The theory of our national existence, as shown by the action of the government of the United States since 1861.

Introduction

The remark is attributed to Paley that it is much harder to make men see a difficulty than to make them understand the explanation of it. Mr. Walter Bagehot, a writer on the English Constitution, in referring to this as a shrewd observation adds: " The key to the difficulties of most discussed and unsettled questions is commonly in their undiscussed parts. They are like the background of a picture, which looks obvious, easy, just what any one might have painted ; but which in fact sets the figures in their right position, chastens them, and makes them what they are."

Mr. Bagehot applies this to the difficulty of understanding parliamentary government, especially in England. I think the observation is equally applicable to the discussion of political questions in America. The disputes which have been going on here, ever since the formation of a government independent in respect to the rest of the world, may be due to our failure to bear in mind some circumstances attending all political existence, which must precede, in the order of being, those which we ordinarily consider both fundamental and peculiar to ourselves.

If this is the case with us, I should state the inquiry of which the discussion had been omitted as this : How do we know our political existence to be a fact ?

VI INTRODUCTION.

Dr. Brownson, in his " American Republic " (p. 2), has perhaps expressed the same thought more elaborately when he said : " Among nations, no one has more need of full knowledge of itself than the United States, and no one has hitherto had less. It has hardly had a distinct consciousness of its own national existence, and has lived the unreflective life of the child, with no severe trial, till the recent rebellion, to throw it back on itself and compel it to reflect on its own constitution, its own separate existence, individuality, tendencies, and end."

It appears to me that all our political writers, without exception, have started with the idea that we have no business to have any self-consciousness, or to ask ourselves such a question as the above. They seem to assume that in this country, if in no other, the existence of political facts is not determined by the observing intellect employing the bodily senses, but by knowledge of certain principles of morals. They seem to take for granted that here at least, if nowhere else in the world, not only does that political fact exist which ought to exist, but it exists simply because it ought to exist ; or that all they have to do to prove its existence is to show that, if it existed, it would agree with certain principles of morals.

During the sixteenth and seventeenth centuries a form of political instruction was popular which was followed by Sir Thomas More in his " Utopia," by Harrington in his " Oceana," and b}^ other English writers in works less well known. These were avowedly inventions, fictions, describing, as if they were facts, what the writers thought would be facts if facts were what they ought to be. The method of these writers differed from that of Plato, in his dia-

INTEODUCTION. Vll

logue on The Republic, only in this, — that Socrates and his friends were there imagined as discussing things as they wished they might be ; while these writers spoke of their fictitious republics as actually existing.

Nearly all descriptions of American political institutions seem to me to have partaken something of the character of these Utopian dreams. The conception of a political philosophy as peculiar to the inhabitants of this country, and providentially designed for them in advance, has not been confined to any particular party or parties, school or schools, or to the residents of any one part of the country more than to those of another part. All American publicists may be seen, more or less plainly, endeavoring to prove the existence of matter of political fact in this country by arguing that such or such a state of things ought to be the existing fact in this country.

The cause of this may be traced further back than the Revolution of 1776. It may be said to have been a natural outgrowth of the circumstances attending the colonization by Englishmen of vacant territory under the political dominion of a sovereign separated from them by an ocean not then so traversable as to-day. They had left England at the time when, as Hume says, plans of imaginary republics, like those of Harrington and More, were daily subjects of debate and conversation ; and, under the circumstances in which they found themselves, the reasonings of the individual colonists on the abstract right or propriety of all political arrangements seemed not only to precede the exercise of any visible political authority, but also to be the cause of its recognition. This aspect of political existence was heightened by the effect on personal viii INTEODUCTIOIsr.

character of the motives inspiring the early colonists of New England, and of those ideas of the relation of government to religion which we associate with the term " Puritan."

This habit of thought on questions of political existence received fresh strength during the eighteenth century from the influence, both in Europe and America, of contemporary French authors, whose theoretical method was essentially the same. It had general ascendancy up to the period of the Revolution of 1776, when it became formulated in the Declaration of Independence. For the words of that instrument assert, substantially, that the thirteen colonies are, that is, are as matter of fact, States independent of Great Britain and the rest of the world, because there is some moral law in existence by which they ought to be so.

