JMC : The State and the Church / by Ryan and Millar

7. Our Medieval Inheritance of Liberty

by Rev. Moorhouse F. X. Millar, S.J.

IN looking for the philosophy of government to which we, in this country, are committed by our past as a nation, we should naturally turn to the Declaration of Independence and the Constitution. For as Hamilton said "After all, the instrument must speak for itself." But then he added "Yet, to candid minds, the contemporary explanation of it, by men who had a perfect opportunity of knowing the view of its framers, must operate as weighty collateral reason"{1} in the matter of explaining its construction. Because of the failure to adapt this last method with all the care and accuracy which the subject demanded, many very erroneous notions regarding the principles involved in these two documents have been widely fostered, especially by writers of textbooks. In the endeavor to maintain that ours "was an entirely new conception of governmental authority," even judicious thinkers such as David Jayne Hill find themselves reduced to fall back on some statement or other to the effect that "It was foreshadowed by a philosophy of enlightenment that disclosed the insolence and usurpation of power unregulated by law."{2} This manner of accounting for the origin of American ideas on government only strengthens the position of the radical economic determinist who with Charles A. Beard will insist that "in the absence of a critical analysis of legal evolution, all sorts of vague abstractions dominate most of the thinking that is done in the field of law."{3} The conclusion to be drawn from this observation is, of course, that we should emulate German savants by taking over their ideas and principles and those of their English and American disciples. Whereas if more pains had been devoted to a thorough study of the writings of those who framed our great legal instruments it would have been discovered that their ideas were not so much new as well tried and sound beyond any known to the "modernism" of the present age.

Of the Declaration of Independence Jefferson himself wrote "With respect to our rights, and the acts of the British government contravening those rights there was but one opinion on this side of the water. All American Whigs thought alike on these subjects. When forced, therefore, to resort to arms for redress, an appeal to the tribunal of the world was deemed proper for our justification. This was the object of the Declaration of Independence. Not to find out new principles, or new arguments, never before thought of, not merely to say things which had never been said before; but to place before mankind the common sense of the subject in terms so plain and firm as to command their assent and to justify ourselves in the independent stand we are compelled to take. Neither aiming at originality of principle or sentiment, nor yet copied from any particular or previous writing, it was intended to be an expression of the American mind, and to give to that expression the proper tone and spirit called for by the occasion. All its authority rests then on the harmonizing sentiments of the day, whether expressed in conversation, in letters, printed essays, or in the elementary books of public right, as Aristotle, Cicero, Locke, Sidney, etc. (sic.)"{4}

That "all American Whigs thought alike on these subjects" is clearly borne out by Hamilton in his controversy with Dr. Seabury during the course of the two years previous to the framing of the Declaration. "Apply yourself," he urges upon his adversary "without delay, to the study of the law of nature. I would recommend to your perusal, Grotius, Puffendorf, Locke, Montesquieu and Burlemaqui. I might mention other (sic) excellent writers on this subject; but if you attend diligently to these you will not require any others.

"There is so strong a similitude between your political principles and those maintained by Mr. Hobbes, that, in judging from them, a person might very easily mistake you for a disciple of his. His opinion was exactly coincident with yours, relative to man in a state of nature. He held as you do, that he was then perfectly free from all restraint of law and government. Moral obligation, according to him, is derived from the introduction of civil society; and there is no virtue but what is purely artificial, the mere contrivance of political for the maintenance of social intercourse. But the reason he ran into this absurd and impious doctrine was, that he disbelieved the existence of an intelligent, superintending principle, who is the governor, and will be the final judge, of the universe.

"To grant that there is a supreme Intelligence who rules the world and has established laws to regulate the actions of His creatures, and still to assert that man, in a state of nature, may be considered as perfectly free from all restraints of law and government appears to a common understanding, altogether irreconcilable.

"Good and wise men, in all ages, have embraced a very dissimilar theory. They have supposed that the Deity from the relations we stand in to Himself and to each other, has constituted an eternal and immutable law, which is indispendably obligatory upon all mankind, prior to any human institution whatever.

"This is what is called the law of nature 'which being coeval with mankind, and dictated by God himself, is, of course superior in obligations to any other. It is binding over all the globe, in all countries, and at all times. No human laws are of any validity, if contrary to this; and such of them as are valid derive all their authority mediately or immediately, from this original' -- Blackstone.

"Upon this law depend the natural rights of mankind: the Supreme Being gave existence to man, together with the means of preserving and beautifying that existence. He endowed him with rational faculties, by the help of which to discern and pursue such things as were consistent with his duty and interest; and invested him with an inviolable right to personal liberty and personal safety. Hence, in a state of nature, no man had any moral power to deprive another of his life, limbs and property, or liberty; nor the least authority to command or exact obedience from him, except that which arose from the ties of consanguinity. Hence, also, the origin of all civil government, justly established, must be a voluntary compact between the rulers and the ruled, and must be liable to such limitations as are necessary for the security of the absolute rights of the latter; for what original title can any man, or set of men, have to govern others, except their own consent? To usurp dominion over a people in their own despite, or to grasp at a more extensive power than they are willing to intrust, is to violate that law of nature, which gives every man a right to his personal liberty, and can, therefore, confer no obligation to obedience."

"The principle aim of society is to protect individuals in the enjoyment of those absolute rights which were vested in them by the immutable laws of nature, but which could not be preserved in peace without that mutual assistance and intercourse which is gained by the institution of friendly and social communities. Hence it follows, that the first and primary end of human laws is to maintain and regulate these absolute rights of individuals." (Blackstone.)

