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The American Republic

b >> by O. A. Brownson >> The American Republic




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

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

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

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

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

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

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

The convention not only is not a fact, but individuals have no
authority without society, to meet in convention, and enter into
the alleged compact, because they are not independent, sovereign
individuals. But pass over this: suppose the convention, suppose
the compact, it must still be conceded that it binds and can bind
only those who voluntarily and deliberately enter into it. This
is conceded by Mr. Jefferson and the American Congress of l776,
in the assertion that government derives its "just powers from
the consent of the governed." This consent, as the matter is one
of life and death, must be free, deliberate, formal, explicit,
not simply an assumed, implied, or constructive consent. It must
be given personally, and not by one for another without his
express authority.

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

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

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

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

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

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

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

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

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

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

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





CHAPTER V.

ORIGIN OF GOVERNMENT-CONTINUED.


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

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

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