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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 the 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 the nation. Hence no nation exists without government; and we never find a savage tribe, however low or degraded, that does not assert 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 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: but let it be remarked by the way, that its necessity does not grow exclusively or chiefly out of the fact that the human race by sin has fallen from its primitive integrity, or original righteousness. The fall asserted by Christian theology, though often misinterpreted, and its effects underrated or exaggerated, is a fact too sadly confirmed by individual experience and universal history; but it is not the cause why government is necessary, though it may be an additional reason for demanding it. Government would have been necessary if man had not sinned, and it is needed for the good as well as for the bad. The law was promulgated in the Garden, while man retained his innocence and remained in the integrity of his nature. 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 fulfilment 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.

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 bands 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, oftenest 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 a 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.

Government is not only that which governs, but that which has the right or 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 defence 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. Treason is not merely a difference in political opinion with the governing authority, but a crime against the sovereign, and a moral wrong, therefore a sin against God, the Founder of the moral Law. Treason, if committed in other Countries, unhappily, has been more frequently termed by our countrymen Patriotism and loaded with honor than branded as a crime, the greatest of crimes, as it is, that human governments have authority to punish. The American people have been chary of the word loyalty, perhaps because they regard it as the correlative of royalty; but loyalty is rather the correlative of law, and is, in its essence, love and devotion to the sovereign authority, however constituted or wherever lodged. It is as necessary, as much a duty, as much a virtue in republics as in monarchies; and nobler examples of the most devoted loyalty are not found in the world's history than were exhibited in the ancient Greek and Roman republics, or than have been exhibited by both men and women in the young republic of the United States. Loyalty is the highest, noblest, and most generous of human virtues, and is the human element of that sublime love or charity which the inspired Apostle tells us is the fulfilment of the law. It has in it the principle of devotion, of self-sacrifice, and is, of all human virtues, that which renders man the most Godlike. There is nothing great, generous, good, or heroic of which a truly loyal people are not capable, and nothing mean, base, cruel, brutal, criminal, detestable, not to be expected of a really disloyal people. Such a people no generous sentiment can move, no love can bind. It mocks at duty, scorns virtue, tramples on all rights, and holds no person, no thing, human or divine, sacred or inviolable. 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 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 the 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. Whence does government derive its right to govern? What is the origin and ground of sovereignty? This question is fundamental and without a true answer to it politics cannot be a science, and there can be no scientific statesmanship. Whence, then, comes the sovereign right to govern?

ORIGIN OF GOVERNMENT

Government is both a fact and a right. Its origin as a fact, is simply a question of history; its origin as a right or authority to govern, is a question of ethics. Whether a certain territory and its population are a sovereign state or nation, or not--whether the actual ruler of a country is its rightful ruler, or not--is to be determined by the historical facts in the case; but whence the government derives its right to govern, is a question that can be solved only by philosophy, or, philosophy failing, only by revelation.

Political writers, not carefully distinguishing between the fact and the right, have invented various theories as to the origin of government, among which may be named--

Historically, all governments have, in some sense, been developed from the patriarchal, as all society has been developed from the family. Even those governments, like the ancient Roman and the modern feudal, which seem to be founded on landed property, may be traced back to a patriarchal origin. The patriarch is sole proprietor, and the possessions of the family are vested in him, and he governs as proprietor as well as father. In the tribe, the chief is the proprietor, and in the nation, the king is the landlord, and holds the domain. Hence, the feudal baron is invested with his fief by the suzerain, holds it from him, and to him it escheats when forfeited or vacant. All the great Asiatic kings of ancient or modern times hold the domain and govern as proprietors; they have the authority of the father and the owner; and their subjects, though theoretically their children, are really their slaves.

In Rome, however, the proprietary right undergoes an important transformation. The father retains all the power of the patriarch within his family, the patrician in his gens or house, but, outside of it, is met and controlled by the city or state. The heads of houses are united in the senate, and collectively constitute and govern the state. Yet, not all the heads of houses have seats in the senate, but only the tenants of the sacred territory of the city, which has been surveyed and marked by the god Terminus. Hence the great plebeian houses, often richer and nobler than the patrician, were excluded from all share in the government and the honors of the state, because they were not tenants of any portion of the sacred territory. There is here the introduction of an element which is not patriarchal, and which transforms the patriarch or chief of a tribe into the city or state, and founds the civil order, or what is now called civilization. The city or state takes the place of the private proprietor, and territorial rights take the place of purely personal rights.

