because the race
were not prepared for it, that the Word was not sooner incarnated. He
came only in the fulness of time, when the world was ready to receive
him.

The providential constitution is, in fact, that with which the nation
is born, and is, as long as the nation exists, the real living and
efficient constitution of the state.  It is the source of the vitality
of the state, that which controls or governs its action, and determines
its destiny.  The constitution which a nation is said to give itself,
is never the constitution of the state, but is the law ordained by the
state for the government instituted under it.  Thomas Paine would admit
nothing to be the constitution but a written document which he could
fold up and put in his pocket, or file away in a pigeon-hole.  The Abbe
Sieyes pronounced politics a science which he had finished, and he was
ready to turn you out constitutions to order, with no other defect than
that they had, as Carlyle wittily says, no feet, and could not go.
Many in the last century, and some, perhaps, in the present, for folly
as well as wisdom has her heirs, confounded the written instrument with
the constitution itself. No constitution can be written on paper or
engrossed on parchment. What the convention may agree upon, draw up,
and the people ratify by their votes, is no constitution, for it is
extrinsic to the nation, not inherent and living in it--is, at best,
legislative instead of constitutive.  The famous Magna Charta drawn up
by Cardinal Langton, and wrung from John Lackland by the English barons
at Runnymede, was no constitution of England till long after the date
of its concession, and even then was no constitution of the state, but
a set of restrictions on power. The constitution is the intrinsic or
inherent and actual constitution of the people or political community
itself; that which makes the nation what it is, and distinguishes it
from every other nation, and varies as nations themselves vary from one
another.

The constitution of the state is not a theory, nor is it drawn up and
established in accordance with any preconceived theory.  What is
theoretic in a constitution is unreal.  The constitutions conceived by
philosophers in their closets are constitutions only of Utopia or
Dreamland.  This world is not governed by abstractions, for
abstractions are nullities.  Only the concrete is real, and only the
real or actual has vitality or force.  The French people adopted
constitution after constitution of the most approved pattern, and amid
bonfires, beating of drums, sound of trumpets, roar of musketry, and
thunder of artillery, swore, no doubt, sincerely as well as
enthusiastically, to observe them, but all to no effect; for they had
no authority for the nation, no hold on its affections, and formed no
element of its life. The English are great constitution-mongers--for
other nations. They fancy that a constitution fashioned after their own
will fit any nation that can be persuaded, wheedled, or bullied into
trying it on; but, unhappily, all that have tried it on have found it
only an embarrassment or encumbrance.  The doctor might as well attempt
to give an individual a new constitution, or the constitution of
another man, as the statesman to give a nation any other constitution
than that which it has, and with which it is born.

The whole history of Europe, since the fall of the Roman empire, proves
this thesis.  The barbarian conquest of Rome introduced into the
nations founded on the site of the empire, a double constitution--the
barbaric and the civil--the Germanic and the Roman in the West, and the
Tartaric or Turkish and the Graeco-Roman in the East.  The key to all
modern history is in the mutual struggles of these two constitutions
and the interests respectively associated with them, which created two
societies on the same territory, and, for the most part, under the same
national denomination.  The barbaric was the constitution of the
conquerors; they had the power, the government, rank, wealth, and
fashion, were reinforced down to the tenth century by fresh hordes of
barbarians, and had even brought the external ecclesiastical society to
a very great extent into harmony with itself.  The Pope became a feudal
sovereign, and the bishops and mitred abbots feudal princes and barons.
Yet, after eight hundred years of fierce struggle, the Roman
constitution got the upper hand, and the barbaric constitution, as far
as it could not be assimilated to the Roman, was eliminated.  The
original Empire of the West is now as thoroughly Roman in its
constitution, its laws, and its civilization, as it ever was under any
of its Christian emperors before the barbarian conquest.

The same process is going on in the East, though it has not advanced so
far, having begun there several centuries later, and the Graeco-Roman
constitution was far feebler there than in the West at the epoch of the
conquest.  The Germanic tribes that conquered the West had long had
close relations with the empire, had served as its allies, and even in
its armies, and were partially Romanized.  Most of their chiefs had
received a Roman culture; and their early conversion to the Christian
faith facilitated the revival and permanence of the old Roman
constitution.  In the East it was different.  The conquerors had no
touch of Roman civilization, and, followers of the Prophet, they were
animated with an intense hatred, which, after the conquest, was changed
into a superb contempt, of Christians and Romans.  They had their civil
constitution in the Koran; and the Koran, in its principles, doctrines,
and spirit, is exclusive and profoundly intolerant.  The Graeco-Roman
constitution was always much weaker in the East, and had far greater
obstacles to overcome there than in the West; yet it has survived the
shock of the conquest.  Throughout the limits of the ancient Empire of
the East, the barbaric constitution has received and is daily receiving
rude blows, and, but as reenforced by barbarians lying outside of the
boundaries of that empire, would be no longer able to sustain itself.
The Greek or Christian populations of the empire are no longer in
danger of being exterminated or absorbed by the Mohammedan state or
population.  They are the only living and progressive people of the
Ottoman Empire, and their complete success in absorbing or expelling
the Turk is only a question of time.  They will, in all present
probability, reestablish a Christian and Roman East in much less time
from the fall of Constantinople in 1453, than it took the West from the
fall of Rome in 476 to put an end to the feudal or barbaric
constitution founded by its Germanic invaders.

Indeed, the Roman constitution, laws, and civilization not only gain
the mastery in the nations seated within the limits of the old Roman
Empire, but extend their power through out the whole civilized world.
The Graeco-Roman civilization is, in fact, the only civilization now
recognized, and nations are accounted civilized only in proportion as
they are Romanized and Christianized.  The Roman law, as found in the
Institutes, Pandects, and Novellae of Justinian, or the Corpus Legis
Civilis, is the basis of the law and jurisprudence of all Christendom.
The Graeco-Roman civilization, called not improperly Christian
civilization, is the only progressive civilization.  The old feudal
system remains in England little more than an empty name. The king is
only the first magistrate of the kingdom, and the House of Lords is
only an hereditary senate.  Austria is hard at work in the Roman
direction, and finds her chief obstacle to success in Hungary, with the
Magyars whose feudalism retains almost the full vigor of the Middle
Ages.  Russia is moving in the same direction; and Prussia and the
smaller Germanic states obey the same impulse.  Indeed, Rome has
survived the conquest--has conquered her conquerors, and now invades
every region from which they came.  The Roman Empire may be said to be
acknowledged and obeyed in lands lying far beyond the farthest limits
reached by the Roman eagles, and to be more truly the mistress of the
world than under Augustus, Trajan, or the Antonines.  Nothing can stand
before the Christian and Romanized nations, and all pagandom and
Mohammedom combined are too weak to resist their onward march.

All modern European revolutions result only in reviving the Roman
Empire, whatever the motives, interests, passions, or theories that
initiate them.  The French Revolution of the last century and that of
the present prove it.  France, let people say what they will, stands at
the head of the European civilized world, and displays en grand all its
good and all its bad tendencies. When she moves, Europe moves; when she
has a vertigo, all European nations are dizzy; when she recovers her
health, her equilibrium, and good sense, others become sedate, steady,
and reasonable.  She is the head, nay, rather, the heart of
Christendom--the head is at Rome--through which circulates the pure and
impure blood of the nations.  It is in vain Great Britain, Germany, or
Russia disputes with her the hegemony of European civilization.  They
are forced to yield to her at last, to be content to revolve around her
as the centre of the political system that masters them.  The reason
is, France is more completely and sincerely Roman than any other
nation.  The revolutions that have shaken the world have resulted in
eliminating the barbaric elements she had retained, and clearing away
all obstacles to the complete triumph of Imperial Rome. Napoleon III.
is for France what Augustus was for Rome.  The revolutions in Spain and
Italy have only swept away the relics of the barbaric constitution, and
aided the revival of Roman imperialism.  In no country do the
revolutionists succeed in establishing their own theories; Caesar
remains master of the field.  Even in the United States, a revolution
undertaken in favor of the barbaric system has resulted in the
destruction of what remained of that system--in sweeping away the last
relics of disintegrating feudalism, and in the complete establishment
of the Graeco-Roman system, with important improvements, in the New
World.

The Roman system is republican, in the broad sense of the term, because
under it power is never an estate, never the private for the public
good.  As it existed under the Caesars, and is revived in modern times,
whether under the imperial or the democratic form, it, no doubt, tends
to centralism, to the concentration of all the powers and forces of the
state in one central government, from which all local authorities and
institutions emanate.  Wise men oppose it as affording no guaranties to
individual liberty against the abuses of power. This it may not do, but
the remedy is not in feudalism.  The feudal lord holds his authority as
an estate, and has over the people under him all the power of Caesar
and all the rights of the proprietor.  He, indeed, has a guaranty
against his liege-lord, sometimes a more effective guaranty than his
liege-lord has against him; but against his centralized power his
vassals and serfs have only the guaranty that a slave has against his
owner.

Feudalism is alike hostile to the freedom of public authority and of
the people.  It is essentially a disintegrating element in the nation.
It breaks the unity and individuality of the state, embarrasses the
sovereign, and guards against the abuse of public authority by
overpowering and suppressing it.  Every feudal lord is a more thorough
despot in his own domain than Caesar ever was or could be in the
empire; and the monarch, even if strong enough, is yet not competent to
intervene between him and his people, any more than the General
government in the United States was to intervene between the negro
slave and his master.  The great vassals of the crown singly, or, if
not singly, in combination--and they could always combine in the
interest of their order--were too strong for the king, or to be brought
under any public authority, and could issue from their fortified
castles and rob and plunder to their hearts' content, with none to call
them to an account.  Under the most thoroughly centralized government
there is far more liberty for the people, and a far greater security
for person and property, except in the case of the feudal nobles
themselves, than was even dreamed of while the feudal regime was in
full vigor.  Nobles were themselves free, it is conceded, but not the
people.  The king was too weak, too restricted in his action by the
feudal constitution to reach them, and the higher clergy were ex
officio sovereigns, princes, barons, or feudal lords, and were led by
their private interests to act with the feudal nobility, save when that
nobility threatened the temporalities of the church. The only reliance,
under God, left in feudal times to the poor people was in the lower
ranks of the clergy, especially of the regular clergy.  All the great
German emperors in the twelfth and thirteenth centuries, who saw the
evils of feudalism, and attempted to break it up and revive imperial
Rome, became involved in quarrels with the chiefs of the religious
society, and failed, because the interest of the Popes, as feudal
sovereigns and Italian princes, and the interests of the dignified
clergy, were for the time bound up with the feudal society, though
their Roman culture and civilization made them at heart hostile to it.
The student of history, however strong his filial affection towards the
visible head of the church, cannot help admiring the grandeur of the
political views of Frederic the Second, the greatest and last of the
Hohenstaufen, or refrain from dropping a tear over his sad failure.  He
had great faults as a man, but he had rare genius as a statesman; and
it is some consolation to know that he died a Christian death, in
charity with all men, after having received the last sacraments of his
religion.

The Popes, under the circumstances, were no doubt justified in the
policy they pursued, for the Swabian emperors failed to respect the
acknowledged rights of the church, and to remember their own
incompetency in spirituals; but evidently their political views and
aims were liberal, far-reaching, and worthy of admiration. Their
success, if it could have been effected without lesion to the church,
would have set Europe forward some two or three hundred years, and
probably saved it from the schisms of the fourteenth and sixteenth
centuries.  But it is easy to be wise after the event.  The fact is,
that during the period when feudalism was in full vigor, the king was
merely a shadow; the people found their only consolation in religion,
and their chief protectors in the monks, who mingled with them, saw
their sufferings, and sympathized with them, consoled them, carried
their cause to the castle before the feudal lord and lady, and did,
thank God, do something to keep alive religious sentiments and
convictions in the bosom of the feudal society itself.  Whatever
opinions may be formed of the monastic orders in relation to the
present, this much is certain, that they were the chief civilizers of
Europe, and the chief agents in delivering European society from feudal
barbarism.

The aristocracy have been claimed as the natural allies of the throne,
but history proves them to be its natural enemies, whenever it cannot
be used in their service, and kings do not consent to be their
ministers and to do their bidding.  A political aristocracy has at
heart only the interests of its order, and pursues no line of policy
but the extension or preservation of its privileges.  Having little to
gain and much to lose, it opposes every political change that would
either strengthen the crown or elevate the people.  The nobility in the
French Revolution were the first to desert both the king and the
kingdom, and kings have always found their readiest and firmest allies
in the people.  The people in Europe have no such bitter feelings
towards royalty as they have towards the feudal nobility--for kings
have never so grievously oppressed them.  In Rome the patrician order
opposed alike the emperor and the people, except when they, as
chivalric nobles sometimes will do, turned courtiers or demagogues.
They were the people of Rome and the provinces that sustained the
emperors, and they were the emperors who sustained the people, and gave
to the provincials the privileges of Roman citizens.

Guaranties against excessive centralism are certainly needed, but the
statesman will not seek them in the feudal organization of society--in
a political aristocracy, whether founded on birth or private wealth,
nor in a privileged class of any sort.  Better trust Caesar than
Brutus, or even Cato.  Nor will he seek them in the antagonism of
interests intended to neutralize or balance each other, as in the
English constitution.  This was the great error of Mr. Calhoun.  No man
saw more clearly than Mr. Calhoun the utter worthlessness of simple
paper constitutions, on which Mr. Jefferson placed such implicit
reliance, or that the real constitution is in the state itself, in the
manner in which the people themselves are organized; but his reliance
was in constituting, as powers in the state, the several popular
interests that exist, and pitting them against each other--the famous
system of checks and balances of English states men.  He was led to
this, because he distrusted power, and was more intention guarding
against its abuses than on providing for its free, vigorous, and
healthy action, going on the principle that "that is the best
government which governs least." But, if the opposing interests could
be made to balance one another perfectly, the result would be an
equilibrium, in which power would be brought to a stand-still; and if
not, the stronger would succeed and swallow up all the rest.  The
theory of checks and balances is admirable if the object be to trammel
power, and to have as little power in the government as possible; but
it is a theory which is born from passions engendered by the struggle
against despotism or arbitrary power, not from a calm and philosophical
appreciation of government itself.  The English have not succeeded in
establishing their theory, for, after all, their constitution does not
work so well as they pretend.  The landed interest controls at one
time, and the mercantile and manufacturing interest at another.  They
do not perfectly balance one another, and it is not difficult to see
that the mercantile and manufacturing interest, combined with the
moneyed interest, is henceforth to predominate.  The aim of the real
statesman is to organize all the interests and forces of the state
dialectically, so that they shall unite to add to its strength, and
work together harmoniously for the common good.




CHAPTER VIII.

CONSTITUTION OF GOVERNMENT--CONCLUDED.


Though the constitution of the people is congenital, like the
constitution of an individual, and cannot be radically changed without
the destruction of the state, it must not be supposed that it is wholly
withdrawn from the action of the reason and free-will of the nation,
nor from that of individual statesmen. All created things are subject
to the law of development, and may be developed either in a good sense
or in a bad; that is, may be either completed or corrupted.  All the
possibilities of the national constitution are given originally in the
birth of the nation, as all the possibilities of mankind were given in
the first man.  The germ must be given in the original constitution.
But in all constitutions there is more than one element, and the
several elements maybe developed pari passu, or unequally, one having
the ascendency and suppressing the rest.  In the original constitution
of Rome the patrician element was dominant, showing that the
patriarchal organization of society still retained no little force.
The king was only the presiding officer of the senate and the leader of
the army in war.  His civil functions corresponded very nearly to those
of a mayor of the city of New York, where all the effective power is in
the aldermen, common council, and heads of departments.  Except in name
he was little else than a pageant.  The kings, no doubt, labored to
develop and extend the royal element of the constitution.  This was
natural; and it was equally natural that they should be resisted by the
patricians.  Hence when the Tarquins, or Etruscan dynasty, undertook to
be kings in fact as well as in name, and seemed likely to succeed, the
patricians expelled them, and supplied their place by two consuls
annually elected.  Here was a modification, but no real change of the
constitution.  The effective Power, as before, remained in the senate.

But there was from early times a plebeian element in the population of
the city, though forming at first no part of the political people.
Their origin is not very certain, nor their original position in the
city.  Historians give different accounts of them.  But that they
should, as they increased in numbers, wealth, and importance, demand
admission into the political society, religious or solemn marriage, a
voice in the government, and the faculty of holding civil and military
offices, was only in the order of regular development.  At first the
patricians fought them, and, failing to subdue them by force, effected
a compromise, and bought up their leaders.  The concession which
followed of the tribunitial veto was only a further development.  By
that veto the plebeians gained no initiative, no positive power,
indeed, but their tribunes, by interposing it, could stop the
proceedings of the government. They could not propose the measures they
liked, but they could prevent the legal adoption of measures they
disliked--a faculty Mr. Calhoun asserted for the several States of the
American Union in his doctrine of nullification, or State veto, as he
called it. It was simply an obstructive power.

But from a power to obstruct legislative action to the power to
originate or propose it, and force the senate to adopt it through fear
of the veto of measures the patricians had at heart, was only a still
further development.  This gained, the exclusively patrician
constitution had disappeared, and Marius, the head of a great plebeian
house, could be elected consul and the plebeians in turn threaten to
become predominant, which Sylla or Sulla, as dictator, seeing, tried in
vain to prevent.  The dictator was provided for in the original
constitution.  Retain the dictatorship for a time, strengthen the
plebeian element by ruthless proscriptions of patricians and by
recruits from the provinces, unite the tribunitial, pontifical, and
military powers in the imperator designated by the army, all elements
existing in the constitution from an early day, and already developed
in the Roman state, and you have the imperial constitution, which
retained to the last the senate and consuls, though with less and less
practical power.  These changes are very great, but are none of them
radical, dating from the recognition of the plebs as pertaining to the
Roman people.  They are normal developments, not corruptions, and the
transition from the consular republic to the imperial was
unquestionably a real social and political progress.  And yet the Roman
people, had they chosen, could have given a different direction to the
developments of their constitution.  There was Providence in the course
of events, but no fatalism.

Sulla was a true patrician, a blind partisan of the past.  He sought to
arrest the plebeian development led by Marius, and to restore the
exclusively patrician government.  But it was too late. His
proscriptions, confiscations, butcheries, unheard-of cruelties which
anticipated and surpassed those of the French Revolution of 1793,
availed nothing.  The Marian or plebeian movement, apparently checked
for a moment, resumed its march with renewed vigor under Julius, and
triumphed at Pharsalia.  In vain Cicero, only accidentally associated
with the patrician party, which distrusted him--in vain Cicero
declaims, Cato scolds, or parades his impractical virtues, Brutus and
Cassius seize the assassin's dagger, and strike to the earth "the
foremost man of all the world;" the plebeian cause moves on with
resistless force, triumphs anew at Philippi, and young Octavius avenges
the murder of his uncle, and proves to the world that the assassination
of a ruler is a blunder as well as a crime.  In vain does Mark Antony
desert the movement, rally Egypt and the barbaric East, and seek to
transfer the seat of empire from the Tiber to the banks of the Nile or
the Orontes; plebeian and imperial Rome wins a final victory at Actium,
and definitively secures the empire of the civilized world to the West.

Thus far the developments were normal, and advanced civilization. But
Rome still retained the barbaric element of slavery in her bosom, and
had conquered more barbaric nations than she had assimilated.  These
nations she at first governed as tributary states, with their own
constitutions and national chiefs; afterwards as Roman provinces, by
her own proconsuls and prefects. When the emperors threw open the gates
of the city to the provincials, and conceded them the rights and
privileges of Roman citizens, they introduced not only a foreign
element into the state, destitute of Roman patriotism, but the barbaric
and despotic elements retained by the conquered nations as yet only
partially assimilated.  These elements became germs of anti-republican
developments, rather of corruptions, and prepared the downfall of the
empire.  Doubtless these corruptions might have been arrested, and
would have been, if Roman patriotism had survived the changes effected
in the Roman population by the concession of Roman citizenship to
provincials; but it did not, and they were favored as time went on by
the emperors themselves, and more especially by Dioclesian, a real
barbarian, who hated Rome, and by Constantine, surnamed the Great, a
real despot, who converted the empire from a republican to a despotic
empire. Rome fell from the force of barbarism developed from within,
far more than from the force of the barbarians hovering on her
frontiers and invading her provinces.

The law of all possible developments is in the providential or
congenital constitution; but these possible developments are many and
various, and the reason and free-will of the nation as well as of
individuals are operative in determining which of them shall be
adopted.  The nation, under the direction of wise and able statesmen
who understood their age and country, who knew how to discern between
normal developments and barbaric corruptions, placed at the head of
affairs in season, might have saved Rome from her fate, eliminated the
barbaric and assimilated the foreign elements, and preserved Rome as a
Christian and republican empire to this day, and saved the civilized
world from the ten centuries of barbarism which followed her conquest
by the barbarians of the North.  But it rarely happens that the real
statesmen of a nation are placed at the head of affairs.

Rome did not fall in consequence of the strength of her external
enemies, nor through the corruption of private morals and manners,
which was never greater than under the first Triumvirate.  She fell
from the want of true statesmanship in her public men, and patriotism
in her people.  Private virtues and private vices are of the last
consequence to individuals, both here and hereafter; but private
virtues never saved, private vices never ruined a nation.  Edward the
Confessor was a saint, and yet he prepared the way for the Norman
conquest of England; and France owes infinitely less to St. Louis than
to Louis XI., Richelieu, and Napoleon, who, though no saints, were
statesmen.  What is specially needed in statesmen is public spirit,
intelligence, foresight, broad views, manly feelings, wisdom, energy,
resolution; and when statesmen with these qualities are placed at the
head of affairs, the state, if not already lost, can, however far gone
it may be, be recovered, restored, reinvigorated, advanced, and private
vice and corruption disappear in the splendor of public virtue.
Providence is always present in the affairs of nations, but not to work
miracles to counteract the natural effects of the ignorance, ineptness,
short-sightedness, narrow views, public stupidity, and imbecility of
rulers, because they are irreproachable and saintly in their private
characters and relations, as was Henry VI. of England, or, in some
respects, Louis XVI. of France.  Providence is God intervening through
the laws he by his creative act gives to creatures, not their
suspension or abrogation.  It was the corruption of the statesmen, in
substituting the barbaric element for the proper Roman, to which no one
contributed more than Constantine, the first Christian emperor, that
was the real cause of the downfall of Rome, and the centuries of
barbarism that followed, relieved only by the superhuman zeal and
charity of the church to save souls and restore civilization.

But in the constitution of the government, as distinguished from the
state, the nation is freer and more truly sovereign.  The constitution
of the state is that which gives to the people of a given territory
political existence, unity, and individuality, and renders it capable
of political action.  It creates political or national solidarity, in
imitation of the solidarity of the race, in which it has its root.  It
is the providential charter of national existence, and that which gives
to each nation its peculiar character, and distinguishes it from every
other nation. The constitution of government is the constitution by the
sovereign authority of the nation of an agency or ministry for the
management of its affairs, and the letter of instructions according to
which the agent or minister is to act and conduct the matters intrusted
to him.  The distinction which the English make between the sovereign
and the ministry is analogous to that between the state and the
government, only they understand by the sovereign the king or queen,
and by the ministry the executive, excluding, or not decidedly
including, the legislature and the judiciary.  The sovereign is the
people as the state or body politic, and as the king holds from God
only through the people, he is not properly sovereign, and is to be
ranked with the ministry or government.  Yet when the state delegates
the full or chief governing power to the king, and makes him its sole
or principal representative, he may, with sufficient accuracy for
ordinary purposes, be called sovereign.  Then, understanding by the
ministry or government the legislative and judicial, as well as the
executive functions, whether united in one or separated into distinct
and mutually independent departments, the English distinction will
express accurately enough, except for strictly scientific purposes, the
distinction between the state and the government.

Still, it is only in despotic states, which are not founded on right,
but force, that the king can say, L'etat, c'est moi, I am the state;
and Shakespeare's usage of calling the king of France simply France,
and the king of England simply England, smacks of feudalism, under
which monarchy is an estate, property, not a public trust.  It
corresponds to the Scottish usage of calling the proprietor by the name
of his estate.  It is never to be forgotten that in republican states
the king has only a delegated sovereignty, that the people, as well as
God, are above him.  He holds his power, as the Emperor of the French
professes to hold his, by the grace of God and the national will--the
only title by which a king or emperor can legitimately hold power.

The king or emperor not being the state, and the government, whatever
its form or constitution, being a creature of the state, he can be
dethroned, and the whole government even virtually overthrown, without
dissolving the state or the political society. Such an event may cause
much evil, create much social confusion, and do grave injury to the
nation, but the political society may survive it; the sovereign remains
in the plenitude of his rights, as competent to restore government as
he was originally to institute it.  When, in 1848, Louis Philippe was
dethroned by the Parisian mob, and fled the kingdom, there was in
France no legitimate government, for all commissions ran in the king's
name; but the organic or territorial people of France, the body
politic, remained, and in it remained the sovereign power to organize
and appoint a new government.  When, on the 2d of December, 1851, the
president, by a coup d'etat, suppressed the legislative assembly and
the constitutional government, there was no legitimate government
standing, and the power assumed by the president was unquestionably a
usurpation; but the nation was competent to condone his usurpation and
legalize his power, and by a plebiscitum actually did so.  The wisdom
or justice of the coup d'etat is another question, about which men may
differ; but when the French nation, by its subsequent act, had condoned
it, and formally conferred dictatorial powers on the prince-president,
the principal had approved the act of his agent, and given him
discretionary powers, and nothing more was to be said.  The imperial
constitution and the election of the president to be emperor, that
followed on December 2d, 1852, were strictly legal, and, whatever men
may think of Napoleon III., it must be conceded that there is no legal
flaw in his title, and that he holds his power by a title as high and
as perfect as there is for any prince or ruler.

But the plebiscitum cannot be legally appealed to or be valid when and
where there is a legal government existing and in the full exercise of
its constitutional functions, as was decided by the Supreme Court of
the United States in a case growing out of what is known as the Dorr
rebellion in Rhode Island.  A suffrage committee, having no political
authority, drew up and presented a new constitution of government to
the people, plead a plebiscitum in its favor, and claimed the officers
elected under it as the legally elected officers of the state.  The
court refused to recognize the plebiscitum, and decided that it knew
Rhode Island only as represented through the government, which had
never ceased to exist.  New States in Territories have been organized
on the strength of a plebiscitum when the legal Territorial government
was in force, and were admitted as States into the Union, which, though
irregular and dangerous, could be done without revolution, because
Congress, that admitted them, is the power to grant the permission to
organize as States and apply for admission.  Congress is competent to
condone an offence against its own rights.  The real danger of the
practice is, that it tends to create a conviction that sovereignty
inheres in the people individually, or as population, not as the body
politic or organic people attached to a sovereign domain; and the
people who organize under a plebiscitum are not, till organized and
admitted into the Union, an organic or a political people at all.  When
Louis Napoleon made his appeal to a vote of the French people, he made
an appeal to a people existing as a sovereign people, and a sovereign
people without a legal government.  In his case the plebiscitum was
proper and sufficient, even if it be conceded that it was through his
own fault that France at the moment was found without a legal
government.  When a thing is done, though wrongly done, you cannot act
as if it were not done, but must accept it as a fact and act
accordingly.

The plebiscitum, which is simply an appeal to the people outside of
government, is not valid when the government has not lapsed, either by
its usurpations or by its dissolution, nor is it valid either in the
case of a province, or of a population that has no organic existence as
an independent sovereign state.  The plebiscitum in France was valid,
but in the Grand Duchy of Tuscany, the Duchies of Modena, Parma, and
Lucca, and in the Kingdom of the Two Sicilies it was not valid, for
their legal governments had not lapsed; nor was it valid in the
Aemilian provinces of the Papal States, because they were not a nation
or a sovereign people, but only a portion of such nation or people. In
the case of the states and provinces--except Lombardy, ceded to France
by Austria, and sold to the Sardinian king--annexed to Piedmont to form
the new kingdom of Italy, the plebiscitum was invalid, because implying
the right of the people to rebel against the legal authority, and to
break the unity and individuality of the state of which they form an
integral part. The nation is a whole, and no part has the right to
secede or separate, and set up a government for itself, or annex itself
to another state, without the consent of the whole.  The solidarity of
the nation is both a fact and a law.  The secessionists from the United
States defended their action only on the ground that the States of the
American Union are severally independent sovereign states, and they
only obeyed the authority of their respective states.

The plebiscitum, or irregular appeal to what is called universal
suffrage, since adopted by Louis Napoleon in France after the coup
d'etat, is becoming not a little menacing to the stability of
governments and the rights and integrity of states, and is not less
dangerous to the peace and order of society than "the solidarity of
peoples" asserted by Kossuth, the revolutionary ex-governor of Hungary,
the last stronghold of feudal barbarism in Christian Europe; for Russia
has emancipated her serfs.

The nation, as sovereign, is free to constitute government according to
its own judgment, under any form it pleases--monarchical, aristocratic,
democratic, or mixed--vest all power in an hereditary monarch, in a
class or hereditary nobles, in a king and two houses of parliament, one
hereditary, the other elective, or both elective; or it may establish a
single, dual, or triple executive, make all officers of government
hereditary or all elective, and if elective, elective for a longer or a
shorter time, by universal suffrage or a select body of electors.  Any
of these forms and systems, and many others besides, are or may be
legitimate, if established and maintained by the national will.  There
is nothing in the law of God or of nature, antecedently to the national
will, that gives any one of them a right to the exclusion of any one of
the others. The imperial system in France is as legitimate as the
federative system in the United States.  The only form or system that
is necessarily illegal is the despotic.  That can never be a truly
civilized government, nor a legitimate government, for God has given to
man no dominion over man.  He gave men, as St. Augustine says, and Pope
St. Gregory the Great repeats, dominion over the irrational creation,
not over the rational, and hence the primitive rulers of men were
called pastors or shepherds, not lords.  It may be the duty of the
people subjected to a despotic government to demean themselves quietly
and peaceably towards it, as a matter of prudence, to avoid sedition,
and the evils that would necessarily follow an attempted revolution,
but not because, founded as it is on mere force, it has itself any
right or legality.

All other forms of government are republican in their essential
constitution, founded on public right, and held under God from and for
the commonwealth, and which of them is wisest and best for the
commonwealth is, for the most part, an idle question. "Forms of
government," somebody has said, "are like shoes--that is the best form
which best fit the feet that are to wear them." Shoes are to be fitted
to the feet, not the feet to the shoes, and feet vary in size and
conformation.  There is, in regard to government, as distinguished from
the state, no antecedent right which binds the people, for antecedently
to the existence of the government as a fact, the state is free to
adopt any form that it finds practicable, or judges the wisest and best
for itself. Ordinarily the form of the government practicable for a
nation is determined by the peculiar providential constitution of the
territorial people, and a form of government that would be practicable
and good in one country may be the reverse in another. The English
government is no doubt the best practicable in Great Britain, at
present at least, but it has proved a failure wherever else it has been
attempted.  The American system has proved itself, in spite of the
recent formidable rebellion to overthrow it, the best and only
practicable government for the United States, but it is impracticable
everywhere else, and all attempts by any European or other American
state to introduce it can end only in disaster.  The imperial system
apparently works well in France, but though all European states are
tending to it, it would not work well at all on the American continent,
certainly not until the republic of the United States has ceased to
exist.  While the United States remain the great American power, that
system, or its kindred system, democratic centralism, can never become
an American system, as Maximilian's experiment in Mexico is likely to
prove.

Political propagandism, except on the Roman plan, that is, by
annexation and incorporation, is as impracticable as it is wanting in
the respect that one independent people owes to another.  The old
French Jacobins tried to propagate, even with fire and sword, their
system throughout Europe, as the only system compatible with the rights
of man.  The English, since 1688, have been great political
propagandists, and at one time it seemed not unlikely that every
European state would try the experiment of a parliamentary government,
composed of an hereditary crown, an hereditary house of lords, and an
elective house of commons.  The democratic Americans are also great
political propagandists, and are ready to sympathize with any
rebellion, insurrection, or movement in behalf of democracy in any part
of the world, however mean or contemptible, fierce or bloody it may be;
but all this is as unstatesmanlike as unjust; unstatesmanlike, for no
form of government can bear transplanting, and because every
independent nation is the sole judge of what best comports with its own
interests, and its judgment is to be respected by the citizens as well
as by the governments of other states.  Religious propagandism is a
right and a duty, because religion is catholic and of universal
obligation; and so is the jus gentium of the Romans, which is only the
application to individuals and nations of the great principles of
natural justice; but no political propagandism is ever allowable,
because no one form of government is catholic in its nature, or of
universal obligation.

Thoughtful Americans are opposed to political propagandism, and respect
the right of every nation to choose its own form of government; but
they hold that the American system is the best in itself, and that if
other nations were as enlightened as the American, they would adopt it.
But though the American system, rightly understood, is the best, as
they hold, it is not because other nations are less enlightened, which
is by no means a fact, that they do not adopt, or cannot bear it, but
solely because their providential constitutions do not require or admit
it, and an attempt to introduce it in any of them would prove a failure
and a grave evil.