"If we examine the pretensions of Parliament by this criterion which is evidently a good one, we shall presently detect their injustice. First, they are subversive of our natural liberty, because an authority is assumed over us which we by no means assent to. And secondly, they divest us of that moral security for our lives and properties, which we are entitled to, and which it is the primary end of society to bestow. For such security can never exist while we have no part in making the laws that are to bind us, and while it may be the interest of our uncontrolled legislators to oppress us as much as possible." . . .{5}

"As to the degrees and modifications of that subordination which is due to the parent state, these must depend upon other things besides the mere act of emigration to inhabit or settle distant country. These must be ascertained by the spirit of the constitution of the mother country, by the compacts for the purpose of colonizing and more especially by the law of nature and that supreme law of every society -- its own happiness."{6}

. . . "The dependence of the colonies on Great Britain is an ambiguous and equivocal phrase. It may either mean dependence on the people of Great Britian or on the King. In the former sense, it is absurd and unaccountable; in the latter it is just and rational."{7}.

"The right of Parliament to legislate for us cannot be accounted for upon any reasonable grounds. The constitution of Great Britain is very properly called a limited monarchy, the people having reserved to themselves a share in the legislature, as a check upon the regal authority, to prevent its degenerating into despotism and tyranny. The very aim and intention of the democratical part, or the House of Commons, is to secure the rights of the people. Its very being depends upon those rights. Its whole power is derived from them and must be terminated by them."{8}.

"When we ascribe to the British House of Commons a juris. diction over the colonies, the scene is entirely reversed.{9} All these kinds of security (which the people of Britain have for the good deportment of their representatives toward them) immediately disappear; no ties of gratitude or interest remain. Interest, indeed, may operate to our prejudice. To oppress us may serve as a recommendation to their constituents, as well as an alleviation of their own incumbrances. The British patriots may, in time, be heard to court the gale of popular favor by boasting their exploits in laying some new imposition on their American vassals, and by that means lessening the burdens of their friends and fellow subjects."{10} Such were the grounds for the resistance to England, first, and finally for declaring the colonies independent. Nor in this is there any trace of Rousseau or of the empty moonshine of the French Enlightenment. It is merely an appeal to "those principles of original justice from whence alone" as Burke said "our title to every thing valuable in society is derived." There is the same distinction between liberty and liberties, between a due and an established order which we have seen to be characteristic of the Medieval theory of government. The natural law is not made a pretext for flying in the face of tradition, but forms the basis for the just claim to such rights as Englishmen had acquired in time, and of which they could not be dispossessed without their consent. Far from condemning the old order, the complaint was that in supporting Parliament in its unwarranted claims to tax the colonies the King was abusing his prerogative. Wilson in his Considerations on the Nature and Extent of the Legislative Authority of the British Parliament called to mind the fact that "sensible that prerogative, or discretionary power of acting where the laws are silent, is absolutely necessary, and that this prerogative is most properly intrusted to the executor of the laws, they (the earlier representatives of the commons) did not oppose the exercise of it, while it was directed towards the accomplishment of its original end: but sensible likewise that the good of the State was this original end, they resisted, with vigor, every arbitary measure repuguant to law, and unsupported by maxims of public freedom or utility,"{11} and again in his Speech at the Convention in Pennsylvania (1775), he said: "The government of Britain . . . was never an arbitrary government: our ancestors were never inconsiderate enough to trust those rights, which God and nature had given them, unreservedly into the hands of their princes. However difficult it may be in other states, to prove an original contract subsisting in any other manner, and on any other conditions, than are naturally and necessarily implied in the very idea of the first institution of a state; it is the easiest thing imaginable, since the revolution of 1688, to prove it in our constitution, and to ascertain some of the material articles, of which it consists. It has been often appealed to: it has been often broken, at least on one part; it has been often renewed: it has often been confirmed: it still subsists in its full force: "it binds the King as much as the meanest subject." (Bolingbroke: Patriot King.) The measures of his power, and the limits, beyond which he cannot extend it, are circumscribed and regulated by the same authority, and, with the same precision, as the measures of the subject's obedience, and the limits beyond which he is under no obligation to practice it, are fixed and ascertained. Liberty is, by the constitution, of equal stability, or equal antiquity, and of equal authority with prerogative. The duties of the King and those of the subject are plainly reciprocal: they can be violated on neither side, unless they are performed on the other. The law is the common standard, by which the excesses of prerogative as well as the excesses of liberty are to be regulated and reformed." Wilson then concludes his speech by declaring that because the King had acted unconstitutionally "the distinction between him and his ministers has been lost: but they have not been raised to his situation: he has sunk to theirs."{12}

Thus the first argument was "that both the letter and the spirit of the British constitution justify . . . resistance."{13} In this connection Suarez had said "What Bellarmine said quoting Navarrus, namely: that the people never so transfer their power to a ruler as not to retain it habitually (habitu) and in such a manner as to be capable of using it in certain cases . . . does not furnish grounds for a people to proclaim itself free at will. For Bellarmine did not say simply that the people retain habitual power to perform whatever acts they please and whenever they please but with great restriction and circumspection he said in certain cases etc., that is to-day, according to the conditions of a previous contract or according to the exigencies of natural justice, for compacts and just agreements must be kept. Therefore if a people transfers power to a king yet retain it in themselves for certain affairs or for things of greater moment, it is allowable for them to use it and to maintain their right. Such a right, however, ought to be sufficiently ascertained either from ancient and authentic documents or from immemorial custom. By the same reason if the King changes his just power into tyranny by abusing it to the manifest detriment of the state the people may have recourse to the natural power of self-defense for they never deprive themselves of this."{14}

In keeping with the proviso laid down by Suarez that "such a right ought to be sufficiently ascertained" both Hamilton and Wilson presented a set of facts in law and history. Each set of facts though different were certainly sufficient to establish the claim that, granting the principle of consent, Parliament had no right to tax the colonies. Wilson in the advertisement to the Considerations on the Legislative Authority of the British Parliament even went so far as to state candidly: "Many will, perhaps, be surprised to see the legislative authority of the British Parliament over the colonies denied in every instance. Those the writer informs, that, when he began this piece, he would probably have been surprised at such an opinion himself; for that it was the result, and not the occasion, of his disquisitions. He entered upon them with a view and expectation of being able to trace some constitutional line between those cases in which we ought, and those in which we ought not, to acknowledge the power of Parliament over us, In the prosecution of his inquiries, he became fully convinced that such a line does not exist; and that there can be no medium between acknowledging and denying that power in all cases."{15}

If from all this we turn to the Declaration of Independence and study its theoretic portion in the light of what we have seen, it will appear clearly that it is in truth not an assertion of "new principles or new arguments" but a declaration of principles rooted in the very foundation of Christian civilization. In Jefferson's splendid synthesis they stand out to the world not merely as the legitimate ground for our separation from England, where they were refused recognition, but as the true Medieval and Christian norm of all just government.

