The American Republic: Its Constitution, Tendencies, and Destiny

by Orestes Augustus Brownson

CHAPTER IV.

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.