Fit your shoes to your feet.  The law of the governmental constitution
is in that of the nation.  The constitution of the government must grow
out of the constitution of the state, and accord with the genius, the
character, the habits, customs, and wants of the people, or it will not
work well, or tend to secure the legitimate ends of government.  The
constitutions imagined by philosophers are for Utopia, not for any
actual, living, breathing people.  You must take the state as it is,
and develop your governmental constitution from it, and harmonize it
with it. Where there is a discrepancy between the two constitutions,
the government has no support in the state, in the organic people, or
nation, and can sustain itself only by corruption or physical force.  A
government may be under the necessity of using force to suppress an
insurrection or rebellion against the national authority, or the
integrity of the national territory, but no government that can sustain
itself, not the state, only by physical force or large standing armies,
can be a good government, or suited to the nation.  It must adopt the
most stringent repressive measures, suppress liberty of speech and of
conscience, outrage liberty in what it has the most intimate and
sacred, and practise the most revolting violence and cruelty, for it
can govern only by terror.  Such a government is unsuited to the nation.

This is seen in all history: in the attempt of the dictator Sulla to
preserve the old patrician government against the plebeian power that
time and events had developed in the Roman state, and which was about
to gain the supremacy, as we have seen, at Pharsalia, Philippi, and
Actium; in the efforts to establish a Jacobinical government in France
in 1793; in Rome in 1848, and the government of Victor Emmanuel in
Naples in 1860 and 1861. These efforts, proscriptions, confiscations,
military executions, assassinations, massacres, are all made in the
name of liberty, or in defence of a government supposed to guaranty the
well-being of the state and the rights of the people.  They are
rendered inevitable by the mad attempt to force on a nation a
constitution of government foreign to the national constitution, or
repugnant to the national tastes, interests, habits, convictions, or
whole interior life.  The repressive policy, adopted to a certain
extent by nearly all European governments, grows out of the madness of
a portion of the people of the several states in seeking to force upon
the nation an anti-national constitution. The sovereigns may not be
very wise, but they are wiser, more national, more patriotic than the
mad theorists who seek to revolutionize the state and establish a
government that has no hold in the national traditions, the national
character, or the national life; and the statesman, the patriot, the
true friend of liberty sympathizes with the national authorities, not
with the mad theorists and revolutionists.

The right of a nation to change its form of government, and its
magistrates or representatives, by whatever name called, is
incontestable.  Hence the French constitution of 1789, which involved
that of 1793, was not illegal, for though accompanied by some
irregularities, it was adopted by the manifest will of the nation, and
consented to by all orders in the state.  Not its legality but its
wisdom is to be questioned, together with the false and dangerous
theories of government which dictated it. There is no compact or mutual
stipulation between the state and the government.  The state, under
God, is sovereign, and ordains and establishes the government, instead
of making a contract, a bargain, or covenant, with it.  The common
democratic doctrine on this point is right, if by people is understood
the organic people attached to a sovereign domain, not the people as
individuals or as a floating or nomadic multitude.  By people in the
political sense, Cicero, and St. Augustine after him, understood the
people as the republic, organized in reference to the common or public
good.  With this understanding, the sovereignty persists in the people,
and they retain the supreme authority over the government.  The powers
delegated are still the powers of the sovereign delegating them, and
may be modified, altered, or revoked, as the sovereign judges proper.
The nation does not, and cannot abdicate or delegate away its own
sovereignty, for sovereign it is, and cannot but be, so long as it
remains a nation not subjected to another nation.

By the imperial constitution of the French government, the imperial
power is vested in Napoleon III., and made hereditary in his family, in
the male line of his legitimate descendants.  This is legal, but the
nation has not parted with its sovereignty or bound itself by contract
forever to a Napoleonic dynasty. Napoleon holds the imperial power "by
the grace of God and the will of the nation," which means simply that
he holds his authority from God, through the French people, and is
bound to exercise it according to the law of God and the national will.
The nation is as competent to revoke this constitution as the
legislature is to repeal any law it is competent to enact, and in doing
so breaks no contract, violates no right, for Napoleon and his
descendants hold their right to the imperial throne subject to the
national will from which it is derived.  In case the nation should
revoke the powers delegated, he or they would have no more valid claim
to the throne than have the Bourbons, whom the nation has unmistakably
dismissed from its service.

The only point here to be observed is, that the change must be by the
nation itself, in its sovereign capacity; not by a mob, nor by a part
of the nation conspiring, intriguing, or rebelling, without any
commission from the nation.  The first Napoleon governed by a legal
title, but he was never legally dethroned, and the government of the
Bourbons, whether of the elder branch or the younger, was never a legal
government, for the Bourbons had lost their original rights by the
election of the first Napoleon, and never afterwards had the national
will in their favor.  The republic of 1848 was legal, in the sense that
the nation acquiesced in it as a temporary necessity; but hardly
anybody believed in it or wanted it, and the nation accepted it as a
sort of locum tenens, rather than willed or ordained it. Its overthrow
by the coup d'etat may not be legally defensible, but the election of
Napoleon III. condoned the illegality, if there was any, and gave the
emperor a legal title, that no republican, that none but a despot or a
no-government man can dispute.  As the will of the nation, in so far as
it contravenes not the law of God or the law of nature, binds every
individual of the nation, no individual or number of individuals has,
or can have, any right to conspire against him, or to labor to oust him
from his place, till his escheat has been pronounced by the voice of
the nation.  The state, in its sovereign capacity, willing it, is the
only power competent to revoke or to change the form and constitution
of the imperial government.  The same must be said of every nation that
has a lawful government; and this, while it preserves the national
sovereignty, secures freedom of progress, condemns all sedition,
conspiracy, rebellion, revolution, as does the Christian law itself.




CHAPTER IX.

THE UNITED STATES


Sovereignty, under God, inheres in the organic people, or the people as
the republic; and every organic people fixed to the soil, and
politically independent of every other people, is a sovereign people,
and, in the modern sense, an independent sovereign nation.

Sovereign states may unite in an alliance, league, or confederation,
and mutually agree to exercise their sovereign powers or a portion of
them in common, through a common organ or agency; but in this agreement
they part with none of their sovereignty, and each remains a sovereign
state or nation as before.  The common organ or agency created by the
convention is no state, is no nation, has no inherent sovereignty, and
derives all its vitality and force from the persisting sovereignty of
the states severally that have united in creating it.  The agreement no
more affects the sovereignty of the several states entering into it,
than does the appointment of an agent affect the rights and powers of
the principal.  The creature takes nothing from the Creator, exhausts
not, lessens not his creative energy, and it is only by his retaining
and continuously exerting his creative power that the creature
continues to exist.

An independent state or nation may, with or without its consent, lose
its sovereignty, but only by being merged in or subjected to another.
Independent sovereign states cannot by convention, or mutual agreement,
form themselves into a single sovereign state, or nation.  The compact,
or agreement, is made by sovereign states, and binds by virtue of the
sovereign power of each of the contracting parties.  To destroy that
sovereign power would be to annul the compact, and render void the
agreement.  The agreement can be valid and binding only on condition
that each of the contracting parties retains the sovereignty that
rendered it competent to enter into the compact, and states that retain
severally their sovereignty do not form a single sovereign state or
nation.  The states in convention cannot become a new and single
sovereign state, unless they lose their several sovereignty, and merge
it in the new sovereignty; but this they cannot do by agreement,
because the moment the parties to the agreement cease to be sovereign,
the agreement, on which alone depends the new sovereign state, is
vacated, in like manner as a contract is vacated by the death of the
contracting parties.

That a nation may voluntarily cede its sovereignty is frankly admitted,
but it can cede it only to something or somebody actually existing, for
to cede to nothing and not to cede is one and the same thing.  They can
part with their own sovereignty by merging themselves in another
national existence, but not by merging themselves in nothing; and, till
they have parted with their own sovereignty, the new sovereign state
does not exist.  A prince can abdicate his power, because by abdicating
he simply gives back to the people the trust he had received from them;
but a nation cannot, save by merging itself in another.  An independent
state not merged in another, or that is not subject to another, cannot
cease to be a sovereign nation, even if it would.

That no sovereign state can be formed by agreement or compact has
already been shown in the refutation of the theory of the origin of
government in convention, or the so-called social compact.  Sovereign
states are as unable to form themselves into a single sovereign state
by mutual compact as are the sovereign individuals imagined by
Rousseau.  The convention, either of sovereign states or of sovereign
individuals, with the best will in the world, can form only a compact
or agreement between sovereigns, and an agreement or compact, whatever
its terms or conditions, is only an alliance, a league, or a
confederation, which no one can pretend is a sovereign state, nation,
or republic.

The question, then, whether the United States are a single sovereign
state or nation, or a confederacy of independent sovereign states
depends on the question whether the American people originally existed
as one people or as several independent states.  Mr. Jefferson
maintains that before the convention of 1787 they existed as several
independent sovereign states, but that since that convention, or the
ratification of the constitution it proposed, they exist as one
political people in regard to foreign nations, and several sovereign
states in regard to their internal and domestic relations.  Mr. Webster
concedes that originally the States existed as severally sovereign
states, but contends that by ratifying the constitution they have been
made one sovereign political people, state, or nation, and that the
General government is a supreme national government, though with a
reservation in favor of State rights.  But both are wrong. If the
several States of the Union were severally sovereign states when they
met in the convention, they are so now; and the constitution is only an
agreement or compact between sovereigns, and the United States are, as
Mr. Calhoun maintained, only a confederation of sovereign states, and
not a single state or one political community.

But if the sovereignty persists in the States severally, any State,
saving its faith, may whenever it chooses to do so, withdraw from the
Union, absolve its subjects from all obligation to the Federal
authorities, and make it treason in them to adhere to the Federal
government.  Secession is, then, an incontestable right; not a right
held under the constitution or derived from the convention but a right
held prior to it, independently of it, inherent in the State
sovereignty, and inseparable from it.  The State is bound by the
constitution of the Union only while she is in it, and is one of the
States united.  In ratifying the constitution she did not part with her
sovereignty, or with any portion of it, any more than France has parted
with her sovereignty, and ceased to be an independent sovereign nation,
by vesting the imperial power in Napoleon III. and his legitimate heirs
male.  The principal parts not with his power to his agent, for the
agent is an agent only by virtue of the continued power of the
principal.  Napoleon is emperor by the will of the French people, and
governs only by the authority of the French nation, which is as
competent to revoke the powers it has conferred on him, when it judges
proper, as it was to confer them.  The Union exists and governs, if the
States are sovereign, only by the will of the State, and she is as
competent to revoke the powers she has delegated as she was to delegate
them.  The Union, as far as she is concerned, is her creation, and what
she is competent to make she is competent to unmake.

In seceding or withdrawing from the Union a State may act very
unwisely, very much against her own interests and the interests of the
other members of the confederacy; but, if sovereign, she in doing so
only exercises her unquestionable right.  The other members may regret
her action, both for her sake and their own, but they cannot accuse her
or her citizens of disloyalty in seceding, nor of rebellion, if in
obedience to her authority they defend their independence by force of
arms against the Union. Neither she nor they, on the supposition, ever
owed allegiance to the Union.  Allegiance is due from the citizen to
the sovereign state, but never from a sovereign state or from its
citizens to any other sovereign state.  While the State is in the Union
the citizen owes obedience to the United States, but only because his
State has, in ratifying the Federal constitution, enacted that it and
all laws and treaties made under it shall be law within her territory.
The repeal by the State of the act of ratification releases the citizen
from the obligation even of obedience, and renders it criminal for him
to yield it without her permission.

It avails nothing, on the hypothesis of the sovereignty of the States
as distinguished from that of the United States, to appeal to the
language or provisions of the Federal constitution.  That constitutes
the government, not the state or the sovereign.  It is ordained by the
sovereign, and if the States were severally independent and sovereign
states, that sovereign is the States severally, not the States united.
The constitution is law for the citizens of a State only so long as the
State remains one of the United States.  No matter, then, how clear and
express the language, or stringent the provisions of the constitution,
they bind only the citizens of the States that enact the constitution.
The written constitution is simply a compact, and obliges only while
the compact is continued by the States, each for itself. The
sovereignty of the United States as a single or political people must
be established before any thing in the constitution can be adduced as
denying the right of secession.

That this doctrine would deprive the General government of all right to
enforce the laws of the Union on a State that secedes, or the citizens
thereof, is no doubt true; that it would weaken the central power and
make the Union a simple voluntary association of states, no better than
a rope of sand, is no less true; but what then?  It is simply saying
that a confederation is inferior to a nation, and that a federal
government lacks many of the advantages of a national government.
Confederacies are always weak in the centre, always lack unity, and are
liable to be dissolved by the influence of local passions, prejudices,
and interests.  But if the United States are a confederation of states
or nations, not a single nation or sovereign state, then there is no
remedy.

If the Anglo-American colonies, when their independence of Great
Britain was achieved and acknowledged, were severally sovereign states,
it has never since been in their power to unite and form a single
sovereign state, or to form themselves into one indivisible sovereign
nation.  They could unite only by mutual agreement, which gives only a
confederation, in which each retains its own sovereignty, as two
individuals, however closely united, retain each his own individuality.
No sovereignty is of conventional origin, and none can emerge from the
convention that did not enter it.  Either the states are one sovereign
people or they are not.  If they are not, it is undoubtedly a great
disadvantage; but a disadvantage that must be accepted, and submitted
to without a murmur.

Whether the United States are one sovereign people or only a
confederation is a question of very grave importance.  If they are only
a confederation of states--and if they ever were severally sovereign
states, only a confederation they certainly are--state secession is an
inalienable right, and the government has had no right to make war on
the secessionists as rebels, or to treat them, when their military
power is broken, as traitors, or disloyal persons.  The honor of the
government, and of the people who have sustained it, is then deeply
compromised.

What then is the fact?  Are the United States politically one people,
nation, state, or republic, or are they simply independent sovereign
states united in close and intimate alliance, league, or federation, by
a mutual pact or agreement? Were the people of the United States who
ordained and established the written constitution one people, or were
they not?  If they were not before ordaining and establishing the
government, they are not now; for the adoption of the constitution did
not and could not make them one.  Whether they are one or many is then
simply a question of fact, to be decided by the facts in the case, not
by the theories of American statesmen, the opinion of jurists, or even
by constitutional law itself.  The old Articles of Confederation and
the later Constitution can serve here only as historical documents.
Constitutions and laws presuppose the existence of a national sovereign
from which they emanate, and that ordains them, for they are the formal
expression of a sovereign will.  The nation must exist as an historical
fact, prior to the possession or exercise of sovereign power, prior to
the existence of written Constitutions and laws of any kind, and its
existence must be established before they can be recognized as having
any legal force or vitality.

The existence of any nation, as an independent sovereign nation, is a
purely historical fact, for its right to exist as such is in the simple
fact that it does so exist.  A nation de facto is a nation de jure, and
when we have ascertained the fact, we have ascertained the right.
There is no right in the case separate from the fact--only the fact
must be really a fact.  A people hitherto a part of another people, or
subject to another sovereign, is not in fact a nation, because they
have declared themselves independent, and have organized a government,
and are engaged in what promises to be a successful struggle for
independence.  The struggle must be practically over; the former
sovereign must have practically abandoned the effort to reduce them to
submission, or to bring them back under his authority, and if he
continues it, does it as a matter of mere form; the postulant must have
proved his ability to maintain civil government, and to fulfil within
and without the obligations which attach to every civilized nation,
before it can be recognized as an independent sovereign nation; because
before it is not a fact that it is a sovereign nation.  The prior
sovereign, when no longer willing or able to vindicate his right, has
lost it, and no one is any longer bound to respect it, for humanity
demands not martyrs to lost causes.

This doctrine may seem harsh, and untenable even, to those sickly
philanthropists who are always weeping over extinct or oppressed
nationalities; but nationality in modern civilization is a fact, not a
right antecedent to the fact.  The repugnance felt to this assertion
arises chiefly from using the word nation sometimes in a strictly
political sense, and sometimes in its original sense of tribe, and
understanding by it not simply the body politic, but a certain relation
of origin, family, kindred, blood, or race.  But God has made of one
blood, or race, all the nations of men; and, besides, no political
rights are founded by the law of nature on relations of blood, kindred,
or family.  Under the patriarchal or tribal system, and, to some
extent, under feudalism, these relations form the basis of government,
but they are economical relations rather than civil or political, and,
under Christian and modern civilization, are restricted to the
household, are domestic relations, and enter not the state or body
politic, except by way of reminiscence or abuse.  They are protected by
the state, but do not found or constitute it.  The vicissitudes of
time, the revolutions of states and empires, migration, conquest, and
intermixture of families and races, have rendered it impracticable,
even if it were desirable, to distribute people into nations according
to their relations of blood or descent.

There is no civilized nation now existing that has been, developed from
a common ancestor this side of Adam, and the most mixed are the most
civilized.  The nearer a nation approaches to a primitive people of
pure unmixed blood, the farther removed it is from civilization.  All
civilized nations are political nations, and are founded in the fact,
not on rights antecedent to the fact.  A hundred or more lost
nationalities went to form the Roman empire, and who can tell us how
many layers of crushed nationalities, superposed one upon another,
serve for the foundation of the present French, English, Russian,
Austrian, or Spanish nationalities?  What other title to independence
and sovereignty, than the fact, can you plead in behalf of any European
nation?  Every one has absorbed and extinguished--no one can say how
many--nationalities, that once had as good a right to be as it has, or
can have.  Whether those nationalities have been justly extinguished or
not, is no question for the statesman; it is the secret of Providence.
Failure in this world is not always a proof of wrong; nor success, of
right.  The good is sometimes overborne, and the bad sometimes
triumphs; but it is consoling, and even just, to believe that the good
oftener triumphs than the bad.

In the political order, the fact, under God, precedes the law. The
nation holds not from the law, but the law holds from the nation.
Doubtless the courts of every civilized nation recognize and apply both
the law of nature and the law of nations, but only on the ground that
they are included, or are presumed to be included, in the national law,
or jurisprudence.  Doubtless, too, the nation holds from God, under the
law of nature, but only by virtue of the fact that it is a nation; and
when it is a nation dependent on no other, it holds from God all the
rights and powers of any independent sovereign nation.  There is no
right behind the fact needed to legalize the fact, or to put the nation
that is in fact a nation in possession of full national rights. In the
case of a new nation, or people, lately an integral part of another
people, or subject to another people@ the right of the prior sovereign
must be extinguished indeed, but the extinction of that right is
necessary to complete the fact, which otherwise would be only an
initial, inchoate fact, not a fait accompli. But that right ceases when
its claimant, willingly or unwillingly, formally or virtually, abandons
it; and he does so when he practically abandons the struggle, and shows
no ability or intention of soon renewing it with any reasonable
prospect of success.

The notion of right, independent of the fact as applied to sovereignty,
is founded in error.  Empty titles to states and kingdoms are of no
validity.  The sovereignty is, under God, in the nation and the title
and the possession are inseparable.  The title of the Palaeologi to the
Roman Empire of the East, of the king of Sicily, the king of Sardinia,
or the king of Spain--for they are all claimants--to the kingdom of
Jerusalem founded by Godfrey and his crusaders, of the Stuarts to the
thrones of England, Ireland, and Scotland, or of the Bourbons to the
throne of France, are vacated and not worth the parchment on which they
are engrossed.  The contrary opinion, so generally entertained, belongs
to barbarism, not to civilization.  It is in modern society a relic of
feudalism, which places the state in the government, and makes the
government a private estate--a private, and not a public right--a right
to govern the public, not a right to govern held from or by the public.

The proprietor may be dispossessed in fact of his estate by violence,
by illegal or unjust means, without losing his right, and another may
usurp it, occupy it, and possess it in fact without acquiring any right
or legal title to it.  The man who holds the legal title has the right
to oust him and re-enter upon his estate whenever able to do so.  Here,
in the economical order, the fact and the right are distinguishable,
and the actual occupant may be required to show his title-deeds.
Holding sovereignty to be a private estate, the feudal lawyers very
properly distinguish between governments de facto and governments de
jure, and argue very logically that violent dispossession of a prince
does not invalidate his title.  But sovereignty, it has been shown, is
not in the government, but in the state, and the state is inseparable
from the public domain.  The people organized and held by the domain or
national territory, are under God the sovereign nation, and remain so
as long as the nation subsists without subjection to another.  The
government, as distinguished from the state or nation, has only a
delegated authority, governs only by a commission from the nation.  The
revocation of the commission vacates, its title and extinguishes its
rights.  The nation is always sovereign, and every organic people fixed
to the soil, and actually independent of every other, is a nation.
There can then be no independent nation de facto that is not an
independent nation de jure, nor de jure that is not de facto.  The
moment a people cease to be an independent nation in fact, they cease
to be sovereign, and the moment they become in fact an independent
nation, they are so of right. Hence in the political order the fact and
the right are born and expire together; and when it is proved that a
people, are in fact an independent nation, there is no question to be
asked as to their right to be such nation.

In the case of the United States there is only the question of fact.
If they are in fact one people they are so in right, whatever the
opinions and theories of statesmen, or even the decisions of courts;
for the courts hold from the national authority, and the theories and
opinions of statesmen may be erroneous.  Certain it is that the States
in the American Union have never existed and acted as severally
sovereign states. Prior to independence, they were colonies under the
sovereignty of Great Britain, and since independence they have existed
and acted only as states united.  The colonists, before separation and
independence, were British subjects, and whatever rights the colonies
had they held by charter or concession from the British crown.  The
colonists never pretended to be other than British subjects, and the
alleged ground of their complaint against the mother country was not
that she had violated their natural rights as men, but their rights as
British subjects--rights, as contended by the colonists, secured by the
English constitution to all Englishmen or British subjects.  The denial
to them of these common rights of Englishmen they called tyranny, and
they defended themselves in throwing off their allegiance to George
III., on the ground that he had, in their regard, become a tyrant, and
the tyranny of the prince absolves the subject from his allegiance.

In the Declaration of Independence they declared themselves independent
states indeed, but not severally independent.  The declaration was not
made by the states severally, but by the states jointly, as the United
States.  They unitedly declared their independence; they carried on the
war for independence, won it, and were acknowledged by foreign powers
and by the mother country as the United States, not as severally
independent sovereign states.  Severally they have never exercised the
full powers of sovereign states; they have had no flag--symbol of
sovereignty--recognized by foreign powers, have made no foreign
treaties, held no foreign relations, had no commerce foreign or
interstate, coined no money, entered into no alliances or confederacies
with foreign states or with one another, and in several respects have
been more restricted in their powers in the Union than they were as
British colonies.

Colonies are initial or inchoate states, and become complete states by
declaring and winning their independence; and if the English colonies,
now the United States, had separately declared and won their
independence, they would unquestionably have become separately
independent states, each invested by the law of nature with all the
rights and powers of a sovereign nation.  But they did not do this.
They declared and won their independence jointly, and have since
existed and exercised sovereignty only as states united, or the United
States, that is, states sovereign in their union, but not in their
separation.  This is of itself decisive of the whole question.

But the colonists have not only never exercised the full powers of
sovereignty save as citizens of states united, therefore as one people,
but they were, so far as a people at all, one people even before
independence.  The colonies were all erected and endowed with their
rights and powers by one and the same national authority, and the
colonists were subjects of one and the same national sovereign.  Mr.
Quincy Adams, who almost alone among our prominent statesmen maintains
the unity of the colonial people, adds indeed to their subjection to
the same sovereign authority, community of origin, of language,
manners, customs, and law.  All these, except the last, or common law,
may exist without national unity in the modern political sense of the
term nation.  The English common law was recognized by the colonial
courts, and in force in all the colonies, not by virtue of colonial
legislation, but by virtue of English authority, as expressed in
English jurisprudence.  The colonists were under the Common Law,
because they were Englishmen, and subjects of the English sovereign.
This proves that they were really one people with the English people,
though existing in a state of colonial dependence, and not a separate
people having nothing politically in common with them but in the
accident of having the same royal person for their king.  The union
with the mother country was national, not personal, as was the union
existing between England and Hanover, or that still existing between
the empire of Austria, formerly Germany, and the kingdom of Hungary;
and hence the British parliament claimed, and not illegally, the right
to tax the colonies for the support of the empire, and to bind them in
all cases whatsoever--a claim the colonies themselves admitted in
principle by recognizing and observing the British navigation laws.
The people of the several colonies being really one people before
independence, in the sovereignty of the mother country, must be so
still, unless they have since, by some valid act, divided themselves or
been divided into separate and independent states.

The king, say the jurists, never dies, and the heralds cry, "The king
is dead!  Live the king!" Sovereignty never lapses, is never in
abeyance, and the moment it ceases in one people it is renewed in
another.  The British sovereignty ceased in the colonies with
independence, and the American took its place.  Did the sovereignty,
which before independence was in Great Britain, pass from Great Britain
to the States severally, or to the States united?  It might have passed
to them severally, but did it? There is no question of law or
antecedent right in the case, but a simple question of fact, and the
fact is determined by determining who it was that assumed it, exercised
it, and has continued to exercise it.  As to this there is no doubt.
The sovereignty as a fact has been assumed and exercised by the United
States, the States united, and never by the States separately or
severally.  Then as a fact the sovereignty that before independence was
in Great Britain, passed, on independence to the States united, and
reappears in all its vigor in the United States, the only successor to
Great Britain known to or recognized by the civilized world.

As the colonial people were, though distributed in distinct colonies,
still one people, the people of the United States, though distributed
into distinct and mutually independent States, are yet one sovereign
people, therefore a sovereign state or nation, and not a simple league
or confederacy of nations.

There is no doubt that all the powers exercised by the General
Government, though embracing all foreign relations and all general
interests and relations of all the States, might have been exercised by
it under the authority of a mutual compact of the several States, and
practically the difference between the compact theory and the national
view would be very little, unless in cases like that of secession.  On
the supposition that the American people are one political people, the
government would have the right to treat secession, in the sense in
which the seceders understand it, as rebellion, and to suppress it by
employing all the physical force at its command; but on the compact
theory it would have no such right.  But the question now under
discussion turns simply on what has been and is the historical fact.
Before the States could enter into the compact and delegate sovereign
powers to the Union, they must have severally possessed them.  It is
historically certain that they did not possess them before
independence; they did not obtain them by independence, for they did
not severally succeed to the British sovereignty, to which they
succeeded only as States united.  When, then, and by what means did
they or could they become severally sovereign States?  The United
States having succeeded to the British sovereignty in the
Anglo-American colonies, they came into possession of full national
sovereignty, and have alone held and exercised it ever since
independence became a fact.  The States severally succeeding only to
the colonies, never held, and have never been competent to delegate
sovereign powers.

The old Articles of Confederation, it is conceded, were framed on the
assumption that the States are severally sovereign; but the several
States, at the same time, were regarded as forming one nation, and,
though divided into separate States, the people were regarded as one
people.  The Legislature of New York, as early as 1782, calls for an
essential change In the Articles of Confederation, as proved to be
inadequate to secure the peace, security, and prosperity of "the
nation."  All the proceedings that preceded and led to the call of the
convention of 1781 were based on the assumption that the people of the
United States were one people.  The States were called united, not
confederated States, even in the very Articles of Confederation
themselves, and officially the United States were called "the Union."
That the united colonies by independence became united States, and
formed really one and only one people, was in the thought, the belief,
the instinct of the great mass of the people.  They acted as they
existed through State as they had previously acted through colonial
organization, for in throwing off the British authority there was no
other organization through which they could act.  The States, or people
of the States, severally sent their delegates to the Congress of the
United States, and these delegates adopted the rule of voting in
Congress by States, a rule that might be revived without detriment to
national unity. Nothing was more natural, then, than that Congress,
composed of delegates elected or appointed by States, should draw up
articles of confederation rather than articles of union, in order, if
for no other reason, to conciliate the smaller States, and to prevent
their jealousy of the larger States such as Virginia, Massachusetts,
and Pennsylvania.

Moreover, the Articles of Confederation were drawn up and adopted
during the transition from colonial dependence to national
independence.  Independence was declared in 1776, but it was not a fact
till 1782, when the preliminary treaty acknowledging it was signed at
Paris.  Till then the United States were not an independent nation;
they were only a people struggling to become an independent nation.
Prior to that preliminary treaty, neither the Union nor the States
severally were sovereign.  The articles were agreed on in Congress in
1777, but they were not ratified by all the States till May, 1781, and
in 1782 the movement was commenced in the Legislature of New York for
their amendment. Till the organization under the constitution ordained
by the people of the United States in 1787, and which went into
operation in 1789, the United States had in reality only a provisional
government, and it was not till then that the national government was
definitively organized, and the line of demarcation between the General
Government and the particular State governments was fixed.

The Confederation was an acknowledged failure, and was rejected by the
American people, precisely because it was not in harmony with the
unwritten or Providential constitution of the nation; and it was not in
harmony with that constitution precisely because it recognized the
States as severally sovereign, and substituted confederation for union.
The failure of confederation and the success of union are ample proofs
of the unity of the American nation.  The instinct of unity rejected
State sovereignty in 1787 as it did in 1861.  The first and the last
attempt to establish State sovereignty have failed, and the failure
vindicates the fact that the sovereignty is in the States united, not
in the States severally.




CHAPTER X

CONSTITUTION OF THE UNITED STATES


The constitution of the United States is twofold, written and
unwritten, the constitution of the people and the constitution of the
government.

The written constitution is simply a law ordained by the nation or
people instituting and organizing the government; the unwritten
constitution is the real or actual constitution of the people as a
state or sovereign community, and constituting them such or such a
state.  It is Providential, not made by the nation, but born with it.
The written constitution is made and ordained by the sovereign power,
and presupposes that power as already existing and constituted.

The unwritten or Providential constitution of the United States is
peculiar, and difficult to understand, because incapable of being fully
explained by analogies borrowed from any other state historically
known, or described by political philosophers.  It belongs to the
Graeco-Roman family, and is republican as distinguished from despotic
constitutions, but it comes under the head of neither monarchical nor
aristocratic, neither democratic nor mixed constitutions, and creates a
state which is neither a centralized state nor a confederacy.  The
difficulty of understanding it is augmented by the peculiar use under
it of the word state, which does not in the American system mean a
sovereign community or political society complete in itself, like
France, Spain, or Prussia, nor yet a political society subordinate to
another political society and dependent on it. The American States are
all sovereign States united, but, disunited, are no States at all.  The
rights and powers of the States are not derived from the United States,
nor the rights and powers of the United States derived from the States.

The simple fact is, that the political or sovereign people of the
United States exists as united States, and only as united States. The
Union and the States are coeval, born together, and can exist only
together.  Separation is dissolution--the death of both. The United
States are a state, a single sovereign state; but this single sovereign
state consists in the union and solidarity of States instead of
individuals.  The Union is in each of the States, and each of the
States is in the Union.

It is necessary to distinguish in the outset between the United States
and the government of the United States, or the so-called Federal
government, which the convention refused, contrary to its first
intention to call the national government.  That government is not a
supreme national government, representing all the powers of the United
States, but a limited government, restricted by its constitution to
certain specific relations and interests.  The United States are
anterior to that government, and the first question to be settled
relates to their internal and inherent Providential constitution as one
political people or sovereign state.  The written constitution, in its
preamble, professes to be ordained by "We, the people of the United
States."  Who are this people?  How are they constituted, or what the
mode and conditions of their political existence?  Are they the people
of the States severally?  No; for they call themselves the people of
the United States.  Are they a national people, really existing outside
and independently of their organization into distinct and mutually
independent States?  No; for they define themselves to be the people of
the United States.  If they had considered themselves existing as
States only, they would have said "We, the States," and if
independently of State organization, they would have said "We, the
people," do ordain, &c.

The key to the mystery is precisely in this appellation United States,
which is not the name of the country, for its distinctive name is
America, but a name expressive of its political organization.  In it
there are no sovereign people without States, and no States without
union, or that are not united States.  The term united is not part of a
proper name, but is simply an adjective qualifying States, and has its
full and proper sense.  Hence while the sovereignty is and must be in
the States, it is in the States united, not in the States severally,
precisely as we have found the sovereignty of the people is in the
people collectively or as society, not in the people individually.  The
life is in the body, not in the members, though the body could not
exist if it had no members; so the sovereignty is in the Union, not in
the States severally; but there could be no sovereign union without the
States, for there is no union where there is nothing united.

This is not a theory of the constitution, but the constitutional fact
itself.  It is the simple historical fact that precedes the law and
constitutes the law-making power.  The people of the United States are
one people, as has already been proved: they were one people, as far as
a people at all, prior to independence, because under the same Common
Law and subject to the same sovereign, and have been so since, for as
united States they gained their independence and took their place among
sovereign nations, and as united States they have possessed and still
possess the government.  As their existence before independence in
distinct colonies did not prevent their unity, so their existence since
in distinct States does not hinder them from being one people.  The
States severally simply continue the colonial organizations, and united
they hold the sovereignty that was originally in the mother country.
But if one people, they are one people existing in distinct State
organizations, as before independence they were one people existing in
distinct colonial organizations.  This is the original, the unwritten,
and Providential constitution of the people of the United States.