"We hold these truths to be self-evident, that all men are created equal, that they are endowed, by their Creator, with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed, that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute new government laying its foundation on such principles, and organizing its powers in such form as to them shall seem most likely to effect their safety and happiness."

Even the term "happiness" is not to be understood here in the Utilitarian sense of Bentham's "Greatest happiness of the greatest number." Suarez had said "As laws are imposed on the community, so they should be enacted for the good of the community, otherwise they would be in conflict with the due order of things."{16} And this he proved by arguing that since a law is a common rule of moral actions it should have the same first principle as have our moral actions, which is our final end or happiness. In his Considerations Wilson stated, even before Jefferson, that "all men are by nature, equal and free: no one has a right to any authority over another without his consent: all lawful government is founded on the consent of those who are subject to it; such consent was given with a view to ensure and to increase the happiness of the governed, above what that could enjoy in an independent and unconnected state of nature. The consequence is, that the happiness of the society is the first law of every government."{17} We have already how Hamilton repeated this last statement.{18} But Madison, more explicit than either of these, declared: "There is no maxim, in my opinion, which is more liable to be misapplied, and which, therefore, more needs elucidation, than the current one, that the interest of the majority is the political standard of right and wrong. Taking the word 'interest' as synonymous with 'ultimate happiness,' in which sense it is qualified with every necessary moral ingredient, the proposition is no doubt true. But taking it in the popular sense as referring to immediate augmentation of property and wealth nothing can be more false. In the latter, it would be the interest of the majority in every community to despoil and enslave the minority of individuals."{19}

With regard to the preamble to the Declaration of Independence, taken as a whole, Mr. Gaillard Hunt, chief of division of manuscripts, Library of Congress, has instituted an interesting comparison between it and the passage summarizing Bellarmine's doctrine in Filmer's Patriarcha, which we have already seen.{20} After pointing out the fact that there is a copy of this latter work among the books of Jefferson still kept together in the Library of Congress, he remarks very truly that neither in Sidney nor in Locke nor in the writings of any other author with whom Jefferson was familiar is there as complete an epitome of the doctrine he announced. But Mr. Hunt does not seem to have known that Jefferson also wrote the preamble to the Virginia Declaration of Rights. This fact is attested to by Jefferson himself in a letter to Judge Augustus B. Woodward April 3, 1825, where he says "The fact is unquestionable, that the Bill of Rights, and the Constitution of Virginia, were drawn originally by George Mason one of our really great men, and of the first order of greatness. The history of the preamble to the latter is this: I was then at Philadelphia with Congress, and knowing that the Convention of Virginia was engaged in forming a plan of government, I turned my mind to the same subject, and drew a sketch or outline of a constitution, with a preamble, which I sent to Mr. Pendleton, president of the convention, on the mere possibility that it might suggest something worth incorporation into that before the convention. He informed me afterwards by letter, that he received it on the day on which the committee of the whole had reported to the House the plan they had agreed to; that that had been so long in hand, so disputed inch by inch, and the subject of so much altercation and debate; that they were worried with the contentions it had produced, and could not, from mere lassitude, have been induced to open the instrument again; but that being pleased with the preamble to mine, they adopted it in the House, by way of amendment to the report of the committee; and thus my preamble became tacked to the work of George Mason, The Constitution, with the preamble, was passed on the 29th of June, and the Committee of Congress had only the day before that reported to that body the draught of the Declaration of Independence. The fact is, that the preamble was prior in composition to the Declaration; and both having the same object, of justifying our separation from Great Britain, they used necessarily the same materials, and hence their similitude."{21}

As Jefferson wrote this preamble it read: "That all men are born equally free and independent and have certain inherent natural rights, of which they cannot, by any compact, deprive or divest their posterity; among which are the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.

"That power is, by God and nature, vested in, and consequently derived from the people; that magistrates are their trustees and servants, and at all times amenable to them.

"That government is, or ought to be instituted for the common benefit and security of the people, nation or community. Of the various modes and forms of government that is best, which is capable of producing the greatest degree of happiness and safety, and is most effectually secured against the danger of maladministration. And that whenever any government shall be found inadequate, or contrary to these purposes, a majority of the community hath an indubitable, inalienable and indefeasible right to reform, alter or abolish it, in such manner as all be judged most conducive to the public weal."

Now if allowance be made for the extreme view of this last statement with regard to the inalienable rights of a majority,{22} and if the clause "that magistrates are their trustees and servants and at all times amenable to them" be understood as a positive enactment and not as a declaration of natural right, these three paragraphs bear a no less striking resemblance to the passage in Filmer than does the theoretic portion of the Declaration of Independence; and since the author of the one was also the author of the other it is hard to avoid the conclusion that, with a copy of Filmer in his possession, he must have included the latter's summary of Bellarmine among the materials used in the composition of both Declarations. If so then the American denial of the omnicompetence of Parliament is no more than a reassertion of Bellarmine and Suarez' denial of the Divine Right of Kings.

