Chapter II: • Winds of Political Doctrine (2)

Not content to prove the original compact nature of the Constitution--an argument that runs through fourteen hundred pages, buttressed by a mass of citations from all sources and wholly convincing in its evidence--Stephens undertakes to prove the wisdom of the fathers in establishing the federal union in compact. In respecting existing loyalties to the several commonwealths, they not only preserved the local democracies--which, as a Jeffersonian, Stephens believed were the foundation of good government--but they established the federal state on a strong and enduring foundation. The Hamiltonian consolidationists had asserted that a strong state must rest on the principle of coercive sovereignty, that it can he held together only through the exercise of authority. Stephens replied by laying down the counter principle that the secret of a strong and enduring state is to be discovered in the spontaneous loyalty of its citizens, and that in consequence a democracy which rests on the good will of the people as a whole is the most enduring of all forms.

A Government, to be worth anything, ... must be strong. Its parts
and members must be held together by force of some sort. This I
cordially admit. We do not differ as to the force or its extent; we
differ only as to its nature and character. Should it be a physical
or moral force? In my judgment, the strongest force that can hold
the parts or constituent elements of any Government together is the
affection of the people towards it. (_Constitutional View, etc._,
Vol. I, p. 526.)

Affection, he reasoned, cannot be coerced. It must spring spontaneously from the recognition that government is useful, that it is just, that it treats all its parts and members equally, that it is an agency erected by a free people to serve the ends of freedom. Allegiance is an individual compact between the citizen and government. Destroy the principle of voluntary allegiance, seek to coerce the citizen, impose upon minorities the ruthless will of majorities, subjugate individual commonwealths, and the federal Union which Jefferson believed to be “the strongest Government on Earth,” would indeed become what Hamilton in his blindness to the secret of power believed that it was--“a frail and worthless fabric.” “But the indissoluble union between the several states of this Confederated Nation is, after all, not in the _right_, but in the _heart_” (_ibid._, Vol. I, p. 527). So long as the rights of all are respected, the common interest and common loyalty will preserve the union. Injustice alone is to be feared, for no political bonds can long resist the action of this most potent of social dissolvents.

Modern as Stephens was in the assertion of the principle of good will as the source of sovereignty in democratic government, he belonged to his own generation in his blindness to economic motives. He thought exclusively in legal and constitutional terms; he remained wholly a lawyer. It is hard to understand how one so profoundly read in our political history should have failed to discover the workings of economic forces beneath the surface of politics. Calhoun, bred in the same Jeffersonian school, had found his way through the mist of equalitarianism to the solid realism of an earlier day; but to the last of his fourteen hundred pages of exposition Stephens retained the illusion that the political state is something apart from economics and superior to it. He conceived of government as an end in itself, and this lends an air of unreality to his thinking. An ardent Jeffersonian, he reduced the philosophy of his master to the compact theory of government. The economic basis of Jefferson’s philosophy, his love of an agrarian order and hatred of capitalistic exploitation--motives which serve to explain and justify his theory of local self government--Stephens wholly ignores. The result is a grotesque perversion of a philosophy which John Taylor had elaborated clearly. Jefferson was a much greater political thinker than Stephens conceived, although he called him the “greatest philosophical statesman” America has produced. In his estimate of Andrew Jackson he falls into the same mistake. He attempts to reduce the confused career of Jackson--half middle-class in his earlier years and later returning to agrarian principles--to the same narrow compass of the compact theory. Even Webster, for whom he entertained “the highest esteem and admiration,” and in praise of whose moral qualities he is almost fulsome,[405] he quite failed to understand. Webster’s theory of the Constitution, he clearly demonstrated, was utterly unhistorical; but Webster’s economic alliances he ignored. What havoc was wrought in current politics by suffering political theory to obscure economic reality is suggested by the fact that Stephens, a Jeffersonian in every instinct, turned Whig and voted for Webster in 1852--after the latter’s death. Politics makes strange bedfellows, yet it must have been an ample bed that could sleep the spokesman of an agrarian economy and the spokesman of capitalism side by side.