I have said that this method of demonstrating political existence has continued to be illustrated by American statesmen and political writers generally, since the Revolution, not being characteristic of one class or section more than another ; but for my present purpose, in introducing this essay, it is chiefly noticeable as it appears in the writings of those who have more especially represented opinion in the Northern States.

It appears to me that Kent and Story, with others who have recently succeeded to their position as teachers of public law, to say nothing of many jurists on the bench, have written and spoken of our actual government as if it was their duty, above all things else, to exhibit it as agreeable to some principles assumed by agreement between themselves and their readers to be just, and to

INTRODUCTION. IX

have thought that no political source of public law could be recognized as an existing fact, unless its accordance with what they personally would regard as goodness of political design could be demonstrated.

These writers, as a class, seem to ignore the fact that, in every country in the world, there must be somebody in existence whose measure of right everybody else must accept as the rule of action before there can be any public law at all; or they conduct their demonstration as if they had shown that there was actually an exception, as to this general condition, in the case of this country.

So far as they have recognized this condition, in respect to this country, it has been by putting a hypothesis in the place of the fact. A fact is known by the observing intellect, aided by the bodily senses, as existing, whether in the judgment of the moral sense it ought to exist or not. The hj^pothesis in this case is framed to agree with the framer's a priori notions of political right.

As a consequence of this method of treating the subject by our professed guides and instructors, an idea appears in all our political controversies, as conducted in representative assemblies, on platforms, or by printed publications, that there is no fact of a political nature, as distinguished from a legal nature, to be ascertained at all ; or that we must regard as a fact that which is only an opinion, supported "^y some moral considerations. And, as political obligation k not distinguished in idea from obligations enforced only by """he individual conscience, so, in close connection with this sort of philosophy, is the practical result that the obligation of law is referred to the consent of the individual.

X ESTTKODUCTION.

Americans have, indeed, the reputation of being a more law-abiding people than the populations of other countries. This may be well deserved, if law is regarded only as a rule corresponding more or less closely with ordinary ideas of justice. Equality of condition and extension of average intellectual education have accustomed a proportionately larger number to recognize law, in its moral aspect, and to appreciate the general advantage of its being obeyed.

But when the question is of obedience without reference to its approval by the moral sense of those to whom the rule applies, that is, when law is presented as the rule of action given by some political superior, there is here, as in no other country in the world, a feeling that, for us, laws exist without reference to the will of any such superior, and therefore cannot have binding force for any such reason.

The consequence is that Americans are almost destitute of the ideas of loj T alty and allegiance, and do not conceive of rebellion, treason, and civil war as they are apprehended in other countries.

The civil war of 1861 has always been, for this reason, an astonishment and a puzzle to the people of the Northern States. They looked upon the action of the people of the Southern States as presenting only a question of morals. They have never been able to see that the controversy was not about obligations under law, regarded simply as a measure of right and wrong, but was one about political obligation in reference to a fact ; and that this was an entirely distinct matter.

It is in view of these considerations that I here make an

INTEODTJCTION. XI

admission which may seem a singular introduction to these pages, — that is, that the title selected is actually a misnomer.

It is not unlikely that on glancing over a few pages the reader would make the observation for himself. The name " theory " suggests the treatment of a subject, by starting from some principles, assumed or admitted, with the purpose of arriving at some conclusion presented as a deduction from those principles. A theory so framed, by reasoning a priori, is, however, precisely the opposite in its nature to that treatment of the subject which I have herein attempted.

It is indeed not a theory, but a fact, which is here the object of the investigation. The term " theory " may, however, be conveniently used to designate a generalization from a number of facts which are the particular instances for the generalization. An induction from such instances, reasoning a posteriori, gives a result which, though essentially a fact, may for convenience be called a theory. So it is common to speak of the mutual attraction existing between all material substances, which is commonly called the attraction of gravitation, as a theory ; meaning a fact described by generalizing a number of particular instances, such as the fall of an apple to the earth.