In the theory of the Roman law, the land owns the man, not the man the land. When land was transferred to a new tenant, the practice in early times was to bury him in it, in order to indicate that it took possession of him, received, accepted, or adopted him; and it was only such persons as were taken possession of, accepted or adopted by the sacred territory or domain that, though denizens of Rome, were citizens with full political rights. This, in modern language, means that the state is territorial, not personal, and that the citizen appertains to the state, not the state to the citizen. Under the patriarchal, the tribal, and the Asiatic monarchical systems, there is, properly speaking, no state, no citizens, and the organization is economical rather than political. Authority--even the nation itself--is personal, not territorial. The patriarch, the chief of the tribe, or the king, is the only proprietor. Under the Graeco-Roman system all this is transformed. The nation is territorial as well as personal, and the real proprietor is the city or state. Under the Empire, no doubt, what lawyers call the eminent domain was vested in the emperor, but only as the representative and trustee of the city or state.

When or by what combination of events this transformation was effected, history does not inform us. The first-born of Adam, we are told, built a city, and called it after his son Enoch; but there is no evidence that it was constituted a municipality. The earliest traces of the civil order proper are found in the Greek and Italian republics, and its fullest and grandest developments are found in Rome, imperial as well as republican. It was no doubt preceded by the patriarchal system, and was historically developed from it, but by way of accretion rather than by simple explication. It has in it an element that, if it exists in the patriarchal constitution, exists there only in a different form, and the transformation marks the passage from the economical order to the political, from the barbaric to the civil constitution of society, or from barbarism to civilization.

The word civilization stands opposed to barbarism, and is derived from civitas--city or state. The Greeks and Romans call all tribes and nations in which authority is vested in the chief, as distinguished from the state, barbarians. The origin of the word barbarian, barbarus, or ........, is unknown, and its primary sense can be only conjectured. Webster regards its primary sense as foreign, wild, fierce; but this could not have been its original sense; for the Greeks and Romans never termed all foreigners barbarians, and they applied the term to nations that had no inconsiderable culture and refinement of manners, and that had made respectable progress in art and sciences--the Indians, Persians, Medians, Chaldeans, and Assyrians. They applied the term evidently in a political, not an ethical or an aesthetical sense, and as it would seem to designate a social order in which the state was not developed, and in which the nation was personal, not territorial, and authority was held as a private right, not as a public trust, or in which the domain vests in the chief or tribe, and not in the state; for they never term any others barbarians.

All tribes and nations in which the patriarchal system remains, or is developed without transformation, are barbaric, and really so regarded by all Christendom. In civilized nations the patriarchal authority is transformed into that of the city or state, that is, of the republic; but in all barbarous nations it retains its Private and personal character. The nation is only the family or tribe, and is called by the name of its ancestor, founder, or chief, not by a geographical denomination. Race has not been supplanted by country; they are a people, not a state. They are not fixed to the soil, and though we may find in them ardent love of family, the tribe, or the chief, we never find among them that pure love of country or patriotism which so distinguished the Greeks and Romans, and is no less marked among modern Christian nations. They have a family, a race, a chief or king, but no patria, or country. The barbarians who overthrew the Roman Empire, whether of the West or the East, were nations, or confederacies of nations, but not states. The nation with them was personal, not territorial. Their country was wherever they fed their flocks and herds, pitched their tents, and encamped for the night. There were Germans, but no German state, and even to-day the German finds his "father-land" wherever the German speech is spoken. The Polish, Sclavonian, Hungarian, Illyrian, Italian, and other provinces held by German states, in which the German language is not the mother-tongue, are excluded from the Germanic Confederation. The Turks, or Osmanlis, are a race, not a state, and are encamped, not settled, on the site of the Eastern Roman or Greek Empire.

