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 [Greek] barbaros, 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 [Greek] polis, 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.