It is a theory as identified with a fact, not a theory as distinguished from a fact. It is only in this sense that I call national existence a theory. I have conducted my inquiry on the supposition that the existence of a nation as a political being may be known by generalizing certain actual events, regarded as exhibitions of political force or energy, in the hands of some actually existing human

Xll rNTKODUCTION.

beings ; which events are to be accepted as facts, because nobody can help accepting them as facts.

With such a conception of the proposed investigation, it will be seen that I have no political philosophy or doctrines of political ethics to set before the reader as axioms to be accepted in determining the existence or non-existence of the facts, even as political facts. Indeed, the negation of the necessity for such doctrines may be regarded as the only axiom on which the investigation is founded.

But, in view of what has already been said as to the prevailing method of considering political subjects in this country, I anticipate that there will -be some persons whose first objection to any conclusion here presented will . be founded on a rejection of such an axiom. There may be some who do not propose to recognize as political facts any facts which do not conform to certain a priori doctrines, or who will insist that the acceptance of the political fact must depend on its conformity to certain pre-existing laws, principles, or ideas assumed to be just or in accordance with certain principles of justice.

I shall not dispute with such readers whether anything we call a fact can be settled by any such method. All that is material for me to say about it is that such a method is not the method here followed. The only argument I propose to give to show the folly of such a method is to produce the results of a method entirely opposite ; as is herein attempted.

If the arrangement of the material forming the bulk of this essay may be justly criticised for want of system or of logical continuity, I still claim that the purpose to proceed by way of induction from a variety of particu-

INTRODUCTION. Xlll

lar instances or examples may give sufficient unity to the whole, in spite of such a lack of formal connection between the several parts.

As further explaining the method, or want of method, of the whole, it may be excusable for me to mention that by far the larger part of the material has been put together since the first and second chapters were in type, in the summer of 1879, when it was proposed to make of the whole only a pamphlet of one hundred and odd pages, from matter which had originally been prepared as a review of the political doctrines announced in one or two official papers, and in some judicial opinions then recently published.

As the object of inquiry presented itself more distinctly as a political fact, its relation to judicial opinion, and to all that class of opinion usually called "authority," developed in a different light. It was apparent that the question of the existence of such a fact could not be a legal one ; that is, that it could not be settled by the judicial function, nor by the judgment of any person in official station of any sort. But it was seen, at the same time, that judgments of courts of law, if they are actually carried into execution, are acts of government, which must be accepted as indications of the existence of the political fact that somebody actually exercises power over others.

Viewed in this light, the cases decided by the courts stand in the same relation to the political truth which is the object of search, as do the acts of officers of other departments of a government. All these, as events which have actually taken place, are more material for indicating the location of political force than any juristical opinions can be.

XIV INTRODUCTION.

From this point of view the action of the several departments of the Government is equal in political significance. Each act of government has political value, and the larger the number of the particular instances, and the greater the variety, as far as the nature of the inqui^ admits, the surer should be the basis for the induction of the political truth. It will be seen that the later portions of this essay are based more distinctly upon this idea.

It is to be borne in mind that the principle followed in this inquiry is to accept evidence from any possible source, but to pay no regard to any opinions as "authority" for settling the question of fact considered. There is no appeal made to great names, as if the opinion of any man or men, however wise or prominent, could decide the existence of a fact, even of a fact occurring in their own day, to say nothing of facts which took place before they were born. The statements of persons living or dead are quoted, so far as they are quoted at all, as testimony on the question of fact, — a question of history, so far as it is past fact in distinction from present fact. But, being only testimony, all such statements are freely compared with evidence from every other source.

I think it may be said with truth that the desultory and informal method of inquiry here followed is in accordance with the actual process by which all political existence is apprehended by the bulk of those who are concerned to ascertain it. It may be that it is not the manner of the scholar's private study, nor that of the professor's chair. It is not asking for knowledge ex cathedra. But it is in this manner that the mass of mankind at all times and in all countries become aware of the existence of

INTRODUCTION. XV

those political facts with which they must agree to live, if they choose to live at all. It is the way in which political authority becomes known to those who move in the ordinary walks of life, whether they are concerned with that authority in the every-day relations of peaceful society, or in the crises of war, foreign or domestic. In any case the knowledge is acquired in the forum, on the market-place, by the fireside or at the tavern, by talking over with other people events which actually take place.

