4. The United States

Nations are only individuals on a larger scale. They have a life, an individuality, a reason, a conscience, and instincts of their own, and have the same general laws of development and growth, and, perhaps, of decay, as the individual man. Equally important and no less difficult than for the individual is it for a nation to know itself, understand its own existence, its own powers and faculties, rights and duties, constitutions, instincts, tendencies, and destiny. A nation has a spiritual as well as a material, a moral as well as a physical existence, and is subject to internal as well as external conditions of health and virtue, greatness and grandeur, which it must in some measure understand and observe, or become weak and infirm, stunted in its growth, and end in premature decay and death.

Among nations, no one has more need of full knowledge of itself than the United States, and no one has hitherto had less. It has hardly had a distinct consciousness of its own national existence, and has lived the non-reflective life of the child, with no severe trial, till the recent rebellion, to throw it back on itself and compel it to reflect on its own constitution, its own separate existence, individuality, tendencies, and end. (Vol. 18, pp. 6, 7.)


The Mission of the United States


Every living nation has an idea given it by Providence to realize, and whose realization is its special work, mission, or destiny. Every nation is, is some sense, a chosen people of God. The Jews were the chosen people of God, through whom the primitive traditions were to be preserved in their purity and integrity and the Messiah was to come. The Greeks were the chosen people of God for the development and realization of the beautiful or the divine splendor in art and of the true in science and philosophy; and the Romans for the development of the state, law, and jurisprudence. The great despotic nations of Asia were never properly nations, or if they were nations with a mission they proved false to it and count for nothing in the progressive development of the human race. History has not recorded their mission, and as far as they are known they have contributed only to the abnormal development or corruption of religion and civilization. Despotism is barbaric and abnormal.

The United States, or the American republic, has a mission, and is chosen of God for the realization of a great idea. It has been chosen not only to continue the work assigned to Greece and Rome, but to accomplish a greater work than was assigned to either. In art it will prove false to its mission if it does not rival Greece, and in science and philosophy if it does not surpass it. In the state, in law, in jurisprudence, it must continue and surpass Rome. Its idea is liberty, indeed, but liberty with law and law with liberty. Yet its mission is not so much the realization of the true idea of the state, which secures at once the authority of the public and the freedom of the individual – the sovereignty of the people without social despotism and individual freedom without anarchy. In other words, its mission is to bring out in its life the dialectic union of authority and liberty, of the natural rights of man and those of society. The Greek and Roman republics asserted the state to the detriment of individual freedom; modern republics either do the same or assert individual freedom to the detriment of the state. The American republic has been instituted by Providence to realize the freedom of each with advantage to the other.

The real mission of the United States is to introduce and establish a political constitution which, while it retains all the advantages of the constitutions of states thus far known, is unlike any of them and secures advantages which none of them did or could possess. The American constitution has no prototype in any prior constitution. The American form of government can be classed throughout with none of the forms of government described by Aristotle, or even by later authorities. Aristotle knew only four forms of government: monarchy, aristocracy, democracy, and mixed governments. The American form is none of these nor any combination of them. It is original, a new contribution to political science, and seeks to attain the end of all wise and just government by means unknown or forbidden to the ancients, and which have been but imperfectly comprehended even by American political writers themselves. The originality of the American constitution has been overlooked by the great majority even of our own statesmen, who seek to explain it by analogies borrowed from the constitutions of other states rather than by a profound study of its own principles. They have taken too low a view of it, and have surely, if ever, appreciated its distinctive and peculiar merits. (Vol. 18, pp. 8, 9.)


The Constitution Misunderstood


It will hardly be questioned that either the constitution of the United States is very defective or it has been very grossly misinterpreted by all parties. If the slave states had not held that the states are severally sovereign and the constitution of the United States a simple agreement or compact, they would never have seceded; and if the free states had not confounded the Union with the general government and shown a tendency to make I the entire national government, no occasion or pretext for secession would have been given. The great problem of our statesmen has been from the first, How to assert union without consolidation and state rights without disintegration? Have they, as yet, solved that problem? The war has silenced the state-sovereignty doctrine, indeed, but has it done so without lesion to state rights? Has it done it without asserting the general government as the supreme, central, or national government? Has it done it without striking a dangerous blow at the federal element of the constitution? In suppressing by armed force the doctrine that the states are severally sovereign, what barrier is left against consolidation? Has not one danger been removed only to give place to another?

But perhaps the constitution itself, if rightly understood, solves the problem; and perhaps the problem itself is raised precisely through misunderstanding of the constitution. Our statesmen have recognized no constitution of the American people themselves; they have confined their views to the written constitution, as if that constituted the American people a state or nation, instead of being, as it is, only a law ordained by the nation already existing and constituted. Perhaps if they had recognized and studied the constitution which preceded that drawn up by the convention of 1787, and which is intrinsic, inherent in the republic itself, they would have seen that it solves the problem and asserts national unity without consolidation and the rights of the several states without danger of disintegration. The whole controversy, possibly, has originated in a misunderstanding of the real constitution of the United States, and that misunderstanding itself in the misunderstanding of the origin and constitution of government in general. The constitution, as will appear in the course of this essay, is not defective; and all that is necessary to guard against either danger is to discard all our theories of the constitution and return and adhere to the constitution itself as it really is and always has been. (Vol. 18, pp. 9, 10.)


Government is Necessary


Man is a dependent being and neither does nor can suffice for himself. He lives not in himself, but lives and moves and has his being in God. He exists, develops, and fulfill his existence only by communion with God through which he participates of the divine being and life. He communes with God through the divine creative act and the incarnation of the Word, through his kind, and through the material world. Communion with God through creation and incarnation is religion, distinctively taken, which binds man to God as his first cause and carries him onwards to God as his final cause; communion through the material world is expressed by the word property; and communion with God through humanity is society. Religion, society, property, are the three terms that embrace the whole of man’s life and express the essential means and conditions of his existence, his development, and his perfection, or the fulfillment of his existence, the attainment of the end for which he is created.

Though society, or the communion of man with his Maker through his kind, is not all that man needs in order to live, to grow, to actualize the possibilities of his nature, and to attain to his beatitude, since humanity is neither God nor the material universe, it is yet a necessary and essential condition of his life, his progress, and the completion of his existence. He is born and lives in society and can be born and live nowhere else. It is one of the necessities of his nature. "God saw that it was not good for man to be alone." Hence wherever man is found he is found in society, living in more or less strict intercourse with his kind.

