CONSTITUTION OF GOVERNMENT--CONCLUDED.
Though the constitution of the people is congenital, like the
constitution of an individual, and cannot be radically changed without
the destruction of the state, it must not be supposed that it is wholly
withdrawn from the action of the reason and free-will of the nation,
nor from that of individual statesmen. All created things are subject
to the law of development, and may be developed either in a good sense
or in a bad; that is, may be either completed or corrupted. All the
possibilities of the national constitution are given originally in the
birth of the nation, as all the possibilities of mankind were given in
the first man. The germ must be given in the original constitution.
But in all constitutions there is more than one element, and the
several elements maybe developed pari passu, or unequally, one having
the ascendency and suppressing the rest. In the original constitution
of Rome the patrician element was dominant, showing that the
patriarchal organization of society still retained no little force.
The king was only the presiding officer of the senate and the leader of
the army in war. His civil functions corresponded very nearly to those
of a mayor of the city of New York, where all the effective power is in
the aldermen, common council, and heads of departments. Except in name
he was little else than a pageant. The kings, no doubt, labored to
develop and extend the royal element of the constitution. This was
natural; and it was equally natural that they should be resisted by the
patricians. Hence when the Tarquins, or Etruscan dynasty, undertook to
be kings in fact as well as in name, and seemed likely to succeed, the
patricians expelled them, and supplied their place by two consuls
annually elected. Here was a modification, but no real change of the
constitution. The effective Power, as before, remained in the senate.
But there was from early times a plebeian element in the population of
the city, though forming at first no part of the political people.
Their origin is not very certain, nor their original position in the
city. Historians give different accounts of them. But that they
should, as they increased in numbers, wealth, and importance, demand
admission into the political society, religious or solemn marriage, a
voice in the government, and the faculty of holding civil and military
offices, was only in the order of regular development. At first the
patricians fought them, and, failing to subdue them by force, effected
a compromise, and bought up their leaders. The concession which
followed of the tribunitial veto was only a further development. By
that veto the plebeians gained no initiative, no positive power,
indeed, but their tribunes, by interposing it, could stop the
proceedings of the government. They could not propose the measures they
liked, but they could prevent the legal adoption of measures they
disliked--a faculty Mr. Calhoun asserted for the several States of the
American Union in his doctrine of nullification, or State veto, as he
called it. It was simply an obstructive power.
But from a power to obstruct legislative action to the power to
originate or propose it, and force the senate to adopt it through fear
of the veto of measures the patricians had at heart, was only a still
further development. This gained, the exclusively patrician
constitution had disappeared, and Marius, the head of a great plebeian
house, could be elected consul and the plebeians in turn threaten to
become predominant, which Sylla or Sulla, as dictator, seeing, tried in
vain to prevent. The dictator was provided for in the original
constitution. Retain the dictatorship for a time, strengthen the
plebeian element by ruthless proscriptions of patricians and by
recruits from the provinces, unite the tribunitial, pontifical, and
military powers in the imperator designated by the army, all elements
existing in the constitution from an early day, and already developed
in the Roman state, and you have the imperial constitution, which
retained to the last the senate and consuls, though with less and less
practical power. These changes are very great, but are none of them
radical, dating from the recognition of the plebs as pertaining to the
Roman people. They are normal developments, not corruptions, and the
transition from the consular republic to the imperial was
unquestionably a real social and political progress. And yet the Roman
people, had they chosen, could have given a different direction to the
developments of their constitution. There was Providence in the course
of events, but no fatalism.
Sulla was a true patrician, a blind partisan of the past. He sought to
arrest the plebeian development led by Marius, and to restore the
exclusively patrician government. But it was too late. His
proscriptions, confiscations, butcheries, unheard-of cruelties which
anticipated and surpassed those of the French Revolution of 1793,
availed nothing. The Marian or plebeian movement, apparently checked
for a moment, resumed its march with renewed vigor under Julius, and
triumphed at Pharsalia. In vain Cicero, only accidentally associated
with the patrician party, which distrusted him--in vain Cicero
declaims, Cato scolds, or parades his impractical virtues, Brutus and
Cassius seize the assassin's dagger, and strike to the earth "the
foremost man of all the world;" the plebeian cause moves on with
resistless force, triumphs anew at Philippi, and young Octavius avenges
the murder of his uncle, and proves to the world that the assassination
of a ruler is a blunder as well as a crime. In vain does Mark Antony
desert the movement, rally Egypt and the barbaric East, and seek to
transfer the seat of empire from the Tiber to the banks of the Nile or
the Orontes; plebeian and imperial Rome wins a final victory at Actium,
and definitively secures the empire of the civilized world to the West.
