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The laws of every State then gave the lie to it. The property then held in every State gave the lie to it.
gave the lie to it. Mr. Jefferson's own estate gave the lie to it. Every election then held in Virginia gave the lie to it. Soon after the Constitution of every State prescribed the qualification of voters, or, in other words, declared who were the People of the different States, and excluded all who were not so qualified and prescribed the qualification of office-holders, law-makers and excluded those that were not thus qualified. The Constitutions of New Hampshire and Vermont declare that “all men are born equally free and independent;" that of Massachusetts, “ free and equal,” and that of Connecticut “equal in rights,” and yet these very constitutions also declare who alone shall constitute its voters, and alone shall be qualified to hold certain offices, or to make the laws or to elect those who shall make them. It is worth noticing that these constitutions derive all these imaginary rights from a supposed Original or Social Compact, and are unquestionably borrowed from Rousseau. Qualified voters and free white men were then alone considered as constituting “ the people,” and it was so understood by the framers of our government, and if anything more was intended it was a fraud upon those who adopted them. The Declaration of Independence was only in the nature of a proclamation, and it was enough that all agreed in the substance. No one could have been expected to believe in every flourish, and we have seen how little attention was paid to the preamble when the Constitution was enrolled and adopted. The principal of universal suffrage was not introduced, as Prof. Gervinus supposes, by our Constitution, however countenanced by the Declaration of Independence, and the Constitution of every State, as well as the Constitution of the United States, denies that every man has “natural rights” of which the learned German professor says, “no form of government can deprive him.” And yet it is too true, as Chancellor Kent says, that “the progress and impulse of popular opinion is rapidly destroying every constitutional check, every conservative element intended by the sages who framed the earliest American Constitutions, as safeguards against the abuses of popular suffrage.”
The right to define who are its citizens and who constitute the legal people, is a power indispensible to sorereignty, and has been exercised by the purest democracies. The universality of the usage proves its indispensibility to the maintenance of good order and the safety of society. “The right of voting," says Judge Story, “like many other rights, is one which, whether it has a fixed foundation in natural law or not, has always been treated in the practice of nations as a strictly civil right, derived from and regulated by each society, according to its own circumstances and interests.” Every State has the right and Congress cannot conştitutionally deprive it of a right so essential to its well being and safety. The question was debated in the Convention when the Constitution was formed” whether it would not be more fair and equal and more likely to ensure a direct and immediate representation of the popular opinion if a uniform qualification for voting for the House of Representatives were adopted. It was, however, unanimously decided otherwise.” This decision proved too important points. First, that our ancestors did not agree that all men are born equally free and independent, or equals, and secondly, that this was not a consolidated government of the people of the United States for the purposes of the Government, or in any other sense, but a confederation or partial Union of sovereign States for certain specified purposes—and that the government thus formed operates on the States and on the people of the States, only so far as the State governments have given their assent; and that we are the people of the United States, and not the people of a State, that has no name; and that the States alone can say who shall constitute its people, or whom they shall reject.
In the Grecian Democracies, the supreme power was retained by the people in their own hands. But people there did not mean every body. In their public assemblies they passed whatever laws pleased them, and they exercised all the supreme powers of the State. But it is admitted, and approved of by Rousseau, that their assemblies were not legal, and had not in their decrees sovereign force, unless the meeting was called according to prescribed rules. Those rules were their constitution, and thus even their authority emenated from the laws. (Contrat Social, Liv. 3, ch. 13.)
It is only then, in a legal way, that, even according to the excessively jacobinical ideas of Rousseau, and the practice of the purest democracy the people could, even when assembled, exercise sovereign power. Indeed Rousseau says, that when the people of Athens were legally assembled, and appointed their commanders and cashiered others, decreed honors to some, and imposed fines and penalties upor others, and by various decrees exercised indis. tinctly all the acts of Government, the people then were no longer possessed of the general will, properly speaking—they acted no longer as sovereign, but as magistrates. This, says he, may seem contrary to common ideas, but he only asked time to explain his. He begs the attentive reader, not to hasten to accuse him of contradictions. He is forced to it by terms and the poverty of language—“mais attendez," but wait and we would see! And we do see that he soon after utters the following absurdities and contradictory propositions. That the sovereignty being composed of individuals, could have no interest adverse to the individual, and therefore there was no necessity for guaranties in favor of the subject, and that this power can never be transferred, divided or represented; "for if the people promise to obey, they are annihilated by the act, and lose the quality of people. The instant they give themselves a master they are no longer sovereign-and from that moment the body politic is destroyed.” (Liv. 2. ch. 1.)