This constitution is not conventional, for it existed before the people
met or could meet in convention.  They have not, as an independent
sovereign people, either established their union, or distributed
themselves into distinct and mutually independent States.  The union
and the distribution, the unity and the distinction, are both original
in their constitution, and they were born United States, as much and as
truly so as the son of a citizen is born a citizen, or as every one
born at all is born a member of society, the family, the tribe, or the
nation.  The Union and the States were born together, are inseparable
in their constitution, have lived and grown up together; no serious
attempt till the late secession movement has been made to separate
them; and the secession movement, to all persons who knew not the real
constitution of the United States, appeared sure to succeed, and in
fact would have succeeded if, as the secessionists pretended, the Union
had been only a confederacy, and the States had been held together only
by a conventional compact, and not by a real and living bond of unity.
The popular instinct of national unity, which seemed so weak, proved to
be strong enough to defeat the secession forces, to trample out the
confederacy, and maintain the unity of the nation and the integrity of
its domain.

The people can act only as they exist, as they are, not as they are
not.  Existing originally only as distributed in distinct and mutually
independent colonies, they could at first act only through their
colonial organizations, and afterward only through their State
organizations.  The colonial people met in convention, in the person of
representatives chosen by colonies, and after independence in the
person of representatives chosen by States.  Not existing outside of
the colonial or State organizations, they could not act outside or
independently of them.  They chose their representatives or delegates
by colonies or States, and called at first their convention a Congress;
but by an instinct surer than their deliberate wisdom, they called it
not the Congress of the confederate, but of the United States,
asserting constitutional unity as well as constitutional multiplicity.
It is true, in their first attempt to organize a general government,
they called the constitution they devised Articles of Confederation,
but only because they had not attained to full consciousness of
themselves; and that they really meant union, not confederation, is
evident from their adopting, as the official style of the nation or new
power, united, not confederate States.

That the sovereignty vested in the States united, and was represented
in some sort by the Congress, is evident from the fact that the several
States, when they wished to adopt State constitutions in place of
colonial charters, felt not at liberty to do so without asking and
obtaining the permission of Congress, as the elder Adams informs us in
his Diary, kept at the time; that is, they asked and obtained the
equivalent of what has since, in the case of organizing new States,
been called an "enabling act."  This proves that the States did not
regard themselves as sovereign States out of the Union, but as
completely sovereign only in it.  And this again proves that the
Articles of Confederation did not correspond to the real, living
constitution of the people.  Even then it was felt that the
organization and constitution of a State in the Union could be
regularly effected only by the permission of Congress; and no Territory
can, it is well known, regularly organize itself as a State, and adopt
a State constitution, without an enabling act by Congress, or its
equivalent.

New States, indeed, have been organized and been admitted into the
Union without an enabling act of Congress; but the case of Kansas, if
nothing else, proves that the proceeding is irregular, illicit,
invalid, and dangerous.  Congress, of course, can condone the wrong and
validate the act, but it were better that the act should be validly
done, and that there should be no wrong to condone.  Territories have
organized as States, adopted State constitutions, and instituted State
governments under what has been called "squatter sovereignty;" but such
sovereignty has no existence, because sovereignty is attached to the
domain; and the domain is in the United States.  It is the offspring of
that false view of popular sovereignty which places it in the people
personally or generically, irrespective of the domain, which makes
sovereignty a purely personal right, not a right fixed to the soil, and
is simply a return to the barbaric constitution of power.  In all
civilized nations, sovereignty is inseparable from the state, and the
state is inseparable from the domain.  The will of the people, unless
they are a state, is no law, has no force, binds nobody, and justifies
no act.

The regular process of forming and admitting new States explains
admirably the mutual relation of the Union and the several States.  The
people of a Territory belonging to the United States or included in the
public domain not yet erected into a State and admitted into the Union,
are subjects of the United States, without any political rights
whatever, and, though a part of the population, are no part of the
sovereign people of the United States.  They become a part of that
people, with political rights and franchises, only when they are
erected into a State, and admitted into the Union as one of the United
States.  They may meet in convention, draw up and adopt a constitution
declaring or assuming them to be a State, elect State officers,
senators, and representatives in the State legislature, and
representatives and senators in Congress, but they are not yet a State,
and are, as before, under the Territorial government established by the
General Government.  It does not exist as a State till recognized by
Congress and admitted into the Union.  The existence of the State, and
the rights and powers of the people within the State, depend on their
being a State in the Union, or a State united. Hence a State erected on
the national domain, but itself outside of the Union, is not an
independent foreign State, but simply no State at all, in any sense of
the term.  As there is no union outside of the States, so is there no
State outside of the Union; and to be a citizen either of a State or of
the United States, it is necessary to be a citizen of a State, and of a
State in the Union.  The inhabitants of Territories not yet erected
into States are subjects, not citizens--that is, not citizens with
political rights.  The sovereign people are not the people outside of
State organization, nor the people of the States severally, but the
distinct people of the several States united, and therefore most
appropriately called the people of the United States.

This is the peculiarity of the American constitution and is
substantially the very peculiarity noted and dwelt upon by Mr. Madison
in his masterly letter to Edward Everett, published in the "North
American Review," October, 1830.

"I In order to understand the true character of the constitution of the
United States," says Mr. Madison, "the error, not uncommon, must be
avoided of viewing it through the medium either of a consolidated
government or of a confederated government, whilst it is neither the
one nor the other, but a mixture of both.  And having, in no model, the
similitudes and analogies applicable to other systems of government, it
must, more than any other, be its own interpreter, according to its
text and the facts in the case.

"From these it will be seen that the characteristic peculiarities of
the constitution are: 1. The mode of its formation. 2. The division of
the supreme powers of government between the States in their united
capacity and the States in their individual capacities.

"1. It was formed not by the governments of the component States, as
the Federal Government, for which it was substituted, was formed; nor
was it formed by a majority of the people of the United States as a
single community, in the manner of a consolidated government.  It was
formed by the States; that is, by the people in each of the States,
acting in their highest sovereign capacity, and formed consequently by
the same authority which formed the State constitution.

"Being thus derived from the same source as the constitutions of the
States, it has within each State the same authority as the constitution
of the State, and is as much a constitution in the strict sense of the
term, within its prescribed sphere, as the constitutions of the States
are within their respective spheres; but with this obvious and
essential difference, that, being a compact among the States in their
highest capacity, and constituting the people thereof one people for
certain purposes, it cannot be altered or annulled at the will of the
States individually, as the constitution of a State may be at its
individual will.

"2. And that it divides the supreme powers of government between the
government of the United States and the governments of the individual
States, is stamped on the face of the instrument; the powers of war and
of taxation, of commerce and treaties, and other enumerated powers
vested in the government of the United States, are of high and
sovereign a character as any of the powers reserved to the State
governments."

Mr. Jefferson, Mr. Webster, Chancellor Kent, Judge Story, and nearly
all the old Republicans, and even the old Federalists, on the question
as to what is the actual constitution of the United States, took
substantially the same view; but they all, as well as Mr. Madison
himself, speak of the written constitution, which on their theory has
and can have only a conventional value. Mr. Madison evidently
recognizes no constitution of the people prior to the written
constitution, from which the written constitution, or the constitution
of the government, derives all its force and vitality.  The
organization of the American people, which he knew well--no man
better,--and which he so justly characterizes, he supposes to have been
deliberately formed by the people themselves, through the
convention--not given them by Providence as their original and inherent
constitution.  But this was merely the effect of the general doctrine
which he had adopted, in common with nearly all his contemporaries, of
the origin of the state in compact, and may be eliminated from his view
of what the constitution actually is, without affecting that view
itself.

Mr. Madison lays great stress on the fact that though the constitution
of the Union was formed by the States, it was formed, not by the
governments, but by the people of the several States; but this makes no
essential difference, if the people are the people of the States, and
sovereign in their severalty, and not in their union.  Had it been
formed by the State governments with the acquiescence of the people, it
would have rested on as high authority as if formed by the people of
the State in convention assembled.  The only difference is, that if the
State ratified it by the legislature, she could abrogate it by the
legislature; if in convention, she could abrogate it only in
convention.  Mr. Madison, following Mr. Jefferson, supposes the
constitution makes the people of the several States one people for
certain specific purposes, and leaves it to be supposed that in regard
to all other matters, or in all other relations, they are sovereign;
and hence he makes the government a mixture of a consolidated
government and a confederated government, but neither the one nor the
other exclusively.  Say the people of the United States were one people
in all respects, and under a government which is neither a consolidated
nor a confederated government, nor yet a mixture of the two, but a
government in which the powers of government are divided between a
general government and particular governments, each emanating from the
same source, and you will have the simple fact, and precisely what Mr.
Madison means, when is eliminated what is derived from his theory of
the origin of government in compact.  It is this theory of the
conventional origin of the constitution, and which excludes the
Providential or real constitution of the people, that has misled him
and so many other eminent statesmen and constitutional lawyers.

The convention did not create the Union or unite the States, for it was
assembled by the authority of the United States who were present in it.
The United States or Union existed before the convention, as the
convention itself affirms in declaring one of its purposes to be "to
provide for a more perfect union."  If there had been no union, it
could not and would not have spoken of providing for a more perfect
union, but would have stated its purpose to be to create or form a
union.  The convention did not form the Union, nor in fact provide for
a more perfect union; it simply provided for the more perfect
representation or expression in the General government of the Union
already existing.  The convention, in common with the statesmen at the
time, recognized no unwritten or Providential constitution of a people,
and regarded the constitution of government as the constitution of the
state, and consequently sometimes put the state for the government.  In
interpreting its language, it is necessary to distinguish between its
act and its theory.  Its act is law, its theory is not.  The convention
met, among other things, to organize a government which should more
perfectly represent the union of the States than did the government
created by the Articles of Confederation.

The convention, certainly, professes to grant or concede powers to the
United States, and to prohibit powers to the States; but it simply puts
the state for the government.  The powers of the United States are,
indeed, grants or trusts, but from God through the law of nature, and
are grants, trusts, or powers always conceded to every nation or
sovereign people.  But none of them are grants from the convention.
The powers the convention grants or concedes to the United States are
powers granted or conceded by the United States to the General
government it assembled to organize and establish, which, as it extends
over the whole population and territory of the Union, and, as the
interests it is charged with relate to all the States in common, or to
the people as a whole, is with no great impropriety called the
government of the United States, in contradistinction from the State
governments, which have each only a local jurisdiction. But the more
exact term is, for the one, the general government, and for the others,
particular governments, as having charge only of the particular
interests of the State; and the two together constitute the government
of the United States, or the complete national government; for neither
the General government nor the State government is complete in itself.
The convention developed a general government, and prescribed its
powers, and fixed their limits and extent, as well as the bounds of the
powers of the State or particular governments; but they are the United
States assembled in convention that do all this, and, therefore,
strictly speaking, no powers are conceded to the United States that
they did not previously possess.  The convention itself, in the
constitution it ordained, defines very clearly from whom the General
government holds its powers.  It holds them, as we I have seen, from
"We, the people of the United States;" not we, the people of the States
severally, but of the States united.  If it had meant the States
severally, it would have said, We, the States; if it had recognized and
meant the population of the country irrespective of its organization
into particular States, it would have said simply, We, the people.  By
saying "We, the people of the United States," it placed the sovereign
power where it is, in the people of the States united.

The convention ordains that the powers not conceded to the General
government or prohibited to the particular governments, "are reserved
to the States respectively, or to the people." But the powers reserved
to the States severally are reserved by order of the United States, and
the powers not so reserved are reserved to the people.  What people?
The first thought is that they are the people of the States severally;
for the constitution understands by people the state as distinguished
from the state government; but if this had been its meaning in this
place, it would have said, "are reserved to the States respectively, or
to the people" thereof.  As it does not say so, and does not define the
people it means, it is necessary to understand by them the people
called in the preamble "the people of the United States." This is
confirmed by the authority reserved to amend the constitution, which
certainly is not reserved to the States severally, but necessarily to
the power that ordains the constitution--"We, the people of the United
States."  No power except that which ordains is or can be competent to
amend a constitution of government.  The particular mode prescribed by
the convention in which the constitution of the government may be
amended has no bearing on the present argument, because it is
prescribed by the States united, not severally, and the power to amend
is evidently reserved, not indeed to the General government, but to the
United States; for the ratification by any State or Territory not in
the Union counts for nothing.  The States united, can, in the way
prescribed, give more or less power to the General government, and
reserve more or less power to the States individually.  The so-called
reserved powers are really reserved to the people of the United States,
who can make such disposition of them as seems to them good.

The conclusion, then, that the General government holds from the States
united, not from the States severally, is not invalidated by the fact
that its constitution was completed only by the ratification of the
States in their individual capacity.  The ratification was made
necessary by the will of the people in convention assembled; but the
convention was competent to complete it and put it in force without
that ratification, had it so willed.  The general practice under the
American system is for the convention to submit the constitution it has
agreed on to the people, to be accepted or rejected by a plebiscitum;
but such submission, though it may be wise and prudent, is not
necessary. The convention is held to be the convention of the people,
and to be clothed with the full authority of the sovereign people, and
it is in this that it differs from the congress or the legislature.  It
is not a congress of delegates or ministers who are obliged to act
under instructions, to report their acts to their respective sovereigns
for approval or rejection; it is itself sovereign, and may do whatever
the people themselves can do.  There is no necessity for it to appeal
to a plebiscitum to complete its acts.  That the convention, on the
score of prudence, is wise in doing so, nobody questions; but the
convention is always competent, if it chooses, to ordain the
constitution without appeal.  The power competent to ordain the
constitution is always competent to change, modify, or amend it. That
amendments to the constitution of the government can be adopted only by
being proposed by a convention of all the States in the Union, or by
being proposed, by a two-thirds vote of both houses of Congress, and
ratified by three-fourths of the States, is simply a conventional
ordinance, which the convention can change at its pleasure.  It proves
nothing as it stands but the will of the convention.

The term ratification itself, because the term commonly used in
reference to treaties between sovereign powers, has been seized on,
since sometimes used by the convention, to prove that the constitution
emanates from the States severally, and is a treaty or compact between
sovereign states, not an organic or fundamental law ordained by a
single sovereign will; but this argument is inadmissible, because, as
we have just seen, the convention is competent to ordain the
constitution without submitting it for ratification, and because the
convention uses sometimes the word adopt instead of the word ratify.
That the framers of the constitution held it to be a treaty, compact,
or agreement among sovereigns, there is no doubt, for they so held in
regard to all constitution of government; and there is just as little
doubt that they intended to constitute, and firmly believed that they
were constituting a real government. Mr. Madison's authority on this
point is conclusive.  They unquestionably regarded the States, prior to
the ratification of the constitution they proposed, as severally
sovereign, as they were declared to be by the old Articles of
Confederation, but they also believed that all individuals are
sovereign prior to the formation of civil society.  Yet very few, if
any, of them believed that they remained sovereign after the adoption
of the constitution; and we may attribute to their belief in the
conventional origin of all government,--the almost universal belief of
the time among political philosophers,--the little account which they
made of the historical facts that prove that the people of the United
States were always one people, and that the States never existed as
severally sovereign states.

The political philosophers of the present day do not generally accept
the theory held by our fathers, and it has been shown in these pages to
be unsound and incompatible with the essential nature of government.
The statesmen of the eighteenth century believed that the state is
derived from the people individually, and held that sovereignty is
created by the people in convention. The rights and powers of the
state, they held, were made up of the rights held by individuals under
the law of nature, and which the individuals surrendered to civil
society on its formation. So they supposed that independent sovereign
states might meet in convention, mutually agree to surrender a portion
of their rights, organize their surrendered rights into a real
government, and leave the convention shorn, at least, of a portion of
their sovereignty.  This doctrine crops out everywhere in the writings
of the elder Adams, and is set forth with rare ability by Mr. Webster,
in his great speech in the Senate against the State sovereignty
doctrine of General Hayne and Mr. Calhoun, which won for him the
honorable title of Expounder of the Constitution--and expound it he, no
doubt, did in the sense of its framers.  He boldly concedes that prior
to the adoption of the constitution, the people of the United States
were severally sovereign states, but by the constitution they were made
one sovereign political community or people, and that the States,
though retaining certain rights, have merged their several sovereignty
in the Union.

The subtle mind of Mr. Calhoun, who did not hold that a state can
originate in compact, proved to Mr. Webster that his theory could not
stand; that, if the States went into the convention sovereign States,
they came out of it sovereign States; and that the constitution they
formed could from the nature of the case be only a treaty, compact, or
agreement between sovereigns.  It could create an agency, but not a
government.  The sovereign States could only delegate the exercise of
their sovereign powers, not the sovereign powers themselves.  The
States could agree to exercise certain specific powers of sovereignty
only in common, but the force and vitality of the agreement depended on
the States, parties to the agreement retaining respectively their
sovereignty.  Hence, he maintained that sovereignty, after as before
the convention, vested in the States severally.  Hence State
sovereignty, and hence his doctrine that in all cases that cannot come
properly before the Supreme Court of the United States for decision,
each State is free to decide for itself, on which he based the right of
nullification, or the State veto of acts of Congress whose
constitutionality the State denies. Mr. Calhoun was himself no
secessionist, but he laid down the premises from which secession is the
logical deduction; and large numbers of young men, among the most open,
the most generous, and the most patriotic in the country, adopted his
premises, without being aware of this fact any more than he himself
was, and who have been behind none in their loyalty to the Union, and
in their sacrifices to sustain it, in the late rebellion.

The formidable rebellion which is now happily suppressed, and which
attempted to justify itself by the doctrine of State sovereignty, has
thrown, in many minds, new light on the subject, and led them to
re-examine the historical facts in the case from a different point of
view, to see if Mr. Calhoun's theory is not as unfounded as he had
proved Mr. Webster's theory to be.  The facts in the case really
sustain neither, and both failed to see it: Mr. Calhoun because he had
purposes to accomplish which demanded State sovereignty, and Mr.
Webster because he examined them in the distorting medium of the theory
or understanding of the statesmen of the eighteenth century.  The civil
war has vindicated the Union, and defeated the armed forces of the
State sovereignty men; but it has not refuted their doctrine, and as
far as it has had any effect, it has strengthened the tendency to
consolidation or centralism.

But the philosophy, the theory of government, the understanding of the
framers of the constitution, must be considered, if the expression will
be allowed, as obiter dicta, and be judged on their merits.  What binds
is the thing done, not the theory on which it was done, or on which the
actors explained their work either to themselves or to others.  Their
political philosophy, or their political theory, may sometimes affect
the phraseology they adopt, but forms no rule for interpreting their
work.  Their work was inspired by and accords with the historical facts
in the case, and is authorized and explained by them.  The American
people were not made one people by the written constitution, as Mr.
Jefferson, Mr. Madison, Mr. Webster, and so many others supposed, but
were made so by the unwritten constitution, born with and inherent in
them.




CHAPTER XI.

THE CONSTITUTION--CONTINUED.


Providence, or God operating through historical facts, constituted the
American people one political or sovereign people, existing and acting
in particular communities, organizations, called states.  This one
people organized as states, meet in convention, frame and ordain the
constitution of government, or institute a general government in place
of the Continental Congress; and the same people, in their respective
State organizations, meet in convention in each State, and frame and
ordain a particular government for the State individually, which, in
union with the General government, constitutes the complete and supreme
government within the States, as the General government, in union with
all the particular governments, constitutes the complete and supreme
government of the nation or whole country.  This is clearly the view
taken by Mr. Madison in his letter to Mr. Everett, when freed from his
theory of the origin of government in compact.

The constitution of the people as one people, and the distinction at
the same time of this one people into particular States, precedes the
convention, and is the unwritten constitution, the Providential
constitution, of the American people or civil society, as distinguished
from the constitution of the government, which, whether general or
particular, is the ordination of civil society itself.  The unwritten
constitution is the creation or constitution of the sovereign, and the
sovereign providentially constituted constitutes in turn the
government, which is not sovereign, but is clothed with just so much
and just so little authority as the sovereign wills or ordains.

The sovereign in the republican order is the organic people, or State,
and is with us the United States, for with us the organic people exist
only as organized into States united, which in their union form one
compact and indissoluble whole.  That is to say, the organic American
people do not exist as a consolidated people or state; they exist only
as organized into distinct but inseparable States.  Each State is a
living member of the one body, and derives its life from its union with
the body, so that the American state is one body with many members; and
the members, instead of being simply individuals, are States, or
individuals organized into States.  The body consists of many members,
and is one body, because the members are all members of it, and members
one of another.  It does not exist as separate or distinct from the
members, but exists in their solidarity or membership one of another.
There is no sovereign people or existence of the United States
distinguishable from the people or existence of the particular States
united.  The people of the United States, the state called the United
States, are the people of the particular States united.  The solidarity
of the members constitutes the unity of the body.  The difference
between this view and Mr. Madison's is, that while his view supposes
the solidarity to be conventional, originating and existing in compact,
or agreement, this supposes it to be real, living, and prior to the
convention, as much the work of Providence as the existence in the
human body of the living solidarity of its members.  One law, one life,
circulates through all the members, constituting them a living
organism, binding them in living union, all to each and each to all.

Such is the sovereign people, and so far the original unwritten
constitution.  The sovereign, in order to live and act, must have an
organ through which he expresses his will.  This organ under the
American system, is primarily the Convention.  The convention is the
supreme political body, the concrete sovereign authority, and exercises
practically the whole sovereign power of the people.  The convention
persists always, although not in permanent session.  It can at any time
be convened by the ordinary authority of the government, or, in its
failure, by a plebiscitum.

Next follows the Government created and constituted by the convention.
The government is constituted in such manner, and has such and only
such powers, as the convention ordains.  The government has, in the
strict sense, no political authority under the American system, which
separates the government from the convention.  All political questions
proper, such as the elective franchise, eligibility, the constitution
of the several departments of government, as the legislative, the
judicial, and the executive, changing, altering, or amending the
constitution of government, enlarging, or contracting its powers, in a
word, all those questions that arise on which it is necessary to take
the immediate orders of the sovereign, belong not to the government,
but to the convention; and where the will of the sovereign is not
sufficiently expressed in the constitution, a new appeal to the
convention is necessary, and may always be had. The constitution of
Great Britain makes no distinction between the convention and the
government.  Theoretically the constitution of Great Britain is feudal,
and there is, properly speaking, no British state; there are only the
estates, king, lords, and commons, and these three estates constitute
the Parliament, which is held to be omnipotent; that is, has the
plenitude of political sovereignty.  The British Parliament, composed
of the three estates, possesses in itself all the powers of the
convention in the American constitution, and is at once the convention
and the government.  The imperial constitution of France recognizes no
convention, but clothes the senate with certain political functions,
which, in some respects, subjects theoretically the sovereign to his
creature. The emperor confessedly holds his power by the grace of God
and the will of the nation, which is a clear acknowledgment that the
sovereignty vests in the French people as the French state; but the
imperial constitution, which is the constitution of the government, not
of the state, studies, while acknowledging the sovereignty of the
people, to render it nugatory, by transferring it, under various subtle
disguises, to the government, and practically to the emperor as chief
of the government.  The senate, the council of state, the legislative
body, and the emperor, are all creatures of the French state, and have
properly no political functions, and to give them such functions is to
place the sovereign under his own subjects!  The real aim of the
imperial constitution is to secure despotic power under the guise of
republicanism.  It leaves and is intended to leave the nation no way of
practically asserting its sovereignty but by either a revolution or a
plebiscitum, and a plebiscitum is permissible only where there is no
regular government.

The British constitution is consistent with itself, but imposes no
restriction on the power of the government.  The French imperial
constitution is illogical, inconsistent with itself as well as with the
free action of the nation.  The American constitution has all the
advantages of both, and the disadvantages of neither.  The convention
is not the government like the British Parliament, nor a creature of
the state like the French senate, but the sovereign state itself, in a
practical form.  By means of the convention the government is
restricted to its delegated powers, and these, if found in practice
either too great or too small, can be enlarged or contracted in a
regular, orderly way, without resorting to a revolution or to a
plebiscitum.  Whatever political grievances there may be, there is
always present the sovereign convention competent to redress them.  The
efficiency of power is thus secured without danger to liberty, and
freedom without danger to power.  The recognition of the convention,
the real political sovereign of the country and its separation from and
independence of the ordinary government, is one of the most striking
features of the American constitution.

The next thing to be noted, after the convention, is the constitution
by the convention of the government.  This constitution, as Mr. Madison
well observes, divides the powers conceded by the convention to
government between the General Government and the particular State
governments.  Strictly speaking, the government is one, and its powers
only are divided and exercised by two sets of agents or ministries.
This division of the powers of government could never have been
established by the convention if the American people had not been
providentially constituted one people, existing and acting through
particular State organizations.  Here the unwritten constitution, or
the constitution written in the people themselves, rendered practicable
and dictated the written constitution, or constitution ordained by the
convention and engrossed on parchment.  It only expresses in the
government the fact which pre-existed in the national organization and
life.

This division of the powers of government is peculiar to the United
States, and is an effective safeguard against both feudal
disintegration and Roman centralism.  Misled by their prejudices and
peculiar interests, a portion of the people of the United States,
pleading in their justification the theory of State sovereignty,
attempted disintegration, secession, and national independence separate
from that of the United States, but the central force of the
constitution was too strong for them to succeed.  The unity of the
nation was too strong to be effectually broken.  No doubt the reaction
against secession and disintegration will strengthen the tendency to
centralism, but centralism can succeed no better than disintegration
has succeeded because the General government has no subsistentia, no
suppositum, to borrow a theological term, outside or independent of the
States.  The particular governments are stronger, if there be any
difference, to protect the States against centralism than the General
government is to protect the Union against disintegration; and after
swinging for a time too far toward one extreme and then too far toward
the other, the public mind will recover its equilibrium, and the
government move on in its constitutional path.

Republican Rome attempted to guard against excessive centralism by the
tribunitial veto, or by the organization of a negative or obstructive
power.  Mr. Calhoun thought this admirable, and wished to effect the
same end here, where it is secured by other, more effective, and less
objectionable means, by a State veto on the acts of Congress, by a dual
executive, and by substituting concurrent for numerical majorities.
Imperial Rome gradually swept away the tribunitial veto, concentrated
all power in the hands of the emperor, became completely centralized,
and fell.  The British constitution seeks the same end by substituting
estates for the state, and establishing a mixed government, in which
monarchy, aristocracy, and democracy temper, check, or balance each
other; but practically the commons estate has become supreme, and the
nobility govern not in the house of lords, and can really influence
public affairs only through the house of commons.  The principle of the
British constitution is not the division of the powers of government,
but the antagonism of estates, or rather of interests, trusting to the
obstructive influence of that antagonism to preserve the government
from pure centralism.  Hence the study of the British statesman is to
manage diverse and antagonistic parties and interests so as to gain the
ability to act, which he can do only by intrigue, cajolery, bribery in
one form or another, and corruption of every sort.  The British
government cannot be carried on by fair, honest, and honorable means,
any more than could the Roman under the antagonism created by the
tribunitial veto.  The French tried the English system of organized
antagonism in 1789, as a cure for the centralism introduced by
Richelieu and Louis XIV., and again under the Restoration and Louis
Philippe, and called it the system of constitutional guarantees; but
they could never manage it, and they have taken refuge in unmitigated
centralism under Napoleon III., who, however well disposed, finds no
means in the constitution of the French nation of tempering it.  The
English system, called the constitutional, and sometimes the
parliamentary system, will not work in France, and indeed works really
well nowhere.

The American system, sometimes called the Federal system, is not
founded on antagonism of classes, estates, or interests, and is in no
sense a system of checks and balances.  It needs and tolerates no
obstructive forces.  It does not pit section against section, the
States severally against the General government, nor the General
government against the State governments, and nothing is more hurtful
than the attempt to explain it and work it on the principles of British
constitutionalism.  The convention created no antagonistic powers; it
simply divided the powers of government, and gave neither to the
General government nor to the State governments all the powers of
government, nor in any instance did it give to the two governments
jurisdiction in the same matters. Hence each has its own sphere, in
which it can move on without colliding with that of the other.  Each is
independent and complete in relation to its own work, incomplete and
dependent on the other for the complete work of government.

The division of power is not between a NATIONAL government and State
governments, but between a GENERAL government and particular
governments.  The General government, inasmuch as it extends to matters
common to all the States, is usually called the Government of the
United States, and sometimes the Federal government, to distinguish it
from the particular or State governments, but without strict propriety;
for the government of the United States, or the Federal government,
means, in strictness, both the General government and the particular
Governments, since neither is in itself the complete government of the
country.  The General government has authority within each of the
States, and each of the State governments has authority in the Union.
The line between the Union and the States severally, is not precisely
the line between the General government and the particular governments.
As, for instance, the General government lays direct taxes on the
people of the States, and collects internal revenue within them; and
the citizens of a particular State, and none others, are electors of
President and Vice-President of the United States, and representatives
in the lower house of Congress, while senators in Congress are elected
by the State legislatures themselves.

The line that distinguishes the two governments is that which
distinguishes the general relations and interests from the particular
relations and interests of the people of the United States.  These
general relations and interests are placed under the General
government, which, because its jurisdiction is coextensive with the
Union, is called the Government of the United States; the particular
relations and interests are placed under particular governments, which,
because their jurisdiction is only coextensive, with the States
respectively, are called State governments.  The General government
governs supremely all the people of the United States and Territories
belonging to the Union, in all their general relations and interests,
or relations and interests common alike to them all; the particular or
State government governs supremely the people of a particular State, as
Massachusetts, New York, or New Jersey, in all that pertains to their
particular or private rights, relations, and interests.  The powers of
each are equally sovereign, and neither are derived from the other.
The State governments are not subordinate to the General government,
nor the General government to the State governments.  They are
co-ordinate governments, each standing on the same level, and deriving
its powers from the same sovereign authority.  In their respective
spheres neither yields to the other.  In relation to the matters within
its jurisdiction, each government is independent and supreme in regard
of the other, and subject only to the convention.

The powers of the General government are the power--

To lay and collect taxes, duties, imposts, and excises, to pay the
debts and provide for the general welfare of the United States; to
borrow money on the credit of the United States; to regulate commerce
with foreign nations, among the several States, and with the Indian
tribes; to establish a uniform rule of naturalization, and uniform laws
on the subject of bankruptcies throughout the United States; to coin
money and regulate the value thereof, and fix the standard of weights
and measures; to provide for the punishment of counterfeiting the
securities and current coin of the United States; to establish
post-offices and post-roads; to promote the progress of science and of
the useful arts, by securing for limited times to authors and inventors
the exclusive right to their respective writings and discoveries; to
define and punish piracies and felonies committed on the high seas, and
offences against the law of nations; to declare war, grant letters of
marque and reprisal, and make rules concerning captures on land and
water; to raise and support armies; to provide and maintain a navy; to
make rules for the government of the land and naval forces; to provide
for calling forth the militia to execute the laws of the Union,
suppress insurrections, and repel invasions; to provide for organizing,
arming, and disciplining the militia, and of governing such part of
them as may be employed in the service of the United States; to
exercise exclusive legislation in all cases whatsoever over such
district, not exceeding ten miles square, as may by cession of
particular States and the acceptance of Congress, become the seat of
the government of the United States, and to exercise a like authority
over all places purchased by the consent of the legislature of the
State in which the same shall be, for the erection of forts, magazines,
arsenals, dock-yards, and other needful buildings; and to make all laws
which shall be necessary and proper for carrying into execution the
foregoing powers, and all other powers vested by this constitution in
the government of the United States, or in any department or office
thereof.

In addition to these, the General government is clothed with the
treaty-making power, and the whole charge of the foreign relations of
the country; with power to admit new States into the Union; to dispose
of and make all needful rules and regulations concerning the territory
and all other property belonging to the United States; to declare, with
certain restrictions, the punishment of treason, the constitution
itself defining what is treason against the United States; and to
propose, or to call, on the application of the legislatures of
two-thirds of all the states, a convention for proposing amendments to
this constitution; and is vested with supreme judicial power, original
or appellate, in all cases of law and equity arising under this
constitution, the laws of the United States, and treaties made or to be
made under their authority, in all cases affecting ambassadors, other
public ministers, and consuls, in all cases of admiralty and maritime
jurisdiction, in all controversies to which the United States shall be
a party, all controversies between two or more States, between a State
and citizens of another State, between citizens of different States,
between citizens of the same State claiming lands under grants of
different States, and between a State or the citizens thereof and
foreign states, citizens, or subjects.