But society never does and never can exist without government of some sort. As society is a necessity of man’s nature, so is government a necessity of society. The simplest form of society is the family – Adam and Eve. But though Adam and Eve are in many respects equal and have equally important though different parts assigned them, one or the other must be head and governor, or they cannot form the society called family. They would be simply two individuals of different sexes, and the family would fail for want of unity. Children cannot be reared, trained, or educated without some degree of family government, of some authority to direct, control, restrain, or prescribe. Hence the authority of the husband and father is recognized by the common consent of mankind. Still more apparent is the necessity of government the moment the family develops and grows into the tribe and the tribe into a nation. Hence no nation exists without government; and we never find a savage tribe, however low or degraded, that does not asset somewhere, in the father, in the elders, or in the tribe itself, the rude outlines or the faint reminiscences of some sort of government, with the authority to demand obedience and to punish the refractory. Hence as man is nowhere found out of society, so nowhere is society found without government.

Government is necessary…It exists in heaven as well as on earth, and in heaven in its perfection. Its office is not purely repressive, to restrain violence, to redress wrongs, and to punish the transgressor. It has something more to do than to restrict our natural liberty, curb our passions, and maintain justice between man and man. Its office is positive as well as negative. It is needed to render effective the solidarity of the individuals of a nation and to render the nation an organism, not a mere organization – to combine men in one living body, and to strengthen all with the strength of each and each with the strength of all – to develop, strengthen, and sustain individual liberty, and to utilize and direct it to the promotion of the common weal – to be a social providence, imitating in its order and degree the action of the divine providence itself, and, while it provides for the common good of all, to protect each, the lowest and meanest, with the whole force and majesty of society. It is the minister of wrath to wrong-doers, indeed, but its nature is beneficent and its action defines and protects the right of property, creates and maintains a medium in which religion can exert her supernatural energy, promotes learning, fosters science and art, advances civilization, and contributes as a powerful means to the fulfillment by man of the divine purpose in his existence. Next after religion it is man’s greatest good; and even religion without it can do only a small portion of her work. They wrong it who call it a necessary evil; it is a great good, and instead of being distrusted, hated, or resisted, except in its abuses, it should be loved, respected, obeyed, and, if need be, defended at the cost of all earthly goods and even of life itself. (Vol. 18, pp. 14, 15.)


The Nature of Government


The nature or essence of government is to govern. A government that does not govern is simply no government at all. If it has not the ability to govern and governs not it may be an agency, an instrument in the hands of individuals for advancing their private interests, but it is not government. To be government it must govern both individuals and the community. If it is a mere machine for making prevail the will of one man, of a certain number of men, or even of the community, it may be very effective sometimes for good, sometimes for evil, most often for evil, but government in the proper sense of the word it is not. To govern is to direct, control, restrain, as the pilot controls and directs his ship. It necessarily implies two terms, governor and governed, and a real distinction between them. The denial of all real distinction between governor and governed is an error in politics analogous to that in philosophy or theology of denying all real distinction between creator and creature, God and the universe, which all the world knows is either pantheism or pure atheism – the supreme sophism. If we make governor and governed one and the same we efface both terms; for there is no governor nor governed if the will that governs is identically the will that is governed. To make the controller and the controlled the same is precisely to deny all control. There must, then, if there is government at all, be power, force, or will that governs, distinct from that which is governed. In those governments in which it is held that the people govern, the people governing do and must act in a diverse relation from the people governed, or there is no real government. (Vol. 18, pp. 15, 16.)


Civil Liberty


Government is not only that which governs, but that which has the right or the authority to govern. Power without right is not government. Governments have the right to use force at need, but might does not make right, and not every power wielding the physical force of a nation is to be regarded as its rightful government. Whatever resort to physical force it may be obliged to make, either in defense of its authority or of the rights of the nation, the government itself lies in the moral order, and politics is simply a branch of ethics – that branch which treats of the rights and duties of men in their public relations, as distinguished from their rights and duties in their private relations.

Government being not only that which governs, but that which has the right to govern, obedience to it becomes a moral duty, not a mere physical necessity. The right to govern and the duty to obey are correlatives, and the one cannot exist or be conceived without the other. Hence loyalty is not simply an amiable sentiment, but a duty, a moral virtue. …

The assertion of government as lying in the moral order defines civil liberty and reconciles it with authority. Civil liberty is freedom to do whatever one pleases that authority permits or does not forbid. Freedom to follow in all things one’s own will or inclination, without any civil restraint, is license, not liberty. There is no lesion to liberty in repressing license nor in requiring obedience to the commands of the authority that has the right to command. Tyranny or oppression is not in being subjected to authority, but in being subjected to usurped authority – to a power that has no right to command or that commands what exceeds its right or its authority. To say that it is contrary to liberty to be forced to forego our own will or inclination in any case whatever is simply denying the right of all government and falling into no-governmentism. Liberty is violated only when we are required to forego our own will or inclination by a power that has no right to make the requisition; for we are bound to obedience as far as authority has the right to govern, and we can never have the right to disobey a rightful command. The requisition, if made by rightful authority, then, violates no right that we have or can have, and where there is no violation of our rights there is no violation of our liberty. The moral right of authority, which involves the moral duty of obedience, presents, then, the ground on which liberty and authority may meet in peace and operate to the same end.

This has no resemblance to the slavish doctrine of passive obedience and that resistance to power can never be lawful. The tyrant may be lawfully resisted, for the tyrant, by force of the word itself, is a usurper and without authority. Abuses of power may be resisted even by force when they become too great to be endured, when there is no legal or regular way of redressing them, and when there is a reasonable prospect that resistance will prove effectual and substitute something better in their place. But it is never lawful to resist the rightful sovereign, for it can never be right to resist right, and the rightful sovereign in the constitutional exercise of his power can never be said to abuse it. Abuse is the unconstitutional or wrongful exercise of a power rightfully held, and when it is not so exercised there is no abuse or abuses to redress. All turns, then, on the right of power or its legitimacy. (Vol. 18, pp 16-18.)