Let us imagine some intelligent traveller finding out some country previously unknown to the rest of the world : whatever other objects he might have in view, his first necessity would be to discover the person or persons whose will was there obeyed by the mass of the population, or who held so much power among them that his own life, security, and liberty of action would depend upon his or their disposition towards himself. It might be that the traveller came with a special purpose to learn the laws by which the action and mutual relations of the inhabitants were regulated. Whatever amount of verbal information he might receive on this point, or however extensive his personal observations of their manners and daily lives, he would not think that he could affirm the existence of any laws regulating their intercourse until he had found out some person or persons whose actual force and will could be traced as a cause securing obedience to such laws.

In making this inquiry the supposed traveller would receive all statements on the subject made in apparent good faith, but he would constantly compare them with any exhibition of actual force or power which might come under his own personal observation. If he should discover cer-

XVI INTRODUCTION.

tain persons, not themselves under the command of any other, whose injunctions were actually obeyed by all other persons, or who actually punished all others, at their own discretion, for disobedience to their injunctions, and who, when their power had been resisted by force, had actually overcome such resistance by their own superior force, he would conclude that the power to maintain their will as law was actually in the hands of such persons, whatever verbal information to the contrary he might have received.

We may imagine the supposed traveller as a modern newspaper correspondent commissioned to report to his employers, for the public at home, the character of such a newly discovered nation. This public at home would read his letters as a report on a matter of fact. Whatever might be his views of the nature of government in general, of the rights of man as a political animal, or at whatever school or college he might have been educated on these points, this public would not expect to learn anything from him on those topics. If, instead of describing what he actually saw, he should send back his views as to what laws and institutions would-be beneficial to the country he was exploring, or if he should be detected in representing the state of things there as if it proved the correctness of his own theories of political existence, his emplo3^ers would let him know that he might benefit the public in that way as well by staying at home, and that it was not for any such purpose that he was commissioned as a travelling correspondent.

Whatever might have been the ideas on the nature of government in general accepted at home, the supposed trav-

INTRODUCTION. XV11

eller would not assume that such ideas were equally accepted in the place whose institutions he was to observe. However secure or pleasant he might have regarded his position in a county where such ideas had been accepted by the possessors of power, he would not depend upon such ideas as sufficient to protect his life, person, or property in the strange land he was exploring. Even if he had sought the country in question as a political apostle, filled with zeal to spread by persuasion ideas which he thought best for the government of all countries, he would address himself to finding out what persons were so placed that the influence of such ideas depended on their assent to or their adoption of them, in action.

But however ready he might be to recognize the exercise of power as a fact, the traveller would have some preconceived notions as to the nature of the power whose possessors he wished to identify. These notions would be founded upon his previous knowledge of the necessary conditions of human existence. Whatever he might hear and whatever he might see, he would know that it could only be human will and human intelligence which could direct the power when manifested ; that, if it was any power at all, it was the power of human beings. The people among whom he sojourned might point to some sacred grove, whose leaves whispered to the reverent ear ; or lead him to some cavern, in whose vapors a priest raved in ecstacy ; or show him some block of stone or metal, said to be fallen from the sky, which gave a hollow sound understood by a privileged few ; and they might assure him that these sounds, utterances, or whispers directed what was to be done and what was not to be done. But whatxviii raTRODTJCTiOjsr.

ever deference the supposed traveller might have been obliged to yield to similar pretensions in his own country, he would, in the strange land where he came as an observer, look to those who served the idol, occupied the cavern, or possessed the grove as the real holders of the power to govern.

Or the traveller might have found a people using a written language, who might show him inscriptions on stone, brass, wood, parchment, or paper, and tell him that these monuments were the rules by which alone every person in the land acted or refrained from acting; that these inscriptions were themselves the power he sought, and the only holders of the power. But if the traveller came from any other country than the United States he would still look about for a human agency, a human intellect interpreting the meaning of the words, and a human will and force compelling obedience to that meaning, and would ascribe the authority of these written monuments to those who were visibly uncontrolled in executing the injunction or leaving it unexecuted.