Thus far the developments were normal, and advanced civilization. But
Rome still retained the barbaric element of slavery in her bosom, and
had conquered more barbaric nations than she had assimilated. These
nations she at first governed as tributary states, with their own
constitutions and national chiefs; afterwards as Roman provinces, by
her own proconsuls and prefects. When the emperors threw open the gates
of the city to the provincials, and conceded them the rights and
privileges of Roman citizens, they introduced not only a foreign
element into the state, destitute of Roman patriotism, but the barbaric
and despotic elements retained by the conquered nations as yet only
partially assimilated. These elements became germs of anti-republican
developments, rather of corruptions, and prepared the downfall of the
empire. Doubtless these corruptions might have been arrested, and
would have been, if Roman patriotism had survived the changes effected
in the Roman population by the concession of Roman citizenship to
provincials; but it did not, and they were favored as time went on by
the emperors themselves, and more especially by Dioclesian, a real
barbarian, who hated Rome, and by Constantine, surnamed the Great, a
real despot, who converted the empire from a republican to a despotic
empire. Rome fell from the force of barbarism developed from within,
far more than from the force of the barbarians hovering on her
frontiers and invading her provinces.
The law of all possible developments is in the providential or
congenital constitution; but these possible developments are many and
various, and the reason and free-will of the nation as well as of
individuals are operative in determining which of them shall be
adopted. The nation, under the direction of wise and able statesmen
who understood their age and country, who knew how to discern between
normal developments and barbaric corruptions, placed at the head of
affairs in season, might have saved Rome from her fate, eliminated the
barbaric and assimilated the foreign elements, and preserved Rome as a
Christian and republican empire to this day, and saved the civilized
world from the ten centuries of barbarism which followed her conquest
by the barbarians of the North. But it rarely happens that the real
statesmen of a nation are placed at the head of affairs.
Rome did not fall in consequence of the strength of her external
enemies, nor through the corruption of private morals and manners,
which was never greater than under the first Triumvirate. She fell
from the want of true statesmanship in her public men, and patriotism
in her people. Private virtues and private vices are of the last
consequence to individuals, both here and hereafter; but private
virtues never saved, private vices never ruined a nation. Edward the
Confessor was a saint, and yet he prepared the way for the Norman
conquest of England; and France owes infinitely less to St. Louis than
to Louis XI., Richelieu, and Napoleon, who, though no saints, were
statesmen. What is specially needed in statesmen is public spirit,
intelligence, foresight, broad views, manly feelings, wisdom, energy,
resolution; and when statesmen with these qualities are placed at the
head of affairs, the state, if not already lost, can, however far gone
it may be, be recovered, restored, reinvigorated, advanced, and private
vice and corruption disappear in the splendor of public virtue.
Providence is always present in the affairs of nations, but not to work
miracles to counteract the natural effects of the ignorance, ineptness,
short-sightedness, narrow views, public stupidity, and imbecility of
rulers, because they are irreproachable and saintly in their private
characters and relations, as was Henry VI. of England, or, in some
respects, Louis XVI. of France. Providence is God intervening through
the laws he by his creative act gives to creatures, not their
suspension or abrogation. It was the corruption of the statesmen, in
substituting the barbaric element for the proper Roman, to which no one
contributed more than Constantine, the first Christian emperor, that
was the real cause of the downfall of Rome, and the centuries of
barbarism that followed, relieved only by the superhuman zeal and
charity of the church to save souls and restore civilization.