These, with what is incidental to them, and what is necessary and
proper to carry them into effect, are all the positive powers with
which the convention vests the General government, or government of the
United States, as distinguished from the governments of the particular
States; and these, with the exception of what relates to the district
in which it has its seat, and places of forts, magazines, &c., are of a
general nature, and restricted to the common relations and interests of
the people, or at least to interests and relations which extend beyond
the limits of a particular State.  They are all powers that regard
matters which extend beyond not only the individual citizen, but the
individual State, and affect alike the relations and interests of all
the States, or matters which cannot be disposed of by a State
government without the exercise of extra-territorial jurisdiction.
They give the government no jurisdiction of questions which affect
individuals or citizens only in their private and domestic relations
which lie wholly within a particular State.  The General government
does not legislate concerning private rights, whether of persons or
things, the tenure of real estate, marriage, dower, inheritance, wills,
the transferrence or transmission of property, real or personal; it can
charter no private corporations, out of the District of Columbia, for
business, literary, scientific, or eleemosynary purposes, establish no
schools, found no colleges or universities, and promote science and the
useful arts only by securing to authors and inventors for a time the
exclusive right to their writings and discoveries.  The United States
Bank was manifestly unconstitutional, as probably are the present
so-called national banks.  The United States Bank was a private or
particular corporation, and the present national banks are only
corporations of the same sort, though organized under a general law.
The pretence that they are established to supply a national currency,
does not save their constitutionality, for the convention has not given
the General government the power nor imposed on it the duty of
furnishing a national currency. To coin money, and regulate the value
thereof, is something very different from authorizing private companies
to issue bank notes, on the basis of the public stocks held as private
property, or even on what is called a specie basis.  To claim the power
under the general welfare clause would be a simple mockery of good
sense.  It is no more for the general welfare than any other successful
private business.  The private welfare of each is, no doubt, for the
welfare of all, but not therefore is it the "general welfare," for what
is private, particular in its nature, is not and cannot be general.  To
understand by general welfare that which is for the individual welfare
of all or the greater number, would be to claim for the General
government all the powers of government, and to deny that very division
of powers which is the crowning merit of the American system.  The
general welfare, by the very force of the words themselves, means the
common as distinguished from the private or individual welfare.  The
system of national banks may or may not be a good and desirable system,
but it is difficult to understand the constitutional power of the
General government to establish it.

On the ground that its powers are general, not particular, the General
government has no power to lay a protective tariff.  It can lay a
tariff for revenue, not for protection of home manufactures or home
industry; for the interests fostered, even though indirectly
advantageous to the whole people, are in their nature private or
particular, not general interests, and chiefly interests of private
corporations and capitalists.  Their incidental or even consequential
effects do not change their direct and essential nature.  So with
domestic slavery.  Slavery comes under the head of private rights,
whether regarded on the side of the master or on the side of the slave.
The right of a citizen to hold a slave, if a right at all, is the
private right of property, and the right of the slave to his freedom is
a private and personal right, and neither is placed under the safeguard
of the General government, which has nowhere, unless in the District of
Columbia and the places over which it has exclusive legislative power
in all cases whatsoever, either the right to establish it or to abolish
it, except perhaps under the war power, as a military necessity, an
indemnity for the past, or a security for the future.

This applies to what are called Territories as well as to the States.
The right of the government to govern the Territories in regard to
private and particular rights and interests, is derived from no express
grant of power, and is held only ex necessitate--the United States
owning the domain, and there being no other authority competent to
govern them.  But, as in the case of all powers held ex necessitate,
the power is restricted to the absolute necessity in the case.  What
are called Territorial governments, to distinguish them from the State
governments, are only provisional governments, and can touch private
rights and interests no further than is necessary to preserve order and
prepare the way for the organization and installation of a regular
State government.  Till then the law governing private rights is the
law that was in force, if any such there was, when the territory became
by purchase, by conquest, or by treaty, attached to the domain of the
United States.

Hence the Supreme Court declared unconstitutional the ordinance of
1787, prohibiting slavery in what was called the territory of the
Northwest, and the so-called Missouri Compromise, prohibiting slavery
north of the parallel 36° 30'.  The Wilmot proviso was for the same
reason unconstitutional.  The General government never had and has not
any power to exclude slavery from the Territories, any more than to
abolish it in the States. But slavery being a local institution,
sustained neither by the law of nature nor the law of nations, no
citizen migrating from a slave State could carry his slaves with him,
and hold them as slaves in the Territory.  Rights enacted by local law
are rights only in that locality, and slaves carried by their masters
into a slave State even, are free, unless the State into which they are
carried enacts to the contrary.  The only persons that could be held as
slaves in a Territory would be those who were slaves or the children of
those who were slaves in the Territory when it passed to the United
States.  The whole controversy on, slavery in the Territories, and
which culminated in the civil war, was wholly unnecessary, and never
could have occurred had the constitution been properly understood and
adhered to by both sides.  True, Congress could not exclude slavery
from the Territory, but neither could citizens migrating to them hold
slaves in them; and so really slavery was virtually excluded, for the
inhabitants in nearly all of them, not emigrants from the States after
the cession to the United States, were too few to be counted.

The General government has power to establish a uniform rule of
naturalization, to which all the States must conform, and it was very
proper that it should have this power, so as to prevent one State from
gaining by its naturalization laws an undue advantage over another; but
the General government has itself no power to naturalize a single
foreigner, or in any case to say who shall or who shall not be
citizens, either of a State or of the United States, or to declare who
may or may not be electors even of its own officers.  The convention
ordains that members of the house of representatives shall be chosen by
electors who have the qualifications requisite for electors of the most
numerous branch of the State legislature, but the State determines
these qualifications, and who do or do not possess them; that the
senators shall be chosen by the State legislatures, and that the
electors of President and Vice-President shall be appointed in such
manner as the respective State legislatures may direct.  The whole
question of citizenship, what shall or shall not be the qualifications
of electors, who shall or shall not be freemen, is reserved to the
States, as coming under the head of personal or private rights and
franchises.  In practice, the exact line of demarcation may not always
have been strictly observed either by the General government or by the
State governments; but a careful study of the constitution cannot fail
to show that the division of powers is the division or distinction
between the public and general relations and interests, rights and
duties of the people, and their private and particular relations and
interests, rights and duties.  As these two classes of relations and
interests, rights and duties, though distinguishable, are really
inseparable in nature, it follows that the two governments are
essential to the existence of a complete government, or to the
existence of a real government in its plenitude and integrity.  Left to
either alone, the people would have only an incomplete, an initial, or
inchoate government.  The General government is the complement of the
State governments, and the State governments are the complement of the
General government.

The consideration of the powers denied by the convention to the General
government and to the State governments respectively, will lead to the
same conclusion.  To the General government is denied expressly or by
necessary implication all jurisdiction in matters of private rights and
interests, and to the State government is denied all jurisdiction in
right, or interests which extend, as has been said, beyond the
boundaries of the State.  "No State shall enter into any treaty,
alliance, or confederation; grant letters of marque and reprisal; coin
money, emit bills of credit, make any thing but gold and silver coin a
tender in the payment of debts; pass any bill of attainder, ex post
facto law, or law impairing the obligation of contracts, or grant any
title of nobility.  No State shall, without the consent of Congress,
lay any imposts or duties on imports or exports, except what may be
absolutely necessary for executing its inspection laws and the net
produce of all duties and imposts laid by any State on imports and
exports shall be for the use of the treasury of the United States, and
all such laws shall be subject to the revision and control of Congress.
No State shall, without the consent of Congress, lay any duty of
tonnage, keep troops or ships-of-war in time of peace, enter into any
agreement or compact with another State or with a foreign power, or
engage in war, unless actually invaded, or in such imminent danger as
will not admit of delay."

The powers denied to the States in some matters which are rather
private and particular, such as bills of attainder, ex post facto laws,
laws impairing the obligation of contracts, granting titles of
nobility, are denied equally to the General government. There is
evidently a profound logic in the constitution, and there is not a
single provision in it that is arbitrary, or anomalous, or that does
not harmonize dialectically with the whole, and with the real
constitution of the American people.  At first sight the reservation to
the State of the appointment of the officers of the militia might seem
an anomaly; but as the whole subject of internal police belongs to the
State, it should have some military force at its command.  The subject
of bankruptcies, also, might seem to be more properly within the
province of the State, and so it would be if commerce between the
several States had not been placed under Congress, or if trade were
confined to the citizens of the State and within its boundaries; but as
such is not the case, it was necessary to place it under the General
government, in order that laws on the subject might be uniform
throughout the Union, and that the citizens of all the States, and
foreigners trading with them, should be placed on an equal footing, and
have the same remedies. The subject follows naturally in the train of
commerce, for bankruptcies, as understood at the time, were confined to
the mercantile class, bankers, and brokers; and since the regulation of
commerce, foreign and inter-state, was to be placed under the sole
charge of the General government, it was necessary that bankruptcy
should be included.  The subject of patents is placed under the General
government, though the patent is a private right, because it was the
will of the convention that the patent should be good in all the
States, as affording more encouragement to science and the useful arts
than if good only within a single State, or if the power were left to
each State to recognize or not patents granted by another.  The right
created, though private in its nature, is Yet general or common to all
the States in its enjoyment or exercise.

The division of the powers of government between a General government
and particular governments, rendered possible and practicable by the
original constitution of the people themselves, as one people existing
and acting through State organizations, is the American method of
guarding against the undue centralism to which Roman imperialism
inevitably tends; and it is far simpler and more effective than any of
the European systems of mixed governments, which seek their end by
organizing an antagonism of interests or classes.  The American method
demands no such antagonism, no neutralizing of one social force by
another, but avails itself of all the forces of society, organizes them
dialectically, not antagonistically, and thus protects with, equal
efficiency both public authority and private rights.  The General
government can never oppress the people as individuals, or abridge
their private rights or personal freedom and independence, because
these are not within its jurisdiction, but are placed in charge, within
each State, of the State government, which, within its sphere, governs
as supremely as the General government: the State governments cannot
weaken the public authority of the nation or oppress the people in
their general rights and interests, for these are withdrawn from State
jurisdiction, and placed under charge of a General government, which,
in its sphere, governs as supremely as the State government.  There is
no resort to a system of checks and balances; there is no restraint on
power, and no systematic distrust of power, but simply a division of
powers between two co-ordinate governments, distinct but inseparable,
moving in distinct spheres, but in the same direction, or to a common
end. The system is no invention of man, is no creation of the
convention, but is given us by Providence in the living constitution of
the American people.  The merit of the statesmen of 1787 is that they
did not destroy or deface the work of Providence, but accepted it, and
organized the government in harmony with the real orders the real
elements given them.  They suffered themselves in all their positive
substantial work to be governed by reality, not by theories and
speculations.  In this they proved themselves statesmen, and their work
survives; and the republic, laugh as sciolists may, is, for the present
and future, the model republic--as much so as was Rome in her day; and
it is not simply national pride nor American self-conceit that
pronounces its establishment the beginning of a new and more advanced
order of civilization; such is really the fact.

The only apparently weak point in the system is in the particular
States themselves.  Feudalism protected the feudal aristocracy
effectively for a time against both the king and the people, but left
the king and the people without protection against the aristocracy, and
hence it fell.  It was not adequate to the wants of civil society, did
not harmonize all social elements, and protect all social and
individual rights and interests, and therefore could not but fail.  The
General government takes care of public authority and rights; the State
protects private rights and personal freedom as against the General
government: but what protects the citizens in their private rights,
their personal freedom and independence, against the particular State
government?  Universal suffrage, answers the democrat.  Armed with the
ballot, more powerful than the sword, each citizen is able to protect
himself.  But this is theory, not reality.  If it were true, the
division of the powers of government between two co-ordinate,
governments would be of no practical importance.  Experience does not
sustain the theory, and the power of the ballot to protect the
individual may be rendered ineffective by the tyranny of party.
Experience proves that the ballot is far less effective in securing the
freedom and independence of the individual citizen than is commonly
pretended.  The ballot of an isolated individual counts for nothing.
The individual, though armed with the ballot, is as powerless, if he
stands alone, as if he had it not.  To render it of any avail he must
associate himself with a party, and look for his success in the success
of his party; and to secure the success of his party, he must give up
to it his own private convictions and free will.  In practice,
individuals are nothing individually, and parties are every thing.
Even the suppression of the late rebellion, and the support of the
Administration in doing it, was made a party question, and the
government found the leaders of the party opposed to the Republican
party an obstacle hardly less difficult to surmount than the chiefs of
the armies of the so-called Confederate States.

Parties are formed, one hardly knows how, and controlled, no one knows
by whom; but usually by demagogues, men who have some private or
personal purposes, for which they wish, through party to use the
government.  Parties have no conscience, no responsibility, and their
very reason of being is, the usurpation and concentration of power.
The real practical tendency of universal suffrage is to democratic,
instead of an imperial, centralism.  What is to guard against this
centralism? Not universal suffrage, for that tends to create it; and if
the government is left to it, the government becomes practically the
will of an ever shifting and irresponsible majority.  Is the remedy in
written or paper constitutions?  Party can break through them, and by
making the judges elective by party, for short terms, and re-eligible,
can do so with impunity.  In several of the States, the dominant
majority have gained the power to govern at will, without any let or
hindrance.  Besides, constitutions can be altered, and have been
altered, very nearly at the will of the majority.  No mere paper
constitutions are any protection against the usurpations of party, for
party will always grasp all the power it can.

Yet the evil is not so great as it seems, for in most of the States the
principle of division of powers is carried into the bosom of the State
itself; in some States further than in others, but in all it obtains to
some extent.  In what are called the New England States, the best
governed portion of the Union, each town is a corporation, having
important powers and the charge of all purely local matters--chooses
its own officers, manages its own finances, takes charge of its own
poor, of its own roads and bridges, and of the education of its own
children.  Between these corporations and the State government are the
counties, that take charge of another class of interests, more general
than those under the charge of the town, but less general than those of
the State.  In the great central and Northwestern States the same
system obtains, though less completely carried out.  In the Southern
and Southwestern States, the town corporations hardly exist, and the
rights and interests of the poorer classes of persons have been less
well protected in them than in the Northern and Eastern States.  But
with the abolition of slavery, and the lessening of the influence of
the wealthy slaveholding class, with the return of peace and the
revival of agricultural, industrial, and commercial prosperity, the New
England system, in its main features, is pretty sure to be gradually
introduced, or developed, and the division of powers in the State to be
as effectively and as systematically carried out as it is between the
General government and the particular or State governments. So, though
universal suffrage, good as far as it goes, is not alone sufficient,
the division of powers affords with it a not inadequate protection.

No government, whose workings are intrusted to men, ever is or can be
practically perfect--secure all good, and guard against all evil.  In
all human governments there will be defects and abuses, and he is no
wise man who expects perfection from imperfection.  But the American
constitution, taken as a whole, and in all its parts, is the least
imperfect that has ever existed, and under it individual rights,
personal freedom and independence, as well as public authority or
society, are better protected than under any other; and as the few
barbaric elements retained from the feudal ages are eliminated, the
standard of education elevated, and the whole population Americanized,
moulded by and to the American system, it will be found to effect all
the good, with as little of the evil, as can be reasonably expected
from any possible civil government or political constitution of society.




CHAPTER XII.

SECESSION.


The doctrine that a State has a right to secede and carry with it its
population and domain, has been effectually put down, and the unity and
integrity of the United States as a sovereign nation have been
effectively asserted on the battle-field; but the secessionists, though
disposed to submit to superior force, and demean themselves henceforth
as loyal citizens, most likely hold as firmly to the doctrine as before
finding themselves unable to reduce it to practice, and the Union
victory will remain incomplete till they are convinced in their
understandings that the Union has the better reason as well as the
superior military resources.  The nation has conquered their bodies,
but it is hardly less important for our statesmen to conquer their
minds and win their hearts.

The right of secession is not claimed as a revolutionary right, or even
as a conventional right.  The secessionists disclaim revolutionary
principles, and hold that the right of secession is anterior to the
convention, a right which the convention could neither give, nor take
away, because inherent in the very conception of a sovereign State.
Secession is simply the repeal by the State of the act of accession to
the Union; and as that act was a free, voluntary act of the State, she
must always be free to repeal it.  The Union is a copartnership; a
State in the Union is simply a member of the firm, and has the right to
withdraw when it judges it for its interest to do so.  There is no
power in a firm to compel a copartner to remain a member any longer
than be pleases.  He is undoubtedly holden for the obligations
contracted by the firm while he remains a member; but for none
contracted after he has withdrawn and given due notice thereof.

So of a sovereign State in the Union.  The Union itself, apart from the
sovereign States that compose it, is a mere abstraction, a nullity, and
binds nobody.  All its substance and vitality are in the agreement by
which the States constitute themselves a firm or copartnership, for
certain specific purposes, and for which they open an office and
establish an agency under express instructions for the management of
the general affairs of the firm.  The State is held jointly and
severally for all the legal obligations of the Union, contracted while
she is in it but no further; and is free to withdraw when she pleases,
precisely as an individual may withdraw from an ordinary business firm.
The remaining copartners have no right of compulsion or coercion
against the seceding member, for he, saving the obligations already
contracted, is as free to withdraw as they are to remain.

The population is fixed to the domain and goes with it; the domain is
attached to the State, and secedes in the secession of the State.
Secession, then, carries the entire State government, people, and
domain out of the Union, and restores ipso facto the State to its
original position of a sovereign State, foreign to the United States.
Being an independent sovereign State, she may enter into a new
confederacy, form a new copartnership, or merge herself in some other
foreign state, as she judges proper or finds opportunity.  The States
that seceded formed among themselves a new confederacy, more to their
mind than the one formed in 1787, as they had a perfect right to do,
and in the war just ended they were not rebels nor revolutionists, but
a people fighting for the right of self-government, loyal citizens and
true patriots defending the independence and inviolability of their
country against foreign invaders.  They are to be honored for their
loyalty and patriotism, and not branded as rebels and punished as
traitors.

This is the secession argument, which rests on no assumption of
revolutionary principles or abstract rights of man, and on no
allegation of real or imaginary wrongs received from the Union, but
simply on the original and inherent rights of the several States as
independent sovereign States.  The argument is conclusive, and the
defence complete, if the Union is only a firm or copartnership, and the
sovereignty vests in the States severally.  The refutation of the
secessionists is in the facts adduced that disprove the theory of State
sovereignty, and prove that the sovereignty vests not in the States
severally, but in the States united, or that the Union is sovereign,
and not the States individually.  The Union is not a firm, a
copartnership, nor an artificial or conventional union, but a real,
living, constitutional union, founded in the original and indissoluble
unity of the American people, as one sovereign people.  There is,
indeed, no such people, if we abstract the States, but there are no
States if we abstract this sovereign people or the Union. There is no
Union without the States, and there are no States without the Union.
The people are born States, and the States are born United States.  The
Union and the States are simultaneous, born together, and enter alike
into the original and essential constitution of the American state.
This the facts and reasonings adduced fully establish.

But this one sovereign people that exists only as organized into
States, does not necessarily include the whole population or territory
included within the jurisdiction of the United States. It is restricted
to the people and territory or domain organized into States in the
Union, as in ancient Rome the ruling people were restricted to the
tenants of the sacred territory, which had been surveyed, and its
boundaries marked by the god Terminus, and which by no means included
all the territory held by the city, and of which she was both the
private proprietor and the public sovereign.  The city had vast
possessions acquired by confiscation, by purchase, by treaty, or by
conquest, and in reference to which her celebrated agrarian laws were
enacted, and which have their counterpart in our homestead and kindred
laws. In this class of territory, of which the city was the private
owner, was the territory of all the Roman provinces, which was held to
be only leased to its occupants, who were often dispossessed, and their
lands given as a recompense by the consul or imperator to his disbanded
legionaries.  The provincials were subjects of Rome, but formed no part
of the Roman people, and had no share in the political power of the
state, till at a late period the privileges of Roman citizens were
extended to them, and the Roman people became coextensive with the
Roman empire. So the United States have held and still hold large
territorial possessions, acquired by the acknowledgment of their
independence by Great Britain, the former sovereign, the cession of
particular states, and purchase from France, Spain, and Mexico.  Till
erected into States and admitted into the Union, this territory, with
its population, though subject to the United States, makes no part of
the political or sovereign territory and people of the United States.
It is under the Union, not in it, as is indicated by the phrase
admitting into the Union--a legal phrase, since the constitution
ordains that "new States may be admitted by the Congress into this
Union."

There can be no secession that separates a State from the national
domain, and withdraws it from the territorial sovereignty or
jurisdiction of the United States; yet what hinders a State from going
out of the Union in the sense that it comes into it, and thus ceasing
to belong to the political people of the United States?

If the view of the constitution taken in the preceding chapters be
correct, and certainly no facts tend to disprove it, the accession of a
Territory as a State in the Union is a free act of the territorial
people.  The Territory cannot organize and apply for admission as a
State, without what is called an "enabling act" of Congress or its
equivalent; but that act is permissive, not mandatory, and nothing
obliges the Territory to organize under it and apply for admission.  It
may do so or not, as it chooses. What, then, hinders the State once in
the Union from going out or returning to its former condition of
territory subject to the Union?  The original States did not need to
come in under an enabling act, for they were born States in the Union,
and were never territory outside of the Union and subject to it.  But
they and the new States, adopted or naturalized States, once in the
Union, stand on a footing of perfect equality, and the original States
are no more and no less bound than they to remain States in the Union.
The ratification of the constitution by the original States was a free
act, as much so as the accession of a new State formed from territory
subject to the Union is a free act, and a free act is an act which one
is free to do or not to do, as he pleases.  What a State is free to do
or not to do, it is free to undo, if it chooses.  There is nothing in
either the State constitution or in that of the United States that
forbids it.

This is denied.  The population and domain are inseparable in the
State; and if the State could take itself out of the Union, it would
take them out, and be ipso facto a sovereign State foreign to the
Union.  It would take the domain and the population out of the Union,
it is conceded and even maintained, but not therefore would it take
them out of the jurisdiction of the Union, or would they exist as a
State foreign to the Union; for population and territory may coexist,
as Dacota, Colorado, or New Mexico, out of the Union, and yet be
subject to the Union, or within the jurisdiction of the United States.

But the Union is formed by the surrender by each of the States of its
individual sovereignty, and each State by its admission into the Union
surrenders its individual sovereignty, or binds itself by a
constitutional compact to merge its individual sovereignty in that of
the whole.  It then cannot cease to be a State in the Union without
breach of contract.  Having surrendered its sovereignty to the Union,
or bound itself by the constitution to exercise its original
sovereignty only as one of the United States, it can unmake itself of
its state character, only by consent of the United States, or by a
successful revolution.  It is by virtue of this fact that secession is
rebellion against the United States, and that the General government,
as representing the Union, has the right and the duty to suppress it by
all the forces at its command.

There can be no rebellion where there is no allegiance.  The States in
the Union cannot owe allegiance to the Union, for they are it, and for
any one to go out of it is no more an act of rebellion than it is for a
king to abdicate his throne.  The Union is not formed by the surrender
to it by the several States of their respective individual sovereignty.
Such surrender could, as we have seen, form only an alliance, or a
confederation, not one sovereign people; and from an alliance, or
confederation, the ally or confederate has, saving its faith, the
inherent right to secede.  The argument assumes that the States were
originally each in its individuality a sovereign state, but by the
convention which framed the constitution, each surrendered its
sovereignty to the whole, and thus several sovereign states became one
sovereign political people, governing in general matters through the
General government, and in particular matters through particular or
State governments.  This is Mr. Madison's theory, and also Mr.
Webster's; but it has been refuted in the refutation of the theory that
makes government originate in compact.  A sovereign state can,
undoubtedly, surrender its sovereignty, but can surrender it only to
something or somebody that really exists; for to Surrender to no one or
to nothing is, as has been shown, the same thing as not to surrender at
all; and the Union, being formed only by the surrender, is nothing
prior to it, or till after it is made, and therefore can be no
recipient of the surrender.

Besides, the theory is the reverse of the fact.  The State does not
surrender or part with its sovereignty by coming into the Union, but
acquires by it all the rights it holds as a State. Between the original
States and the new States there is a difference of mode by which they
become States in the Union, but none in their powers, or the tenure by
which they hold them.  The process by which new States are actually
formed and admitted into the Union, discloses at once what it is that
is gained or lost by admission.  The domain and population, before the
organization of the Territory into one of the United States, are
subject to the United States, inseparably attached to the domain of the
Union, and under its sovereignty.  The Territory so remains, organized
or unorganized, under a Territorial Government created by Congress.
Congress, by an enabling act, permits it to organize as a State, to
call a convention to form a State constitution, to elect under it, in
such way as the convention ordains, State officers, a State
legislature, and, in the way prescribed by the Constitution of the
United States, senators and representatives in Congress.  Here is a
complete organization as a State, yet, though called a State, it is no
State at all, and is simply territory, without a single particle of
political power.  To be a State it must be recognized and admitted by
Congress as a State in the Union, and when so recognized and admitted
it possesses, in union with the other United States, supreme political
sovereignty, jointly in all general matters, and individually in all
private and particular matters.

The Territory gives up no sovereign powers by coming into the Union,
for before it came into the Union it had no sovereignty, no political
rights at all.  All the rights and powers it holds are held by the
simple fact that it has become a State in the Union.  This is as true
of the original States as of the new States; for it has been shown in
the chapter on The United States, that the original British sovereignty
under which the colonies were organized and existed passed, on the fact
of independence, to the States United, and not to the States severally.
Hence if nine States had ratified the constitution, and the other four
had stood out, and refused to do it, which was within their competency,
they would not have been independent sovereign States, outside of the
Union, but Territories under the Union.

Texas forms the only exception to the rule that the States have never
been independent of the Union.  All the other new States have been
formed from territory subject to the Union.  This is true of all the
States formed out of the Territory of the Northwest, and out of the
domain ceded by France, Spain, and Mexico to the United States.  All
these cessions were held by the United States as territory immediately
subject to the Union, before being erected into States; and by far the
larger part is so held even yet.  But Texas was an independent foreign
state, and was annexed as a State without having been first subjected
as territory to the United States.  It of course lost by annexation its
separate sovereignty.  But this annexation was held by many to be
unconstitutional; it was made when the State sovereignty theory had
gained possession of the Government, and was annexed as a State instead
of being admitted as a State formed from territory belonging to the
United States, for the very purpose of committing the nation to that
theory.  Its annexation was the prologue, as the Mexican war was the
first act in the secession drama, and as the epilogue is the
suppression of the rebellion on Texan soil.  Texas is an exceptional
case, and forms no precedent, and cannot be adduced as invalidating the
general rule.  Omitting Texas, the simple fact is, the States acquire
all their sovereign powers by being States in the Union, instead of
losing or surrendering them.

Our American statesmen have overlooked or not duly weighed the facts in
the case, because, holding the origin of government in compact, they
felt no need of looking back of the constitution to find the basis of
that unity of the American people which they assert.  Neither Mr.
Madison nor Mr. Webster felt any difficulty in asserting it as created
by the convention of 1787, or in conceding the sovereignty of the
States prior to the Union, and denying its existence after the
ratification of the constitution. If it were not that they held that
the State originates in convention or the social compact, there would
be unpardonable presumption on the part of the present writer in
venturing to hazard an assertion contrary to theirs.  But, if their
theory was unsound, their practical doctrine was not; for they
maintained that the American people are one sovereign people, and Mr.
Quincy Adams, an authority inferior to neither, maintained that they
were always one people, and that the States hold from the Union, not
the Union from the States.  The States without the Union cease to exist
as political communities: the Union without the States ceases to be a
Union, and becomes a vast centralized and consolidated state, ready to
lapse from a civilized into a barbaric, from a republican to a despotic
nation.

The State, under the American system, as distinguished from Territory,
is not in the domain and population fixed to it, nor yet in its
exterior organization, but solely in the political powers, rights, and
franchises which it holds from the United States, or as one of the
United States.  As these are rights, not obligations, the State may
resign or abdicate them and cease to be a State, on the same principle
that any man may abdicate or forego his rights.  In doing so, the State
breaks no oath of allegiance, fails to fulfil no obligation she
contracted as a State: she simply forgoes her political rights and
franchises. So far, then, secession is possible, feasible, and not
unconstitutional or unlawful.  But it is, as Mr. Sumner and others have
maintained, simply State suicide.  Nothing hinders a State from
committing suicide, if she chooses, any more than there was something
which compelled the Territory to become a State in the Union against
its will.

It is objected to, this conclusion that the States were, prior to the
Union, independent sovereign States, and secession would not destroy
the State, but restore it to its original sovereignty and independence,
as the secessionists maintain.  Certainly, if the States were, Prior to
the Union, sovereign States; but this is precisely what has been denied
and disproved; for prior to the Union there were no States.  Secession
restores, or reduces, rather, the State to the condition it was in
before its admission into the Union; but that condition is that of
Territory, or a Territory subject to the United States, and not that of
an independent sovereign state.  The State holds all its political
rights and powers in the Union from the Union, and has none out of it,
or in the condition in which its population and domain were before
being a State in the Union.

State suicide, it has been urged, releases its population and territory
from their allegiance to the Union, and as there is no rebellion where
there is no allegiance, resistance by its population and territory to
the Union, even war against the Union, would not be rebellion, but the
simple assertion of popular sovereignty.  This is only the same
objection in another form.  The lapse of the State releases the
population and territory from no allegiance to the Union; for their
allegiance to the Union was not contracted by their becoming a State,
and they have never in their State character owed allegiance to the
United States.  A State owes no allegiance to the United States, for it
is one of them, and is jointly sovereign.  The relation between the
United States and the State is not the relation of suzerain and
liegeman or vassal.  A State owes no allegiance, for it is not subject
to the Union; it is never in their State capacity that its population
and territory do or can rebel. Hence, the Government has steadily
denied that, in the late rebellion, any State as such rebelled.

But as a State cannot rebel, no State can go out of the Union; and
therefore no State in the late rebellion has seceded, and the States
that passed secession ordinances are and all along have been States in
the Union.  No State can rebel, but it does not follow therefrom that
no State can secede or cease to exist as a State: it only follows that
secession, in the sense of State suicide, or the abdication by the
State of its political rights and powers, is not rebellion.  Nor does
it follow from the fact that no State has rebelled, that no State has
ceased to be a State; or that the States that passed secession
ordinances have been all along States in the Union.

The secession ordinances were illegal, unconstitutional, not within the
competency of the State, and therefore null and void from the
beginning.  Unconstitutional, illegal, and not within the competency of
the State, so far as intended to alienate any portion of the national
domain and population thereto annexed, they certainly were, and so far
were void and of no effect; but so far as intended to take the State
simply as a State out of the Union, they were within the competency of
the State, were not illegal or unconstitutional, and therefore not null
and void. Acts unconstitutional in some parts and constitutional in
others are not wholly void.  The unconstitutionality vitiates only the
unconstitutional parts; the others are valid, are law, and recognized
and enforced as such by the courts.

The secession ordinances are void, because they were never passed by
the people of the State, but by a faction that overawed them and
usurped the authority of the State.  This argument implies that, if a
secession ordinance is passed by the people proper of the State, it is
valid; which is more than they who urge it against the State suicide
doctrine are prepared to concede.  But the secession ordinances were in
every instance passed by the people of the State in convention legally
assembled, therefore by them in their highest State capacity--in the
same capacity in which they ordain and ratify the State constitution
itself; and in nearly all the States they were in addition ratified and
confirmed, if the facts have been correctly reported, by a genuine
plebiscitum, or direct vote of the people.  In all cases they were
adopted by a decided majority of the political people of the State, and
after their adoption they were acquiesced in and indeed actively
supported by very nearly the whole people. The people of the States
adopting the secession ordinances were far more unanimous in supporting
secession than the people of the other States were in sustaining the
Government in its efforts to suppress the rebellion by coercive
measures.  It will not do, then, to ascribe the secession ordinances to
a faction.  The people are never a faction, nor is a faction ever the
majority.

There has been a disposition at the North, encouraged by the few Union
men at the South, to regard secession as the work of a few ambitious
and unprincipled leaders, who, by their threats, their violence, and
their overbearing manner, forced the mass of the people of their
respective States into secession against their convictions and their
will.  No doubt there were leaders at the South, as there are in every
great movement at the North; no doubt there were individuals in the
seceding States that held secession wrong in principle, and were
conscientiously attached to the Union; no doubt, also, there were men
who adhered to the Union, not because they disapproved secession, but
because they disliked the men at the head of the movement, or because
they were keen-sighted enough to see that it could not succeed, that
the Union must be the winning side, and that by adhering to it they
would become the great and leading men of their respective States,
which they certainly could not be under secession. Others sympathized
fully with what was called the Southern cause, held firmly the right of
secession, and hated cordially the Yankees, but doubted either the
practicability or the expediency of secession, and opposed it till
resolved on, but, after it was resolved on, yielded to none in their
earnest support of it. These last comprised the immense majority of
those who voted against secession.  Never could those called the
Southern leaders have carried the secession ordinances, never could
they have carried on the war with the vigor and determination, and with
such formidable armies as they collected and armed for four years,
making at times the destiny of the Union well nigh doubtful, if they
had not had the Southern heart with them, if they had not been most
heartily supported by the overwhelming mass of the people.  They led a
popular, not a factious movement.