We at the South, believe the law is master, and to that master we willingly submit. We acknowledge that power may be transfered, divided and represented, as our State and General Government prove. We cannot, therefore, adopt Rousseau's idea of sovereignty, nor can we believe with him, that the people can never err, “because the general will is always right and tends always to the public welfare.” He proceeds to say that Government is an intermediary body established between the subject and the sovereign, for their mutual intelligence, charged with the execution of the law and the maintenance of political and civil liberty. pose, he says, that the State is composed of 10,000 citizens. The sovereignty could only be considered in them collectively, and in a body. That each taken separately, in the character of a subject is considered only as an individual; thus the sovereignty is to the
subject as 10,000 is to 1: that is to say, that each member of the State has only for his part the ten thousandth part of the sovereign authority, although he is entirely subjected to it. Then, says he, the subject always remaining as one, the relation of the sovereignty augments in proportion as the number of citizens. Whence it follows that in proportion as the State is enlarged is liberty diminished.” Here we see that individually, we are all subjects, and must obey the law, but collectively we are “the people” and are sovereign and above the law. Yet he says, ernment may be considered as a new body in the State, distinct from the people and from the sovereign, and intermediate between the two. In other words, the people are the sovereignty and of course one and the same, and yet he places an intermediate body between them! Of course it must follow that the people are not sovereign, if his proposition as to Government be true. But he not only confounds “the people” with sovereignty, but subjects also, for he says: “ The words subject and sovereign are correlatively identical terms, and are comprehended by the single word citizen.” (Liv. 3d ch. 13.) Again he says, “the moment that the people are legitimately assembled in their sovereign body all jurisdiction of government ceases, the executive power is suspended, because, wherever is found the represented there can be no representative.” With us there can be no legitimate action of government but through representatives. The constituents never act but to vote for representatives to various functions.
Even so in conventions of the people, as they are falsely called, for in truth they are no more conventions of the people than the legislatures are. But, in whatever way it is done, according to Rousseau, the moment that a people appoint themselves representatives, they are no longer free,—they cease to exist,—“il n'est plus.” “In the first place, the supreme authority can neither modify nor transfer itself, to limit is to destroy it. It is absurd and contradictory for the sovereign to give itself a superior; to oblige itself to obey a master is to remit it to its full liberty.” (Ch. 16.) With these premises Rousseau is led, of course, to the conclusion, that “the deputies of the people are not then, and cannot be their representatives; they are nothing but their commissaries or fac
tors, and can conclude nothing definitely.” Hence has grown up the unconstitutional and mischievous doctrine of instructions.
Benjamin Constant, who was himself a rational liberal, said, on some occasion, that he knew nothing more fatal than the eternal metaphysics of the “Contrat Social.” It leaves no resourse against the dominant power of the people, no barrier against the sovereign power, no protection or independence to the individual. Grosser contradictions cannot be found than in the Discours Sur L'origine de L'inegatité, and in the Contrat Social. This, we think, we have sufficiently shown. Could
Could any other consequences follow such theories but discontent, disobedience, socialism, communism, emeutes, barracades, civil wars, revolutions and social convulsions.
In another place Rousseau says, the political body is called The State when passive, the sovereign when active, and all associates under the Social Compact, take collectively, the name of the people, and in particular “that of citizen, as participating in the sovereign authority, and subject, when submitting to the law. He had just said before that when they act, they put off their sovereignty and act as government, and people, citizen, subject and sovereign are all confounded in a chaos of confused sentences and contradictory propositions, that must put an end to all law and all government; for says this author of the doctrine of the sovereignty of the people, no man can be one of the sovereigns if he submits to the law, for if he promises to obey he is annihilated by the act, ceases to be one of the people, and by thus taking upon himself a master terminates his sovereignty, with the body politic. The corollary that must follow from such a proposition is inevitable—that there can be no popular sovereignty where the law governs. And to maintain the doctrine, we must abandon the supremacy of the law, and acknowledge the full force and obligation of the “ Higher Law” principle, or of the code of Chief J. Lynch.
With Mr. Guizot, we believe that a man has not an absolute power over himself in virtue of his will: as a moral and reasonable being he is a subject-subject to laws which he did not himself make, but which have a rightful authority over him. “If the