In his attitude towards slavery Stephens was a product of his Georgia environment. His views were ready-made, out of the common southern storehouse. The economic determinism which he ignored in politics had its revenge, and the man who often differed with his constituents on political issues fell victim to the subtle power of economics. As the South Carolina philosophy took form, issuing finally in the romantic conception of a Greek democracy, it imposed itself imperiously on the southern mind, on the commoner equally with the aristocrat. It was impossible to escape, unless, like Moncure Conway, one were of an idealistic temper far different from the common run. For Stephens it proved impossible. In this matter of slavery he had no individual opinion; his mind was molded by the common psychology and became a repository of the common prejudice. He followed his fire-eating friend Bob Toombs into the camp of Calhoun, and talked about a Greek democracy in true Charleston style. In a speech delivered on March 21, 1861, shortly after he was chosen Vice President of the Confederacy, he gave expression to the new philosophy in these words:

The prevailing ideas entertained by ... most of the leading
statesmen at the time of the formation of the old Constitution
were that the enslavement of the African was in violation of the
laws of nature; that it was wrong in principle, socially, morally,
and politically. It was an evil they knew not well how to deal
with, but the general opinion of the men of that day was that,
somehow or other in the order of Providence, the institution
would be evanescent and pass away.... Those ideas, however,
were fundamentally wrong. They rested upon the assumption of
the equality of races. This was an error. Our new government is
founded upon exactly the opposite idea; its foundations are laid,
its corner-stone rests upon the great truth that the negro is not
equal to the white man; that slavery--subordination to the superior
race--is his natural and normal condition ... in conformity with
the ordinance of the Creator.... Our Confederacy is founded upon
principles in strict conformity with these [Divine] laws. This
stone which was rejected by the first builders “is become the
chief of the corner”--the real “corner-stone” in our new edifice.
(Pendleton, _Alexander H. Stephens_, pp. 251-254.)

To the end of his life Stephens saw no reason to change his opinion on negro slavery. He regarded it as more humane than wage slavery because of the patriarchal responsibility devolving upon the master. The institution was not founded, he said, on “the erroneous dogma of the greatest good to the greatest number,” but on the broader principle of securing “the greatest good possible, morally, intellectually, and politically, to all classes of persons ... without necessary wrong or detriment to any” (_Constitutional View, etc._, Vol. I, pp. 539-542). In his relations with his own slaves he followed the best traditions of the South. His kindness won their loyalty and affection. “Ef he ain’t in heaven,” said a house servant after his death, “’tain’t no use for anybody else to try to git dere” (Pendleton, _Alexander H. Stephens_, p. 100). To the argument of Hinton Helper that the system was economically ruinous to the poor white, he seems to have given no consideration; but to the argument of the Abolitionist that it was immoral, he replied with deep conviction. On that point he would not yield an inch. After quoting a miscellany of Biblical texts from the earliest Hebraic times down to Paul, he comments naïvely:

To maintain that Slavery is _in itself sinful_, in the face of all
that is said and written in the Bible upon the subject, with so
many sanctions of the relation by the Deity himself, does seem to
me to be little short of blasphemous! It is a direct imputation
upon the wisdom and justice, as well as the declared ordinances of
God, as they are written in the inspired oracles, to say nothing of
their manifestation in the universe around us. (_Ibid._, Vol. II,
p. 83.)

It is doubtful wisdom for the layman to meddle with Scripture. Stephens was a sounder interpreter of the writings of the constitutional fathers than of the will of God.