Or the traveller might be told that, in that country and among that people, the person whom he sought was not to be found, because the force or power of which, as he supposed, some persons must be possessed, did not there exist. He might be informed that in that country everything that was done or left undone was so done or left undone by the will or consent of the several persons by whom, as the actors, it might be so done or left undone.

This people might say that, while their written monuments described or defined the relations of individuals to each other, there was no force giving effect to these provi-

INTRODUCTION. xix

sions, as law, because the consent of the individuals whose relations were so described or defined was sufficient to maintain the existence of such relations.

The traveller might, at the same time, observe persons who were suffering penalties for transgressing the provisions of these laws, and some who, at the instance of others, had been subjected to coercion in respect to their relations to these others ; and he might be told that these penalties were borne and this coercive action took place only by the consent of the individuals affected by them.

Or the traveller, while sojourning among this people, might witness a war in which millions of this people had risen in arms, with the declared intention to nullify or make void, as to themselves, the public relations defined or described by the written monuments, or so-called laws ; and he might be told that the sacrifice of life, disaster, and final defeat suffered by these millions, followed by the unrestrained action of the other party to this war, were an illustration or evidence both of the fact that all public relations in that country rested on the consent of the individuals affected by such relations, and of the inherent potency of the written monuments to maintain their own provisions ; and, moreover, as a proof of the absence of any such power-holder as he had made the object of his vain inquiry.

What opinion the supposed traveller might have of this testimony would depend, perhaps, very much on the place of his nativity. He might at any rate be able to tell the supposed people that they were not, as they might have imagined, the only nation in the world glorying in such conceptions of itself ; that, to his knowledge, the people

XX INTRODUCTION.

of the United States of America had always contended that this was precisely their own position.

Like the supposed traveller, I have regarded myself bound to search for a fact. I have, then, no political philosophy to offer, by which the existence or non-existence of observed facts should be judged ; nor do I propose to argue for the existence of political facts from the existence of other facts which are not political facts. I do not propose to show, from principles assumed a priori, what political energy has been actually exhibited here hy human beings ; nor do I propose to show the same thing by conclusions as to the necessary result of conditions of soil and climate, the relative situations of seas, rivers, mountains, and other geographical phenomena.

As I have no principles of political philosophy to start with, I do not propose to use any observed facts as illustrations to prove the merit or demerit of any such principles. That such a method of testing political principles is a proper one, and that it offers a subject worthy of the severest study, I readily agree : but it is not the subject here considered.

Yet, without having any preconceived political theories to start with, by which to judge of the existence or non-existence of observed facts, it is still necessary to have some definite idea of the object of search. I am prepared to recognize any existing political fact, as a fact. But, in searching for a fact, something in the nature of a definition of the fact sought is required. This I propose to give here as definition, in distinction from doctrine. Though I am aware that some will say that such definition is doctrine, I am obliged to state it as definition, or as propositions

INTRODUCTION. XXI

which need no proof, because I know of no proof that can be given.

I conceive that wherever human beings exist in society, some of them do, as a matter of fact, exercise a power over others, — a power operating more or less visibly, in some form, quite distinct from the merely casual exercise of superior force and cunning exhibited by brute beasts towards each other. It is an intelligent exercise of power ; the power is consciously exercised by some in respect to others, who are conscious of its being so exercised.

The power so exercised is voluntary or autonomous in the hands of those who exercise it. It is to be recognized only as it is so exercised voluntarily or'independently of control by any other holder of similar power.

The power so exercised is limited only by conditions of physical existence. Those who hold it, being creatures of a moral nature, are under the obligations of a moral standard of action, imposing duties on them in the exercise of the power, which duties they may recognize more or less distinctly. But the obligations imposed are not imposed under the power in question, and the possession of the power, as a fact, is determined independently of the observance of the obligation. Those who hold the power are not responsible under any power of the same sort, even so far as they are responsible at <ill.

The power is one which is exercised continuously, or as a constant force. It has never been apprehended as beginning to exist in the hands of any actual holders, but known only as it has been transmitted to them from some former holder. History, as distinguished from fable, myth, or allegory, does not record its inception, but recognizes it