But after all the Declaration merely proclaimed our freedom from tyranny and our right to just rule. The sound enunciation of principles it contains are the major premise to the conclusion "that these United Colonies are, and of right ought to be, free and independent States; that they are absolved from all allegiance to the British Crown, and that all political connection between them and the State of Great Britain is, and ought to be, totally dissolved." But this is not liberty. Burke spoke the mind of all Whigs when he explained that "civil freedom is not, as many have endeavored to persuade you, a thing that lies hid in the depth of abstruse science. It is a blessing and a benefit, not an abstract speculation; and all the just reasoning that can be put upon it is of so coarse a texture as perfectly to suit the ordinary capacities of those who are to enjoy, and of those who are to defend it. Far from any resemblance to those propositions in geometry and metaphysics, which admit no medium, but must be true or false in all their latitude,{23} social and civil freedom, like all other things in common life, are variously mixed and modified, enjoyed in very different degrees, and shaped into an infinite diversity of forms, according to the temper and circumstances of every community. The extreme of liberty (which is its abstract perfection, but its real fault) obtains nowhere, nor ought to obtain anywhere; because extremes as we all know, in every point which relates either to our duties or satisfactions in life, are destructive both to virtue and enjoyment. Liberty, too, must be limited in order to be possessed."{24} The truth of this was fully displayed by the condition that prevailed in the Colonies at the cessation of hostilities. While war lasted they acted more or less as one; but with this common motive gone and with the former bond of British rule now removed, the separate Colonies, none of which had ever acted in the capacity of an independent sovereign State, threatened to dissolve into anarchy. Some form of common government was clearly necessary. But the situation was new, and in the same sense as Burke declared in his speech at Bristol that "in a discordancy of sentiments it is better to look to the nature of things than to the humors of men,"{25} Washington, at the opening of the convention, when some of the members were advocating half measures as more likely to meet the approval of the people than any thoroughgoing reform, saved the chances for "liberty connected with order"{26} by his bold and characteristic remark: "It is too probable that no plan we propose will be adopted. Perhaps another dreadful conflict is to be sustained. If to please the people, we offer what we ourselves disapprove, how can we afterwards defend our work? Let us raise a standard to which the wise and the honest can repair. The event is in the hand of God." That the principles of government proclaimed in the Declaration of Independence were to form the basis of the new order about to be established was a foregone conclusion. But the manner in which they were applied by those who drew up our Constitution involved a philosophic grasp far beyond anything that the mere knowledge of the experience of the past could supply. When defending the work of the Federal Convention before the State Convention of Pennsylvania, Wilson said: "The science even of government itself, seems yet to be almost in its state of infancy. Governments in general have been the result of force, of fraud, and accident. After a period of six thousand years has elapsed since the creation, the United States exhibit to the world, the first instance, as far as we can learn, of a nation unattacked by external force, unconvulsed by domestic insurrections, assembling voluntarily, deliberating fully, and deciding calmly, concerning that system of government under which they would wish that they and their posterity should live. The ancients so enlightened on other subjects were very uninformed with regard to this. They seem scarcely to have had any idea of any other kinds of governments, than the three simple forms, designed by the epithets monarchical, aristocratical and democratical. I know that much and pleasing ingenuity has been exerted in modern times, in drawing entertaining parallels between some of the ancient constitutions and some of the mixed governments that have since existed in Europe. But I much suspect that, on strict examination, the instances of resemblance will be found to be few and weak; to be suggested by the improvements, which in subsequent ages, have been made in government and not to be drawn immediately from the ancient constitutions themselves, as they were intended and understood by those who framed them. . . . One thing is very certain, that the doctrine of representation in government was altogether unknown to the ancients. Now the knowledge and practice of this doctrine is, in my opinion, essential to every system that can possess the qualities of freedom, wisdom and energy. "It is worthy of remark, and the remark may, perhaps, excite some surprise, that representation of the people is not, even at this day, the sole principle of any government in Europe. Great Britain boasts, and she may well boast, of the improvement she has made in politics, by the admission of representation: for the improvement is important as far as it goes; but it by no means goes far enough. Is the executive power of Great Britain founded on representation? This is not pretended. Before the Revolution, many of the Kings claimed to reign by divine right, and others by hereditary right; and even at the Revolution, nothing farther was effected or attempted, than the recognition of certain parts of an original contract, supposed at some remote period to have been made between the King and the people. A contract seems to exclude, rather than to imply delegated power. The judges of Great Britain are appointed by the Crown. The judicial authority, therefore, does not depend upon representation, even in the most remote degree. Does representation prevail in the legislative department of the British government? Even here it does not predominate; though it may serve as a check. The Legislature consists of three branches: the king, the lords and the commons. Of these only the latter are supposed by the constitution to represent the authority of the people. The short analysis clearly shows, to what a narrow corner of the British Constitution the principle of representation is confined. I believe it does not extend farther, if so far, in any other government in Europe. For the American States were reserved the glory and the happiness of diffusing this vital principle through all the constitutional parts of government. Representation is the chain of communication between the people, and those to whom they have committed the exercise of the powers of government. This chain may consist of one or more links; but in all cases it should be sufficiently strong and discernible."{27}

Later after the Constitution had been ratified, Hamilton explained how "in the theory of all the American Constitutions, offices are holden of the government, in other words, of the people through the government. The appointment is indeed confided to a particular organ, and in instances in which it is not otherwise provided by the Constitution or the laws, the removal of the officer is left to the pleasure or discretion of that organ. But both these acts suppose merely an instrumentality of the organ, from the necessity or expediency, of the people's acting in such case by an agent. They do not suppose the substitution of the agent to the people, as the object of the fealty or allegiance of the officer."{28}

We have seen already how Suarez was the first to admit clearly the legitimacy of such a form of government. But for the practical working out of its conception much else of a more purely theoretic character must be presupposed in the minds of those who effected the task. For the very idea implies an exceedingly definite theory of the true nature of the State and its limitations, In the former chapter it was shown how thoroughly lacking the ancients were in this regard. By way of recapitulation and corroboration of what was there maintained we give the following from Francis Lieber. "The ancient science of politics is what we would term the art of government, that is 'the art of regulating the State, and the means of preserving and directing it.' The ancients set out from the idea of the State, and deduce every relation of the individual to it from this first position. The moderns (?) acknowledge that the State, however important and indispensable to mankind, however natural, and though of absolute necessity, still is but a means to obtain certain objects, both for the individual and for society collectively, in which the individual is bound to live by his nature. The ancients had not that which the moderns (?) understand by jus naturale, or the law which flows from the individual rights of man as man, and serves to ascertain how by means of the State, those objects are obtained which justice demands for every one. On what supreme power rests, what the extent and limitations of supreme power ought to be according to the fundamental idea of the State, -- these questions have never occupied the ancient votaries of political science."{29}

