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- The American Republic - 10/49 -

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



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

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

This theory is usually called the democratic theory, and it enlists in its support the instincts, the intelligence, the living forces, and active tendencies of the age. Kings, kaisers, and hierarchies are powerless before it, and war against it in vain. The most they can do is to restrain its excesses, or to guard against its abuses. Its advocates, in returning to it, sometimes revive in its name the old pagan superstition. Not a few of the European democrats recognize in the earth, in heaven, or in hell, no power superior to the people, and say not only people-king but people-God. They say absolutely, without any qualification, the voice of the people is the voice of God, and make their will the supreme law, not only in politics, but in religion, philosophy, morals, science, and the arts. The people not only found the state, but also the church. They inspire or reveal the truth, ordain or prohibit worships, judge of doctrines, and decide cases of conscience. Mazzini said , when at the bead of the Roman Republic in 1848, the question of religion must be remitted to the judgment of the people. Yet this theory is the dominant theory of the age, and is in all civilized nations advancing with apparently irresistible force.

But this theory has its difficulties. Who are the collective people that have the rights of society, or, who are the sovereign people? The word people is vague, and in itself determines nothing. It may include a larger or a smaller number; it may mean the political people, or it may mean simply population; it may mean peasants, artisans, shopkeepers, traders, merchants, as distinguished from the nobility; hired laborers or workmen as distinguished from their employer, or slaves as distinguished from their master or owner. In which of these senses is the word to be taken when it is said, "The people are sovereign?" The people are the population or inhabitants of one and the same country. That is something. But who or what determines the country? Is the country the whole territory of the globe? That will not be said, especially since the dispersion of mankind and their division into separate nations. Is the territory indefinite or undefined? Then indefinite or undefined are its inhabitants, or the people invested with the rights of society. Is it defined and its boundaries fixed? Who has done it? The people. But who are the people? We are as wise as we were at starting. The logicians say that the definition of idem per idem, or the same by the same, is simply no definition at all.

The people are the nation, undoubtedly, if you mean by the people the sovereign people. But who are the people constituting the nation? The sovereign people? This is only to revolve in a vicious circle. The nation is the tribe or the people living under the same regimen, and born of the same ancestor, or sprung from the same ancestor or progenitor. But where find a nation in this the primitive sense of the word? Migration, conquest, and intermarriage, have so broken up and intermingled the primitive races, that it is more than doubtful if a single nation, tribe, or family of unmixed blood now exists on the face of the earth. A Frenchman, Italian, Spaniard, German, or Englishman, may have the blood of a hundred different races coursing in his veins. The nation is the people inhabiting the same country, and united under one and the same government, it is further answered. The nation, then, is not purely personal, but also territorial. Then, again, the question comes up, who or what determines the territory? The government? But not before it is constituted, and it cannot be constituted till its territorial limits are determined. The tribe doubtless occupies territory, but is not fixed to it, and derives no jurisdiction from it, and therefore is not territorial. But a nation, in the modern or civilized sense, is fixed to the territory, and derives from it its jurisdiction, or sovereignty; and, therefore, till the territory is determined, the nation is not and cannot be determined.

The question is not an idle question. It is one of great practical importance; for, till it is settled, we can neither determine who are the sovereign people, nor who are united under one and the same government. Laws have no extra-territorial force, and the officer who should attempt to enforce the national laws beyond the national territory would be a trespasser. If the limits are undetermined, the government is not territorial, and can claim as within its jurisdiction only those who choose to acknowledge its authority. The importance of the question has been recently brought home to the American people by the secession of eleven or more States from the Union. Were these States a part of the American nation, or were they not? Was the war which followed secession, and which cost so many lives and so much treasure, a civil war or a foreign war? Were the secessionists traitors and rebels to their sovereign, or were they patriots fighting for the liberty and independence of their country and the right of self-government? All on both sides agreed that the nation is sovereign; the dispute was as to the existence of the nation itself, and the extent of its jurisdiction. Doubtless, when a nation has a generally recognized existence as an historical fact, most of the difficulties in determining who are the sovereign people can be got over; but the question here concerns the institution of government, and determining who constitute society and have the right to meet in person, or by their delegates in convention, to institute it. This question, so important, and at times so difficult, the theory of the origin of government in the people collectively, or the nation, does not solve, or furnish any means of solving.

But suppose this difficulty surmounted there is still another, and a very grave one, to overcome. The theory assumes that the people collectively, "in their own native right and might," are sovereign. According to it the people are ultimate, and free to do whatever they please. This sacrifices individual freedom. The origin of government in a compact entered into by individuals, each with all and all with each, sacrificed the rights of society, and assumed each individual to be in himself an independent sovereignty. If logically carried out, there could be no such crime as treason, there could be no state, and no public authority. This new theory transfers to society the sovereignty which that asserted for the individual, and asserts social despotism, or the absolutism of the state. It asserts with sufficient energy public authority, or the right of the people to govern; but it leaves no space for individual rights, which society must recognize, respect, and protect. This was the grand defect of the ancient Graeco-Roman civilization. The historian explores in vain the records of the old Greek and Roman republics for any recognition of the rights of individuals not held as privileges or concessions from the state. Society recognized no limit to her authority, and the state claimed over individuals all the authority of the patriarch over his household, the chief over his tribe, or the absolute monarch over his subjects. The direct and indirect influence of the body of freemen admitted to a voice in public affairs, in determining the

The American Republic - 10/49

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