The Rights of Man


Under ancient republicanism there were rights of the state and rights of the citizen, but no rights of man, held independently of society and not derived from God through the state. The recognition of these rights by modern society is due to Christianity: some say to the barbarians, who overthrew the Roman empire; but this last opinion is not well founded. The barbarian chiefs and nobles had no doubt a lively sense of personal freedom and independence, but for themselves only. They had no conception of personal freedom or universal right. The doctrine of individual freedom before the state is due to the Christian religion, which asserts the dignity and worth of every human soul, the accountability to God of each man for himself, and lays it down as law for everyone that God is to be obeyed rather than men. The church practically denied the absolutism of the state and asserted for every man rights not held from the state in converting the empire to Christianity in defiance of the state authority and the imperial edicts punishing with death the profession of the Christian faith. In this she practically as well as theoretically overthrew state absolutism, and infused into modern society the doctrine that every individual, even the lowest and meanest, has rights which the state neither confers nor can abrogate; and it will only be by extinguishing in modern society the Christian faith and obliterating all traces of Christian civilization that state absolutism can be revived with more than a partial and temporary success. …

Now, social despotism or state absolutism is not based on truth or reality. Society has certain rights over individuals, for she is a medium of their communion with God or through which they derive life from God, the primal source of all life; but she is not the only medium of man’s life. Man, as was said in the beginning, lives by communion with God, and he communes with God in the creative act and the Incarnation, through his kind, and through nature. This threefold communion gives rise to three institutions – religion or the church, society or the state, and property. The life that man derives from God through religion and property is not derived from him through society, and consequently so much of his life he holds independently of society; and this constitutes his rights as a man as distinguished from his rights as a citizen. In relation to society, as not held from God through her, these are termed his natural rights, which she must holds inviolable and government protect for every one, whatever his complexion or his social position. These rights – the rights of conscience and the rights of property, with all their necessary implications – are limitations of the rights of society, and the individual has the right to plead them against the state. Society does not confer them and cannot take them away, for they are at least as sacred and as fundamental as her own. (Vol. 18, pp. 45, 46.)


Origin of Government


The right of government to govern, or political authority, is derived by the collective people or society from God through the people or nation, and the people or nation hold from God through the natural law. …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 anything 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 Untied 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. (Vol. 18, pp. 72-74.)


Two Constitutions


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 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. (Vol. 18, pp. 76, 77.)


The Constitution of a State


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. …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 muskets, 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. (Vol. 18, pp. 80, 81.)


Modern Civilization


Indeed, the Roman constitution, and civilization not only gain the mastery in the nations seated within the limits of the old Roman empire, but extend their power throughout the whole civilized world. The Graeco-Roman civilization is, in fact, the only civilization now recognized, and nations are accounted civilized only in proportion as they are Romanized and Christianized. The Roman law, as found in the Institutes, Pandects, and Novellae of Justinian, or the Corpus Juris Civlis, is the basis of the law and jurisprudence of all Christendom. The Graeco-Roman civilization, called not improperly Christian civilization, is the only progressive civilization. The old feudal system remains in England little more than an empty name. The king is only the first magistrate of the kingdom, and the house of lords is only a hereditary senate. Austria is hard at work in the Roman direction, and finds her chief obstacle to success in Hungary with the Magyars, whose feudalism retains almost the full vigor of the middle ages. Russia is moving in the same direction; and Prussia and the smaller Germanic states obey the same impulse. Indeed, Rome has survived the conquest – has conquered her conquerors, and now invades every region from which they came. The Roman empire may be said to be acknowledged and obeyed in lands lying far beyond the furthest limits reached by the Roman eagles, and to be more truly the mistress of the world than under Augustus, Trajan, or the Antonines. Nothing can stand before the Christian and Romanized nations, and all pagandom and Mohammedom combined are too weak to resist their onward march. (Vol. 18, p. 84.)


Centralism and Feudalism


The Roman system is republican, in the broad sense o the term, because under it powers is never an estate, never the private property of the ruler but, in whose hands soever vested, is held as a trust to be exercised for the public good. As it existed under the Caesars and is revived in modern times, whether under the imperial or the democratic form, it no doubt tends to centralism, to the concentration of the all the powers and forces of the states in one central government, from which all local authorities and institutions emanate. Wise men oppose it as affording no guaranties to individual liberty against the abuses of power. This it may not do, but the remedy is not in feudalism. The feudal lord holds his authority as an estate, and has over the people under him all the power of Caesar and all the rights of the proprietor. He, indeed, has a guarantee against his liege-lord, sometimes a more effective guarantee than his liege-lord against him; but against his centralized power his vassals and serfs have only the guarantee that a slave has against his owner.

Feudalism is alike hostile to the freedom of public authority and of the people. It is essentially a disintegrating element in the nation. It breaks the unity and individuality of the state, embarrasses the sovereign, and guards against the abuse of public authority by overpowering and suppressing it. Every feudal lord is a more thorough despot in his own domain than Caesar ever was or could be in the empire; and the monarch, even if strong enough, is yet not competent to intervene between him and his people, and more than the general government in the United States was to intervene between the negro slave and his master. The great vassals of the crown singly, or, if not singly, in combination- and they could always combine in the interest of their order – were too strong for the king or to be brought under any public authority, and could issue from their fortified castles and rob and plunder to their hearts’ content, with none to call them to an account. Under the most thoroughly centralized government there is far more liberty for the people and a far greater security for person and property, except in the case of the feudal nobles themselves, than was ever dreamed of while the feudal regime was in full vigor. Nobles were themselves free, it is conceded, but not the people. The king was too weak, too restricted in his action by the feudal constitution to reach them, and the higher clergy were ex officio sovereigns, princes, barons, or feudal lords, and were led by their private interests to act with the feudal nobility, save when that nobility threatened the temporalities of the church. The only reliance, under God, left in feudal times to the poor people was in the lower ranks of the clergy, especially of the regular clergy. …

The fact is that during the period when feudalism was in full vigor the king was merely a shadow; the people found their only consolation in religion and their chief protectors in the monks, who mingled with them, saw their sufferings and sympathized with them, consoled them, carried their cause to the castle before the feudal lord and lady, and did, thank God, do something to keep alive religious sentiments and convictions in the bosom of the feudal society itself. Whatever opinions may be formed of the monastic orders in relation to the present, this much is certain, that they were the chief civilizers of Europe and the chief agents in delivering European society from feudal barbarism. (Vol. 18, pp. 84-86.)


