The American Republic
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 Lave 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 hold 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 test-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 gentium 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 Joes 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 caves 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 civilt‡, 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 solo 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 inertiÊ, 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’interÍt 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 ho 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 he 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 he 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 he depends on it, lives in it, and cannot live without it. It has, then, certain rights 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 hie 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 a 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-marshal, 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 Las 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 log 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 GrÊco-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.