« ПретходнаНастави »
the citation, not only deserves, but stands very much in need of further illustration.
“The jurisdiction or sovereignty of a state may exhibit itself in various forms, and may be exercised by various ministers. One man or many may exert it over the rest, and over the territory which they inhabit. It seems, then, to follow from this circumstance, and from the remarks just made on the nature of jurisdiction, that the change or dissolution of a government does not destroy this sovereignty, and thereby reduce the members of the community to a state of nature. Hence, though the depository of its jurisdiction may be changed, the power itself resides in the nation at large : the taking of the sovereignty out of the hands of any particular person or persons, and even an utter uncertainty where particularly to place it, can have no other effect than to reduce the community to that situation in which it was before the jurisdiction was placed in special hands. For to the formation of a government two circumstances are requisite ; first, that a body of men shall unite to form a political society; and secondly, that they shall have determined in what form it shall be ruled : hence the social compact, and the constitutional compact are two very distinct things. It appears, then, to be obvious that the dissolution of the government, which is the constitutional compact, cannot reduce the members to a state of nature, but merely to a state of social and civil union; in which case the sovereignty has reverted to that abstract entity called the state or nation. When an event of this kind happens therefore, as it did in Rome, on the expulsion of Tarquin; in England, on the decapitation of Charles; in France, when they executed their king, and dissolved the government; and in the United States, when we absolved ourselves from all allegiance to the British throne and nation, and declared ourselves independent: in all these cases, I say, the members of those states were, indeed, no longer subject to the entire code regulating the political state, or form of government. Still they were not without law, but remained under the general obligations resulting from the nature, ends and necessities of civil society; and likewise subject to all the civil and criminal laws which were not necessarily involved in the downfall of the political
In every case where such a dissolution occurs, the jurisdiction over the citizens at most results back to the source whence it came, and the collective body may either adopt a new and different constitution, or dissolve even the social compact also. In such a case only would they be reduced to the supposed primeval state of man, and could then emerge from this state of nature only by uniting themselves to other communities, or by forming themselves into a new society, either primary or civil. You perceive, then, not only that a dissolution of the government leaves its members in a state of civil union, but that all the municipal or civil laws of that society remain in full operation, as far as they do not relate to the mere political state, which it was the design of the revolution to change. And though these civil laws may have emanated from a particular form of government, and from a policy somewhat peculiar to such a form, the abolition of that forns does not per se imply a repeal of those laws. The ultimate sovereignty of all societies
must reside in the people. The constitutional compact, or form of government, originated from them, with full powers in certain functionaries to enact, from time to time, such laws as shouid be deemed expedient. Now, if the people see fit to abolish the constitution, the laws which have been established by that government, having been virtually sanctioned by the people, are not annulled by the mere abolition of the government by which they were expressly enacted. All laws, therefore, whether they concern things mala in se, or mala prohibita, remain in full force, and their violation would be punished according to such forms and by such functionaries as remained, or by such as should be subsequently provided. A mere declaration by the people, that a monarchy or an aristocracy, for example, should no longer exist, but that all such delegated powers should revert to the people, would neither abolish existing civil laws, no deprive the judiciary, and various other depositories of power, of their right, nor lessen their duty to vindicate the laws. If the people indeed, by a proper declaration of their wishes, were expressly to abolish the whole, there can be no question but that the whole political fabric would be dissolved, and every individual would be placed in a mere state of nature, or, at most, of primary society.
“ Revolutions, under any system of melioration, are sufficiently pregnant with evils, without those direful consequences which would necessarily result from the doctrine we have impugned. We presume, therefore, that public policy, and the implied wishes of the people would sanction the opinion, that all revolutions which do not expressly declare by the voice of the people, that all powers, of every kind, should revert to them, and that all laws should be abolished, could have but the effect to revoke those political powers which it appeared to have been the manifest design of the people to abolish, and to leave all other powers and laws in operation, so far as they can consistently operate, after the constitution or political state is annulled. We have dwelt the more on this point because, obvious as it certainly is, it has not been always practically regarded, as the history of revolutions abundantly proves. In revolutionary times, when the passions are excited, there are men, and philosophers too, who boldly maintain that revolution implies a dissolution of all compacts, government and laws; that the people, in their majesty, are once more placed in a state of natural equality ; and that all responsibility, except to God, or to the people as in a state of nature, has terminated. In a country like ours, whose constitution and laws so manifestly originate from the people, and where the relations between that people and their functionaries are so clearly defined, we have little to apprehend from revolutions, should they occur; and still less from such dangerous and disorganizing tenets as have sometimes disgraced revolutions in other countries. It was, nevertheless, proper that the salutary doctrine of this subject should be clearly inculcated." pp. 223226.
The doctrine which is thus expounded by Mr. Hoffman, may be branched out into a great variety of important questions. It applies for instance, to the interesting case of French Spoliations, which our government is, at this very moment, called upon to settle by a diplomatic discussion. What constitutes the identity of a state? What is a revolution in the government, and how far does it affect the rights and duties of the body politic towards other bodies politic, or towards individuals ? At an early period in the history of political philosophy, this important question seems to have been fully considered. Aristotle who discusses itrather sceptically-in the third book of his Politics,* seems to think that the identity of a state depends upon that of its polity or forın of governmentbut whether a change in the latter exonerates the people or the body politic at large, from obligations previously incurred, he considers a very distinct question. This last difficulty might well have made him doubt the soundness of his previous positions. Thinking, as we do, with Mr. Hoffman, that “the social compact and the constitutional compact are things altogether distinct,” we should propose as a decisive test of the correctness of our opinion, the very case which Aristotle admits to be inconsistent with his own. If a state, under a different form of government-another dynastya constitution altered in all its characteristic lineaments and principles, is still bound by the obligations contracted under the old régime, to talk of its identity being determined by the form of its polity, for any other purpose than that of a mere theoretical exactness, would be altogether idle.