Even when the barbaric nations have ceased to be nomadic, pastoral, or predatory nations, as the ancient Assyrians and Persians or modern Chinese, and have their geographical boundaries, they have still no state, no country. The nation defines the boundaries, not the boundaries the nation. The nation does not belong to the territory, but the territory to the nation or its chief. The Irish and Anglo-Saxons, in former times, held the land in gavelkind, and the territory belonged to the tribe or sept; but if the tribe held it as indivisible, they still held it as private property. The shah of Persia holds the whole Persian territory as private property, and the landholders among his subjects are held to be his tenants. They hold it from him, not from the Persian state.

Feudalism, established in Western Europe after the downfall of the Roman Empire, however modified by the Church and by reminiscences of Graeco-Roman civilization retained by the conquered, was a barbaric constitution. The feudal monarch, as far as he governed at all, governed as proprietor or landholder, not as the representative of the commonwealth. Under feudalism there are estates, but no state. The king governs as an estate, the nobles hold their power as an estate, and the commons are represented as an estate. The whole theory of power is, that it is an estate; a private right, not a public trust. It is not without reason, then that the common sense of civilized nations terms the ages when it prevailed in Western Europe barbarous ages.

It may seem a paradox to class democracy with the barbaric constitutions, and yet as it is defended by many stanch democrats, especially European democrats and revolutionists, and by French and Germans settled in our own country, it is essentially barbaric and anti-republican. The characteristic principle of barbarism is, that power is a private or personal right, and when democrats assert that the elective franchise is a natural right of man, or that it is held by virtue of the fact that the elector is a man, they assert the fundamental principle of barbarism and despotism. This says nothing in favor of restricted suffrage, or against what is called universal suffrage. To restrict suffrage to property-holders helps nothing, theoretically or practically. Property has of itself advantages enough, without clothing its holders with exclusive political rights and privileges, and the laboring classes any day are as trustworthy as the business classes. The wise statesman will never restrict suffrage, or exclude the poorer and more numerous classes from all voice in the government of their country. General suffrage is wise, and if Louis Philippe had had the sense to adopt it, and thus rally the whole nation to the support of his government, he would never have had to encounter the revolution of 1848. The barbarism, the despotism, is not in universal suffrage, but in defending the elective franchise as a private or personal right. It is not a private, but a political right, and, like all political rights, a public trust. Extremes meet, and thus it is that men who imagine that they march at the head of the human race and lead the civilization of the age, are really in principle retrograding to the barbarism of the past, or taking their place with nations on whom the light of civilization has never yet dawned. All is not gold that glisters.

The characteristic of barbarism is, that it makes all authority a private or personal right; and the characteristic of civilization is, that it makes it a public trust. Barbarism knows only persons; civilization asserts and maintains the state. With barbarians the authority of the patriarch is developed simply by way of explication; in civilized states it is developed by way of transformation. Keeping in mind this distinction, it may be maintained that all systems of government, as a simple historical fact, have been developed from the patriarchal. The patriarchal has preceded them all, and it is with the patriarchal that the human race has begun its career. The family or household is not a state, a civil polity, but it is a government, and, historically considered, is the initial or inchoate state as well as the initial or inchoate nation. But its simple direct development gives us barbarism, or what is called Oriental despotism, and which nowhere exists, or can exist, in Christendom. It is found only in pagan and Mohammedan nations; Christianity in the secular order is republican, and continues and completes the work of Greece and Rome. It meets with little permanent success in any patriarchal or despotic nation, and must either find or create civilization, which has been developed from the patriarchal system by way of transformation.

But, though the patriarchal system is the earliest form of government, and all governments have been developed or modified from it, the right of government to govern cannot be deduced from the right of the father to govern his children, for the parental right itself is not ultimate or complete. All governments that assume it to be so, and rest on it as the foundation of their authority, are barbaric or despotic, and, therefore, without any legitimate authority. The right to govern rests on ownership or dominion. Where there is no proprietorship, there is no dominion; and where there is no dominion, there is no right to govern. Only he who is sovereign proprietor is sovereign lord.