Antagonism of Interests


Guaranties against excessive centralism are certainly needed, but the statesman will not seek them in the feudal organization of society – in a political aristocracy, whether founded on birth or private wealth, nor in a privileged class of any sort. Better trust Caesar than Brutus, or even Cato. Nor will he seek them in the antagonism of interests intended to neutralize or balance each other, as in the English constitution. This was the great error of Mr. Calhoun. No man saw more clearly than Mr. Calhoun the utter worthlessness of simple paper constitutions, on which Mr. Jefferson placed such implicit reliance, or that the real constitution is in the state itself, in the manner in which the people themselves are organized; but his reliance was in constituting, as powers in the state, the several popular interests that exist, and pitting them against each other – the famous system of checks and balances of English statesmen. He was led to this because he distrusted power and was more intent on guarding against its abuses than on providing for its free, vigorous, and healthy action, going on the principle that "that is the best government which governs least." But if the opposing interests could be made to balance one another perfectly, the result would be an equilibrium, in which power would be brought to a stand-still; and if not, the stronger would succeed and swallow up all the rest. The theory of checks and balances is admirable if the object be to trammel power and to have as little power in the government as possible; but it is a theory which is born from passions engendered by the struggle against despotism or arbitrary power, not from a calm and philosophical appreciation of government itself. The English have not succeeded in establishing their theory, for, after all, their constitution does not work so well as they pretend. The landed interest controls at one time and the mercantile and manufacturing interest at another. They do not perfectly balance one another, and it is not difficult to see that the mercantile and manufacturing interest, combined with the moneyed interest, is henceforth to predominate. The aim of the real statesman is to organize all the interests and forces of the state dialectically, so that they shall unite to add to its strength and work together harmoniously for the common good. (Vol. 18, p. 87.)


The Need of Statesmen


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 in 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, shortsightedness, 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. (Vol. 18, pp. 91, 92.)


The Constitution of Government


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 character of national existence, and that which gives to each nation its particular 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 entrusted to him. …

The law of 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 practice the most revolting violence and cruelty, for it can govern only by terror. Such a government is unsuited to the nation. (Vol. 18, pp. 92-98.)


Are the Unites States a Nation or a League?


Sovereignty, under God, inheres in the organic people, or the people as a republic; and every organic people fixed to the soil and politically independent of every other people is a sovereign people and, in the modern sense, an independent sovereign nation.

Sovereign states may unite in an alliance, league, or confederation, and mutually agree to exercise their sovereign powers or a portion of them in common through a common organ or agency; but in this agreement they part with none of their sovereignty, and each remains a sovereign state or nation as before. The common organ or agency created by the convention is no state, is no nation, has no inherent sovereignty, and derives all its vitality and force from the persisting sovereignty of the states severally that have united in creating it. The agreement no more affects the sovereignty of the several states entering into it than does the appointment of an agent affect the rights and powers of the principal. The creature takes nothing from the Creator, exhausts not, lessens not his creative energy, and it is only by his retaining and continuously exerting his creative power that the creature continues to exist.

An independent state or nation may, with or without its consent, lose its sovereignty, but only by being merged in or subjected to another. Independent sovereign states cannot by convention or mutual agreement form themselves into a single sovereign state or nation. The compact, or agreement, is made by sovereign states, and binds by virtue of the sovereign power of each of the contracting parties. To destroy that sovereign power would be to annul the compact and render void the agreement. The agreement can be valid and binding only on condition that each of the contracting parties retains the sovereignty that rendered it competent to enter into the compact, and states that retain severally their sovereignty do not form a single sovereign state or nation. The states in convention cannot become a new and single sovereign state unless they lose their several sovereignty and merge it in the new sovereignty; but this they cannot do by agreement, because the moment the parties to the agreement cease to be sovereign, the agreement, on which alone depends the new sovereign state, is vacated. …

That a nation may voluntarily cede its sovereignty is frankly admitted, but it can cede it only to something or somebody actually existing, for to cede to nothing and not to cede is one and the same thing. They can part with their own sovereignty by merging themselves in another national existence, but not by merging themselves in nothing; and till they have parted with their own sovereignty the new sovereign state does not exist. A prince can abdicate his power, because by abdicating he simply gives back to the people the trust he had received from them; but a nation cannot, save by merging itself in another. An independent state not merged in another or that is not subject to another cannot cease to be a sovereign nation, even if it would.

That no sovereign state can be formed by agreement or compact has already been shown in the refutation of the theory of the origin of government in convention, or the so-called social compact. Sovereign states are as unable to form themselves into a single sovereign state by mutual compact as are the sovereign individuals imagined by Rousseau. The convention, either of sovereign states or of sovereign individuals, with the best will in the world, can form only a compact or agreement between sovereigns, and an agreement or compact, whatever its terms or conditions, is only an alliance, a league, or a confederation, which no one can pretend is a sovereign state, nation, or republic.

The question, then, whether the United States are a single sovereign state or nation or a confederacy of independent sovereign states depends on the question whether the American people originally existed as one people or as several independent states. …

What, then, is the fact? Are the United States politically one people, nation, state, or republic, or are they simply independent sovereign states united in close and intimate alliance, league, or federation by a mutual pact or agreement? Were the people of the Untied States who ordained and established the written constitution one people or were they not? If they were not before ordaining and establishing the government, they are not now; for the adoption of the constitution did not and could not make them one. Whether they are one or many is, then, simply a question of fact, to be decided by the facts in the case, not by the theories of American statesmen, the opinion of jurists, or even by constitutional law itself. The old articles of confederation and the later constitution can serve here only as historical documents. Constitutions and laws presuppose the existence of a national sovereign from which they emanate and that ordains them, for they are the formal expression of a sovereign will. The nation must exist as an historical fact, prior to the possession or exercise of sovereign power, prior to the existence of written constitutions and laws of any kind, and its existence must be established before they can be recognized as having any legal force or vitality. (Vol. 18, pp. 102-105.)


A Nation De Facto is one De Jure


There is on civilized nation now existing that has been developed from a common ancestor this side of Adam, and the most mixed are the most civilized. The nearer a nation approaches to a primitive people of pure unmixed blood, the further removed it is from civilization. All civilized nations are political nations, and are founded in the fact, not on rights antecedent to the fact. A hundred or more lost nationalities went to form the Roman empire, and who can tell us how many layers of crushed nationalities, superposed one upon another, serve for the foundation of the present French, English, Russian, Austrian, or Spanish nationality? What other title to independence and sovereignty than the fact can you plead in behalf of any European nation? Every one has absorbed and extinguished – no one can say how many – nationalities that once had as good a right to be as it has or can have. Whether those nationalities have been justly extinguished or not is no question for the statesman; it is the secret of Providence. Failure in this world is not always a proof of wrong, nor success of right. The good is sometimes overborne and the bad sometimes triumphs; but it is consoling, and even just, to believe that the good more often triumphs than the bad. …

The notion of right, independent of the fact as applied to sovereignty, is founded in error. Empty titles to states and kingdoms are of no validity. The sovereignty is, under God, in the nation, and the title and the possession are inseparable. The title of the Palaeologi to the Roman empire of the East, of the king of Sicily, the king of Sardinia, or the king of Spain – for they are all claimants – to the kingdom of Jerusalem founded by Godfrey and his crusaders, of the Stuarts to the thrones of England, Ireland, and Scotland, or of the Bourbons to the throne of France, are vacated and not worth the parchment on which they are engrossed. The contrary opinion, so generally entertained, belongs to barbarism, not to civilization. It is in modern society a relic of feudalism which places the state in the government and makes the government a private estate – a private and not a public right – a right to govern the public, not a right to govern held from or by the public.