But in a footnote Lieber adds: "This was written in the year 1837. Since then, events have occurred in France which may well cause the reader to reflect whether, after all, the author was entirely correct in drawing this peculiar line between antiquity and modern times." He might just as well have included England and Germany in this remark. For Bentham had already laid the cornerstone of the modern English Utilitarian system of government with the assertion that "the field, if one may say so, of the supreme governor's authority, though not infinite must unavoidably, I think, unless where limited by express convention (whereby one State has, upon terms, submitted itself to the government of another), be allowed to be indefinite."{30} While in Germany where the influence of Roman law in its Pagan form was dominant, in consequence of the writings of Grotius,{31} Puffendorf and Wolff, strange notions as to the personality of the State had already been enunciated. As Maitland, one of the English disciples of the German school, has said "The adjectives which are often used to qualify this personality are open to serious objection, since they seem to speak to us of some trick or exploit performed by lawyers and to suggest a wide departure of legal theory from fact and common opinion."{32} The root of this confusion was that in Roman law "personality" was used to mean a privilege conferred upon the individual by the State at the moment he became a citizen. Not being inherent anywhere it could be no more than a mere fiction emptied of all reality. The result of this is well summed up by Johann Gustav Droysen in his Outline of the Principles of History where he says "The law, of authority is valid in the political world like that of gravity in the world of matter. . . . Only the State has the duty or the right to be the authority in this sense. Wherever justice, property, society, wherever even the church, the people or the community come into the position of authority, the nature of the State is either not yet discovered or lost in degeneracy. Public authority is highest where the fullest labor, health and freedom of all the moral spheres feed it. The State is not related to the other moral spheres merely as they to one another, but embraces them all within its own scope. Under its protection and laws, under its guardianship and responsibility they all move forward to its salvation or ruin.

"The State is not the sum of individuals whom it comprehends, nor does it arise from their will, nor does it exist on account of their will."

In diametric opposition to this Suarez had maintained, when explaining how it is possible for a law to have reference to a single individual and yet be a true law, that "law applies to a person (meaning one who is sui juris, i. e., endowed with intellect and free will) therefore it has reference primarily to a true person rather than to a fictitious one, for fiction always supposes the truth of which it is an imitation. But a community is a fictitious person whereas each individual man is a true person."{33} Burke, again, in the course of an argument directed against certain radical views, that were showing their head in his day, declared: "they who plead an absolute right (to representation) cannot be satisfied with anything short of personal representation, because all natural rights must be the rights of individuals as by nature there is no such thing as politic or corporate personality, all these ideas are mere fictions of law, they are creatures of voluntary institution; men as men are individuals, and nothing else."{34} Finally James Wilson stated the correct American doctrine implicit in our Constitution. "Persons," said he, "are divided into two kinds -- natural and artificial. Natural persons are formed by the great Author of nature Artificial persons are the creatures of human sagacity and contrivance; and are framed and intended for the purposes of government and society." Then a few pages further on he expands this into a definition of the State which reads: "In free States, the people form an artificial person or body politic, the highest and noblest that can be known. They form that moral person . . . i. e., a complete body of free natural persons, united together for their common benefit as having an understanding and a will; as deliberating, and resolving, and acting; as possessed of interests which it ought to manage; as enjoying rights which it ought to maintain; and as lying under obligations, which it ought to perform. To this moral person, we assign by way of eminence, the dignified appellation of State."{35}

The manner in which this idea was applied in the framing of the Constitution has already been described in the words of Wilson and of Hamilton, but the theory in the case, together with Wilson's thoroughly Suaresian point of view in the matter, is well brought out in the following where, treating of the question of sovereignty, he argues "Let us turn our eyes, for a while from books and systems: let us fix them on men and things. While those, who were about to form a society, continued separate and independent men, they possessed separate and independent powers and rights. When the society was formed, it possessed jointly all the previously separate and independent powers and rights of the individuals who formed it and all the other powers and rights, which result from the social union. The aggregate of these powers and these rights compose the sovereignty of the society or nation. In the society or nation this sovereignty originally exists. For whose benefit does it exist? For the benefit of the society or nation. Is it necessary for the benefit of the society or nation, that the moment it exists, it should be transferred? -- This question ought, undoubtedly, to be seriously considered, and, on the most solid grounds, to be resolved in the affirmative, before the transfer is made. Has this ever been done? Has it ever been evinced, by unanswerable arguments, that it is necessary to the benefit of a aociety to transfer all those rights and powers, which the members once possessed separately, but which the society now possesses jointly? I think such a position has never been evinced to be true. Those powers and rights were, I think, collected to be exercised and enjoyed, not to be alienated and lost. All these powers and rights, indeed, cannot, in a numerous and extended society, be exercised personally; but they may be exercised by representation."{36}

The Constitution as first proposed was intended as a resolution of this problem in the sense that instead of chartered liberties granted by the Crown, as had been the case under the rule of Kings in England since before the days of Magna Charta, there was to be henceforth in the United States chartered powers granted by the people to their government. It was for this reason that those who understood this new principle most clearly insisted that there should be no question of a Bill of Rights since the very idea of reserving anything would only tend to confusion, as it would give color to the alien notion that the government possessed powers not delegated.