Property, ownership, dominion rests on creation. The maker has the right to the thing made. He, so far as he is sole creator, is sole proprietor, and may do what he will with it. God is sovereign lord and proprietor of the universe because He is its sole creator. He hath the absolute dominion, because He is absolute maker. He has made it, He owns it; and one may do what he will with his own. His dominion is absolute, because He is absolute creator, and He rightly governs as absolute and universal lord; yet is He no despot, because He exercises only His sovereign right, and His own essential wisdom, goodness, justness, rectitude, and immutability, are the highest of all conceivable guaranties that His exercise of His power will always be right, wise, just, and good. The despot is a man attempting to be God upon earth, and to exercise a usurped power. Despotism is based on, the parental right, and the parental right is assumed to be absolute. Hence, your despotic rulers claim to reign, and to be loved and worshipped as gods. Even the Roman emperors, in the fourth and fifth centuries, were addressed as divinities; and Theodosius the Great, a Christian, was addressed as "Your Eternity," Eternitas vestras--so far did barbarism encroach on civilization, even under Christian emperors.

The right of the father over his child is an imperfect right, for he is the generator, not the creator of his child. Generation is in the order of second causes, and is simply the development or explication of the race. The early Roman law, founded on the confusion of generation with creation, gave the father absolute authority over the child--the right of life and death, as over his servants or slaves; but this was restricted under the Empire, and in all Christian nations the authority of the father is treated, like all power, as a trust. The child, like the father himself, belongs to the state, and to the state the father is answerable for the use he makes of his authority. The law fixes the age of majority, when the child is completely emancipated; and even during his nonage, takes him from the father and places him under guardians, in case the father is incompetent to fulfil or grossly abuses his trust. This is proper, because society contributes to the life of the child, and has a right as well as an interest in him. Society, again, must suffer if the child is allowed to grow up a worthless vagabond or a criminal; and has a right to intervene, both in behalf of itself and of the child, in case his parents neglect to train him up in the nurture and admonition of the Lord, or are training him up to be a liar, a thief, a drunkard, a murderer, a pest to the community. How, then, base the right of society on the right of the father, since, in point of fact, the right of society is paramount to the right of the parent?

But even waiving this, and granting what is not the fact that the authority of the father is absolute, unlimited, it cannot be the ground of the right of society to govern. Assume the parental right to be perfect and inseparable from the parental relation, it is no right to govern where no such relation exists. Nothing true, real, solid in government can be founded on what Carlyle calls a "sham." The statesman, if worthy of the name, ascertains and conforms to the realities, the verities of things; and all jurisprudence that accepts legal fictions is imperfect, and even censurable. The presumptions or assumptions of law or politics must have a real and solid basis, or they are inadmissible. How, from the right of the father to govern his own child, born from his loins, conclude his right to govern one not his child? Or how, from my right to govern my child, conclude the right of society to found the state, institute government, and exercise political authority over its members?

ORIGIN OF GOVERNMENT--CONTINUED.

The moral theologians of the Church have generally spoken of government as a social pact or compact, and explained the reciprocal rights and obligations of subjects and rulers by the general law of contracts; but they have never held that government originates in a voluntary agreement between the people and their rulers, or between the several individuals composing the community. They have never held that government has only a conventional origin or authority. They have simply meant, by the social compact, the mutual relations and reciprocal rights and duties of princes and their subjects, as implied in the very existence and nature of civil society. Where there are rights and duties on each side, they treat the fact, not as an agreement voluntarily entered into, and which creates them, but as a compact which binds alike sovereign and subject; and in determining whether either side has sinned or not, they inquire whether either has broken the terms of the social compact. They were engaged, not with the question whence does government derive its authority, but with its nature, and the reciprocal rights and duties of governors and the governed. The compact itself they held was not voluntarily formed by the people themselves, either individually or collectively, but was imposed by God, either immediately, or mediately, through the law of nature. "Every man," says Cicero, "is born in society, and remains there." They held the same, and maintained that every one born into society contracts by that fact certain obligations to society, and society certain obligations to him; for under the natural law, every one has certain rights, as life, liberty, and the pursuit of happiness, and owes certain duties to society for the protection and assistance it affords him.