The proprietor may be dispossessed in fact of his estate by violence, by illegal or unjust means, without losing his right, and another may usurp it, occupy it, and possess it in fact without acquiring any right or legal title to it. The man who holds the legal title has the right to oust him and reenter upon his estate whenever able to do so. Here, in the economic order, the fact and the right are distinguishable, and the actual occupant may be required to show his title-deeds. Holding sovereignty to be a private estate, the feudal lawyers very properly distinguish between governments de facto and governments de jure, and argue very logically that violent dispossession of a prince does not invalidate his title. But sovereignty, it has been shown, is not in the government but in the state, and the state is inseparable from the public domain. The people organized and held by the domain or national territory are, under God, the sovereign nation, and remain so as long as the nation subsists without subjection to another. The government, as distinguished from the state or nation, has only a delegated authority, governs only by a commission from the nation. The revocation of the commission vacates its title and extinguishes its rights. The nation is always sovereign, and every organic people fixed to the soil and actually independent of every other is a nation. There can, then, be no independent nation de facto that is not an independent nation de jure, nor de jure that is not de facto. The moment a people cease to be an independent nation in fact they cease to be sovereign, and the moment they become in fact an independent nation they are so of right. Hence in the political order the fact and the right are born and expire together; and when it is proved that a people are in fact an independent nation, there is no question to be asked as to their right to be such a nation. (Vol. 18, pp. 105-108.)


The British Sovereignty Passed to the States United


The king, say the jurists, never dies, and the heralds cry, "The king is dead! Live the king!" Sovereignty never lapses, is never in abeyance, and the moment it ceases in one people it is renewed in another. The British sovereignty ceased in the colonies with independence, and the American took its place. Did the sovereignty which before independence was in Great Britain pass from Great Britain to the states severally or to the states united? It might have passed to them severally, but did it? There is no question of law or antecedent right in the case, but a simple question of fact, and the fact is determined by determining who it was that assumed it, exercised it, and has continued to exercise it. As to this there is no doubt. The sovereignty as a fact has been assumed and exercised by the United States, the states united, and never by the states separately or severally. Then as a fact the sovereignty that before independence was in Great Britain passed on independence to the states united, and reappears in all its vigor in the Untied States, the only successor to Great Britain known to or recognized by the civilized world.

As the colonial people were, though distributed in distinct colonies, still one people, the people of the United States, though distributed into distinct and mutually independent states, are yet one sovereign people, therefore a sovereign state or nation, and not a simple league or confederacy of nations. …

Moreover, the articles of confederation were drawn up and adopted during the transition from colonial independence to national independence. Independence was declared in 1776, but it was not a fact till 1782, when the preliminary treaty acknowledging it was signed in Paris. Till then the United States were not an independent nation; they were only a people struggling to become an independent nation. Prior to that preliminary treaty, neither the Union nor the states severally were sovereign. The articles were agreed on in congress in 1777, but they were not ratified by all the states till May, 1781, and in 1782 the movement was commenced in the legislature of New York for their amendment. Till the organization under the constitution ordained by the people of the Untied States in 1787, and which went into operation in 1789, the United States had in reality only a provisional government, and it was not till then that the national government was definitively organized and the line of demarcation between the general government and the particular state government was fixed.

The confederation was an acknowledged failure and was rejected by the American people precisely because it was not in harmony with the unwritten or providential constitution of the nation; and it was not in harmony with that constitution precisely because it recognized the states as sovereign and substituted confederation for union. The failure of confederation and the success of union are ample proofs of the unity of the American nation. The instinct of unity rejected state sovereignty in 1787 as it did in 1861. The first and the last attempt to establish state sovereignty have failed, and the failure vindicates the fact that the sovereignty is in the states united, not in the states severally. (Vol. 18, pp. 110-113.)


The Union and the States Born Together


The key to the mystery is precisely in this appellation United States, which is not the name of the country, for its distinctive name is America, but a name expressive of its political organization. In it there are no sovereign people without states and no states without union or that are not united states. The term united is not part of a proper name, but is simply an adjective qualifying states, and has its full and proper sense. Hence while the sovereignty is and must be in the states, it is in the states united, not in the states severally, precisely as we have found the sovereignty of the people is in the people collectively or as society, not in the people individually. The life is in the body, not in the members, though the body could not exist if it had no members; so the sovereignty is in the union, not in the states severally; but there could be no sovereign union without the states, for there is no union where there is nothing united.

This is not a theory of the constitution, but the constitutional fact itself. It is the simple historical fact that precedes the law and constitutes the law-making power. The people of the United States are one people, as has already been proved: they were one people, as far as people at all, prior to independence, because under the same common law and subject to the same sovereign, and have been so since, for as united states they gained their independence and took their place among sovereign nations, and as united states they have possessed and still possess the government. As their existence before independence in distinct colonies did not prevent their unity, so their existence since in distinct states does not hinder them from being one people. The states severally simply continue the colonial organizations, and united they hold the sovereignty that was originally in the mother country. But if one people, they are one people existing in distinct state organizations, as before independence they were one people existing in distinct colonial organizations. This is the original, the unwritten, and providential constitution of the people of the United States.

This constitution is not conventional, for it existed before the people met or could meet in convention. They have not, as an independent sovereign people, either established their union or distributed themselves into distinct and mutually independent states. The union and the distribution, the unity and the distinction, are both original in their constitution, and they were born United States, as much and as truly so as the son of a citizen is born a citizen or as every one born at all is born a member of society, the family, the tribe, or the nation. The union and the states were born together, are inseparable in their constitution, have lived and grown up together; no serious attempt till the late secession movement has been made to separate them; and the secession movement, to all persons who knew not the real constitution of the United States, appeared sure to succeed, and in fact would have succeeded, if, as the secessionists pretend, the union had been only a confederacy, and the states had been held together only by a conventional compact and not by a real and living bond of unity. The popular instinct of national unity, which seemed so weak, proved to be strong enough to defeat the secession forces, to trample out the confederacy, and maintain the unity of the nation and the integrity of its domain.