Another important point of view in which the same doctrine may be presented, is in relation to allegiance and its legal incidents and consequences. As early as the year 1781, in the case of the Commonwealth vs. Chapman,t this question arose in the courts of Pennsylvania, and since that time, it has been frequently discussed and variously settled-if settled it can be said to be-in other states. In two causes which were heard at the last sitting of the Supreme Court of the United States, and which are still held under advisement, the whole doctrine was very fully reviewed in the argument of counsel. We have reason to expect from that eminent judicatory, a comprehensive exposition of the subject in its various aspects and relations. It may be observed meanwhile, that our writers and judges, shortly after the revolution, but especially wbile the madness wbich "ruled the hour” of the French revolution was raging here as it did elsewhere, too often gave countenance to maxims irreconcileable alike with all the analogies of law and with all the admitted precedents and the necessary policy of civil society.
Chapter 2. + 1 Dall. 53.—That was a mere nisi prins opinion. Besides it was no decision. The Jury found a general verdict of not guilty, at the instance of the Judge, who thought the point too doubtful to be pressed in a capital case.
Indeed, no theory was too wild or extravagant for that
of reason. The popular definition of well-regulated liberty seemed to be that every body might do as he pleased without respect for his neighbours, and all obligations, moral or political, natural or civil, were regarded as inconsistent with the rights of man. It was just the sense of a Greek proverb, which we do not care to translate more literally ελευθέρα Κορκυρα, χεζ' όπου θέλεις. . We observe, however, that the tendency has been, of late, the other way. Leaving those magnificent notions of the rights of nature and the freedom of the individual, to writers whose impracticable speculations are read by us, as Voltaire pleasantly says of them, for the same reason that we keep in our houses the portraits of individuals whom we never saw and never expect to see, our opinions are beginning to be sobered down into something like consistency, with the stern realities of of life-and, we may add, of law.
It was argued in Chapman's case, that "the doctrine of perpetual allegiance to be found in the books, applies only to established and settled government, not to the case of withdrawing from an old government and erecting a distinct one. That in this latter case, every member of the community has a right of election, to resort to which he pleases—that even after the new system is formed, he is entitled to express his dissent, and dissenting from a majority, to retire with impunity to another country.' This doctrine is taken from Vattel and some other publicists, who seem to consider the case of a change in the Constitution of a government or the dismemberment of an eni pire as an exception to that universal and fundamental rule of all corporations, that the will of the majority is constructively the will of the whole body. There appears to us to be no foundation in reason for any such distinction. If the majority-whether actual or constructive-of a body politic, has a right to bind the minority without its consent, in any case, it has a right to do soexcept where positive law interferesmin all.* As for a change of the Constitution of a State-a thing, regarded in Europe as a portentous convulsion in the moral world--it would be rather a startling proposition, we suspect, in any part of this country, to ascribe such serious consequences to so very slight a cause. It seems to be one of our favourite national amusements to pull down and put up our governments. Noone among us, we believe, ever thought that if it pleased the majority of a people to indulge itself in an innocent recreation of this sort, the minority had any better right to take it in dudgeon than to quarrel with the most trivial
* That is to say, in a simple, consolidated government. VOL IV.NO. 7.
amendment of the law. Even in Virginia, that has hitherto adhered to her established institutions with all her characteristic firmness of purpose and practical good sense, a freeholdsuffrage-man would scarcely think bis allegiance to the State dissolved by the triumph of the more philosophic (si Diis placet) and liberal spirit of the nineteenth century. If it is meant to affirm that a citizen may expatriate himself whenever be shall see fit to do so without the consent, express or implicit, of his country, we readily comprehend, though we do not accede to the proposition. But we cannot conceive how any one, admitting the principle of allegiance, as laid down by our soundest lawyers, can persuade himself that it does not apply to the case of a revolution. For, after all, wbat is a revolution ? In our own country, thirteen regularly organized, distinct, and, to many purposes, independent commonwealths, were connected by the bond of a sort of confederacy or allegiance, (the name is immaterial) with their common mother country, as they have since been united with one another. Every thing, however, that can constitute a separate and perpetual body-politic, was to be found in each of them before the great schism-legislation, judicature, a perfect community of interests among the inhabitants of a designated territory, united thoughts and counsels, equal hopes and hazards in every public and private enterprise-in war, the commune periculum, una salus-in peace, the name of brothers, and the right hand of friendship, and the endearing charities of the hearth and the homestead-in short, a social compact, as clearly defined, as religiously consecrated, as indissolubly knit together as it is possible to conceive. A dispute about an assumed right of the mother country is decided by the majority against her pretensions. It is further determined, by the same majority, that the colonies or provinces no longer owe any allegiance to a government which has affected to set at nought the principles of the great constitutional compact of the empire. The umpirage of the sword is resorted to, and the issue is favorable to our revolutionary doctors. All connexion with the mother country ceases, and the internal government of the State goes on as it did before. By what process of reasoning is it attempted to be made out, that the majority of the body-politic, which has thus determined the question of allegiance in the name of the State, and thus maintained its position by force, has not a right to decide upon this most vital concern, as it was wont to do upon all others ? Political orthodoxy, in Republics, is the same thing as religious orthodoxy in the Romish church. It means the decree of an ecumenical council—the voice of the majority, which is infallible, because it is paramount. The conciliabulum and the anti