Beyond the problem, however, of determining the practical basis of government on the ground of solid theoretic principle there was the further question of settling the character of the union that should exist among the Colonies. Wilson, again, in the State Convention, of Pennsylvania gave the best outline of the plan proposed to the people for adoption. Among his many observations on this topic he pointed out that "a division of the United States into a number of separate confederacies would probably be an unsatisfactory and an unsuccessful experiment. The remaining system which the American States may adopt is, a union of them under one confederate republic. It will not be necessary to employ much time or many arguments to show that this is the most eligible system that can be proposed. By adopting this system, the vigor and decision of a wide-spreading monarchy may be joined with the freedom and beneficence of a contracted republic. The extent of territory, the diversity of climate and soil, the number, and greatness, and connection of lakes and rivers, with which the United States are intersected and almost surrounded, all indicate an enlarged government to be fit and advantageous for them. The principles and dispositions of their citizens indicate, that in this government liberty shall reign triumphant. Such indeed have been the general opinions and wishes entertained since the era of our independence. If those opinions and wishes are as well founded as they are general, the late convention were justified in proposing to their constituents one confederate republic, as the best system of national government for the United States."{37} Several months later Hamilton also insisted in the convention of New York that "while the Constitution continues to be read, and its principles known, the States must by every rational man, be considered as essential component parts of the union; and therefore, the idea of sacrificing the former to the latter is totally inadmissable."{38}

It has generally been thought that the idea of a conferedate republic was suggested to the minds of those who framed the Constitution by Montesquieu and it is no doubt true that they did quote him. But the sense which they attributed to the term in its relation to what was actually set down in the plan for the new established order of government was something very foreign to the mind of Montesquieu. Luther Martin made this clear when in his Letter on the Federal Convention he complained that "a majority of the convention hastily and inconsiderately, without condescending to make a fair trial, in their great wisdom, deciding that a kind of government which a Montesquieu and a Price have declared the best calculated of any to preserve internal liberty and to enjoy external strength and security, and the only one by which a large continent can be connected and united consistent with the principles of liberty, was totally impracticable, and they acted accordingly."{39} The fact was that Montesquieu's idea which was the old idea of confederate sovereign States united on a basis of compact did not answer the problem as it stood out before the majority in the convention. Wilson expressed what seems to have been the prevailing ground for decision when explaining how "our wants, our talents, our affections, our passions, all tell us that we were made for a state of society. But a state of society could not be supported long or happily without some civil restraint. It is true that in a state of nature, any one individual may act uncontrolled by others; but it is equally true that, in such a state, every other individual may act uncontrolled by him. Amidst this universal independence the dissessions and animosities between interfering members of the society would be numerous and ungovernable. The consequence would be, that each member, in such a natural state, would enjoy less liberty, and suffer more interruption, than he would in a regulated society. Hence the universal introduction of government of some kind or other into the social state. The liberty of every member is increased by this introduction, for each gains more by the limitation of the freedom of every other member, than he loses by the, limitation of his own. The result is, that civil government is necessary to the perfection and happiness of man. In forming this government, and carrying it into execution, it is essential that the interest and authority of the whole community should be binding on every part of it." Then having noted that just as civil government is necessary to the perfection of society so civil liberty is necessary to the perfection of civil government he proceeds to explain this last by describing it in its nature and kinds. Said he: "Civil liberty is natural liberty itself, divested only of that part, which placed in the government, produces more good and happiness to the community, than if it had remained in the individual. Hence it follows, that civil liberty, while it resigns a part of natural liberty, retains the free and generous exercise of all the human faculties so far as it is compatible with the public welfare."{40}

"In considering and developing the nature and end of the system before us, it is necessary to mention another kind of liberty, which has not yet, as far as I know, received a name. I shall distinguish it by the appellation of federal liberty. When a single government is instituted, the individuals of which it is composed surrender to it a part of their natural independence, which they before enjoyed as men. When a confederate republic is instituted, the communities of which it is composed surrender to it a part of their political independence, which they before enjoyed as states. The principles which directed, in the former case, what part ought to be retained, will give similar directions in the latter case. The states should resign to the national government that part, and that part only, of their political liberty, which, placed in that government, will produce more good to the whole, than if it had remained in the several states. While they resign this part of their political liberty, they retain the free and generous exercise of all their other faculties as states, so far as is compatible with the welfare of the general and superintending confederacy."{41}

We have seen already how this idea of subordinate sovereign powers, with sovereignty derived from the same source whence that of the central supervising power is held, is found in Bellarmine and how closely Wilson's application of the principle of consent to the question of the division of sovereignty tallies with his. But the clear distinction between the old idea of Montesquieu and the new American theory of a confederate republic was stated even more explicitly by Madison who considered "the difference between a system founded on the legislatures only, and one founded on the people, to be the true difference between a league or treaty, and a constitution. The former, in point of moral obligation, might be as inviolable as the latter. In point of political operation, there were two important distinctions in favor of the latter. First, a law violating a treaty ratified by a pre-existing law might be respected as a law, though an unwise or perfidious one. A law violating a constitution established by the people themselves would be considered by the judges as null and void. Secondly, the doctrine laid down by the law of nations in the case of treaties is, that a breach of any one article by any of the parties frees the other parties from their engagements, In the case of a union of people under one constitution, the nature of the fact has always been understood to exclude such an interpretation."{42}

Such then was the theory which, beginning with the principles enunciated in the Declaration of Independence, was finally evolved into the brief but comprehensive statement.

"We the People of the United States, in order to form a more perfect Union, establish Justice, insure domestic tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."

As Madison so well expressed it "in proportion to the importance of the instruments, every word of which decided a question between power and liberty; in proportion to the solemnity of acts proclaiming the will, and authenticated by the seal of the people, the only earthly source of authority, ought to be the vigilance with which they are guarded by every citizen in private life, and the circumspection with which they are executed by every citizen in public trust."{43} That there was absolutely nothing of Rousseau in all this or of Rousseau's notion of the "general will" is perfectly evident, not merely from what has been shown thus far, but from the remarks of Madison himself, when, writing on the question of universal peace, he said: "Wars may be divided into two classes; one flowing from the mere will of the government; the other according with the will of the society itself.

"Those of the first class can no otherwise be prevented than by such a reformation of the government as may identify its will with the will of the society. The project of Rousseau (of a confederation of sovereigns, under a council of deputies) was, consequently, as preposterous as it was impotent. Instead of beginning with an external application, and even precluding internal remedies, he ought to have commenced with, and chiefly relied on, the latter prescription.