The people can act only as they exist, as they are, not as they are not. Existing originally only as distributed in distinct and mutually independent colonies, they could at first act only through their colonial organizations and afterwards only through their state organizations. The colonial people met in convention in the person of representatives chosen by colonies, and after independence in the person of representatives chosen by states. Not existing outside of the colonial or state organizations, they could not act outside or independently of them. They chose their representatives or delegates by colonies or states, and called at first their convention a congress; but by an instinct surer than their deliberate wisdom they called it not the congress of the confederate, but of the united states, asserting constitutional unity as well as constitutional multiplicity. It is true in their first attempt to organize a general government they called the constitution they devised articles of confederation, but only because they had not attained to full consciousness of themselves; and that they really meant union, not confederation, is evident from their adopting, as the official style of the nation or new power, united, not confederate states. (Vol. 18, pp. 115, 116.)


The United States not Created by Convention


The convention did not create the union or unite the states, for it was assembled by the authority of the United States who were present in it. The United States to union existed before the convention, as the convention itself affirms in declaring one of its purposes to be "to provide for a more perfect union." If there had been no union, it could not and would not have spoken of providing for a more perfect union, but would have stated its purpose to be to create or form a union. The convention did not form the union nor in fact provide for a more perfect union; it simply provided for the more perfect representation or expression in the general government of the union already existing. The convention, in common with the statesmen at the time, recognized no unwritten or providential constitution of a people, and regarded the constitution of government as the constitution of the state, and consequently sometimes put the state for the government. In interpreting its language, it is necessary to distinguish between its act and its theory. Its act is law, its theory is not. The convention met, among other things, to organize a government which should more perfectly represent the union of the states than did the government created by the articles of confederation.

The convention, certainly, professes to grant or concede powers to the United States and to prohibit powers to the states; but it simply puts the state for the government. The powers of the United States are, indeed, grants or trusts, but from God through the law of nature, and are grants, trusts, or powers always conceded to every nation or sovereign people. But none of them are grants from the convention. The powers the convention grants or concedes to the United States are powers granted or conceded by the United States to the general government it assembled to organize and establish, which, as it extends over the whole population and territory of the union, and as the interests it is charged with relate to all the states in common, or to the people as a whole, is with no great impropriety called the government of the United States, in contradistinction from the state governments, which have each only a local jurisdiction. But the more exact term is, for the one, the general government, and for the other particular governments, as having charge only of the particular interests of the state, and the two together constitute the government of the United States, or the complete national government; for neither the general government nor the state government is complete in itself. The convention developed a general government and prescribed its powers, and fixed their limits and extent, as well as the bounds of the powers of the state or particular governments; but they are the United States assembled in convention that do all this, and therefore, strictly speaking, no powers are conceded to the United States that they did not previously possess. The convention itself, in the constitution it ordained, defines very clearly from whom the general government holds its powers. It holds them, as we have seen, from "the people of the United States;" not the people of the states severally, but of the states united. If it had meant the states severally it would have said, We, the states; if it had recognized and meant the population of the country irrespective of its organization into particular states, it would have said simply, We, the people. By saying "We, the people of the Untied States," it placed the sovereign power where it is, in the people of the states united. (Vol. 18, pp. 120-122.)


Sovereignty of the United States


The sovereign in the republican order is the organic people, or state, and is with us the United States, for with us the organic people exist only as organized into states united, which in their union form one compact and indissoluble whole. That is to say, the organic American people do not exist as a consolidated people or state; they exist only as organized into distinct but inseparable states. Each state is a living member of the one body and derives its life from its union with the body, so that the American state is one body with many members; and the members, instead of being simply individuals, are states, or individuals organized into states. The body consists of many members, and is one body because the members are all members of it and members one of another. It does not exist as separate or distinct from the members, but exists in their solidarity or membership one of another. There is no sovereign people or existence of the United States distinguishable from the people or existence of the particular states united. The people of the United States, the state called the United States, are the people of the particular states united. The solidarity of the members constitutes the unity of the body. The difference between this view and Mr. Madison’s is that while his view supposes the solidarity to be conventional, originating and existing in compact, or agreement, this supposes it to be real, living, and prior to the convention, as much the work of Providence ad the existence in the human body of the living solidarity of its members. One law, one life, circulates through all the members, constituting them a living organism, binding them in living union, all to each and each to all.

Such is the sovereign people, and so far the original unwritten constitution. The sovereign, in order to live and act, must have an organ through which he expresses his will. This organ, under the American system, is primarily the convention. The convention is the supreme political body, the concrete sovereign authority, and exercises practically the whole sovereign power of the people. The convention persists always, although not in permanent session. It can at any time be convened by the ordinary authority of the government, or, in its failure, by a plebiscitum.

Next follows the government created and constituted by the convention. The government is constituted in such manner and has such and only such powers as the convention ordains. The government has, in the strict sense, no political authority under the American system which separates the government from the convention. All political questions proper, such as the elective franchise, eligibility, the constitution of the several departments of government, as the legislative, the judicial, and the executive, changing, altering, or amending the constitution of government, enlarging or contracting its powers – in a word, all those questions which arise on which it is necessary to take the immediate orders of the sovereign, belong not to the government, but to the convention; and where the will of the sovereign is not sufficiently expressed in the constitution, a new appeal to the convention is necessary and may always be had. (Vol. 18, pp. 127, 128.)


The Division of Power


The American system, sometimes called the federal system, is not founded on antagonism of classes, estates, or interests, and is in no sense of a system of checks and balances. It needs and tolerates no obstructive forces. It does not pit section against section, the states severally against the general government, nor the general government against the state governments, and nothing is more hurtful than the attempt to explain it and work it on the principles of British constitutionalism. The convention created no antagonistic powers; it simply divided the powers of government, and gave neither to the general government nor to the state governments all the powers of government, nor in any instance did it give to the two governments jurisdiction in the same matters. Hence each has its own sphere, in which it can move on without colliding with that of the other. Each is independent and complete in relation to its own work, incomplete and dependent on the other for the complete work of the government.

The division of power is not between a NATIONAL government and state governments, but between a GENERAL government and particular governments. The general government, inasmuch as it extends to matters common to all the states, is usually called the government of the United States, and sometimes the federal government, to distinguish it from particular or state governments, but without strict propriety; for the government of the United States, or the federal government, means, in strictness, both the general government and the particular governments, since neither is in itself the complete government of the country. The general government has authority within each of the states, and each of the state governments has authority in the Union. The line between the Union and the states severally is not precisely the line between the general government and the particular governments. As, for instance, the general government lays direct taxes on the people of the states and collects internal revenue within them; and the citizens of a particular state, and none others, are electors of president and vice-president of the United States and representatives in the lower house of congress, while senators in congress are elected by the state legislatures themselves.

