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The American Republic

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

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

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

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

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





CHAPTER VII

CONSTITUTION OF GOVERNMENT.


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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