A careful historian devoted to a single idea rather than a creative political thinker; a thorough democrat of the Jeffersonian school, humanitarian, liberty-loving, courageous; a man who devoted his life to the preservation of constitutional liberty as it had taken shape before the industrial revolution unsettled the basis of modern life, Alexander H. Stephens was an honest gentleman who bravely defended the traditions of the South in the face of a new order. He was of an earlier generation, instinctively hostile to all consolidation, which, under the impulse of economic evolution, was obliterating state lines, gathering financial power in great reservoirs, and creating a new alignment between labor and capital. With such evolution it was axiomatic that political practice should follow economic fact; that a consolidating wealth should create a consolidated political state. Great enterprises with ramifications in every section would not long tolerate a multitude of state sovereignties; sovereignty must be centralized at Washington where it could be guided and controlled. The war only hastened what in the nature of things was inevitable. Stephens rightly insisted that slavery was only the immediate _casus belli_. The deeper cause was the antagonistic conceptions of the theory and functions of the political state that emerged from antagonistic economic systems. That the principle of local self-government should have been committed to the cause of slavery, that it was loaded with an incubus certain to alienate the liberalism of the North, may be accounted one of the tragedies of American history. It was disastrous to American democracy, for it removed the last brake on the movement of consolidation, submerging the democratic individualism of the South in an unwieldy mass will, and surrendering the country to the principle of capitalistic exploitation. Stephens never seems to have realized this grave mistake in strategy. He never realized that the principle of democracy, in the cause of which he believed that he was faithful to the end, received a staggering blow from the enlistment of northern liberalism under the banners of a consolidating nationalism. He remained to the last an unreconstructed Jeffersonian, convinced that the lost cause was the cause of liberal democracy.

IV • Francis Lieber • A New-Modeled Federalism

To turn from Calhoun and Stephens to Francis Lieber is to pass from the South to the North, from an obsolescent political theory to a prophetic conception, from the doctrine of states rights to the principle of an evolving state that draws all lesser sovereignties into its orbit by the law of attraction. Joseph Story had educed the legal conception of the organic nature of the federal union from the terms of the Constitution; Francis Lieber provided a philosophical background that justified the same conclusion; and under the combined legal and philosophical attack the compact theory found its philosophical breastworks leveled, its natural-rights theory undermined, and its commanding position effectively turned.

The figure of our first academic political philosopher appears oddly out of place in the midst of South Carolina politicians, yet fate set the studious German in the thick of the Fire Eaters, to cogitate a philosophy of freedom in the land of slavery, and to justify the spirit of nationalism amongst the advocates of particularism. For twenty-one years he lived quietly in his southern classroom and study, disregarding the passions that buzzed about him, elaborating ideas that in later years came to exercise a determining influence upon our academic political thinkers, and publishing ponderous volumes that marked the beginning of the swing away from the natural-rights philosophy and towards the conception of an engrossing political state. Applying German liberalism to American constitutionalism, he succeeded in new-modeling the Federalism of Hamilton and sending it forth to meet the needs of an imperializing generation. He agreed with Calhoun in the latter’s attack on French romantic theories; he agreed with Webster in the conception of the organic nature of the federal compact; but he went further and elaborated a theory of the state as an historical development that receives its form and spirit from the impress of social needs. Building on a foundation provided by Montesquieu and Burke, guided by Hamilton and Marshall, he set about erecting a structure that in the hands of Theodore Woolsey and John W. Burgess came to overtop all local and state sovereignties--an imperial authority that, in the words of Burgess, must become “the organ of interpretation in last instance of the order of life for its subjects” (Merriam, _American Political Theories_, p. 299). In that subtle shift of vocabulary from citizen to subject appears the final result of the speculations begun by Lieber, which in rejecting the natural-rights philosophy overthrew the defenses erected by the eighteenth century against an engrossing political state, and set the individual citizen at the mercy of a new divine-right sovereignty. “Really the state cannot be conceived,” according to Burgess, “without sovereignty, _i.e._ without unlimited power over its subjects; that is its very essence” (Merriam, _American Political Ideas: 1865-1917_, p. 380).