No State, it is said again, has seceded, or could secede.  The State is
territorial, not personal, and as no State can carry its territory and
population out of the Union, no State can secede. Out of the
jurisdiction of the Union, or alienate them from the sovereign or
national domain, very true; but out of the Union as a State, with
rights, powers, or franchises in the Union, not true.  Secession is
political, not territorial.

But the State holds from the territory or domain.  The people are
sovereign because attached to a sovereign territory, not the domain
because held by a sovereign people, as was established by the analysis
of the early Roman constitution.  The territory of the States
corresponds to the sacred territory of Rome, to which was attached the
Roman sovereignty.  That territory, once surveyed and consecrated,
remained sacred and the ruling territory, and could not be divested of
its sacred and governing character.  The portions of the territory of
the United States once erected into States and consecrated as ruling
territory can never be deprived, except by foreign conquest or
successful revolution, of its sacred character and inviolable rights.

The State is territorial, not personal, and is constituted by public,
not by private wealth, and is always respublica or commonwealth, in
distinction from despotism or monarchy in its oriental sense, which is
founded on private wealth, or which assumes that the authority to
govern, or sovereignty, is the private estate of the sovereign.  All
power is a domain, but there is no domain without a dominus or lord.
In oriental monarchies the dominus is the monarch; in republics it is
the public or people fixed to the soil or territory, that is, the
people in their territorial, and not in their personal or genealogical
relation.  The people of The United States are sovereign only within
the territory or domain of the United States, and their sovereignty is
a state, because fixed, attached, or limited to that specific
territory.  It is fixed to the soil, not nomadic.  In barbaric nations
power is nomadic and personal, or genealogical, confined to no
locality, but attaches to the chief, and follows wherever he goes.  The
Gothic chiefs hold their power by a personal title, and have the same
authority in their tribes on the Po or the Rhone as on the banks of the
Elbe or the Danube.  Power migrates with the chief and his people, and
may be exercised wherever he and they find themselves, as a Swedish
queen held when she ordered the execution of one of her subjects at
Paris, without asking permission of the territorial lord.  In these
nations, power is a personal right, or a private estate, not a state
which exists only as attached to the domain, and, as attached to the
domain, exists independently of the chief or the government.  The
distinction is between public domain and private domain.

The American system is republican, and, contrary to what some
democratic politicians assert, the American democracy is territorial,
not personal; not territorial because the majority of the people are
agriculturists or landholders, but because all political rights,
powers, or franchises are territorial.  The sovereign people of the
United States are sovereign only within the territory of the United
States.  The great body of the freemen have the elective franchise, but
no one has it save in his State, his county, his town, his ward, his
precinct.  Out of the election district in which he is domiciled, a
citizen of the United States has no more right to vote than has the
citizen or subject of a foreign state.  This explains what is meant by
the attachment of power to the territory, and the dependence of the
state on the domain.  The state, in republican states, exists only as
inseparably united with the public domain; under feudalism, power was
joined to territory or domain, but the domain was held as a private,
not as a public domain.  All sovereignty rests on domain or
proprietorship, and is dominion. The proprietor is the dominus or lord,
and in republican states the lord is society, or the public, and the
domain is held for the common or public good of all.  All political
rights are held from society, or the dominus, and therefore it is the
elective franchise is held from society, and is a civil right, as
distinguished from a natural, or even a purely personal right.

As there is no domain without a lord or dominus, territory alone cannot
possess any political rights or franchises, for it is not a domain.  In
the American system, the dominus or lord is not the particular State,
but the United States, and, the domain of the whole territory, whether
erected into particular States or not, is in the United States alone.
The United States do not part with the dominion of that portion of the
national domain included within a particular State.  The State holds
the domain not separately but jointly, as inseparably one of the United
States: separated, it has no dominion, is no State, and is no longer a
joint sovereign at all, and the territory that it included falls into
the condition of any other territory held by the United States not
erected into one of the United States.

Lawyers, indeed, tell us that the eminent domain is in the particular
State, and that all escheats are to the State, not to the United
States.  All escheats of private estates, but no public or general
escheats.  But this has nothing to do with the public domain.  The
United States are the dominus, but they have, by the constitution,
divided the powers of government between a General government and
particular State governments, and ordained that all matters of a
general nature, common to all the States, should be placed under the
supreme control of the former, and all matters of a private or
particular character under the supreme control of the latter.  The
eminent domain of private estates is in the particular State, but the
sovereign authority in the particular State is that of the United
States expressing itself through the State government.  The United
States, in the States as well as out of them, is the dominus, as the
States respectively would soon find if they were to undertake to
alienate any part of their domain to a foreign power, or even to the
citizens or subjects of a foreign State, as is also evident from the
fact that the United States, in the way prescribed by the constitution,
may enlarge or contract at will the rights and powers of the States.
The mistake on this point grows out of the habit of restricting the
action of the United States to the General government, and not
recollecting that the United States govern one class of subjects
through the General government and another class through State
governments, but that it is one and the same authority that governs in
both.

The analogy borrowed from the Roman constitution, as far as applicable,
proves the reverse of what is intended.  The dominus of the sacred
territory was the city, or the Roman state, not the sacred territory
itself.  The territory received the tenant, and gave him as tenant the
right to a seat in the senate; but the right of the territory was
derived not from the domain, but from the dominus, that is, the city.
But the city could revoke its grant, as it practically did when it
conferred the privileges of Roman citizenship on the provincials, and
gave to plebeians seats in the senate.  Moreover, nothing in Roman
history indicates that to the validity of a senatus consultum it was
necessary to count the vacant domains of the sacred territory.  The
particular domain must, under the American system, be counted when it
is held by a State, but of itself alone, or even with its population,
it is not a State, and therefore as a State domain is vacant and
without any political rights or powers whatever.

To argue that the territory and population once a State in the Union
must needs always be so, would be well enough if a State in the Union
were individually a sovereign state; for territory, with its population
not subject to another, is always a sovereign state, even though its
government has been subverted.  But this is not the fact, for territory
with its population does not constitute a State in the Union; and,
therefore, when of a State nothing remains but territory and
population, the State has evidently disappeared.  It will not do then
to maintain that State suicide is impossible, and that the States that
adopted secession ordinances have never for a moment ceased to be
States in the Union, and are free, whenever they choose, to send their
representatives and senators to occupy their vacant seats in Congress.
They must be reorganized first.

There would also be some embarrassment to the government in holding
that the States that passed the secession ordinance remain,
notwithstanding, States in the Union.  The citizens of a State in the
Union cannot be rebels to the United States, unless they are rebels to
their State; and rebels to their State they are not, unless they resist
its authority and make war on it. The authority of the State in the
Union is a legal authority, and the citizen in obeying it is disloyal
neither to the State nor to the Union.  The citizens in the States that
made war on the United States did not resist their State, for they
acted by its authority.  The only men, on this supposition, in them,
who have been traitors or rebels, are precisely the Union men who have
refused to go with their respective States, and have resisted, even
with armed force, the secession ordinances.  The several State
governments, under which the so-called rebels carried on the war for
the destruction of the Union, if the States are in the Union, were
legal and loyal governments of their respective States, for they were
legally elected and installed, and conformed to their respective State
constitutions.  All the acts of these governments have been
constitutional.  Their entering into a confederacy for attaining a
separate nationality has been legal, and the debts contracted by the
States individually, or by the confederacy legally formed by them, have
been legally contracted, stand good against them, and perhaps against
the United States.  The war against them has been all wrong, and the
confederates killed in battle have been murdered by the United States.
The blockade has been illegal, for no nation can blockade its own
ports, and the captures and seizures under it, robberies.  The Supreme
Court has been wrong in declaring the war a territorial civil war, as
well as the government in acting accordingly.  Now, all these
conclusions are manifestly false and absurd, and therefore the
assumption that the States in question have all along been States in
the Union cannot be sustained.

It is easy to understand the resistance the Government offers to the
doctrine that a State may commit suicide, or by its own act abdicate
its rights and cease to be a State in the Union.  It is admissible on
no theory of the constitution that has been widely entertained.  It is
not admissible on Mr. Calhoun's theory of State sovereignty, for on
that theory a State in going out of the Union does not cease to be a
State but simply resumes the powers it had delegated to the General
government.  It cannot be maintained on Mr. Madison's or Mr. Webster's
theory, that the States prior to the Union were severally sovereign,
but by the Union were constituted one people; for, if this one people
are understood to be a federal people, State secession would not be
State suicide, but State independence; and if understood to be one
consolidated or centralized people, it would be simply insurrection or
rebellion against the national authority, laboring to make itself a
revolution.  The government seems to have understood Mr. Madison's
theory in both senses--in the consolidated sense, in declaring the
secessionists insurgents and rebels, and in the federal sense, in
maintaining that they have never seceded, and are still States in the
Union, in full possession of all their political or State rights.
Perhaps, if the government, instead of borrowing from contradictory
theories of the constitution which have gained currency, had examined
in the light of historical facts the constitution itself, it would have
been as constitutional in its doctrine as it has been loyal and
patriotic, energetic and successful in its military administration.

Another reason why the doctrine that State secession is State suicide
has appeared so offensive to many, is the supposition entertained at
one time by some of its friends, that the dissolution of the State
vacates all rights and franchises held under it.  But this is a
mistake.  The principle is well known and recognized by the
jurisprudence of all civilized nations, that in the transfer of a
territory from one territorial sovereign to another, the laws in force
under the old sovereign remain in force after the change, till
abrogated, or others are enacted in their place by the new sovereign,
except such as are necessarily abrogated by the change itself of the
sovereign; not, indeed, because the old sovereign retains any
authority, but, because such is presumed by the courts to be the will
of the new sovereign.  The principle applies in the case of the death
of a State in the Union.  The laws of the State are territorial, till
abrogated by competent authority, remain the lex loci, and are in full
force.  All that would be vacated would be the public rights of the
State, and in no case the private rights of citizens, corporations, or
laws affecting them.

But the same conclusion is reached in another way.  In the lapse of a
State or its return to the condition of a Territory, there is really no
change of sovereignty.  The sovereignty, both before and after, is the
United States.  The sovereign authority that governs in the State
government, as we have seen, though independent of the General
government, is the United States.  The United States govern certain
matters through a General government, and others through particular
State governments.  The private rights and interests created,
regulated, or protected by the particular State, are created,
regulated, or protected by the United States, as much and as plenarily
as if done by the General government, and the State laws creating,
regulating, or protecting them can be abrogated by no power known to
the constitution, but either the State itself, or the United States in
convention legally assembled.  If this were what is meant by the States
that have seceded, or professed to secede, remaining States in the
Union, they would, indeed, be States still in the Union,
notwithstanding secession and the government would be right in saying
that no State can secede.  But this is not what is meant, at least not
all that is meant.  It is meant not only that the private rights of
citizens and corporations remain, but the citizens retain all the
public rights of the State, that is, the right to representation in
Congress and in the electoral college, and the right to sit in the
convention, which is not true.

But the correction of the misapprehension that the private rights and
interests are lost by the lapse of the State may remove the graver
prejudices against the doctrine of State suicide, and dispose loyal and
honest Union men to bear the reasons by which it is supported, and
which nobody has refuted or can refute on constitutional grounds.  A
Territory by coming into the Union becomes a State; a State by going
out of the Union becomes a Territory.




CHAPTER XIII.

RECONSTRUCTION.


The question of reconstructing the States that seceded will be
practically settled before these pages can see the light, and will
therefore be considered here only so far as necessary to complete the
view of the constitution of the United States.  The manner in which the
government proposed to settle, has settled, or will settle the
question, proves that both it and the American people have only
confused views of the rights and powers of the General government, but
imperfectly comprehend the distinction between the legislative and
executive departments of that Government, and are far more familiar
with party tactics than with constitutional law.

It would be difficult to imagine any thing more unconstitutional, more
crude, or more glaringly impolitic than the mode of reconstruction
indicated by the various executive proclamations that have been issued,
bearing on the subject, or even by the bill for guaranteeing the States
republican governments, that passed Congress, but which failed to
obtain the President's signature.  It is, in some measure,
characteristic of the American government to understand how things
ought to be done only when they are done and it is too late to do them
in the right way.  Its wisdom comes after action, as if engaged in a
series of experiments.  But, happily for the nation, few blunders are
committed that with our young life and elasticity are irreparable, and
that, after all, are greater than are ordinarily committed by older and
more experienced nations.  They are not of the most fatal character,
and are, for the most part, such as are incident to the conceit, the
heedlessness, the ardor, and the impatience of youth, and need excite
no serious alarm for the future.

There has been no little confusion in the public mind, and in that of
the government itself, as to what reconstruction is, who has the power
to reconstruct, and how that power is to be exercised.  Are the States
that seceded States in the Union, with no other disability than that of
having no legal governments? or are they Territories subject to the
Union?  Is their reconstruction their erection into new States, or
their restoration as States previously in the Union?  Is the power to
reconstruct in the States themselves? or is it in the General
government?  If partly in the people and partly in the General
government, is the part in the General government in Congress, or in
the Executive?  If in Congress, can the Executive, without the
authority of Congress, proceed to reconstruct, simply leaving it for
Congress to accept or reject the reconstructed State?   If the power is
partly in the people of the disorganized States who or what defines
that people, decides who may or may not vote in the reorganization?  On
all these questions there has been much crude, if not erroneous,
thinking, and much inconsistent and contradictory action.

The government started with the theory that no State had seceded or
could secede, and held that, throughout, the States in rebellion
continued to be States in the Union.  That is, it held secession to be
a purely personal and not a territorial insurrection.  Yet it
proclaimed eleven States to be in insurrection against the United
States, blockaded their ports, and interdicted all trade and
intercourse of any kind with them. The Supreme Court, in order to
sustain the blockade and interdict as legal, decided the war to be not
a war against simply individual or personal insurgents but "a
territorial civil war." This negatived the assumption that the States
that took up arms against the United States remained all the while
peaceable and loyal States, with all their political rights and powers
in the Union.  The States in the Union are integral elements of the
political sovereignty, for the sovereignty of the American nation vests
in the States finite; and it is absurd to pretend that the eleven
States that made the rebellion and were carrying on a formidable war
against the United States, were in the Union, an integral element of
that sovereign authority which was carrying on a yet more formidable
war against them.  Nevertheless, the government still held to its first
assumption, that the States in rebellion continued to be States in the
Union--loyal States, with all their rights and franchises unimpaired!

That the government should at first have favored or acquiesced in the
doctrine that no State had ceased to be a State in the Union, is not to
be wondered at.  The extent and determination of the secession movement
were imperfectly understood, and the belief among the supporters of the
government, and, perhaps, of the government itself, was, that it was a
spasmodic movement for a temporary purpose, rather than a fixed
determination to found an independent separate nationality; that it was
and would be sustained by the real majority of the people of none of
the States, with perhaps the exception of South Carolina; that the true
policy of the government would be to treat the seceders with great
forbearance, to avoid all measures likely to exasperate them or to
embarrass their loyal fellow-citizens, to act simply on the defensive,
and to leave the Union men in the several seceding States to gain a
political victory at the polls over the secessionists, and to return
their States to their normal position in the Union.

The government may not have had much faith in this policy, and Mr.
Lincoln's personal authority might be cited to the effect that it had
not, but it was urged strongly by the Union men of the Border States.
The administration was hardly seated in office, and its members were
new men, without administrative experience; the President, who had been
legally elected indeed, but without a majority of the popular votes,
was far from having the full confidence even of the party that elected
him; opinions were divided; party spirit ran high; the excitement was
great, the crisis was imminent, the government found itself left by its
predecessor without an army or a navy, and almost without arms or
ordnance; it knew not how far it could count on popular support, and
was hardly aware whom it could trust or should distrust; all was hurry
and confusion; and what could the government do but to gain time, keep
off active war as long as possible, conciliate all it could, and take
ground which at the time seemed likely to rally the largest number of
the people to its support?  There were men then, warm friends of the
administration, and still warmer friends of their country, who believed
that a bolder, a less timid, a less cautious policy would have been
wiser, that in revolutionary times boldness, what in other times would
be rashness, is the highest prudence, on the side of the government as
well as on the side of the revolution; that when once it has shown
itself, the rebellion that hesitates, deliberates, consults, is
defeated and so is the government.  The seceders owed from the first
their successes not to their superior organization, to their better
preparation, or to the better discipline and appointment of their
armies, but to their very rashness, to their audacity even, and the
hesitancy, cautious and deliberation of the government.  Napoleon owed
his successes as general and civilian far more to the air of power he
assumed, and the conviction he produced of his invincibility in the
minds of his opponents, than to his civil or military strategy and
tactics, admirable as they both were.  But the government believed it
wisest to adopt a conciliatory and, in many respects, a temporizing
policy, and to rely more on weakening the secessionists in their
respective States than on strengthening the hands and hearts of its own
staunch and uncompromising supporters.  It must strengthen the Union
party in the insurrectionary States, and as this party hoped to succeed
by political manipulation rather than by military force, the government
must rely rather on a show of military power than on gaining any
decisive battle.  As it hoped, or affected to hope, to suppress the
rebellion in the States that seceded through their loyal citizens, it
was obliged to assume that secession was the work of a faction, of a
few ambitious and disappointed politicians, and that the States were
all in the Union, and continued in the loyal portion of their
inhabitants.  Hence its aid to the loyal Virginians to organize as the
State of Virginia, and its subsequent efforts to organize the Union men
in Louisiana, Arkansas, and Tennessee, and its disposition to recognize
their organization in each of those States as the State itself, though
including only a small minority of the territorial people.  Had the
facts been as assumed, the government might have treated the loyal
people of each State as the State itself, without any gross usurpation
of power; but, unhappily, the facts assumed were not facts, and it was
soon found that the Union party in all the States that seceded, except
the western part of Virginia and the eastern section of Tennessee,
after secession had been carried by the popular vote, went almost
unanimously with the secessionists; for they as well as the
secessionists held the doctrine of State sovereignty; and to treat the
handful of citizens that remained loyal in each State as the State
itself, became ridiculous, and the government should have seen and
acknowledged it.

The rebellion being really territorial, and not personal, the State
that seceded was no more continued in the loyal than in the disloyal
population.  While the war lasted, both were public enemies of the
United States, and neither had or could have any rights as a State in
the Union.  The law recognizes a solidarity of all the citizens of a
State, and assumes that, when a State is at war, all its citizens are
at war, whether approving the war or not.  The loyal people in the
States that seceded incurred none of the pains and penalties of
treason, but they retained none of the political rights of the State in
the Union, and, in reorganizing the State after the suppression of the
rebellion, they have no more right to take part than the secessionists
themselves.  They, as well as the secessionists, have followed the
territory.  It was on this point that the government committed its
gravest mistake.  As to the reorganization or reconstruction of the
State, the whole territorial people stood on the same footing.

Taking the decision of the Supreme Court as conclusive on the subject,
the rebellion was territorial, and, therefore, placed all the States as
States out of the Union, and retained them only as population and
territory, under or subject to the Union.  The States ceased to exist,
that is, as integral elements of the national sovereignty.  The
question then occurred, are they to be erected into new States, or are
they to be reconstructed and restored to the Union as the identical old
States that seceded? Shall their identity be revived and preserved, or
shall they be new States, regardless of that identity?  There can be no
question that the work to be done was that of restoration, not of
creation; no tribe should perish from Israel, no star be struck from
the firmament of the Union.  Every inhabitant of the fallen States, and
every citizen of the United States must desire them to be revived and
continued with their old names and boundaries, and all true Americans
wish to continue the constitution as it is, and the Union as it was.
Who would see old Virginia, the Virginia of revolutionary fame, of
Washington, Jefferson, Madison, of Monroe, the "Old Dominion," once the
leading State of the Union, dead without hope of resurrection? or South
Carolina, the land of Rutledge, Moultrie, Laurens, Hayne, Sumter, and
Marion?  There is something grating to him who values State
associations, and would encourage State emulation and State pride, in
the mutilation of the Old Dominion and the erection within her borders
of the new State called West Virginia.  States in the Union are not
mere prefectures, or mere dependencies on the General government,
created for the convenience of administration.  They have an
individual, a real existence of their own, as much so as have the
individual members of society. They are free members, not of a
confederation indeed, but of a higher political community, and
reconstruction should restore the identity of their individual life,
suspended for a moment by secession, but capable of resuscitation.

These States had become, indeed, for a moment, territory under the
Union; but in no instance had they or could they become territory that
had never existed as States.  The fact that the territory and people
had existed as a State, could with regard to none of them be
obliterated, and, therefore, they could not be erected into absolutely
new States.  The process of reconstructing them could not be the same
as that of creating new States.  In creating a new State, Congress, ex
necessitate, because there is no other power except the national
convention competent to do it, defines the boundaries of the new State,
and prescribes the electoral people, or who may take part in the
preliminary organization but in reconstructing States it does neither,
for both are done by a law Congress is not competent to abrogate or
modify, and which can be done only by the United States in convention
assembled, or by the State itself after its restoration.  The
government has conceded this, and, in part, has acted on it.  It
preserves, except in Virginia, the old boundaries, and recognizes, or
rather professes to recognize the old electoral law, only it claims the
right to exclude from the electoral people those who have voluntarily
taken part in the rebellion.

The work to be done in States that have seceded is that of
reconstruction, not creation; and this work is not and cannot be done,
exclusively nor chiefly by the General government, either by the
Executive or by Congress.  That government can appoint military, or
even provisional governors, who may designate the time and place of
holding the convention of the electoral people of the disorganized
State, as also the time and place of holding the elections of delegates
to it, and superintend the elections so far as to see the polls are
opened, and that none but qualified electors vote, but nothing more.
All the rest is the work of the territorial electoral people
themselves, for the State within its own sphere must, as one of the
United States, be a self-governing community.  The General government
may concede or withhold permission to the disorganized State to
reorganize, as it judges advisable, but it cannot itself reorganize it.
If it concedes the permission, it must leave the whole electoral people
under the preexisting electoral law free to take part in the work of
reorganization, and to vote according to their own judgment. It has no
authority to purge the electoral people, and say who may or may not
vote, for the whole question of suffrage and the qualifications of
electors is left to the State, and can be settled neither by an act of
Congress nor by an Executive proclamation.

If the government theory were admissible, that the disorganized States
remain States in the Union, the General government could have nothing
to say on the subject, and could no more interfere with elections in
any one of them than it could with elections in Massachusetts or New
York.  But even on the doctrine here defended it can interfere with
them only by way of general superintendence.  The citizens have,
indeed, lost their political rights, but not their private rights.
Secession has not dissolved civil society, or abrogated any of the laws
of the disorganized State that were in force at the time of secession.
The error of the government is not in maintaining that these laws
survive the secession ordinances, and remain the territorial law, or
lex loci, but in maintaining that they do so by will of the State, that
has, as a State, really lapsed.  They do so by will of the United
States, which enacted them through the individual State, and which has
not in convention abrogated them, save the law authorizing slavery, and
its dependent laws.

This point has already been made, but as it is one of the niceties of
the American constitution, it may not be amiss to elaborate it at
greater length.  The doctrine of Mr. Jefferson, Mr. Madison, and the
majority of our jurists, would see to be that the States, under God,
are severally sovereign in all matters not expressly confided to the
General government, and therefore that the American sovereignty is
divided, and the citizen owes a double allegiance--allegiance to his
State, and allegiance to the United States--as if there was a United
States distinguishable from the States.  Hence Mr. Seward, in an
official dispatch to our minister at the court of St. James, says: "The
citizen owes allegiance to the State and to the United States."  And
nearly all who hold allegiance is due to the Union at all, hold that it
is also due to the States, only that which is due to the United States
is paramount, as that under feudalism due to the overlord.  But this is
not the case.  There is no divided sovereignty, no divided allegiance.
Sovereignty is one, and vests not in the General government or in the
State government, but in the United States, and allegiance is due to
the United States, and to them alone.  Treason can be committed only
against the United States, and against a State only because against the
United States, and is properly cognizable only by the Federal courts.
Hence the Union men committed no treason in refusing to submit to the
secession ordinances of their respective States, and in sustaining the
national arms against secession.

There are two very common mistakes: the one that the States
individually possess all the powers not delegated to the General
government; and the other that the Union, or United States, have only
delegated powers.  But the United States possess all the powers of a
sovereign state, and the States individually and the General government
possess only such powers as the United States in convention delegate to
them respectively.  The sovereign is neither the General government nor
the States severally, but the United States in convention.  The United
States are the one indivisible sovereign, and this sovereign governs
alike general matters in the General government, and particular matters
in the several State governments.  All legal authority in either
emanates from this one indivisible and plenary sovereign, and hence the
law enacted by a State are really enacted by the United States, and
derive from them their force and vitality as laws. Hence, as the United
States survive the particular State, the lapse of the State does not
abrogate the State laws, or dissolve civil society within its
jurisdiction.

This is evidently so, because civil society in the particular State
does not rest on the State alone, nor on Congress, but on the United
States.  Hence all civil rights of every sort created by the individual
State are really held from the United States, and therefore it was that
the people of non-slaveholding States were, as citizens of the United
States, responsible for the existence of slavery in the States that
seceded.  There is a solidarity of States in the Union as there is of
individuals in each of the States.  The political error of the
Abolitionists was not in calling upon the people of the United States
to abolish slavery, but in calling upon them to abolish it through the
General government, which had no jurisdiction in the case; or in their
sole capacity as men, on purely humanitarian grounds, which were the
abrogation of all government and civil society itself, instead of
calling upon them to do it as the United States in convention
assembled, or by an amendment to the constitution of the United States
in the way ordained by that constitution itself.  This understood, the
constitution and laws of a defunct State remain in force by virtue of
the will of the United States, till the State is raised from the dead,
restored to life and activity, and repeals or alters them, or till they
are repealed or altered by the United States or the national
convention.  But as the defunct State could not, and the convention had
not repealed or altered them, save in the one case mentioned, the
General government had no alternative but to treat them and all rights
created by them as the territorial law, and to respect them as such.

What then do the people of the several States that seceded lose by
secession?  They lose, besides incurring, so far as disloyal, the pains
and penalties of treason, their political rights, or right, as has just
been said, to be in their own department self-governing communities,
with the right of representation in Congress and the electoral
colleges, and to sit in the national convention, or of being counted in
the ratification of amendments to the constitution--precisely what it
was shown a Territorial people gain by being admitted as a State into
the Union.  This is the difference between the constitutional doctrine
and that adopted by Mr. Lincoln's and Mr. Johnson's Administrations.
But what authority, on this constitutional doctrine, does the General
government gain over the people of States that secede, that it has not
over others!  As to their internal constitution, their private rights
of person or property, it gains none.  It has over them, till they are
reconstructed and restored to the Union, the right to institute for
them provisional governments, civil or military, precisely as it has
for the people of a territory that is not and has never been one of the
United States; but in their reconstruction it has less, for the
geographical boundaries and electoral people of each are already
defined by a law which does not depend on its will, and which it can
neither abrogate nor modify.  Here is the difference between the
constitutional doctrine and that of the so-called radicals.  The State
has gone, but its laws remain, so far as the United States in
convention does not abrogate them; not because the authority of the
State survives, but because the United States so will, or are presumed
to will.  The United States have by a constitutional amendment
abrogated the laws of the several States authorizing slavery, and
prohibited slavery forever within the jurisdiction of the Union; and no
State can now be reconstructed and be admitted into the Union with a
constitution that permits slavery, for that would be repugnant to the
constitution of the United States.  If the constitutional amendment is
not recognized as ratified by the requisite number of States, it is the
fault of the government in persisting in counting as States what are no
States.  Negro suffrage, as white suffrage, is at present a question
for States.

The United States guarantee to such State a republican form of
government.  And this guarantee, no doubt, authorizes Congress to
intervene in the internal constitution of a State so far as to force it
to adopt a republican form of government, but not so far as to organize
a government for a State, or to compel a territorial people to accept
or adopt a State constitution for themselves.  If a State attempts to
organize a form of government not republican, it can prevent it; and if
a Territory adopts an unrepublican form, it can force it to change its
constitution to one that is republican, or compel it to remain a
Territory under a provisional government.  But this gives the General
government no authority in the organization or re-organization of
States beyond seeing that the form of government adopted by the
territorial people is republican.  To press it further, to make the
constitutional clause a pretext for assuming the entire control of the
organization or re-organization of a State, is a manifest abuse--a
palpable violation of the constitution and of the whole American
system.  The authority given by the clause is specific, and is no
authority for intervention in the general reconstruction of the lapsed
State.  It gives authority in no question raised by secession or its
consequences, and can give none, except, from within or from without,
there is an overt attempt to organize a State in the Union with an
unrepublican form of government.

The General government gives permission to the territorial people of
the defunct State to re-organize, or it contents itself with suffering
them, without special recognition, to reorganize in their own way, and
apply to Congress for admission, leaving it to Congress to admit them
as a State, or not, according to its own discretion, in like manner as
it admits a new State; but the re-organization itself must be the work
of the territorial people themselves, under their old electoral law.
The power that reconstructs is in the people themselves; the power that
admits them, or receives them into the Union, is Congress.  The
Executive, therefore, has no authority in the matter, beyond that of
seeing that the laws are duly complied with; and whatever power he
assumes, whether by proclamation or by instructions given to the
provisional governors, civil or military, is simply a usurpation of the
power of Congress, which it rests with Congress to condone or not, as
it may see fit.  Executive proclamations, excluding a larger or a
smaller portion of the electoral or territorial people from the
exercise of the elective franchise in reorganizing the State, and
executive efforts to throw the State into the hands of one political
party or another, are an unwarrantable assumption of power, for the
President, in relation to reconstruction, acts only under the peace
powers of the constitution, and simply as the first executive officer
of the Union.  His business is to execute the laws, not to make them.
His legislative authority is confined to his qualified veto on the acts
of Congress, and to the recommendation to Congress of such measures as
he believes are needed by the country.

In reconstructing a disorganized State, neither Congress nor the
Executive has any power that either has not in time of peace. The
Executive, as commander-in-chief of the army, may ex necessitate, pace
it ad interim under a military governor, but he cannot appoint even a
provisional civil governor till Congress has created the office and
given him authority to fill it; far less can be legally give
instructions to the civil governor as to the mode or manner of
reconstructing the disorganized State, or decide who may or may not
vote in the preliminary reorganization. The Executive could do nothing
of the sort, even in regard to a Territory never erected into a State.
It belongs to Congress, not to the Executive, to erect Territorial or
provisional governments, like those of Dacotah, Colorado, Montana,
Nebraska, and New Mexico; and, Congress, not the executive, determines
the boundaries of the Territory, passes the enabling act, and defines
the electoral people, till the State is organized and able to act
herself.  Even Congress, in reconstructing and restoring to life and
vigor in the Union a disorganized State, has nothing to say as to its
boundaries or its electoral people, nor any right to interfere between
parties in the State, to throw the reconstructed State into the hands
of one or another party.  All that Congress can insist on is, that the
territorial people shall reconstruct with a government republican in
form; that its senators and representatives in Congress, and the
members of the State legislature, and all executive and judicial
officers of the State shall be bound by oath or affirmation to support
and defend the constitution of the United States.  In the whole work
the President has nothing to do with reconstruction, except to see that
peace is preserved and the laws are fully executed.

It may be at least doubted that the Executive has power to proclaim
amnesty and pardon to rebels after the civil war has ceased, and ceased
it has when the rebels have thrown down their arms and submitted; for
his pardoning power is only to pardon after conviction and judgment of
the court: it is certain that he has no power to proscribe or punish
even traitors, except by due process of law.  When the war is over he
has only his ordinary peace powers.  He cannot then disfranchise any
portion of the electoral people of a State that seceded, even though
there is no doubt that they have taken part in the rebellion, and may
still be suspected of disloyal sentiments.  Not even Congress can do
it, and no power known to the constitution till the State is
reconstructed can do it without due process of law, except the national
convention.  Should the President do any of the things supposed, he
would both abuse the power he has and usurp power that he has not, and
render himself liable to impeachment.  There are many things very
proper, and even necessary to be done, which are high crimes when done
by an improper person or agent.  The duty of the President, when there
are steps to be taken or things to be done which he believes very
necessary, but which are not within his competency, is, if Congress is
not in session, to call it together at the earliest practicable moment,
and submit the matter to its wisdom and discretion.

It must be remembered that the late rebellion was not a merely personal
but a territorial rebellion.  In such a rebellion, embracing eleven
States, and, excluding slaves, a population of at least seven millions,
acting under an organized territorial government, preserving internal
civil order, supporting an army and navy under regularly commissioned
officers, and carrying on war as a sovereign nation--in such a
territorial rebellion no one in particular can be accused and punished
as a traitor.  The rebellion is not the work of a few ambitious or
reckless leaders, but of the people, and the responsibility of the
crime, whether civil or military, is not individual, but common to the
whole territorial people engaged in it; and seven millions, or the half
of them, are too many to ban to exile, or even to disfranchise Their
defeat and the failure of their cause must be their punishment.  The
interest of the country, as well the sentiment of the civilized
world--it might almost be said the law of nations--demands their
permission to return to their allegiance, to be treated according to
their future merits, as an integral portion of the American people.