But in the constitution of the government, as distinguished from the
state, the nation is freer and more truly sovereign. The constitution
of the state is that which gives to the people of a given territory
political existence, unity, and individuality, and renders it capable
of political action. It creates political or national solidarity, in
imitation of the solidarity of the race, in which it has its root. It
is the providential charter of national existence, and that which gives
to each nation its peculiar character, and distinguishes it from every
other nation. The constitution of government is the constitution by the
sovereign authority of the nation of an agency or ministry for the
management of its affairs, and the letter of instructions according to
which the agent or minister is to act and conduct the matters intrusted
to him. The distinction which the English make between the sovereign
and the ministry is analogous to that between the state and the
government, only they understand by the sovereign the king or queen,
and by the ministry the executive, excluding, or not decidedly
including, the legislature and the judiciary. The sovereign is the
people as the state or body politic, and as the king holds from God
only through the people, he is not properly sovereign, and is to be
ranked with the ministry or government. Yet when the state delegates
the full or chief governing power to the king, and makes him its sole
or principal representative, he may, with sufficient accuracy for
ordinary purposes, be called sovereign. Then, understanding by the
ministry or government the legislative and judicial, as well as the
executive functions, whether united in one or separated into distinct
and mutually independent departments, the English distinction will
express accurately enough, except for strictly scientific purposes, the
distinction between the state and the government.
Still, it is only in despotic states, which are not founded on right,
but force, that the king can say, L'etat, c'est moi, I am the state;
and Shakespeare's usage of calling the king of France simply France,
and the king of England simply England, smacks of feudalism, under
which monarchy is an estate, property, not a public trust. It
corresponds to the Scottish usage of calling the proprietor by the name
of his estate. It is never to be forgotten that in republican states
the king has only a delegated sovereignty, that the people, as well as
God, are above him. He holds his power, as the Emperor of the French
professes to hold his, by the grace of God and the national will--the
only title by which a king or emperor can legitimately hold power.
The king or emperor not being the state, and the government, whatever
its form or constitution, being a creature of the state, he can be
dethroned, and the whole government even virtually overthrown, without
dissolving the state or the political society. Such an event may cause
much evil, create much social confusion, and do grave injury to the
nation, but the political society may survive it; the sovereign remains
in the plenitude of his rights, as competent to restore government as
he was originally to institute it. When, in 1848, Louis Philippe was
dethroned by the Parisian mob, and fled the kingdom, there was in
France no legitimate government, for all commissions ran in the king's
name; but the organic or territorial people of France, the body
politic, remained, and in it remained the sovereign power to organize
and appoint a new government. When, on the 2d of December, 1851, the
president, by a coup d'etat, suppressed the legislative assembly and
the constitutional government, there was no legitimate government
standing, and the power assumed by the president was unquestionably a
usurpation; but the nation was competent to condone his usurpation and
legalize his power, and by a plebiscitum actually did so. The wisdom
or justice of the coup d'etat is another question, about which men may
differ; but when the French nation, by its subsequent act, had condoned
it, and formally conferred dictatorial powers on the prince-president,
the principal had approved the act of his agent, and given him
discretionary powers, and nothing more was to be said. The imperial
constitution and the election of the president to be emperor, that
followed on December 2d, 1852, were strictly legal, and, whatever men
may think of Napoleon III., it must be conceded that there is no legal
flaw in his title, and that he holds his power by a title as high and
as perfect as there is for any prince or ruler.
But the plebiscitum cannot be legally appealed to or be valid when and
where there is a legal government existing and in the full exercise of
its constitutional functions, as was decided by the Supreme Court of
the United States in a case growing out of what is known as the Dorr
rebellion in Rhode Island. A suffrage committee, having no political
authority, drew up and presented a new constitution of government to
the people, plead a plebiscitum in its favor, and claimed the officers
elected under it as the legally elected officers of the state. The
court refused to recognize the plebiscitum, and decided that it knew
Rhode Island only as represented through the government, which had
never ceased to exist. New States in Territories have been organized
on the strength of a plebiscitum when the legal Territorial government
was in force, and were admitted as States into the Union, which, though
irregular and dangerous, could be done without revolution, because
Congress, that admitted them, is the power to grant the permission to
organize as States and apply for admission. Congress is competent to
condone an offence against its own rights. The real danger of the
practice is, that it tends to create a conviction that sovereignty
inheres in the people individually, or as population, not as the body
politic or organic people attached to a sovereign domain; and the
people who organize under a plebiscitum are not, till organized and
admitted into the Union, an organic or a political people at all. When
Louis Napoleon made his appeal to a vote of the French people, he made
an appeal to a people existing as a sovereign people, and a sovereign
people without a legal government. In his case the plebiscitum was
proper and sufficient, even if it be conceded that it was through his
own fault that France at the moment was found without a legal
government. When a thing is done, though wrongly done, you cannot act
as if it were not done, but must accept it as a fact and act
accordingly.