"He should have said, whilst war is to depend on those whose ambition, whose revenge, whose avidity, or whose caprice may contradict the sentiment of the community, and yet be controlled by it; whilst war is to be declared by those who are to spend the public money, not by those who are to pay it, by those who are to direct the public forces, not by those who are to support them; by those whose power is to be raised, not by those whose chains may be riveted, the disease must continue to be hereditary, like the government of which it is the offspring. As the first step towards a cure, the government itself must be regenerated. Its will must be made subordinate to, or rather the same with the will of the community.

"Had Rousseau lived to see the Constitutions of the United States and of France (?), his judgment might have escaped the censure to which his project has exposed it.

"The other class of wars, corresponding with the public will, are less susceptible of remedy."

"There are antidotes, nevertheless, which may not be without their efficacy. As wars of the first class were to be prevented by subjecting the will of the government to the will of the Society, those of the second can only be controlled by subjecting the will of the society to the reason of the society; by establishing permanent and constitutional maxims of conduct, which may prevail over occasional impressions, and inconsiderate pursuits."{44}

But even this was not held to be ultimate, for reason itself is not to be understood here in the sense in which Frenchman of the Enlightenment used it. Suarez had said with regard to the derivation of the power to make laws: "The common opinion seems to be that this power is granted immediately by God as the author of nature so that men, as it were, dispose the matter and constitute the subject capable of such a power; while God, as it were, supplies the form by giving it. For granted the will of a number of men to unite in forming a body politic it is not in the power to prevent such a jurisdiction (since to will to form a society without any power to regulate it is to will a contradiction). Thus in marriage the husband is head over the wife in consequence of the determination of the Author of nature and not as a result of the wife's will in the matter. For though they freely contract the bond of matrimony nevertheless, once it is contracted they cannot prevent that superiority properly resides in the husband. Therefore, this power of jurisdiction is immediately from God since it has no prior or immediate existence in any other. Another proof is that this power includes certain acts which seem to exceed all human faculties in so far as they are discoverable in single individuals, which is a sign that this power is not derived from men but from God. The first of these is capital punishment. As God alone is master of life, He alone could grant this power. . . . Then there is the power the legislator has of binding in conscience which seems, particularly to pertain to the power of God. Finally there is the power of avenging injuries done to individuals which must come from God otherwise men might usurp other methods of avenging injuries, which is contrary to natural justice. . . . This power is granted by God not through any act or concession distinct from creation, since such a concession would have to be made known by revelation which is clearly not the case. Besides under such conditions this power of jurisdiction would not be a natural power. It is given, therefore, as one of the properties consequent to nature, that is: by means of a dictate of reason manifestive of the fact that God has made sufficient provision for the human race and consequently has given it whatever power is necessary for its conservation and proper government. "{45} In thorough conformity with this, Washington, in his Farewell Address declared: "To the efficacy and permanency of your Union, a government for the whole is indispensable. -- No alliances, however strict between the parts can be an adequate substitute. -- They must inevitably experience the infractions and interruptions which all alliances in all times have experienced. Sensible of this momentous truth, you have improved upon your first essay, by the adoption of a Constitution of Government, better calculated than your former for an intimate union and for the efficacious management of your common concerns. -- This government, the offspring of your own choice uninfluenced and unawed, adopted upon full investigation and mature deliberation, completely free in its principles, in the distribution of its powers, uniting security with energy, and containing within itself a provision for its own amendment has a just claim to your confidence and your support. -- Respect for its authority, compliance with its laws, acquiescence in its measures, are duties enjoined by the fundamental maxims of true liberty. -- The basis of our political systems is the right of the people to make and to alter their Constitutions of Government. -- But the Constitution which at any time exists, 'till changed by the explicit and authentic act of the whole people, is sacredly obligatory on all. -- The very idea of the power and the right of the People to establish Government presupposes the duty of every individual to obey established Government." From the original draft of this address, which was written by Hamilton, it is clear that the latter went even further. In a passage that Washington seems to have amended slightly for evident prudential reasons Hamilton said: "In all those dispositions which promote political happiness, religion and morality are essential props. In vain does he claim the praise of patriotism, who labors to subvert and undermine, these great pillars of human happiness, these firmest foundations of the duties of men and citizens. The mere politician, equally with the pious man, ought to respect and cherish them. A volume could not trace all their connections with private and public happiness. Let it simply be asked, where is the security for property, for reputation, for life, if the sense of moral and religious obligation deserts the oaths which are administered in courts of justice? Nor ought we to flatter ourselves that morality can be separated from religion. Concede as much as may be asked to the effect of refined education in minds of peculiar structure, can we believe, can we in prudence suppose, that national morality can be maintained in exclusion of religious principles? Does it not require the aid of a generally received and divinely authoritative religion?"{46}

{1} Loc. cit., vol. VIII, p. 345.

{2} American World Policies, pp. 154, 1151.

{3} An Economic Interpretation of the Constitution of the United States, p. 3.

{4} To Henry Lee, May 8, 1825. Works, vol. VIII, p. 407, Washington edition.

{5} Loc. cit., vol. I, pp. 61-64. The "assent" spoken of in this last paragraph is clearly that of a definite people, viz., the colonists, living under a definite constitution, viz., the English constitution, and, therefore, it is a question here of a people that has transferred "power to a king yet retain it in themselves for certain affairs." See the words of Suarez further on. Hamilton even in his early years would have been the last to hold as a general principle of government that the authority of rulers depends on the present assent of the people. His argument is that the pretentions of Parliament go beyond the constitution and, therefore, beyond anything assented to in the past and are being forced on the colonists without their assent in the present.

{6} lbid., p. 65.

{7} Ibid., p. 66. Burke in his "Thoughts on the Cause of the Present Discontents," 1770, had said: "The virtue, spirit, and essence of a House of Commons consists in its being the express image of the feelings of the nation. It was not instituted to be a control upon the people, as of late it has been taught by a doctrine of the most pernicious tendency. It was designed as a control for the people." Works, vol. II, p. 50, 51.

