Society, and government as representing society, has a real existence, life, faculties, and organs of its own, not derived or derivable from individuals.As well might it be maintained that the human body consists in and derives all its life from the particles of matter it assimilates from its food, and which are constantly escaping as to maintain that society derives its life, or government its powers, from individuals.No mechanical aggregation of brute matter can make a living body, if there is no living and assimilating principle within; and no aggregation of individuals, however closely bound together by pacts or oaths, can make society where there is no informing social principle that aggregates and assimilates them to a living body, or produce that mystic existence called a state or commonwealth.
The origin of government in the Contrat Social supposes the nation to be a purely personal affair.It gives the government no territorial status, and clothes it with no territorial rights or jurisdiction.The government that could so originate would be, if any thing, a barbaric, not a republican government.It has only the rights conferred on it, surrendered or delegated to it by individuals, and therefore, at best, only individual rights.
Individuals can confer only such rights as they have in the supposed state of nature.In that state there is neither private nor public domain.The earth in that state is not property, and is open to the first occupant, and the occupant can lay no claim to any more than he actually occupies.Whence, then, does government derive its territorial jurisdiction, and its right of eminent domain claimed by all national governments? Whence its title to vacant or unoccupied lands? How does any particular government fix its territorial boundaries, and obtain the right to prescribe who may occupy, and on what conditions the vacant lands within those boundaries?
Whence does it get its jurisdiction of navigable rivers, lakes, bays, and the seaboard within its territorial limits, as appertaining to its domain? Here are rights that it could not have derived from individuals, for individuals never possessed them in the so-called state of nature.The concocters of the theory evidently overlooked these rights, or considered them of no importance.They seem never to have contemplated the existence of territorial states, or the division of mankind into nations fixed to the soil.They seem not to have supposed the earth could be appropriated; and, indeed, many of their followers pretend that it cannot be, and that the public lands of a nation are open lands, and whoso chooses may occupy them, without leave asked of the national authority or granted.The American people retain more than one reminiscence of the nomadic and predatory habits of their Teutonic or Scythian ancestors before they settled on the banks of the Don or the Danube, on the Northern Ocean, in Scania, or came in contact with the Graeco-Roman civilization.
Yet mankind are divided into nations, and all civilized nations are fixed to the soil.The territory is defined, and is the domain of the state, from which all private proprietors hold their title-deeds.Individual proprietors hold under the state, and often hold more, than they occupy; but it retains in all private estates the eminent domain, and prohibits the alienation of land to one who is not a citizen.It defends its domain, its public unoccupied lauds, and the lands owned by private individuals, against all foreign powers.Now whence, if government has only the rights ceded it by individuals, does it get this domain, and hold the right to treat settlers on even its unoccupied lands as trespassers? In the state of nature the territorial rights of individuals, if any they have, are restricted to the portion of land they occupy with their rude culture, and with their flocks and herds, and in civilized nations to what they hold from the state, and, therefore, the right as held and defended by all nations, and without which the nation has no status, no fixed dwelling, and is and can be no state, could never have been derived from individuals.The earliest notices of Rome show the city in possession of the sacred territory, to which the state and all political power are attached.Whence did Rome become a landholder, and the governing people a territorial people? Whence does any nation become a territorial nation and lord of the domain? Certainly never by the cession of individuals, and hence no civilized government ever did or could originate in the so-called social compact.