The plebiscitum, which is simply an appeal to the people outside of
government, is not valid when the government has not lapsed, either by
its usurpations or by its dissolution, nor is it valid either in the
case of a province, or of a population that has no organic existence as
an independent sovereign state. The plebiscitum in France was valid,
but in the Grand Duchy of Tuscany, the Duchies of Modena, Parma, and
Lucca, and in the Kingdom of the Two Sicilies it was not valid, for
their legal governments had not lapsed; nor was it valid in the
Aemilian provinces of the Papal States, because they were not a nation
or a sovereign people, but only a portion of such nation or people. In
the case of the states and provinces--except Lombardy, ceded to France
by Austria, and sold to the Sardinian king--annexed to Piedmont to form
the new kingdom of Italy, the plebiscitum was invalid, because implying
the right of the people to rebel against the legal authority, and to
break the unity and individuality of the state of which they form an
integral part. The nation is a whole, and no part has the right to
secede or separate, and set up a government for itself, or annex itself
to another state, without the consent of the whole. The solidarity of
the nation is both a fact and a law. The secessionists from the United
States defended their action only on the ground that the States of the
American Union are severally independent sovereign states, and they
only obeyed the authority of their respective states.
The plebiscitum, or irregular appeal to what is called universal
suffrage, since adopted by Louis Napoleon in France after the coup
d'etat, is becoming not a little menacing to the stability of
governments and the rights and integrity of states, and is not less
dangerous to the peace and order of society than "the solidarity of
peoples" asserted by Kossuth, the revolutionary ex-governor of Hungary,
the last stronghold of feudal barbarism in Christian Europe; for Russia
has emancipated her serfs.
The nation, as sovereign, is free to constitute government according to
its own judgment, under any form it pleases--monarchical, aristocratic,
democratic, or mixed--vest all power in an hereditary monarch, in a
class or hereditary nobles, in a king and two houses of parliament, one
hereditary, the other elective, or both elective; or it may establish a
single, dual, or triple executive, make all officers of government
hereditary or all elective, and if elective, elective for a longer or a
shorter time, by universal suffrage or a select body of electors. Any
of these forms and systems, and many others besides, are or may be
legitimate, if established and maintained by the national will. There
is nothing in the law of God or of nature, antecedently to the national
will, that gives any one of them a right to the exclusion of any one of
the others. The imperial system in France is as legitimate as the
federative system in the United States. The only form or system that
is necessarily illegal is the despotic. That can never be a truly
civilized government, nor a legitimate government, for God has given to
man no dominion over man. He gave men, as St. Augustine says, and Pope
St. Gregory the Great repeats, dominion over the irrational creation,
not over the rational, and hence the primitive rulers of men were
called pastors or shepherds, not lords. It may be the duty of the
people subjected to a despotic government to demean themselves quietly
and peaceably towards it, as a matter of prudence, to avoid sedition,
and the evils that would necessarily follow an attempted revolution,
but not because, founded as it is on mere force, it has itself any
right or legality.