The line that distinguishes the two governments is that which distinguishes the general relations and interests from the particular relations and interests of the people of the United States. These general relations and interests are placed under the general government, which, because its jurisdiction is coextensive with the Union, is called the government of the United States; the particular relations and interests are placed under particular governments, which, because their jurisdiction is only coextensive with the states respectively, are called state governments. The general government governs supremely all the people of the United States and territories belonging to the Union in all their general relations and interests, or relations and interests common alike to them all; the particular or state government governs supremely the people of a particular state, as Massachusetts, New York, or New Jersey, in all that pertains to their particular or private rights, relations, and interests. The powers of each are equally sovereign, and neither are derived from the other. The state governments are not subordinate to the general government, nor the general government to the state governments. They are coordinate governments, each standing on the same level and deriving powers from the same sovereign authority. In their respective spheres neither yields to the other. In relation to the matters within its jurisdiction, each government is independent and supreme in regard of the other and subject only to the convention. (Vol. 18, pp. 131, 132.)


National Banks


The United States Bank was manifestly unconstitutional, as probably are the present so-called national banks. The United States Bank was a private or particular corporation, and the present national banks are only corporations of the same sort, though organized under a general law. The pretence that they are established to supply a national currency does not save their constitutionality, for the convention has not given the general government the power nor imposed on it the duty of furnishing a national currency. To coin money and regulate the value thereof is something very different from authorizing private companies to issue bank-notes on the basis of the public stocks held as private property, or even on what is called a specie basis. To claim the power under the general-welfare clause would be a simple mockery of good sense. It is no more the general welfare than any other successful private business. The private welfare of each is, no doubt, for the welfare of all, but not therefore is it the "general welfare," for what is private, particular in its nature is not and cannot be general. To understand by general welfare that which is for the individual welfare of all or the greater number would be to claim for the general government all the powers of government, and to deny that very division of powers which is the crowning merit of the American system. The general welfare, by the very force of the words themselves, means the common as distinguished from the private or individual welfare. The system of national banks may or may not be a good and desirable system, but it is difficult to understand the constitutional power of the general government to establish it. (Vol. 18, pp. 134, 135.)


Protective Tariffs and Slavery


On the ground that its powers are general, not particular, the general government has no power to lay a protective tariff. It can lay a tariff for revenue, not for protection of home manufacturers or home industry; for the interests fostered, even though indirectly advantageous to the whole people, are in their nature private or particular, not general interests, and chiefly interests of private corporations and capitalists. Their incidental or even consequential effects do not change their direct and essential nature. So with domestic slavery. Slavery comes under the head of private rights, whether regarded on the side of the master or on the side of the slave. The right of a citizen to hold a slave, if a right at all, is the private right of property, and the right of the slave to his freedom is a private and personal right, and neither is placed under the safeguard of the general government, which has nowhere, unless in the District of Columbia and the places over which it has exclusive legislative power in all cases whatsoever, either the right to establish it or to abolish it, except perhaps under the war power, as a military necessity, an indemnity for the past, or a security for the future.

This applies to what are called territories as well as to states. The right of the government to govern the territories in regard to private and particular rights and interests is derived from no express grant of power, and is held only ex necessitate – the United States owning the domain and there being no other authority competent to govern them. But, as in the case of all powers held ex necessitate, the power is restricted to the absolute necessity in the case. What are called territorial governments to distinguish them from the state governments are only provisional governments, and can touch private rights and interests no further than is necessary to preserve the order and prepare the way for the organization and installation of a regular state government. Till then the law governing private rights is the law that was in force, if any such there was, when the territory became by purchase, by conquest, or by treaty attached to the domain of the United States.

Hence the supreme court declared unconstitutional the ordinance of 1787 prohibitng slavery in what was called the territory of the Northwest, and the so-called Missouri compromise prohibiting slavery north of the parallel 36’ 30’. The Wilmot proviso was for the same reason unconstitutional. The general government never had and has not any power to exclude slavery from the territories, any more than to abolish it in the states. But slavery being a local institution, sustained neither by the law of nature nor the law of nations, no citizen migrating from a slave state could carry his slaves with him and hold them as slaves in the territory. Rights enacted by local law are rights only in that locality, and slaves carried by their master into a slave state even are free unless the state into which they are carried enacts to the contrary. The only persons that could be held as slaves in a territory would be those who were slaves or the children of those who were slaves in the territory when it passed to the United States. The whole controversy on slavery in the territories, and which culminated in the civil war, was wholly unnecessary and never could have occurred had the constitution been properly understood and adhered to by both sides. True, congress could not exclude slavery from the territories, but neither could citizens migrating to them hold slaves in them; and so really slavery was virtually excluded, for the inhabitants in nearly all of them, not immigrants from the states after the cession to the United States, were too few to be counted. (Vol. 18, pp. 135, 136.)




The general government has power to establish a uniform rule of naturalization, to which all the states must conform, and it was very proper that it should have this power, so as to prevent one state from gaining by its naturalization laws an undue advantage over another; but the general government has itself no power to naturalize a single foreigner, or in any case to say who shall or who shall not be citizens either of a state of the United States, or to declare who may or may not be electors even of its own officers. The convention ordains that members of the house of representatives shall be chosen by electors who have the qualifications requisite for electors of the most numerous branch of the state legislature, but the state determines these qualifications and who do or do not possess them; that the senators shall be chosen by the state legislatures, and that the electors of president and vice-president shall be appointed in such manner as the respective state legislatures may direct. The whole question of citizenship, what shall or shall not be the qualifications of electors, who shall or shall not be freemen, is reserved to the states as coming under the head of personal or private rights and franchises. In practice the exact line of demarcation may not always have been strictly observed either by the general government or by the state governments, but a careful study of the constitution cannot fail to show that the division of powers is the division or distinction between the public and general relations and interests, rights and duties of the people and their private and particular relations and interests, rights and duties. As these two classes of relations and interests, rights and duties, though distinguishable, are really inseparable in nature, it follows that the two governments are essential to the existence of a complete government or to the existence of a real government in its plentitude and integrity. Left to either alone, the people would have only an incomplete, an initial, or inchoate government. The general government is the complement of the state governments, and the state governments are the complement of the general government. (Vol. 18, pp. 136, 137.)