The sentiment of the civilized world has much relaxed from its former
severity toward political offenders.  It regards with horror the savage
cruelties of Great Britain to the unfortunate Jacobites, after their
defeat under Charles Edward, at Culloden, in 1746, their barbarous
treatment of the United Irishmen in 1798, and her brutality to the
mutinous Hindoos in 1857-'58; the harshness of Russia toward the
insurgent Poles, defeated in their mad attempts to recover their lost
nationality; the severity of Austria, under Haynau, toward the defeated
Magyars.  The liberal press kept up for years, especially in England
and the United States, a perpetual howl against the Papal and
Neapolitan governments for arresting and imprisoning men who conspired
to overthrow them.  Louis Kossuth was no less a traitor than Jefferson
Davis, and yet the United States solicited his release from a Turkish
prison, and sent a national ship to bring him hither as the nation's
guest.  The people of the United States have held from the first "the
right of insurrection," and have given their moral support to every
insurrection in the Old or New World they discovered, and for them to
treat with severity any portion of the Southern secessionists, who, at
the very worst, only acted on the principles the nation had uniformly
avowed and pronounced sacred, would be regarded, and justly, by the
civilized world as little less than infamous.

Not only the fair fame, but the interest of the Union forbids any
severity toward the people lately in arms against the government. The
interest of the nation demands not the death or the expulsion of the
secessionists, and, least of all, of those classes proscribed by the
President's proclamation of the 29th of May, 1865, nor even their
disfranchisement, perpetual or temporary; but their restoration to
citizenship, and their loyal co-operation with all true-hearted
Americans, in hearing the wounds inflicted on the whole country by the
civil war.  There need be no fear to trust them.  Their cause is lost;
they may or may not regret it, but lost it is, and lost forever.  They
appealed to the ballot-box, and were defeated; they appealed from the
ballot-box to arms, to war, and have been again defeated, terribly
defeated.  They know it and feel it.  There is no further appeal for
them; the judgment of the court of last resort has been rendered, and
rendered against them.  The cause is finished, the controversy closed,
never to be re-opened. Henceforth the Union is invincible, and it is
worse than idle to attempt to renew the war against it.  Henceforth
their lot is bound up with that of the nation, and all their hopes and
interests, for themselves and their children, and their children's
children, depend on their being permitted to demean themselves
henceforth as peaceable and loyal American citizens. They must seek
their freedom, greatness, and glory in the freedom, greatness, and
glory of the American republic, in which, after all, they can be far
freer, greater, more glorious than in a separate and independent
confederacy.  All the arguments and considerations urged by Union men
against their secession, come back to them now with redoubled force to
keep them henceforth loyal to the Union.

They cannot afford to lose the nation, and the nation cannot afford to
lose them.  To hang or exile them, and depopulate and suffer to run to
waste the lands they had cultivated, were sad thrift, sadder than that
of deporting four millions of negroes and colored men.  To exchange
only those excepted from amnesty and pardon by President Johnson,
embracing some two millions or more, the very pars sanior of the
Southern population, for what would remain or flock in to supply their
place, would be only the exchange of Glaucus and Diomed, gold for
brass; to disfranchise them, confiscate their estates, and place them
under the political control of the freedmen, lately their slaves, and
the ignorant and miserable "white trash," would be simply to render
rebellion chronic, and to convert seven millions of Americans, willing
and anxious to be free, loyal American citizens, eternal enemies.  They
have yielded to superior numbers and resources; beaten, but not
disgraced, for they have, even in rebellion, proved themselves what
they are--real Americans.  They are the product of the American soil,
the free growth of the American republic, and to disgrace them were to
disgrace the whole American character and people.

The wise Romans never allowed a triumph to a Roman general for
victories, however brilliant, won over Romans.  In civil war, the
victory won by the government troops is held to be a victory for the
country, in which all parties are victors, and nobody is vanquished.
It was as truly for the good of the secessionists to fail, as it was
for those, who sustained the government to succeed; and the government
having forced their submission and vindicated its own authority, it
should now leave them to enjoy, with others, the victory which it his
won for the common good of all.  When war becomes a stern necessity,
when it breaks out, and while it lasts, humanity requires it to be
waged in earnest, prosecuted with vigor, and made as damaging, as
distressful to the enemy as the laws of civilized nations permit.  It
is the way to bring it to a speedy close, and to save life and
property. But when it is over, when the enemy submits, and peace
returns, the vanquished should be treated with gentleness and love.  No
rancor should remain, no vengeance should be sought; they who met in
mortal conflict on the battle-field should be no longer enemies, but
embrace as comrades, as friends, as brothers.  None but a coward kicks
a fallen foe; a brave people is generous, and the victors in the late
war can afford to be generous generously. They fought for the Union,
and the Union has no longer an enemy; their late enemies are willing
and proud to be their countrymen, fellow-citizens, and friends; and
they should look to it that small politicians do not rob them in the
eyes of the world, by unnecessary and ill-timed severity to the
submissive, of the glory of being, as they are, a great, noble,
chivalric, generous, and magnanimous people.

The government and the small politicians, who usually are the most
influential with all governments, should remember that none of the
secessionists, however much in error they have been, have committed the
moral crime of treason.  They held, with the majority of the American
people, the doctrine of State sovereignty, and on that doctrine they
had a right to secede, and have committed no treason, been guilty of no
rebellion.  That was, indeed, no reason why the government should not
use all its force, if necessary, to preserve the national unity and the
integrity of the national domain; but it is a reason, and a sufficient
reason, why no penalty of treason should be inflicted on secessionists
or their leaders, after their submission, and recognition of the
sovereignty of the United States as that to which they owe allegiance.
None of the secessionists have been rebels or traitors, except in
outward act, and there can, after the act has ceased, be no just
punishment where there has been no criminal intent.  Treason is the
highest crime, and deserves exemplary punishment; but not where there
has been no treasonable intent, where they who committed it did not
believe it was treason, and on principles held by the majority of their
countrymen, and by the party that had generally held the government,
there really was no treason.  Concede State sovereignty, and Jefferson
Davis was no traitor in the war he made on the United States, for he
made none till his State had seceded.  He could not then be arraigned
for his acts after secession, and at most, only for conspiracy, if at
all, before secession.

But, if you permit all to vote in the re-organization of the State who,
under the old electoral law, have the elective franchise, you throw the
State into the hands of those who have been disloyal to the Union.  If
so, and you cannot trust them, the remedy is not in disfranchising the
majority, but in prohibiting re-organization, and in holding the
territorial people still longer under the provisional government, civil
or military.  The old electoral law disqualifies all who have been
convicted of treason either to the State or the United States, and
neither Congress nor the Executive can declare any others disqualified
on account of disloyalty.  But you must throw the State into the hands
of those who took part, directly or indirectly, in the rebellion, if
you reconstruct the States at all, for they are undeniably the great
body of the territorial people in all the States that seceded.  These
people having submitted, and declared their intention to reconstruct
the State as a State in the Union, you must amend the constitution of
the United States, unless they are convicted of a disqualifying crime
by due process of law, before you can disfranchise them.  It is
impossible to reconstruct any one of the disorganized States with those
alone, or as the dominant party, who have adhered to the Union
throughout the fearful struggle, as self-governing States. The State,
resting on so small a portion of the people, would have no internal
strength, no self-support, and could stand only as upheld by federal
arms, which would greatly impair the free and healthy action of the
whole American system.

The government attempted to do it in Virginia, Louisiana, Arkansas, and
Tennessee, before the rebellion was suppressed, but without authority
and without success.  The organizations, effected at great expense, and
sustained only by military force, were neither States nor State
governments, nor capable of being made so by any executive or
congressional action.  If the disorganized States, as the government
held, were still States in the Union, these organizations were
flagrantly revolutionary, as effected not only without, but in defiance
of State authority; if they had seceded and ceased to be States, as was
the fact, they were equally unconstitutional and void of authority,
because not created by the free suffrage of the territorial people, who
alone are competent to construct or reconstruct a state.

If the Unionists had retained the State organization and government,
however small their number, they would have held the State, and the
government would have been bound to recognize and to defend them as
such with all the force of the Union.  The rebellion would then have
been personal, not territorial.  But such was not the case.  The State
organization, the State government, the whole State authority rebelled,
made the rebellion territorial, not personal, and left the Unionists,
very respectable persons assuredly, residing, if they remained at home,
in rebel territory, traitors in the eye of their respective States, and
shorn of all political status or rights.  Their political status was
simply that of the old loyalists, or adherents of the British crown in
the American war for Independence, and it was as absurd to call them
the State, as it would have been for Great Britain to have called the
old Tories the colonies.

The theory on which the government attempted to re-organize the
disorganized States rested on two false assumptions: first, that the
people are personally sovereign; and, second, that all the power of the
Union vests in the General government.  The first, as we have seen, is
the principle of so-called "squatter sovereignty," embodied in the
famous Kansas-Nebraska Bill, which gave birth, in opposition, to the
Republican party of 1856.  The people are sovereign only as the State,
and the State is inseparable from the domain.  The Unionists without
the State government, without any State organization, could not hold
the domain, which, when the State organization is gone, escheats to the
United States, that is to say, ceases to exist.  The American democracy
is territorial, not personal.

The General government, in time of war or rebellion, is indeed
invested, for war purposes, with all the power of the Union. This is
the war power.  But, though apparently unlimited, the war power is yet
restricted to war purposes, and expires by natural limitation when
peace returns; and peace returns, in a civil war, when the rebels have
thrown down their arms and submitted to the national authority, and
without any formal declaration. During the war, or while the rebellion
lasts, it can suspend the civil courts, the civil laws, the State
constitutions, any thing necessary to the success of the war--and of
the necessity the military authorities are the judges; but it cannot
abolish, abrogate, or reconstitute them.  On the return of peace they
revive of themselves in all their vigor.  The emancipation proclamation
of the President, if it emancipated the slaves in certain States and
parts of States, and if those whom it emancipated could not be
re-enslaved, did not anywhere abolish slavery, or change the laws
authorizing it; and if the Government should be sustained by Congress
or by the Supreme Court in counting the disorganized States as States
in the Union, the legal status of slavery throughout the Union, with
the exception of Maryland, and perhaps Missouri, is what it was before
the war.[1]

The Government undoubtedly supposed, in the reconstructions it
attempted, that it was acting under the war power; but as
reconstruction can never be necessary for war purposes, and as it is in
its very nature a work of peace, incapable of being effected by
military force, since its validity depends entirely on its being the
free action of the territorial people to be reconstructed, the General
government had and could have, with regard to it, only its ordinary
peace powers.  Reconstruction is jure pacis, not jure belli.

Yet such illegal organizations, though they are neither States nor
State governments, and incapable of being legalized by any action of
the Executive or of Congress, may, nevertheless, be legalized by being
indorsed or acquiesced in by the territorial people.  They are wrong,
as are all usurpations; they are undemocratic, inasmuch as they attempt
to give the minority the power to rule the majority; they are dangerous
inasmuch as they place the State in the hands of a party that can stand
only as supported by the General government, and thus destroy the
proper freedom and independence of the State, and open the door to
corruption, tend to keep alive rancor and ill feeling, and to retard
the period of complete pacification, which might be effected in three
months as well as in three years, or twenty years; yet they can become
legal, as other governments illegal in their origin become legal, with
time and popular acquiescence. The right way is always the shortest and
easiest; but when a government must oftener follow than lead the
public, it is not always easy to hit the right way, and still less easy
to take it. The general instincts of the people are right as to the end
to be gained, but seldom right as to the means of gaining it; and
politicians of the Union party, as well as of the late secession party,
have an eye in reconstructing, to the future political control of the
State when it is reconstructed.

The secessionists, if permitted to retain their franchise, would, even
if they accepted abolition, no doubt re-organize their respective
States on the basis of white suffrage, and so would the Unionists, if
left to themselves.  There is no party at the South prepared to adopt
negro suffrage, and there would be none at the North if the negroes
constituted any considerable portion of the population.  As the
reconstruction of a State cannot be done under the war power, the
General government can no more enfranchise than it can disfranchise any
portion of the territorial people, and the question of negro suffrage
must be left, where the constitution leaves it--to the States
severally, each to dispose of it for itself.  Negro suffrage will, no
doubt, come in time, as soon as the freedmen are prepared for it, and
the danger is that it will be attempted too soon.

It would be a convenience to have the negro vote in the reconstruction
of the States disorganized by secession, for it would secure their
re-construction with antislavery constitutions, and also make sure of
the proposed antislavery amendment to the Constitution of the United
States; but there is no power in Congress to enfranchise the negroes in
the States needing reconstruction, and, once assured of their freedom,
the freedmen would care little for the Union, of which they understand
nothing.  They would vote, for the most part, with their former
masters, their employers, the wealthier and more intelligent classes,
whether loyal or disloyal; for, as a rule, these will treat them with
greater personal consideration and kindness than others.  The dislike
of the negro, and hostility to negro equality, increase as you descend
in the social scale.  The freedmen, without political instruction or
experience, who have had no country, no domicile, understand nothing of
loyalty or of disloyalty.  They have strong local attachments, but they
can have no patriotism.  If they adhered to the Union in the rebellion,
fought for it, bled for it, it was not from loyalty, but because they
knew that their freedom could come only from the success of the Union
arms.  That freedom secured, they have no longer any interest in the
Union, and their local attachments, personal associations, habits,
tastes, likes and dislikes, are Southern, not Northern.  In any contest
between the North and the South, they would take, to a man, the
Southern side.  After the taunts of the women, the captured soldiers of
the Union found, until nearly the last year of the war, nothing harder
to bear, when marched as prisoners into Richmond, than the antics and
hootings of the negroes.  Negro suffrage on the score of loyalty, is at
best a matter of indifference to the Union, and as the elective
franchise is not a natural right, but a civil trust, the friends of the
negro should, for the present, be contented with securing him simply
equal rights of person and property.


[1] This was the case in August, 1865.  It may be quite otherwise
before these pages see the light.




CHAPTER XIV.

POLITICAL TENDENCIES.


The most marked political tendency of the American people has been,
since 1825, to interpret their government as a pure and simple
democracy, and to shift it from a territorial to a purely popular
basis, or from the people as the state, inseparably united to the
national territory or domain, to the people as simply population,
either as individuals or as the race.  Their tendency has
unconsciously, therefore, been to change their constitution from a
republican to a despotic, or from a civilized to a barbaric
constitution.

The American constitution is democratic, in the sense that the people
are sovereign that all laws and public acts run in their name; that the
rulers are elected by them, and are responsible to them; but they are
the people territorially constituted and fixed to the soil,
constituting what Mr. Disraeli, with more propriety perhaps than he
thinks, calls a "territorial democracy."  To this territorial
democracy, the real American democracy, stand opposed two other
democracies--the one personal and the other humanitarian--each alike
hostile to civilization, and tending to destroy the state, and capable
of sustaining government only on principles common to all despotisms.

In every man there is a natural craving for personal freedom and
unrestrained action--a strong desire to be himself, not another--to be
his own master, to go when and where he pleases, to do what he chooses,
to take what he wants, wherever he can find it, and to keep what he
takes.  It is strong in all nomadic tribes, who are at once pastoral
and predatory, and is seldom weak in our bold frontier-men, too often
real "border ruffians." It takes different forms in different stages of
social development, but it everywhere identifies liberty with power.
Restricted in its enjoyment to one man, it makes him chief, chief of
the family, the tribe, or the nation; extended in its enjoyment to the
few, it founds an aristocracy, creates a nobility--for nobleman meant
originally only freeman, as it does his own consent, express or
constructive.  This is the so-called Jeffersonian democracy, in which
government has no powers but such as it derives from the consent of the
governed, and is personal democracy or pure individualism
philosophically considered, pure egoism, which says, "I am God."  Under
this sort of democracy, based on popular, or rather individual
sovereignty, expressed by politicians when they call the electoral
people, half seriously, half mockingly, "the sovereigns," there
obviously can be no state, no social rights or civil authority; there
can be only a voluntary association, league, alliance, or
confederation, in which individuals may freely act together as long as
they find it pleasant, convenient, or useful, but from which they may
separate or secede whenever they find it for their interest or their
pleasure to do so.  State sovereignty and secession are based on the
same democratic principle applied to the several States of the Union
instead of individuals.

The tendency to this sort of democracy has been strong in large
sections of the American people from the first, and has been greatly
strengthened by the general acceptance of the theory that government
originates in compact.  The full realization of this tendency, which,
happily, is impracticable save in theory, would be to render every man
independent alike of every other man and of society, with full right
and power to make his own will prevail.  This tendency was strongest in
the slaveholding States, and especially, in those States, in the
slaveholding class, the American imitation of the feudal nobility of
mediaeval Europe; and on this side the war just ended was, in its most
general expression, a war in defence of personal democracy or the
sovereignty of the people individually, against the humanitarian
democracy, represented by the abolitionists, and the territorial
democracy, represented by the Government.  This personal democracy has
been signally defeated in the defeat of the late confederacy, and can
hardly again become strong enough to be dangerous.

But the humanitarian democracy, which scorns all geographical lines,
effaces all in individualities, and professes to plant itself on
humanity alone, has acquired by the war new strength, and is not
without menace to our future.  The solidarity of the race, which is the
condition of all human life, founds, as we have seen, society, and
creates what are called social rights, the rights alike of society in
regard to individuals, and of individuals in regard to society.
Territorial divisions or circumscriptions found particular societies,
states, or nations; yet as the race is one and all its members live by
communion with God through it and by communion one with another, these
particular states or nations are never absolutely independent of each
other but, bound together by the solidarity of the race, so that there
is a real solidarity of nations as well as of individuals--the truth
underlying Kossuth's famous declaration of the solidarity of peoples.

The solidarity of nations is the basis of international law, binding on
every particular nation, and which every civilized nation recognizes
and enforces on its own subjects or citizens through its own courts as
an integral part of its own municipal or national law.

The personal or individual right is therefore restricted by the rights
of society, and the rights of the particular society or nation are
limited by international law, or the rights of universal society--the
truth the ex-governor of Hungary overlooked.  The grand error of
Gentilism was in denying the unity and therefore the solidarity of the
race, involved in its denial or misconception of the unity of God.  It
therefore was never able to assign any solid basis to international
law, and gave it only a conventional or customary authority, thus
leaving the jus gentium, which it recognized in deed, without any real
foundation in the constitution of things, or authority in the real
world.  Its real basis is in the solidarity of the race, which has its
basis in the unity of God, not the dead or abstract unity asserted by
the old Eleatics, the Neo-Platonists, or the modern Unitarians, but the
living unity consisting in the threefold relation in the Divine
Essence, of Father, Son, and Holy Ghost, as asserted by Christian
revelation, and believed, more or less intelligently, by all
Christendom.

The tendency in the Southern States has been to overlook the social
basis of the state, or the rights of society founded on the solidarity
of the race, and to make all rights and powers personal, or individual;
and as only the white race has been able to assert and maintain its
personal freedom, only men of that race are held to have the right to
be free.  Hence the people of those States felt no scruple in holding
the black or colored race as slaves. Liberty, said they, is the right
only of those who have the ability to assert and maintain it.  Let the
negro prove that he has this ability by asserting and maintaining his
freedom, and he will prove his right to be free, and that it is a gross
outrage, a manifest injustice, to enslave him; but, till then, let him
be my servant, which is best for him and for me. Why ask me to free
him?  I shall by doing so only change the form of his servitude.  Why
appeal to me!  Am I my brother's keeper? Nay, is he my brother?  Is
this negro, more like an ape or a baboon than a human being, of the
same race with myself?  I believe it not.  But in some instances, at
least, my dear slaveholder, your slave is literally your brother, and
sometimes even your son, born of your own daughter.  The tendency of
the Southern democrat was to deny the unity of the race, as well as all
obligations of society to protect the weak and helpless, and therefore
all true civil society.

At the North there has been, and is even yet, an opposite tendency--a
tendency to exaggerate the social element, to overlook the territorial
basis of the state, and to disregard the rights of individuals.  This
tendency has been and is strong in the people called abolitionists.
The American abolitionist is so engrossed with the unity that he loses
the solidarity of the race, which supposes unity of race and
multiplicity of individuals; and falls to see any thing legitimate and
authoritative in geographical divisions or territorial
circumscriptions.  Back of these, back of individuals, he sees
humanity, superior to individuals, superior to states, governments, and
laws, and holds that he may trample on them all or give them to the
winds at the call of humanity or "the higher law."  The principle on
which he acts is as indefensible as the personal or egoistical
democracy of the slaveholders and their sympathizers.  Were his
socialistic tendency to become exclusive and realized, it would found
in the name of humanity a complete social despotism, which, proving
impracticable from its very generality, would break up in anarchy, in
which might makes right, as in the slaveholder's democracy.

The abolitionists, in supporting themselves on humanity in its
generality, regardless of individual and territorial rights, can
recognize no state, no civil authority, and therefore are as much out
of the order of civilization, and as much in that of barbarism, as is
the slaveholder himself.  Wendell Phillips is as far removed from true
Christian civilization as was John C. Calhoun, and William Lloyd
Garrison is as much of a barbarian and despot in principle and tendency
as Jefferson Davis.  Hence the great body of the people in the
non-slaveholding States, wedded to American democracy as they were and
are could never, as much as they detested slavery, be induced to make
common cause with the abolitionists, and their apparent union in the
late civil war was accidental, simply owing to the fact that for the
time the social democracy and the territorial coincides or had the same
enemy.  The great body of the loyal people instinctively felt that pure
socialism is as incompatible with American democracy as pure
individualism; and the abolitionists are well aware that slavery has
been abolished, not for humanitarian or socialistic reasons but really
for reasons of state, in order to save the territorial democracy.  The
territorial democracy would not unite to eliminate even so barbaric an
element as slavery, till the rebellion gave them the constitutional
right to abolish it; and even then so scrupulous were they, that they
demanded a constitutional amendment, so as to be able to make clean
work of it, without any blow to individual or State rights.

The abolitionists were right in opposing slavery, but not in demanding
its abolition on humanitarian or socialistic grounds. Slavery is really
a barbaric element, and is in direct antagonism to American
civilization.  The whole force of the national life opposes it, and
must finally eliminate it, or become itself extinct and it is no mean
proof of their utter want of sympathy with all the living forces of
modern civilization, that the leading men of the South and their
prominent friends at the North really persuaded themselves that with
cotton, rice, and tobacco, they could effectually resist the
anti-slavery movement, and perpetuate their barbaric democracy.  They
studied the classics, they admired Greece and Rome, and imagined that
those nations became great by slavery, instead of being great even in
spite of slavery.  They failed to take into the account the fact that
when Greece and Rome were in the zenith of their glory, all
contemporary nations were also slaveholding nations, and that if they
were the greatest and most highly civilized nations of their times,
they were not fitted to be the greatest and most highly civilized
nations of all times.  They failed also to perceive that, if the
Graeco-Roman republic did not include the whole territorial people in
the political people, it yet recognized both the social and the
territorial foundation of the state, and never attempted to rest it on
pure individualism; they forgot, too, that Greece and Rome both fell,
and fell precisely through internal weakness caused by the barbarism
within, not through the force of the barbarism beyond their frontiers.
The world has changed since the time when ten thousand of his slaves
were sacrificed as a religious offering to the manes of a single Roman
master.  The infusion of the Christian dogma of the unity and
solidarity of the race into the belief, the life, the laws, the
jurisprudence of all civilized nations, has doomed slavery and every
species of barbarism; but this our slaveholding countrymen saw not.

It rarely happens that in any controversy, individual or national, the
real issue is distinctly presented, or the precise question in debate
is clearly and distinctly understood by either party.  Slavery was only
incidentally involved in the late war. The war was occasioned by the
collision of two extreme parties; but it was itself a war between
civilization and barbarism, primarily between the territorial democracy
and the personal democracy, and in reality, on the part of the nation,
as much a war against the socialism of the abolitionist as against the
individualism of the slaveholder.  Yet the victory, though complete
over the former, is only half won over the latter, for it has left the
humanitarian democracy standing, and perhaps for the moment stronger
than ever.  The socialistic democracy was enlisted by the territorial,
not to strengthen the government at home, as it imagines, for that it
did not do, and could not do, since the national instinct was even more
opposed to it than to the personal democracy; but under its antislavery
aspect, to soften the hostility of foreign powers, and ward off foreign
intervention, which was seriously threatened.  The populations of
Europe, especially of France and England, were decidedly anti-slavery,
and if the war here appeared to them a war, not solely for the unity of
the nation and the integrity of its domain, as it really was, in which
they took and could take no interest, but a war for the abolition of
slavery, their governments would not venture to intervene.  This was
the only consideration that weighed with Mr. Lincoln, as he himself
assured the author, and induced him to issue his Emancipation
Proclamation; and Europe rejoices in our victory over the rebellion
only so far as it has liberated the slaves, and honors the late
President only as their supposed liberator, not as the preserver of the
unity and integrity of the nation.  This is natural enough abroad, and
proves the wisdom of the anti-slavery policy of the government, which
had become absolutely necessary to save the Republic long before it was
adopted; yet it is not as the emancipator of some two or three millions
of slaves that the American patriot cherishes the memory of Abraham
Lincoln, but, aided by the loyal people, generals of rare merit, and
troops of unsurpassed bravery and endurance, as the saviour of the
American state, and the protector of modern civilization.  His
anti-slavery policy served this end, and therefore was wise, but he
adopted it with the greatest possible reluctance.

There were greater issues in the late war than negro slavery or negro
freedom.  That was only an incidental issue, as the really great men of
the Confederacy felt, who to save their cause were willing themselves
at last to free and arm their own negroes, and perhaps were willing to
do it even at first.  This fact alone proves that they had, or believed
they had, a far more important cause than the preservation of negro
slavery.  They fought for personal democracy, under the form of State
sovereignty, against social democracy; for personal freedom and
independence against social or humanitarian despotism; and so far their
cause was as good as that against which they took up arms; and if they
had or could have fought against that, without fighting at the same
time against the territorial, the real American, the only civilized
democracy, they would have succeeded.  It is not socialism nor
abolitionism that has won; nor is it the North that has conquered.  The
Union itself has won no victories over the South, and it is both
historically and legally false to say that the South has been
subjugated.  The Union has preserved itself and American civilization,
alike for North and South, East and West. The armies that so often met
in the shock of battle were not drawn up respectively by the North and
the South, but by two rival democracies, to decide which of the two
should rule the future.  They were the armies of two mutually
antagonistic systems, and neither army was clearly and distinctly
conscious of the cause for which it was shedding its blood; each obeyed
instinctively a power stronger than itself, and which at best it but
dimly discerned.  On both sides the cause was broader and deeper than
negro slavery, and neither the proslavery men nor the abolitionists
have won.  The territorial democracy alone has won, and won what will
prove to be a final victory over the purely personal democracy, which
had its chief seat in the Southern States, though by no means confined
to them.  The danger to American democracy from that quarter is forever
removed, and democracy à la Rousseau has received a terrible defeat
throughout the world, though as yet it is far from being aware of it.

But in this world victories are never complete.  The socialistic
democracy claims the victory which has been really won by the
territorial democracy, as if it had been socialism, not patriotism,
that fired the hearts and nerved the arms of the brave men led by
McClellan, Grant, and Sherman.  The humanitarians are more dangerous in
principle than the egoists, for they have the appearance of building on
a broader and deeper foundation, of being more Christian, more
philosophic, more generous and philanthropic; but Satan is never more
successful than under the guise of an angel of light.  His favorite
guise in modern times is that of philanthropy.  He is a genuine
humanitarian, and aims to persuade the world that humanitarianism is
Christianity, and that man is God; that the soft and charming sentiment
of philanthropy is real Christian charity; and he dupes both
individuals and nations, and makes them do his work, when they believe
they are earnestly and most successfully doing the work of God.  Your
leading abolitionists are as much affected by satanophany as your
leading confederates, nor are they one whit more philosophical or less
sophistical.  The one loses the race, the other the individual, and
neither has learned to apply practically that fundamental truth that
there is never the general without the particular, nor the particular
without the general, the race without individuals, nor individuals
without the race.  The whole race was in Adam, and fell in him, as we
are taught by the doctrine of original sin, or the sin of the race, and
Adam was an individual, as we are taught in the fact that original sin
was in him actual or personal sin.

The humanitarian is carried away by a vague generality, and loses men
in humanity, sacrifices the rights of men in a vain endeavor to secure
the rights of man, as your Calvinist or his brother Jansenist
sacrifices the rights of nature in order to secure the freedom of
grace.  Yesterday he agitated for the abolition of slavery, to-day he
agitates for negro suffrage, negro equality, and announces that when he
has secured that he will agitate for female suffrage and the equality
of the sexes, forgetting or ignorant that the relation of equality
subsists only between individuals of the same sex; that God made the
man the head of the woman, and the woman for the man, not the man for
the woman. Having obliterated all distinction of sex in politics, in
social, industrial, and domestic arrangements, he must go farther, and
agitate for equality of property.  But since property, if recognized at
all, will be unequally acquired and distributed, he must go farther
still, and agitate for the total abolition of property, as an
injustice, a grievous wrong, a theft, with M. Proudhon, or the
Englishman Godwin.  It is unjust that one should have what another
wants, or even more than another.  What right have you to ride in your
coach or astride your spirited barb while I am forced to trudge on
foot?  Nor can our humanitarian stop there.  Individuals are, and as
long as there are individuals will be, unequal: some are handsomer and
some are uglier, some wiser or sillier, more or less gifted, stronger
or weaker, taller or shorter, stouter or thinner than others, and
therefore some have natural advantages which others have not. There is
inequality, therefore injustice, which can be remedied only by the
abolition of all individualities, and the reduction of all individuals
to the race, or humanity, man in general.  He can find no limit to his
agitation this side of vague generality, which is no reality, but a
pure nullity, for he respects no territorial or individual
circumscriptions, and must regard creation itself as a blunder.  This
is not fancy, for he has gone very nearly as far as it is here shown,
if logical, he must go.

The danger now is that the Union victory will, at home and abroad, be
interpreted as a victory won in the interest of social or humanitarian
democracy.  It was because they regarded the war waged on the side of
the Union as waged in the interest of this terrible democracy, that our
bishops and clergy sympathized so little with the Government in
prosecuting it; not, as some imagined, because they were disloyal,
hostile to American or territorial democracy, or not heartily in favor
of freedom for all men, whatever their race or complexion.  They had no
wish to see slavery prolonged, the evils of which they, better than any
other class of men, knew, and more deeply deplored; none would have
regretted more than they to have seen the Union broken up; but they
held the socialistic or humanitarian democracy represented by Northern
abolitionists as hostile alike to the Church and to civilization.  For
the same reason that they were backward or reserved in their sympathy,
all the humanitarian sects at home and abroad were forward and even
ostentatious in theirs.  The Catholics feared the war might result in
encouraging La Republiques democratique et sociale; the humanitarian
sects trusted that it would.  If the victory of the Union should turn
out to be a victory for the humanitarian democracy, the civilized world
will have no reason to applaud it.

That there is some danger that for a time the victory will be taken as
a victory for humanitarianism or socialism, it would be idle to deny.
It is so taken now, and the humanitarian party throughout the world are
in ecstasies over it.  The party claim it.  The European Socialists and
Red Republicans applaud it, and the Mazzinis and the Garibaldis inflict
on us the deep humiliation of their congratulations.  A cause that can
be approved by the revolutionary leaders of European Liberals must be
strangely misunderstood, or have in it some infamous element. It is no
compliment to a nation to receive the congratulations of men who assert
not only people-king, but people-God; and those Americans who are
delighted with them are worse enemies to the American democracy than
ever were Jefferson Davis and his fellow conspirators, and more
contemptible, as the swindler is more contemptible than the highwayman.

But it is probable the humanitarians have reckoned without their host.
Not they are the real victors.  When the smoke of battle has cleared
away, the victory, it will be seen, has been won by the Republic, and
that that alone has triumphed.  The abolitionists, in so far as they
asserted the unity of the race and opposed slavery as a denial of that
unity, have also won; but in so far as they denied the reality or
authority of territorial and individual circumscriptions, followed a
purely socialistic tendency, and sought to dissolve patriotism into a
watery sentimentality called philanthropy, have in reality been
crushingly defeated, as they will find when the late insurrectionary
States are fully reconstructed.  The Southern or egoistical democrats,
so far as they denied the unity and solidarity of the race, the rights
of society over individuals, and the equal rights of each and every
individual in face of the state, or the obligations of society to
protect the weak and help the helpless, have been also defeated; but so
far as they asserted personal or individual rights which society
neither gives nor can take away, and so far as they asserted, not State
sovereignty, but State rights, held independently of the General
government, and which limit its authority and sphere of action, they
share in the victory, as the future will prove.