But modern political theorists have abused the phrase borrowed from the theologians, and made it cover a political doctrine which they would have been the last to accept. These theorists or political speculators have imagined a state of nature antecedently to civil society, in which men lived without government, law, or manners, out of which they finally came by entering into a voluntary agreement with some one of their number to be king and to govern them, or with one another to submit to the rule of the majority. Hobbes, the English materialist, is among the earliest and most distinguished of the advocates of this theory. He held that men lived, prior to the creation of civil society, in a state of nature, in which all were equal, and every one had an equal right to every thing, and to take any thing on which he could lay his hands and was strong enough to hold. There was no law but the will of the strongest. Hence, the state of nature was a state of continual war. At length, wearied and disgusted, men sighed for peace, and, with one accord, said to the tallest, bravest, or ablest among them: Come, be our king, our master, our sovereign lord, and govern us; we surrender our natural rights and our natural independence to you, with no other reserve or condition than that you maintain peace among us, keep us from robbing and plundering one another or cutting each other's throats.

Locke followed Hobbes, and asserted virtually the same theory, but asserted it in the interests of liberty, as Hobbes had asserted it in the interests of power. Rousseau, a citizen of Geneva, followed in the next century with his Contrat Social, the text-book of the French revolutionists--almost their Bible--and put the finishing stroke to the theory. Hitherto the compact or agreement had been assumed to be between the governor and the governed; Rousseau supposes it to be between the people themselves, or a compact to which the people are the only parties. He adopts the theory of a state of nature in which men lived, antecedently to their forming themselves into civil society, without government or law. All men in that state were equal, and each was independent and sovereign proprietor of himself. These equal, independent, sovereign individuals met, or are held to have met, in convention, and entered into a compact with themselves, each with all, and all with each, that they would constitute government, and would each submit to the determination and authority of the whole, practically of the fluctuating and irresponsible majority. Civil society, the state, the government, originates in this compact, and the government, as Mr. Jefferson asserts in the Declaration of American Independence, "derives its just powers from the consent of the governed."

This theory, as so set forth, or as modified by asserting that the individual delegates instead of surrendering his rights to civil society, was generally adopted by the American people in the last century, and is still the more prevalent theory with those among them who happen to have any theory or opinion on the subject. It is the political tradition of the country. The state, as defined by the elder Adams, is held to be a voluntary association of individuals. Individuals create civil society, and may uncreate it whenever they judge it advisable. Prior to the Southern Rebellion, nearly every American asserted with Lafayette, "the sacred right of insurrection" or revolution, and sympathized with insurrectionists, rebels, and revolutionists, wherever they made their appearance. Loyalty was held to be the correlative of royalty, treason was regarded as a virtue, and traitors were honored, feasted, and eulogized as patriots, ardent lovers of liberty, and champions of the people. The fearful struggle of the nation against a rebellion which threatened its very existence may have changed this.

That there is, or ever was, a state of nature such as the theory assumes, may be questioned. Certainly nothing proves that it is, or ever was, a real state. That there is a law of nature is undeniable. All authorities in philosophy, morals, politics, and jurisprudence assert it; the state assumes it as its own immediate basis, and the codes of all nations are founded on it; universal jurisprudence, the jus qentium of the Romans, embodies it, and the courts recognize and administer it. It is the reason and conscience of civil society, and every state acknowledges its authority. But the law of nature is as much in force in civil society as out of it. Civil law does not abrogate or supersede natural law, but presupposes it, and supports itself on it as its own ground and reason. As the natural law, which is only natural justice and equity dictated by the reason common to all men, persists in the civil law, municipal or international, as its informing soul, so does the state of nature persist in the civil state, natural society in civil society, which simply develops, applies, and protects it. Man in civil society is not out of nature, but is in it--is in his most natural state; for society is natural to him, and government is natural to society, and in some form inseparable from it. The state of nature under the natural law is not, as a separate state, an actual state, and never was; but an abstraction, in which is considered, apart from the concrete existence called society, what is derived immediately from the natural law. But as abstractions have no existence, out of the mind that forms them, the state of nature has no actual existence in the world of reality as a separate state.