Between the democratic Stephens and the imperializing Burgess stands the work of Francis Lieber. Born in Germany in the year 1800, son of a well-to-do Berlin family, Lieber’s youth and young manhood fell in stirring times. When only fifteen he served in the Waterloo campaign under Blücher, was wounded, stricken with typhus, and nearly lost his life. From those perilous experiences he emerged a pronounced liberal. During the Metternich reaction he fell under suspicion, served a prison term for his political opinions, graduated from the University of Jena, and in 1822 went to Greece with a group of young German idealists to serve the cause of revolution. Disgusted with the Greek character he made his way to Italy, fell in with the historian Niebuhr, became tutor to the latter’s son for a year, continued his university studies, was a second time imprisoned, and finally in 1826 quitted a hopelessly reactionary Germany, spent a year in England, and then emigrated to America, following the example of Prof. Charles Follen. In Boston he taught gymnastics for a time, edited the _Encyclopedia Americana_, and in 1835 was appointed to the professorship of history and political economy in South Carolina College. Here he remained till 1856, teaching, writing, and acquiring academic fame. In 1855 he aspired to the presidency of the college, a post then vacant, but his political theories were in disrepute with the legislature, and his views on slavery were under general suspicion. Becoming embroiled with the politicians, he lost the post, resigned his professorship, and went to New York City, and in 1857 he was called to the new chair of history and political science at Columbia, where he remained till his death in 1872.

The two books on which rests his reputation, _Political Ethics_ (1838-1839) and _Civil Liberty and Self-Government_ (1853), are substantial volumes quite lacking the genial note that marks his _Stranger in America_ (1834), a series of sketchy letters that among other things contains an extraordinarily vivid account of his experiences at Waterloo (_Letters VI, VII_). To a casual reader these excursions into the philosophy of politics are as soberly respectable as a judge’s wig, as studiously conventional as a professor’s gown. He went about the business of blowing up the accepted Jeffersonian philosophy decently, in the name of the law and under the high sanction of liberty. There can be no doubt that this German liberal was a passionate lover of liberty, and no doubt of his conviction that freedom is possible only in a society under the reign of law. Like Hamilton, he had no local ties or state loyalties to circumscribe his political allegiance. It was natural for him to think in terms of nationality. His bitter experience in Germany had laid open to him the fatal weakness of petty states, and he was loath to see repeated in America the history of warring antagonisms that disrupted the German people. He was a profound admirer of the British constitution, more English than German in his conception of liberty.

The nationalism of Lieber was identical with that of John Adams. It was, in a phrase, government by law. But this government by law was both political and legal. The former, he believed, was admirably provided for by the federal Constitution; the latter was equally provided for by the body of the Common Law; with these twin safeguards, he was convinced, the liberty of the citizen was assured. In his interpretation of the Constitution Lieber added little that was new. He followed the older Federalists back to Montesquieu, and accepted the existing system of constitutional checks as the final word of political wisdom. In _Civil Liberty and Self-Government_ he glorifies the federal system as the apotheosis of representative republicanism, quite unconcerned at its undemocratic features. The sufficiency of the Common Law to all social needs and the implicit sovereignty of the judiciary, he regards as equally axiomatic. “The law,” he says, “must be the lord and our ‘earthly god,’ and not a man, a set of men, or the multitude” (_Civil Liberty and Self-Government_, p. 208). Yet with the common blindness of the legalist, he proceeds to erect a profession above society, and exalts a group of judges, appointive and not elective, preferably holding office for life, as the embodiment of impartial justice. That it is a presumption contrary to fact seems not to have entered his mind. That judicial interpretation implies judicial legislation, and that judicial legislation implies the sovereignty of lawyers, are logical deductions of which his philosophy made no account. Unfriendly to a democracy, he was content to yield authority into the hands of the judiciary.

But if in his exaltation of the Common Law he was as extreme a legalist as Hugh Legaré, in his doctrine of historical evolution he discovered the seeds of freedom in what he calls institutions. By these he means the organic expressions of daily life, or the customs of society which take spontaneous form from its needs. It is no other than the social fabric that Tom Paine was fond of contrasting, in its pervasive and beneficent coöperation, with the repressive tyrannies of the political state. Where liberty reposes thus in the social fabric, Lieber argues, the sovereign power is held in check; and where institutional freedom has not taken root, the political state will run into absolutism.