European Jacobins, revolutionists, conspiring openly or secretly
against all legitimate authority, whether in Church or State, have no
lot or part in the victory of the American people: not for them nor for
men with their nefarious designs or mad dreams, have our brave soldiers
fought, suffered and bled for four years of the most terrible war in
modern times, and against troops as brave and as well led as
themselves; not for them has the country sacrificed a million of lives,
and contracted a debt of four thousand millions of dollars, besides the
waste and destruction that it will take years of peaceful industry to
repair.  They and their barbaric democracy have been defeated, and
civilization has won its most brilliant victory in all history.  The
American democracy has crushed, actually or potentially, every species
of barbarism in the New World, asserted victoriously the state, and
placed the government definitively on the side of legitimate authority,
and made its natural association henceforth with all civilized
governments--not with the revolutionary movements to overthrow them.
The American people will always be progressive as well as conservative;
but they have learned a lesson, which they much needed against false
democracy: civil war has taught them that "the sacred right of
insurrection" is as much out of place in a democratic state as in an
aristocratic or a monarchical state; and that the government should
always be clothed with ample authority to arrest and punish whoever
plots its destruction.  They must never be delighted again to have
their government send a national ship to bring hither a noted traitor
to his own sovereign as the nation's guest.  The people of the Northern
States are hardly less responsible for the late rebellion than the
people of the Southern States.  Their press had taught them to call
every government a tyranny that refused to remain quiet while the
traitor was cutting its throat or assassinating the nation, and they
had nothing but mad denunciations of the Papal, the Austrian, and the
Neapolitan governments for their severity against conspirators and
traitors. But their own government has found it necessary for the
public safety to be equally arbitrary, prompt, and severe, and they
will most likely require it hereafter to co-operate with the
governments of the Old World in advancing civilization, instead of
lending all its moral support, as heretofore, to the Jacobins,
revolutionists, socialists, and humanitarians, to bring back the reign
of barbarism.

The tendency to individualism has been sufficiently checked by the
failure of the rebellion, and no danger from the disintegrating
element, either in the particular State or in the United States, is
henceforth to be apprehended.  But the tendency in the opposite
direction may give the American state some trouble.  The tendency now
is, as to the Union, consolidation, and as to the particular state,
humanitarianism, socialism, or centralized democracy.  Yet this
tendency, though it may do much mischief, will hardly become exclusive.
The States that seceded, when restored, will always, even in abandoning
State sovereignty, resist it, and still assert State rights.  When
these States are restored to their normal position, they will always be
able to protect themselves against any encroachments on their special
rights by the General government.  The constitution, in the
distribution of the powers of government, provides the States severally
with ample means to protect their individuality against the
centralizing tendency of the General government, however strong it may
be.

The war has, no doubt, had a tendency to strengthen the General
government, and to cause the people, to a great extent, to look upon it
as the supreme and exclusive national government, and to regard the
several State governments as subordinate instead of co-ordinate
governments.  It is not improbable that the Executive, since the
outbreak of the rebellion, has proceeded throughout on that
supposition, and hence his extraordinary assumptions of power; but when
once peace is fully re-established and the States have all resumed
their normal position in the Union, every State will be found prompt
enough to resist any attempt to encroach on its constitutional rights.
Its instinct of self-preservation will lead it to resist, and it will
be protected by both its own judiciary and that of the United States.

The danger that the General government will usurp the rights of the
States is far less than the danger that the Executive will usurp all
the powers of Congress and the judiciary.  Congress, during the
rebellion, clothed the President, as far as it could, with dictatorial
powers, and these powers the Executive continues to exercise even after
the rebellion is suppressed.  They were given and held under the rights
of war, and for war purposes only, and expired by natural limitation
when the war ceased; but the Executive forgets this, and, instead of
calling Congress together and submitting the work of reconstruction of
the States that seceded to its wisdom and authority, undertakes to
reconstruct them himself, as if he were an absolute sovereign; 372 and
the people seem to like it.  He might and should, as commander-in-chief
of the army and navy, govern them as military departments, by his
lieutenants, till Congress could either create provisional civil
governments for them or recognize them as self-governing States in the
Union; but he has no right, under the constitution nor under the war
power, to appoint civil governors, permanent or provisional; and every
act he has done in regard to reconstruction is sheer usurpation, and
done without authority and without the slightest plea of necessity.
His acts in this respect, even if wise and just in themselves, are
inexcusable, because done by one who has no legal right to do them.
Yet his usurpation is apparently sustained by public sentiment, and a
deep wound is inflicted on the constitution, which will be long in
healing.

The danger in this respect is all the greater because it did not
originate with the rebellion, but had manifested itself for a long time
before.  There is a growing disposition on the part of Congress to
throw as much of the business of government as possible into the hands
of the Executive.  The patronage the Executive wields, even in times of
peace, is so large that he has indirectly an almost supreme control
over the legislative branch of the government.  For this, which is,
and, if not checked will continue to be, a growing evil, there is no
obvious remedy, unless the President is chosen for a longer term of
office and made ineligible for a second term, and the mischievous
doctrine of rotation in office is rejected as incompatible with the
true interests of the public.  Here is matter for the consideration of
the American statesman.  But as to the usurpations of the Executive in
these unsettled times, they will be only temporary, and will cease when
the States are all restored.  They are abuses, but only temporary
abuses, and the Southern States, when restored to the Union, will
resume their rights in their own sphere, as self-governing communities,
and legalize or undo the unwarrantable acts of the Federal Executive.

The socialistic and centralizing tendency in the bosom of the
individual States is the most dangerous, but it will not be able to
become predominant; for philanthropy, unlike charity, does not begin at
home, and is powerless unless it operates at a distance. In the States
in which the humanitarian tendency is the strongest, the territorial
democracy has its most effective organization.  Prior to the outbreak
of the rebellion the American people had asserted popular sovereignty,
but had never rendered an account to themselves in what sense the
people are or are not sovereign.  They had never distinguished the
three sorts of democracy from one another, asked themselves which of
the three is the distinctively American democracy.  For them, democracy
was democracy, and those who saw dangers ahead sought to avoid them
either by exaggerating one or the other of the two exclusive
tendencies, or else by restraining democracy itself through
restrictions on suffrage.  The latter class began to distrust universal
suffrage, to lose faith in the people, and to dream of modifying the
American constitution so as to make it conform more nearly to the
English model.  The war has proved that the were wrong, for nothing is
more certain than that the people have saved the national unity and
integrity almost in spite of their government.  The General government
either was not disposed or was afraid to take a decided stand against
secession, till forced to do it by the people themselves.  No wise
American can henceforth distrust American democracy.  The people may be
trusted.  So much is settled.  But as the two extremes were equally
democratic, as the secessionists acted in the name of popular
sovereignty, and as the humanitarians were not unwilling to allow
separation, and would not and did not engage in the war against
secession for the sake of the Union and the integrity of the national
domain, the conviction becomes irresistible that it was not democracy
in the sense of either of the extremes that made the war and came out
of it victorious; and hence the real American democracy must differ
from them both, and is neither a personal nor a humanitarian, but a
territorial democracy.  The true idea of American democracy thus comes
out, for the first time, freed from the two extreme democracies which
have been identified with it, and henceforth enters into the
understandings as well as the hearts of the people.  The war has
enlightened patriotism, and what was sentiment or instinct becomes
reason--a well-defined, and clearly understood constitutional
conviction.

In the several States themselves there are many things to prevent the
socialistic tendency from becoming exclusive.  In the States that
seceded socialism has never had a foothold, and will not gain it, for
it is resisted by all the sentiments, convictions, and habits of the
Southern people, and the Southern people will not be exterminated nor
swamped by migrations either from the North or from Europe.  They are
and always will be an agricultural people, and an agricultural people
are and always will be opposed to socialistic dreams, unless
unwittingly held for a moment to favor it in pursuit of some special
object in which they take a passionate interest.  The worst of all
policies is that of hanging, exiling, or disfranchising the wealthy
landholders of the South, in order to bring up the poor and depressed
whites, shadowed forth in the Executive proclamation of the 29th of
May, 1865.  Of course that policy will not be carried out, and if the
negroes are enfranchised, they will always vote with the wealthy
landholding class, and aid them in resisting all socialistic
tendencies.  The humanitarians will fail for the want of a good social
grievance against which they can declaim.

In the New England States the humanitarian tendency is strong as a
speculation, but only in relation to objects at a distance.  It is
aided much by the congregational constitution of their religion; yet it
is weak at home, and is resisted practically by the territorial
division of power.  New England means Massachusetts, and nowhere is the
subdivision of the powers of government carried further, or the
constitution of the territorial democracy more complete, than in that
State. Philanthropy seldom works in private against private vices and
evils: it is effective only against public grievances, and the farther
they are from home and the less its right to interfere with them, the
more in earnest and the more effective for evil does it become.  Its
nature is to mind every one's business but its own.  But now that
slavery is abolished, there is nowhere in the United States a social
grievance of magnitude enough to enlist any considerable number of the
people, even of Massachusetts, in a movement to redress it.  Negro
enfranchisement is a question of which the humanitarians can make
something and they will make the most of it; but as it is a question
that each State will soon settle for itself, it will not serve their
purpose of prolonged agitation.  They could not and never did carry
away the nation, even on the question of slavery itself, and
abolitionism had comparatively little direct influence in abolishing
slavery; and the exclusion of negro suffrage can never be made to
appear to the American people as any thing like so great a grievance as
was slavery.

Besides, in all the States that did not secede, Catholics are a
numerous and an important portion of the population.  Their increasing
numbers, wealth, and education secure them, as much as the majority may
dislike their religion, a constantly increasing influence, and it is
idle to leave them out in counting the future of the country.  They
will, in a very few years, be the best and most thoroughly educated
class of the American people; and, aside from their religion, or,
rather, in consequence of their religion, the most learned,
enlightened, and intelligent portion of the American population; and as
much as they have disliked the abolitionists, they have, in the army
and elsewhere, contributed their full share to the victory the nation
has won.  The best things written on the controversy have been written
by Catholics, and Catholics are better fitted by their religion to
comprehend the real character of the American constitution than any
other class of Americans, the moment they study it in the light of
their own theology.  The American constitution is based on that of
natural society, on the solidarity of the race, and the difference
between natural society and the church or Christian society is, that
the one is initial and the other teleological.  The law of both is the
same; Catholics, as such, must resist both extremes, because each is
exclusive, and whatever is exclusive or one-sided is uncatholic. If
they have been backward in their sympathy with the government, it has
been through their dislike of the puritanic spirit and the humanitarian
or socialistic elements they detected in the Republican party, joined
with a prejudice against political and social negro equality.  But
their church everywhere opposes the socialistic movements of the age,
all movements in behalf of barbarism, and they may always be counted on
to resist the advance of the socialistic democracy.  If the country has
had reason to complain of some of them in the late war, it will have,
in the future, far stronger reason to be grateful; not to them, indeed,
for the citizen owes his life to his country, but to their religion,
which has been and is the grand protectress of modern society and
civilization.

From the origin of the government there has been a tendency to the
extension of suffrage, and to exclude both birth and private property
as bases of political rights or franchises.  This tendency has often
been justified on the ground that the elective franchise is a natural
right; which is not true, because the elective franchise is political
power, and political power is always a civil trust, never a natural
right, and the state judges for itself to whom it will or will not
confide the trust; but there can be no doubt that it is a normal
tendency, and in strict accordance with the constitution of American
civil society, which rests on the unity of the race, and public instead
of private property.  All political distinctions founded on birth,
race, or private wealth are anomalies in the American system, and are
necessarily eliminated by its normal developments.  To contend that
none but property-holders may vote, or none but persons of a particular
race may be enfranchised, is unamerican and contrary, to the order of
civilization the New World is developing.  The only qualification for
the elective franchise the American system can logically insist on is
that the elector belong to the territorial people--that is, be a
natural-born or a naturalized citizen, be a major in full possession of
his natural faculties, and unconvicted of any infamous offence.  The
State is free to naturalize foreigners or not, and under such
restrictions as it judges proper; but, having naturalized them, it must
treat them as standing on the same footing with natural-born citizens.

The naturalization question is one of great national importance. The
migration of foreigners hither has added largely to the national
population, and to the national wealth and resources, but less,
perhaps, to the development of patriotism, the purity of elections, or
the wisdom and integrity of the government.  It is impossible that
there should be perfect harmony between the national territorial
democracy and individuals born, brought up, and formed under a
political order in many respects widely different from it; and there is
no doubt that the democracy, in its objectionable sense, has been
greatly strengthened by the large infusion of naturalized citizens.
There can be no question that, if the laboring classes, in whom the
national sentiment is usually the strongest, had been composed almost
wholly of native Americans, instead of being, as they were, at least in
the cities, large towns, and villages, composed almost exclusively of
persons foreign born, the Government would have found far less
difficulty in filling up the depleted ranks of its armies.  But to
leave so large a portion of the actual population as the foreign born
residing in the country without the rights of citizens, would have been
a far graver evil, and would, in the late struggle, have given the
victory to secession.  There are great national advantages derived from
the migration hither of foreign labor, and if the migration be
encouraged or permitted, naturalization on easy and liberal terms is
the wisest, the best, and only safe policy.  The children of
foreign-born parents are real Americans.

Emigration has, also, a singular effect in developing the latent powers
of the emigrant, and the children of emigrants are usually more active,
more energetic than the children of the older inhabitants of the
country among whom they settle.  Some of our first men in civil life
have been sons of foreign-born parents, and so are not a few of our
greatest and most successful generals.  The most successful of our
merchants have been foreign-born.  The same thing has been noticed
elsewhere, especially in the emigration of the French Huguenots to
Holland, Germany, England, and Ireland.  The immigration of so many
millions from the Old World has, no doubt, given to the American people
much of their bold, energetic, and adventurous character, and made them
a superior people on the whole to what they would otherwise have been.
This has nothing to do with superiority or inferiority of race or
blood, but is a natural effect of breaking men away from routine, and
throwing them back on their own individual energies and personal
resources.

Resistance is offered to negro suffrage, and justly too, till the
recently emancipated slaves have served an apprenticeship to freedom;
but that resistance cannot long stand before the onward progress of
American democracy, which asserts equal rights for all, and not for a
race or class only.  Some would confine suffrage to landholders, or, at
least, to property-holders; but that is inconsistent with the American
idea, and is a relic of the barbaric constitution which founds power on
private instead of public wealth.  Nor are property-owners a whit more
likely to vote for the public good than are those who own no property
but their own labor.  The men of wealth, the business men,
manufacturers and merchants, bankers and brokers, are the men who exert
the worst influence on government in every country, for they always
strive to use it as an instrument of advancing their own private
interests.  They act on the beautiful maxim, "Let government take care
of the rich, and the rich will take care of the poor," instead of the
far safer maxim, "Let government take care of the weak, the strong can
take care of themselves." Universal suffrage is better than restricted
suffrage, but even universal suffrage is too weak to prevent private
property from having an undue political influence.

The evils attributed to universal suffrage are not inseparable from it,
and, after all, it is doubtful if it elevates men of an inferior class
to those elevated by restricted suffrage.  The Congress of 1860, or of
1862. was a fair average of the wisdom, the talent, and the virtue of
the country, and not inferior to that of 1776, or that of 1789; and the
Executive during the rebellion was at least as able and as efficient as
it was during the war of 1812, far superior to that of Great Britain,
and not inferior to that of France during the Crimean war.  The Crimean
war developed and placed in high command, either with the English or
the French, no generals equal to Halleck, Grant, and Sherman, to say
nothing of others.  The more aristocratic South proved itself, in both
statesmanship and generalship, in no respect superior to the
territorial democracy of the North and West.

The great evil the country experiences is not from universal suffrage,
but from what may be called rotation in office.  The number of
political aspirants is so great that, in the Northern and Western
States especially, the representatives in Congress are changed every
two or four years, and a member, as soon as he has acquired the
experience necessary to qualify him for his position, is dropped, not
through the fickleness of his constituency, but to give place to
another whose aid had been necessary to his first or second election.
Employes are "rotated," not because they are incapable or unfaithful,
but because there are others who want their places.  This is all bad,
but it springs not from universal suffrage, but from a wrong public
opinion, which might be corrected by the press, but which is mainly
formed by it.  There is, no doubt, a due share of official corruption,
but not more than elsewhere, and that would be much diminished by
increasing the salaries of the public servants, especially in the
higher offices of the government, both General and State.  The pay to
the lower officers and employes of the government, and to the privates
and non-commissioned officers in the army, is liberal, and, in general,
too liberal; but the pay of the higher grades in both the civil and
military service is too low, and relatively far lower than it was when
the government was first organized.

The worst tendency in the country, and which is not encouraged at all
by the territorial democracy, manifests itself in hostility to the
military spirit and a standing army.  The depreciation of the military
spirit comes from the humanitarian or sentimental democracy, which,
like all sentimentalisms, defeats itself, and brings about the very
evils it seeks to avoid.  The hostility to standing armies is inherited
from England, and originated in the quarrels between king and
parliament, and is a striking evidence of the folly of that bundle of
antagonistic forces called the British constitution.  In feudal times
most of the land was held by military service, and the reliance of
government was on the feudal militia; but no real progress was made in
eliminating barbarism till the national authority got a regular army at
its command, and became able to defend itself against its enemies. It
is very doubtful if English civilization has not, upon the whole, lost
more than it has gained by substituting parliamentary for royal
supremacy, and exchanging the Stuarts for the Guelfs.

No nation is a living, prosperous nation that has lost the military
spirit, or in which the profession of the soldier is not held in honor
and esteem; and a standing army of reasonable size is public economy.
It absorbs in its ranks a class of men who are worth more there than
anywhere else; it creates honorable places for gentlemen or the sons of
gentlemen without wealth, in which they can serve both themselves and
their country.  Under a democratic government the most serious
embarrassment to the state is its gentlemen, or persons not disposed or
not fitted to support themselves by their own hands, more necessary in
a democratic government than in any other.  The civil service,
divinity, law, and medicine, together with literature, science, and
art, cannot absorb the whole of this ever-increasing class, and the
army and navy would be an economy and a real service to the state were
they maintained only for the sake of the rank and position they give to
their officers, and the wholesome influence these officers would exert
on society and the politics of the country--this even in case there
were no wars or apprehension of wars.  They supply an element needed in
all society, to sustain in it the chivalric and heroic spirit,
perpetually endangered by the mercantile and political spirit, which
has in it always something low and sordid.

But wars are inevitable, and when a nation has no surrounding nations
to fight, it will, as we have just proved, fight itself. When it can
have no foreign war, it will get up a domestic war; for the human
animal, like all animals, must work off in some way its fighting humor,
and the only sure way of maintaining peace is always to be prepared for
war.  A regular standing army of forty thousand men would have
prevented the Mexican war, and an army of fifty thousand
well-disciplined and efficient troops at the command of the President
on his inauguration in March, 1861, would have prevented the rebellion,
or have instantly suppressed it.  The cost of maintaining a land army
of even a hundred thousand men, and a naval force to correspond, would
have been, in simple money value, only a tithe of what the rebellion
has cost the nation, to say nothing of the valuable lives that have
been sacrificed for the losses on the rebel side, as well as those on
the side of the government, are equally to be counted. The actual
losses to the country have been not less than six or eight thousand
millions of dollars, or nearly one-half the assessed value of the whole
property of the United States according to the census returns of 1860,
and which has only been partially cancelled by actual increase of
property since.  To meet the interest on the debt incurred will require
a heavier sum to be raised annually by taxation, twice over, without
discharging a cent of the principal, than would have been necessary to
maintain an army and navy adequate to the protection of peace and the
prevention of the rebellion.

The rebellion is now suppressed, and if the government does not blunder
much more in its civil efforts at pacification than it did in its
military operations, before 1868 things will settle down into their
normal order; but a regular army--not militia or volunteers, who are
too expensive--of at least a hundred thousand men of all arms, and a
navy nearly as large as that of England or France, will be needed as a
peace establishment.  The army of a hundred thousand men must form a
cadre of an army of three times that number, which will be necessary to
place the army on a war footing.  Less will answer neither for peace
nor war, for the nation has, in spite of herself, to maintain
henceforth the rank of a first-class military and maritime power, and
take a leading part in political movements of the civilized world, and,
to a great extent, hold in her hand the peace of Europe.

Canning boasted that he had raised up the New World to redress the
balance of the Old: a vain boast, for he simply weakened Spain and gave
the hegemony of Europe to Russia, which the Emperor of the French is
trying, by strengthening Italy and Spain, and by a French protectorate
in Mexico, to secure to France, both in the Old World and the New--a
magnificent dream, but not to be realized.  His uncle judged more
wisely when he sold Louisiana, left the New World to itself, and sought
only to secure to France the hegemony of the Old.  But the hegemony of
the New World henceforth belongs to the United States, and she will
have a potent voice in adjusting the balance of power even in Europe.
To maintain this position, which is imperative on her, she must always
have a large armed force, either on foot or in reserve, which she can
call out and put on a war footing at short notice.  The United States
must henceforth be a great military and naval power, and the old
hostility to a standing army and the old attempt to bring the military
into disrepute must be abandoned, and the country yield to its destiny.

Of the several tendencies mentioned, the humanitarian tendency,
egoistical at the South, detaching the individual from the race and
socialistic at the North, absorbing the individual in the race, is the
most dangerous.  The egoistical form is checked, sufficiently weakened
by the defeat of the rebels; but the social form believes that it has
triumphed, and that individuals are effaced in society, and the States
in the Union.  Against this, more especially should public opinion and
American statesmanship be now directed, and territorial democracy and
the division of the powers of government be asserted and vigorously
maintained. The danger is that while this socialistic form of democracy
is conscious of itself, the territorial democracy has not yet arrived,
as the Germans say, at self consciousness--_selbsbewusstseyn_--and
operates only instinctively. All the dominant theories and
sentimentalities are against it, and it is only Providence that can
sustain it.




CHAPTER XV.

DESTINY--POLITICAL AND RELIGIOUS.


It has been said in the Introduction to this essay that every living
nation receives from Providence a special work or mission in the
progress of society, to accomplish which is its destiny, or the end for
which it exists; and that the special mission of the United States is
to continue and complete in the political order the Graeco-Roman
civilization.

Of all the states or colonies on this continent, the American Republic
alone has a destiny, or the ability to add any thing to the
civilization of the race.  Canada and the other British Provinces,
Mexico and Central America, Columbia and Brazil, and the rest of the
South American States, might be absorbed in the United States without
being missed by the civilized world.  They represent no idea, and the
work of civilization could go on without them as well as with them.  If
they keep up with the progress of civilization, it is all that can be
expected of them. France, England, Germany, and Italy might absorb the
rest of Europe, and all Asia and Africa, without withdrawing a single
laborer from the work of advancing the civilization of the race; and it
is doubtful if these nations themselves can severally or jointly
advance it much beyond the point reached by the Roman Empire, except in
abolishing slavery and including in the political people the whole
territorial people.  They can only develop and give a general
application to the fundamental principles of the Roman constitution.
That indeed is much, but it adds no new element nor new combination of
preexisting elements.  But nothing of this can be said of the United
States.

In the Graeco-Roman civilization is found the state proper, and the
great principle of the territorial constitution of power, instead of
the personal or the genealogical, the patriarchal or the monarchical;
and yet with true civil or political principles it mixed up nearly all
the elements of the barbaric constitution. The gentile system of Rome
recalls the patriarchal, and the relation that subsisted between the
patron and his clients has a striking resemblance to that which
subsists between the feudal lord and his retainers, and may have had
the same origin.  The three tribes, Ramnes, Quirites, and Luceres, into
which the Roman people were divided before the rise of the plebs, may
have been, as Niebuhr contends, local, not genealogical, in their
origin, but they were not strictly territorial distinctions, and the
division of each tribe into a hundred houses or gentes was not local,
but personal, if not, as the name implies, genealogical. No doubt the
individuals or families composing the house or gens were not all of
kindred blood, for the Oriental custom of adoption, so frequent with
our North American Indians, and with all people distributed into
tribes, septs, or clans, obtained with the Romans.  The adopted member
was considered a child of the house, and took its name and inherited
its goods.  Whether, as Niebuhr maintains, all the free gentiles of the
three tribes were called patres or patricians or whether the term was
restricted to the heads of houses, it is certain that the head of the
house represented it in the senate, and the vote in the curies was by
houses, not by individuals en masse.  After all, practically the Roman
senate was hardly less an estate than the English house of lords, for
no one could sit in it unless a landed proprietor and of noble blood.
The plebs, though outside of the political people proper, as not being
included in the three tribes, when they came to be a power in the
republic under the emperors, and the old distinction of plebs and
patricians was forgotten, were an estate, and not a local or
territorial people.

The republican element was in the fact that the land, which gave the
right to participate in political power, was the domain of the state,
and the tenant held it from the state.  The domain was vested in the
state, not in the senator nor the prince, and was therefore respublica,
not private property--the first grand leap of the human race from
barbarism.  In all other respects the Roman constitution was no more
republican than the feudal. Athens went farther than Rome, and
introduced the principle of territorial democracy.  The division into
demes or wards, whence comes the word democracy, was a real territorial
division, not personal nor genealogical.  And if the equality of all
men was not recognized, all who were included in the political class
stood on the same footing.  Athens and other Greek cities, though
conquered by Rome, exerted after their conquest a powerful influence on
Roman civilization, which became far more democratic under the emperors
than it had been under the patrician senate, which the assassins of
Julius Caesar, and the superannuated conservative party they
represented, tried so hard to preserve. The senate and the consulship
were opened to the representatives of the great plebeian houses, and
the provincials were clothed with the rights of Roman citizens, and
uniform laws were established throughout the empire.

The grand error, as has already been said, of the Graeco-Roman or
gentile civilization, was in its denial or ignorance of the unity of
the human race, as well as the Unity of God, and in its including in
the state only a particular class of the territorial people, while it
held all the rest as slaves, though in different degrees of servitude.
It recognized and sustained a privileged class, a ruling order; and if,
as subsequently did the Venetian aristocracy, it recognized democratic
equality within that order, it held all outside of it to be less than
men and without political rights.  Practically, power was an attribute
of birth and of private wealth.  Suffrage was almost universal among
freemen, but down almost to the Empire, the people voted by orders, and
were counted, not numerically, but by the rank of the order, and the
comitia curiata could always carry the election over the comitia
centuriata, and thus power remained always in the hands of the rich and
noble few.

The Roman Law, as digested by jurists under Justinian in the sixth
Century, indeed, recognizes the unity of the race, asserts the equality
of all men by the natural law, and undertakes to defend slavery on
principles not incompatible with that equality. It represents it as a
commutation of the punishment of death, which the emperor has the right
to inflict on captives taken in war, to perpetual servitude; and as
servitude is less severe than death, slavery was really a proof of
imperial clemency.  But it has never yet been proved that the emperor
has the right under the natural law to put captives taken even in a
just war to death, and the Roman poet himself bids us "humble the
proud, but spare the submissive."  In a just war the emperor may kill
on the battle-field those in arms against him, but the jus gentium, as
now interpreted by the jurisprudence of every civilized nation, does
not allow him to put them to death after they have ceased resistance,
have thrown down their arms, and surrendered.  But even if it did, it
gives him a right only over the persons captured, not over their
innocent children, and therefore no right to establish hereditary
slavery, for the child is not punishable for the offences of the
parent.  The law, indeed, assumed that the captive ceased to exist as a
person and treated him as a thing, or mere property of the conqueror,
and being property, he could beget only property, which would accrue
only to his owner.  But there is no power in heaven or earth that can
make a person a thing, a mere piece of merchandise, and it is only by a
clumsy fiction, or rather by a bare-faced lie, that the law denies the
slave his personality and treats him as a thing. I the unity of all men
had been clearly seen and vividly felt, the law would never have
attempted to justify perpetual slavery on the ground of its penal
character, or indeed on any ground whatever.  All men are born under
the law of nature with equal rights, and the civil law can justly
deprive no man of his liberty, but for a crime, committed by him
personally, that justly forfeits his liberty to society.

These defects of the Graeco-Roman civilization the European nations
have in part remedied, and may completely remedy.  They can carry out
practically the Christian dogma of the unity of the human race, abolish
slavery in every form, make all men equal before the law, and the
political people commensurate with the territorial people.  Indeed,
France has already done it.  She has abolished slavery, villenage,
serfage, political aristocracy, asserted the equality of all men before
the law, vindicated the sovereignty of the people, and established
universal suffrage, complete social and territorial democracy.  The
other nations may do as much, but hardly can any of them do more or
advance farther.  Yet in France, territorial democracy the most
complete results only in establishing the most complete imperial
centralism, usually called Caesarism.

The imperial constitution of France recognizes that the emperor reigns
"by the grace of God and the will of the nation," and therefore, that
by the grace of God and the will of the nation he may cease to reign;
but while he reigns he is supreme, and his will is law.  The
constitution imposes no real or effective restraint on his power: while
he sits upon the throne he is practically France, and the ministers are
his clerks; the council of state, the senate, and the legislative body
are merely his agents in governing the nation.  This may, indeed, be
changed, but only to substitute for imperial centralism democratic
centralism, which were no improvement, or to go back to the system of
antagonisms, checks and balances, called constitutionalism, or
parliamentary government, of which Great Britain is the model, and
which were a return toward barbarism, or mediaeval feudalism.

The human race has its life in God, and tends to realize in all orders
the Divine Word or Logos, which is Ionic itself, and the principle of
all conciliation, of the dialectic union of all opposites or extremes.
Mankind will be logical; and the worst of all tyrannies is that which
forbids them to draw from their principles their last logical
consequences, or that prohibits them the free explication and
application of the Divine Idea, in which consists their life, their
progress.  Such tyranny strikes at the very existence of society, and
wars against the reality of things.  It is supremely sophistical, and
its success is death; for the universe in its constitution is supremely
logical, and man, individually and socially, is rational.  God is the
author and type of all created things; and all creatures, each in its
order, imitate or copies the Divine Being, who is intrinsically Father,
Son, and Holy Ghost, principle, medium, and end.  The Son or Word is
the medium, which unites the two extremes, whence God is living God a
real, active, living Being--living, concrete, not abstract or dead
unity, like the unity of old Xenophanes, Plotinus, and Proclus.  In the
Holy Trinity is the principle and prototype of all society, and what is
called the solidarity of the race is only the outward expression, or
copy in the external order, of what theologians term the circumsession
of the three Divine Persons of the Godhead.

Now, human society, when it copies the Divine essence and nature either
in the distinction of persons alone, or in the unity alone, is
sophistical, and wants the principle of all life and reality.  It sins
against God, and must fail of its end.  The English system, which is
based on antagonistic elements, on opposites, without the middle term
that conciliates them, unites them, and makes them dialectically one,
copies the Divine model in its distinctions alone, which, considered
alone, are opposites or contraries.  It denies, if Englishmen could but
see it, the unity of God.  The French, or imperial system, which
excludes the extremes, instead of uniting them, denies all opposites,
instead of conciliating them--denies the distinctions in the model, and
copies only the unity, which is the supreme sophism called pantheism.
The English constitution has no middle term, and the French no
extremes, and each in its way denies the Divine Trinity, the original
basis and type of the syllogism.  The human race can be contented with
neither, for neither allows it free scope for its inherent life and
activity.  The English system tends to pure individualism; the French
to pure socialism or despotism, each endeavoring to suppress an element
of the one living and indissoluble TRUTH.

This is not fancy, is not fine-spun speculation, or cold and lifeless
abstraction, but the highest theological and philosophical truth,
without which there were no reason, no man, no society; for God is the
first principle of all being, all existence, all science, all life, and
it is in Him that we live and move and have our being.  God is at the
beginning, in the middle, and at the end of all things--the universal
principle, medium, and end; and no truth can be denied without His
existence being directly or indirectly impugned.  In a deeper sense
than is commonly understood is it true that nisi Dominus aedificaverit
domum, in vanum laboraverunt qui aedificant eam.  The English
constitution is composed of contradictory elements, incapable of
reconciliation, and each element is perpetually struggling with the
others for the mastery.  For a long time the king labored, intrigued,
and fought to free himself from the thraldom in which he was held by
the feudal barons; in 1688 the aristocracy and people united and
humbled the crown; and now the people are at work seeking to sap both
the crown and the nobles.  The state is constituted to nobody's
satisfaction; and though all may unite in boasting its excellences, all
are at work trying to alter or amend it.  The work of constituting the
state with the English is ever beginning, never ending.  Hence the
eternal clamor for parliamentary reform.

Great Britain and other European states may sweep away all that remains
of feudalism, include the whole territorial people with the equal
rights of all in the state or political people, concede to birth and
wealth no political rights, but they will by so doing only establish
either imperial centralism, as has been done in France, or democratic
centralism, clamored for, conspired for, and fought for by the
revolutionists of Europe.  The special merit of the American system is
not in its democracy alone, as too many at home and abroad imagine; but
along with its democracy in the division of the powers of government,
between a General government and particular State governments, which
are not antagonistic governments, for they act on different matters,
and neither is nor can be subordinated to the other.