All other forms of government are republican in their essential
constitution, founded on public right, and held under God from and for
the commonwealth, and which of them is wisest and best for the
commonwealth is, for the most part, an idle question. "Forms of
government," somebody has said, "are like shoes--that is the best form
which best fit the feet that are to wear them." Shoes are to be fitted
to the feet, not the feet to the shoes, and feet vary in size and
conformation. There is, in regard to government, as distinguished from
the state, no antecedent right which binds the people, for antecedently
to the existence of the government as a fact, the state is free to
adopt any form that it finds practicable, or judges the wisest and best
for itself. Ordinarily the form of the government practicable for a
nation is determined by the peculiar providential constitution of the
territorial people, and a form of government that would be practicable
and good in one country may be the reverse in another. The English
government is no doubt the best practicable in Great Britain, at
present at least, but it has proved a failure wherever else it has been
attempted. The American system has proved itself, in spite of the
recent formidable rebellion to overthrow it, the best and only
practicable government for the United States, but it is impracticable
everywhere else, and all attempts by any European or other American
state to introduce it can end only in disaster. The imperial system
apparently works well in France, but though all European states are
tending to it, it would not work well at all on the American continent,
certainly not until the republic of the United States has ceased to
exist. While the United States remain the great American power, that
system, or its kindred system, democratic centralism, can never become
an American system, as Maximilian's experiment in Mexico is likely to
prove.
Political propagandism, except on the Roman plan, that is, by
annexation and incorporation, is as impracticable as it is wanting in
the respect that one independent people owes to another. The old
French Jacobins tried to propagate, even with fire and sword, their
system throughout Europe, as the only system compatible with the rights
of man. The English, since 1688, have been great political
propagandists, and at one time it seemed not unlikely that every
European state would try the experiment of a parliamentary government,
composed of an hereditary crown, an hereditary house of lords, and an
elective house of commons. The democratic Americans are also great
political propagandists, and are ready to sympathize with any
rebellion, insurrection, or movement in behalf of democracy in any part
of the world, however mean or contemptible, fierce or bloody it may be;
but all this is as unstatesmanlike as unjust; unstatesmanlike, for no
form of government can bear transplanting, and because every
independent nation is the sole judge of what best comports with its own
interests, and its judgment is to be respected by the citizens as well
as by the governments of other states. Religious propagandism is a
right and a duty, because religion is catholic and of universal
obligation; and so is the jus gentium of the Romans, which is only the
application to individuals and nations of the great principles of
natural justice; but no political propagandism is ever allowable,
because no one form of government is catholic in its nature, or of
universal obligation.
Thoughtful Americans are opposed to political propagandism, and respect
the right of every nation to choose its own form of government; but
they hold that the American system is the best in itself, and that if
other nations were as enlightened as the American, they would adopt it.
But though the American system, rightly understood, is the best, as
they hold, it is not because other nations are less enlightened, which
is by no means a fact, that they do not adopt, or cannot bear it, but
solely because their providential constitutions do not require or admit
it, and an attempt to introduce it in any of them would prove a failure
and a grave evil.
Fit your shoes to your feet. The law of the governmental constitution
is in that of the nation. The constitution of the government must grow
out of the constitution of the state, and accord with the genius, the
character, the habits, customs, and wants of the people, or it will not
work well, or tend to secure the legitimate ends of government. The
constitutions imagined by philosophers are for Utopia, not for any
actual, living, breathing people. You must take the state as it is,
and develop your governmental constitution from it, and harmonize it
with it. Where there is a discrepancy between the two constitutions,
the government has no support in the state, in the organic people, or
nation, and can sustain itself only by corruption or physical force. A
government may be under the necessity of using force to suppress an
insurrection or rebellion against the national authority, or the
integrity of the national territory, but no government that can sustain
itself, not the state, only by physical force or large standing armies,
can be a good government, or suited to the nation. It must adopt the
most stringent repressive measures, suppress liberty of speech and of
conscience, outrage liberty in what it has the most intimate and
sacred, and practise the most revolting violence and cruelty, for it
can govern only by terror. Such a government is unsuited to the nation.