“Liberty,” he argues, “is a thing that grows, and institutions are its very garden beds. There is no liberty which as a national blessing has leaped into existence in full armor like Minerva from the head of Jove. Liberty is crescive in its nature. It takes time, and is difficult, like all noble things.... It must be defended, developed, conquered, and bled for. It can never be added, like a mere capital on a column; it must pervade the whole body” (_Civil Liberty and Self-Government_, pp. 334-335, third edition). “Liberty stands in need of character,” and this character is received from social institutions. He then proceeds:

... An institution is a system or body of usages, laws, or
regulations of extensive and recurring operation, containing within
itself an organism by which it effects its own independent action,
continuance, and generally its own farther development. Its object
is to generate, effect, regulate, or sanction a succession of
acts, transactions, or productions of a peculiar class or kind.
The idea of an institution implies a degree of self-government.
Laws act through human agents, and these are, in the case of
institutions, their officers or members. (_Ibid._, p. 300.)

It was the deep-rooted _civisme anglais_, he believed, that had developed the orderly liberty of the English race; and it is this same institutional spirit that provides the surest check upon the augmenting power of the political state. There can be no tyranny where society is trained and disciplined in liberty.

The creative source and origin of this excellent _civisme anglais_ Lieber discovered in the principle of local self-government; in the exercise of local control of local interests; the enjoyment of innumerable lesser sovereignties within the larger national organism. These lesser sovereignties are both civil and social, and the amount of liberty enjoyed in a given society is measured by the independent vigor with which they function. The exercise of definite rights by the several states is clearly one of the important institutional functions of self-government, but it is only one. The New England town-meeting, county and city governments, are even more important, while outside these civil organisms are innumerable social organisms, exercising their common right of establishing by-laws for their own governance, and spreading the spirit of liberty through all the practices of society.

According to the Anglican view, institutional self-government
consists in the fact that all the elementary parts of the
government, as well as the highest and most powerful branches,
consist in real institutions ... [but it] consists, farther,
in the unstinted freedom and fair protection which are granted
to institutions of all sorts, commercial, religious, cultural,
scientific, charitable, and industrial, to germinate and to
grow--provided they are moral and do not invade the equal rights
of others. It receives its aliment from a pervading spirit of
self-reliance and self-respect--the real afflatus of liberty.
(_Ibid._, p. 320.)

This, quite evidently, is the spirit of _laissez faire_ applied to political philosophy. A people thus used to order their social affairs, as the English people have long done, will prove competent to manage their political affairs; and the widespread spirit of individual independence will prevent the drift towards unregulated centralism with its corollary of tyrannical power. The conception of institutional liberty embodies much of the spirit of Jeffersonianism, and it goes back in its origins as far as Roger Williams. The states-rights advocates, Lieber implies, were mistaken in seeking the principle of liberty through particularism. In magnifying the individual commonwealth they overlooked the more vital units of self-government. To erect the state above the nation was no lasting solution of the most difficult problem in political philosophy, namely, the coördination of sovereign power with individual liberty; it was only to substitute one sovereignty for another, whereas to encourage the spread of self-governing bodies through society was to provide the necessary countercheck to centralizing power and coördinate liberty and sovereignty under the reign of law.

A stimulating thinker was this German liberal with his historical method and his conception of an evolutionary freedom rooted in the institutions of the English people. He gave a new turn to speculation on the origin and nature of the political state, the immediate consequence of which was the repudiation of the compact theory and natural-rights philosophy by our academic political scientists. The organic conception of the political state fell in with the centralizing movement that followed the Civil War, a movement which the forces of institutional self-government have been powerless to prevent. On the whole the influence of Lieber has been rather against than for that liberty which was so dear to him, and the explanation is to be found in the tragic divorce, in his thinking, of politics and economics. His inveterate legalism and his failure to investigate the economics of politics proved in the end the undoing of his liberalism.

Footnotes

[402] See Merriam, _American Political Theories_, p. 231; Gaillard Hunt, _John C. Calhoun_, p. 64.

[403] See “A Disquisition on Government” in Calhoun’s _Works_, Vol. I, pp. 41-42.

[404] See Pendleton, _Alexander H. Stephens_, p. 231, note.

[405] See _A Constitutional View, etc._, Vol. I, pp. 406-408.