{8} Ibid., p. 69.

{9} Burke in his Address to the King declared "we are convinced, beyond a doubt, that a system of dependence which leaves no security to the people for any part of their freedom in their own hands cannot be established in any inferior member of the British empire, without consequently destroying the freedom of that very body in favor of whose boundless pretentions such a scheme is adopted. We know and feel that arbitrary power over distant regions is not within the competence, nor to be exercised agreeably to the forms, or consistently with the spirit of great popular assemblies. If such assemblies are called to a nominal share in the exercise of such order to screen, under general participation, the guilt of desperate power, in measures, it tends to corrupt the deliberate character of those assemblies, in training them to blind obedience; in habituating them to proceed upon grounds of fact, with which they can rarely be sufficiently acquainted, and in rendering them executive instruments of designs, the bottom of which they cannot possibly fathom." Works, vol. V, p. 359.

{10} Ibid., 71.

{11} Works, vol. II, p. 519.

{12} Ibid., pp. 557, 565.

{13} Ibid., p. 564.

{14} Defensio Fidei Catholicae, III, c. 3, n. 3.

{15} Ibid., p. 503.

{16} De Legibus, I, a. 7, n. 4.

{17} Ibid., pp. 507, 508.

{18} Internal evidence would seem to show that Hamilton had Wilson's Considerations before him when he wrote the Farmer Refuted.

{19} "Letter to J. Monroe, 1786, vol. I, pp. 250, 251, Congress edition.

{20} Catholic Historical Review, vol. III (1917), pp. 276-289.

{21} Works, vol. VIII, pp. 706, 706, Washington edition. Italics inserted.

{22} Burke said with great truth: "We are so little affected by things which are habitual that we consider this idea of the decision of a majority as if it were a law of our original nature; but such constructive whole, residing in a part only, is one of the most violent fictions of positive law, that ever has been or can be made on the principles of artificial incorporation. Out of civil society nature knows nothing of it; nor are men, even when arranged according to civil order, otherwise than by a very long training, brought at all to submit to it." Appeal from the New to the Old Whigs; Works, vol. V, p. 97.

{23} Writing for those of his own time in France Buffier said: "The habit of subjecting their thought to established law has caused them (juris-consults) to frequently confuse these two expressions 'it is the law' and 'it is reason.' It is quite true that the saying, 'it is the law' bears with it as a consequence that 'it is reason' to submit to it in this country, without regard to the reasons one might oppose to it, even were they better than the law in force. But instead of stopping here they look upon the law in force as holding the place of universal reason." Oeuvres, p. 213.

{24} Works, vol. II, p. 274.

{25} Third Speech at Bristol, Works, vol. III, p. 3.

{26} Burke, First Speech at Bristol, ibid., vol. II, p. 157.

{27} Works, vol. I, pp. 530-533.

{28} Works, vol. VIII, pp. 354-355.

{29} On Civil Liberty and Self Government, pp. 46-47. Hamilton likewise noted this fact, In the convention of New York he reminded those present that, "The ancient democracies, in which the people themselves deliberated, never possessed one feature of good government. Their very character was tyranny; their figure deformity. When they assembled, the field of debate presented an ungovernable mob, not only incapable of deliberation, but prepared for every enormity. In these assemblies the enemies of the people brought forward their plans of ambition systematically. They were opposed by their enemies of another party; and it became a matter of contingency whether the people subjected themselves to be led blindly by one tyrant or by another." Works, vol. II, p. 22.

{30} A Fragment on Government, p. 217, edited by F. C. Montague.

{31} Both Hamilton and Wilson were aware of the grave defects in Grotius. Speaking of the principles of Roman law the first said: "A deference for those maxims has misled writers who have professionally undertaken to teach the principles of national ethics. . . . We find the learned Grotius quotes and adopts, as the basis of his opinions, the rules of Roman law; though he in several particulars, qualifies them by the humane innovations of later times." Camillus, Works, vol. X, p. 427.

{32} History of English Law, vol. I, p. 489.

{33} De Legibus, I, c. 6, n. 7.

{34} Works, vol. III, p. 353.

{35} Works, vol. II, pp. 3, 6.

{36} Ibid., vol. I, pp. 168, 169. Italics inserted. Locke generalized too exclusively from the single fact before him -- the English government of his own day -- to contemplate the possibility of the people retaining power in its own hands. Suarez, as we have seen above, did contemplate such a possibility and admitted its legitimacy under certain circumstances. Locke's doctrine of the "executive power of the law of nature" on the other hand contradicts fundamental principles in the scholastic writers and furnished grounds for the Lockians, previously mentioned, and for Rousseau to claim that the aggregate of individuals contracting into society cannot surrender authority to the government. By the use of the word "necessary" Wilson shows his agreement with Suarez, viz., that it is a question of contingent fact or of the legitimate agreement of a people to determine its form of government in this particular manner.

{37} Ibid., pp. 537, 538.

{38} Works, vol. II, p. 45.

{39} Elliot's Debates, vol. I, p. 405.

{40} This is not to be understood in Spencer's sense that "every man may claim the fullest liberty to exercise his faculties compatible with the possession of like liberty by every other man." Social Statics (1892), p. 36, but should be read in the light of Madison's notable sentence: "If justice, good faith, honor, gratitude, all the other qualities which ennoble the character of a nation, and fulfil the ends of government, be the fruits of our establishments, the cause of liberty will acquire a dignity and lustre which it has never yet enjoyed; and an example will be set which cannot but have the most favorable influence on the rights of mankind." Works, vol. IV, p. 453.

{41} Works, vol. I, pp. 535, 536.

{42} Foster on the Constitution, vol. I, p. 95.

{43} Works, vol. IV, pp. 467, 468. Italics ours.

{44} Ibid p. 471. Italics inserted.

{45} De Legibus, III, c. 3, n. 4, 5.

{46} Works, vol. VIII, p. 205.

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