Now, this division of power, which decentralizes the government without
creating mutually hostile forces, can hardly be introduced into any
European state.  There may be a union of states in Great Britain, in
Germany, in Italy, perhaps in Spain, and Austria is laboring hard to
effect it in her heterogeneous empire; but the union possible in any of
them is that of a Bund or confederation, like the Swiss or German Bund,
similar to what the secessionists in the United States so recently
attempted and have so signally failed to establish.  An intelligent
Confederate officer remarked that their Confederacy had not been in
operation three months before it became evident that the principle on
which it was founded, if not rejected, would insure its defeat. It was
that principle of State sovereignty, for which the States seceded, more
than the superior resources and numbers of the Government, that caused
the collapse of the Confederacy.  The numbers were relatively about
equal, and the military resources of the Confederacy were relatively
not much inferior to those of the Government.  So at least the
Confederate leaders thought, and they knew the material resources of
the Government as well as their own, and had calculated them with as
much care and accuracy as any men could.  Foreign powers also, friendly
as well as unfriendly, felt certain that the secessionists would gain
their independence, and so did a large part of the people even of the
loyal States.  The failure is due to the disintegrating principle of
State sovereignty, the very principle of the Confederacy.  The war has
proved that united states are, other things being equal, an overmatch
for confederated states.

The European states must unite either as equals or as unequals. As
equals, the union can be only a confederacy, a sort of Zollverein, in
which each state retains its individual sovereignty; if as unequals,
then someone among them will aspire to the hegemony, and you have over
again the Athenian Confederation, formed at the conclusion of the
Persian war, and its fate.  A union like the American cannot be created
by a compact, or by the exercise of supreme power.  The Emperor of the
French cannot erect the several Departments of France into states, and
divide the powers of government between them as individual and as
united states.  They would necessarily hold from the imperial
government, which, though it might exercise a large part of its
functions through them, would remain, as now, the supreme central
government, from which all governmental powers emanate, as our
President is apparently attempting, in his reconstruction policy, to
make the government of the United States.  The elements of a state
constituted like the American do not exist in any European nation, nor
in the constitution of European society; and the American constitution
would have been impracticable even here had not Providence so ordered
it that the nation was born with it, and has never known any other.

Rome recognized the necessity of the federal principle, and applied it
in the best way she could.  At first it was a single tribe or people
distributed into distinct gentes or houses; after the Sabine war, a
second tribe was added on terms of equality, and the state was dual,
composed of two tribes, the Ramnes and the Tities or Quirites, and,
afterward, in the time of Tullus Hostilius, were added the Lucertes or
Luceres, making the division into three ruling tribes, each divided
into one hundred houses or gentes.  Each house in each tribe was
represented by its chief or decurion in the senate, making the number
of senators exactly three hundred, at which number the senate was
fixed.  Subsequently was added, by Ancus, the plebs, who remained
without authority or share in the government of the city of Rome
itself, though they might aspire to the first rank in the allied
cities.  The division into tribes, and the division of the tribes into
gentes or houses, and the vote in the state by tribes, and in the
tribes by houses, effectually excluded democratic centralism; but the
division was not a division of the powers of government between two
co-ordinate governments, for the senate had supreme control, like the
British parliament, over all matters, general and particular.

The establishment, after the secession of the plebs, of the tribunitial
veto, which gave the plebeians a negative power in the state, there was
an incipient division of the powers of government; but only a division
between the positive and negative powers, not between the general and
the particular.  The power accorded to the plebs, or commons, as
Niebuhr calls them--who is, perhaps, too fond of explaining the early
constitution of Rome by analogies borrowed from feudalism, and
especially from the constitution of his native Ditmarsch--was simply an
obstructive power; and when it, by development, became a positive
power, it absorbed all the powers of government, and created the Empire.

There was, indeed, a nearer approach to the division of powers in the
American system, between imperial Rome and her allied or confederated
municipalities.  These municipalities, modelled chiefly after that of
Rome, were elective, and had the management of their own local affairs;
but their local powers were not co-ordinate in their own sphere with
those exercised by the Roman municipality, but subordinate and
dependent.  The senate had the supreme power over them, and they held
their rights subject to its will.  They were formally, or virtually,
subjugated states, to which the Roman senate, and afterward the Roman
emperors, left the form of the state and the mere shadow of freedom.
Rome owed much to her affecting to treat them as allies rather than as
subjects, and at first these municipal organizations secured the
progress of civilization in the provinces; but at a later period, under
the emperors, they served only the imperial treasury, and were crushed
by the taxes imposed and the contributions levied on them by the fiscal
agents of the empire.  So heavy were the fiscal burdens imposed on the
burgesses, if the term may be used, that it needed an imperial edict to
compel them to enter the municipal government; and it became, under the
later emperors, no uncommon thing for free citizens to sell themselves
into slavery, to escape the fiscal burdens imposed.  There are actually
imperial edicts extant forbidden freemen to sell themselves as slaves.
Thus ended the Roman federative system, and it is difficult to discover
in Europe the elements of a federative system that could have a more
favorable result.

Now, the political destiny or mission of the United States is, in
common with the European nations, to eliminate the barbaric elements
retained by the Roman constitution, and specially to realize that
philosophical division of the powers of government which distinguish it
from both imperial and democratic centralism on the one hand, and, on
the other, from the checks and balances or organized antagonisms which
seek to preserve liberty by obstructing the exercise of power.  No
greater problem in statesmanship remains to be solved, and no greater
contribution to civilization to be made.  Nowhere else than in this New
World, and in this New World only in the United States, can this
problem be solved, or this contribution be made, and what the
Graeco-Roman republic began be completed.

But the United States have a religious as well as a political destiny,
for religion and politics go together.  Church and state, as
governments, are separate indeed, but the principles on which the state
is founded have their origin and ground in the spiritual order--in the
principles revealed or affirmed by religion--and are inseparable from
them.  There is no state without God, any more than there is a church
without Christ or the Incarnation.  An atheist may be a politician, but
if there were no God there could be no politics, theological principles
are the basis of political principles.  The created universe is a
dialectic whole, distinct but inseparable from its Creator, and all its
parts cohere and are essential to one another.  All has its origin and
prototype in the Triune God, and throughout expresses unity in
triplicity and triplicity in unity, without which there is no real
being and no actual or possible life. Every thing has its principle,
medium, and end.  Natural society is initial, civil government is
medial, the church is teleological, but the three are only distinctions
in one indissoluble whole.

Man, as we have seen, lives by communion with God through the Divine
creative act, and is perfected or completed only through the
Incarnation, in Christ, the Word made flesh.  True, he communes with
God through his kind, and through external nature, society in which he
is born and reared, and property through which he derives sustenance
for his body; but these are only media of his communion with God, the
source of life--not either the beginning or the end of his communion.
They have no life in themselves, since their being is in God, and, of
themselves, can impart none.  They are in the order of second causes,
and second causes, without the first cause, are nought.  Communion
which stops with them, which takes them as the principle and end,
instead of media, as they are, is the communion of death, not of life.
As religion includes all that relates to communion with God, it must in
some form be inseparable from every living act of man, both
individually and socially; and, in the long run, men must conform
either their politics to their religion or their religion to their
politics.  Christianity is constantly at work, moulding political
society in its own image and likeness, and every political system
struggles to harmonize Christianity with itself.  If, then, the United
States have a political destiny, they have a religious destiny
inseparable from it.

The political destiny of the United States is to conform the state to
the order of reality, or, so to speak, to the Divine Idea in creation.
Their religious destiny is to render practicable and to realize the
normal relations between church and state, religion and politics, as
concreted in the life of the nation.

In politics, the United States are not realizing a political theory of
any sort whatever.  They, on the contrary, are successfully refuting
all political theories, making away with them, and establishing the
state--not on a theory, not on an artificial basis or a foundation laid
by human reason or will, but on reality, the eternal and immutable
principles in relation to which man is created.  They are doing the
same in regard to religious theories.  Religion is not a theory, a
subjective view, an opinion, but is, objectively, at once a principle,
a law, and a fact, and, subjectively, it is, by the aid of God's grace,
practical conformity to what is universally true and real.  The United
States, in fulfilment of their destiny, are making as sad havoc with
religious theories as with political theories, and are pressing on with
irresistible force to the real or the Divine order which is expressed
in the Christian mysteries, which exists independent of man's
understanding and will, and which man can neither make nor unmake.

The religious destiny of the United States is not to create a new
religion nor to found a new church.  All real religion is catholic, and
is neither new nor old, but is always and everywhere true.  Even our
Lord came neither to found a new church nor to create a new religion,
but to do the things which had been foretold, and to fulfil in time
what had been determined in eternity.  God has himself founded the
church on catholic principles, or principles always and everywhere real
principles. His church is necessarily catholic, because founded on
catholic dogmas, and the dogmas are catholic, because they are
universal and immutable principles, having their origin and ground in
the Divine Being Himself, or in the creative act by which He produces
and sustains all things.  Founded on universal and immutable
principles, the church can never grow old or obsolete, but is the
church for all times and Places, for all ranks and conditions of men.
Man cannot change either the church or the dogmas of faith, for they
are founded in the highest reality, which is above him, over him, and
independent of him.  Religion is above and independent of the state,
and the state has nothing to do with the church or her dogmas, but to
accept and conform to them as it does to any of the facts or principles
of science, to a mathematical truth, or to a physical law.

But while the church, with her essential constitution, and her dogmas
are founded in the Divine order, and are catholic and unalterable, the
relations between the civil and ecclesiastical authorities may be
changed or modified by the changes of time and place.  These relations
have not been always the same, but have differed in different ages and
countries.  During the first three centuries of our era the church had
no legal status, and was either connived at or persecuted by the state.
Under the Christian emperors she was recognized by the civil law; her
prelates had exclusive jurisdiction in mixed civil and ecclesiastical
questions, and were made, in some sense, civil magistrates, and paid as
such by the empire.  Under feudalism, the prelates received investiture
as princes and barons, and formed alone, or in connection with the
temporal lords, an estate in the kingdom.  The Pope became a temporal
prince and suzerain, at one time, of a large part of Europe, and
exercised the arbitratorship in all grave questions between Christian
sovereigns themselves, and between them and their subjects. Since the
downfall of feudalism and the establishment of modern centralized
monarchy, the church has been robbed of the greater part of her
temporal possessions, and deprived, in most countries, of all civil
functions, and treated by the state either as an enemy or as a slave.

In all the sectarian and schismatic states of the Old World, the
national church is held in strict subjection to the civil authority, as
in Great Britain and Russia, and is the slave of the state; in the
other states of Europe, as France, Austria, Spain, and Italy, she is
treated with distrust by the civil government, and allowed hardly a
shadow of freedom and independence.  In France, which has the proud
title of eldest daughter of the church, Catholics, as such, are not
freer than they are in Turkey.  All religious are said to be free, and
all are free, except the religion of the majority of Frenchmen.  The
emperor, because nominally a Catholic, takes it upon himself to concede
the church just as much and just as little freedom in the empire as he
judges expedient for his own secular interests.  In Italy, Spain,
Portugal, Mexico, and the Central and South American states, the policy
of the civil authorities is the same, or worse.  It may be safely
asserted that, except in the United States, the church is either held
by the civil power in subjection, or treated as an enemy.  The relation
is not that of union and harmony, but that of antagonism, to the grave
detriment of both religion and civilization.

It is impossible, even if it were desirable, to restore the mixture of
civil and ecclesiastical governments which obtained in the Middle Ages;
and a total separation of church and state, even as corporations,
would, in the present state of men's minds in Europe, be construed, if
approved by the church, into a sanction by her of political atheism, or
the right of the civil power to govern according to its own will and
pleasure in utter disregard of the law of God, the moral order, or the
immutable distinctions between right and wrong.  It could only favor
the absolutism of the state, and put the temporal in the place of the
spiritual. Hence, the Holy Father includes the proposition of the
entire separation of church and state in the Syllabus of Errors
condemned in his Encyclical, dated at Rome, December 8, 1864. Neither
the state nor the people, elsewhere than in the United States, can
understand practically such separation in any other sense than the
complete emancipation of our entire secular life from the law of God,
or the Divine order, which is the real order.  It is not the union of
church and state--that is, the union, or identity rather, of religious
and political principles--that it is desirable to get rid of, but the
disunion or antagonism of church and state.  But this is nowhere
possible out of the United States; for nowhere else is the state
organized on catholic principles, or capable of acting, when acting
from its own constitution, in harmony with a really catholic church, or
the religious order really existing, in relation to which all things
are created and governed.  Nowhere else is it practicable, at present,
to maintain between the two powers their normal relations.

But what is not practicable in the Old World is perfectly practicable
in the New.  The state here being organized in accordance with catholic
principles, there can be no antagonism between it and the church.
Though operating in different spheres, both are, in their respective
spheres, developing and applying to practical life the one and the same
Divine Idea.  The church can trust the state, and the state can trust
the church. Both act from the same principle to one and the same end.
Each by its own constitution co-operates with, aids, and completes the
other.  It is true the church is not formally established as the civil
law of the land, nor is it necessary that she should be; because there
is nothing in the state that conflicts with her freedom and
independence, with her dogmas or her irreformable canons.  The need of
establishing the church by law, and protecting her by legal pains and
penalties, as is still done in most countries, can exist only in a
barbarous or semi-barbarous state of society, where the state is not
organized on catholic principles, or the civilization is based on false
principles, and in its development tends not to the real or Divine
order of things.  When the state is constituted in harmony with that
order, it is carried onward by the force of its own internal
constitution in a catholic direction, and a church establishment, or
what is called a state religion, would be an anomaly, or a superfluity.
The true religion is in the heart of the state, as its informing
principle and real interior life.  The external establishment, by legal
enactment of the church, would afford her no additional protection, add
nothing to her power and efficacy, and effect nothing for faith or
piety--neither of which can be forced, because both must, from their
nature, be free-will offerings to God.

In the United States, false religions are legally as free as the true
religion; but all false religions being one-sided, sophistical, and
uncatholic, are opposed by the principles of the state, which tend, by
their silent but effective workings, to eliminate them.  The American
state recognizes only the catholic religion.  It eschews all
sectarianism, and none of the sects have been able to get their
peculiarities incorporated into its constitution or its laws.  The
state conforms to what each holds that is catholic, that is always and
everywhere religion; and what ever is not catholic it leaves, as
outside of its province, to live or die, according to its own inherent
vitality or want of vitality.  The state conscience is catholic, not
sectarian; hence it is that the utmost freedom can be allowed to all
religions, the false as well as the true; for the state, being catholic
in its constitution, can never suffer the adherents of the false to
oppress the consciences of the adherents of the true.  The church being
free, and the state harmonizing with her, catholicity has, in the
freedom of both, all the protection it needs, all the security it can
ask, and all the support it can, in the nature of the case receive from
external institutions, or from social and political organizations.

This freedom may not be universally wise or prudent, for all nations
may not be prepared for it: all may not have attained their majority.
The church, as well as the state, must deal with men and nations as
they are, not as they are not.  To deal with a child as with an adult,
or with a barbarous nation as with a civilized nation, would be only
acting a lie.  The church cannot treat men as free men where they are
not free men, nor appeal to reason in those in whom reason is
undeveloped.  She must adapt her discipline to the age, condition, and
culture of individuals, and to the greater or less progress of nations
in civilization. She herself remains always the same in her
constitution, her authority, and her faith; but varies her discipline
with the variations of time and place.  Many of her canons, very proper
and necessary in one age, cease to be so in another, and many which are
needed in the Old World would be out of place in the New World.  Under
the American system, she can deal with the people as free men, and
trust them as freemen, because free men they are.  The freeman asks,
why? and the reason why must be given him, or his obedience fails to be
secured.  The simple reason that the church commands will rarely
satisfy him; he would know why she commands this or that.  The
full-grown free man revolts at blind obedience, and he regards all
obedience as in some measure blind for which he sees only an extrinsic
command. Blind obedience even to the authority of the church cannot be
expected of the people reared under the American system, not because
they are filled with the spirit of disobedience, but because they
insist that obedience shall be rationabile obsequium, an act of the
understanding, not of the will or the affections alone.  They are
trained to demand a reason for the command given them, to distinguish
between the law and the person of the magistrate.  They can obey God,
but not man, and they must see that the command given has its reason in
the Divine order, or the intrinsic catholic reason of things, or they
will not yield it a full, entire, and hearty obedience.  The reason
that suffices for the child does not suffice for the adult, and the
reason that suffices for barbarians does not suffice for civilized men,
or that suffices for nations in the infancy of their civilization does
not suffice for them in its maturity.  The appeal to external authority
was much less frequent under the Roman Empire than in the barbarous
ages that followed its downfall, when the church became mixed up with
the state.

This trait of the American character is not uncatholic.  An
intelligent, free, willing obedience, yielded from personal conviction,
after seeing its reasonableness, its justice, its logic in the Divine
order--the obedience of a free man, not of a slave--is far more
consonant to the spirit of the church, and far more acceptable to God,
than simple, blind obedience; and a people capable of yielding it stand
far higher in the scale of civilization than the people that must be
governed as children or barbarians.  It is possible that the people of
the Old World are not prepared for the regimen of freedom in religion
any more than they are prepared for freedom in politics; for they have
been trained only to obey external authority, and are not accustomed to
look on religion as having its reason in the real order, or in the
reason of things.  They understand no reason for obedience beyond the
external command, and do not believe it possible to give or to
understand the reason why the command itself is given. They regard the
authority of the church as a thing apart, and see no way by which faith
and reason can be harmonized.  They look upon them as antagonistic
forces rather than as integral elements of one and the same whole.
Concede them the regimen of freedom, and their religion has no support
but in their good-will, their affections, their associations, their
habits, and their prejudices.  It has no root in their rational
convictions, and when they begin to reason they begin to doubt.  This
is not the state of things that is desirable, but it cannot be remedied
under the political regime established elsewhere than in the United
States.  In every state in the world, except the American, the civil
constitution is sophistical, and violates, more or less, the logic of
things; and, therefore, in no one of them can the people receive a
thoroughly dialectic training, or an education in strict conformity to
the real order.  Hence, in them all, the church is more or less
obstructed in her operations, and prevented from carrying out in its
fulness her own Divine Idea. She does the best she can in the
circumstances and with the materials with which she is supplied, and
exerts herself continually to bring individuals and nations into
harmony with her Divine law: but still her life in the midst of the
nations is a struggle, a warfare.

The United States being dialectically constituted, and founded on real
catholic, not sectarian or sophistical principles, presents none of
these obstacles, and must, in their progressive development or
realization of their political idea, put an end to this warfare, in so
far as a warfare between church and state, and leave the church in her
normal position in society, in which she can, without let or hindrance,
exert her free spirit, and teach and govern men by the Divine law as
free men.  She may encounter unbelief, misbelief, ignorance, and
indifference in few, or in many; but these, deriving no support from
the state, which tends constantly to eliminate them, must gradually
give way before her invincible logic, her divine charity, the truth and
reality of things, and the intelligence, activity, and zeal of her
ministers.  The American people are, on the surface, sectarians or
indifferentists; but they are, in reality, less uncatholic than the
people of any other country because they are, in their intellectual and
moral development, nearer to the real order, or, in the higher and
broader sense of the word more truly civilized.  The multitude of sects
that obtain may excite religious compassion for those who are carried
away by them, for men can be saved or attain to their eternal destiny
only by truth, or conformity to Him who said, "I am the way, the truth,
and the life;" but in relation to the national destiny they need excite
no alarm, no uneasiness, for underlying them all is more or less of
catholic truth, and the vital forces of the national life repel them,
in so far as they are sectarian and not catholic, as substances that
cannot be assimilated to the national life.  The American state being
catholic in its organic principles, as is all real religion, and the
church being free, whatever is anticatholic, or uncatholic, is without
any support in either, and having none, either in reality or in itself,
it must necessarily fall and gradually disappear.

The sects themselves have a half unavowed conviction that they cannot
subsist forever as sects, if unsupported by the civil authority.  They
are free, but do not feel safe in the United States.  They know the
real church is catholic, and that they themselves are none of them
catholic.  The most daring among them even pretends to be no more than
a "branch" of the catholic church.  They know that only the catholic
church can withstand the pressure of events and survive the shocks of
time, and hence everywhere their movements to get rid of their
sectarianism and to gain a catholic character.  They hold conventions
of delegates from the whole sectarian world, form "unions,"
"alliances," and "associations;" but, unhappily for their success, the
catholic church does not originate in convention, but is founded by the
Word made flesh, and sustained by the indwelling Holy Ghost.  The most
they can do, even with the best dispositions in the world, is to create
a confederation, and confederated sects are something very different
from a church inherently one and catholic.  It is no more the catholic
church than the late Southern Confederacy was the American state.  The
sectarian combinations may do some harm, may injure many souls, and
retard, for a time, the progress of civilization; but in a state
organized in accordance with catholic principles, and left to
themselves, they are powerless against the national destiny, and must
soon wither and die as branches severed from the vine.

Such being the case, no sensible Catholic can imagine that the church
needs any physical force against the sects, except to repel actual
violence, and protect her in that freedom of speech and possession
which is the right of all before the state.  What are called religious
establishments are needed only where either the state is barbarous or
the religion is sectarian.  Where the state, in its intrinsic
constitution, is in accordance with catholic principles, as in the
United States, the church has all she needs or can receive.  The state
can add nothing more to her power or her security in her moral and
spiritual warfare with sectarianism, and any attempt to give her more
would only weaken her as against the sects, place her in a false light,
partially justify their hostility to her, render effective their
declamations against her, mix her up unnecessarily with political
changes, interests, and passions, and distract the attention of her
ministers from their proper work as churchmen, and impose on them the
duties of politicians and statesmen.  Where there is nothing in the
state hostile to the church, where she is free to act according to her
own constitution and laws, and exercise her own discipline on her own
spiritual subjects, civil enactments in her favor or against the sects
may embarrass or impede her operations, but cannot aid her, for she can
advance no farther than she wins the heart and convinces the
understanding.  A spiritual work can, in the nature of things, be
effected only by spiritual means.  The church wants freedom in relation
to the state--nothing more; for all her power comes immediately from
God, without any intervention or mediation of the state.

The United States, constituted in accordance with the real order of
things, and founded on principles which have their origin and ground in
the principles on which the church herself is founded, can never
establish any one of the sects as the religion of the state, for that
would violate their political constitution, and array all the other
sects, as well as the church herself, against the government.  They
cannot be called upon to establish the church by law, because she is
already in their constitution as far as the state has in itself any
relation with religion, and because to establish her in any other sense
would be to make her one of the civil institutions of the land, and to
bring her under the control of the state, which were equally against
her interest and her nature.

The religious mission of the United States is not then to establish the
church by external law, or to protect her by legal disabilities, pains,
and penalties against the sects, however uncatholic they may be; but to
maintain catholic freedom, neither absorbing the state in the church
nor the church in the state, but leaving each to move freely, according
to its own nature, in the sphere assigned it in the eternal order of
things.  Their mission separates church and state as external governing
bodies, but unites them in the interior principles from which each
derives its vitality and force.  Their union is in the intrinsic unity
of principle, and in the fact that, though moving in different spheres,
each obeys one and the same Divine law.  With this the Catholic, who
knows what Catholicity means, is of course satisfied, for it gives the
church all the advantage over the sects of the real over the unreal;
and with this the sects have no right to be dissatisfied, for it
subjects them to no disadvantage not inherent in sectarianism itself in
presence of Catholicity, and without any support from the civil
authority.

The effect of this mission of our country fully realized, would be to
harmonize church and state, religion and politics, not by absorbing
either in the other, or by obliterating the natural distinction between
them, but by conforming both to the real or Divine order, which is
supreme and immutable.  It places the two powers in their normal
relation, which has hitherto never been done, because hitherto there
never has been a state normally constituted.  The nearest approach made
to the realization of the proper relations of church and state, prior
to the birth of the American Republic, was in the Roman Empire under
the Christian emperors; but the state had been perverted by paganism,
and the emperors, inheriting the old pontifical power, could never be
made to understand their own incompetency in spirituals, and persisted
to the last in treating the church as a civil institution under their
supervision and control, as does the Emperor of the French in France,
even yet.  In the Middle Ages the state was so barbarously constituted
that the church was obliged to supervise its administration, to mix
herself up with the civil government, in order to infuse some
intelligence into civil matters, and to preserve her own rightful
freedom and independence.  When the states broke away from feudalism,
they revived the Roman constitution, and claimed the authority in
ecclesiastical matters that had been exercised by the Roman Caesars,
and the states that adopted a sectarian religion gave the sect adopted
a civil establishment, and subjected it to the civil government, to
which the sect not unwillingly consented, on condition that the civil
authority excluded the church and all other sects, and made it the
exclusive religion of the state, as in England, Scotland, Sweden,
Denmark, Russia, and the states of Northern Germany.  Even yet the
normal relations of church and state are nowhere practicable in the Old
World; for everywhere either the state is more or less barbaric in its
constitution, or the religion is sectarian, and the church as well as
civilization is obliged, to struggle with antagonistic forces, for
self-preservation.

There are formidable parties all over Europe at work to introduce what
they take to be the American system; but constitutions are generated,
not made--providential, not conventional.  Statesmen can only develop
what is in the existing constitutions of their respective countries,
and no European constitution contains all the elements of the American.
European Liberals mistake the American system, and, were they to
succeed in their efforts, would not introduce it, but something more
hostile to it than the governments and institutions they are warring
against.  They start from narrow, sectarian, or infidel premises, and
seek not freedom of worship, but freedom of denial.  They suppress the
freedom of religion as the means of securing what they call religious
liberty--imagine that they secure freedom of thought by extinguishing
the light without which no thought is possible, and advance
civilization by undermining its foundation.  The condemnation of their
views and movements by the Holy Father in the Encyclical, which has
excited so much hostility, may seem to superficial and unthinking
Americans even, as a condemnation of our American system--indeed, as
the condemnation of modern science, intelligence, and civilization
itself; but whoever looks below the surface, has some insight into the
course of events, understands the propositions and movements censured,
and the sense in which they are censured, is well assured that the Holy
Father has simply exercised his pastoral and teaching authority to save
religion, society, science, and civilization from utter corruption or
destruction.  The opinions, tendencies, and movements, directly or by
implication censured, are the effect of narrow and superficial
thinking, of partial and one-sided views, and are sectarian,
sophistical, and hostile to all real progress, and tend, as far as they
go, to throw society back into the barbarism from which, after
centuries of toil and struggle, it is just beginning to emerge.  The
Holy Father has condemned nothing that real philosophy, real science
does not also condemn; nothing, in fact, that is not at war with the
American system itself.  For the mass of the people, it were desirable
that fuller explanations should be given of the sense in which the
various propositions censured are condemned, for some of them are not,
in every sense, false; but the explanations needed were expected by the
Holy Father to be given by the bishops and prelates, to whom, not to
the people, save through them, the Encyclical was addressed.  Little is
to be hoped, and much is to be feared, for liberty, science, and
civilization from European Liberalism, which has no real affinity with
American territorial democracy and real civil and religious freedom.
But God and reality are present in the Old World as, well as in the
New, and it will never do to restrict their power or freedom.

Whether the American people will prove faithful to their mission, and
realize their destiny, or not, is known only to Him from whom nothing
is hidden.  Providence is free, and leaves always a space for human
free-will.  The American people can fail, and will fail if they neglect
the appointed means and conditions of success; but there is nothing in
their present state or in their past history to render their failure
probable.  They have in their internal constitution what Rome wanted,
and they are in no danger of being crushed by exterior barbarism.
Their success as feeble colonies of Great Britain in achieving their
national independence, and especially in maintaining, unaided, and
against the real hostility of Great Britain and France, their national
unity and integrity against a rebellion which, probably, no other
people could have survived, gives reasonable assurance for their
future.  The leaders of the rebellion, than whom none better knew or
more nicely calculated the strength and resources of the Union, counted
with certainty on success, and the ablest, the most experienced, and
best informed statesmen of the Old World felt sure that the Republic
was gone, and spoke of it as the late United States.  Not a few, even
in the loyal States, who had no sympathy with the rebellion, believed
it idle to think of suppressing it by force, and advised peace on the
best terms that could be obtained.  But Ilium fuit was chanted too
soon; the American people were equal to the emergency, and falsified
the calculations and predictions of their enemies, and surpassed the
expectations of their friends.

The attitude of the real American people during the fearful struggle
affords additional confidence in their destiny.  With larger armies on
foot than Napoleon ever commanded, with their line of battle stretching
from ocean to ocean, across the whole breadth of the continent, they
never, during four long years of alternate victories and defeats--and
both unprecedentedly bloody--for a moment lost their equanimity, or
appeared less calm, collected, tranquil, than in the ordinary times of
peace. They not for a moment interrupted their ordinary routine of
business or pleasure, or seemed conscious of being engaged in any
serious struggle which required an effort.  There was no hurry, no
bustle, no excitement, no fear, no misgiving.  They seemed to regard
the war as a mere bagatelle, not worth being in earnest about.  The
on-looker was almost angry with their apparent indifference, apparent
insensibility, and doubted if they moved at all, Yet move they did:
guided by an unerring instinct, they moved quietly on with an elemental
force, in spite of a timid and hesitating administration, in spite of
inexperienced, over-cautious, incompetent, or blundering military
commanders, whom they gently brushed aside, and desisted not till their
object was gained, and they saw the flag of the Union floating anew in
the breeze from the capitol of every State that dared secede.  No man
could contemplate them without feeling that there was in them a latent
power vastly superior to any which they judged it necessary to put
forth.  Their success proves to all that what, prior to the war, was
treated as American arrogance or self-conceit, was only the outspoken
confidence in their destiny as a Providential people, conscious that to
them is reserved the hegemony of the world.

Count de Maistre predicted early in the century the failure of the
United States, because they have no proper name; but his prediction
assumed what is not the fact.  The United States have a proper name by
which all the world knows and calls them.  The proper name of the
country is America: that of the people is Americans.  Speak of
Americans simply, and nobody understands you to mean the people of
Canada, Mexico, Brazil, Peru, Chile, Paraguay, but everybody
understands you to mean the people of the United States.  The fact is
significant, and foretells for the people of the United States a
continental destiny, as is also foreshadowed in the so-called "Monroe
doctrine," which France, during our domestic troubles, was permitted,
on condition of not intervening in our civil war in favor of the
rebellion, to violate.

There was no statesmanship in proclaiming the "Monroe doctrine," for
the statesman keeps always, as far as possible, his government free to
act according to the exigencies of the case when it comes up,
unembarrassed by previous declarations of principles.  Yet the doctrine
only expresses the destiny of the American people, and which nothing
but their own fault can prevent them from realizing in its own good
time.  Napoleon will not succeed in his Mexican policy, and Mexico will
add some fifteen or twenty new States to the American Union as soon as
it is clearly for the interests of all parties that it should be done,
and it can be done by mutual consent, without war or violence.  The
Union will fight to maintain the integrity of her domain and the
supremacy of her laws within it, but she can never, consistently with
her principles or her interests, enter upon a career of war and
conquest.  Her system is violated, endangered, not extended, by
subjugating her neighbors, for subjugation and liberty go not together.
Annexation, when it takes place, must be on terms of perfect equality
and by the free act of the state annexed.  The Union can admit of no
inequality of rights and franchises between the States of which it is
composed.  The Canadian Provinces and the Mexican and Central American
States, when annexed, must be as free as the original States of the
Union, sharing alike in the power and the protection of the
Republic--alike in its authority, its freedom, its grandeur, and its
glory, as one free, independent, self-governing people.  They may gain
much, but must lose nothing by annexation.

The Emperor Napoleon and his very respectable protege, Maximilian, an
able man and a liberal-minded prince, can change nothing in the destiny
of the United States, or of Mexico herself; no imperial government can
be permanent beside the American Republic, no longer liable, since the
abolition of slavery, to be distracted by sectional dissensions.  The
States that seceded will soon, in some way, be restored to their rights
and franchises in the Union, forming not the least patriotic portion of
the American people; the negro question will be settled, or settle
itself, as is most likely, by the melting away of the negro population
before the influx of white laborers; all traces of the late contest in
a very few years will be wiped out, the national debt paid, or greatly
reduced, and the prosperity and strength of the Republic be greater
than ever.  Its moral force will sweep away every imperial throne on
the continent, without any effort or action on the part of the
government. There can be no stable government in Mexico till every
trace of the ecclesiastical policy established by the Council of the
Indies is obliterated, and the church placed there on the same footing
as in the United States; and that can hardly be done without
annexation.  Maximilian cannot divest the church of her temporal
possessions and place Protestants and Catholics on the same footing,
without offending the present church party and deeply injuring
religion, and that too without winning the confidence of the republican
party.  In all Spanish and Portuguese America the relations between the
church and state are abnormal, and exceedingly hurtful to both.
Religion is in a wretched condition, and politics in a worse condition
still. There is no effectual remedy for either but in religious
freedom, now impracticable, and to be rendered practicable by no
European intervention, for that subjects religion to the state, the
very source of the evils that now exist, instead of emancipating it
from the state, and leaving it to act according to its own constitution
and laws, as under the American system.

But the American people need not trouble themselves about their
exterior expansion.  That will come of itself as fast as desirable.
Let them devote their attention to their internal destiny, to the
realization of their mission within, and they will gradually see the
Whole continent coming under their system, forming one grand nation, a
really catholic nation, great, glorious, and free.









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