But suppose with the theory the state of nature to have been a real and separate state, in which men at first lived, there is great difficulty in understanding how they ever got out of it. Can a man divest himself of his nature, or lift himself above it? Man is in his nature, and inseparable from it. If his primitive state was his natural state, and if the political state is supernatural, preternatural, or subnatural, how passed he alone, by his own unaided powers, from the former to the latter? The ancients, who had lost the primitive tradition of creation, asserted, indeed, the primitive man as springing from the earth, and leading a mere animal life, living in eaves or hollow trees, and feeding on roots and nuts, without speech, without science, art, law, or sense of right and wrong; but prior to the prevalence of the Epicurean philosophy, they never pretended, that man could come out of that state alone by his own unaided efforts. They ascribed the invention of language, art, and science, the institution of civil society, government, and laws, to the intervention of the gods. It remained for the Epicureans--who, though unable, like their modern successors, the Positivists or Developmentists, to believe in a first cause, believed in effects without causes, or that things make or take care of themselves--to assert that men could, by their own unassisted efforts, or by the simple exercise of reason, come out of the primitive state, and institute what in modern times is called civilta, civility, or civilization.

The partisans of this theory of the state of nature from which men have emerged by the voluntary and deliberate formation of civil society, forget that if government is not the sole condition, it is one of the essential conditions of progress. The only progressive nations are civilized or republican nations. Savage and barbarous tribes are unprogressive. Ages on ages roll over them without changing any thing in their state; and Niebuhr has well remarked with others, that history records no instance of a savage tribe or people having become civilized by its own spontaneous or indigenous efforts. If savage tribes have ever become civilized, it has been by influences from abroad, by the aid of men already civilized, through conquest, colonies, or missionaries; never by their own indigenous efforts, nor even by commerce, as is so confidently asserted in this mercantile age. Nothing in all history indicates the ability of a savage people to pass of itself from the savage state to the civilized. But the primitive man, as described by Horace in his Satires, and asserted by Hobbes, Locke, Rousseau, and others, is far below the savage. The lowest, most degraded, and most debased savage tribe that has yet been discovered has at least some rude outlines or feeble reminiscences of a social state, of government, morals, law, and religion, for even in superstition the most gross there is a reminiscence of true religion; but the people in the alleged state of nature have none.

The advocates of the theory deceive themselves by transporting into their imaginary state of nature the views, habits, and capacities of the civilized man. It is, perhaps, not difficult for men who have been civilized, who have the intelligence, the arts, the affections, and the habits of civilization, if deprived by some great social convulsion of society, and thrown back on the so-called state of nature, or cast away on some uninhabited island in the ocean, and cut off from all intercourse with the rest of mankind, to reconstruct civil society, and re-establish and maintain civil government. They are civilized men, and bear civil society in their own life. But these are no representatives of the primitive man in the alleged state of nature. These primitive men have no experience, no knowledge, no conception even of civilized life, or of any state superior to that in which they have thus far lived. How then can they, since, on the theory, civil society has no root in nature, but is a purely artificial creation, even conceive of civilization, much less realize it?

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

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

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

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

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

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

The convention not only is not a fact, but individuals have no authority without society, to meet in convention, and enter into the alleged compact, because they are not independent, sovereign individuals. But pass over this: suppose the convention, suppose the compact, it must still be conceded that it binds and can bind only those who voluntarily and deliberately enter into it. This is conceded by Mr. Jefferson and the American Congress of 1776, in the assertion that government derives its "just powers from the consent of the governed." This consent, as the matter is one of life and death, must be free, deliberate, formal, explicit, not simply an assumed, implied, or constructive consent. It must be given personally, and not by one for another without his express authority.

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

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

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

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

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

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

Yet mankind are divided into nations, and all civilized nations are fixed to the soil. The territory is defined, and is the domain of the state, from which all private proprietors hold their title-deeds. Individual proprietors hold under the state, and often hold more, than they occupy; but it retains in all private estates the eminent domain, and prohibits the alienation of land to one who is not a citizen. It defends its domain, its public unoccupied lands, 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.

ORIGIN OF GOVERNMENT--CONTINUED.

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 head 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.

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