The Merit of the Statesmen of 1787


The division of the powers of government between a general government and particular governments, rendered possible and practicable by the original constitution of the people themselves as one people existing and acting through state organizations, is the American method of guarding against the undue centralism to which Roman imperialism inevitably tends; and it is more simpler and more effective than any of the European systems of mixed governments, which seek their end by organizing an antagonism of interests or classes. The American method demands no such antagonism, no neutralizing of one social force by another, but avails itself of all the forces of society, organizes them dialectically, not antagonistically, and thus protects with equal efficiency both public authority and private rights. The general government can never oppress the people as individuals or abridge their private rights or personal freedom and independence, because these are not within its jurisdiction, but are placed in charge, within each state, of the state government, which within its sphere governs as supremely as the general government: the state government cannot weaken the public authority of the nation or oppress the people in their general rights and interests, for these are withdrawn from state jurisdiction and placed under charge of a general government, which in its sphere governs as supremely as the state government. There is no resort to a system of checks and balances; there is no restraint on power and no systematic distrust of power, but simply a division of powers between two coordinate governments, distinct but inseparable, moving in distinct spheres, but in the same direction, or to a common end. The system is no invention of man, is no creation of the convention, but is given us by Providence in the living constitution of the American people. The merit of the statesmen of 1787 is that they did not destroy or deface the work of Providence, but accepted it and organized the government in harmony with the real order, the real elements given them. They suffered themselves in all their positive substantial work to be governed by reality, not by theories and speculations. In this they proved themselves statesmen, and their work survives; and the republic, laugh as sciolists may, is, for the present and future, the model republic – as much so as was Rome in her day; and it is not simply national pride nor American self-conceit that pronounces its establishment the beginning of a new and more advanced order of civilization: such is really the fact. (Vol. 18, pp. 139, 140.)


The Weak Point in the American System


The only apparently weak point in the system is in the particular states themselves. …The general government takes care of public authority and rights; the state protects private rights and personal freedom as against the general government: but what protects the citizens in their private rights, their personal freedom and independence, against the particular state government? Universal suffrage, answers the democrat. Armed with the ballot, more powerful than the sword, each citizen is able to protect himself. But this is a theory, not reality. If it were true, the division of the powers of government between two coordinate governments would be of no practical importance. Experience does not sustain the theory, and the power of the ballot to protect the individual may be rendered ineffective by the tyranny of the party. Experience proves that the ballot is far less effective in securing the freedom and independence of the individual citizen than is commonly pretended. The ballot of an isolated individual counts for nothing. The individual, though armed with the ballot, is as powerless if he stands alone as if he had it not. To render it of any avail he must associate himself with a party and look for his success in the success of his party; and to secure the success of his party he must give up to it his own private convictions and free will. In practice individuals are nothing individually and parties are everything. (Vol. 18, p. 140.)


Political Parties


Parties are formed one hardly knows how and controlled no one knows by whom, but usually by demagogues, men who have some private or personal purposes for which they wish, through party, to use the government. Parties have no conscience, no responsibility, and their very reason of being is the usurpation and concentration of power. The real practical tendency of universal suffrage is to democratic instead of an imperial centralism. What is to guard against this centralism? Not universal suffrage, for that tends to create it; and if the government is left to it, the government becomes practically the will of an ever-shifting and irresponsible majority. Is the remedy in written or paper constitutions? Party can break through them, and by making the judges elective by party for short terms and re-eligible, can do so with impunity. In several of the states the dominant majority have gained the power to govern at will, without any let or hindrance. Besides, constitutions can be altered and have been altered very nearly at the will of the majority. No mere paper constitutions are any protection against the usurpations of party, for party will always grasp all the power it can. (Vol. 18, p. 141.)


Local Self-Government


Yet the evil is not so great as it seems, for in most of the states the principle of division of powers is carried into the bosom of the state itself; in some states further than in others, but in all it obtains to some extent. In what are called the New England states, the best-governed portion of the union, each town is a corporation, having important powers and the charge of all purely local matters – chooses its own officers, manages its own finances, takes charge of its own poor, of its own roads and bridges, and of the education of its own children. Between these corporations and the state government are the counties, that take charge of another class of interests, more general than those under the charge of the town, but less general than those of the state. In the great central and northwestern states the same system obtains, though less completely carried out. In the southern and southwestern states the town corporations hardly exist, and the rights and interests of the poorer classes of persons have been less well protected in them than in the northern and eastern states. But with the abolition of slavery and the lessening of the influence of the wealthy slaveholding class, with the return of peace and the revival of agriculture, industrial, and commercial prosperity, the New-England system, in its main features, is pretty sure to be gradually introduced or developed, and the division of powers in the state to be as effectively and as systematically carried out as it is between the general government and the particular or state governments. So, though universal suffrage, good as far as it goes, is not alone sufficient, the division of powers affords with it a not inadequate protection.

No government whose workings are entrusted to men ever is or can be practically perfect – secure all good and guard against all evil. In all human governments there will be defects and abuses, and he is no wise man who expects perfection from imperfection. But the American constitution, taken as a whole and in all its parts, is the least imperfect that has ever existed, and under it individual rights, personal freedom and independence, as well as public authority or society, are better protected than under any other; and as the few barbaric elements retained from the feudal ages are eliminated, the standard of education elevated, and the whole population Americanized, molded by and to the American system, it will be found to effect all the good, with as little of the evil, as can be reasonably expected from any possible civil government or political constitution of society. (Vol. 18, pp. 141, 142.)

The existence of any nation as an independent sovereign nation is a purely historical fact, for its right to exist as such is in the simple fact that it does so exist. A nation de facto is a nation de jure, and when we have ascertained the fact we have ascertained the right. There is no right in the case separate from the fact – only the fact must be really a fact. A people hitherto a part of another people or subject to another sovereign is not in fact a nation because they have declared themselves independent and have organized a government and are engaged in what promises to be a successful struggle for independence. The struggle must be practically over; the former sovereign must have practically abandoned the effort to reduce them to submission or to bring them back under his authority, and if he continues it, does it as a matter of mere form; the postulant must have proved its ability to maintain civil government and to fulfill within and without the obligations which attach to every civilized nation before it can be recognized as an independent sovereign nation; because before it is not a fact that it is a sovereign nation. The prior sovereign, when no longer able or willing to vindicate his right, has lost it, and no one is any longer bound to respect it, for humanity demands not martyrs to lost causes. …