The American Republic
Constitution of Government - Continued
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and cannot be radically changed without the destruction of the state, it must not be supposed that it is wholly withdrawn from the action of the reason and free-will of the nation, nor from that of individual statesmen.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 may be 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’Ètat, c’est moi, I am the state; and Shakspeare’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 mucli 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’Ètat, 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’Ètat 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 ∆milian 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’Ètat, 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 fits 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 bold 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’Ètat 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.