This is seen in all history: in the attempt of the dictator Sulla to
preserve the old patrician government against the plebeian power that
time and events had developed in the Roman state, and which was about
to gain the supremacy, as we have seen, at Pharsalia, Philippi, and
Actium; in the efforts to establish a Jacobinical government in France
in 1793; in Rome in 1848, and the government of Victor Emmanuel in
Naples in 1860 and 1861. These efforts, proscriptions, confiscations,
military executions, assassinations, massacres, are all made in the
name of liberty, or in defence of a government supposed to guaranty the
well-being of the state and the rights of the people. They are
rendered inevitable by the mad attempt to force on a nation a
constitution of government foreign to the national constitution, or
repugnant to the national tastes, interests, habits, convictions, or
whole interior life. The repressive policy, adopted to a certain
extent by nearly all European governments, grows out of the madness of
a portion of the people of the several states in seeking to force upon
the nation an anti-national constitution. The sovereigns may not be
very wise, but they are wiser, more national, more patriotic than the
mad theorists who seek to revolutionize the state and establish a
government that has no hold in the national traditions, the national
character, or the national life; and the statesman, the patriot, the
true friend of liberty sympathizes with the national authorities, not
with the mad theorists and revolutionists.
The right of a nation to change its form of government, and its
magistrates or representatives, by whatever name called, is
incontestable. Hence the French constitution of 1789, which involved
that of 1793, was not illegal, for though accompanied by some
irregularities, it was adopted by the manifest will of the nation, and
consented to by all orders in the state. Not its legality but its
wisdom is to be questioned, together with the false and dangerous
theories of government which dictated it. There is no compact or mutual
stipulation between the state and the government. The state, under
God, is sovereign, and ordains and establishes the government, instead
of making a contract, a bargain, or covenant, with it. The common
democratic doctrine on this point is right, if by people is understood
the organic people attached to a sovereign domain, not the people as
individuals or as a floating or nomadic multitude. By people in the
political sense, Cicero, and St. Augustine after him, understood the
people as the republic, organized in reference to the common or public
good. With this understanding, the sovereignty persists in the people,
and they retain the supreme authority over the government. The powers
delegated are still the powers of the sovereign delegating them, and
may be modified, altered, or revoked, as the sovereign judges proper.
The nation does not, and cannot abdicate or delegate away its own
sovereignty, for sovereign it is, and cannot but be, so long as it
remains a nation not subjected to another nation.
By the imperial constitution of the French government, the imperial
power is vested in Napoleon III., and made hereditary in his family, in
the male line of his legitimate descendants. This is legal, but the
nation has not parted with its sovereignty or bound itself by contract
forever to a Napoleonic dynasty. Napoleon holds the imperial power "by
the grace of God and the will of the nation," which means simply that
he holds his authority from God, through the French people, and is
bound to exercise it according to the law of God and the national will.
The nation is as competent to revoke this constitution as the
legislature is to repeal any law it is competent to enact, and in doing
so breaks no contract, violates no right, for Napoleon and his
descendants hold their right to the imperial throne subject to the
national will from which it is derived. In case the nation should
revoke the powers delegated, he or they would have no more valid claim
to the throne than have the Bourbons, whom the nation has unmistakably
dismissed from its service.
The only point here to be observed is, that the change must be by the
nation itself, in its sovereign capacity; not by a mob, nor by a part
of the nation conspiring, intriguing, or rebelling, without any
commission from the nation. The first Napoleon governed by a legal
title, but he was never legally dethroned, and the government of the
Bourbons, whether of the elder branch or the younger, was never a legal
government, for the Bourbons had lost their original rights by the
election of the first Napoleon, and never afterwards had the national
will in their favor. The republic of 1848 was legal, in the sense that
the nation acquiesced in it as a temporary necessity; but hardly
anybody believed in it or wanted it, and the nation accepted it as a
sort of locum tenens, rather than willed or ordained it. Its overthrow
by the coup d'etat may not be legally defensible, but the election of
Napoleon III. condoned the illegality, if there was any, and gave the
emperor a legal title, that no republican, that none but a despot or a
no-government man can dispute. As the will of the nation, in so far as
it contravenes not the law of God or the law of nature, binds every
individual of the nation, no individual or number of individuals has,
or can have, any right to conspire against him, or to labor to oust him
from his place, till his escheat has been pronounced by the voice of
the nation. The state, in its sovereign capacity, willing it, is the
only power competent to revoke or to change the form and constitution
of the imperial government. The same must be said of every nation that
has a lawful government; and this, while it preserves the national
sovereignty, secures freedom of progress, condemns all sedition,
conspiracy, rebellion, revolution, as does the Christian law itself.