THE
AMERICAN REPUBLIC: CHAPTER 4
ITS
CONSTITUTION TENDENCIES AND DESTINY
Orestes A. Brownson LL. D
TABLE OF CONTENTS
ORIGIN OF GOVERNMENT—CONTINUED
II. Rejecting the patriarchal theory as untenable, and shrinking from
asserting the divine origin of government, lest they should favor
theocracy, and place secular society under the control of the clergy,
and thus disfranchise the laity, modern political writers have sought
to render government purely human, and maintain that its origin is
conventional, and that it is founded in compact or agreement. Their
theory originated in the seventeenth century, and was predominant in
the last century and the first third of the present. It has been, and
perhaps is yet, generally accepted by American politicians and
statesmen, at least so far as they ever trouble their heads with the
question at all, which it must be confessed is not far.
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?
But suppose the state of nature, even suppose that men, by some miracle
or other, can get out of it and found civil society, the origin of
government as authority in compact is not yet established. According
to the theory, the rights of civil society are derived from the rights
of the individuals who form or enter into the compact. But individuals
cannot give what they have not, and no individual has in himself the
right to govern another. By the law of nature all men have equal
rights, are equals, and equals have no authority one over another. Nor
has an individual the sovereign right even to himself, or the right to
dispose of himself as he pleases. Man is not God, independent,
self-existing and self-sufficing. He is dependent, and dependent not
only on his Maker, but on his fellow-men, on society, and even on
nature, or the material world. That on which he depends in the measure
in which be depends on it, contributes to his existence, to his life,
and to his well-being, and has, by virtue of its contribution, a right
in him and to him; and hence it is that nothing is more painful to the
proud spirit than to receive a favor that lays him under an obligation
to another. The right of that on which man depends, and by communion
with which he lives, limits his own right over himself.
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.
But however this may be, there certainly must be excluded from the
compact or obligation to obey the government created by it all the
women of a nation, all the children too young to be capable of giving
their consent, and all who are too ignorant, too weak of mind to be
able to understand the terms of the contract. These several classes
cannot be less than three-fourths of the population of any country.
What is to be done with them? Leave them without government? Extend
the power of the government over them? By what right? Government
derives its just powers from the consent of the governed, and that
consent they have not given. Whence does one-fourth of the population
get its right to govern the other three-fourths?
But what is to be done with the rights of minorities? Is the rule of
unanimity to be insisted on in the convention and in the government,
when it goes into operation? Unanimity is impracticable, for where
there are many men there will be differences of opinion. The rule of
unanimity gives to each individual a veto on the whole proceeding,
which was the grand defect of the Polish constitution. Each member of
the Polish Diet, which included the whole body of the nobility, had an
absolute veto, and could, alone, arrest the whole action of the
government. Will you substitute the rule of the majority, and say the
majority must govern? By what right? It is agreed to in the
convention. Unanimously, or only by a majority? The right of the
majority to have their will is, on the social compact theory, a
conventional right, and therefore cannot come into play before the
convention is completed, or the social compact is framed and accepted.
How, in settling the terms of the compact, will you proceed? By
majorities? But suppose a minority objects, and demands two-thirds,
three-fourths, or four-fifths, and votes against the majority rule,
which is carried only by a simple plurality of votes, will the
proceedings of the convention bind the dissenting minority? What gives
to the majority the right to govern the minority who dissent from its
action?
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.
But this is not all. The individual is always the equal of himself,
and if the government derives its powers from the consent of the
governed, he governs in the government, and parts with none of his
original sovereignty. The government is not his master, but his agent,
as the principal only delegates, not surrenders, his rights and powers
to the agent. He is free at any time he pleases to recall the powers
he has delegated, to give new instructions, or to dismiss him. The
sovereignty of the individual survives the compact, and persists
through all the acts of his agent, the government. He must, then, be
free to withdraw from the compact whenever be judges it advisable.
Secession is perfectly legitimate if government is simply a contract
between equals. The disaffected, the criminal, the thief the
government would send to prison, or the murderer it would hang, would
be very likely to revoke his consent, and to secede from the state.
Any number of individuals large enough to count a majority among
themselves, indisposed to pay the government taxes, or to perform the
military service exacted, might hold a convention, adopt a secession
ordinance, and declare themselves a free, independent, sovereign state,
and bid defiance to the tax-collector and the provost-marshall, and
that, too, without forfeiting their estates or changing their domicile.
Would the government employ military force to coerce them back to their
allegiance? By what right? Government is their agent, their creature,
and no man owes allegiance to his own agent, or creature.
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.
The origin of government in the Contrat Social supposes the nation to
be a purely personal affair. It gives the government no territorial
status, and clothes it with no territorial rights or jurisdiction. The
government that could so originate would be, if any thing, a barbaric,
not a republican government. It has only the rights conferred on it,
surrendered or delegated to it by individuals, and therefore, at best,
only individual rights. Individuals can confer only such rights as they
have in the supposed state of nature. In that state there is neither
private nor public domain. The earth in that state is not property,
and is open to the first occupant, and the occupant can lay no claim to
any more than he actually occupies. Whence, then, does government
derive its territorial jurisdiction, and its right of eminent domain
claimed by all national governments? Whence its title to vacant or
unoccupied lands? How does any particular government fix its
territorial boundaries, and obtain the right to prescribe who may
occupy, and on what conditions the vacant lands within those
boundaries? Whence does it get its jurisdiction of navigable rivers,
lakes, bays, and the seaboard within its territorial limits, as
appertaining to its domain? Here are rights that it could not have
derived from individuals, for individuals never possessed them in the
so-called state of nature. The concocters of the theory evidently
overlooked these rights, or considered them of no importance. They
seem never to have contemplated the existence of territorial states, or
the division of mankind into nations fixed to the soil. They seem not
to have supposed the earth could be appropriated; and, indeed, many of
their followers pretend that it cannot be, and that the public lands of
a nation are open lands, and whoso chooses may occupy them, without
leave asked of the national authority or granted. The American people
retain more than one reminiscence of the nomadic and predatory habits
of their Teutonic or Scythian ancestors before they settled on the
banks of the Don or the Danube, on the Northern Ocean, in Scania, or
came in contact with the Graeco-Roman civilization.
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 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.
|
